author: PER CURIAM.

text:
    HUMBLE OIL & REFINING COMPANY et al., Appellants, v. T. A. CAMPBELL, Jr., et al., Appellees.
    No. 6270.
    Court of Civil Appeals of Texas. Beaumont.
    June 15, 1961.
    Rehearing Denied Oct. 25, 1961.

      B. F. Whitworth, Jasper, John K. Meyer, Houston, Bill A. Martin, Newton, Wheat & Wheat, Woodville, Orgain, Bell & Tucker, Beaumont, Lewis Lanier, Jasper, Wayne S. Smith, Dallas, for appellants.
    Wynne, McKenzie, Stroud, Jaffe & Tin-sley, Dallas, Will Wilson, Atty. Gen., for appellees.
   PER CURIAM.

This suit — a vacancy suit involving land in Newton County — is the culmination of proceedings begun and prosecuted under authority of Article 5421c, Vernon’s Ann. Civ.Statutes.

Representing the land in question as being vacant and unsurveyed public school land, appellee Campbell applied to the Commissioner of the General Land Office for a mineral lease on it. The Commissioner refused to grant the application, having concluded, after a hearing, that the land was not vacant- and unsurveyed. Appellee Campbell thereupon filed this suit in the district court of Newton County. Humble Oil & Refining Company, several other corporations, and numerous individuals were named as defendants. Also named by the plaintiff as parties to the suit were the Commissioner of the General Land Office and the Attorney General, the latter of whom intervened on behalf of the State and aligned himself with the plaintiff. The defendants answered but did not plead any affirmative defenses. Trial to a jury resulted in a judgment establishing a vacancy- — -bounded as claimed by the plaintiff — and fixing the respective rights of the prevailing parties therein. All defendants who claim the alleged vacant area or some interest in it, and at least one who probably does not, but who owns or claims adjacent land, appealed.

Six surveys, figure in the evidence: the William H. Stark League, the William H. Stark Labor, the Lewis Dunning Survey, what will be referred to as the Forse Survey, what will be referred to as the Crook Survey, what will be referred to as T. & N. O. No. 3, and what will be referred to as T. & N. O. No. 4, the latter two being Surveys No. 3 and No. 4, Block 6, of surveys made for Texas & New Orleans Rail Road Company. But three of these, the T. & N. O. No. 4, the Crook, and the Forse, play parts which are interwoven, since it was as the T. & N. O. No. 4 that most, if not all, of the land in both the Crook and the Forse was first surveyed.

The called courses of all pertinent north and south lines of the six surveys are either N. 88 E. or S. 88 W., and the called courses of all pertinent east and west lines of the surveys are either N. 2 W. or S. 2 E.

If in fact the land in controversy is vacant and unsurveyed public school land, it is bounded on the west by the Crook and by the Forse, on the south by the Stark League, on the east by the Stark Labor, and on the northeast and north by T. & N. O. No. 3. If it is not vacant and unsurveyed public school land, the greater part of it is in the Crook Survey, and the remainder of it is either in the Forse Survey or is divided between that survey and T. & N. O. No. 3 or between T. & N. O. No. 4 and T. & N. O. No. 3.

The alleged vacancy comprises 36.24 acres and is represented by the shaded portion of the following plat:

The Stark League, which was surveyed May 1, 1838, is the senior survey among those we have mentioned. The next oldest is the Stark Labor, which was surveyed May 2, 1838. Then comes the Lewis Dunning, which was surveyed December 7, 1874. T. & N. 0. No. 3 and T. & N. O. No. 4 first came on the scene in June of 1876, at which time C. A. Nation undertook to survey a sixteen-section block, Block 6, for Texas & New Orleans Rail Road Company and thereby to take up all vacant land between quite a number of surveys which had been theretofore located in such a manner as to form a highly irregular pattern. Nation’s field notes failed, for the most part, to receive approval in the General Land Office. Corrected field notes were filed by the same surveyor in December, 1876, but these also failed to gain approval. The matter rested there for several years. Then, in January of 1886, T. G. B. Cox undertook to resurvey the entire block of surveys. Cox’ notes represented T. & N. O. No. 3 as containing 640 acres but represented T. & N. O. No. 4 as containing only 614 acres, whereas Nation’s notes had, in each instance, represented the surveys as each containing 640 acres. Personnel of the General Land Office found Cox’ notes for T. & N. O. No. 3 incorrect and noted the errors on them March 29, 1886, but, on the same day, endorsed his field notes for T. & N. O. No. 4 as follows: “Correct for only 614.4 acres.” Cox submitted corrected field notes for T. & N. O. No. 3, wherein he represented the survey as containing only 613 acres. On December 20, 1886, the amended notes were endorsed in the General Land Office with this endorsement: “Correct on the map of Newton County.” On the same day, a new endorsement was placed on Cox’ notes for T. & N. 0. No. 4, towit: “Correct for 614 acres on map of Newton County.” Without more ado, T. & N. O. No. 3 was patented January 6, 1887. T. & N. O. No. 4 was never patented as such, but was sold or awarded as such in 1901. J. W. Link was the priginal purchaser. He deeded the land to J. M. Hughes in 1905, and Hughes deeded it to J. B. Forse in 1913. Then, in 1915, J. B. Forse conveyed to W. M. Crook and others 160 acres of the land, the same to be surveyed in the form of a square in the southeast corner of the survey. The ownership of it having become thus divided, the land was resurveyed as two separate tracts, so that each tract might be patented as a separate survey. The resurveying was done by A. A. Miller, and the Miller field notes recited that it was done on March 25, 1924. The Crook and the Forse were the surveys so created. A patent for each was issued April 10, 1924.

The north line of the Stark League — the called course of which is S. 88 W. from the survey’s northeast corner — is common to all of the surveys that have been mentioned, T. & N. O. No. 3 excepted. In other words, it is the south line of each of the following surveys: the Stark Labor, the Lewis Dunning, the T. & N. O. No. 4, the Crook, and the Forse. Not only was it called for as such in the field notes of the surveys, but all parties to the suit accept it as such. Its location is not disputed.

As previously indicated, both the Stark Labor and the Lewis Dunning are senior to the surveys that were made for Texas & New Orleans Rail Road Company. T. & N. O. No. 4 was constructed between the two, and its field notes call for it to adjoin both. The field notes (Cox’), in material part, are as follows:

“Beginning at a stk the S.W. cor. of W. H. Starks Labor on the N. line of Starks League a Dogwood brs S 21 ½ E 3 vrs. a P. brs. N 24 E 1.9 marked W.H.S.
“Thence N. 2 W. with said Labor at 1000 vrs passed the N.W. cor 1837 vrs the N.E. cor. of No. 4 and a cor of No. 3 a P.O. brs. N. 4½ E 7 vrs. R.O. brs N 47 E 12 varas
“Thence S. 88 W. at 1885 vrs the N.W. cor of No. 4 on the E. line of Lewis Dunning a R.O. brs S 10 W 2 vrs DO brs N. 55 W. 34 vrs
“Thence S. 2 E. with Dunning line at 1837 varas stk on the N. line of W.H. Starks League
“Thence N. 88 E. at 1885 varas the place of beginning.”

The following are the field notes of the Crook Survey:

“Field notes of a survey of 160 acres of land made in the name of W. M. Crook, C. A. Lord, W. I. Lawhon, and L. E. Ney, same being the S.E.14 of section 4 T. & N. O. Ry Co. cert. No. 289 situated about 10½ miles S. 30 E. from the county site on the Waters of Davis Creek, and more fully described as follows towit:
“Beginning at the S.W. corner of the W. H. Starks labor on the North boundary line of the W. H. Starks league from which a pine brs N 24 E 1.9 vrs, and do S 35 E 8 vrs;
“Thence S 88 W with the North boundary line of said league at 950.4 vrs stake for corner a small pine brs N 25 E 3 vrs and a do. brs. S 30 W. 2 vrs;
“Thence N 2 W at 950.4 vrs stake for corner;
“Thence N 88 E at 950.4 vrs stake for corner in the West boundary line of said labor;
“Thence S 2 E with said line at 950.4 vrs to the place of beginning.”

The field notes of the Forse Survey read in this manner:

“Field notes of a survey of 454 acres of land made in the name of J. B. Forse, same being the baUance of section No. 4, T. & N. O. Ry. Co. Cert. No. 289 situated on the waters of Davis creek, about 10 miles S. 30 E. from the County site: more fully described as follows to wit:
“Beginning at the S.E. corner of Lewis Dunning survey in the North boundary line of the W. H. Starks league from which black gum brs Nil E 6 vrs. and do. brs S 66 W 8 vrs;
“Thence N 2 W with the East boundary line of said Dunning at 1840 vrs stake for corner a red oak brs N 10 W 2 vrs a do. brs N 56 W 4 vrs;
“Thence N 88 E with the north boundary line of said section at 1885 vrs stake a post oak brs N 47 E 12 vrs. and red oak brs N 4 E 7 vrs;
“Thence S. 2 E with the East boundary line of said section at 890 vrs the N.E. corner of a 160 acre survey made in the name of W. M. Crook, C. A. Lord, W. I. Lawhorn, and L. E. Ney;
“Thence S 88 W with the north boundary line of said tract at 950.4 vrs. stake for corner;
“Thence S 2 E with its west line at 950.4 vrs stake for corner in the North boundary line of said Starks league;
“Thence S 88 W with the North boundary line of said league at 935 vrs to the place of beginning.”

The field notes for T. & N. O. No. 3 call, in effect, for the survey to adjoin T. & N. O. No. 4 on the latter’s east and north. They actually call to run from the northwest corner of the Stark Labor “N 2 W 837 Stake for N.E. cor of No. 4 this block fr. wh a PO — N 24½ E 7 — RO N 47 E 12” and then “S. 88 W 1885 stk for N W cor of No. 4 on L Dunnings E line — RO S 10 W 2 — RO 15" N 55 W 34.”

Needless to say, the field notes, whether those of T. & N. O. No. 4 or those of the Crook and the Forse, appear to leave no vacancy. But, as is so often the case, they contain some erroneous and inconsistent calls.

