author: FANNING, Justice.

text:
    Lushion KIRTLEY, Appellant, v. Bobbie KIRTLEY, Appellee.
    No. 7844.
    Court of Civil Appeals of Texas. Texarkana.
    July 11, 1967.
    Rehearing Denied Aug. 8, 1967.

      Henry J. Novak, Jr., Emmett Colvin, Jr., F. T. Gauen, Dallas, for appellant.
    Yale B. Griffis, Dallas, for appellee.
   FANNING, Justice.

The questions involved on this appeal relate to the issue of property adjudication. The divorce granted appellee was not appealed from. Appellant has appealed from the property adjudication feature of the riage.

The parties were married on June 15, 1947; this marriage was terminated by divorce decree dated October 10, 1966. Appellant owned two lots and houses on Peachtree Road in Balch Springs, Texas, and a rifle and a shotgun, prior to his marriage to appellee, and these items were adjudicated by the trial court as the separate property of appellant and awarded to him as such.

A number of parcels of real estate, consisting of houses and lots, were acquired during the marriage. Also certain personal properties were acquired during the marriage.

Appellant testified and contended to the effect that through the years 1948-1959, he purchased eleven pieces of the real estate involved herein from $35,000.00 cash which he acquired by gift from his grandfather prior to his marriage.

The trial court submitted three special issues to a jury. Issues 1 and 2 were not answered. Issue No. 3 was answered “No”. We quote from the transcript in this regard as follows:

“SPECIAL ISSUE 1
“Do you find from a preponderance of the evidence that J. L. Kirtley, deceased, during his lifetime gave Lushion Kirtley the sum of $35,000.00 cash?
ANSWER: ‘Yes’ or ‘No’.
ANSWER: _
“If you have answered the above special issue ‘yes’, then you will answer the following Special Issue, otherwise do not answer the same.
“SPECIAL ISSUE 2
“Do you find from a preponderance of the evidence that Lushion Kirtley co-mingled these funds with other community funds?
ANSWER: ‘Yes’ or ‘No’.
ANSWER: _
“SPECIAL ISSUE 3
“Do you find from a preponderance of the evidence the defendant, Lushion Kirtley, purchased the items of real property, other than the property on Gaylord Street and Transit Street, with his personal funds, that is with funds accumulated before his marriage or funds acquired after his marriage through a gift?
“ANSWER: ‘Yes’or‘No’.
“ANSWER: ‘No’.”

The trial court held to the effect that the eleven pieces of real estate in controversy were community property and awarded six of the eleven pieces of real property in question to appellee, and the other five to the appellant, and the trial court also adjudicated with respect to the partition of the remaining community property. Also as hereinbefore stated the trial court awarded the two pieces of real estate on Peach-tree Road in Balch Springs, Texas, and a rifle and shotgun, to appellant as his separate property.

Appellant presents three points on appeal, wherein he contends to the effect that the verdict of the jury is contrary to the facts, etc., that the trial court erred in not granting a mistrial by reason of appellant’s counsel injecting certain harmful hearsay statements relating to a material issue, and that the trial court erred in commenting on the weight of the evidence in a manner highly prejudicial to the appellant.

Appellant’s testimony with respect to the alleged $35,000.00 cash gift from his grandfather prior to his marriage was briefly as follows: That about the spring of 1946, his grandfather, J. L. Kirtley, (now deceased), who lived near Sulphur Springs, Texas, who was then about 78 years of age, gave him $35,000.00 cash in a sack, and that he buried this money in a metal box on his home property in Dallas and re-buried it at times when he moved; that when he wanted to get money to buy the properties in question he would dig up the metal box, get the cash out of it, and would pay for the property in cash; he testified that he bought the eleven pieces of property in question from this cash hoard. We quote from the re-cross-examination of Mr. Kirt-ley in part as follows:

“Q. Mr. Kirtley, I understand that from your testimony on direct examination that you say your grandfather gave you $35,000.00 in liquid cash, is that your testimony sir?
A. Yes, sir.
Q. And he gave it to you in 1946?
A. Yes, sir.
Q. What other estate did your grandfather have? You were there every weekend you say. What other estate did your grandfather have at that time when he gave you the $35,000.00?
A. He had nothing else that I knew of at that time, other than these farms—
Q. Well, how many farms did he have at that time, Mr. Kirtley?
A. At the time he gave me the money ?
Q. Yes, sir.
A. I don’t know that he had any.
Q. How do you account for the fact, Mr. Kirtley, that the instrument here that has been introduced in evidence shows an infinitesimal part of the evaluation of this man’s estate less than a year later ? (Note. The instrument referred to was the inventory and appraisement of the Estate of J. L. Kirtley, deceased).
A. I understand he gave everything away before he died.
Q. And your testimony is before you married Mrs. Kirtley, your grandfather had given you $35,000 in liquid cash?
A. Yes, sir.
Q. And now, what other children — how many grandchildren did Mr. J. L. Kirtley have other than you?
A. I don’t know exactly, but he had several.
Q. He had about 18, didn’t he?
A. I would say so.
Q. And he had about 18 other grandchildren, other than you. Can you think of one grandchild he ever gave any other money to other than yourself?
A. I wouldn’t know.
Q. Now, where were you when Mr. J. L. Kirtley gave you this $35,000 in cash?
A. I was there at his home visiting.
Q. And what did he say to you before he gave you this money?
A. Best I can remember, he said T am going to give you something.’
Q. What did he do then, when he said, T am going to give you something’ ?
A. Handed me the sack.
Q. He handed you the sack. Did you open the sack at that time ?
A. No, sir.
Q. When was the first time that you opened that sack?
A. I don’t recall exactly, seems like I waited till I got home.
Q. Do you mean till you got back to Dallas ?
A. Yes, sir.
Q. What denominations was this money in ?
A. It was in $500.00 and $100.00 bills.
Q. Which was most, more $500.00 or more $100.00s?
A. Seems to me like there was more $100.00 bills.
Q. Did you say anything to anybody about this money ?
A. No, sir.
Q. Never told anybody about it?
A. No, sir.
Q. Are you sure?
A. My uncle — and before I left Sul-phur Springs I showed it to him and two other fellows, but I don’t remember who the other fellows were. But I did show it to him.
Q. You did show him the money?
A. Yes, sir.
Q. Did you take it out of the sack?
A. No, sir.
Q. You just showed him the sack?
A. Showed him the sack?
Q. Did you open the sack up so he could see what was in it ?
A. Yes, sir.
Q. What is his name?
A. Woodrow Kirtley.
Q. Are you familiar with the fact that I saw him after I took your deposition and he denied that?
MR. GAUEN: Now, Judge, I object to anything about that. He has had Woodrow Kirtley under subpoena.
THE COURT: I sustain the objection. The jury will not consider it.
MR. GAUEN: Judge at this time I move for a mistrial on something like that. A statement like that from this lawyer to this man’s denying it. Its very prejudicial.
THE COURT: I will overrule the motion for a mistrial. Mr. Griffis, I am sure you realize that is improper conduct on your part, attempting to get that into evidence that way. The proper way is to bring Mr. Woodrow Kirt-ley here. Proceed.
MR. GRIFFIS: Your Honor, I apologize if I' have proceeded against Your Honor’s wishes—
THE COURT: It’s not against my wishes, it’s just not proper.
MR. GRIFFIS: Yes, sir, thank you. I do want to apologize, Your Honor.
THE COURT: All right.
Q. (By Mr. Griffis). Now, you say you counted that money in your automobile ?
A. Yes, sir, seems like-1 did.
Q. What did you do with it then?
A. I buried it.
Q. Where did you bury it?
A. Out in the back yard.
Q. At what house?
A. Where I lived.
Q. Where did you live, Mr. Kirtley?
A. 3001 Peach Tree Rd.
Q. And what did you bury it in ?
A. Seems like it was a metal box, a toolbox.
Q. Have you still got that box?
A. No, sir, I couldn’t find it. I did have it in the garage, but I couldn’t find it.
Q. Did you tell Mrs. Kirtley about this money or this box when you married her?
A. No, sir.
Q. But you knew any time you wanted to go out there and dig that box up you knew exactly where to dig?
A. That’s right. I didn’t have any difficulty in finding the location.
Q. Now, you went out there at night, did you Mr. Kirtley, when you wanted to get money out of the box?
A. Yes, sir.
Q. Did you have any sort of a flashlight or anything to dig that box up at night?
A. No, sir.
Q. You went out there in the dark and dug it up?
A. Yes, sir.
Q. And did you have any flashlight to guide you about how much money you were getting out of that box?
A. No, sir, I knew how much.
Q. And you knew the amount of money that you were getting out of the box even without a flashlight, is that right?
A. Yes, sir.
Q. How much did you usually get out of that box?
A. It depended on how much I needed, anywhere from $500.00 to a $1,000, sometimes $2,000.00.
Q. You would get it out in liquid cash?
A. Yes, sir.
Q. Then what would you do with that money when you got it out of the box?
A. Put it in my pocket.
Q. Then what would you do with it?
A.' Well, I spent it as I needed to buying houses, buying property.
Q. Would you put that money in the bank?
A. No, sir.
Q. You just put that much liquid cash in your pocket and paid for these houses and whatever else you needed out of this liquid cash, is that right ?
A. That’s right.
Q. Your testimony is you never said anything to anybody about this cash other than your uncle and those two men?
A. That’s right.
Q. And after you got the last amount of money out, then what did you do with that box, Mr. Kirtley?
A. I put it back out there in the garage.
Q. On Transit Street?
A. On 1920 Gaylord.
Q. After you moved to Gaylord, is that right?
A. Yes, sir.
Q. Well, did you bury the money for the third time on Gaylord Street?
A. Yes, sir.
Q. All right, you buried the money three times, on Peach Tree, Transit and Gaylord, is that right?
A. Yes, sir.
Q. How much money did you have when you buried the box on Gay-lord Street?
A. I don’t remember.
Q. Well, approximately?
A. I don’t remember.
Q. Well, how long all together would you say that money stayed in the ground ?
A. Well, it stayed in the ground from 1946 to 1959.
Q. (By Mr. Griffis). Mr. Kirtley, I understood you to say a few minutes ago that you would take this money out of the box and put it in your pocket and leave it in your pocket and then make these expenditures out of your pocket to buy the real estate and use it for repairs, is this true?
A. Most of the time, yes, sir. * * *”

Appellant, Mr. Lushion Kirtley, did not produce his uncle, Mr. Woodrow Kirtley, as a witness, to corroborate his testimony as .to the alleged gift, nor did he produce any other witness to corroborate his testimony as to the alleged gift. He introduced in evidence income tax reports of himself and wife and testified and gave his version of what monies he and his wife had received and what had been spent. According to his testimony, if it had been fully believed by the jury, he could not have bought all of the properties in question without having received monies other than he claimed he and his wife had earned from the date of marriage through 1959.

