author: ARCHER, Chief Justice.

text:
    TEXACO INC., Appellant, v. W. S. GIDEON, Appellee.
    Nos. 11063 and 11064.
    Court of Civil Appeals of Texas. Austin.
    April 3, 1963.
    William S. Clarke, Houston, Black & Stayton, Austin, for appellant.
    W. S. Gideon, Mac Umstatted, Austin, for appellee.
   ARCHER, Chief Justice.

These are venue cases which' are briefed together pursuant to an agreement between the parties.

Appellee W. S. Gideon was plaintiff in the Trial Court; appellant Texaco Inc. was defendant. The suits were filed by appellee allegedly to obtain a “declaration of the rights, status and legal relations of Plaintiff and Defendant with respect to” certain ratification and depository agreements covering oil and gas leases on the N/2 of Section 14, Block V, T. & P. RR Co. Survey, Fisher County, Texas, Cause No. 11,063, and the E/2 of Section 16, Block V, T. & P. RR Co. Survey, Fisher County, Texas, Cause No. 11,064. These tracts will hereinafter be referred to as Section 14 and Section 16, respectively.

Appellant filed pleas of privilege alleging that “Venue of the suit instituted by Plaintiff is, therefore, under Section 14 of Article 1995, Rev.Civ.Statutes, exclusively in Fisher County, Texas”, or in the alternative that venue should be established in Harris County, Texas, where appellant’s principal office is located. Subject to the pleas of privilege appellant also filed answers alleging that certain landowners of the above sections are indispensable parties, seeking to interplead such landowners, specially excepting to certain elements of appellee’s alleged •cause of action, and generally denying all of appellee’s allegations.

Appellee filed controverting pleas claiming exceptional venue in Travis County under subdivisions 27 and 5 of Article 1995, and denying venue in Fisher County, Texas, under subdivision 14.

After a trial based upon the agreed statements of fact, the district court overruled appellant’s pleas of privilege by orders signed and entered October 2, 1962, to which appellant in open court duly excepted and gave notice of appeal.

The points relied on by appellant are the error of the Court in overruling the pleas of privilege based upon subdivision 14 of Article 1995 and in refusing to transfer the cases to Fisher County, since the ultimate purpose of the suits is to establish title to a royalty interest in the entire N/2 of Section 14, and in the entire E/2 of Section 16, and that since the purpose of the suits is to determine the effect of the ratification agreements upon royalty interests, only, the fact that such agreements provide for payment of delay rentals in Travis County does not establish venue under subdivision 5 of Article 1995 in Travis County, in holding venue in Travis County under subdivision 27 of Article 1995 merely because appellant maintains a representative in Travis County, because such provision does not apply to domestic corporations, and is unconstitutional in that it unreasonable denies foreign corporations equal protection of the law, and that there is no evidence or the evidence is insufficient that appellee’s causes of action arose in Travis County, and the Court erred in holding venue under subdivision 27 of Article 1995.

Appellee takes the position that the suit was brought in Travis County under the Declaratory Judgment Act, to construe his rights, status and other legal relations with respect to a contract executed in Travis County and mailed to appellant, and that there is no question of title involved.

Article 2524 — 1, Sections 1, 2 and 3, R.C.S., provide for the scope of Uniform Declaratory Judgments Act.

Prior to September 22, 1960 appellant, through its predecessor TXL Oil Corporation, held oil and gas leases on the N/2 of Section 14 and Appellee was the owner of Yio (or 16-acre) interest in the minerals in and under the NW/4 of Section 14.

Appellant owns an oil and gas lease on the E/2 of Section 16, and Appellee owns an undivided Yio (or 16-acre) mineral interest in the NE/4 of Section 16.

The mineral lease under which appellant claims on the N/2 of Section 14, Block V, T & P RR. Co. survey in Fisher County, Texas is dated August 15, 1960 and executed by J. C. Stribling, et al.

This lease was subsequently ratified by a number of persons and by appellee on September 22, 1960.

The ratification agreement reads as follows:

“THE STATE OF TEXAS' “COUNTY OF TRAVIS
“WHEREAS, J. C. STRIBLING, JR. AND WIFE, STELLA STRIB-LING; JOHN STRIBLING, JR. AND WIFE, DAULMA STRIBLING; HUDSON FOWLER AND WIFE, LILLIAN FOWLER; RUTH FOWLER, A FEME SOLE; CLAY FOWLER AND WIFE, MARJORIE FOWLER; TOMMIE JEAN FOWLER, INDIVIDUALLY AND AS GUARDIAN OF THE ESTATES OF LINDA SUE FOWLER, TOMMIE RUTH FOWLER, AND FRED FOWLER, MINORS, executed oil and gas leases to THE TXL OIL CORPORATION covering the:
“N/2 of Section 14, Block V, T&P RR Co. Survey, Fisher County, Texas reference being here made to said original leases for all purposes, said leases being dated August 15, 1960, and being for a primary term of 5 years, providing for annual rental of $1.00 per acre, and containing the customary clauses for ⅛⅛ royalty; and
“WHEREAS, W. S. Gideon is the owner of an undivided Jio interest in the minerals under the NW/4 of Section 14, Block V, T&P RR Co. Survey, and as such owner he is willing to ratify said leases, and it is his desire to ratify the same;
“NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that I, W. S. Gideon, in consideration of the sum of $10.00 an acre paid to me by said lessee for said leases in the above described land, the receipt of which is hereby acknowledged, do hereby:
“(1) acknowledge receipt of my portion of the bonus monies paid for said leases ;
"(2) ratify and confirm said leases as being fully binding upon my interest in the mineral estate in the above described land, the same as if I had personally joined in the execution of said leases and acknowledged and delivered the same and I do hereby lease, demise and let unto said lessee, its heirs and assigns, all my right, title and interest, in and to the said mineral estate in the above described land subject to and in áccordance with the provisions of said leases and this agreement;
“(3) stipulate and agree that the undersigned’s portion of such delay rentals as lessee, its heirs and assigns may elect to pay under the terms of the foregoing leases, may be deposited to the credit of the undersigned in the following bank:
“The Austin National Bank, Austin, Texas.
“IN TESTIMONY WHEREOF, witness my hand this 22nd day of September, 1960.
“/s/ W. S. Gideon”

The appellant has a mineral lease, on the E/2 of Section 16, Block V, T&P RR Co. survey, Fisher County, Texas, executed by J. C. Stribling, et ah, dated November 14, 1961, and subsequently ratified by several individuals, and by appellee on December 18, 1961, such being in words and terms similar to the agreement as set out herein and we do not copy this agreement again.

