author: GRISSOM, Chief Judge.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Juan VARGAS, Appellee.
    No. 4044.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 28, 1966.
    Rehearing Denied Feb. 18, 1966.
    Crenshaw, Dupree & Milam, Cecil Kuhne and Joe H. Nagy, Lubbock, for appellant.
    Splawn & Maner, James R. Edwards, Lubbock, for appellee.
   GRISSOM, Chief Judge.

This is a workman’s compensation suit brought by Juan Vargas for and on behalf of his wife, Elvira Flores Vargas. Mrs. Vargas will be called plaintiff. Plaintiff alleged that on November 11, 1963, she was accidentally injured while she was pulling on burlap bags as an employee of St. Regis Paper Company. The insurance company answered that, if she sustained any disability, her disability was temporary and partial and had ceased. It alleged that if plaintiff sustained any disability it was caused solely by conditions existing in her body before November 11th, or by disease or injuries sustained at other times and places, or a combination thereof. At the close of plaintiff’s evidence and after all the evidence had been introduced, the insurance company filed motions for an instructed verdict contending there was no evidence or, in the alternative insufficient evidence that plaintiff sustained any disability as a result of an injury suffered while she was working for said company. Said motions were overruled.

The case was submitted to a jury which found that (1) plaintiff sustained an accidental personal injury about November 11, 1963, (2) while working as an employee of St. Regis and (3) in the course of her employment by St. Regis. Issue 4 inquired whether the jury found that plaintiff sustained total incapacity for any length of time as a result of the injury, if any, sustained by her on November 11, 1963. The jury answered that issue, “No”. Because of said finding that the plaintiff did not sustain any total incapacity for any length of time, under instructions of the court, the jury did not answer issues (5), when total incapacity began, (6), whether such total incapacity, if any, was permanent or temporary and (7) the duration of total incapacity, if any. But the jury further found that (8) plaintiff sustained partial incapacity as a result of an injury on November 11th. (Because of some contentions hereafter to be noted, we here call attention to the fact that, in connection with issue 8 and a definition of partial incapacity, the court instructed the jury that a person could not be both totally and partially incapacitated at the same time.) The jury also found that (9) such partial incapacity began November 11, 1963; that (10) it was temporary and that (11) the duration of plaintiff’s partial incapacity was 104 weeks. Judgment was rendered for the plaintiff for $45.00 per week for 104 weeks. The insurance company has appealed.

Appellant’s points 1 and 2 are that the court erred in overruling defendant’s motions for an instructed verdict because there was no evidence that plaintiff sustained any disability as a result of an injury on November 11, 1963, and because there was no evidence that plaintiff’s disability was either permanent or temporary. Its third point is that the court erred in overruling defendant’s motions for instructed verdict, or in not granting a new trial, because there is insufficient evidence plaintiff sustained any disability as a result of an injury on November 11, 1963, and (point four) because the evidence is insufficient to show any disability plaintiff might have is either permanent or temporary. The evidence shows that plaintiff is 37 years of age and the mother of eight children. She had only four years of formal education. She commenced her public employment in 1949 with Patterson Bag Company. That job required manual labor and included prolonged standing, lifting, stretching and straining. There was evidence that she worked for Patterson for eight years and had no physical trouble doing the same work she started doing for St. Regis Paper Company in 1957. That company was her employer on November 11, 1963. She testified that she was injured while working on the job for said company on November 11, 1963; that she was pulling a carriage with about 500 sacks on it; that when she pulled she hurt her back and side and leg; that she had never had any of those troubles before; that she continued to do light work the remainder of the day after she was injured; that she was not able to pull the carriage any more; that she did not pull it the next day and was not able to do her normal work thereafter; that she had not worked for anyone since two days after that injury because she couldn’t; that she is not able to do her normal household duties and care for her children because of that injury; that she can’t lift things; that she can’t stand on her feet for a long time; that she is not able to mop, sweep the floor or move the furniture; that before her injury she was able to do all those things; that she now depends upon her husband and an employee to do that work; that at the time of the trial, 19 months after her injury, her back, side and leg hurt; that they were bothering her and that she is getting worse; that she has had pain from the date of the injury and the pain is getting worse. She testified that she did not think she could ever get a job and keep it “doing the heavy work” she was doing before November 11, 1963, because her back, side and leg hurt when she did.

Plaintiff’s husband testified that before November 11, 1963, his wife did not appear to have any trouble doing her household work and had never complained of any difficulty with the portions of her body where she now has pain; that from his observation, after November 11, 1963, she was unable to do the things about the house that she had done theretofore, that she could not mop, sweep, pick up the children, walk fast, do the laundry or spread quilts; that her condition has not improved and she had to employ a woman to do her household work and care for the children. That employee testified that she had worked for the Vargas family for about a year; that she does all the cleaning and washing and takes care of the small children; that she had observed plaintiff around the house and, based upon her observation, plaintiff can’t do the things that have to be done; that she can’t mop, wash or sweep, she can’t lift or care for the younger children and that plaintiff’s condition has not improved. Another witness, Mrs. Belgara, testified that she had worked with plaintiff on both her Patterson and St. Regis jobs; that she was plaintiff’s supervisor; that plaintiff was a dependable, hard worker, without any physical disability that she noticed before November 11, 1963; that she was working with plaintiff on November 11th, 1963, when she was injured; that plaintiff bent down to pull a carriage loaded with burlap bags and the wheels on the carriage stuck and “she hurt herself”; that she noticed plaintiff soon thereafter having trouble and plaintiff told her she hurt her back; that, thereafter, while plaintiff was on the job Mrs. Belgara pulled the carriage, with some slight assistance from plaintiff; that for the remainder of the day on November 11th after she was hurt, plaintiff did no pulling, lifting or any hard manual labor but only light work.

Viewing the evidence in the light most favorable to the verdict, as we are required to do, we hold there was sufficient evidence that plaintiff sustained disability as a result of an injury in the course of her employment with the St. Regis Company on November 11, 1963, and that she suffered partial incapacity during the time found by the jury. Appellant’s first four points are overruled.

Appellant’s fifth point is that the court erred in submitting issue 4, which inquired whether plaintiff sustained total incapacity, because it assumed that plaintiff sustained some incapacity after November 11, 1963, and constituted a comment by the court to the effect that plaintiff would have some incapacity as a result of her alleged injury. Issue 4 and the answer thereto are as follows:

“Do you find from a preponderance of the evidence that the Plaintiff Elvira Vargas sustained total incapacity, if any, for any length of time as a natural result of the accidental personal injuries, if any, sustained by her on or about November 11, 1963?
By ‘total incapacity’ as used in this charge, does not imply an absolute disability to perform any kind of labor, but a person disqualified from performing the usual tasks of a workman to such an extent that she is unable to procure and retain employment is ordinarily regarded as being totally incapacitated or totally disabled.
'Natural result’ as used herein means a result occurring in the ordinary course of events.
Answer ‘yes’ or ‘no’. ANSWER: No.”

It is obvious that the court did not thereby assume that plaintiff sustained incapacity after November 11th and that the court did not comment that plaintiff would be incapacitated as a result of her alleged injury. The jury found that plaintiff did not sustain total incapacity for any length of time. We cannot see how appellant could have been injured by either the issue or answer. See Argonaut Underwriters Insurance Company v. Byerly, Tex.Civ. App., 329 S.W.2d 937, (Ref. N. R. E.) The point is overruled.

The substance of appellant’s sixth point is that the court erred in defining personal injury by including in the definition “or the incitement, acceleration or aggravation of any previously existing physical condition or disease”, because there was no evidence thereof or, as least, the evidence was insufficient, and the court’s instruction permitted the jury to answer issue 1, which inquired whether plaintiff sustained an injury on November 11, 1963, based upon speculation and the court’s said instruction. We think such action did not constitute reversible error. Southern Underwriters v. Parker, 129 S.W.2d 738, (writ ref.); Maston v. Texas Employers Insurance Ass’n, 160 Tex. 439, 331 S.W.2d 907. Point six is overruled.

Appellee presents a cross point wherein she contends the record shows appellant has appealed for delay only and, under Texas Rules of Civil Procedure 438, appellant should be penalized ten percent of the judgment for a frivolous appeal. The point is overruled. The judgment is affirmed.


source: Caselaw Access Project

author: NORTHCUTT, Justice. CHAPMAN, Justice

license: Public Domain

text:
    Charles Thomas CROWE, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee. Alfred Lee WALLIS, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    Nos. 7563, 7564.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 24, 1966.
    Rehearing Denied Feb. 21, 1966.

      Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, James H. Doores and Folley, Snodgrass, Calhoun & Kolius, Joe Bob Brown, Amarillo, of counsel, for appellants.
    Naomi Harney, County Atty., Charles W. Fairweather and Paul D. Funderburk, Asst. County Attys., Amarillo, for appellee.
   NORTHCUTT, Justice.