The corner that surveyor Cox set as the northeast corner of T. & N. O. No. 4 and as an internal corner of T. & N. O. No. 3 still can be identified by its original witness trees and is acknowledged by both sides. It is approximately its called distance of 1885 varas from the east line of the Lewis Dunning Survey, the actual distance being near 1890 varas, but it is not where the first call in the field notes of T. & N. O. No. 4 would place it. The latter call would place the corner in a projection of the Stark Labor’s west line, at or near the location that is represented on the plat by point F. The corner is actually 138 varas west of there, at the place that is represented on the plat by point D.

The north and south lines of T. & N. O. No. 4 are called to be of equal lengths, 1885 varas each, and the south line is called to extend from the southeast corner of the Lewis Dunning Survey to the southwest corner of the Stark Labor. But, whereas the north line is approximately its called length, the distance between the Dunning’s southeast corner and the Labor’s southwest corner is approximately 2,016 varas, or 131 varas greater than the field notes represent it to be.

The northeast corner of the Forse is the same, the parties agree, as the northeast corner of T. & N. O. No. 4. The Forse’s most northerly east line is called to run from such corner S. 2 E. to a point in the west line of the Stark Labor. Run on its called course, the line would never reach the Labor’s west line, but would be parallel-to it, and approximately 138 varas west of it.

Between them, the south line of the Crook and the most southerly south line of the Forse are called to extend from the Stark Labor’s southwest corner to the Lewis Dunning’s southeast corner, but the sum of their called lengths is only 1885.4 varas. As we have already stated, the actual distance between the mentioned corners is 2,016 varas.

With the foregoing facts and discrepancies as a base on which to build, appellees undertook to prove that the southeast cor- ■ ner of T. & N. O. No. 4 and the southeast corner of the Crook are both located at the place that is represented on the plat by un-circled number 1, or 152.83 varas S. 87° 51' W. of the southwest corner of the Stark Labor; that a line which is represented on the plat by the line between uncircled number 1 and letter D is the east line of T. & N. O. No. 4 and of the Crook and of the Forse; that the calls for adjoinder on the east sides of the three surveys were made . through mistake and should be rejected.

The parties agree as to the following matters: 1) the locations of the west line and corners of the Stark Labor; 2) the location of the north line of the Stark League and that the line is the south line of T. & N. O. No. 4 and of the Crook and of the Forse; 3) the locations of the east line and southeast corner of the Lewis Dunning Survey and that the line and corner are the west line and southwest corner of T. & N. O. No. 4 and of the Forse; 4) the locations of 'the north line and corners of T. & N. O. No. 4 and of the Forse. In addition, they stipulated that a straight line between the accepted northwest corner of the Stark Labor and the accepted northeast corner of T. & N. O. No. 4 is one boundary of T. & N. O. No. 3. The parties are also in accord about how the Crook Survey should be reconstructed, once its east line is ascertained. Each side reconstructs the survey as a parallelogram and gives the lines of the survey their called lengths. The west line of the Crook Survey is accepted as being, in any event, the most southerly east line of the Forse.

The agreed survey corners are represented on the plat by points A, B, C, D, E, and the agreed locations of survey lines are represented by the solid lines connecting those points. Under appellants’ reconstruction of the Crook Survey, the survey’s corners are located as represented on the plat by the points that are designated by circled numbers. Under appellees’ reconstruction of the survey, the corners are located as indicated by uncircled numbers.

The line by which appellees would bound T. & N. O. No. 4, the Forse, and the Crook on the east (D-l) is in part a marked line which extends southward from the accepted northeast corner of T. & N. O. No. 4 a few hundred varas and is in part a projection of that line along the line’s course of South Io 38' East. The location they claim for the southeast corner of T. & N. O. No. 4 and of the Crook is the point at which the projected line intersects the accepted north line of the Stark League.

Despite the inconsistency that would seem to be involved, appellees do not claim that the southeast corner of the Crook Survey was originally located at the location they themselves now claim for it. Instead, they take the position that Miller actually established the corner some twelve varas, or approximately 35 feet, north of the accepted north line of the Stark League, at the location that is represented on the plat by point la. The location is in or near the line their surveyor ran as the east line of the Crook and is a point from which an unmarked pine stump bears S. 35 E. 8 varas, and from which another unmarked pine stump bears N. 24 E. %oths of a vara. The surveyor testified that he concluded that the stumps were stumps of the witness trees called for in Miller’s field notes, one of which was a pine bearing' S. 35 E. 8 varas, and the other of which was a pine bearing N. 24 E. 1.9 varas. He also said, or at least implied, that a marked line which remained north of the accepted north line of the Stark League to near the southwest corner of the Lewis Dunning Survey (and which is represented on the plat by dashes) extended westerly from the point (la) or from its immediate vicinity. He did not go into detail about the line as it would lie east of the corner that is represented on the plat by point X (the northwest corner of a 110-acre tract that was surveyed for one Amert Sharp), but did say that it existed in the area through which he ran the line ap-pellees claim as the east line of the Crook, and expressed himself as of the opinion that Miller had mistaken the line for the League line and had used it as the south line of the Crook and of the Forse. He obviously was of the opinion that the line antedated Miller’s work, and he perhaps implied that it extended east of point la as well as west of it. He made clear that farther west the line had been accepted by surveyors other than Miller as the League line. He said, for example, that he found the northwest corner of the Amert Sharp tract in the line and ten or twelve varas north of the accepted line; the corner was called to be in the League line. He said, also, that he found in the line and in the east line of the Dunning Survey a concrete marker which had been set in recent years as the Dunning’s southeast corner. The marker was 26.4 varas north of the accepted corner location (point B). He admitted that from east to west the accepted line was well marked to the northeast corner of the Amert Sharp tract (point Y).

The surveyor did not expressly testify that point la was at the intersection of the more northerly marked line and the line he ran as the Crook’s east line, nor that it coincided exactly with either of the lines.

He found no evidence of a corner site at the location appellees claim for the southeast corner of T. & N. O. No. 4 and of the Crook (uncircled 1), nor at the location ap-pellees claim for the Crook’s southwest corner, and admitted that, so far as he knew, no corner had ever been marked at either location.

The marked line that extends southward from the accepted northeast corner of T. & N. O. No. 4 and of the Forse, the line appellees seek to utilize, was identified by one of appellees’ witnesses as a line A. A. Miller followed, at least upon one occasion, while attempting to retrace the lines of T. & N. O. No. 4. Having first stated that he had had “some dealings with [Miller] about surveying out the line of T. & N. O. Section 4,” Amert Sharp testified that in 1924, as best he recalled, he and Miller retraced the west and north lines of T. & N. O. No. 4 and followed a marked line southward from the survey’s northeast corner for quite some distance. They did not, he said, follow the latter line as far south as the north line of the Stark Labor but quit it upon arriving at a dense thicket not far north of the road that is in part depicted on the plat. He said that upon arriving at the thicket Miller expressed himself as feeling ill and that they skirted the thicket on its east side, walked southward to the road, and followed the road back to where Miller’s car was parked in the Stark League. Before going to the automobile, however, they went, he said, to a marked corner which was near the road and in the League’s north line. En-route there, according to his further testimony, they crossed Albert Singleton’s field and went “down the side of an old wire fence” to a pine tree that was marked with an X which appeared to be quite old. They were then, he said, at Singleton’s southwest corner and also at Shade Adams’ land; and it is undisputed that the southwest corner of the Singleton land and the northwest corner of the Adams land are at the southwest corner of the Stark Labor. Miller, according to the witness, went to the marked pine and remarked, “Here is a corner right here,” and added, “Man, I know that corner; that’s the Adams tract of land.” Sharp said that he agreed with Miller that it was the Adams corner. He said, also, that Miller remarked that when he got well he would return and they would “pick up” on that corner, but that Miller ' never returned, so far as the witness knew.

Not only does it not appear that Miller and Sharp had with them either a surveying instrument or a chain, hut it fairly may be said that, by failing to challenge the pertinent part of an affidavit he himself had made earlier, Sharp, who had been requested to challenge the parts of the affidavit he deemed incorrect, impliedly testified that he and Miller had neither of those rather essential items. Nevertheless, and despite the fact that in his field notes Miller named Tom Booker and N. A. Dawson as having been his chainmen, appellees would seem to take the position that what we have described as having been done by Miller and Sharp constituted Miller’s ground work in surveying the Crook and the Forse. In any event, they take the position that Sharp identified Miller’s “footsteps” from the southwest corner of T. & N. O. No. 4 to where the witness and Miller abandoned the marked line they followed southward from the survey’s northeast corner.

The only evidence that dealt with the subject explicitly was to the effect that the marked line last mentioned could not be identified beyond five or six hundred varas south of the northeast corner. Appellees’ surveyor may have implied, but he did not say, that the line could be identified as far south as the Labor’s north line or as the north line of the Crook. He admitted that he considered the “brushed out” line he found farther south as only a “transit line” someone had run. The evidence strongly suggests that Miller surveyed the Crook and the Forse in 1921 or earlier, rather than in 1924 as he represented in his field notes; that, in so doing, he actually ran only the south line of the Crook and the west and north lines of the Forse; and his return to the scene with Amert Sharp in 1924 was probably prompted by a suspicion that the field notes that he was about to submit were not correct, a suspicion on which he failed to follow through to resolution.

The parties differed about the ages of markings found along the line, but Amert Sharp testified that the markings he and Miller followed were quite old when he and Miller were there in 1924, and another of appellees’ witnesses, one-who had been on the line not long before the case was tried in 19S8, estimated that some of the markings were as much as seventy-five years old. The surveyor for appellees said that, including painted markings which had been placed along the line within the comparatively recent past, he himself found markings of three -different ages when he retraced the line in 1952. An expert witness for appellants produced in court markings which he said he judged to be as old as any on the line; one of these was old enough to have been made in 1921; the other had been made more recently.