Three wells have been drilled on the N/2 of Section 14, two producing wells having been drilled on the NE/4 and a dry hole having been drilled on the NW/4 and production has been had from one or both of the said producing wells since on or about November 23, 1961, and being had now.

Neither Appellant nor its predecessor has paid Appellee any royalties.

Two producing wells have been drilled on the NE/4 of Section 16 and one on the SE/4 of Section 16, and one or more of these wells have been producing oil since on or about July 2, 1962, and no royalties have been paid to Appellee.

We believe that the ultimate and dominant purpose of Appellee’s suits is to establish title to a royalty interest in the entire N/2 of Section 14 and in the entire E/2 of Section 16, and we believe that the Court erred in overruling the pleas of privilege based on subdivision 14 of Article 1995, and in refusing to transfer the causes to Fisher County, Texas where the land is located. Subdivision 14 provides suits for the recovery of lands, etc., must be brought in the County in which the land or part thereof, may lie.

The provisions of this statute are mandatory, and will prevail over subdivisions 5 or 27, even if the latter are otherwise applicable. South Texas Development Co. et al. v. Williams et al., 130 Tex. 217, 107 SW.2d 378; Fetherstone et al. v. State et al., 146 S.W.2d 1078, Tex.Civ.App.

Royalties are considered interests in land, Tennant v. Dunn, 130 Tex. 285, 110 S.W.2d 53, and therefore subdivision 14 is regarded as applicable to suits involving royalty interests. Smith v. Panola County Royalty Ass’n et al., Tex.Civ.App., 215 S.W. 2d 199.

The ultimate or dominant purpose of the suit determines whether a suit falls under subdivision 14, and not how the cause of action is described. Garrison v. Morrow et vir, Tex.Civ.App., 300 S.W.2d 175, writ dism.

There can be no question but that Appel-lee is endeavoring to establish a royalty interest throughout all of the N/2 of Section 14 and the E/2 of Section 16, rather than having the interests limited to the NW/4 of Section 14, and the NE/4 of Section 16, as was the situation prior to the ratification agreements.

Appellee contends that prior to the ratification of the leases he was the owner of a 16-acre mineral interest in two separate quarter sections, and that the execution of the agreements placed him in the same position as though he had signed the leases themselves and that his interest was pooled with that of the minerals in the respective half sections, and that he is entitled to royalties from production on the two half sections.

Unless Appellee can establish a royalty interest in the production throughout the entire half section he can have no valid basis for damages, or other relief because the suits are claims to land or an interest therein

In Renwar Oil Corporation v. E. L. Lancaster et al., 154 Tex. 311, 276 S.W.2d 774, the Court discussed the claims of the plaintiff therein, and determined such were not personal as distinguished from real.

Garrison v. Morrow et vir, Tex.Civ.App., 300 S.W.2d 175, writ dism., is a case concerned with the Declaratory Judgments Act, and holding such was a suit for the recovery of land, and that subdivision 14 was applicable.

The purpose of the suits allegedly is to determine the effect of the ratification agreements upon royalty interests.

The fact that the agreements provide for payment of delay rentals in Travis County would, as to such obligation, establish venue of suits in Travis County to enforce such obligation under subdivision 5 of Article 1995 concerning contracts in writing, but such cannot control venue of the alleged ■obligation to pay royalties on oil produced under the leases, such being payable in Fisher County, at the wells, etc.

Williams v. Doering, Tex.Civ.App., 28 S.W.2d 893; May et al. v. Perkin, Tex.Civ. App., 227 S.W.2d 393; Seale et al. v. Langston et al., Tex.Civ.App., 259 S.W.2d 639.

Venue cannot be held in Travis County under subdivision 27 of Article 1995 merely because appellant maintains an agency or representative in Travis County, because of the mandatory nature of subdivision 14, supra.

Appellee contends that this is not a suit for recovery of land, for damage to land, to remove incumberances upon the title to land, or to quiet the title to land, and not a suit to prevent or stay waste on lands, but is a suit for the construction or interpretation of a contract between appellee and appellant, and is properly placed in Travis County because plaintiff (appellee) resided there, and defendant (appellant) had an office in and was doing business in Travis County and maintained an agent in Travis County, and that the contracts were executed by appellee in Travis County, and mailed to appellant at Midland, Texas. This may be correct, but the final and ultimate result will be to determine appellee’s mineral proportions on either the ¼ Sections or extended to the ½ Sections. There is, however, no question but that appellee owns the recited mineral interests, towit, an undivided Viotb. (or 16-acres) in the NW/4 of Section 14 and an undivided Jioth (or 16-acres) in the NE/4 of Section 16, but as stated, the issue is does he own mineral interests in the two ½ Sections and this question should be determined in the County where the land is situated.

The judgments of the Trial Court are reversed and the causes are remanded to the District Court with instructions to enter an order transferring the causes to Fisher County, Texas, for trial on the merits.

Reversed and remanded with instructions.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Earl D. BYRD, Appellant, v. Hector TREVINO-BERMEA, Appellee.
    No. 11060.
    Court of Civil Appeals of Texas. Austin.
    April 3, 1963.

      Turner & Seaberry, Eastland, for appellant.
    Gerald D. Becker, Eagle Pass, Norman Barr, San Angelo, for appellee.
   HUGHES, Justice.

Hector Trevino-Bermea sued his employer, Earl D. Byrd, for damages for burns received by him February 7, 1959, when fire destroyed the workers’ living quarters on a ranch operated by Mr. Bryd in Tom Green County.

Trial to a jury resulted in verdict and judgment for appellee, Hector Trevino-Bermea.

Appellee was a Mexican National and was working for Mr. Byrd under what is known as a bracero contract. He was employed as an ordinary ranch hand. He was furnished living quarters and his hoard. The living quarters consisted of a bedroom and kitchen, with an opening between them, but no door. The bedroom was furnished with beds, other furniture, and an iron wood stove for heating. The kitchen was equipped with a gas cook stove, the gas supply being stored in a butane tank or bottle located just outside the kitchen wall. It is disputed as to whether the connection from the gas tank went directly to the stove in the kitchen or whether it went first through the bedroom, then to the kitchen.

The weather was cold on the night of the fire, probably freezing temperature. Appellee was alone on the ranch when the fire occurred. He testified that he was asleep in the bedroom, which was then heated by the wood stove, when an explosion awoke him. He testified that there was a “pipe of gas that was burning my breast” when he awoke. He made his escape from the burning building through a window. There is evidence, however, from which a fact finding could have been made that appellee was not burned as he testified, but was only burned when he went back into the burning house and fell down.