On the other hand, appellee Mrs. Bobbie Kirtley, testified to the effect that since the date of her marriage to Mr. Kirtley, he demanded and received nearly all of the money she earned; she further testified to the effect that Mr. Kirtley was very parsimonious about the spending of money, buying few groceries, not allowing her to spend money for medical and dental work she needed; that she made her own clothes from remnants she purchased cheaply; that when she married Mr. Kirtley he only had the Peachtree Road properties and less than $100.00 in cash; that no one gave appellant any property after their marriage; that no one gave him any money, and that all the property they accumulated was acquired since the date of the marriage.

Article 4619, Sec. 1, Vernon’s Texas Civil Statutes, provides in part as follows: “ * * * all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved. * * * ” The plain wording of said statute creates a rebuttable presumption that all property possessed by a husband and wife when their marriage is dissolved is their community property and imposes the burden upon one asserting otherwise to prove the contrary by satisfactory evidence. Tarver v. Tarver, Tex. 1965, 394 S.W.2d 780; Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226, 227 (1947); Chapman v. Allen, 15 Tex. 278, 283 (1885).

Further the general rule is that to discharge the burden imposed by the statute, a spouse, or one claiming through a spouse, must trace and clearly identify property claimed as separate property. See Tarver v. Tarver, supra, and authorities cited therein.

Since the eleven pieces of real estate in controversy were acquired during the marriage the presumption arises that they were community property. The burden of proving that such property was not community but separate property of the husband was upon the husband appellant, and he was required to prove this by “satisfactory evidence”. The only evidence -produced by appellant was his own testimony and he produced no corroborating witnesses. Generally the testimony of an interested party, when not corroborated, does not conclusively establish a fact even when uncontradicted, but only raises an issue of fact for a jury. Texas Creosoting Co. v. Sims, Tex.Civ.App., 113 S.W.2d 227, error dismissed (1938). Thus the general rule is that the testimony of an interested witness, such as a party to the suit, though not contradicted, does no more than raise a fact issue for the jury. There is an exception to this rule, which is that where the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies, and there are no circumstances tending to cast suspicion thereon, it is taken as true as a matter of law. Cochran v. Wool Growers Central Storage Company, 140 Tex. 184, 166 S.W.2d 904 (1952). Clearly this exception is not applicable to the case at bar.

In a jury case, it is the function of the jury to determine the credibility of the witnesses and the weight to be given their testimony. The jury, by their response to Special Issue No. 3, apparently did not believe that appellant purchased the eleven items of property in question with his personal funds, that is, with funds accumulated before his marriage, or funds acquired after his marriage through a gift. The burden of proof on Special Issue No. 3 was on appellant — he did not persuade the jury on this issue by his evidence. After carefully reviewing the entire record in this cause in the light of the rules of law enunciated by the Supreme Court of Texas in the case of In re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), we hold that the jury’s finding to Special Issue No. 3 was not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. All of appellant’s contentions under his point 2 are overruled.

Portions of the testimony of appellant Lushion Kirtley, hereinbefore quoted, also show in detail the circumstances surrounding the asking of a clearly improper question by appellee’s attorney, referring to Woodrow Kirtley, who was supposed to have been shown the sack of money by appellant Kirtley, and the ruling and instruction of the court thereon is also herein-before shown in detail. The improper question was as follows: “Are you familiar with the fact thát I saw him after I took your deposition and he denied that?” As shown by the record the trial court sustained the objection of appellant’s attorney and instructed the jury not to consider it. While the question was clearly improper, it was never answered, the trial court promptly sustained the appellant’s objection, instructed the jury not to consider it, and appellee’s attorney apologized for asking the question. After carefully considering the entire record as a whole it is our view that the trial court did not abuse its discretion in refusing to grant a mistrial by reason of said matter herein complained of, and that such matter does not constitute reversiblé error considering the entire record in this cause. Rule 434, Texas Rules of Civil Procedure. Appellant’s point 1 is overruled.

Appellant’s point 3 complains of certain comments made by the trial court. No objections were made by appellant to such comments. We have examined the comments and hold that appellant’s point 3 does not present reversible error under the record in this cause. Appellant’s point 3 is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    S. C. BYARS et ux., and Vernice Wilkerson et ux., Appellants, v. T. L. RICHARDSON et ux., Appellees.
    No. 6875.
    Court of Civil Appeals of Texas. Beaumont.
    June 29, 1967.

      R. W. Fairchild, Nacogdoches, for appellants.
    Perkins & Perkins, Lufkin, for appellees.
   PARKER, Justice.

S. C. Byars, et ux, and Vernice Wilkerson, et ux, sued T. L. Richardson, et ux, in the district court of Angelina County, Texas, for damages arising out of an automobile collision, which occurred November 27, 1964. The jury found it was an unavoidable accident and defendants were not negligent on the six theories of primary negligence submitted to it. On the Jury verdict, judgment was rendered that the plaintiffs take nothing. The parties will be designated as in the trial court.

The answers of the jury to the numbered special issues are as follows:

1. Mrs. T. L. Richardson did not fail to keep a proper lookout.
3. Mrs. T. L. Richardson did not fail to make such an application of her brakes as would have been made by a person of ordinary prudence under the same or similar circumstances.
5. In attempting to pass the automobile of Vernice Wilkerson, Mrs. T. L. Richardson was not negligent.
7. Mrs. T. L. Richardson was not driving at a greater rate of speed than a person of ordinary prudence would have driven under the same or similar circumstances.
9. Mrs. T. L. Richardson did not turn her automobile to the right immediately before striking plaintiffs’ automobile.
12. Mrs. T. L. Richardson was operating her car without the use of headlights.
13. Operating the car without headlights was not negligence.
15. It was an unavoidable accident.
16. The damages to Mrs. Belle Byars was in dollars and cents “nothing”.
17. Reasonable and necessary medical expenses and doctor’s care and attention furnished to Mrs. Bell Byars to the time of trial would he fairly and reasonably compensated by the sum of $500.00.
18. $7,400.00 would fairly and reasonably compensate Mrs. Belle Byars for the reasonable and necessary medical expenses and doctor’s care and attention which she will in reasonable probability require in the future in connection with the treatment of the injuries sustained by her in the collision.
19. The sum of money which would fairly and reasonably compensate Mrs. Vernice Wilkerson for her damages directly and proximately caused by the injuries sustained by her in dollars and cents is “nothing”.
20. $25.00 would fairly and reasonably compensate Mrs. Vernice Wilkerson for the reasonable and necessary medical expenses and doctor’s care and attention furnished to the time of trial in connection with the treatment of her injuries.
21. No dollars and cents would fairly and reasonably compensate Mrs. Vernice Wilkerson for the reasonable and necessary expenses and doctor’s care and attention which she will in reasonably probability require in the future in connection with the treatment of her injuries.

Plaintiffs contend in their points of error 1 and 2 the trial court erred in overruling their motion for new trial because the answers of the jury to special issues Nos. 7 and 15 are each so contrary to the great weight and preponderance of the evidence that they are clearly wrong and manifestly unjust. In considering these two points of error all the evidence and record will be considered by this court.

This collision occurred about 5:00 p. m. on a rainy day on the highway between Lufkin and Wells, Texas. The four plaintiffs were in a Ford operated by Mr. Vernice Wilkerson. For a period of time prior to the collision, plaintiffs’ vehicle was followed by a cookie truck which was followed by the Ford operated by Mrs. T. L. Richardson. Two daughters of Mrs. Richardson were in the car with her. The daughters did not testify upon the trial. The older daughter lived in Irving, Texas. The younger, 14 years old at time of trial, lives with her mother.

Vernice Wilkerson testified:

(1) That the rain was intermittent, that is, it would rain real hard then slack up. It was raining very hard with lightning just prior to and at the time of the collision.
(2) That there was not much traffic.
(3) That his speed shortly before the accident was 35, maybe 40, miles per-hour, had glanced at his speedometer.
(4) He was just driving along when suddenly his car was hit and knocked about two carlengths off the road.
(5) He heard Mrs. Richardson tell the Highway Patrolman she was driving 65 miles per hour.
Mrs. T. L. Richardson testified:
(1) That she was familiar with the highway where the collision occurred, having traveled it frequently.
(2) That it was raining but not very hard and, at the time of the collision, the rain “* * * had slacked up. * * *»
(3) That she followed the plaintiff for some time going perhaps 40 miles per hour and never over 45 miles per hour.
(4) That she was going, she imagines, around 45 miles per hour as she started around the plaintiffs’ vehicle.