These are driver’s license suspension cases. Pursuant to the provisions of Article 6687b, Section 22(a) Vernon’s Ann.Civ. St. as amended, the Texas Department of Public Safety caused Charles Thomas Crowe and Alfred Lee Wallis to appear before a justice of the peace of Potter County, Texas, for a hearing to determine whether they were habitual traffic violators within the meaning of Article 6687b, Section 22(b), Paragraph 4, V.A.C.S. The justice of the peace made an affirmative finding and the Texas Department of Public Safety suspended the driver’s license of both of these appellants for a certain period of time. From those orders both Crowe and Wallis appealed to the County Court at Law of Potter County, Texas, by authority of Article 6687b, Section 22(c) V.A.C.S.

Both cases were presented to the trial court on motions for summary judgment filed by appellants and appellee. Appellants’ motions were denied and the motions of Texas Department of Public Safety were granted in both cases authorizing the Department to suspend appellants’ drivers’ licenses. From those judgments appellants perfected this appeal. On joint motion the cases have been consolidated for purpose of briefing, argument and presenting here.

Appellants by their four assignments of error contend the court erred in granting appellee’s motion for summary judgment because appellants as a matter of law were not habitual violators of the traffic law; in denying appellants’ motions for summary judgment because the evidence established as a matter of law that neither appellant had been convicted as many as four times for moving traffic violations occurring within twelve months period; in holding appellants were habitual violators and in holding that each appellant had four or more convictions occurring within twelve months period.

Attached to the motion of Texas Department of Public Safety for summary judgment as against Crowe are five notices of conviction duly executed by the judge of the Corporation Court of Amarillo, Texas. There were six notices of convictions duly executed by the judge of the Corporation Court of Amarillo, Texas, attached to the motion for summary judgment as to Wallis. Proper notices were given to both appellants as provided under Article 3731a, if such notices should be considered as necessary. In each and all of said notices of conviction attached to the motion for summary judgment contained all of the requirements set out in Article 6701d, Section 152(c).

It seems to be the sole contention of appellants that since they did not appear either in person or by attorney before the court on any of the subject tickets and made no plea before the court and did not give bail, bond or other security but paid their fines at the window of the Corporation Court clerk, the appellee is not entitled to cancel their licenses. The undisputed record shows from the certificates of the judge of the Corporation Court they pleaded guilty and paid the fines. We hold this is sufficient proof of convictions as contemplated under the law.

We are of the opinion, and so hold, that the matters here involved have been determined by the Supreme Court of this state contrary to the contentions of appellants and are binding on this court. Texas Department of Public Safety v. Richardson, Tex., 384 S.W.2d 128; Texas Department of Public Safety v. Miller, Tex., 386 S.W.2d 760; Texas Department of Public Safety v. Gentry, Tex., 386 S.W.2d 758.

We have carefully considered all of appellants’ assignments of error and overruled all of them. Judgment of the trial court is affirmed.

CHAPMAN, Justice

(dissenting).

I respectfully dissent. This dissent is in lieu of my dissent to the majority opinion announced on January 24, 1966, and after Motion for Rehearing was acted on by the majority. (All emphases herein are mine.)

The notices or abstracts of convictions in both cases herein show on the face of each to be invalid in that they show: “Defendant did not appear in open court. Fine paid at window of clerk’s office.” Affidavits of the judge of the Corporation Court and affidavits of deputy clerks corroborate the showing on the faces of the abstracts of convictions. The affidavits of the judge show the numbers of the tickets that correspond to the numbers upon which the abstracts of convictions were based. His affidavit says as to each party proceeded against that they were never convicted “ * * * in this court, never entered any plea on any of said tickets before the court, never appeared in open court either in person or by attorney on said tickets, and never forfeited bail or bond or other security as a result of said tickets.”

The majority opinion states: “The undisputed record shows from the certificates of the judge of the Corporation Court they pleaded guilty and paid the fines.”

I have to respectfully disagree with my associates that the statement just quoted is supported by the record. This is a summary judgment proceeding and the record is limited to those components of summary judgment proceedings provided for in Rule 166-A, V.A.T.R., enumerated in Section (c) of said rule; i. e., the pleadings, depositions, and admissions on file, together with the affidavits, if any. I have searched the entire record and I have to say, with all due respect to the above quote from the majority opinion, that the record does not support such statement.

The only documentary evidence offered on the motion of appellee for summary judgment are some instruments denoted “Notice of Conviction.” Such instruments nowhere show that appellants ever appeared before any magistrate or ever pleaded guilty or nolo contendere to anyone in open court. As to appellant Crowe, only one of the five notices indicates a plea of guilty in the space provided for showing the type plea made. Two show nolo contendere, two are blank, and one shows a plea of guilty. As to appellant Wallis, three show pleas of nolo contendere and three pleas of guilty. Therefore, these summary judgment components show on their faces there were not four valid convictions against either appellant, no pleas or convictions having been perfected under Article 518, C.C.P., as amended Acts 1959, 56th Legislature, p. 257, Ch. 149, Sec. 5. As to appellant Crowe, the abstracts of convictions show on their faces there were not four valid pleas of any type. The abstracts of convictions show in each case: “Defendant did not appear in open court. Fine paid at window in clerk’s office.” So, the abstracts of convictions that show any type of plea contradict themselves. I know of no rule existing at the time these cases were disposed of which permitted a defendant in a misdemeanor to plead guilty or nolo contendere before a clerk, and the Austin Court of Civil Appeals has held that a mailing of a fine to the Corporation Court in the amount shown on the notice is not a legal plea of guilty in the absence of appearance in the court either in person or by attorney. Mooneyhan v. Benedict, Tex.Civ.App., 284 S.W.2d 741 (writ ref., N.R.E.).

The summary judgment components upon which the judgments here under attack must depend show upon their faces to be contrary to the affidavit made by Mr. Rig-ler, the acting Deputy Custodian of the Department of Public Safety, Driver Records Division. He makes affidavit that upon his own personal knowledge the operating records of Charles Thomas Crowe show convictions for the moving violations of the traffic laws of the State of Texas. How could the man possibly know of his own personal knowledge such a fact? The affidavits of two of the clerks of the Corporation Court contradict him and the judge of the court before whom such pleas and convictions would have had to be made contradict him. The notices of convictions, the only documentary evidence of pleas of guilty or nolo contendere, on their very faces contradict him. In the face of the record here it is my opinion if Mr. Rigler attempted to testify personally in open court to such a fact as he swore he had personal knowledge of in his affidavit it would not be admissible if properly challenged unless he testified he was personally present, heard the pleas and heard the sentences. Even then it is doubtful if it would be admissible because the judgments would be the best evidence. Rule 166-A, V.A.T.R., Section (e) provides, inter alia, the affidavit must show affirmatively the affiant is competent to testify to the matters stated therein. We are without authority to indulge such implication in a summary judgment proceeding, since we are required to resolve every reasonable intendment against the judgment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. All the notices of conviction show the defendants did not appear in open court, a requirement under both Articles 505, C.C.P., and 518, C.C.P., as amended before the new Code of Criminal Procedure. Article 505, C.C.P., as amended, Acts 56th Legislature, p. 257, Ch. 149, Sec. 3, is perhaps not applicable here because it refers to indictments and informations, pleadings in criminal cases generally applicable to prosecutions in county courts and district courts.

The RICHARDSON ease cited and relied on by the majority held: “Unless the invalidity of these judgments is proclaimed upon the face of the judgments themselves, such judgments in this proceeding are to be afforded verity until set aside by a court having jurisdiction to do so.” If the instruments denoted “Notice of Conviction” in the records are what the Department relies on for judgments their invalidity shows on their faces. If they are called.“abstracts of convictions” as they are referred to in RICHARDSON, they are still the only documentary records of the judgments and still show on their faces to be invalid as convictions.

The very article under which the licenses here under consideration were revoked provides that all appeals prosecuted in any of the courts of this state pursuant to Section 22(a) shall be de novo as that term is used and understood in appeals from justice of the peace courts to county courts and that under no circumstances shall the substantial evidence rule as interpreted and applied to appeals prosecuted under the- provisions of the act be used or applied.

The court in the RICHARDSON case stated it did not reach that question in that case, which is obvious. However, it appears clear to me that an appellate court will have to hold, where the question is reached, that a trial such as the one appealed to us in this case is a trial de novo and the substantial evidence rule does not apply. To hold otherwise would be to legislate by judicial decree directly against a legislative act. Therefore, it was not the duty of appellants in the instant case to overcome the substantial evidence rule in their trial in the county court at law and show the administrative order to be arbitrary or capricious. To the contrary, they are protected by the summary judgment rules which require that we resolve every reasonable intendment against the judgments. Gulbenkian v. Penn, supra.

Components of the summary judgment rule were used by all parties in the instant case. For the Department the affidavit of Mr. Rigler was used and the instruments designated “Notice of Conviction” were relied on. As I have already stated those refute on their face any legal convictions.

The appellants’ affidavits contradict Mr. Rigler’s affidavit. Also affidavits were made by the corporation judge and two clerks of the Corporation Court showing the appellants were never legally convicted. If the affidavit of Mr. Rigler could be considered, a fortiori, the affidavits of the judge and the clerks of the court should be considered. If this is not enough to raise a fact issue in a trial de novo then the Notices of Conviction raise a fact issue on their faces.