Appellant’s first point is that the Court erred in refusing to submit the following requested special issue:

“Do you find from a preponderance of the evidence that Hector Trevino-Bermea exposed himself to the dangers of the fire in question ?”
The Court did submit this issue:
“Do you find from a preponderance of the evidence that the Plaintiff, Hector Trevino-Bermea, knowingly exposed . himself to the dangers of the fire in question on the occasion in question?”

The jury answered “No” to this issue and conditional and subsidiary issues of negligence and proximate cause were not answered.

The only material difference between the two issues is the use of the word “knowingly” in the submitted issue.

It is our opinion that the Court erred in refusing to submit the requested issue.

Appellant had pleaded that appellee was negligent in exposing himself to the dangers of the fire, and that such negligence was the proximate cause of his injuries. As above shown, there was evidence to warrant the submission of this issue. The rule is that a defendant is entitled to a submission of all issues well pleaded which are supported by the evidence and which constitute a complete defense if answered favorably to the defendant. 41-B, Tex.Jur., p. 468.

If the jury should find that appellee entered the burning building and that this was an act of negligence proximately causing his injuries, the defense of contributory negligence would be complete.

The word “knowingly”, as used, is inappropriate to the issue of negligence. It is appropriate to an issue of assumed risk. Negligence pertains to conduct, which is gauged by what the person charged knew or by the exercise of ordinary care should have known. Assumed risk pertains to a state of mind. For a full discussion of the distinction between these doctrines see Robert E. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391, Shaver v. Manziel, 347 S.W.2d 20, Texarkana Civ.App., writ ref., n. r. e., Vol. 65 C.J.S. Negligence § 174, p. 848.

In Fort Worth & D. Ry. Co. v. Barlow, 263 S.W.2d 278, Fort Worth Civ.App., writ ref., n. r. e., a similar question was considered. There the Court inquired if an act had been “intentionally” done. The Court was requested to submit issues concerning commission of the act, hut omitting the word “intentionally.” The Court of Civil Appeals held that the requested issues should have been submitted saying, “The requested issue leaves out knowledge on the part of deceased. It does not inquire about his state of mind. It inquires if a certain event took place. * * * We think the inclusion of the requested issue would have relieved the charge of some of the criticism to the effect that deceased’s knowledge rather than his care appears to have been made the test of his duty.”

The error in refusing to submit the requested charge requires reversal of this cause. It is our duty now to determine such other questions presented which in all probability will arise upon re-trial.

The witness Henry Raburn was permitted to testify to Rules of the Railroad Commission of Texas regulating the installation and operation of butane gas systems. This was error. The Rules, themselves, are the best evidence of what they are. Courts do not take judicial notice of the rules of the Railroad Commission. Thompson v. San Antonio & A. P. Ry. Co., 11 Tex.Civ. App. 145, 32 S.W. 427. See also Barron v. Marusak, 359 S.W.2d 77, Austin Civ. App. See Art. 3731a, Vernon’s Ann.Civ. St., for the method of introducing such rules in evidence.

The witness Raburn, who qualified as an expert, also testified that, in his opinion, the butane system in the workers’ quarters was unsafe.

We would prefer holding this testimony admissible for the reason that it would be of aid to the jury in a field where the expert’s knowledge was superior to theirs. See Vol. 2 McCormick and Ray, Texas Law of Evidence, 2nd Ed. Sec. 1400. However, under the decision in Griggs Furniture Co. v. Bufkin. 348 S.W.2d 867, Amarillo Civ .App., writ ref., n. r. e., it is inadmissible.

Appellant objected to the admission in evidence of the Commissioners 1941 Standard Ordinary Mortality Table for the reason that it was restricted to citizens living in the United States, whereas appellee was a citizen of Mexico living in Mexico.

The question appears novel. Neither the parties nor we have found authorities in point. It has been held that mortality tables excluding children under 10 years of age are not admissible when a person of such age is involved. Rea v. Simowitz, 225 N.C. 575, 35 S.E.2d 871, 162 A.L.R. 999.

Appellee was working and living in Texas when he was injured. He was treated in Texas for his injuries and the evidence is that but for the excellence of such treatment he would most likely have lost his life.

Appellant asks us to take knowledge, common or judicial, that life expectancy in Mexico is less than it is here. Appellee was about twenty-four years of age at the time of trial. We simply do not know the life expectancy of a person of ap-pellee’s age in Mexico. We, therefore, do not take notice of it. We doubt our authority even if we knew. Sec. 197, Texas Law of Evidence, supra.

Under these facts, we hold that the mortality table was properly admitted in evidence, its weight being for the jury.

It is, of course, permissible for appellant to refute the correctness of such table as to appellee by any pertinent and proper evidence. See 17 Tex.Jur.2d Damages, Sec. 257. It is to be noted also that juries are free to disregard such tables where permanent injuries are sustained. Chemical Express v. Cole, 342 S.W.2d 773, Dallas Civ.App., writ ref., n. r. e.

Points eight through eleven relate to the lack of evidence to sustain certain elements of damages, and to the excessiveness of the verdict. It is not reasonable to assume that the evidence on a new trial or the damages assessed will be the same as contained in this record. It is more reasonable to assume that appellee will shore up the alleged weaknesses suggested in these points. We, therefore, refrain from further discussion of such points.

Appellant’s points twelve through thirteen complain of the Court’s failure to submit requested special issues to the jury inquiring whether or not appellee had sole control of the house at the time of the fire, whether or not he was negligent in the exercise of such control and a subsidiary issue of proximate cause. These issues were requested in the belief that the doctrine of res ipsa loquitur was applicable to the facts of this case.

There was no evidence that appellee was negligent in causing the fire or explosion. There is no evidence to account for either.

It is our opinion that the requested issues were properly refused. Appellee was not in control of the premises. It is true that he was the only person on the ranch when the fire occurred. This was probably because it was the policy of appellant that a bracero not leave the ranch without permission, and there is no evidence that permission on this occasion was given.

Appellee was an inexperienced ranch worker. Some fourteen or fifteen year old boys are more experienced, appellant testified. He had worked for appellant less than two months when he was injured. There is no evidence that he was in control of the ranch when the fire happened. Certainly he had no such control of it as to make him responsible for the faulty installation of the butane system which the jury found caused his injuries. The doctrine of res ipsa loquitur is inapplicable.

Points fifteen through twenty-eight are jointly briefed.

These points relate to the insufficiency of the evidence to support findings of proximate cause, inadequacy of the pleadings in certain respects, and to the improper form of a hypothetical question. All of these points, except as to the alleged insufficiency of the evidence, should not recur upon retrial, and we will not discuss them.

The jury found that appellant failed to provide a connection which was then adequate and safe for normal use between the gas stove in the quarters occupied by appellee and the gas tank outside such quarters, and that appellant failed to inspect such connection and that these failures constituted negligence proximately causing the fire.