The cookie truck traveling in the same direction as the other two cars pulled off the highway onto the shoulder at the crest of a hill. It was then that Mrs. Richardson saw the Wilkerson vehicle for the first time. It was then about four car-lengths or more ahead of her in its proper lane traveling in the same direction she was. Its speed was about 40 miles per hour; that it was raining, but not very hard, and at the time of the collision the rain had slacked up. She had her parking lights on but not her headlights. She followed the plaintiffs’ automobile for some time going perhaps 40 miles per hour. She pulled up closer to the Wilkerson car and followed it until the “no passing” marks had been parsed and she could see the way was clear, then going down the hill she accelerated her car to about 45 miles per hour. She turned to the left to go around the plaintiffs’ vehicle when about one and a half carlengths behind it. Immediately, her vehicle went into a spin. She did the best she could “to wrestle it down”, but did not apply her brakes. In the spin the front bumper on the right side of her car struck the Wilkerson car about the driver’s door. At no time was she traveling in excess of 45 miles per hour; never at anytime on the trip to Wells did she drive 65 miles per hour. She didn’t think she ever drove 60 miles per hour. When she pulled out to pass the Wilkerson car, its rear end was about one and a half carlengths from the front of her car. She estimated she spun around at least twice before she finally regained control and pulled, over to her right side of the road to the shoulder. The Wilkerson car was behind her with its front wheels on the shoulder and its rear wheels in the mud. The Wilkerson vehicle did nothing to cause the collision. She talked to the Highway Patrolman at the scene.

James Southard, the Highway Patrolman, testified:

(1) That he did not determine whose fault the accident was as this was not his job.
(2) That his opinion as to what would be a safe speed was based on the assumption that it was raining heavily at the time of the collision.
(3) That the rain could have slacked off at the time of the collision.
(4) That the speed limit during the day time on this stretch of highway was 70 miles per hour.
(5) That this accident occurred in the afternoon.

He also testified the accident happened about 5:00 p. m. He got to the scene about 5:30 p. m. He talked with Mrs. Richardson and Mr. Wilkerson at the scene. Both of them told him it was raining heavily at the time of the collision. Mrs. Richardson said that as she was headed north she attempted to pass, lost control of her car and spinning came back into the east lane and hit Wilkerson’s car on its left side. Made up his original notes at the scene, then from those notes made his report to Austin. On his report, he had 65 miles per hour as Mrs. Richardson’s speed and assumes she told him that, as that is where he got that information. He has Wilkerson’s speed at 40 miles per hour. Believes he got the speed of Mrs. Richardson’s car from Mrs. Richardson, but isn’t sure. Could have got it from someone else. Doesn’t now remember her telling him she was going 65 — she may not have told him anything. He talked to the driver of the cookie truck, who was an eye witness, who told him how the accident happened and of the speed of Mrs. Richardson’s car. From what he and Mrs. Richardson told him, placed her speed at 65 miles per hour.

(At this point the trial court, on objection, instructed the jury not to consider any of Southard’s testimony as to the speed of Mrs. Richardson’s car. The court then recessed for 15 minutes. After the recess, Southard testified further, as follows:)

There was no reason for him to estimate speed in this collision because it was in line with what the drivers told him. Believes Mrs. Richardson told him of her speed; Mr. Wilkerson was present when she did. She said she was traveling 65 miles per hour, and on the basis of that statement by her he made his report of her speed. Nothing happened at the recess to refresh his memory. He just thought about it and remembered that Mrs. Richardson did tell him she was traveling 65 miles per hour. He is sure that she did. There was no difference between what Mrs. Richardson and the cookie truck driver told him of Mrs. Richardson’s speed. Mrs. Richardson told him her car spun around two or three times before it hit the other car. In his opinion, the maximum safe speed on the highway at the point and time involved would have been 40 to 50 miles per hour.

The driver of the cookie truck did not testify. No explanation is given as to why he was not a witness.

Points of error 1 and 2 are overruled.

Plaintiffs contend :

“The trial court committed material and prejudicial error in failing and refusing to grant plaintiffs’ motion to excuse from the jury panel the juror Glenda Dupree because the voir dire examination of such juror revealed that she was not a freeholder in the state or a householder in the county or the wife of a householder in the county and she was therefore not a qualified juror.”

The court reporter took down the voir dire examination of the jury panel in this case. No challenge was made of the qualifications of the juror Glenda Dupree. Challenges were made as to the qualifications of other jurors. Upon the motion for new trial the only testimony in the record as to the plaintiffs’ challenge of the juror Glenda Dupree are statements made by one of plaintiffs’ counsel to the effect that to the best of his knowledge he brought this to the attention of the court, some statement was said or something that the court was satisfied, and to the best of his knowledge he did except to the court’s ruling but he didn’t believe he did this in open court. The trial judge overruled the motion for new trial after a full hearing. In the face of the trial court’s implied finding that either Glenda Dupree was qualified as a juror or that there was no proper challenge made to her as being a qualified juror, or both, this third point of error of plaintiffs is overruled. Tumlinson v. San Antonio Brewing Ass’n, 170 S.W.2d 620 (Tex.Civ.App., ref’d, no merit).

We now consider plaintiffs’ points of error dealing with jury misconduct. Plaintiffs contend there was jury misconduct in three points of error:

4. The trial court committed material and prejudicial error in overruling plaintiffs’ amended motion for a new trial because during the deliberations of the jury some of the jurors stated to the other members of the jury in substance that the defendants were not protected by liability insurance and would have to pay the damages found by the jury.
5. The trial court committed material and prejudicial error in overruling plaintiffs’ amended motion for a new trial because during the deliberations of the jury some of the jurors stated to the other members of the jury in substance that in their own personal experiences if the road was slick an automobile would be liable to go into a spin at either a slow or a fast speed upon a proper and normal application of the brakes.
6. The trial court committed material and prejudicial error in overruling plaintiffs’ amended motion for a new trial because several of the jurors were prejudiced and stated during the deliberations of the jury that they did not believe in anyone bringing a suit against another for money damages.

At the hearing on the motion for new trial some of the jurors testified: They first selected a foreman in the person of Mr. Coleman; the charge of the court was read; beginning with special issue 1, the special issues were answered in order unless they could not agree upon a particular issue, in which event they skipped over this issue and moved to the next. They agreed upon and answered the issues numbered below when first considered in order, to-wit: Nos. 1, 5, 9, 12, 13 and IS. Some of the jurors discussed their experiences in driving automobiles upon slippery or slick streets or highways. There was a discussion as to whether an automobile would be prone to go into a spin on such a road at either a slow or a fast speed upon a proper and normal application of the brakes. The undisputed evidence in this case is that Mrs. Richardson did not try to put on her brakes while in the spin. At first the jurors disagreed as to whether a car would go into a tailspin on a slippery road when the brakes were applied, whether the car was going at a slow or a fast rate of speed. Passing this issue, they returned to it and agreed that Mrs. Richardson did not fail to make such an ap-lication of her brakes as would have been made by a person of ordinary prudence under the same or similar circumstances. It is undisputed the car was spinning without brakes having been applied. Jurors have a right to use their common knowledge and experience in life in weighing the evidence before them. The evidence on the hearing on motion for new trial was they made general reference to topics of common knowledge as to the proper way to drive an automobile on a slippery road and whether or not to use the brakes in a spin. No individual juror testifying could remember any individual juror relating any particular personal experience. None of the jurors had any special knowledge on the subject of driving an automobile under such circumstances. The statements made by the jurors amounted to nothing more than a layman’s discussion of the weight to be given to the evidence before the jury. Point of error 5 is overruled. Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62, 63-64 (1945).

Some comment was made by some juror that some persons not named sued for money on claims where they were not entitled to anything. There is nothing in this record to show that any juror was prejudiced against returning a verdict for plaintiffs nor is there any evidence as to which juror made the above statement. There is no testimony showing that such a statement influenced any answer to any issue. Plaintiffs had the burden of proving that misconduct did occur and that such conduct resulted in injury to plaintiffs. This burden plaintiffs have failed to discharge. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943). Point of error 6 is overruled.

After special issues 1, 5, 9, 12, 13 and 15 were answered, some of the jurors wondered if the defendants had liability insurance. No juror could recall any evidence as to liability insurance. The juror Terral “believed” some unidentified juror thought since it was not mentioned, the defendants did not carry insurance. The statement was made that if they did not have such insurance, how would you like to have “ * * * your wife have a wreck and you had to foot the bill or something like that.” Mr. Terral didn’t remember what the statement was. The juror Glenda Dupree didn’t hear it. She testified that probably everyone was talking at once, there was quite a discussion of damages, as that was the only issue that they really debated. In these discussions the foreman of the jury admonished it to answer the questions as they were told to answer them. The juror Ter-ral also admonished the jury and said: “ * * * we would have to stay with the evidence we heard there and not what we think. * * * ” Everyone verbally agreed with him and no one questioned his position in that respect.

The discussion of liability insurance appears to have been casual, somewhat conflicting and hulous. To mention insurance was improper. Under Texas Rules of Civil Procedure 327, this court must decide whether this error is of such a nature as to require a reversal of the judgment of the trial court. Viewing the entire record, including the evidence on the main trial, the evidence on the motion presenting misconduct showing the order in which the special issues were answered on negligence and unavoidable accident, it does not reasonably appear that injury probably resulted to the plaintiffs. Point of error No. 4 is overruled. Rules 327, 434, T.R.C.P.; Barrington v. Duncan, supra; Rojas v. Vuocolo, 142 Tex. 152, 177 S.W.2d 962; Lands v. York Oil Corp., 280 S.W.2d 628 (Tex.Civ.App.1955, n. r. e.).

Judgment of the trial court affirmed.


author: KLINGEMAN, Justice.

text:
    Chester H. RUBNER, Jr., Appellant, v. Derwood O. KENNEDY, Appellee.
    No. 14592.
    Court of Civil Appeals of Texas. San Antonio.
    July 3, 1967.
    Rehearing Denied Sept. 6, 1967.
    Hobart Huson, Jr., San Antonio, for appellant.
    Maverick, Tynan & Gochman, San Antonio, Warren Burnett, Odessa, for appellee.
   KLINGEMAN, Justice.

This is a suit for damages arising out of an automobile collision which occurred in the State of Louisiana between an automobile owned and operated by appellant, Chester H. Rubner, Jr., and one being driven by appellee, Derwood O. Kennedy. Trial was to a jury who found that appellant failed to keep such a lookout as an ordinarily prudent person would have kept under the same or similar circumstances; that such failure was a proximate cause of the collision, and that appellee was entitled to recover the sum of $45,000.00 as his damages.