I am unable to see how the majority can find in the RICHARDSON case any relief for their position in the instant case. There the Supreme Court stated the abstracts of conviction in that case relate to convictions against the parties proceeded against. The opposite is shown here, or in any event a fact issue is raised by the affidavits, and even upon the very face of the instruments relied on. In RICHARDSON the court simply held that an affidavit of the attorney for appellant did not overcome the notices of convictions which showed on their face that Richardson was convicted of the offenses relied on for forfeiture of his license. If the notices or abstracts of conviction relied on here show on their faces there were not four valid convictions against either appellant, as they certainly do, they could have been corrected by the method we suggested in Department of Public Safety v. Guleke, Tex.Civ.App., 366 S.W.2d 662 and approved in the Miller case cited by the majority.

So, there certainly are material distinctions in our cases and the RICHARDSON case and the GENTRY per curiam by the Supreme Court. I certainly do not understand the RICHARDSON case to hold that a payment of a certain fee to a clerk at a window constitutes a valid conviction despite Articles 505 and 518, C.C.P., as amended before they were amended by Articles 27.02 and 27.14 of the new code. The Court was simply passing on the record it had before it and holding that the judgments they were passing upon could not be attacked collaterally unless the invalidity of such judgments was proclaimed upon their faces. Here the invalidity of such purported judgments is proclaimed upon the faces of the abstracts of judgment, the only summary judgment components for appellee other than Mr. Rigler’s affidavit.

In Gentry v. Texas Department of Public Safety, Tex.Civ.App., 379 S.W.2d 114, 119, the Houston Court of Civil Appeals said:

“It has been called to our attention that in metropolitan areas it is frequently the custom for one charged with moving violations to ascertain the customary fine for such violations and pay to the municipality that amount by mail or at a clerk’s window. The affidavits filed by appellant and appellee suggests that some such procedure was followed in this case. In such a case the judgment is void because in the absence of a plea and evidence in open court, no trial has been held.”

To make such procedure as that just mentioned in the Gentry case legal the new Code of Criminal Procedure has added the following: “In a misdemeanor case arising out of a moving traffic violation for which the maximum possible punishment is by fine only,, payment of a fine, or an amount accepted by the court constitutes a finding of guilty in open court, * * Article 27.14, Code of Criminal Procedure, S.B. No. 107.

If I may be forgiven now for indulging in a few statements that would have to be classified in the category of obiter dicta I should like to use this forum to express my objections to the new Code of Criminal Procedure represented in the present Article 27.14, wherein the mere payment of a fine for a moving violation without an appearance in open court either in person or by counsel constitutes a finding of guilty. I make these statements as one who has never paid a traffic fine in his life.

It is common knowledge among lawyers, law enforcement agencies, news media and many laymen that parts of the new code are highly controversial. Seminars conducted over the state by the attorney general, newspaper articles, luncheon club addresses and political announcements of those seeking state legislative positions have indicated efforts will be made to amend parts of the code. In my opinion the first that should be stricken is to delete the last sentence in Article 27.14 of the new code which provides that the payment' of a fine or an amount accepted by the court constitutes a finding of guilty in open court.

The great percent of citizens receive their impressions of courts from their experiences in Corporation Court. If the word “courts” is going to be prostituted simply to make it convenient for metropolitan areas to use Corporation Courts as collection agencies, requiring an appearance in open court neither by counsel nor litigant, but permitting payment for offenses committed as one would pay a monthly bill at the grocery store, then we may expect the attitude of the average citizen toward courts of record to be tainted with the respect accorded the morals and manners of the market place in its most anti-social manifestations.

Since I am already outside the record in the last paragraph, I will say further that top business executives and past presidents of Rotary Clubs such as Charles Crowe should be required to appear in open court in person or by counsel when they have been charged with a moving traffic violation rather than following the expedient of sending a check to a clerk because it is less expensive. It is common knowledge that such expedient is resorted to many times by businessmen even though the alleged offender has a valid and legal defense to the charge filed against him. In the business fraternity it is considered proper because it is less expensive.

Since Articles 27.02 and 27.14 of the new Code of Criminal Procedure, superseding Articles 505 and 518, C.C.P. as amended were not in effect at the time judgments were granted taking away from citizens of this community the right to drive their automobiles to their places of business and since the records show on their faces that the Articles of the C.C.P. then in effect were not complied with, thus precluding the legal right to a judgment summarily rendered, I would reverse the case for a trial on its merits to determine if the appellants were legally convicted for offenses justifying cancellation of their driver’s licenses.


author: GREEN, Chief Justice.

text:
    Roland HELDT d/b/a Heldt Bros. Trucks (Heldt Bros. Tractor Corp.), Appellant, v. Alice McCREARY et al., Appellees.
    No. 178.
    Court of Civil Appeals of Texas. Corpus Christi.
    Jan. 13, 1966.
    Rehearing Denied Feb. 3, 1966.

      Lloyd, Lloyd, Dean & Ellzey by E. G. Lloyd, Jr., Alice, for appellant.
    Hubert L. Stone, Jr., Corpus Christi, for appellees.
   GREEN, Chief Justice.

This is a venue case. Mrs. Alice Mc-Creary as widow of James R. McCreary filed suit individually for herself and for the benefit of all parties entitled to recover for damages due to the death of her husband, alleged to have been proximately caused by the negligence of defendant, its agents, servants and employees, acting within the scope of their employment. To sustain venue in the district court of Live Oak County plaintiff relied on Sec. 9a, Art. 1995, Vernon’s Ann.Tex.Civ.St., fixing venue of a suit based on negligence in the county where the negligence occurred. At the close of the evidence, the trial court entered judgment overruling defendant’s plea of privilege. At the request of defendant, findings of fact and conclusions of law were filed. Statement of facts as well as the transcript is on file in this court.

Evidence which is not in dispute shows that on July 29, 1964, James R. McCreary was the driller-employee of Stewart & Gouger Drilling Company, on rig No. 3 at its location in Live Oak County. He had been driller on this rig for over a year, and had worked in oil fields for over thirty-five years, and was thoroughly familiar with the rig and derrick, and what needed to be done when the rig was being dismantled for moving. Defendant had contracted to remove this rig to another location in the county, and on the morning of July 29, 1964, was in the process of dismantling the rig preparatory to moving it. The rig crew, employees of Stewart & Gouger, were working under the direction of Ed Meadows, drilling superintendent of Stewart & Gouger, with McCreary as second in charge, and the defendant’s employees worked under the direction of Otto Sens, defendant’s truck pusher. The derrick had been lowered, and was in a horizontal position on a pipe rack, while employees of Stewart & Gouger and of defendant were working on and about it. One portion of the derrick necessary to be removed was the A-frame center piece, a large metal brace or beam weighing about 700-800 pounds, that fits between two of the derrick legs. Its purpose is to strengthen the derrick, and to serve as a spreader to hold the legs apart. It has on it a wheel or pulley, over which the drill line is run to raise or lower the derrick. This center piece was attached to the A-frame of the derrick by four large bolts. About thirty minutes prior to the accident which caused McCreary’s death, employees of defendant had removed three of these bolts, and had taken the nut off the fourth bolt, leaving the bolt in place.

Just before the accident, McCreary, who had been in the vicinity of the derrick while the work was going on, took hold of a piece of the derrick called a spacer bar, which was dragging, and backed up toward the center piece. As he got under the center piece pulling the spacer bar, the center piece fell on him, causing his death. The accident occurred in Live Oak County, Texas.

In addition to the above facts which are not in dispute, the court found that according to oil field custom, the right and duty of removing the bolts and nuts securing the A-frame center piece to the derrick was reserved to the drilling crew, and not to the rig moving crew of defendants, and that McCreary did not know at any time prior to his death that defendant’s employees had removed any of said bolts and nuts; that the usual, customary practice in oil fields is that prior to the removal of the bolts and nuts securing the center piece to the A-frame of the derrick, a winch line from a winch truck is fastened to the center piece, and that after the removal of the nuts and bolts, the center piece is lifted out of place by the winch line and lowered to the ground; that from the time the bolts and nuts were removed to the time of the death of McCreary, there was no winch line attached to the center piece; that the falling of the A-frame center piece was proximately caused by the removal of the bolts and nuts securing it to the A-frame of the derrick without a winch line being attached thereto; that a reasonable driller under the circumstances and with the knowledge that he had would not have foreseen that the center piece would fall on the occasion in question; and that a reasonable hauling contractor in defendant’s position under the circumstances would have foreseen that the center piece would fall on the occasion in question; and that at all times in question, defendant’s employees were acting within the scope of their employment.

■ The court concluded that the removal of the nuts and holts by defendant’s employees was negligence; that the failure of defendant’s employees to attach a winch line to the center piece before the nuts and bolts were removed was negligence; that the failure of defendant to warn McCreary that the nuts and bolts had been removed was negligence; and that each of such acts and omissions was a proximate cause of the death of McCreary.

To these findings and conclusions the defendant excepted.