There is no direct, as distinguished from circumstantial, evidence as to the cause of fire. It is our opinion that the circumstantial evidence adequately supports the finding of proximate cause. The type of connection between the tank and stove in use was, in the opinion of Mr. Raburn, and expert, likely to become loose or disengaged through long use and movements of the stove, thus permitting gas to escape. This butane gas, being heavier than air, would not rise. The wood stove in the bedroom had an air vent near the floor. With the wood fire burning and the vent open, as the evidence indicates, the gas would be drawn into the stove and ignited.

This is the theory of appellee. The jury accepted it. We cannot say that it is so unreasonable as to constitute no evidence or only suspicion or a surmise.

The judgment of the Trial Court is reversed and this cause is remanded for trial in accordance with this opinion.

Reversed and remanded.


author: BATEMAN, Justice.

text:
    C. A. DRINKARD et ux., Appellants, v. GROUP HOSPITAL SERVICE, INC., et al., Appellees.
    No. 16108.
    Court of Civil Appeals of Texas. Dallas.
    March 29, 1963.
    Rehearing Denied April 19, 1963.
    Brown & Elliott, Dallas, for appellants.
    Thompson, Coe, Cousins & Irons, Dallas, and Folley, Snodgrass & Calhoun, Amarillo, for appellees.
   BATEMAN, Justice.

Our former opinion in this case is withdrawn and the following substituted therefor:

This is a suit upon two group insurance policies, one entitling appellant’s wife to certain specified hospital benefits and the other entitling her to certain medical, surgical and radiation benefits, and particularly the “Catastrophic Illness Endorsement” attached to and made a part of each policy and under which the particular company insured against certain expenses in connection with the treatment of eleven: certain serious diseases, including cancer. Defendants answered (1) by general denial, and (2) that both policies provided that they would be terminated upon default of payment of monthly charges, and that benefits would not be available after termination date, and that the policies were terminated prior to the accrual of the claims asserted.

The material facts, as found by the court following a non-jury trial are (1) that both of the contracts sued on provided for termination upon default of payment of monthly charges, and that benefits will not be available after termination; (2) that appellant paid the monthly charges up to and through July 10, 1960; (3) that appellant’s wife contracted cancer in January 1959, incurring certain hospital, medical and surgical expenses over a period of about one year, which appellees paid without protest; (4) that on or about September 25, 1960 she was afflicted by a recurrence of said disease of cancer for which she was “treated” until her death from said disease on February 11, 1961; (5) that ap-pellees refused to pay any of the expenses of treatment necessitated by the recurrence of the disease in September 1960; (6) that written demand for payment of such expenses was made more than 30 days prior to suit, and that a reasonable fee for appellants’ attorney is $500.; (7) that effective July 10, 1960 appellant voluntarily became insured under another group plan underwritten by The Aetna Insurance Company, which paid $1,178.67 of the expenses sued for herein; (8) that appellant understood that the coverage under said new plan was from his standpoint a substitute for the coverage he had been carrying with appel-lees; and (9) that Aetna Insurance Company did not deduct anything from the payments made to appellant because of his wife’s history of cancer prior to July 10, 1960.

The court then concluded as a matter of law that appellant’s right to benefits under the policies terminated on July 10, 1960, and rendered judgment that he take nothing. For the reasons hereinafter given we reverse that judgment.

Appellant’s first contention is that the court erred in concluding as a matter of law that his right to benefits terminated July 10, 1960, when he became in default in the payment of premiums on these policies, because, he says, his right to benefits became vested when his wife contracted cancer during the life of the policies and his subsequent failure to pay premiums did not affect appellees’ liability already incurred.

Each of the “.Catastrophic Illness Endorsements,” after listing in Section I the eleven deadly diseases covered, provided in Section II:

“For each person included hereunder, the benefits shall be available for expenses incurred during the five-year period immediately following diagnosis of any of the named diseases, and not thereafter. In no event shall the maximum liability of the Plan under this Endorsement exceed [$2,000. in one endorsement and $3,000. in the other] for any one illness, or during any five-year period.”

Section IV of each endorsement, under the heading “CANCER BENEFIT,” then provides:

“The benefits hereunder apply only to services rendered following a pathological diagnosis of cancer; and for the purpose of benefits under this Rider, a subseqtient diagnosis of cancer shall be considered a continuation of the previous cancer.” (Emphasis supplied) .

Appellees argue very plausibly that since the contingency insured against here is the incurring of certain expenses, as distinguished from disability or loss of time, and since the expenses were incurred several months after termination of the policies, there can be no liability. They cite Phillips v. Great Nat. Life Ins. Co., Tex.Civ. App., 226 S.W.2d 660, no wr. hist.; Livingston v. Aetna Life Ins. Co., Tex.Civ. App., 246 S.W.2d 261, err. ref.; Washington Nat. Ins. Co., v. Ollie, 200 Ark. 1001, 142 S.W.2d 226. These cases merely hold that a group policy may be cancelled by agreement of the contracting parties, or by either party in accordance with the contract, and that the insurer is not liable where the event or contingency insured against occurs after termination. They do not help us here because there is no question in the case before us that certain hospital and medical expenses (the event insured against) were incurred prior to termination and in connection with a disease that recurred shortly after termination.

The important question to be determined here, then, is: When did appellees’ liability for expenses incident to Mrs. Drinkard’s cancer cease? With the termination of the policies, as appellees contend? Or, appel-lees’ liability having once attached, were appellant’s rights so vested that the expenses incident to the recurrence of the cancer were covered, even though the policies were previously terminated at a time when Mrs. Drinkard had apparently or temporarily been restored to health?

We would be inclined to agree with ap-pellees in this respect were it not for the provisions in Sections II and IV herein-above quoted, and particularly the phrase, “for the purpose of benefits under this Rider, a subsequent diagnosis of cancer shall be considered a continuation of the previous cancer.” If Mrs. Drinkard had been in the hospital suffering from cancer at the very time of the termination of the policies, the liability of appellees for the expense incurred in connection therewith would have continued on for the remainder of the five year period immediately following the original diagnosis or until the maximum monetary limit specified in Section II had been exhausted. In other words, the event or contingency insured against having occurred during the life of the policies, the refusal of the companies to pay the expenses incurred after termination would have constituted a breach of the contracts. It would necessarily follow, then, in view of the quoted policy provisions, that upon the recurrence of the cancer appellees’ continuing liability would obligate it to pay the specific expenses thereof.