Appellant complains of seven points of error, four of which pertain to the element of damages. His first two points of error are as follows:

“FIRST POINT
(a) The Court erred in submitting to the jury for consideration as an element of damages ‘loss of earnings’ by Appellee in the past, as there was no evidence to warrant the submission of such element.
(b) The Court erred in failing to disregard the finding of the jury as to damages and grant Appellant a new trial, as any money allowed for ‘loss of earnings’ was against the overwhelming weight and preponderance of the evidence.
SECOND POINT
(a) The Court erred in submitting to the jury for consideration as an element of damages ‘diminished or lessened earning capacity’ by Appellee in the future, as there was no evidence to warrant the submission of such element, and, in particular, no evidence as to Appellee’s earnings prior to injury.
(b) The Court erred in failing to disregard the finding of the jury as to damages and grant Appellant a new trial, as any money allowed for ‘diminished or lessened earning capacity’ was against the
overwhelming weight and preponderance of the evidence.”
The damage issue submitted to the jury was as follows:
“What sum of money if paid in cash now, if any, do you find from a preponderance of the evidence would fairly and reasonably compensate the plaintiff for the injuries, if any, proximately caused by the collision in question ?
Answer by stating the amount, if any, in dollars and cents.
We, the jury, answer: Forty Five Thousand Dollars No/Cents.
In arriving at the amount of money, if any, to the foregoing question, you may take into consideration the following and none other:
A. Physical pain and suffering and mental anguish, if any, which the plaintiff has suffered in the past from the time of the collision in question down to the time of this trial;
B. Physical pain and suffering and mental anguish, if any, which the plaintiff will in all reasonable probability suffer in the future as a direct and proximate result of the collision in question;
C. Loss of earnings and physical impairment, if any, which the plaintiff has suffered in the past from the time of the collision in question down to the time of this trial;
D. The diminished or lessened earning capacity, if any, and physical impairment, if any, which the plaintiff will suffer and sustain in all reasonable probability in the future as a direct and proximate result of the collision in question.”

The testimony is undisputed that appel-lee suffered physical injury as a result of the collision and some degree of disability. It is undisputed that he was unable to work for a period of time, but there is a dispute as to his present ability to work. Appellee testified that he is not able to work, and there is some medical testimony in support of his contention, but there is also medical testimony that there is no reason why he could not pursue the same profession and vocation that he had pursued prior to the trial, and do work such as a laboring man might do. Appellant’s first and second points of error, however, are predicated upon his contention that irrespective of whether appellee was completely or only partially disabled, no evidence was adduced to show what his earnings were prior to the accident, and no testimony upon which a jury could determine any diminished or lessened earning capacity.

Appellee testified in some detail as to the various types of work he had done. He had worked as a welder, as an electrician’s helper; had worked in shipyards, and as a carpenter. He had served in the Military Service, had been employed as a mechanic, and had been plant manager for a business. However, there is no testimony whatsoever in the record as to what appel-lee, or any other person similarly employed, had earned in any of these avocations. At the time of his injury, he was self-employed and was in the business of building houses for about one and one-half years. In such business he did some of the work himself on the houses he built. The only testimony as to his earnings in such house-construction business was by appellee, to the effect that he was able to earn a living at such business and was drawing $800.00 a month out of the business. This is all the testimony or evidence there is concerning the earnings of appellee prior to his injury. Appellee testified that he had made income tax returns, had kept books on his housebuilding operations, and had used a checkbook to run his business. However, none of these records, or any other business records, were introduced to show his earnings, appellee testifiyng that he had misplaced his records. Although the evidence is undisputed that appellee performed some personal services in his house-construction business, there was no evidence as to the value of those services, nor was it shown from what sources he drew the sum of $800.00 a month, whether from profits, operating capital, investments in the business, loans, or other sources.

Appellee testified that since said accident he had not been able to hold a job, that although he had tried to do various types of work, including salesman, janitor, file clerk and overseer, that he was unable to do the work required; that he was not able to carry on his house-building business, and had lost such business.

The Supreme Court in the case of Bonney v. San Antonio Transit Company, 160 Tex. 11, 325 S.W.2d 117 (1959), sets forth in clear language rules applicable to cases involving impairment of earning capacity, as follows:

“The point at issue here is the absence of any evidence which would indicate either the amount of Bonney’s earnings or a monetary measure of his earning capacity prior to the injury. The rule in this jurisdiction is that where a plaintiff seeks damages for impairment of earning capacity, he must prove the amount of such damages with the degree of certainty to which it is susceptible. Dallas Consolidated Electric Street Railway Co. v. Motwiller, 101 Tex. 515, 109 S.W. 918; McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710; Southwestern Freight Lines v. McConnell, Tex.Civ.App., 254 S.W.2d 422, wr. er. ref. This rule requires that a plaintiff introduce evidence from which a jury may reasonably measure in monetary terms his earning capacity prior to injury, unless some reason appears for his failure to do so. The reason for this rule is that although the amount of damages resulting from impairment of a plaintiff’s earning capacity must be left largely to the sound judgment and discretion of the jury, nevertheless the jury should not be left to mere conjecture where facts appear to be available upon which the jury could base an intelligent answer. In this case, Bonney introduced no evidence of the amount of his earnings prior to injury and no evidence that such prior earnings did not represent his full earning capacity. No reason appears for his failure to introduce such proof. Therefore, the trial court erred in instructing the jury that it might take into consideration any impairment to Bonney’s earning capacity, and this cause must be remanded to the trial court for a new trial.”

Where a plaintiff seeks special damages for loss of his earning capacity in a particular business or profession, the amount of his earnings or the value of his services in that business must be shown with reasonable certainty. Red Arrow Freight Lines v. Gravis, Tex.Civ.App., 84 S.W.2d 540, no writ; Panhandle & S. F. Ry. Co. v. Reed, Tex.Civ.App., 273 S.W. 611, writ dism’d.

In Red Arrow Freight Lines v. Gravis, supra, plaintiff was in the trucking business and did some of the actual work himself in addition to supervising the business. Plaintiff testified that his gross returns from his business averaged at least $300.00 a month, that he had a fairly complete set of books, but did not produce them, or show in any way what his net earnings were. Judgment was entered for plaintiff for damages based on a jury verdict. On appeal appellant contended that the trial court erred in allowing the jury to consider as an element of damages the reasonable value of the loss of time of plaintiff from the date of the accident to the date of trial, and in authorizing the jury to consider plaintiff’s diminished ability to earn in the future, asserting there was no evidence showing the value of his loss of time, and no evidence to show the value of his diminished earning ability in the future. This Court, in reversing the judgment of the trial court, pointed out that appellee did not offer any evidence as to the value of his service to the trucking business and did not show what the net earnings of his business were prior to his injury, and held that under the evidence a finding of the jury as to the value of his loss of time would be left entirely to conjecture and would be nothing more than a guess or surmise, and that appellee did not furnish to the jury such facts as would enable them to intelligently determine the money value of his diminished earning capacity.

Miller v. Hooper, Tex.Civ.App., 94 S.W.2d 230, no writ, was another case involving the element of diminished earning capacity. Plaintiff there testified that he was familiar with the amount of his earnings prior to the accident, and that his earning power had been diminished by the injury. He was engaged both in the automobile business and in farming. He testified that he kept books on his automobile business, which he did not produce, but that he did not know how much he made from such business prior to his injury. He testified that in his farming business he drew out of the business what was needed, which averaged about $150.00 a month. The Court held that the testimony failed to furnish any data that would enable a jury to make an intelligent decision as to the amount of plaintiff’s damage because of his diminished earning capacity. See also International & G. N. R. Co. v. Simcock, 81 Tex. 503, 17 S.W. 47 (1891); Southwestern Freight Lines v. McConnell, Tex.Civ.App., 254 S.W.2d 422, writ ref’d; Merchants Bldg. Corp. v. Adler, Tex.Civ.App., 110 S.W.2d 978, writ dism’d; South Plains Coaches v. Behringer, Tex.Civ.App., 32 S.W.2d 959, writ dism’d.

In Texas & N. O. R. Co. v. Wood, Tex.Civ.App., 166 S.W.2d 141, no writ, Wood recovered judgment for $6,500.00 for injuries suffered while loading mules on defendant’s railway cars. Under instructions of the court, the jury was authorized to consider physical and mental pain and suffering, doctor bills, the reasonable value of the earnings lost by Wood in the past and his reduced earning capacity in the future. Wood was self-employed and testified that he made $300.00 a week before the injury, that the injury made a great deal of difference in his earning capacity, and that his earning capacity had been diminished by at least $5,000.00; however, he was unable to testify as to how much he made at any particular time and offered no evidence supporting his testimony except that above set forth. This Court held that such evidence was insufficient to support the jury’s findings of damages and reversed the case.

In our opinion, the case before us comes within the rules set forth in Houston & T. C. R. Co. v. Bird, Tex.Civ.App., 48 S.W. 756, no writ. The Court stated: “But the objection urged to the submission of lessened earning capacity is, in our opinion, well made. There was, it is true, evidence tending to show that there may have been a diminution of such capacity, but no proof of the facts essential to enable the jury to reach an intelligent conclusion as to the amount of the loss resulting, or to base their verdict on this point upon anything but a mere guess.”

It is the opinion of this Court that appellant’s first and second points of error are meritorious and must be sustained. Since various items of recovery for damages were submitted to the jury in one issue, and the jury returned a verdict in the single sum of $45,000.00, this case must be reversed because this Court cannot tell from the verdict how much the jury assessed for the item or items which have no support in the evidence. International & G. N. R. Co. v. Simcock, supra; Jackson-Strickland Transp. Co. v. Seyler, Tex.Civ.App., 123 S.W.2d 928, writ dism’d by agr. Where a jury was erroneously instructed that it could consider items of lost earnings in arriving at an estimate of damages, when evidence did not support a recovery for lost earnings, the reviewing court cannot apportion amounts of judgment to various elements that the jury was instructed to consider in the inquiry as to the amount of damages, but is required to reverse the judgment. Texas & N. O. R. Co. v. Wood, supra.