Appellant bases his appeal on four points of error, as follows:

“First Point
The trial Court erred in overruling Defendant’s Plea of Privilege because the evidence established beyond question that James R. McCreary could have avoided the center piece falling on him by pulling on the spacer bar towards the trucks — that being in the opposite direction from where the center piece fell.
Second Point
The trial Court erred in overruling Defendant’s Plea of Privilege because the evidence established beyond question that James R. McCreary pulled the spacer bar attached to the grasshopper leg under the center piece knowing (1) a winch line was not attached to the center piece of the derrick, (2) the winch lines of both trucks were attached to the remaining grasshopper leg of the derrick, (3) the bolts were out of the center piece, and (4) the center piece would fall if the derrick legs to which it was attached were separated by the least movement.
Third Point
The trial Court erred in overruling Defendant’s Plea of Privilege because the evidence established beyond question that the death of James R. Mc-Creary resulted from a dangerous condition which was open, obvious and known to him.
Fourth Point
The Findings of Fact, numbered 10 through 27, made by the trial Court are not supported by and are contrary to the evidence offered on the trial of this case.”

Defendant’s contentions under its first point are directed at possible contributory negligence on the part of deceased, which may become a fact issue in the trial on the merits, but are inapplicable in the determination of venue. Perry Construction Company v. Watkins, Tex. Civ.App., 367 S.W.2d 913; Petrey v. Williams, Tex.Civ.App., 312 S.W.2d 383; Allen M. Campbell General Contractors, Inc. v. McDonald, Tex.Civ.App., 347 S.W.2d 781. The same may be true as to the second point, but in so far as the contentions in this point are related to those in the third point, they shall be considered by us. The fourth point is clearly multifarious, attacking as it does on a no evidence point eighteen different fact findings of the trial court. Sheffield v. Lewis, Tex.Civ. App., 287 S.W.2d 531; Grice v. Hennessy, Tex.Civ.App., 327 S.W.2d 629; Tatton v. Aransas County, Tex.Civ.App., 359 S.W.2d 200. However, we have carefully checked the court’s findings upon which the judgment is based with the statement of facts, and hold that such findings are supported by evidence.

Defendant’s assertion of error in the court’s overruling of its plea of privilege is based on the contention that the evidence establishes that McCreary’s death resulted from a dangerous condition which was open, obvious and known to him, and that defendant owed no duty to him which was violated by defendant, citing among other authorities, Panhandle Steel Buildings Inc. v. Benson, Tex.Civ.App., 385 S.W.2d 740, and Robert E. McKee, General Contractor, Inc. v. Patterson, Tex.Sup.Ct., 271 S.W.2d 391. In both of these cases, the holding of the court was that since the injured party had full knowledge and appreciation of the dangerous condition which became responsible for his injuries, the defendant owed him no duty under the circumstances there existing, and if there was no duty, the defendant obviously breached no duty.

Defendant’s position is that the evidence establishes that deceased knew, prior to his backing under the derrick, that the bolts had been removed from the center piece, thus creating a dangerous-, situation open and obvious to him. This contention is in direct conflict with the trial court’s findings. No point of factual insufficiency of the evidence, i. e., that the findings are contrary to the greater weight and preponderance of the evidence, is presented by defendant. Hence, in determining whether the trial court’s findings are supported by any evidence of probative value we need give credence only to the evidence favorable to the findings, and will disregard all evidence to the contrary. Brown v. Frontier Theatres, Inc., Tex.Sup.Ct., 369 S.W.2d 299.

Of course McCreary is dead, and no one can say definitely what he knew or dicl not know about the removal of the bolts. The witness Harris, an eye witness to the accident, had been working on and in the immediate vicinity of the rig for over an hour before the accident, a large part of the time along side of deceased, and had the same opportunity to see what defendant’s employees were doing on the derrick. He testified that he did not know that the bolts had been removed. ' Ed Meadows, the drilling superintendent for Gouger & Stewart, was also with deceased at the time the bolts were removed, and had the same opportunity to observe the defendant’s crew at work on the derrick, and he testified that at the time of the accident he had no knowledge of their removal. Both Harris and Meadows testified that the taking of the bolts from the A-frame center piece was a job ordinarily reserved for the drilling crew, and Meadows said that deceased would have been surprised to learn that defendant’s crew had removed them. There was evidence to sustain the court’s finding that no winch line was attached by defendant’s crew to the center piece before or after the bolts had been removed, notwithstanding the oil field general custom that this should be done. The absence of the winch line would, according to this evidence, indicate to deceased that the center piece was still bolted to the derrick. Though opinion testimony of certain of defendant’s employees that deceased did know of the bolts being removed was admitted in evidence over plaintiff’s objection, such opinions had no probative value.

All of the pertinent evidence is to the effect that it was the removal of the bolts that attached the A-frame center piece to the derrick that caused the dangerous situation. There was positive testimony that the movement of the spacer bar by deceased did not cause the center piece to fall. Such evidence supports the trial court’s finding that the heavy piece of iron would not have fallen and killed deceased had the bolts not been removed. According to the evidence it would not have fallen if a sufficent winch line had been attached to it. There was evidence, necessarily circumstantial on this feature, to support the finding that deceased did not know that the bolts supporting the center piece had been removed. The circumstances do not show as a matter of law that facts existed at the time of the accident charging him with such knowledge.

Under the doctrine of volenti non fit injuria, or voluntary exposure to a known risk, a person can not recover for injuries from dangers that he voluntarily encounters with full knowledge of the existence, and appreciation of the extent, of the danger involved. 40 Tex.Jur.2d Negligence, § 93 p. 597; Robert E. McKee General Contractors Inc. v. Patterson, supra. But it is not sufficient in order to invoke volenti, to show merely that a party should have known of the dangerous condition; it is necessary that the evidence establishes that the injured party had such knowledge of the danger that he was able to exercise an intelligent choice with full knowledge of the nature and extent of the danger involved, or it must be shown that he is in possession of facts from which he would be legally charged with appreciation of the danger. Halepeska v. Callihan Interests, Inc., Tex.Sup.Ct, 371 S.W.2d 368; Bolin v. Tenneco Oil Co., Tex.Civ.App., 373 S.W.2d 350, writ ref. n. r. e. Under the fact findings of the trial court, and the evidence supporting such findings it was not established as a matter of law that deceased had, or should be charged with such knowledge and appreciation. H. E. Butt Grocery Company v. Bradfield, Tex.Civ.App., 396 S.W.2d 254.

The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than that of defendant’s residence under Sec. 9a, Art. 1995, are (1) that an act or omission of negligence occurred in the county where suit was filed (2) which act or omission was that of the defendant, or his servant, agent or representative acting within the scope of his employment, and (3) that such negligence was a proximate cause of plaintiff’s injuries.

The evidence supports the trial court’s findings and conclusions that such requirements were met.

The trial court did not err in overruling defendant’s plea of privilege.

Judgment affirmed.


author: CHAPMAN, Justice.

text:
    H. L. McPHERSON, Appellant, v. J. C. BILLINGTON, Appellee.
    No. 7541.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 6, 1965.
    Rehearing Denied Jan. 10, 1966.

      Evans, Pharr, Trout & Jones, Lubbock, for appellant.
    Brown & Shuman, Lubbock, for appellee.
   CHAPMAN, Justice.

This is an appeal by H. L. McPherson, defendant below, from a judgment for J. C. Billington, plaintiff below, based upon a jury verdict.

Appellee sought and obtained recovery against appellant for the death of 365 swine and for reduced value of 46 others as a result of arsenic acid appellant permitted to pass over onto the pens enclosing the swine during an aerial spraying operation to desiccate a cotton patch with such poison for another whose cotton was located within the same quarter-section of land and north of appellee’s 40 acres. Appeal is perfected upon points which raise the no-evidence and great weight and preponderance of the evidence questions, error in the form of the issues submitted and error of the trial court in failing to give certain requested special issues.

The record explains that a desiccant such as arsenic poisoning kills only the leaves and stems, whereas some other chemicals kill the leaves and stalk, which is referred to as defoliating. However, some witnesses referred to the chemical as defoliating the cotton.

The first three issues inquired if appellant, while spraying cotton on the Caswell farm, * * * “permitted arsenic acid from his spray plane to pass over onto the hog pens of the plaintiff,” then upon conditional issues if such action was negligence and a proximate cause of the damage to appellee’s hogs. The first eight points are directed to the no-evidence and great weight and preponderance of the evidence questions and may be decided by us under the rules laid down by our Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, wherein that court spelled out in the following language the proper guide where the great weight and preponderance of the evidence question is raised:

“The question requires the Court of Civil Appeals, in the exercise of its peculiar powers under the constitution and Texas Rules of Civil Procedure Nos. 451, 453, and 455, to consider and weigh all of the evidence in the case and to set aside the verdict and remand the case for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust — this, regardless of whether the record contains some ‘evidence of probative -force’ in support of the verdict.”

It follows that appellee has a more onerous burden in sustaining the judgment where the great weight and preponderance of the evidence question is raised than where only the no-evidence question is to be considered because under the latter:

“To test the sufficiency of the evidence to determine if it will support the jury findings, we must give credence only to the evidence and circumstances favorable to the findings and disregard all evidence to the contrary, indulging every legitimate conclusion which tends to uphold such findings.” Truelove v. Truelove, Tex. Civ.App., 266 S.W.2d 491 (writ refused) .