No evidence tending to show that a line corresponding to the stipulated boundary of T. & N. O. No. 3 (D-E) had ever been marked on the ground prior to the time at which appellee Campbell initiated his vacancy claim was found. Campbell, it seems, arbitrarily adopted the line as one boundary of the alleged vacancy. When run from the northeast corner of T. & N. O. No. 4, the line runs S. 11° 16' E. A marked line, a projection of the Stark Labor’s west line, extends from the Labor’s northwest corner to a marked corner which is represented on the plat by point F, but neither side claims it as a boundary of any of the surveys. Thus may be seen, froto the facts and circumstances set forth above, the basic error that is involved is the error with reference to the distance between the Stark Labor and the Lewis Dunning Surveys. It originated with C. A. Nation’s work or earlier. Although Nation’s work was not accepted by the General Land Office, maps during the period in use indicated the distance between the Labor and Dunning Surveys as 1,885 varas, and it appears that all three surveyors accepted this distance, though clearly erroneous.

The jury, in response to special issues 1, 2, and 2a, found that surveyor A. A. Miller, in surveying the Crook Survey, located the survey’s northeast corner “in the east line of T. & N. O. Section No. 4” at the loca-' t.ion that is represented on the plat by un-circled number four, located the survey’s southeast corner at the location that is represented on the plat by uncircled number one, and located the east boundary line of T. & N. 0. No. 4 as represented on the plat by the dashed line between points D and uncircled number one. The jury failed to find from a preponderance of the evidence that Miller established the southeast corner of the Crook at the location that is represented on the plat by circled number one or that he established the northeast corner of that survey at the location that is represented on the plat by circled number four. The special issues by which the latter two questions were submitted (special issues 3 and 4) were both answered in the negative.

Both a motion for an instructed verdict and a motion for judgment non obstante veredicto were seasonably urged in the trial court by appellants and were overruled. Appellants here urge, in effect, that the trial court erred in each instance in not granting the motions. They specifically urge, under their first three points, that, as a matter of law, the evidence locates the southeast corner of the Crook Survey at the undisputed location of the southwest corner of the Stark Labor, locates the east line of the Crook in and on the undisputed location of the Labor’s west line, locates the most northerly east line of the Forse Survey in and on the undisputed location of the most southerly west line of T. & N. O. No. 3, and that the trial court erred in failing to so hold. In addition, under points four through eight, the jury findings are attacked as being without any support in the evidence; as being, in- the alternative, without sufficient support in the evidence; and as being, in the further alternative, so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong. Appellants also urge, under point nine, that, irrespective of where Miller located the east lines of the Forse and the Crook, the evidence, as a matter of law, establishes that no vacancy exists. We have concluded that most of the nine points must be sustained.

The actual dates of the surveys of the Crook and Forse are not known, but since calls in the Forse are to adjoin the Crook, and the absence of any call in the Crook to adjoin the Forse, this clearly indicates that the Crook is senior to the Forse. Thomson v. Langdon, 87 Tex. 254, 255, 28 S.W. 931, 935. Any inconsistency or conflicts, therefore, occurring between the Forse and Crook field notes cannot affect the Crook Survey. Its field notes are complete and unambiguous and are readily found on the ground by their own calls. An examination of the field notes for the Crook call to begin at the south west corner of the W. H. Starks Labor, describing the bearing trees as set forth at that corner, and the Crook’s north line calls to join the west line of said Labor; thence S. 2 E. “with said line” to the place of beginning. Inasmuch as the parties agree upon the location of the long' and well established northwest and southwest corners and west line of the Labor, the calls for ad joinder thereto in the Crook notes indisputably anchor the Crook to the Labor and make the location of the former certain. Thomson v. Langdon, supra; State v. Sun Oil Co., Tex.Civ.App., 114 S.W.2d 936. In holding the Crook adjoins the west line of the Labor, we give effect to all calls in the Crook field notes; whereas, to hold contrariwise would require us to disregard four distinct calls therein. The evidence of appellees’ surveyor, as pointed out earlier in this opinion, as to what he found for, or established as the southeast corner of the Crook on the plat at either uncircled number 1 or 1A is too weak to raise a jury issue. Premier Royalty Co. v. New Birmingham Development Co., Tex. Civ.App., 150 S.W.2d 269; Guill v. O’Bryan, Tex.Civ.App., 121 S.W. 593. And the work of the surveyor Miller, in attempting to locate the east line of Section 4, in connection with his furnishing field notes on the Forse and Crook tracts, based on the testimony of appellees’ witness Sharp outlined above, is so unsatisfactory that the east line of the Crook as the jury found Miller had located it should not stand.

Since, as has been stated earlier in this opinion, Sections 3 and 4 were both a part of a block or system of surveys, and the ■claimed vacancy existing within the area is based upon the agreed line D-E of Section 3 and since this is an interior line, no reconstruction of Section 4 is possible except for the northern part of its east line to run upon the line D-E. Findlay v. State, Tex.Civ.App., 238 S.W. 956, 973, affirmed 113 Tex. 30, 250 S.W. 651; Duval County Ranch Co. v. Rogers, Tex.Civ.App., 150 S.W.2d 880. Though this holding requires that the call for course and distance “N. 2 W.” from the northwest corner of the Stark Labor in the field notes of both Sections 3 and 4 prepared by Cox must give way, the course being actually “N. 11° 15' W.” to so hold will construct the surveys in such manner as will best give effect to the intention determined from the entire description. Stanolind Oil & Gas Co. v. State, 129 Tex. 547, 101 S.W.2d 801, 807, 104 S.W.2d 1. This follows, we think, since the evidence very strongly indicates that Cox established the N.E. corner of Section 4 from the west rather than from the south, basing his distance on the erroneous assumption that the Stark Labor .and Dunning Surveys were separated by a distance of 1,885 varas, and that then — if in fact he ran any part of the east line- — he ran S. 2 E. only the distance that should have brought him, as he had reason to suppose, to the northwest corner of the Stark Labor. In disregarding the call “N. .2 W.” for course and the manifestly erroneous call of 1,885 varas between the east line of the Dunning Survey and the west line of the Stark Labor, we uphold the other calls, including the adjoinder calls in the Labor and Dunning Surveys, thereby disregarding as few of the calls as possible and giving effect to the rule that no vacancy shall be held to exist in construing interior lines of a system of surveys. In doing this, we also give effect to the intention of the General Land Office that there should be no vacancy in having approved Cox’s field notes for Sections 3 and 4 calling for a common boundary northwest of the corner of the Stark Labor. Giles v. Kretzmeier, Tex.Civ.App., 239 S.W.2d 706(9).

We, therefore, sustain appellants’ first three points, and their Points 6, 7, and 8 which are to the effect the trial court erred in failing to sustain appellants’ motion for judgment non obstante veredicto. This makes it unnecessary to pass upon Point 9.

The judgment of the trial court is, therefore, reversed and judgment is here rendered that appellees (including intervenor) take nothing of appellants, and that appellants recover of appellees all costs in this behalf accrued.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    V. E. McFARLING, Appellant, v. Lula D. MALTBY, Appellee.
    No. 3656.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 29, 1961.

      Touchstone, Bernays & Johnston, Dallas, for appellant.
    Duncan Gault, Mineral Wells, for appel-lee.
   WALTER, Justice.

This is a plea of privilege case and the judgment overruling the plea is affirmed. Mrs. Lula D. Maltby filed suit against V. E. McFarling for damages, alleging she sustained personal injuries when she fell as she was leaving the cafe at the Cedar Crest Lodge, a commercial fishing establishment on Possum Kingdom Lake in Palo Pinto County. The lodge was operated by McFarling. He filed a plea of privilege, and Mrs. Maltby controverted it and alleged the court had venue under subdivision 9a of Article 1995 of Vernon’s Annotated Civil Statutes. The plea of privilege was overruled and McFarling has appealed, contending the court erred in overruling his plea of privilege because Mrs. Maltby failed to introduce any evidence of negligence that was a proximate cause of her injuries. He also contends the court erred in permitting a witness to testify to a statement he heard another person make to the manager of the lodge at the scene of the accident concerning knowledge of the dangerous condition of the steps to the cafe.

Mrs. Maltby had the burden of proving the venue facts by a preponderance of the evidence. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. Our Supreme Court in the case of James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323, said: “On appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment.” Our Supreme Court in Renfro Drug Company v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613, speaking through Justice Calvert, said: “In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto ‘it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.’ Austin v. Cockran, Tex.Com.App., 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.”

Three of the specific acts of negligence which Mrs. Maltby alleged were singly or collectively a proximate cause of her injuries are as follows: (1) “In failing to provide a light over or at the entrance to the cafe and the steps where the accident occurred at the time and on the occasion in question.” (2) “In failing to provide a regular and uniform pattern of steps and entrance to the cafe at the time and on the occasion in question.” (3) “In failing to provide an initial step of sufficient size immediately in front of the cafe door at the time and on the occasion in question.”

McFarling testified substantially as follows: that he was operating the Cedar Crest Lodge at the time of Mrs. Maltby’s accident; Mrs. Maltby and others were having a family reunion and rented cabins from him at the lodge; he was at home and did not see the accident and did not learn about it until the next morning; Bob Rogers was employed by him as manager; and that it had never been brought to his attention that anyone except Mrs. Maltby had stumbled on these steps.

C. A. McGill testified substantially as follows: that Mrs. Maltby is his sister and all members of his party were paying guests at the lodge and they ate some of their meals at the cafe; his sister’s accident occurred after dark; he arrived at the scene of the accident soon after it occurred, at which time Mrs. Maltby was lying on the ground; Rogers, the camp manager, was at the scene of the accident; there were three or four other people at the scene whose names he does not recall; within five minutes after the accident and at the scene of the accident he heard a lady tell Rogers, “Bob, I told you to do something about those steps. I fell there myself.” and that Rogers made no reply; there were no lights of any kind over the door at the entrance to the cafe; there were no lights of any kind illuminating the entrance of the cafe; there were shadows and darkness over the steps that led from the entrance of the cafe; the first step outside the cafe entrance is approximately two feet wide and five feet long; the second step is about eight feet wide; the drop from the first to the second step is five or six inches; the vertical distance from the second step down to the con•crete ramp is approximately fifteen inches; there had been some changes made to the entrance of the cafe since the accident in that the hinges on the doors had been changed from the left to the right side; the door is approximately three feet wide and when fully opened completely covers the first small step; there is an evaporative cooler now at the entrance whereas at the time of the accident there was a refriger-ativo type cooler. Mrs. Maltby introduced pictures showing the entrance to the cafe.