Since this case must be reversed and remanded for a new trial, we will not pass on appellant’s other points of error which seek a remand of the case,

The judgment of the trial court is reversed and the case remanded for a new trial,


author: CHAPMAN, Justice.

text:
    WEST TEXAS EQUIPMENT COMPANY, Appellant, v. W. G. WALKER, Appellee.
    No. 7720.
    Court of Civil Appeals of Texas. Amarillo.
    June 5, 1967.
    Rehearing Denied July 17, 1967.

      Neal, Hazlewood & Wolfram, Amarillo, A. Curtis Neal, Amarillo, of counsel, for appellant.
    Stovall & Stovall, Plainview, R. F. Sto-vall, Plainview, of counsel, for appellee.
   CHAPMAN, Justice.

Appellant, West Texas Equipment Company, sued appellee, W. G. Walker, upon a verified sworn account for parts and services on three invoices totaling $835.31, and for attorney’s fees and costs. Before the case went to trial before a jury on its merits, a pre-trial hearing was conducted on Monday, August 8, 1966. Appellee to that date having not filed his Vernon’s Ann. Tex.Rules, Rule 185 denial to the duly verified sworn account petition appellant had previously filed, the latter forwarded its motion for summary judgment on July 28, 1966, to the Floyd County clerk’s office, and urged such motion at the pre-trial conference on August 8. The motion was overruled and appellant’s “Point One” asserts reversible error of the trial court in so doing. The point is not well taken.

“The denial of a motion for summary judgment is not an adjudication of the merits against the movant and, no doubt for this reason, is held in the Federal courts to be interlocutory and thus unappealable. * * * We see no good reason to take a different view for our own practice, which derives from the Federal Rules.” Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670 (1955).

A different rule prevails where both parties file motions for summary judgment and one such motion is granted. Under this situation the trial court’s judgment becomes final and appealable, and on appeal the Court of Civil Appeals should determine all questions presented. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).

However, “ * * * the rule of practice adopted by Tobin v. Garcia is an exception to the general rule that an order overruling a motion for summary judgment is not subject to review upon appeal.” Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966).

When the instant case came on for trial before a jury appellee had on file, among other pleadings, Defendant’s First Amended Original Answer. The pleading alleged that appellee had previously purchased from appellant a Caterpillar motor for the pumping of irrigation water. The date of the purchase was not alleged but the record shows it was in 1948. The pleading alleged that in the purchase, as part of the agreement and warranty, all repairs on the motor were to be made by appellant. No allegation is alleged in such pleading that they were to be made without charge. The pleading alleged that thereafter, not naming the date, the motor began to give trouble and appellee took it to appellant company for repair; that appellant worked on it and represented it had been repaired “ * * * and that they would stand behind and guarantee the work which they had done on the motor, and in reliance and consideration of the representation made to the Defendant by the Plaintiff, the Defendant issued his check to West Texas Equipment Company, under date of October 13, 1964 * * in the amount of $2,309.74, representing repairs made to said motor. * * * ” The pleading then alleged in effect “that shortly thereafter” the motor began to give trouble because it had not been properly repaired, that the company then made proper repairs and, except for two small items, ap-pellee did .not owe for the second repair job because it represented repairs, which had been paid for by the $2,309.74 check.

Appellee later filed on the day of trial, with leave of the court, Defendant’s Second Amended Original Answer, which did not include any pleading of guarantee or warranty, but which constituted his Rule 185 sworn denial that “Exhibit A” (the itemized verified sworn account sued upon) “ * * * is not just or true in whole or in part, and that Defendant denies he is indebted to the Plaintiff in any amount.” Though the parties had agreed at the pre-trial hearing upon inquiry from the court that no further pleadings would be filed, appellant has brought forward no point asserting abuse of discretion in permitting the filing. So, that point is not in the case. This pleading had the effect of then requiring appellant to prove its case as at common law. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941); Opryshek v. McKesson & Robbin, Inc., 367 S.W.2d 357 (Tex.Civ.App.Dallas, 1963, no writ). This, the appellant did by the witness, Strawn, manager of the Lubbock branch of appellant company, and the company’s field mechanic, J. C. Lay-mance. The latter testified the major overhaul in the spring had nothing to do with the account sued upon, a considerable part of which was for replacement of cracked cylinder heads. The record shows such condition happened some six months following the major overhaul and after the 1948 motor had operated for 24 hours a day for 60 days. Mr. Strawn testified that the charges for the items sued for, representing parts and services performed in the fall, were reasonable and customary for such parts and labor; that the account sued upon was unpaid and the amount was past due.

The burden then shifted to appellee to overcome that proof by some sort of affirmative defense showing avoidance. Burrus Mills, Inc. v. Hein, 399 S.W.2d 950 (Tex.Civ.App.Houston, 1966, writ ref’d, n. r. e.). In the case just cited the Houston Court of Civil Appeals held: * * * we are of the opinion that when appellant proved that the account was due and owing at the time of delivery of the goods or thirty days thereafter and there was nothing to indicate that it ceased to be due and owing down to the time of trial, the burden shifted to appellee to plead and prove his affirmative defenses. If the account was not due and owing at the time of the trial it was because payments had been made thereon. The burden was on appellee to plead and prove that such payments had been made in view of Rule 95, T.R.C.P.”

The only affirmative defense alleged here in any pleading is that by the payment in October for the spring overhaul in May. appellant had paid for the fall services because of appellant’s guarantee that it “ * * would stand behind and guarantee the work which they had done on the motor.” This affirmative defensive pleading is included in the reply to the motion for summary judgment and Defendant’s First Amended Original Answer, neither of which constituted pleadings upon which the case was tried upon its merits. Additionally, the guarantee was alleged to have been made after the overhaul on the motor had been completed and before issuance of the October check which had been due in May. It was not alleged to be part of the consideration for the spring overhaul but as part of the consideration for the issuance of the check constituting payment for parts and services past due for five months.

Rules 62 through 65 V.A.T.R. provide in effect that pleadings may be .amended by either party under certain conditions. Hunt v. Employers Reinsurance Corporation, 219 S.W.2d 483 (Tex.Civ.App.Fort Worth, 1949, writ ref’d, n. r. e.). Rule 65 provides, inter alia, that unless the substituted instrument be set aside on exceptions, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause. “As such the amended pleading supplants and takes the place of the preceding pleading which is sought to be amended.” Hunt v. Employers Reinsurance Corporation, supra. See also Kelso v. Wheeler, 310 S.W.2d 148 (Tex.Civ.App.Houston, 1958, no writ).

The last cited case said:

“It has been held that an amended answer or amended petition is not in supplement of the pleading it amends and is not to be taken into consideration along with it. The amendment completely supplants the pleading it amends. See Dyche v. Simmons, Tex.Civ.App., 264 S.W.2d 208, writ refused, n. r. e.; Ward v. Wingate, Tex.Civ.App.1955, 280 S.W.2d 938; Hawkins v. Collier, Tex.Civ.App.1951, 235 S.W.2d 528; Hunt v. Employers Reinsurance Corporation, Tex.Civ.App., 219 S.W.2d 483, error refused, n. r. e.”

Appellee having gone to trial upon his Second Amended Original Answer, there was not any pleading before the Court upon the trial upon the merits which raised an affirmative defense. Additionally, until he filed his Second Amended Original Answer he had no defensive pleading to the verified itemized sworn account sued upon, as required by Rule 185. When the trial court overruled the motion for summary judgment, the motion and answer thereto went out of the case so far as the merits were concerned. When appellee filed his Second Amended Original Answer it superseded his First Amended Original Answer. Hunt v. Employers Reinsurance Corporation, supra; Kelso v. Wheeler, supra; Pure Oil Company v. Fowler, 302 S.W.2d 461 (Tex.Civ.App.Dallas, 1957, writ ref’d, n. r. e.); Hawkins v. Collier, 235 S.W.2d 528 (Tex.Civ.App.Galveston, 1950, no writ).

Before the case proceeded to trial on its merits before a jury, appellant specifically called to the Court’s attention the fact that the Second Amended Original Answer had superseded any pleading as to an affirmative defense, and moved the Court that any testimony concerning any portion of the transaction except as to whether the items sued for were received, the reasonable value thereof and whether paid or not; i. e., testimony concerning the spring overhaul which had been due in May and paid in October not be permitted in the presence of the jury, stating: “To avoid undue interruption by continuous objection on the part of the Plaintiff when Defendant makes such attempts to offer any such evidence into the record, the Plaintiff now, therefore, moves the Court to instruct the Defendant to exclude and not in any way attempt to introduce any such evidence or information thereon.” To such motion made in limine the Court replied that he wanted to hear the evidence, which was admitted in the presence of the jury.

Rule 94 sets out a number of pleadings that one shall set forth affirmatively in answering a preceding pleading. Among those is “payment” and “any other matter constituting an avoidance or affirmative defense.”

Rule 95 requires that a defendant desiring to prove payment shall file with his plea an account stating distinctly the nature of the payment, and that if he fails to do so he shall not be allowed to prove the same unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof.

Rule 97, Section (a) provides, inter alia, that a pleading shall state as a counterclaim any claim within the jurisdiction of the court, which, at the time of filing, the pleader has against any opposing party, if it arises out of the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties.

The pleading upon which appellee went to trial contained none of the requirements of the three rules just described, nor any other affirmative defense. The pleading simply placed the burden upon appellant of proving its sworn account, which it did by the evidence heretofore related. The burden then shifted to appellee to prove an affirmative defense. Since any pleadings even attempting to allege one had gone out of the case by the court’s ruling on the motion for summary judgment and by the filing of the Second Amended Original Answer, we hold appellant’s “Point Two” is well taken. The point asserts reversible error in the failure of the trial court to exclude the tender of any testimony pertaining to anything other than whether the October 1964 parts and services sued for were received by Mr. Walker and the reasonable value thereof.