Therefore, if in considering all the evidence, both favorable and contrary to the jury findings, we conclude such findings should be sustained, such conclusions would include the finding of lack of merit in appellant’s no-evidence points. We shall, therefore, proceed to discuss the great weight and preponderance of the evidence questions.

Appellee testified that on or about the 29th day of October, 1963, he owned 411 hogs located on his 40 acres west of Lubbock; that along at the end of October, 1963, Mr. Caswell came by his place and asked him if he had seen “them” defoliating his cotton; that he had been gone and “they” did it yesterday or day before; that he first noticed his hogs getting sick * * * “sometime along the 29th or 30th of October, 31st, or something like that,” which was the same day Mr. Caswell came out there; that they started dying; a majority died within two weeks, and within a period of 30 days all had died but 46; that from the day Mr. Caswell talked to him through Sunday, 147 of the animals died; that he took one into Dr. Rogers, a veterinarian, the afternoon after he talked with Mr. Caswell that morning; that he fed “the biggest bunch” of them in a trough 75 to 80 feet long and 6 feet wide at the top; that he had fed cooked garbage, bread, and kept grain in the feeders; that they first started showing illness by diarrhea, vomiting, watering at the eyes, and staggering in their hind quarters; that all manifested similar symptoms; that he learned appellant had sprayed with a desiccant known as arsenic acid; that his hogs started dying at the same time the leaves on the Caswell cotton started dying; that the cotton on the Bill Avery land just south of his 40 acres desiccated just like the Caswell cotton and at the same time, even though Mr. Avery had not had it sprayed; and that it had not frosted at the time and did not frost until November 18.

Mr. Avery testified in effect that he had observed the Billington hogs before his cotton leaves dried up, that they were in good health, and that they started dying at the same time his cotton leaves died. He testified his cotton was late, he did not want it desiccated, and as a result did not even gather it.

Dr. Rogers made a post-mortem examination of the hog brought to him and testified it was emaciated, rather lifeless, had subnormal temperature, severe diarrhea, and was dehydrated. It had no appearance of enteritis or cholera, its greatest internal damage was in the intestinal tract and he submitted a specimen of the soft tissue, including the liver and kidneys, to a laboratory for testing. Dr. Rogers further testified that based upon the history of the animal, his observation, his post-mortem, the report of the laboratory technician and his professional training and experience, that in his opinion it was suffering from arsenic poison and would have died if he had not killed it for examination. He was supported in his diagnosis by the technician, who testified that a test of the liver and kidneys showed a * * * “strong positive test for arsenic at that time.” Dr. Rogers also testified it would take only from 4 to 15 grains of arsenic to kill a hog.

Mr. Newman, an agronomist with the Texas Agricultural Experiment Station in Lubbock, with a master’s degree and work on his doctorate, testified that arsenic acid produces one of the most severe kills as a desiccant. When asked about its tolerance when used in livestock feed, he testified that under instructions of the Pure Food and Drug Administration, when arsenic acid is used as a desiccant on cotton plants that if * * * “the seed from treated plants were harvested, and contained more than four parts per million on the surface of the seed, this seed could be confiscated and kept out of trade, because it would produce residue — produced arsenical residue in the oil, if it were squeezed to make cotton oil, or could contaminate the cotton seed hulls and meal.” He also testified that swine are very sensitive to heavy metals which include arsenic and lead.

J. C. Miller, a district manager for an insurance company in Lubbock, testified that he was keeping some horses on a part of the Billington premises to the east of the hog pens at the time of the spraying of the Caswell cotton. He fed them regular processed horse feed and hay kept in a trailer covered with a tarpaulin and even then they “went off their feed” about the time the cotton leaves died and the hogs died and that for about a week they did not eat as they had been. He had two bred and tested quarter horse mares there at the time that had never failed to deliver their foals before and that failed to deliver the next year. He also testified he was reared on a farm, had raised hogs until he was 32 years of age and had never seen a nicer group of hogs, some registered, than Mr. Billington’s animals before they became ill and started dying.

Appellee then called as a witness appellant H. L. McPherson, under the adverse witness rule. He testified in effect that he sprayed the cotton for Clarence Caswell on the farm immediately north of appellee’s hog pens in October 1963 with a quart of arsenic acid per acre mixed in approximately three gallons of water; he knew the pens were there and knew swine generally stayed there; he knew the spray he used was a dangerous poison to animal life and the containers it came in had such warning; that he started spraying about 8:00 a. m.; he used a practically new 235 h.p. Piper Pawnee with from 14 to 18 nozzles on each side through which the poison was ejected; that K. K. Kimbro was the pilot who did the spraying for him; that the nozzles had springs that were supposed to close when the main value closed but that minute particles of foreign matter could get under the nozzles and hold them open and that he had such trouble with that machine in 1964; that the pilot had to remember to pull the on-off switch at the end of each run to make a turn and if he forgot while traveling at the speed they used it would spray desiccant over a space of 133 feet in a single second; and that when they turned, the tail of the plane would swing in a wide arc toward the hog pens, which were 407 yards south of where he was spraying.

K. K. Kimbro, a employee of appellant, and who flew the plane upon the occasion in question, testified that the containers in which the arsenic acid is packed states it will drift; that the propwash from the tail of the plane would rock another plane behind it; that he flew from 85 to 95 miles an hour and that the propwash extends for as much as a quarter of a mile from the tail of the plane. He explained that the propwash was like a fan expelling air behind it.

The testimony shows by a meteorologist of the weather bureau at Lubbock that on October 29, 1963, the wind was southeast at 8 miles per hour at 8:00 a. m. and on October 28, 1963, it was 23 miles an hour from the north at 8:00 a. m. These velocities were measured at the airport north of Lubbock.

Captain Griffith, captain of the weather station at Reese Air Force Base, west of Lubbock, testified that at the base on October 28, 1963, the wind velocity at 0656 was northeast at 10 knots, 0757 northeast at 10 knots and 0855 northeast at 12 knots. He testified that on the 29th of October, 1963, the wind at 0756 was southeast at 3 knots and that at 0855 south at 8 knots. The record shows that appellee lives on his 40 acres and that it is a mile east and 1U0 yards north of Reese Air Force Base, so the wind velocity and direction would appear to be more appropriate there than at the airport north of Lubbock.

On re-direct examination appellee testified that the basis of his telling his attorney that the spraying was done on the 28th rather than the 29th was what appellant said to him upon the occasion when he asked if his cotton had been sprayed. He also admitted on cross-examination that he testified in his deposition that it was about at the end of October, the 28th, 29th, or 30th.

Now, to determine if in considering all the evidence the verdict was against the great weight and preponderance thereof, we turn to that part of the testimony which could be considered favorable to appellant.

Between the hog pens and the sprayed cotton was a dormant alfalfa patch and east of that a wheat patch. A billy goat was located on the area where it could graze on either the alfalfa or wheat. The goat did not die but there is not any evidence as to whether he grazed the alfalfa and wheat during that time or not. If he was where he had access to the Miller horse’s feed, which is not clear m the record, he could very well have lived on that for several days following the spraying operation. Hogs which were “running” on the alfalfa did die. Mr. Billington testified it was the season of the year that alfalfa had quit growing and that it rained a few weeks later and the wheat came out so he could graze it. He said the alfalfa came out the next spring. In any event, the evidence shows that arsenic does not kill the plant but only the leaves.

Mr. Kimbro testified positively that it was on the 29th that the cotton was sprayed, that it was approximately 8:00 a. m., “give or take 10 or 15 minutes either way,” and it took only a short time to finish it.

Mr. George testified to being an experienced aerial sprayer and that when the plane is a foot to two feet above the cotton, SO feet is the most he had seen it drift.

Mr. Henderson of Rowland Gordon, insecticide dealers, called as a witness for appellant, testified that he had sold appellee two pints of vitersol on September 11, 1963; that it contained some arsenic acid; that it is a vitamin product and is used to treat enteritis. He also testified on cross-examination that he sold it as a medicine and that it would not have killed the hogs.

When all the evidence, both favorable and contrary to the verdict is considered, we cannot say that the verdict is contrary to the great weight and preponderance thereof. These is a pattern of destruction, with the exception of the goat and perhaps the young wheat and dormant alfalfa patch, from the cotton patch sprayed, through the hog pens and onto the Avery cotton that was desiccated simultaneous with the desiccation of the Caswell cotton. The expert professional testimony shows the hogs died from arsenic acid poison. There is simply no good explanation of their death, except from the poison loosed into the atmosphere by the spraying operation and no explanation whatever of the desiccation of the Avery cotton except from the Caswell spraying. No other spraying operations were in effect in the area at the time the Caswell cotton was desiccated. Even admitting that the spraying was on the 29th, the wind velocity at Reese Air Force Base, only a mile away, was only 3 knots from southwest at 0756, the approximate time the spraying operation started. When the fact is considered that the force of the air from the propwash extends a quarter of a mile, that the tail of the plane on the turn was toward the hog pens each time and that they were less than a quarter of a mile away, the jury could very well have believed that one or more of the nozzles may have continued to spray at the 150-foot height on the turns because of a foreign particle lodged therein or that the pilot was late at times in cutting the spray off before making his upward movement and turn.