Appellees contend that the true meaning and purpose of the phrase “a subsequent diagnosis of cancer shall be considered a continuation of the previous cancer” is to protect the companies against the possibility of an insured’s using up the $3,000 limit or the $2,000 limit, or both, as the case might be, during one period of treatment for cancer following which the patient might apparently recover from cancer and then claim that the recurrence of cancer was a different illness for the expenses of which he might again recover up to $3,000 under the one policy and $2,000 under the other. If this was intended as the only purpose and effect of the phrase, it could have been made to convey that thought. The phrase says it is made “for the purpose of benefits,” not for the purpose of limiting benefits. As we read it, the phrase could have the meaning ascribed to it by appellees and also that which we have ascribed to it; neither excludes the other; both meanings are compatible. If there is a lack of clarity of meaning, it must be “interpreted strictly against the insurer and liberally in favor of the insured.” 24 — B Tex.Jur. 104; Providence Washington Insurance Co. v. Proffitt, ISO Tex. 207, 239 S.W.2d 379.

Appellees also maintain that this case should be governed by General American Life Ins. Co. v. Rios, 139 Tex. 554, 164 S. W.2d 521, and General American Life Ins. Co. v. Johnson, Tex.Civ.App., 88 S.W.2d 535, err. dis. We do not agree. In each of those cases was involved a policy of health and accident insurance which provided for payment of a certain sum on receipt and approval by the company of “due proof” that the insured had been totally and permanently disabled for a period of six months. In both cases it was shown that monthly-premiums were not paid for the full period of six months following the inception of the disability; and it was properly held in each case that the policy terminated for non-payment of premium before liability began. As pointed out by the Beaumont Court in the Johnson case, if the insured had recovered his health within the six months period, no right to benefits would have accrued. Liability could not attach until the end of that period, wherefore it was essential that the policy be kept in force until that time.

However, a quite different case is presented here. Liability had definitely attached in 1959 when Mrs. Drinkard first contracted cancer, and since both policies provided that “for the purpose of benefits ⅛ * * a subsequent diagnosis of cancer shall be considered a continuation of the previous cancer,” we are compelled to hold that that liability continued on, even after termination of the policies, for the five year period, and subject to the monetary limitations specified in the policies. 6 Couch on Insurance 2d, Sec. 32:3; American Casualty Co. v. Horton, Tex.Civ.App., 152 S. W.2d 395, err. dis.; Prudential Ins. Co. v. Cox, 254 Ky. 98, 71 S.W.2d 31; Equitable Life Assur. Soc. v. Boyd, 51 Ariz. 308, 76 P.2d 752.

Appellant’s second contention is that the court below erred in admitting testimony as to the other group plan which became effective July 10, 1960 when appel-lees’ plan ceased, over his objections (1) that there was no pleading to support it and (2) that it was not pertinent or relevant. Taking the position that this matter is an affirmative defense, appellant argues that it will not support a judgment for appellees in the absence of pleadings, citing Stone v. Boone, Tex.Civ.App., 160 S.W.2d 578, err. ref. w. o. m. We do not agree that the matter of the other insurance constitutes an affirmative defense, or any defense at all. When the objection was made, counsel for appellees stated that it seemed to him that “it is merely an evidentiary fact to show the man’s intent” and didn’t need to be pled. We fail to see that appellant’s intent with respect to obtaining other or additional insurance coverage could be material to the controversy before the court. Both policies sued on provided that “The benefits herein provided are available in full, notwithstanding recovery of benefits under insurance protection of a similar nature.” Accordingly we hold that the objection was good and should have been sustained.

Appellant’s last point of error is that the court erred in denying him the 12% penalty and a reasonable attorney’s fee under authority of Art. 3.62, Texas Insurance Code, V.A.T.S. Appellees urge that Art. 3.62 is inapplicable to them because they are exempted from the effects thereof by the provisions of the respective chapters of the Insurance Code under which they are chartered.

The record shows that appellee Group Medical and Surgical Service is a statewide mutual life, health and accident company organized and chartered under the provisions of Chapters 13 and 14 of the Insurance Code. Art. 13.09 (a part of Chapter 13) provides in part: “Except as expressly provided in this chapter and in Chapter 14 of this code, no insurance law of this State shall apply to any corporation operating under this chapter, and no law hereafter enacted shall apply to them unless they be expressly designated therein.”

The appellee Group Hospital Service, Inc. appears to have been organized and chartered under the provisions of Chapter 20 of the insurance Code, Art. 20.09 of which provides in part: “ * * * the provisions of the other chapters of this code are hereby declared inapplicable to corporations organized and/or operated under this chapter.”

On the authority of National Security Life & Casualty Co. v. Gooch, Tex.Civ. App., 289 S.W. 2d 336, no wr. hist., we hold that the provisions of Art. 3.62 of the Texas Insurance Code, authorizing recovery of a 12% penalty and a reasonable attorney’s fee when certain insurance companies fail to pay losses for which they are liable, are not applicable to either of the appellees. See also General Life Ins. Co. v. Potter, Tex.Civ.App., 124 S.W.2d 409; no wr. hist.; American Casualty & Life Co. v. Hale, Tex.Civ.App., 198 S.W.2d 759; no wr. hist.; and McCoy Undertaking Co. v. American Cas. & Life Co., Tex.Civ. App., 248 S.W.2d 311, err. dis.

The amount of expenses incurred by appellant, which we have hereinabove held to be recoverable, having been stipulated on the trial, we see no reason for remanding the case for another trial. Accordingly the judgment appealed from is reversed and judgment here rendered in favor of appellant against Group Medical and Surgical Service for $510.00 and against Group Hospital Service, Inc. for $1,072.92, with interest from January 16, 1962, the date of the judgment in the district court, at six per cent per annum; and that the costs be taxed against appellees in the same proportion.


author: TIREY, Justice.

text:
    F. W. HELDENFELS et al., Appellants, v. Roman HERNANDEZ, Appellee.
    No. 4054.
    Court of Civil Appeals of Texas. Waco.
    March 21, 1963.
    Rehearing Denied April 18, 1963.
    Keys, Russell, Keys & Watson, Corpus Christi, for appellants.

      Elmer H. Theis, Lyman & Sudduth, McDonald & Spann, Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellee.
   TIREY, Justice.

This is a negligence case. Hernandez sued Heldenfels Brothers and three others for personal injuries sustained by him on the premises of his employer when he was run over by a backing loaded dump truck hauling hot-mix asphalt for resurfacing of private roads on the premises of his employer. On the verdict judgment was rendered against Heldenfels in plaintiff’s favor for $20,500.00, and a take-nothing judgment was rendered in favor of the other three defendants. Heldenfels perfected their appeal and the cause is here on transfer.