Our Supreme Court in Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366 (1962) has held that “* * * a motion in limine is not a necessary predicate for complaint on appeal that the admission of the evidence was error and that the error was prejudicial,” but that: “A proper objection made at the time evidence is offered is sufficient to preserve right of review of error committed in admitting it, * * * ” The Court in the case just cited also held:

“The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case or on the rights of the parties to the suit. It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, not the prejudicial effect of the evidence itself, which a motion in limine is intended to reach.”

We believe the admission into evidence of the transactions concerning the spring overhaul was reasonably calculated to cause and probably did cause an improper judgment, which was made more prejudicial because of the manner of submission of the case to the jury.

The Court having advised appellant it wanted to hear the evidence with respect to the spring overhaul, we hold it was not necessary under the record here for it to object in the presence of the jury to the tender of such evidence, thus being forced to take the chance of being prejudiced in the minds of the jury for attempting to suppress evidence. Additionally, even conceding, arguendo, that there were pleadings upon which evidence might be offered to prove an affirmative defense, the record is completely void of any evidence supporting a guarantee or warranty that the fall services sued for were guaranteed by the payment in October of the spring overhaul due May 10. Appellee’s counsel tried valiantly to prove it by appel-lee but was forced by the Court’s ruling upon appellant’s objections to leading questions to desist. This is the nearest he came to the proof:

“Q. Mr. Walker, I am not trying to lead you and if you don’t remember of course, you don’t. But I am asking you specifically, do you recall any conversation with Mr. Strawn ?
“A. I have known Mr. Strawn ever since I have been buying Caterpillar tractors. I knew him back when he was parts man and his progress all the way through. And I am sure when I paid that check A. J. and I discussed it, discussed the condition of the motor and everything because we were that close friends; and I am sure there was no misunderstanding between us what we were talking about, but saying specifically what I said at that time I cannot elaborate on it.”

Obviously, such testimony simply does not prove a guarantee. The record does not anywhere show what appellee had reference to in his statement: “ * * * when I paid that check A. J. and I discussed it,” because there is not any evidence that they discussed a guarantee that the company would repair the motor in the future without cost because they had overhauled it in the past. The record leaves us without information as to what the word “it” had reference to in the quoted statement.

The only question asked the jury. was the reasonable value, if any, of the parts and services furnished appellee on October 28, 1964, with instructions to answer the amount, if any, or none. (Emphasis added.) It would appear then that the Court found as a matter of law that there had been a guarantee on the first overhaul that took care of the fall service, yet there was no pleading in the Second Amended Original Answer upon which appellee went to trial to support a guarantee. Even if there had been there was not any evidence to support such pleading.

Quoting again from the Burrus Mills, Inc. case cited above, the court said:

“The burden was on the appellee to plead and prove that such payments had been made in view of Rule 95, T.R.C.P. Moreover, there is a rule of evidence that where a state of things is proved to have existed at a particular time, its continuance is presumed until the contrary is shown. McCormick & Ray, Texas Law of Evidence, Vol. 1, p. 81, Burden of Proof and Presumption, Sec. 81.”

Appellant made no motion for instructed verdict for failure to either plead or prove an affirmative defense, nor has it raised a “no evidence” point. It did object to the instruction in connection with the issue given, which permitted the jury to answer "none” as the value for the services. There being neither pleading nor proof to support such instruction we hold it was reversible error, as being a comment upon the weight of the evidence in view of the testimony admitted concerning the spring overhaul paid for in October.

To permit a take nothing judgment under the record of this case, would, in our opinion, constitute a complete miscarriage of justice. If part of the consideration for the spring repair was that appellant would furnish the parts and perform the services subsequently needed without charge, appel-lee’s counsel gave him the opportunity to say so in questions propounded to him on the witness stand. He never did do so. If he did not understand the questions, the case was not fully developed. We believe the record shows it was also tried on the wrong theory. “Our courts have held that where a case has been tried on the wrong theory, or has not been fully developed, it is not only proper but better serves the interests of justice to remand the case for a new tri'al. Southampton Civic Club v. Couch, Tex.Sup.1959, 159 Tex. 464, 322 S.W.2d 516; London Terrace v. McAlister, Tex.Sup.1944, 142 Tex. 608, 180 S.W.2d 619; Pelham Mfg. Co. v. Ridlehuber, Tex.Civ.App., 356 S.W.2d 502, writ ref., n. r. e.; White v. Watson, Tex.Civ.App., 383 S.W.2d 243; Texas Emp. Ins. Ass’n v. Mahlow, Tex.Civ.App., 304 S.W.2d 161; General Ins. Corp. v. Smith, Tex.Civ.App., 232 S.W.2d 785, writ ref., n. r. e.” Burrus Mills, Inc. v. Hein, supra.

Reversed and remanded.

ON MOTION FOR REHEARING

Appellant, West Texas Equipment Company, in its motion for rehearing contends with vigorous argument that we committed reversible error in remanding this cause instead of rendering. Appellee filed no motion for rehearing within the 15-day period allowed under Rule 458, V.A.T.R. but after the time had elapsed for doing so filed what is designated as “Appellee’s Reply Brief To Appellant’s Motion For Rehearing And Cross-Assignments of Error”.

If any party files an Application for Writ of Error to the Supreme Court within the specified time “ * * * any other party who was entitled to file such an application within such time but failed to do so shall have ten days additional time within which to file it”. Rule 468, V.A.T.R. as amended. However, we are not aware of any rule which permits affirmative relief by appellee in a Court of Civil Appeals where the trial court’s judgment was reversed and such party did not file a motion for rehearing within the 15-day period allowed under Rule 458, V.A.T.R. Therefore, we have no authority to consider cross-assignments of error urged by appellee which were filed after the designated period for filing a motion for rehearing.

We follow with considerable difficulty appellant’s first contention in its motion for rehearing. It cites Walker v. Chambers, 407 S.W.2d 949 (Tex.Civ.App.) (Fort Worth 1966) as authority for asserted error of our court in holding that where only one party files a motion for summary judgment the denial thereof is interlocutory, and thus unappealable. In the cited case a motion was apparently granted for summary judgment. In our case it was denied. We fail to see the analogy in the cited case to ours. If we understand Ackerman v. Vordenbaum, (supra), the trial court’s judgment in overruling appellant’s motion for summary judgment was interlocutory and unappealable, regardless of the merits of such motion.

In its next complaint appellant asserts error of our court in overruling “a part” of its Point 4. That point gave us considerable concern in our original opinion, as it has in the motion for rehearing. The point is argumentative, admittedly multifarious, and difficult to analyze. If we understand the thesis of appellant’s argument in this contention it is that included somewhere in its Point 4 is a “no evidence” question, i. e. there was not any evidence to support the jury’s answer of “none” to the only issue submitted. If the point properly raises such contention then we concede we may have been in error in remanding rather than in rendering for there clearly is not any probative evidence to support an answer of “none” to the verified, sworn account sued upon. There was not any affirmative defense of avoidance in the pleadings upon which appellee went to trial and there was not any probative evidence to support an avoidance. However, as we analyze the point it raises a procedural matter that would not call for rendition, i. e. “Because the only ‘value’ evidence in the record was $824.84 sued for, the trial court. * * * 2. erred * * * in entering a ‘take nothing’ judgment for defendant * * * because the ‘none’ answer of the jury was based on inadmissible and unpleaded matters of avoidance”. (Emphasis added.)

The second point urges error in denying an in limine motion concerning contemplated introduction of certain evidence. The third point has to do with the improper admission of such evidence. The 5th point asserts error in the form of the judgment rendered upon the jury verdict. We have discussed the first and fourth points.

The judgment recites: “And it appearing to the Court from the stipulation of counsel, the undisputed facts and the verdict of the Jury that judgment should be rendered for the defendant”.

Where the only “value” evidence was that offered by appellant and even appellee himself admitted to owing two items, we are unable to see how the quoted recitation in the judgment could be proper. There is no stipulation in the record we have been able to find that precludes recovery for appellant and the undisputed facts are contrary to the recitation that “ * * * from the stipulation of counsel, (and) the undisputed facts * * * judgment should be rendered for defendant.”

We have reversed and remanded because we believe a proper point has not been raised to justify rendition and not in order to give appellee “another bite at the apple”. See Mr. Justice Calver’s article titled “No Evidence” and “Insufficient Evidence”, Points of Error page 361 at page 368 and 369, Vol. 38, Texas Law Review, the cited cases in the article of Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47, 150 A.L.R. 1369 (1943); Williams v. Safety Casualty Company, 129 Tex. 184, 102 S.W.2d 178 (1937); and Sovereign Camp, W. O. W. v. Patton, 117 Tex. 1, 295 S.W. 913 (1927). These authorities, together with Rule 434, V.A.T.R. indicates to us a proper disposition of the case is remand rather than rendition.

The motion for rehearing is overruled.

      . The date shows by the record to have been in the spring of 1964 and that a major overhaul was made on the motor in April or May, 1964, caused by sand being sucked into the motor from a defectively installed gas line with which appellant had no connection.

        . The spring overhaul was due on May 10 but not paid until October.


author: CHADICK, Chief Justice.

text:
    JERE DAIRY, INC., Appellant, v. CITY OF MT. PLEASANT et al., Appellees.
    No. 7824.
    Court of Civil Appeals of Texas. Texarkana.
    July 11, 1967.
    Rehearing Denied Aug. 15, 1967.
    Waller M. Collie, Jr., Dallas, for appellant.
    Traylor Russell, Mt. Pleasant, for ap-pellees.
   CHADICK, Chief Justice.

This is a permanent injunction action. The trial court judgment refused relief to the plaintiff, Jere Dairy, Inc.; such judgment is reversed and judgment rendered.