Mrs. Maltby testified she was a .registered nurse and this was her first visit to the lodge; that prior to her accident she had been in the lounge of the cafe drinking coffee and watching television; after the Perry Como show she paid for her coffee and left the cafe. When she was asked to tell what happened as she started to go out of the cafe, she said: “I just went out the door and closed the screen door and apparently. — I took a step to go down the steps and the porch and I just walked into the air. * * * I came out the door. The door opened opposite from what it does now. The door opened this way, then. And I closed the door and I started to walk to come off, and I stumbled and my foot went off of this. Apparently I was too close to the edge for a step. As a matter of fact it is not wide enough for an ordinary step to be taken. * * * And then I just stepped into the air. I couldn’t get ahold of anything and I stumbled and fell.” She received a fractured hip and was taken to Hendrick Memorial Hospital at Abilene. After her eighth month checkup with Dr. Bray, she was transferred to Dr. Manning at her home in Pawhuska, Oklahoma. She also testified there was no light of any kind over or about the steps at the entrance to the cafe and when she was asked on cross examination, “And in all truthfulness, you just missed your step, didn’t you?” she answered “Well, I think if it had been properly lighted I wouldn’t have. There was no light there.”

Our Supreme Court in the case of Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60, 63, said: “A guest has a right to presume that premises are kept in a safe condition for his use and is under no obligation to search out defects therein. Blanks v. Southland Hotel, Inc., 149 Tex. 139, 229 S.W.2d 357.”

Our Supreme Court in the case of Blanks v. Southland Hotel, Inc., 149 Tex. 139, 229 S.W.2d 357, 361, said: “In lieu of discussing other cases the following excerpt from J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698, 699 (a primary negligence case), is incorporated herein because of the peculiar applicability hereof its language, as well as its holdings: 'The issue of whether or not given acts constitute negligence is essentially a jury question. The facts of each case must be given independent consideration, and seldom are the facts of any two cases so identical as that the decision in one could be held to be authority for a like decision in the other. Examining the facts in the case before us, we are of the opinion that an issue is presented on the negligence of plaintiff in error in failing to maintain the premises in a reasonably safe condition. Jurors might conclude that the slight offset on the wide concrete area was deceptive and dangerous. The record does not disclose why such a slight offset should have been maintained or what purpose it served. Plaintiff in error invited the public, including Mrs. Brock-man, to come through the north entrance of this store, thereby impliedly representing that it was safe for them to do so. If it was unsafe, the jury might have concluded that plaintiff in error should have made it safe, or, if that could not be done practically, should have discontinued the use of that entrance altogether. We cannot hold that this slight offset was so obvious as to exonerate plaintiff in error of all negligence as a matter of law.’ ”

A careful study of the facts and circumstances in evidence leads us to the conclusion that they raise fact issues of negligence and proximate cause.

The statement, “Bob, I told you to do something about those steps. I fell there myself.” was made to the cafe manager at the scene of the accident and very soon thereafter, and he made no reply thereto. We hold said testimony was-relevant and material on the issue of negligence. Fort Worth & Denver C. Ry. Co. v. Measles et vir, 81 Tex. 474, 17 S.W. 124; Weingarten, Inc. v. Brockman et ux.,. Tex.Com.App., 135 S.W.2d 698; McLellan Stores Company v. Layfield et ux., Tex. Civ.App., 305 S.W.2d 830.

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

Judgment affirmed.


author: McNEILL, Justice.

text:
    Eugenia B. JAMES, Appellant, v. W. W. BUTLER, Appellee.
    No. 6388.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 7, 1961.
    Rehearing Denied Oct. 11, 1961.

      James E. Faulkner, Coldsprings, for appellant.
    Robert F. Atkins, Coldsprings, for appel-lee.
   McNEILL, Justice.

Appellant Eugenia B. James brought this ■suit in trespass to try title against appellee W. W. Butler, to recover a ½ acre of land situated in the Point Blank Community in San Jacinto County. In addition to the formal allegations to try title, she pleaded title by adverse possession under the 3, 5, 10 and 25 year statutes of limitation. Included also was a count for damages because of interference by appellee with a contract of lease appellant had made as lessor with third parties leasing the premises involved. Appellee answered by pleas of not guilty, general denial and adverse possession under the various statutes, and filed cross-action for the land as well. The cause was heard to a jury but at close of the evidence defendant’s motion for instructed verdict was granted with judgment in his favor following; thus this appeal.

Appellant challenges the action of the court in sustaining said motion on the following grounds: (1) She showed record title to the ½ acre; (2) she sufficiently raised the issues of adverse possession for submission to the jury under the 3, 5 and 10 year statutes. Having examined these contentions in the light of the record, the court below was undoubtedly correct in taking the case from the jury and rendering judgment for appellee. We think this will be demonstrated in the discussion that follows because appellant failed to identify on the ground the ½ acre sued for.

In order to recover judgment for a tract of land it must be described, or furnish the means by which it may be described, with reasonable certainty, 19 Tex. Jur.2d 422. Or as stated in Page v. S. J. Kelley Const. Co., Tex.Civ.App., 256 S.W. 2d 595, the judgment must so describe the land as that an officer executing a writ of possession thereunder could, with the aid of a competent surveyor, find the boundaries of the land. Bear this principle in mind with what follows. The only description of the tract appellant sued for is found in a deed offered in evidence by appellant, which was admitted by the court for claim under her pleas of limitation only. The deed was dated December 2, 1893, and was from H. W. Robinson, grantor, to William Robinson, grantee. The land is described therein as follows: “ * * * situated in the town of Point Blank and part of the league of land titled to Ralph McGee situated in San Jacinto County and more particular described by metes and bounds as follows: Beginning on the West Margin of Main Street near the North East corner of H. W. Robinson’s store house — Thence S 45 W 53%o Varas a stake for corner from which a pine 12" dia brs N 35° E 5 vrs — Thence S 45 E 53¾0 varas to a stake from which a pine 4" dia brs East 1½0 varas and a cedar 3" brs S 4° E 4 varas— Thence N 45° E 53%o varas to a stake from which a pine 4" dia brs S 5o W 42/io Varas and a cedar brs S 4]4° E 6%o varas— Thence N 45° W 53¾0 varas to the place of beginning — Containing one half (½) acres of land — bearing trees all marked X.”

No witness could identify with any certainty the location of old “Main Street” used in this description for memory of it had faded into the past, nor could the location of the old “H. W. Robinson’s store house” called for in the deed be located with any certainty as the building had long since disappeared. Appellant, who was born in 1904, testified about two stores, the old H. W. Robinson store and the Todd Robinson store. The best that she could do to locate them was that the Todd Robinson store was “kind of — I guess kind of northwest” from the old H. W. Robinson store, and that would put the old Todd Robinson store practically north of where the old W.O.W. building stood, “in the vicinity of North”, across Highway 190, if the Todd Robinson store had still been there. She could not give the distances between the old Todd and H. W. Robinson’s stores but she stated “It wasn’t very far.” She stated further that she did not know the H. W. Robinson store except “by reputation” and did not know whether it had been torn down, moved, or burned up. The location of the old W.O.W. building, which she mentioned, was well known by the several witnesses, but it had been torn down in 1955 or 1956. The testimony of appellant is clearly insufficient to locate any corner or line of the ½ acre. While she said the Todd Robinson store was “in the vicinity of north” of the W.O.W. Hall — how far north is not known; and the Todd Robinson store was “kind of — I guess kind of northwest” of the H. W. Robinson store. Although she did not know the distance between the two stores “It wasn’t very far.” The mere mention of such indefinite testimony illustrates its inadequacy. Heirs of Barrow v. Champion Paper & Fibre Co., Tex.Civ.App., 327 S.W.2d 338 (9). A map of 542 acres surrounding and including the tract at issue is in evidence. It shows the Huntsville-Livingston Road (Plighway 190) runs on a course N. 76 W. and a graded dirt road known as the Lee Walker .Road runs into the highway from the south on course of N. 19 E. and ends at this highway. Appellant testified the ½ acre lies in between the dirt road and Huntsville Highway. But how a ½ acre in shape of a square, as described in the above deed, the corners of which lay halfway between the cardinal points of the compass, would fit in the corner made by the roads was not explained, nor was any corner or line of the Y2 acre identified.

Originally appellee owned the tract of 54.2 acres, above referred to, which included the disputed ½ acre. He sold off from time to time several small tracts, so that at the time of the trial below he owned 39.6 acres. He placed S. L. McAdams, a registered surveyor of 20 years experience, on the stand. He testified that he had surveyed the boundaries of the 54.2 acres and had run out the lines of the tracts sold therefrom and there was left a residue of 39.6 acres, including the disputed area. He prepared the map in evidence from this work. The surveyor also testified that at appellee’s request he had examined the field notes in the H. W. Robinson deed, upon which appellant relies for description of the ½ acre, and had attempted to locate such a tract but could not. We quote the following excerpt of his testimony:

“Q. Did you attempt to locate that half acre upon the ground, Mr. Mc-Adams? A. I certainly did. Yes, sir.
“Q. And did you locate that upon the ground? A. No, sir, I did not, and I made a very diligent search.
“Q. Now, Mr. McAdams, I believe the description of that says: ‘Beginning on the west margin of the main street in Point Blank near the northeast corner of H. W. Robinson’s old store house.’ Were you able to locate H. W. Robinson’s old store house? A. No, sir, I didn’t — I was not able to locate it.
“Q. Mr. McAdams, in locating the land, what would this beginning ‘near the northeast corner,’ how far would that be, sir? A. Well, that would be what we call a rubber description. You can stretch that a short ways or a long ways. There’s no definite starting point to it.
“Q. In other words, you can’t pinpoint it on the ground where that half acre started? A. No, sir, you certainly can’t.”