We therefore hold that none of the testimony favorable to appellant, when considered in connection with all the other evidence, is sufficient for us to hold that the verdict of the jury is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

Though not completely in point, partly because of the difference in the type of poison used, the following cases furnish some support for our conclusions: Schultz v. Harless, Tex.Civ.App., 271 S.W.2d 696 (N.W.H.); Aerial Sprayers v. Yerger, Hill & Son, Tex.Civ.App., 306 S.W.2d 433; Pitchfork Land and Cattle Company v. King, Tex.Civ.App., 335 S.W.2d 624 (affirmed as to Aerial Sprayers, 162 Tex. 331, 346 S.W.2d 598). In the last named case the Supreme Court affirmed a jury verdict against the spraying company where the evidence showed the damaged cotton for which recovery was sought was located from 71/2 to 15 miles away from the scene of the spraying operations. In our case we have only a distance of 407 yards from the sprayed cotton to the pens where the swine were located and where 365 died from arsenic acid and the other 46 were sick.

If we understand appellant’s Points 9 and 10 he has also challenged the form of submission of Special Issues 1 and 2 as being upon the weight of the evidence in assuming in Special Issue 1 that an arsenic acid did get onto the hog pens of appellee. We find no merit in this contention. In asking the jury: “Do you find from a preponderance of the evidence that H. L. McPherson, on or about October 28, 1963, while spraying cotton on the Clarence Cas-well farm, permitted arsenic acid from his spray plane to pass over onto the hog pens of the plaintiff,” the court properly placed the burden upon the one seeking recovery for such operation. The other two component issues on negligence and proximate cause were submitted conditionally in proper form and made no improper assumptions in their submission.

Of course, there was no way to detect the poison as it was being consumed by the swine but the court charged on circumstantial evidence as follows: “A fact may be established by circumstantial evidence when the existence of it is fairly and reasonably inferred from the other facts proven in the case, if any.” No objection is preserved to such definition by a point directed thereto in the brief.

In Point 11 appellant asserts error in refusing to submit his requested Issue No. 1 which inquired if the spraying on the Caswell farm was on the 29th day of October, 1963, only.

The requested issue denied was simply evidentiary, in view of the “on or about” submission. Rule 279, Vernon’s Ann.Texas Rules of Civil Procedure, provides that when a case is submitted upon special issues the trial court shall submit the controlling issues made by the written pleadings and the evidence. Where the requested issue relates only to various shades of the issue submitted no reversible error is committed in the failure to submit the requested issue. Smith & Conklin Bros. v. Griffith, 153 Tex. 341, 268 S.W.2d 124; Thomas v. Billingsley, Tex.Civ.App., 173 S.W.2d 199 (writ refused); Texas & N.O.R. Co. v. Sturgeon, 142 Tex. 222, 177 S.W. 2d 264.

Additionally, the record shows appellant filed only a general denial to appel-lee’s .petition. A party is not entitled to an affirmative submission of an issue in his behalf where such issue is raised only by a general denial and not by an affirmative written pleading on his part. Rule 279, V.A.T.R.; Texas Employers' Ins. Ass’n v. Tate, Tex.Civ.App., 214 S.W.2d 877 (N.R.E.).

Even if it should be said there is no probative evidence of spraying on October 28th, a question we find unnecessary to pass upon, the point is still without merit. For a variance to be fatal it must be substantial, misleading, and prejudicial departure. Kleber v. Pacific Ave. Garage, Tex. Civ.App., 70 S.W.2d 812, 814 (writ dismissed). Our Supreme Court has even held that “ * * * it is an elementary rule that, in proving the time at which a cause of action arose, the plaintiff is never confined to that laid in his declaration or petition.” Gulf, C. & S. F. Ry. Co. v. Witte, 68 Tex. 295, 4 S.W. 490. The TexarkanCourt of Civil Appeals has held that an allegation in a breach of contract suit that the dereliction occurred on or about the 13th or 14th of June was not error where the proof showed it occurred on the corresponding dates in July. Texas & N. O. R. Co. v. Weems, Tex.Civ.App., 184 S.W. 1103 (affirmed on other grounds, Tex.Com.App., 222 S.W. 972).

Requested Special Issue No. 2 which the court refused to give inquires if the wind was from a southerly direction when appellant sprayed the cotton on the 29th day of October, 1963. It is without contradiction in the record that the wind on the 29th of October, 1963, was from the south, southeast, or southwest at the period of time the cotton was being sprayed, if the 29th was the correct date. Additionally, it was an evidentiary issue and if answered in the affirmative could not have furnished the basis for a judgment for appellant in view of what we have said above with respect to the force of the propwash.

Requested Special Issue No. 3 inquired if the spray released upon the occasion in question was from the north of the most northerly part of the Billington property. That issue is uncontroverted, evidentiary, and if answered affirmatively, which it would have had to have been, could furnish no basis for a judgment for appellant.

Accordingly, the judgment of the trial court is affirmed.


author: NORTHCUTT, Justice.

text:
    W. H. HODGES & COMPANY OF ALEXANDRIA, Inc., Appellant, v. The DONLEY COUNTY STATE BANK OF CLARENDON, Texas, Appellee.
    No. 7559.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 17, 1966.
    Rehearing Denied Feb. 14, 1966.
    Smith, Teed, Wade, Waters & Snow, Pampa, for appellant.
    Wm. J. Lowe, W. T. Link, Clarendon, for appellee.
   NORTHCUTT, Justice.

This is a suit brought by the Donley County State Bank of Clarendon, Texas, against Bob Sherrod upon promissory notes and for foreclosure of a chattel mortgage upon 205 head of cattle and against the appellant for title and possession of the 205 head of cattle that were mortgaged by-Bob Sherrod to said bank or for the proceeds of the sale of such cattle. W. H. Hodges and W. H. Hodges & Company of Alexandria, Inc., appellants here, answered contending they were the sole owners of the 205 head of cattle and that Bob Sherrod had no right to mortgage the cattle to the bank. By agreement of the parties the cattle were sold for $23,564.29 and the proceeds were held until it could be determined in this action who was entitled to the same. W. H. Hodges was the president of the Hodges corporation.

The case was submitted to a jury upon four special issues. In answer to the first issue the jury found Bob Sherrod did not own the cattle in question at the time he executed the chattel mortgage nor thereafter acquired title to them. In answer to Special Issue 2 the jury found that Hodges did not act in such manner as would reasonably lead the bank to believe, in the exercise of ordinary care, that the cattle were owned by Bob Sherrod. In answer to Special Issue 3 the jury found that Sherrod and Hodges were not engaged in a partnership in these particular cattle. In answer to Special Issue 4 the jury found that Sherrod and Hodges were engaged in a joint adventure in dealing with these particular cattle. Judgment was granted in favor of the bank as against Sherrod for the balance due it by Sherrod on the notes sued upon for the sum of $46,562.46 and granted judgment that the bank have and recover the $23,564.29 of and from Sherrod and the appellants to be credited upon the $46,562.46 owed by Sherrod. The court granted appellants judgment for the sum of $22,919.44 by their suit against Sherrod. From that judgment appellants perfected this appeal.

Sherrod took the Fifth Amendment and refused to testify in the case. W. H. Hodges & Company of Alexandria, Inc., a Louisiana corporation, at the time of its dealing with Sherrod as to all their cattle transactions had no permit to do business in Texas.

Appellants present their appeal upon seven assignments of error. We will consider Points 1, 3, 4 and 5 together since all of them are concerning the submission of the special issue on joint adventure. By Points 3, 4 and 5 it is contended there is no evidence or at least insufficient evidence to raise the issue of joint adventure and that the issue was not upon or determinative of any controlling fact issue in the case. By Point 1 it is contended the court erred in overruling appellants’ objection to the charge of the court and in submitting to the jury a special issue on joint adventure because (a) no issue of fact was raised by the evidence concerning the joint adventure; (b) no evidence raising any issue concerning joint adventure; (c) inquiring of an issue not a controlling issue raised by the evidence; (d) that in submitting Special Issue 3 on partnership and then submitting Special Issue 4 on joint adventure (and defining each) was a duplicitous inquiry or submission to the jury thereby giving undue emphasis and import to the matter to the prejudice of appellants; and (e) that the issue did not submit a material or controlling issue of fact raised by the evidence and a judgment could not be predicated upon a verdict thereon because if the jury found a joint adventure existed the uncontradicted evidence shows that the granting of the mortgage was a grant or attempted grant of lien for the private debt or private purpose by Sherrod without the knowledge or acquiescence of appellants.

On December 13, 1962, Bob Sherrod executed his note payable to the Donley County State Bank of Clarendon, Texas, and at the same time gave, executed and delivered a chattel mortgage upon certain cattle, including the cattle here involved, to secure the payment of said notes and said mortgage was duly filed on the next day with the county clerk of Gray County, Texas. Appellants had been selling cattle to Bob Sherrod for about nine months prior to December 13, 1962, and continued up to March 1963 and had sold him approximately 1,300 head of cattle. As to the cattle here involved it is the contention of appellants that they did not sell them to Sherrod but shipped them to him to be run on wheat pasture.