The City of Mt. Pleasant, Texas, a municipal corporation, chartered as a Home Rule City, on September 21, 1954, adopted an ordinance to regulate the production, grading, sale, etc., of milk, couching the ordinance in substantially the form recommended by United States Public Health Service in a publication entitled “MILK ORDINANCE AND CODE — 1953 Recommendations of Public Health Service”. The City issued Jere Dairy, Inc., a permit dated December 2, 1965, to market Grade A pasteurized milk within its corporate limits. Shortly thereafter, December 7, 1965, the City adopted another ordinance that precipitated the action under review; the text of the new enactment, pertinent to the problem considered in this appeal, is as follows:

“SECTION 2: All persons, firms or corporations selling milk in the City of Mt. Pleasant shall make at least^^Jhree deliveries of the same each week'; and upon failure to do so, the City shall cancel the permit and the City Sanitarian shall be authorized to pick up and destroy all milk found in the City of Mt. Pleasant in violation of the ordinance.
Upon cancellation of the permit, the City shall not be required to make any refund of unearned permit fees.”

During the month of January, 1966, the City refused to renew the permit for Jere Dairy, Inc., to market Grade A pasteurized milk for the year 1966 unless and until Jere Dairy Inc., “affirm its intent and agreement to make three deliveries of milk to the City of Mt. Pleasant”, as required by the December 7, 1965, ordinance. * The dairy declined to commit itself to the deliveries prescribed by the ordinance. In the trial of this case the City stipulated that the milk distributed by Jere Dairy, Inc., complied with the City’s ordinance, that the Jere Dairy, Inc., plant at all times relevant to the lawsuit had operated in compliance with the City regulations and in compliance with the state health laws, and that the dairy is entitled to a permit to sell milk in Mt. Pleasant’s corporate limits, if it would submit to the delivery provisions of the ordinance.

Grades, grading, and labeling of milk in Texas is authorized and regulated by Acts 1937, 45th Legislature, p. 353, Chapter 172, and regulations promulgated- and adopted June 1, 1953, by the State Health Officer and published by the State Department of Health in a brochure entitled “Grade Specifications and Requirements for Milk”. The City of Mt. Pleasant recognizes that the mentioned statute and regulations pre-empted the field of grading and labeling milk. City of Weslaco v. Melton, 158 Tex. 61, 308 S.W.2d 18 (1957). However, delivery of milk, the City points out, is not mentioned in the state statute and regulations, and frequency of delivery does not appear to be a subject the statute and regulations have undertaken to standardize as a phase of grading and labeling. The ordinance, as the City views it, is an exercise of the City’s police power, reflecting concern for the health and welfare of its citizens, and was adopted as a means of assuring the City’s inhabitants a supply of wholesome, fresh milk; and, the City asserts, the ordinance does not add to or alter the specifications and requirements of the state’s grading and labeling standards applicable to Grade A pasteurized milk. Simply stated, the proposition underlying the City’s bid for affirmance is that the ordinance complements state standards and is not inconsistent nor in conflict with them. The scope of concurrent regulations permitted a city in a field pre-empted by the state law is discussed in Prescott v. City of Borger, 158 S.W.2d 578 (Tex.Civ.App.Amarillo 1942, write ref’d); in that case, referring to the Constitution of the State of Texas, Art. 11, Sec. 5, Vernon’s Ann.St., and the Legislative enactment on the subject, the court says:

“The article of the Constitution above cited provides that no city charter or ordinance passed thereunder shall contain any provision inconsistent with the constitution or general laws of the state and the identical language expressed in the constitution was, by the Legislature, brought forward in Art. 1165 of the Revised Civil Statutes. No ordinance can be legally enacted by the governing body of a city, * * *, which conflicts or is inconsistent with either the constitution or the statute. * * * The limitation placed upon local bodies does not extend, of course, to those ordinances which are permitted by, or are in harmony with constitutional and statutory provisions even though, in doing so, they may be said to be entering the same field. * * * ”

i ^The problem to be resolved is whether or ' not the delivery regulation is inconsistent | or in conflict with Article 165-3 and state regulations promulgated pursuant to it.

The ordinance would have, according to the City’s argument, the practical and probable effect of assuring distribution of fresher and more wholesome milk for sale to consumers in the City than is the result when deliveries are less frequent than the ordinance specifies. The City acknowledges that delivery regulation would not necessarily compel delivery of fresher milk, as a distributor might store milk outside the City and then make the specified deliveries into the City from such store and be in full compliance with the requirement; but, the City would conclude, the practical effect of more frequent deliveries would be an increased probability that the age of the milk distributed would be less than the age, experience had shown, milk would be in the absence of such delivery regulation. The ordinance, it argues, would tend to foster, encourage and promote delivery of fresher milk. The City conceded in oral argument that a requirement that milk be of a specified freshness, that is within some age limit, would probably conflict with state regulations. In factual support of the purpose and objective of the ordinance the City offered the opinion of its City Health Officer that deliveries required by the ordinance would shorten the time between production of Grade A pasteurized milk and its sale for consumption, lessen the probability of exposure of such milk to higher temperatures encountered in the distribution process, and result in a reduction of the bacteria count in the milk permitted to be sold. The City Sanitarian testified that on two different days each week he took samples of Grade A pasteurized milk distributed in Mt. Pleasant by Jere Dairy, Inc., during the time it was being distributed under the original permit. The tests of the samples showed the milk had a bacteria count above the maximum allowed by the state regulations in two out of three tests. He also testified that similar tests of milk from another dairy making twice per week deliveries showed similar results. On the other hand, he said, milk from dairies delivering three times or more per week subjected to similar test did not have a comparable incidence of high bacterial counts.

The City announces and does not avoid or cloud the issue, that the purpose of the delivery requirement is to secure distribution of fresher Grade A pasteurized milk than that which might be distributed in the absence of the ordinance. The quality of freshness in the milk is expected to be attained by reducing the time between production and distribution for sale to the consumer. The purpose of the City’s delivery regulation, the goal to be attained, is a quality of freshness in milk not required by state regulation. It is expected that milk will, or may have as a result of the regulation, a quality that might not be present in the absence of the City’s frequent delivery regulation. The conclusion is plain that by the devise of a delivery regulation the City indirectly attempts to add a quality of freshness to the specifications for Grade A pasteurized milk distributed in the City. The effort to do so constitutes an entry into the field occupied exclusively by the state statutes and regulations pertaining to Grade A pasteurized milk. The City is powerless to legislate in the field and its ordinance in this respect is a nullity. Article 11, Sec. 5, Constitution of the State of Texas and Article 1165 prohibits this incursion into the state pre-empted field of milk grading.

The constitutionality of the ordinance is assailed on other grounds, but it is unnecessary to discuss them, as they were not invoked in the denial of the permit to Jere Dairy, Inc. It is anticipated that in the administration of its Milk Ordinance the City and its officers will not act unconstitutionally, and until there is unconstitutional action, or a threat thereof, no necessity appears for a pronouncement on other phases of the ordinance. 12 Tex.Jur.2d Constitutional Law, § 32 (1960).

The judgment of the trial court is reversed and judgment rendered permanently enjoining the City from enforcing Section 2 of its ordinance enacted December 7, 1965.

      . Texas Revised Civil Statutes Annotated, art. 165-3 (1959).

      . Texas Const, art. 11, § 5.

      . Texas Revised Civil Statutes Annotated, art. 1165 (1963).


author: BATEMAN, Justice.

text:
    G. R. COMMAGERE, Appellant, v. Hal ANDERSON, d/b/a Hal Anderson Properties, Appellee.
    No. 16929.
    Court of Civil Appeals of Texas. Dallas.
    June 23, 1967.
    Rehearing Denied July 21, 1967.

      James L. Mitchell, Dallas, for appellant.
    Charles O. Shields, Harris, Anderson, Henley & Shields, Dallas, for appellee.
   BATEMAN, Justice.

The appellant G. R. Commagere appeals from a judgment rendered in favor of the appellee Hal Anderson, doing business as Hal Anderson Properties, for rents claimed to be due under a lease and denying appellant’s counterclaim'.

Facts

The parties entered into a lease agreement dated August 29, 1963, whereunder appellee leased to appellant a certain “town house” in Dallas, Texas, for a term of two years at a monthly rental of $595, the rent for the first and last months, in the sum of $1,190, being payable in advance. Appellant deposited the $1,190 with appellee.

The following supplemental agreement appears on the back of the lease, under separate signatures of the parties:

“In addition to the terms of this lease, the following is hereby agreed:
“That the sum of $1190.00 will be held as a deposit on 8611 Town House Row until the first day of October, 1963. If at this time, the Lessee has not sold his home, we shall continue to reserve this house for Lessee until another party wishes to lease the property. At such time, the amount of deposit will be returned to G. R. Commegeree.”

It appears from the lease as a whole and from testimony of the parties that it was understood that this lease would not become effective unless the appellant’s home at 7507 Spring Valley Road was sold by October 1, 1963, and that if it was not sold by that date appellee would have the right to lease the “town house” to “another party,” in which event the $1,190 deposit would be returned to appellant.

On November 11, 1963 the parties entered into another agreement in the form of a letter from appellee to appellant, and accepted by appellant, the pertinent parts of which are as follows:

“This letter will serve to formalize our agreement relative to the manner in which you wish to dispose of your residence at 7507 Spring Valley Road and the interim period of your occupancy in the Town Houses. The following, when signed by you, will denote your acceptance and full understanding of this arrangement :
“1. Jerry Commagere and family will move into 8611 Town House Row on or about Thursday, November 14, 1963.
“2. Hal Anderson and his Real Estate staff hereby agree to sell Commagere’s residence by all means possible through the medium of newspaper advertising and open house. The price of the house is $69,500.00. * * *
“3. No rent is to be paid by Comma-gere from the time he occupies the Town House until such time as Anderson sells his home or if the said house is rendered useless by either fire or intervening act of God; thus eliminating it from a ready piece of real estate.
“4. The Anderson Organization warrants to the Commageres that they will list this house in multiple listing at $69,500.00 and will cooperate with all brokers and will hold the house open on week ends in order to make the sale as quickly as possible. Upon the sale of Commagere residence, Jerry warrants to Hal Anderson Properties that he will pay two years of rent at the rate of $595.00 per month in advance. If, however, a second lien or other trade or terms of finance are necessary in order to make the sale, Anderson agrees on a mutual basis with Comma-gere, to participate equally in what cash funds are available; thus allowing Commagere ‘move in’ money to fix up his Town House, as well as allowing Anderson to be paid rent in advance.
“5. It is clearly understood that there is no rent payable on the Town Houses until the date of the sale of Comma-gere’s house.”