He further stated he was unable to locate the old “Main Street” referred to in the deed and could find no bearing trees called for, nor any other evidence by which he could locate the ½ acre described.

In view of the total lack of identity upon the ground of the tract sued for, the district court’s judgment must be affirmed.


author: TIREY, Justice.

text:
    Rosalie LATHERN et al., Appellants, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS, Appellee.
    No. 3892.
    Court of Civil Appeals of Texas. Waco.
    Sept. 21, 1961.
    Appellants’ Motion for Rehearing Denied Oct. 12, 1961.
    Appellants’ First Amended Motion for Rehearing Denied Oct. 26, 1961.
    Bryan, Maxwell, Wilson & Olson, Waco, for appellants.
    Ñaman, Howell, Smith & Chase, Waco, for appellee.
   TIREY, Justice.

The action is grounded on a crossing collision. Plaintiffs alleged various grounds of common law negligence and also specially plead the doctrine of discovered peril. At the conclusion of the testimony plaintiffs waived their common law grounds of negligence and requested the Court to submit the cause under the doctrine of discovered peril. Each of these issues was answered in favor of the defendant as to the fireman Davis, and in favor of the plaintiffs as to the engineer Butcher. The Court overruled plaintiffs’ motion for judgment and granted defendant’s motion to disregard the answers to certain issues therein named, fixing liability against the railroad, and granted defendant’s motion for judgment non obstante veredicto. The pertinent issues, absent the burden of proof clause, are substantially:

1. Do you find that immediately prior to the collision, W. C. Lathern was in a position of peril? Answer “Yes”.
2. Do you find that G. H. Butcher, the servant and employee of defendant, discovered the position of peril prior to the collision? Answer “Yes.”
3. Do you find that Butcher realized that Lathern could or would probably not be able to extricate himself from the position of peril? Answer “Yes.”
4. Do you find that Butcher discovered the position of peril of Lathern in time to avoid the collision by the use of all means at his command with due regard for the safety of himself and others occupying the train? Answer “Yes”.
5. Do you find that Butcher, after making such discovery, failed to use the means, if any at his command? Answer “He failed.”
6. Do you find that the failure of Butcher to exercise all means at his command was negligence ? Answer “Yes.”
7. Do you find that such negligence was a proximate cause of the collision and injuries? Answer “Yes.”
8. Do you find that James Davis, the fireman, discovered the position of peril of Lathern prior to the collision? Answer “No.”

The jury found that the collision was not an unavoidable accident, and fixed damages to Mrs. Lathern and her children, in the sum of $30,000. The court overruled plaintiffs’ motion for judgment and granted defendant’s motion to disregard the answers of the jury to Issues 4, 5, 6, and 7, and set the answers aside and decreed that plaintiffs and the intervenor take nothing. The plaintiffs and intervenor timely excepted to the ruling of the court and gave notice of appeal to this court, and have duly perfected their appeal.

The judgment is assailed on one point. It is to the effect that the court erred in granting appellee’s motion for judgment non obstante veredicto, because the evidence raises the issue of discovered peril. Plaintiffs, in their brief, say that since the jury answered the issues on the doctrine of discovered peril against the railroad, the trial court should have allowed the verdict to stand because we must “presume to be true the evidence which was favorable to the plaintiffs; it must also place upon the testimony favorable to him the most liberal construction in his favor that the evidence would reasonably bear, giving him the benefit of all reasonable inferences arising therefrom. Indeed all evidence contradictory to that favorable to the plaintiff should be disregarded.” Citing Felder v. Houston Transit Co., Tex.Civ.App., 203 S.W.2d 831; White v. White, 141 Tex. 328, 172 S.W.2d 295; Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725; Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561.

Plaintiffs further contend that the jurors, in arriving at their verdict, were justified in doing the following:

“(1) Disbelieving a witness though he is neither impeached nor contradicted. Cheatham v. Riddle, 12 Tex. 112.
“(2) Believing one witness and disbelieving others. Ford vs. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561.
“(3) Resolving conflicts and inconsistencies in the testimony of any one witness as well as the testimony of different witnesses. Benoit vs. Wilson, 150 Tex. 273, 239 S.W.2d 792.
“(4) They are not required to depend on evidence from any single source. Texas & N. O. Ry. Co. vs. New, Tex.Civ.App., 95 S.W.2d 170, 174.
“(5) They may accept or reject in whole or in part opinion testimony. They may accept lay testimony over that of experts. Opinion testimony does not establish material facts as a matter of law. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345; Fry vs. Dixie Motor Coach Corporation, 142 Tex. 589, 180 S.W.2d 135; Coxson vs. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943.
“(6) If the opinions of the experts as given in the evidence do not comport with the jurors’ idea of sound logic, the jurors have a right to say so. Maryland Cas[ualty] Co. vs. Hearks, 144 Tex. 317, 190 S.W.2d 62, 64.”

Plaintiffs contend that the application of the foregoing rules of law to the factual situation here supports the jurors’ finding to the effect that Butcher discovered the perilous position of Lathern in sufficient time to avoid the collision by the use of all the means at his command, and that the engineer, after discovering the perilous position of the truck driver, failed to use all the means at his command to avoid the collision.

Evidence was tendered to the effect that the engineer was operating the train at a rate of speed of 60 miles per hour, traveling from Dallas to Waco; that he was occupying a seat 12 ft. 6 inches above the track, and that the road on which the truck was traveling came into view 1,450 feet prior to the time the train reached the crossing; that the engineer was looking west and continued to look west down the road on which Lathern was approaching until after he, Butcher, crossed over the crossing; that he did not see the truck until the train was on the crossing and the truck was 100 ft. away. Plaintiffs further contend that a study of the plat tendered in evidence shows that the engineer had an uninterrupted view of the truck from his elevated seat from a distance of 1,450 ft. to the crossing, except for a small area of about 400 or 500 feet from the crossing; that the truck was heavily loaded with gravel (5 yards); that the engineer realized that this was a dangerous crossing and was keeping an extra careful lookout. Appellants contend that the jury was justified in finding that the gravel truck was observed by the engineer at a point 1,450 ft. from the crossing. Plaintiffs also contend that since fireman Davis testified that at about 10 seconds before the impact the engineer stated “I believe that truck is going to hit us” and that since the train was going 60 miles per hour, that if the jury believed this statement, which they did, that the engineer observed the truck and realized its perilous position when the train was 880 feet from the crossing. Plaintiffs further contend that the witness Dean, who saw the accident and who was behind the truck and observed the train coming from the north said “My thought was ‘My God, are they going to get together’ and I speeded up.” Appellants contend that since Dean testified to the effect that when he observed the train and the truck, that the truck was approximately 400 feet from the crossing, and since the speed of the truck was estimated at 30 to 45 miles per hour, and taking the lowest estimated speed of 30 miles per hour, that if and when the truck was 400 feet from the crossing, the train was approximately 800 feet from the crossing, and they contend that Dean’s point of realization was approximately the same as that of the engineer, as testified to by fireman Davis. As we understand plaintiffs’ position it is to the effect that the foregoing evidence is sufficient to support the jury’s finding that the engineer discovered the perilous position of the truck driver at a point as far as 800 feet from the crossing, and that in view thereof the evidence supports the jury finding that the discovery having been made at this point, that such distance was a sufficient one from the crossing for the engineer, by the use of all the means at his command, to have avoided the collision.

We are not in accord with plaintiffs’ contentions, for reasons hereinafter mentioned. The sole question before us is whether or not there is any evidence to raise the various elements of the doctrine of discovered peril as it relates to the engineer and as submitted to the jury in the court’s charge. The crucial question is whether the perilous position of the deceased was discovered by the engineer in time to avoid the accident by the use of all the means at his command. In answering this question we must decide first, whether there is any evidence to refute the affirmative testimony of the engineer that he discovered the perilous position of the truck when the train was “practically on the crossing” and the truck was about 100 feet away. It is true that the jury had a right to disbelieve the engineer, but such disbelief will not take the place of and supply affirmative evidence to the contrary. See Missouri-Kansas-Texas Railway Company v. McFerrin, 156 Tex. 69, 291 S.W.2d 931. Is there any evidence that at the time and after the deceased entered the position of peril or the zone of eminent danger that the engineer could have done anything which he failed to do to avoid the accident, assuming that he was watching the truck at all times as it approached the crossing? We think the answer is “No.” Here, we are face to face with the question as to whether there is any evidence that after the deceased entered the position of peril or the zone of imminent danger, there was anything that the engineer could have done which he failed to do, to- avoid the accident, assuming that he was watching the truck at all times as it approached the crossing. As above stated, the train was proceeding south at 60 miles per hour, and was struck on the side by the truck, which had been proceeding east, and the speed of the truck was estimated at between 30 and 45 miles per hour. The only positive testimony (of probative force) places the first impact of the truck with the side of the train at a point 147 feet back of the front of the engine; evidence was tendered to the effect that it takes from 3 to 4 seconds for a train such as the one involved here, to begin to slow down, or for the brakes to have any effect after the brakes are applied. Appel-lees claim that there is an absence in this record of:

“1. Reaction time of a person such as the engineer, following perception of a danger to react and manually apply brakes or take other action.
“2. The deceleration rate or stopping distance of this train or any other train, traveling at a rate of speed of 60 miles per hour or any other speed, after an emergency brake application, or any lesser brake application.
“3. The stopping distance of the truck in question or any other similar truck or vehicle traveling at between 30 to 45 miles per hour.”

We are in accord with this view.

As we understand appellants’ position, it is to the effect that since the truck might have been seen for some distance prior to the time the engineer testified that he actually saw the truck, that this fact, which the jury could have believed, under all the surrounding facts and circumstances, may be used as evidence that he did see the truck at sometime before he said he saw it, and also as evidence of the time when the engineer should have applied the brakes on the train. Such view is not applicable to the doctrine of discovered peril. The court instructed the jury, in part, as follows: “That a person is in a position of peril when he is in danger of serious bodily injury or death, and it reasonably appears from the circumstances that he cannot or will not be able to extricate himself therefrom.” (the definition is not assailed).