Plaintiff was an employee of the Southwestern Oil & Refining Company as a common laborer to do sundry jobs about the premises. He would report for work before 7:30 o’clock A.M., and receive his orders for the day at an office which was located in a quonset hut located approximately 1000 feet from the main entrance to the plant premises. On April 17, 1953 he reported for work and received instructions to go from plant No. 2, where the office was located, to plant No. 1, which was several blocks distant and not adjoining plant No. 2. He and another employee were told to go to do similar work at plant 1, and they started walking from the office toward the main gate of the premises, walk-on a road which was then being surfaced by Heldenfels with hot-mix asphalt. As they were walking on their left-hand side of the road, plaintiff on the inside, and the other workman next to the left-hand curb of the road, a dump truck, loaded with hot-mix asphalt which was backing toward the spreading machine, backed into and over Hernandez, brushing the other workman at the same time. Plaintiff sustained a fractured leg, a fractured pelvis, and associated injuries, which kept him off work for a short time. He returned to work for Southwestern Oil & Refining Company until he was laid off as a result of a reduction in force.

Southwestern Oil & Refining Company, prior to the accident, had entered into a contract with Texas Engineering Construction Company, Inc., to do various new construction on the premises of plant No. 2, including the construction and surfacing of plant roads. The Engineering Company prepared the base for the roads and constructed concrete curbing and gutters in preparation for asphalt paving. It then orally agreed with Heldenfels for them to furnish hot-mix asphalt from their plant to be hauled and laid on the roadway which had been prepared. Heldenfels then, by telephone, arranged for Huckman, a trucking contractor, to furnish dump trucks to haul the asphalt to the premises where a paving machine belonging to Heldenfels would be used to apply the asphalt. This machinery was operated by Heldenfels, as were the rollers which smoothed out the asphalt after it was spread by the machine.

Heldenfels arranged orally with defendant Young to furnish some, if not all, of the trucks actually used in hauling the asphalt. An employee of Young, while operating one of the trucks owned by Young, was backing a loaded truck to the hopper on the paving machine when plaintiff was struck and run over by the right rear wheels of the truck. It was necessary for the truck to back up to the paving machine in order that the asphalt could be dumped into the hopper so it could be transported by conveyor belts on the machine to the spreader on the opposite side of the machine. There was an operator of the machine who controlled its movement as it proceeded on rotating tracks. On the machine was a spreader-man who controlled the thickness of the asphalt as it was applied to the roadbed. There were two other employees of Heldenfels who smoothed out rough places in the paving after it was applied. Then there were two or three heavy rollers which smoothed out and rolled down the asphalt as it was applied by the spreader and “touched up” by the two employees. There was another employee of Heldenfels Brothers called the “dumper” who worked at the hopper, and who released the tailgate on the trucks so that the load could be dumped into the hopper. The “dumper” would also shovel any spilled asphalt into the hopper and in general guided the truck to the proper place at the hopper, once the truck was within a few feet of the paving machine. For a day or two before the accident the paving operations on the road to the main gate had been in progress during the daylight hours. Heldenfels’ employees would report to work before 7 o’clock and would quit before dark in the evening. Plaintiff had been familiar with the paving operations for a day or two before the accident. On that day plaintiff parked his car near the main entrance to the plant, went through the time hut at the main entrance and had proceeded to the office some 1000 feet from the main gate, going west by the paving machine which was operating at the time. Plaintiff saw a dump truck unloading asphalt into the hopper, which truck was backed up to the spreader. He saw the same or similar operation the day before. After reporting to the office he was directed by his foreman to go with another employee to plant No. 1 to dump chemicals into some water in tanks. The two men proceeded on the main road, admittedly knowing that the dump trucks would back up to the paving machine, and knowing the paving machine was between them and the main gate toward which they were walking. At the point where the truck backed into and over Hernandez there were some large overhead fans which were part of the operating equipment and machinery of the plant. These fans made a loud noise. Testimony was tendered to the effect that someone near the scene of the accident shouted when he saw that the dump truck was going to strike plaintiff, or had struck plaintiff. The driver stopped the truck within a few feet, but after the rear wheel had run over plaintiff, and before the front wheels had touched him. The truck driver was blowing his horn, and the truck made lots of noise while running in reverse gear.

The judgment is assailed on what Helden-fels designates as 28 points. One is to the effect that since plaintiff was only a licensee as to appellants, and since the jury did not convict appellants of any affirmative negligence, but found only that they failed to provide a flagman or to give a signal to appellee and remove him from the path of a backing truck, there is no liability on the part of appellants. Appellants rely on the following factual situation to sustain their theory that appellee was only a licensee. Appellants had no contract with the Southwestern Oil & Refining Co., but were subcontractors of the engineering company, and as such “stood in its shoes” as to the paving. Appellants, before proceeding with the work, had put up barricades closing off that portion of the private road which was being paved. The premises were private property, and the public was not allowed to enter. When appellee reported for work about 7:30 o’clock in the morning on the day of the accident at plant No. 2, plaintiff was told to go to plant No. 1 to do certain work at that plant which was some distance from plant No. 2. It was possible for ap-pellee to have walked off of the main roadway a few feet, since there were walkways under the cooling fans just north of the roadway. Appellee had no business connection whatsoever with the appellants or the contractor. At the time he sustained his injuries he was proceeding under his employer’s instructions to go to plant No. 1. He was walking along the main roadway of plant No. 2. Appellee testified to the effect that his foreman had told him not to walk on the south one-half of the road which had been paved.

This case turns on the question of whether the contractor owed plaintiff a duty to furnish a flagman or signalman or to give him a warning signal as a pedestrian on land occupied by the contractor in order to perform the resurfacing contract with the owner. This question, in turn, hinges initially on whether plaintiff was an invited or was a licensee.

In solving this question decisions involving relationships between a contractor and the employees of a subcontractor, master and servant, owner or contractee and the employees of a contractor, and those concerning public contracts, streets, sidewalks and highways, or business invitees are not helpful. The problem concerns a limited and restricted field in the law of negligence, to which other situations are not analogous. Completely variant rights, duties and liabilities exist in those instances by virtue of the relationship of the respective parties. We are not here concerned with the relationship of plaintiff to his own employer, or with premises occupied by that employer as owner. The rights of plaintiff and the consequent duty of the contractor (the derivative position occupied by Helden-fels) is determined by plaintiff’s status in relation to the contractor. We oversimplify the issue in order to see it in its true light: Is plaintiff, an employee of the owner or contractee, an invitee of that contractor (who has become occupant of the private premises where the injury occurred in order to perform a resurfacing contract) ?