Shortly after November 11, 1963, the appellant and his family moved into the “town house” and remained in it without paying rent until June 30, 1964. The utility bills were paid by appellee. During this period, appellee and his sales organization tried unsuccessfully to sell appellant’s home at the agreed price of $69,500.

On April 1, 1964 appellee wrote a letter to appellant’s attorney stating that it was not his intention to ignore his agreement with appellant concerning the latter’s occupancy of the “town house” rent free until his home was sold, but indicating that he had been “grossly misled” into making the agreement by not being informed that vigorous attempts had been made by appellant for over a year to sell his home without success, and that appellee thought “the situation should be terminated”; that appellee had not guaranteed that the home would be sold at $69,500, and that he would like to confer with appellant concerning the matter. A carbon copy of this letter was sent to appellant, in which the key to the Spring Valley Road home was enclosed and appended to which was this additional message:

“Enclosed herewith is the key to your residence. In view of the fact that homes comparable to yours are being offered at several thousand dollars less, we see no way possible to get you $63,000 net. We are therefore withdrawing from further activity.”

During the months of April and May, 1964 appellee made numerous demands that appellant vacate the “town house,” even threatening to discontinue the utilities if he persisted in his refusal to move. On May 29, 1964, appellee wrote a letter to appellant, the pertinent parts of which are as follows:

“Thank you for your May 27th letter in which you acknowledge that you will move from the Town House. We will, as I pointed out to you on the phone, be happy to refund to you any or all of your $1,190.00 security deposit, provided you move by five o’clock on the first of June. Further, we will inspect the house * * * after you have vacated the premises; and should there be only normal wear and tear, you will receive the entire $1,190.00.
“ * * * I do not intend to embarrass, harrass, or intimidate you. We are simply making formal demand for immediate possession no later than 5:00 p. m., June 1st of your present premises. After you have vacated the premises and they are left in a state of reasonable wear and tear, you will receive your entire $1,-190.00.
“We did not lease you a town house to include an overgrown German police dog. Further, you are obligated for two years’ rent when your house sells, so let’s quit playing patsy and get on with the move. The good horse is tired. Let’s end this on a friendly note.
“As further stated in my conversation with you, a copy of which is available if you should desire to have same, we plan on immediate legal measures should the foregoing not be acceptable.”

On June 23, 1964 appellant’s home had still not been sold and appellant and his family continued to occupy the “town house” rent free. On that date, however, appellee filed this suit declaring on the lease of August 29, 1963 and demanding the rent reserved thereby, being twenty-four months at $595 per month, or a total of $14,280, and not even mentioning the agreement contained in the letter dated November 11, 1963. Appellee alleged in the alternative that appellant had occupied the “town house” for seven months; that the reasonable rental value thereof was $595 per month, for which, in the sum of $4,165, appellee sued “on a quantum meruit basis.”

On June 25, 1964, two days after the filing of the suit, appellant’s home was sold through the efforts of appellee’s organization for a sum substantially less than $69,-500, and appellee was paid a commission for making the sale. In the meantime, appellant and his wife had been looking at other houses, and on or about June 30, 1964 they purchased another home and moved from the “town house” into it.

On July 17, 1964, appellant filed his answer and counterclaim for the return of his deposit of $1,190. After the relinquishment thereof by appellant, appellee leased the “town house” to one Merwin at $495 per month; and at about the same time reduced the rent on all of the neighboring “town houses” from $595 to $495 per month.

At the conclusion of a nonjury trial, the court rendered judgment for appellee for the sum of $2,200 and denied appellant’s counterclaim. At the request of appellant, the court filed findings of fact and conclusions of law. After finding the facts here-inabove related, the court concluded as a matter of law that: (1) appellant “was bound by the terms of the lease and letter agreement for two years after his residence was sold”; (2) that appellant moved from the “town house in violation of said lease agreement”; (3) that appellee should recover “the rental value of said premises for two years less the deposit paid by defendant for rent for two months and less the rental collected by plaintiff at the rate of $495 per month for 22 months”; and (4) that appellant should not recover on his counterclaim.

Opinion

Appellant’s first seven points of error on appeal are, in substance: (1) the judgment is not supported by the findings of fact and conclusions of law; (2) the findings and conclusions of law are not supported in the pleadings, or (3) by sufficient evidence; (4) the trial court erred in refusing to find ultimate and controlling facts as requested by appellant; (5) the court erred in allowing a recovery on a letter agreement of November 11, 1963 in a suit based on a lease dated August 29, 1963; (6) it was error to allow recovery on the lease of August 29, 1963 because it was conditioned on the sale of appellant’s home by October 1, 1963, which condition failed; and (7) it was error to allow recovery under either agreement because (a) both agreements were terminated by mutual consent before any obligation to pay rent arose, and (b) appellee’s election to consider the agreements terminated and to re-enter and lease the house to another party relieved appellant of further obligation to pay rent.

All of these points, except the fourth, must be sustained. Appellee based his suit wholly upon the lease dated August 29, 1963; yet it appears from the face thereof that the parties never intended for that lease to become effective unless appellant’s home was sold by October 1, 1963. When that date arrived and the home had not been sold, the lease was unenforceable by either party unless renewed or rejuvenated in some manner. It had lapsed.

The parties evidently recognized this by making the new agreement dated November 11, 1963. Appellee bound himself by the new agreement to give to appellant the use and occupancy of the property rent free for a period of time to end only upon the happening of a certain event, the sale of appellant’s home at a price acceptable to him. That price was understood and agreed to be $69,500. By his letter of April 1, 1964, appellee took the position that he was entitled to rescind the agreement of November 11, 1963. He returned appellant’s key to him and said he was “withdrawing from further activity.” Appellant apparently agreed to such rescission by his letter to appellee dated May 27, 1964. This letter is not in the record but is described in appellee’s letter of May 29, 1964 in which he agreed to refund the entire deposit of $1,190 if appellant would vacate the property by June 1, 1964. Appellant did not vacate the house by that date but did so a month later. Under the circumstances then existing, we do not consider that his doing so can be held to be a violation or breach of any agreement.

A careful analysis of the acts of the parties demonstrates, we think, that appel-lee had no cause of action for rent for two years under either contract. The lease of August 29, 1963 accorded appellee no such cause of action because it was conditioned upon the sale of appellant’s home by a certain date and the house was not sold by that date. Appellee had no cause of action under the letter agreement of November 11, 1963 for two reasons: (1) because appellant’s liability for rent thereunder was conditioned upon sale of his home, which had not occurred at the time of suit, and (2) the parties had evidently agreed on the rescission of that agreement before the suit was filed.

Moreover, appellee could not demand and receive possession of the house and lease it to others, thus depriving appellant of all the possible benefits of a continuing lease (assuming that a lease was then in effect), and also demand of him the payment of rent thereunder. There was no contract between the parties giving appellee any such right. Walling v. Christie & Hobby, Inc., 54 S.W.2d 186, 188 (Tex.Civ.App., Galveston 1932, no writ); Waggoner v. Edwards, 83 S.W.2d 386 (Tex.Civ.App., Amarillo 1935, writ ref’d); Henson v. B & W Finance Co., 401 S.W.2d 261, 264 (Tex.Civ.App., Tyler 1966, no writ). Therefore, appellant’s points of error Nos. 1, 2, 3, 5, 6 and 7 are sustained.

Appellant’s sixth point of error was also based on the ground that the lease of August 29, 1963 was “novated” by the letter agreement of November 11, 1963; and in his seventh point of error he asserted that the conduct of appellee constituted an eviction of appellant from the “town house.” It is not necessary for us to pass on either of these contentions. We sustain the points on the other grounds heretofore stated.

His fourth point of error, complaining of the court’s refusal to find additional facts as requested, is overruled because such refusal is not made the subject of a bill of exceptions. Steppe v. O’Day, 315 S.W.2d 599, 603 (Tex.Civ.App., Waco 1958, writ ref’d n. r. e.); Newton v. Highland Park Independent School Dist., 361 S.W.2d 916, 919 (Tex.Civ.App., Austin 1962, no writ); 4 Tex.Jur.2d, Appeal and Error—Civil, § 505, p. 37.

By his eighth point of error appellant complains of the denial of his counterclaim, asserting that under the circumstances above related there was no theory of law to justify appellee’s retention of the deposit of $1,190. Appellant made that deposit pursuant to the terms of a lease which became lapsed on October 1, 1963. He was entitled to, but did not demand, its return at that time, seeing fit to permit appellee to hold it to appellant’s credit during the existence of the November 11, 1963 letter agreement (although it was not even mentioned in that instrument). When that agreement was rescinded by mutual agreement, and appellee demanded and obtained possession of the “town house” and leased it to a third party, there was no legal theory entitling him to retain the deposit.

Appellee argues that it would be unjust to compel him to return the deposit of $1,190 in the light of appellant’s free use and occupancy of the “town house” for seven months which, at the agreed value of $595 per month, represents a total value of $4,165. Any injustice visited upon appellee by this situation must be held to have had its origin in the agreement of November 11, 1963 prepared and signed by him. Not having been induced to sign that agreement by fraud, accident or mistake, he has no right to ask the courts to relieve him of the burdens thereof. Appellant’s eighth point of error is sustained.

For the reasons heretofore stated, we reverse the judgment appealed from and render the judgment the trial court should have rendered, that is, that appellee take nothing by his suit and that appellant have judgment on his counterclaim against appellee in the sum of $1,190, with interest thereon at the rate of 6 per cent per annum from July 1, 1964, and that all costs be taxed against appellee.

Reversed and rendered.