The critical issue of discovery in time did not begin until after Lathern was in a position of peril, as he could not be discovered in such position, in any event, until after he was there. So the exact question before us is: When did the truck enter a position of peril? 'At most, this was a short distance before the truck reached a position where Lathern could not stop his truck prior to’ reaching the crossing. The evidence is silent as to what that distance was, would or could have been; but our view is that under no circumstances could such distance have been more than ISO feet from the crossing. Prior to' that time, if the engineer had been watching Lathern, he would have had every reason to believe that Lathern would stop, as the law required. The evidence is without dispute that the truck was heavily loaded with gravel (5 yards) and that the grade was slightly rising as the public road approached the crossing. The fact that the engineer did not see Lathern until a later time, does not increase the responsibility to the appellee under the doctrine of discovered peril, although it might have raised an issue of negligence under failure to keep a proper lookout. But since plaintiffs requested the court to submit the cause solely on the ground of discovered peril, this question passed out of the case. Moreover, if we assume for the sake of argument that the engineer was constantly observing the truck as it approached the crossing, which is without support in the evidence, and that he realized the truck’s perilous position immediately after the truck entered such position, the question then to be decided is whether there is any evidence that after the deceased entered a position of peril, the engineer could have then avoided the accident. As above stated, there is no evidence in this case of braking distance, deceleration rate, or reaction time. But plaintiffs contend that this is not required under the pronouncements in Creech v. Thompson, 156 Tex. 561, 297 S.W.2d 817, 821. We think that case is clearly distinguishable from the case at bar. The Creech case involved a pedestrian located on a narrow bridge over flooded water, where the only escape was by running off the end of the bridge. The train operatives had seen people on the bridge for sometime prior to the application of the emergency brake. The worker ahead of Creech escaped without injury, and the plaintiff needed only a mere “instant” to escape. The court, in discussing this situation said:

“As to the difference between merely seeing the men and realizing their peril, we think [that] the jury might properly have believed that under the peculiar circumstances, seeing was the equivalent to realization. In this connection there would seem to be no great distinction between the situation of an automobile stalled on the track, as in Texas & N. O. R. Co. v. Goodwin, supra, ([Tex.Civ.App.] 40 S.W.2d 182, writ of error ref’d) and men caught in the middle of a narrow bridge over a stream which train operatives knew to be flooded. * * *
“Clearly all the additional time that Creech needed was a mere instant — ■ the instant necessary for him to cover, running, the one or two steps separating him and his companion, who actually escaped.”

Can we apply the foregoing pronouncement to the case at bar? we think not, because under all the evidence, the deceased needed more than a mere instant to clear the track. Since the speed of the train was 60 miles per hour, or 88 feet per second, and since the train was hit 147 feet from the front, according to the positive testimony, it is obvious that the front of the train had passed over the crossing approximately 1.67 seconds before the impact. Appellants assert that the train was 10 feet wide, and that the truck was at least 15 feet long. It follows that in order to have avoided the accident, the train would have had to have been slowed down an additional period of time to have allowed the truck to pass safely in front of the train. At 45 miles per hour, this would take an additional .37 seconds, or at 30 miles per hour, an additional .57 seconds. In any event, the train would have had to have been delayed for a period of over two seconds in reaching the crossing for the accident to have been avoided. The question arises, How far back would the brakes have had to have been applied? Such evidence is absent. We think under the evidence it would have had to have been a long distance from the crossing, and at least several seconds before the deceased was in a position of peril. It is our view that since the record is silent as to the deceleration rate of the train after the application of the brakes, it was impossible to determine how long prior to the accident it would have been necessary to apply the emergency brakes in order to have reduced the speed of the train a sufficient amount to have given the additional time required for the truck to clear the crossing. We think it is obvious that the breaks would have had to have been applied a long time prior to the time that any liability could be imposed on the appellee in this cause.

But appellants say that the “jury was justified in finding that if full or emergency power had been applied at the point of discovery, 800 feet from the crossing, the train could have been completely stopped before the crossing”. Appellants, in this connection, assert that when the train was 800 feet from the crossing, and the truck over 400 feet from the crossing, that the truck was in a position of peril. We think that this contention cannot be sustained, because there is an absence of testimony that the engineer realized that the truck driver would not or could not extricate himself from such danger. It was plaintiffs burden to supply the testimony to support such fact finding and this, they failed to do. But if we be mistaken in this view, even at 800 feet from the crossing, there is no evidence that by the application of the emergency brake, the collision could have been avoided.

As we have previously stated, the truck was hauling gravel, and he had a heavy load, and there is no positive evidence as to where the truck was when the train reached the crossing, and the testimony of Dean as to the distance of the truck from the crossing at the time he observed the truck and the train is only an estimate. Of course it is true that the engineer’s estimate of the distance of the truck from the crossing at the time he first observed it, was 100 feet; but it was the burden of the plaintiffs to prove by affirmative evidence that the engineer saw the truck driver when he was approximately 400 feet from the crossing, and that he failed to use all the means at his command to avoid the collision. This the plaintiffs failed to do.

But appellants contend that they are entitled to judgment on the jury verdict under the doctrine announced in Ford v. Panhandle & Santa Fe Railway Company, supra. We cannot agree with that contention. In the Ford case, the front of the engine hit the automobile on the rear fender, at which time the automobile lacked only 3 or 4 feet of crossing the track in safety. Moreover, the train was traveling at approximately 10 or 15 miles per hour, and the fireman on whose side the automobile approached, testified to the effect that he discovered the plaintiff’s peril when the train was 90 to 100 feet, or approximately “100 feet from the crossing.” The court held that allowing for normal reaction time, a prompt application of the emergency brakes might have allowed the plaintiff’s automobile to pass over the track in safety. The factual situation is quite different, here. Under our record, it would have taken 3 or 4 seconds after the brakes were applied before they became effective, and before the train could have begun a reduction in speed. Here, there is no evidence in the record as to reaction time, upon which point the plaintiffs had the burden of proof.

For the purpose of computation, let us assume that the jury might consider an overall elapse of time of 4 seconds before the brakes began to take effect. In 4 seconds, at 60 miles per hour, the train would have moved 352 feet, and the truck, at 45 miles per hour, would have moved 264 feet, or at 30 miles per hour, 176 feet. Had this accident been a front end collision, the vehicles would have still collided, if the brakes had been applied when the truck was 176 feet to 264 feet from the crossing. An additional time would have been required because the truck would have had to clear the crossing before the train arrived. In this case, all the probative evidence is to the effect that the truck hit the side of the train, and it is apparent that the brakes would have had to have been applied 4 seconds before the train reached the crossing, plus the period of time the train traveled past the crossing before the impact, in order for the train to have even begun to slow down at the time of reaching the crossing. Under the assumption here made, it was approximately 5.67 seconds before the impact (147 feet past the crossing or 1.67 seconds plus 352 feet, or 4 seconds) when the front of the train was 352 feet from the crossing. Under the assumption here made, the truck would have been 375 feet from the crossing, traveling at the rate of 45 miles per hour, or if it were traveling at the rate of 30 miles per hour, it would have been 250 feet from the crossing. We think it is obvious that the loaded truck could not have been in a position of peril at 375 feet from the crossing, nor at 250 feet from the crossing, and yet an application of the brakes at that time, bearing in mind the speed of the train, would not have materially affected the time when the front of the train reached the .crossing. Our view is, the point of impact being 147 feet from the front of the train, that the brakes would have had to have been applied long before that, for the train to slow down enough for the truck to clear the crossing. And we cannot fix that point, because there is no evidence of deceleration after the train’s brakes became effective.

Our view, after a careful reading of the record of this unfortunate accident, and of the decisions cited by both appellants and appellee, is that there is no evidence of discovered peril, but on the contrary, the evidence affirmatively shows that the doctrine of discovered peril does not and could not apply to the factual situation here before us.

Both appellants and appellee have filed very able briefs and discussed at length the leading cases in Texas applying the rule of discovered peril, the latest expression by our Supreme Court being the Ford case, supra, and Missouri-Kansas-Texas Ry. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931. But notwithstanding the able oral argument and brief of appellants, we are of the view that they have failed to carry their burden, and by reason thereof, the trial court did not err in disregarding certain answers of the jury to the issues set out in the judgment, and consequently did not err in granting appellee’s motion for judgment non obstante veredicto.

Accordingly, the judgment of the trial court is affirmed.


author: POPE, Justice.

text:
    NUECES COUNTY et al., Appellants, v. Dr. John D. KING et al., Appellees.
    No. 13810.
    Court of Appeals of Texas. San Antonio.
    Sept. 27, 1961.
    Rehearing Overruled Oct. 25, 1961.

      Franklin L. Smith, County Atty., C. Edwin Prichard, Jr., Asst. County Atty., Nueces County, Corpus Christi, for appellants.
    Ellis M. Brown, Wm. H. Darden, Corpus Christi, for appellees.
   POPE, Justice.

This is an appeal from an order which permanently enjoined Nueces County from selling a tract of land at public auction. The injunction was granted because the county ignored those parts of Article 1577 which accord certain preference rights to persons adjoining abandoned right-of-way property. The county presents two points as grounds for ignoring the claimed preference rights to purchase and for dissolving the injunction. It urges that (1) Article 1577, as amended by the Fifty-Third Legislature, is partially unconstitutional because the caption of the statute does not embrace the portions of the bill which accorded preference rights, and (2) the trial court erred in going behind the enrolled bill and searching the legislative journals to vary the terms of the bill as enrolled. In our opinion, the county is right on both points, and the injunction must be dissolved.