It is 'axiomatic that the contractor’s mere sufferance, acquiescence or tolerance of entry by plaintiff — even express or implied permission to enter the area — would not of itself create the status of invitee on the premises where the work was being done. The question is not simply whether plaintiff had a lawful right to enter. If he entered without any right, of course, he would be a trespasser. 30-B Tex.Jur. Sec. 56, p. 242. Plaintiff quotes general principles to. the effect that mutual'benefit, to the “owner” of premises and the injured person, (e. g., Burton Construction & Shipbuilding Co. Inc. v. Broussard, 154 Tex. 50, 273 S.W.2d 598; Cowart v. Meeks, 131 Tex. 36, 111 S.W.2d 1105), is an element establishing invitee status. Such decisions involved the liability of the actual “owner” of-the land as defendant. We are not here' concerned with the “owner”, but with the occupier. In this respect the contractor, as occupant placed in possession by the owner or con-tractee, bears the same relationship in so far as necessity for mutuality of benefit is concerned. The plaintiff in the present case was on a mission for a third person, his employer, when injured; and his presence on the premises occupied by the contractor entailed no benefit to the latter.

There is evidence in this case from which it may be deduced that plaintiff’s employer, the owner, expressly or impliedly permitted or invited him to use the area occupied by the contractor on which the resurfacing was being done, in performing his duties to his master. Plaintiff insists this removed him from the status of licensee as to the contractor. This evidence might well be material to the relationship between plaintiff and his employer if the latter had not relinquished possession of the resurfacing area to the contractor; but did it make plaintiff the contractor’s invitee? It is our view that it did not.

Remarkably, there appear to he no Texas decisions involving the liability of a contractor to servants of the owner or the status of the servant, where the servant ’ does not enter the private premises occupied by the contractor on a mission connected with performance of the contract. We have found few such cases from other jurisdictions. Some of these involve active negligence, “traps” and pits, wilful injury, or inherently dangerous instrumentalities, and are not applicable.

In Allen v. Jim Ruby Construction Co., 138 Cal.App.2d 428, 291 P.2d 991, plaintiff, an employee of the owner-contractee, was injured when he fell over a rod on his way to a washroom on his employer’s premises. The negligence charged against the contractor was failure to erect a barricade on the portion of the employer’s premises on which the contractor was performing work for plaintiff’s employer. The court said, “Defendant was an occupier of that portion of the premises, use of which was necessary or incidental for the work he was doing for Freuhauf”, plaintiff’s employer. “Plaintiff, as an employee of Freu-hauf, was its invitee, but this did not make him an invitee of defendant with respect to the area’’ where the injury occurred. That case differs because plaintiff had not followed the path previously and defendant had not seen him there, but this distinction could not properly be a part of the rationale under Texas law, and the court quotes authorities to the effect that acquiescence would not alter status as a licensee. It was held the contractor had no liability to the employee for failure to barricade the area, and owed him no duty as to passive negligence.

In Forgione v. Frankini Construction Co., 308 Mass. 29, 30 N.E.2d 819, the plaintiff was an invitee of the owner or general contractor, awaiting employment. While leaving the premises he tripped over a foundation rod in an area on which a subcontractor was performing construction work for the owner. It was held the subcontractor violated no duty to plaintiff in failing to warn.

In Bolch v. Smith, 158 Eng. Reprint 666, 6 L.T.N.S. 158, the contractor was performing work on the employer’s premises in an area which crossed the path to a water-closet furnished by the owner for its employees’ use. An employee of the owner was injured by the contractor’s machinery while returning on the path from the closet. In holding the contractor breached no duty to the owner’s employee, the court held: “The defendant had a right to erect the machinery, to erect it in the place he did, and to work it in the manner he was doing. Then, what is the true condition of plaintiff? It is said that he had a right to go along the path across which the machinery was erected, for he was a workman employed by the dockyard, and had liberty to use the water-closet. But that is a fallacious argument. It is true that plaintiff had permission to use the path. ■ Permission' involves leave and license, but it gives no right.” It was held that since no “trap” was created, no duty existed. We have found no other cases considering these questions.

Plaintiff had the burden of establishing duty on the part of the contractor. This burden is not discharged by proof of unilateral invitation by the owner in which the contractor as rightful occupier of the working area had no part. We think plaintiff was a licensee as to the subcontractor, and defendant’s duty is restricted to that owed to a licensee.

What is the extent of that duty here? An occupier or owner may owe to a licensee a duty to warn him of concealed hazardous conditions. The condition here was not hidden. Plaintiff knew Heldenfels’ operation required the movement of asphalt trucks to the spreader on the barricaded area; and he knew they were required to move on the path he traveled. Did the contractor, then, owe the licensee a duty to notify him of what may be conceived of as a change in condition, from that of a stationary to a moving truck? Plaintiff likewise knew this condition was likely to be altered at any time, under the jury finding. He knew the dump truck was required to back up to the asphalt spreader, and that his employer’s equipment reduced his ability to hear its approach. We think appellants breached no duty owed to plaintiff in the respects found by the jury.

Being of the foregoing view, we think the Court erred in refusing to sustain appellants’ motion to disregard the answers to issues relating to appellants’ liability and enter judgment for appellants. This view makes it unnecessary for us to discuss any of the other questions presented.

Accordingly, the judgment rendered in behalf of the plaintiff against appellants is reversed and here rendered that appellee take nothing as against the appellants. The judgment of the trial court in favor of the other defendants is affirmed. It is further ordered that all costs in this cause be taxed against appellee. Accordingly, the judgment is reversed and rendered in part, and in part affirmed.


text:
    Charles COOK, Appellant, v. E. H. JAYNES, Appellee.
    No. 16110.
    Court of Civil Appeals of Texas. Dallas.

      Feb. 21, 1963.
    Rehearing Denied March 15, 1963.

      Jay S. Fichtner, Dallas, for appellant.
    Matthews, Payne, Sands & Benners, Fred H. Benners, Dallas, for appellee.
   BATEMAN, Justice.

Appellee brought this suit in one of the County Courts at Law of Dallas County for title and possession of a boat, an outboard motor and a boat trailer, all of the alleged total value of $500. Appellant contended that he was an innocent purchaser for value of the boat and equipment from one L. W. Schell. The court rendered summary judgment in favor of appellee.