Mr. Hodges testified that Bob Sherrod was to feed out the cattle on wheat and Sherrod was to be paid something for wheat pasture hut that they did not have any agreement as to the amount but was to he paid if the cattle made any money. He further testified that if the cattle made money Sherrod was to participate in the profits but that they never agreed as to what extent Sherrod was to participate but that he would imagine 50 per cent was what they assumed. It is stated in Johnston v. Ballard, 83 Tex. 486, 18 S.W. 686 as follows:

“ ‘In the absence, however, of all precise stipulations between the partners in respect to their respective shares in the profits and losses, and in the absence of all other controlling evidence and circumstances, the rule of the common law is that they are to share equally of both, for in such case equality would seem to be equity.’ ”

He further testified that if there had been a loss sustained in the cattle by reason of death loss or breaking market prices he would have sustained the loss in the cattle. It naturally would be presumed that if Sherrod was to pasture and care for the cattle and was to be paid by participating in the profits and a loss was had instead of a profit that Sherrod would share in the loss to the extent for the value of the pasture and care of the cattle. We believe there was sufficient evidence to authorize a submission to the jury the question of joint adventure.

It is stated in Booth v. Wilson, Tex.Civ. App., 339 S.W.2d 388 (N.R.E.) as follows:

“In connection with the foregoing it should be observed that a joint adventure is a species of partnership, and a legal concept of comparatively modern origin. Generally it is a partnership of a limited nature by two or more persons to jointly prosecute a particular transaction for mutual benefit or profit. See Joint Adventures, 25 Tex.Juris. Sec. 2, p. 159. The joint adventurer relation is subject to dissolution and termination upon the same basis as a conventional partnership. See Thompson v. Duncan, Tex.Com.App., 44 S.W.2d 904. The discussion of joint adventurers and partners in this opinion is limited to the rights between themselves of parties to the relationship.”

As between Sherrod and appellants if appellants furnished the cattle and Sherrod pastured and cared for the cattle for the purpose of sharing in the profits all that Sherrod would have would be a share in the profits and no interest in the cattle. Strack v. Strong, Tex.Civ.App., 114 S.W.2d 313 (writ dismissed). We do not believe that that would be true as to a third party where the cattle were branded as here shown and possession of the cattle placed in Sherrod by the appellants. Sher-rod’s cattle brand was properly proven and . of record in Gray County, Texas, where the cattle were delivered to Sherrod. All of the cattle were branded with the brand of Sherrod and were branded in his brand with the knowledge, consent and agreement of the appellants. “It is the very purpose of the law in requiring the registration that it shall be notice and prima facie proof of ownership.” De Garca v. Galvan, 55 Tex. 53; Beyman v. Black, 47 Tex. 558. Article 6896 T.C.S. requires the owner of cattle to brand them. George Schneider & Co. v. Fowler, 1 White & W.Civ.Cas.Ct. App. § 856.

In this case appellants as owners of the cattle in question knowingly consented and agreed for Sherrod to place his brand upon the cattle in question and we think would be estopped with respect to the claims of appellee. It is stated in Continental Credit Corporation v. Norman, Tex.Civ.App., 303 S.W.2d 449 (N.R.E.) as follows:

“An owner who arms another with both documentary evidence of title and actual possession of the chattel has been estopped with respect to innocent third persons. McKinney v. Croan, 144 Tex. 9, 188 S.W.2d 144; Nicewarner v. Alston, Tex.Civ.App., 228 S.W.2d 872; Southwestern Inv. Co. v. Erwin, Tex. Civ.App., 213 S.W.2d 81; Lang v. Harwood, Tex.Civ.App., 145 S.W.2d 945; Gossett v. Williams, Tex.Civ.App., 288 S.W.594. See also, Mills v. Clark, Tex.Civ.App., 257 S.W.2d 746, 749; Chambers v. Consolidated Garage Co., Tex.Civ.App., 210 S.W. 565.”

It is stated in Kempner v. Huddleston, 90 Tex. 182, 37 S.W. 1066 as follows:

“The rule stated by Mr. Bigelow in his work on Estoppels (page 547) is: ‘That where the true owner of property holds out another, or allows another to appear, as the owner of, or as having full power of disposition over, the property, the same being in the latter’s actual possession, and innocent third parties are thus led into dealing with such apparent owner, they will be protected; or, where others are innocently induced to acquire rights in derogation of the secret or undisclosed claims of these who caused such action, the rights so acquired are secure, whether contested at law or in equity. Such rights do not depend upon the actual title or right or authority of the party with whom they have directly dealt, but are derived from an act of the real owner which precludes him from disputing against them the existence of the title or right or power which he caused or allowed to appear to be vested in the party making the sale.’ ”

See also First State Bank of Agua Dulce v. First Nat. Bank of Robstown, Tex.Civ. App., 282 S.W. 846 (writ dismissed) to the same effect.

We are of the opinion, and so hold, that since appellants delivered possession of the cattle in question and knowingly consented and agreed with Sherrod that he could brand the cattle in his own brand that they would be estopped to claim the cattle with respect to the appellee who in no manner had any notice of the claims of appellants prior to making the loan to Sherrod and accepting the mortgage to secure the payment of the notes evidencing the loan.

We have carefully considered all of appellants’ assignments of error and overrule each of them. Judgment of the trial court is affirmed.


author: LANGDON, Justice.

text:
    Pauline M. MINTON, Appellant, v. RIVERSIDE STATE BANK, Appellee.
    No. 16687.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 21, 1966.
    Rehearing Denied Feb. 18, 1966.

      Marvin Jones, and W. Newton Barnes, Dallas, for appellant.
    Campbell & Campbell, and William D. Campbell, Forth Worth, for appellee.
   LANGDON, Justice.

This is a suit on a note.

On February 28, 1964, M. L. Gray negotiated a Ten Thousand Five Hundred Dollar ($10,500.00) loan from the appellee, Riverside State Bank, and executed a note payable to it or order, dated February 28, 1964, due 120 days after date. The Bank then issued a $10,000.00 cashier’s check payable to A. B. Cass and Frank Malone and delivered $500.00 cash to Gray. The loan was made on the written guaranty of one, Ed Baker, with assurances by Gray and Baker that the money would be used in a real estate transaction.

On March 17, 1964, the appellant, Pauline M. Minton, and Gray appeared at the Bank with the $10,000.00 check payable to Malone and Cass, which Gray could not and did not cash. They explained to an officer of the Bank that the real estate transaction in whieh Gray was originally involved and for which he borrowed the money on February 28,1964, had not materialized. That the appellant and Gray had another and different deal working and they wanted to get the $10,000.00. The appellant offered to sign the note with Gray and be responsible for its payment. The Bank refused the request at the time of the first visit. After the appellant and Gray contacted the guarantor, Baker, and the Bank received information relative to the appellant’s financial responsibility, it agreed to accept return of the original $10,000.00 cashier’s check payable to Malone and Cass. After the appellant, pursuant to her promise, signed the note as a maker, the appellee, at the suggestion and request of appellant and Gray, accepted return of the original check and issued two additional checks, each payable to Gray, one in the amount of $7,000.00 and the other for $3,000.00. No part of the note has been paid.

The appellee Bank then brought this suit against the appellant and M. L. Gray as co-makers of the note in the principal sum of $10,500.00. M. L. Gray, though duly cited, did not file an answer. A default judgment was entered as to him. Appellant, Pauline M. Minton, answered, that she was not liable because she was an accommodation maker for the benefit of the Bank and there was no consideration for the execution of the note by her.

Trial was to the court. Judgment was rendered for the principal amount of the note, with interest and attorneys’ fees. Appellant, Pauline M. Minton, alone perfected this appeal. At her request the court made and duly filed findings of fact and conclusions of law.

The appellant contends that the court erred in concluding that on March 17, 1964, (1) the original transaction was either reopened or a novation resulted from the action of the parties; (2) the Bank changed its position in permitting the money to be used for a different purpose by different people; (3) the parties were in the same position as if a new loan and a new note had been executed and Mrs. Minton was signing as a maker; (4) defendant Gray’s position was changed in that he was to receive the money instead of Malone and Cass and use it for another purpose; (5) Gray and Minton having borrowed the money are liable as principals; (6) by reason of Min-ton signing the note a consideration passed from the bank to her; from the bank to Gray and from Gray to Minton; (7) appellant failed to sustain a plea of no consideration for her signature on the note.

In our opinion the findings and conclusions of the court are correct and have ample support in the record.

After leaving the bank on March 17,1964, the appellant Minton received the $3,000.00 check endorsed by Gray and negotiated it through a Dallas bank. Upon receiving the check she gave Gray her business card, upon the back of which she wrote: “3/17/64 —Rec from M. L. Gray $3,000.00 cashiers check from Riverside State Bank $10,000.00 Bank loan, made by Gray & Minton — Pauline M. Minton.”

Ordinarily it is immaterial from whom the consideration moves or to whom it moves. “Accordingly, it may be given by either the promisee or some other person to either the promisor or some other person. A payment of consideration to a third person, at the request of a party to the contract, is sufficient to support the agreement, though the party at whose request the payment is made receives no benefit therefrom.” 13 Tex.Jur.2d 176, § 44.