Nueces County purchased certain lots in connection with a highway development. It did not use all of the property and it then advertised the unused portions for sale at public auction. Dr. John D. King and Frederick W. Mueller were adjoining owners to portions of the lots, and they claimed that Article 1577 gives them preference rights to purchase. Whether they have such rights turns upon the constitutionality of Article 1577, as amended. In our opinion, the caption of the enrolled hill was too restrictive to embrace those portions of the statute which granted the claimed preference rights. Art. 3, § 35, Texas Constitution Vernon’s Ann.St. The caption of Article 1577 provided:

“An Act amending Article 1577, Revised Civil Statutes of Texas, 1925, providing the Commissioners Court may, by an order to be entered on its minutes, appoint a Commissioner to sell and dispose of any real estate of the county at public auction; providing for notice; providing that where right-of-way property is conveyed by the State to a county and the county decides to sell such property, it shall be sold with certain priorities of purchase; providing for a deed by such Commissioner to convey to the purchasers such real estate; providing nothing contained in this Article shall authorize any Commissioners Court to dispose of any lands given, donated or granted to such county for purpose of education; and declaring an emergency.”

Those parts of the statute which authorized a sale at public auction, under which the county proceeded in this case, were embraced within the caption; but the portions which undertook to legislate about certain preference rights to buy lands were outside the caption. The caption limits preference rights to a sale of right-of-way property which “is conveyed by the State to a county.” Admittedly, the property here involved was never conveyed by the state to the county. The body of the bill, however, contains no limitation. It would accord the preference right to all abandoned right-of-way property. Gulf Insurance Co. v. James, 143 Tex. 424, 185 S.W.2d 966, states the rule, gives the reasons, and cites the authorities which declare that specified and restricted titles, as used in the caption of Article 1577, do not embrace subjects which the caption excludes.

Appellees do not seriously dispute the fact that the caption is faulty. Instead, they urge that it is aided and cured by information found in the House and Senate Journals which were admitted in evidence over objection. For more than ninety years, Texas has followed the “enrolled bill rule”. Central Railway Co. v. Hearne, 32 Tex. 546, 547, 562. Under that rule, it is conclusively presumed that a statute, as authenticated and deposited in the secretary of state’s office, is precisely the same as was enacted by the legislators. In re Tipton, 28 Tex.App. 438, 13 S.W. 610, 8 L.R.A. 326. The journals are not more certain and reliable records of what occurred than the enrolled bill, and courts will not go behind the enrolled bill. City of Houston v. Allred, 123 Tex. 334, 71 S.W.2d 251, 257; Jackson v. Walker, 121 Tex. 303, 49 S.W.2d 693; Williams v. Taylor, 83 Tex. 667, 19 S. W. 156; Ellison v. Texas Liquor Control Board, Tex.Civ.App., 154 S.W.2d 322, 326. The court should have decided the issue without resort to the House and Senate Journals.

Resort to the outside sources showed that after the statute was voted upon and passed by the House of Representatives, a motion was made and carried that the caption of all bills passed on the local and uncontested calendar for that day should be amended to conform to the bodies of the bills. This was never done with respect to Art. 1577. If a blanket motion to correct captions is enough to cure faulty captions, and even to treat as done what in fact was never done, the object and purposes of Article 3, § 35, of the Texas Constitution are defeated, The exceptional case of Ex parte Copeland, Tex.Cr.App., 91 S.W.2d 700, is not applicable. Legislative intent was there the point, and the absence of legislative intent to repeal certain statutes was apparent from the face of the enrolled bill.

Since the caption of amended Article 1577 limited preference rights to sales of right-of-way property which was conveyed by the State to a county, and since we may not go behind the enrolled bill to prove otherwise, the county correctly treated as unconstitutional the portions of Article 1577 which would have accorded preference rights to the appellees. The county properly proceeded with a sale at public auction. The sale should not have been enjoined, and the permanent injunction is therefore dissolved.

      . “The Commissioners Court may, by an order to be entered on its minutes, appoint a Commissioner to sell and dispose of any real estate of the county at public auction, and notice of said public auction shall be advertised at least twenty (20) days before the day of sale, by the officer, by having the notice thereof published in the English language once a week for three (3) consecutive weeks preceding such sale in a newspaper in the county in which the real estate is located and in the county which owns the real estate, if they are not the same. The deed of such Commissioner, made in conformity to such order for and in behalf of the county, duly acknowledged and proven and recorded, shall be sufficient to convey to the purchasers all the right, title, and interest and estate which the county may have in and to the premises to be conveyed. Provided, however, that where abandoned right-of-way property is no longer needed for highway or road purposes and the county decides to sell said right-of-ioay property, it shall be sold with the following priorities: (1) to abutting or adjoining landoioners; (2) to the original grantors, his heirs or assigns of the original tract from whence said right-of-way was conveyed; or (3) at public auction as provided above. Nothing contained in this Article shall authorize any Commissioners Court to dispose of any lands given, donated or granted to such county for the purpose of education in any other manner than shall he directed by law. As amended Acts 1949, 51st Leg., p. 904, eh. 485, § 1; Acts 1953, 53rd Leg., p. 447, ch. 133, § 1.”


author: WILLIAMS, Justice.

text:
    Ira C. ROBERTS, Appellant, v. STATE of Texas, Appellee.
    No. 15921.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 29, 1961.
    Rehearing Denied Oct. 27, 1961.

      L. F. Sanders, Canton, Wynne & Wyn-ne, Wills Point, for appellant.
    Will Wilson, Atty. Gen., Morgan Nes-bitt, John B. Webster, Robert G. Scofield and David R. Thomas, Asst. Attys. Gen., for appellee.
   WILLIAMS, Justice.

This is a condemnation proceeding instituted in the trial court by the State of Texas to condemn for highway purposes approximately 20.71 acres for right-of-way, and .61 acres for a channel easement, out of a 281.6 acre farm belonging to appellant, said property being necessary in the construction of Federal Interstate Highway 20 traversing Van Zandt County, Texas. In the taking of the necessary acreage, appellant’s farm is divided into two parts so that approximately 55.54 acres remains on the south side of the proposed highway and approximately 205 acres on the north side. The parties stipulated as to the right to condemn, the statutory steps which had been taken, leaving only the issues concerning valuation of the property. Following the suggestion of the Supreme Court in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, the trial court submitted the case to a jury upon three special issues. In response to Special Issue No. 1 the jury found that the market value of the land taken was $2,986.60. In answer to Special Issue No. 2 the jury found the market value of the land, exclusive of the amount taken, immediately before the taking, to be $36,540. In answer to Special Issue No. 3 as to what would be the market value of the remainder of the condemnee’s tract of land immediately after the taking by condemnor, the jury answered “$33,977”. Final judgment based upon this verdict the landowner has perfected this appeal. No motion for new trial was filed in the trial court since, in accordance with Rule 329-a Texas Rules of Civil Procedure, (prior to the amendment to said Rule) the judgment was entered on November 4, 1960 and the term of court ended on November 6, 1960.

Appellant presents two points of error, (1) that there was no evidence to support the judgment entered by the court and the answer of the jury to Special Issue No. 3, and (2) that the judgment entered and the answer of the jury to Special Issue No. 3 was contrary to and against the overwhelming weight and preponderance of all the evidence and was clearly wrong and manifestly unjust.

As is usual in cases of this kind involving questions of value of real property the testimony of the various witnesses varied in different amounts and percentages. Testimony for the condemnee was presented from six witnesses whose opinions of the values varied from a high of $160 per acre to a low of $140 per acre for the 21.32 acres taken for highway purposes and easements. Their testimony for the balance of the land not taken varied from a high of $160 per acre to a low of $140 per acre before taking, and from a high of $98 (25% decrease) to a low of $75 (or 50% decrease), after the taking or a difference before and after the taking of a figure of $20,822.40 to a low of $9,109.80. All of these witnesses testified to a decrease in value of the land following the taking.

For the condemnor only one witness was presented, T. M. Winn, who testified that the part taken was worth from $106 to $107 per acre or a total of $2,300; that the value of the remainder before taking would be $106 per acre or a total of $27,700 and that the value of the remainder, after taking, considering a decrease in value, would be $24,500, leaving a net damage of $3,200. The witness Winn frankly admitted to a definite decrease in value of condemnee’s land by the bisection of the property with its incident problems of access, drainage, etc.

In order to present a clear and comprehensive view of the various valuations placed upon this property we submit the following schedule:

Schedule

Since appellant’s points are directed to Special Issue No. 3, which has to do with the value of the property remaining after taking, attention is directed to the third column of the above schedule which immediately reveals that the jury findings of $33,-977 is far in excess of any testimony given by either the witnesses for condemnor or condemnee. The highest value assigned to the property by any witness for the appellant is from the witness Mills who sets the value after taking at $29,151.36. The State’s witness, Winn, sets the value after taking at $24,500. Both of these maximum figures are less than that assigned by the jury and it is appellant’s contention that this, taken with the overall picture of the case in its entirety, demonstrates that the answer of the jury to Special Issue No. 3 is contrary to the great weight and preponderance of the testimony and should therefore be voided.

Point 1, asserting that there is no evidence to support the jury findings to Special Issue No. 3, is overruled. It has been held in Maddox v. Gulf, Colorado & Santa Fe Ry. Co., Tex.Civ.App., 293 S.W.2d 499, (err. ref. n. r. e.) that in a condemnation case of this kind the jury, when considering the value of condemnee’s remaining property immediately after condemnation, are restricted only by the lowest figure testified to. See Houston Belt & Term. Ry. Co. v. Lynch, Tex.Civ.App., 185 S.W. 362, affirmed Tex.Com.App., 221 S.W. 959. Also, in McConnico v. Texas Power & Light Co., Tex.Civ.App., 335 S.W.2d 397, (err. ref. n. r. e.) the court held that a jury is at liberty to reach its conclusion by blending all of the evidence admitted before them, aided by their own experience and knowledge of the subject of inquiry; that they are not compelled to credit all the testimony of any witness or to reject it all. Moreover, our courts have held that opinion evidence is not conclusive. A jury may consider and accept or reject such opinions or it may find its own opinion from evidence and by utilizing its own experience in matters of common knowledge. McCarthy v. City of Amarillo, Tex.Civ.App., 307 S.W.2d 595, (err. ref. n. r. e.); Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 and Nelson v. State, Tex.Civ.App., 342 S.W.2d 644.