“A valuable and sufficient consideration for a contract may consist of either a benefit to the promisor or a loss or detriment to the promisee. * * * Accordingly, it is not necessary that the promisor receive a benefit under the agreement. On the contrary, if the promisee parts with some legal right or sustains some legal injury as the inducement for the agreement, this will be sufficient. Conversely, in the absence of any legal detriment to the prom-isee, the consideration will still be sufficient if it appears that a benefit under the agreement will accrue to the promisor. However, where there is both a benefit to the prom-isor and a detriment or loss to the promisee, the sufficiency of the consideration obviously cannot be successfully attacked.” 13 Tex.Jur.2d 178, § 46; see also 9 Tex.Jur. 2d 52, § 41.

All points of error are overruled and the judgment of the trial court is affirmed.


text:
    J. H. HILLIARD et ux., Appellants, v. HOME BUILDERS SUPPLY COMPANY et al., Appellees.
    No. 16684.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 14, 1966.
    Rehearing Denied Feb. 18, 1966.

      Jack Lovette, Bowie, for appellants.
    E. G. Jones, and Marvin F. London, Bowie, for appellees.
   LANGDON, Justice.

Plaintiffs Home Builders Supply Company, a partnership, sued J. H. Hilliard and wife Helen, upon a mechanic’s and ma-terialmen’s lien contract and a note given in payment of services to be rendered under the contract for construction of a lake house. It also sought recovery under a laborers’ lien for additional materials and extras furnished and changes made which were allegedly covered by the terms of said contract. A. H. Richardson, d/b/a Richardson Plumbing Co., and M. L. Smith, a carpenter in the same suit, sought recovery for certain labor, supplies and merchandise and to foreclose laborers’ lien. The Hil-liards denied the delivery of goods for changes and extras as additions to the contract, and relied primarily on their defense of homestead.

A Jury in answer to special issues found that (1) a written agreement was entered into for construction of the house for the sum and under the terms of the mechanic’s lien dated August 28, 1963; (2) the house was completed according to the terms of the agreement; (3) not answered pursuant to instruction; (4) it was not the homestead of defendants on August 28, 1963; (5) $7,981.74 would reasonably compensate for the materials furnished and money advanced for construction of the house.

By several points the appellants contend that there was no evidence to support the jury’s answers to any of the special issues submitted and particularly to the homestead issue (No. 4) and/or that such findings were against the great weight and preponderance of the evidence. That as to ,the homestead question the court erred in failing to find as a matter of law that the property was homestead and either direct a verdict for them or grant their motion for judgment non obstante veredicto.

The record reflects that the defendants told Carl Long they were going to build a lake cabin on Amon Carter Lake. Prior to the execution of the mechanic’s and materialmen’s lien while “figuring” with Mr. Long on construction of the house the defendants advised him that they had a home in Fort Worth where they were residing at the time. Long further testified that in the early part of August, 1963, the defendants told him they were living in Fort Worth and owned three houses there.

Mr. Hilliard identified his signature on a copy of a 1963 tax rendition over which he solemnly affirmed that the property therein described located in Fort Worth, Texas, was his residence homestead and that for the year 1963 he had not otherwise claimed a residence homestead in Texas. He paid the 1963 taxes based upon this rendition. Hilliard also signed an application to First Savings and Loan of Bowie, Texas, for a loan on August 24, 1963, in which he listed a Fort Worth address. There was additional evidence on the homestead question. We have examined the entire record and find ample evidence to support the submission of the homestead issue and all other issues and the jury’s answers thereto. None of the jury’s answers are against the great weight and preponderance of the evidence. We find no conflict in the answers.

“The burden of proof upon the issue as to homestead vel non rests upon the claimant. Every fact that is essential to the existence of the asserted homestead right must be established by him by evidence which is not of doubtful nature.” Vaughn v. Vaughn, 279 S.W.2d 427 (Texarkana Civ.App., 1955, ref., n. r. e.).

The defendants failed to meet the burden of proof upon the homestead issue. The mere fact that they may have actually resided in the house over weekends or at other times of longer duration standing alone does not convert it to homestead. The homestead exemption is a right conferred by law upon the head of a family who must make the dedication. The court may not assume facts to support a claim of homestead against the validity of an existing debt or lien. Balcomb v. Vasquez, 241 S.W.2d 650 (El Paso Civ.App., 1951, ref., n. r. e.).

The plaintiffs sought recovery under a written mechanic’s and materialmen’s lien contract and to foreclose its lien thereunder. There was ample evidence offered in support of the execution of the contract and, the jury believing so, found that such an agreement was entered into; that the house was completed according to its terms and that the plaintiffs were accordingly entitled to payment of $7,981.74. The defendants may not defeat these findings which have ample support in the evidence by citing isolated statements of witnesses or by contending there was no meeting of the minds, that the burden of proving the contract was not met or that such contract was made solely to help defendants obtain a loan or that the recovery was based on quantum meruit and is not supported by pleadings. The recovery was based upon the contract and no recovery was sought nor founded upon quantum meruit.

There was testimony that the contract in question was not intended to be a “turn key contract”. Money was advanced under the contract for labor and materials were furnished. The defendants made numerous changes in the house each of which increased the cost. In the application to First Savings and Loan, Mr. Hil-liard listed himself as contractor. More than $7,000.00 was furnished under the contract. Authorized alterations and extras even on a homestead are valid and binding and come within the provisions of the original improvement lien even though the cost of improvements is increased. Turbeville v. Book, 226 S.W. 814 (El Paso Civ.App., 1920, dism.).

Under the evidence the contract in question was completed in that the $7,000.00 agreed upon plus an additional $981.74 was furnished as agreed. The numerous changes made by the defendants increased the cost of the house and it was never completed because they were unable to obtain additional credit and not because of any failure of the plaintiff to fully comply with the requirements imposed upon it by the terms of the contract in question.

There is nothing in the record to reflect that the trial amendments complained of by the defendants were not timely filed by plaintiffs pursuant to the rulings of the court.

The point of error relating to improper argument is without merit.

“ * * * the proper way to preserve objections to improper argument is by bill of exception rather than by bringing up the court reporter’s record of the argument as a part of or supplement to the statement of facts, unless council agree on the latter method.” 3 Tex.Jur.2d 706, § 457.

The record in this case contains neither a bill of exception nor the court reporter’s recording of the argument. Thus, there is no basis upon which this court may determine the merits of this point.

The liens in question were perfected and filed pursuant to Art. 5453, Vernon’s Ann.Tex.St. Defendants did not deny the validity of the liens or question the accuracy as to the amounts thereof. The liens were questioned solely on the basis of the homestead character of the property. We have previously disposed of this question. Since the land in question was not homestead the wife’s joinder in executing the liens was unnecessary. The execution of the lien is not denied. The proper acknowledgment of the husband’s signature is not essential to the validity of the contract between the parties and whether or not it was properly recorded does not affect its admissibility as evidence.

We find no error in the action of the court in (1) failing to instruct the jury not to consider testimony which was objected to and sustained by the court since the appellants did not request the court for such an instruction or direct the court’s attention to its failure to so instruct, (2) in admitting testimony relative to the rendition of defendants’ property in Fort Worth, Texas, in 1963 for taxes.

We agree with the appellant that it was error for the court to award attorneys’ fees in a case tried before a jury. Article 2226, V.A.T.S., provides for a reasonable amount as attorneys’ fees in collection of claims of the nature here involved, however, it is the province of the jury to make this determination. No issue thereon was requested or submitted. There was no evidence as to the amount or reasonableness of the attorneys’ fees and there were no stipulations relating thereto. The lien and note involved provided only reasonable attorneys’ fees rather than any definite percentage or amount.

“The general rule is that it is the province of the jury to determine what is the reasonable value of an attorney’s services, and that the jury may take into consideration the facts before them in relation to the services rendered, as well as the estimates of their value made by attorneys who testified. (Authorities cited.)” Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S. W.2d 155 (1945),

“Where a statutory attorney’s fee is recoverable, the amount to be allowed is determined in accordance with the general practice for determining questions of fact. Consideration should be given to the difficulties and importance of the case, the amount of work and labor performed, the amount involved in the litigation, the benefits to the client and similar facts. The party seeking recovery of a fee must present evidence to show that the amount demanded by him is a reasonable amount.” 7 Tex.Jur.2d 183, § 119.

“ * * * the judge can fix the attorneys’ fees, even though there is no testimony from which to determine the value of the attorneys’ services. * * * But, in a trial to a jury there must be evidence of what services the attorney had rendered, and of the reasonable value of such services, * * May v. Donalson, 141 S.W.2d 702 (San Antonio Civ. App., 1940, no writ hist.).

The parties are in agreement that the judgment should be reformed so as to delete the personal judgment against the defendant, Helen Hilliard, since her separate property may not be subjected to this community obligation under the facts of this case.

The points of error relating to attorneys’ fees and the personal judgment against Mrs. Hilliard are sustained. All other points of error are overruled.

The judgment of the trial court is reformed so as to delete therefrom any allowance for attorneys’ fees and the personal judgment against Mrs. Hilliard and as reformed is affirmed.