Viewing the evidence most favorably against appellant on this point of “no evidence”, as we are required to do, and in view of the authorities above cited, we are of the opinion that we cannot say that there is no evidence to support the submission or answer of Special Issue No. 3, and therefore, appellant’s first point is overruled.

However, when we consider appellant’s point No. 2 having to do with his contention that the verdict of the jury is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust, we are required by the Supreme Court to apply a different rule. As said by the Supreme Court and In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, the question requires us to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust, regardless of whether the record contains “some evidence of probative force” in support of the verdict.

In obedience to the mandate of the Supreme Court we have carefully reviewed this entire record, weighing the evidence both for and against the verdict, and we are-impelled to one conclusion and that is the-answer of the jury to Special Issue No. 3 is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In reaching this conclusion we are not unmindful of those authorities relied upon by the State concerning the weight and sufficiency of opinion evidence. We are greatly impressed with the overall testimony of all the witnesses who testified for both the condemnor and condemnee. Each and every one of these witnesses testified that they were thoroughly familiar with the farm; that it was a good Van Zandt County farm; that the taking of the land by the State would materially decrease the value of the land, especially in that it would cut the farm into two sections; that the part lying south of the highway would especially be damaged in lack of ingress and egress, problems of drainage, etc. There is abundant testimony concerning the practical problems incident to the taking; the drainage problems; the cuts and fills necessary for the building of the highway. All of the testimony, considered in the light of common sense and reason, points but to one direction and that is material damage to the value of the property remaining after taking by the State. In the face of all of this testimony, including the testimony of the witness for the State, the jury’s verdict is $9,477 more than the valuation placed on the land, following the taking, by the State’s own witness. It is far greater-than any valuation of the remaining property testified to by any of the six witnesses for the condemnee. We find no basis for this verdict.

As stated in Thompson v. State, Tex. Civ.App., 319 S.W.2d 368, 371, an appellate court will reverse and remand a condemnation case where the damages awarded are inadequate or without support in the evidence, or against the great weight and preponderance of the evidence. We think that Chief Justice McDonald of the Court of Civil Appeals at Waco in the Thompson case, supra, clearly enunciated the rule applicable here when he said :

“(7,8) Rule 328, T.R.C.P., provides that new trial may be granted when the damages are manifestly too small or too large. In condemnation, as in other cases, the rules governing the authority of an appellate court to set aside a verdict because of inadequacy are the same as those applicable to excessive verdicts. Schooler v. State, Tex.Civ.App., 175 S.W.2d 664, W/E Ref. W.M.; Nunn v. Daly, Tex.Civ. App., 150 S.W.2d 834, W/E Dis. judg. cor. And the appellate court will reverse and remand a condemnation case where the damages awarded are inadequate or without support in the evidence, or against the great weight and preponderance of the evidence. Nading v. Denison & P. Suburban Ry. Co., 22 Tex.Civ.App. 173, 54 S.W. 412; Cook v. Eastland County, Tex.Civ.App., 260 S.W. 881; Wallace v. Van Zandt County, Tex.Civ.App., 264 S.W.2d 202. See also In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. It follows that contention 1 is sustained.”

Finding, as we do, that the verdict of the jury in answer to Special Issue No. 3 is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust, it necessarily follows that the judgment of the trial court is reversed and remanded for a new trial.


author: YOUNG, Justice.

text:
    B. M. O’BRIEN, et ux., Appellants, v. W. D. DOLAN, Appellee.
    No. 15864.
    Court of Civil Appeals of Texas. Dallas.
    July 14, 1961.
    Rehearing Denied Oct. 13, 1961.

      Odeneal & Odeneal, Dallas, for appellants.
    Bill Stephens and Wynn G. Stanton,Dallas, for appellee.
   YOUNG, Justice.

Rule 166-A, Summary Judgment proceedings. On July 8, 1954, Floyd B. Rust and wife, Bobbie Rust, had executed their note payable to order of appellee for the sum of $4,000 and in monthly installments of $200; together with chattel mortgage on certain cafe equipment of “The Branding Iron” located at 2116 Fort Worth Avenue, Dallas, Texas. On August 9, 1959 in connection with purchase of “The Branding Iron” by them, appellants B. M. O’Brien and wife had executed to Floyd B. Rust a note in the principal sum of $7,000, payable at 5% in monthly installments of $100; together with a mortgage on the same equipment located at 2115 Inwood Road, Dallas, Texas. On or about September 1, 1959 Floyd B. Rust had allegedly endorsed this $7,000 note to appellee Dolan as additional security for payment of the $4,000-note previously executed by Rust to Dolara.

On November 30, 1959 plaintiff Dolatf sued Floyd B. Rust and wife for a balance due on this $4,000 note; also suing O’Brierf and wife on their $7,000 note, theretofore pledged with Rust as collateral security. On December 29, 1959 an interlocutory judgment by default was taken by Dolan against Rust and wife for a balance of $3,889.82 due on the $4,000 note in principal, interest and attorney’s fee together with foreclosure of chattel mortgage on the cafe equipment of the business known as “The Branding Iron.” The December 1959 judgment further recited that the chattel mortgage “is hereby foreclosed and that an order of sale herein issue to any sheriff or constable of any County in the State of Texas directing him to sell the same as under execution in satisfaction of this judgment; and if the said property * * be insufficient to satisfy this judgment then the officer executing this order shall make the money or any balance thereof remaining unpaid out of any other property of defendants Floyd B. Rust and wife Bobbie Rust * * * ”. Appellee later filed motion for summary judgment against the O’Briens which was heard and sustained by judgment rendered of $3,889.82 on July 5, 1960 against them. In this judgment no mention was made of any chattel mortgage foreclosure or credit of proceeds therefrom upon the prior Rust judgment of $3,889.82. From the latter order this appeal is taken.

To plaintiff Dolan’s sworn motion for summary judgment was attached his affidavit that the O’Briens’ $7,000 note of date August 8, 1959 was endorsed to him on September 1, 1959; “that at the time of receipt of said note, affiant had no knowledge of any infirmity or defect in said note or any reason why said note would not be valid and enforceable against the maker thereof. That said note was endorsed and delivered to affiant for and in consideration of the forebearance of suit by affiant, and that said note was endorsed and delivered to affiant solely as additional collateral for security of a note executed by the said Floyd B. Rust and wife, Bobbie Rust, under date of July 8, 1954, the terms of which are more fully described in plaintiff’s original petition filed herein.”

The sworn answer of defendants alleged failure of consideration; that the purchase of the Branding Iron Cafe had been rescinded for fraud and misrepresentations of Rust; title thereto having never passed to defendants; concerning which matter plaintiff or his representatives knew or should have known that defendants had a good defense to their note. In effect, appellants attack the status of appellee as a holder in due course of the O’Brien note as collateral security, invoking Act. 5935, Vernon’s Ann.Civ.St. § 56 — a bad faith taking of the instrument sued upon.

Their single point complains of the trial court’s grant of summary judgment “since .the pleadings, exhibits and affidavits on file show that material and genuine issues of fact, to-wit, whether appellee accepted appellants’ note from Rust in good faith, what other security appellee had for the payment of the Rust note, whether the foreclosure of the mortgage against the personal property was inadequate and insufficient to protect appellee, whether ap-pellee would in fact lose his debt unless permitted to collect the note against appellants, as to all of which issues of fact the appellee would have had the burden of proof.” For attack on bona fides of ap-pellee as a holder in due course, appellants point out that the Rust $4,000 note was partially barred by limitation (a considerable part of the installment payments due thereon being more than 4 years in default) ; also the record notice to Uolan by recordation of the second chattel mortgage on same cafe equipment, that the origin of the $7,000 collateral note was the sale by Rust of mortgaged property. This latter fact (constructive notice) is hardly within the definition of bad faith contemplated by Sec. 56, Art. 5935 as construed in Citizens Bridge Co. v. Guerra, 152 Tex. 361, 258 S.W.2d 64; and suit upon such collateral obligations is not affected by the fact that an action against the principal debtor on the original indebtedness may be barred by limitation. Central National Bank v. Latham & Co., Tex.Civ.App., 22 S.W.2d 765.

In above connection however, the following observations are proper: (1) that the rights of Dolan as holder in due course are protected only to the extent of the indebtedness secured; (2) that appellants have a complete defense to the balance of the $7,000 collateral note; (3) that while Dolan’s 1959 judgment against Rust ordered a foreclosure of chattel mortgage against the cafe equipment, yet such foreclosure does not appear to have been effected and credit allowed for proceeds of sale; and (4) that the liability of appellants would be limited to such undetermined balance of the Rust indebtedness and judgment. Controlling of the situation at hand is the principle stated in Blackburn v. Temple National Bank, Tex.Civ.App., 216 S.W.2d 233, 234, viz.: “We think, however, this question is of importance here because even though an innocent holder of a negotiable instrument pledged as collateral security is protected to the extent of the indebtedness secured and existing prior to maturity of such instrument, yet if the instrument is subject to defenses as against the original payee the burden rests upon such holder to show: the secured debt has not been paid, the amount due thereon, what, if any, other security is held to secure payment of the debt, and that a necessity exists for collection of the debt out of such collateral security in order to protect the holder from loss. When such proof is made the recovery must be so limited.” Citing authorities. (Emphasis ours).

Appellee tacitly admits that the proceeds from sale of the cafe equipment is properly to be credited on the O’Brien judgment and has no objection to the order appealed from “being reformed so as to show credit with the proceeds of such sale.” The property listed in the Rust chattel mortgage appears to be of substantial value. Proof of foreclosure thereof, sale and credit of proceeds should have been included in the December 1959 interlocutory judgment against Rust; but at any rate, the recovery against the O’Briens must be so limited. The summary judgment in question will be reversed and remanded to the trial court for determination of credits; the liability of appellants being limited to balance due on the original obligation of Rust.

Reversed and remanded with instructions.

WILLIAMS, J., not sitting.