We should first dispose of appellant’s challenge to the jurisdiction of the trial court. In his amended petition appel-lee again sued for title and possession of the same personal property, again alleging its value to be $500., and also for the first time sued for actual damages of $150. for depreciation in value of the property, $150. for loss of use of the property, $600. for exemplary damages, and $300. attorney’s fees, thus putting into controversy a total value of $1,700., which appellant asserts is $700. more than the maximum jurisdictional limit authorized for county courts by the Texas Constitution, Art. 5, Sec. 16. Vernon’s Ann.St. However, in his amended petition appellee brought forward the only cause of action asserted in his original petition; i. e., the suit for title and possession of the boat, motor and trailer valued at $500. An almost identical situation was disclosed by the certified question answered by the Commission of Appeals in Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762, 763, wherein it was held that where the amended petition repeats the allegations of the first or original petition, which alleged a cause of action clearly within the jurisdiction of the County Court, the fact that the amended petition also alleged damages in an amount exceeding the jurisdictional limit of $1,000. did not deprive the court of jurisdiction over the old suit. The Isbell case has been cited with approval by the Supreme Court in Haginas v. Malbis Memorial Foundation, Tex., 354 S.W.2d 368, 371; and by Courts of Civil Appeals in Sellers v. Spiller, Tex.Civ.App., 64 S.W.2d 1049, 1052, no wr. hist., and Western Wood Products v. Box, Tex.Civ. App., 248 S.W.2d 974, 975, no wr. hist. Accordingly we hold that the trial court was not without jurisdiction to dispose of the case.

We next consider whether the ap-pellee has met the burden of establishing conclusively that there are no genuine issues as to material facts and that he was entitled to judgment for title and possession of the property as a matter of law. He assumed this burden by moving for summary judgment under Rule 166-A Vernon’s Texas R.C.P. Lesikar v. Lesikar, Tex.Civ.App., 251 S.W.2d 555, 559, err. ref. n. r. e., and Gulbenkian v. Penn, 151 Tex. 412, 252 S.W. 2d 929. Appellant contends this burden was not met in two particulars: (1) in that there were fact issues on the question of whether appellee was estopped to deny that Schell had actual or apparent authority to sell the property to appellant; and (2) in that fact issues were raised “as to unjust enrichment of appellee” by reason of labor and material expended by appellant in working on the property, which he alleges added $225. to its value, and for which he sued appellee by counterclaim.

Appellee’s motion for summary judgment was sufficient to show prima facie that he owned the property, but it also sets out that he delivered it to a repairman for repairs and that the repairman delivered it to L. W. Schell “for storage and safekeeping pending Plaintiff’s determination of what disposition he would make of” it. He does not say this was done without his knowledge or consent. On the other hand, appellant alleged that appellee placed the property with Schell for sale, thereby making Schell his real or apparent agent for that purpose, and was estopped from complaining of Schell’s sale to appellant. Appellant also filed his own affidavit to the effect that prior to the filing of this suit he had several conversations with appellee in which appellee stated that he had sent the property to Schell for the purpose of selling the same.

Appellant’s point of error, if taken literally, would restrict the inquiry to the question of whether there was a genuine fact issue as to whether appellee made Schell his apparent agent with apparent authority to sell the property. If we were convinced that this was the extent of appellant’s contention, we would be compelled to overrule the point because it clearly appears from his answer to the motion for summary judgment and the contract between him and Schell that he dealt with Schell, not as appellant’s agent, but as a principal who was apparently the owner of the property. 2 Am.Jur. 85, AGENCY, § 103; Essex County Acceptance Corp. v. Pierce-Arrow Sales Co., 288 Mass. 270, 192 N.E. 604, 95 A.L.R. 1314.

But we are enjoined to construe the rules of procedure liberally to the end that justice may be achieved. Rules 1, 418(b) and 422, Vernon’s Texas R.C.P.; Walker v. Bedell, Tex.Civ.App., 320 S.W.2d 913; Dial Temp Air Conditioning Co. v. Faulhaber, Tex.Civ.App., 340 S.W.2d 82, err. ref. n. r. e. It seems clear to us from a study of the point and the statement, argument and authorities under it that appellant is contending that his pleadings and affidavit raised an issue of fact as to whether appellee actually placed the property with Schell, with actual authority to sell it, or that appellee is es-topped from denying such actual authority in that appellee so handled the matter, or permitted it to be handled, as to lead prospective purchasers such as appellant to believe that Schell was fully authorized to sell either as owner or as agent, and that his authority was apparent (in the sense of being obvious). Willis v. S. L. Ewing Co., Tex.Civ.App., 348 S.W.2d 415, no wr. hist.; Posey v. Adam Schaaf Co., Tex.Civ.App., 189 S.W. 977, no wr. hist.; Scruggs v. Crockett Automobile Co., Tex.Civ.App., 41 S.W.2d 509, err. dis. We are of the opinion that appellee failed to meet the burden of showing the contrary.

Appellant also says that the summary judgment was incorrect because of some slight discrepancy in the description of the property as contained in appellee’s petition and in appellant’s conditional sale contract; but as the case is being remanded for trial we leave that matter to he determined by the trial court.

We make the same disposition of appellant’s point that the summary judgment should not have been granted until appellant’s special exceptions had been acted upon. We agree that the proper, orderly manner for trial courts to dispose of such matters is to pass on obj ections to pleadings before rendering judgment, but there is nothing in this record to indicate that appellant called these exceptions to the trial court’s attention or requested action thereon. If he did not do so, the exceptions were waived. Rule 90, Vernon’s Texas R.C.P.

Appellant’s fourth point asserts that the summary judgment should be reversed, first, because appellee failed to answer the counterclaim, and, second, because fact issues are raised “as to unjust enrichment of appellee.” The lack of answer to the counterclaim could not in itself prevent rendition of judgment against appellant thereon. Page v. S. J. Kelley Const. Co., Tex.Civ.App., 256 S.W.2d 595, 598. Rule 82, Vernon’s Texas R.C.P.

We understand the point of “unjust enrichment” to be that as appellant alleged in his amended answer that he had added $225. to the value of the property by his labors and material furnished in good faith, it was unjust or improper for the court to award title and possession to appellee without compensation of some sort to appellant; that under the doctrine of accession he was entitled to a trial in which he would have the opportunity to prove, if he can, that in good faith, believing himself to be the owner thereof, he added substantially to the value of the property. Under the law of accession, such proof would entitle appellant to the property; but if appellee is shown to have been the owner, and not estopped to assert such ownership, he would be entitled to a judgment against appellant in an amount equal to the value of the property at the time appellant took possession of it. 1 Tex.Jur.2d 203, ACCESSION.

Upon a trial of the case the burden would of course be on appellant to prove the facts alleged in this respect, but appellee, as movant for summary judgment under Rule 166-A Vernon’s Texas R.C.P., must be held to have assumed the burden of proving that there is no genuine issue of fact on this point raised by the pleadings. Appellee made no showing whatever in this respect. Therefore, appellant’s fourth point is sustained.

Reversed and remanded.

ON MOTION FOR REHEARING

In a vigorous motion for rehearing appel-lee presents: (1) that since appellant did not plead the affirmative defense of estoppel, no issue of estoppel was raised either in the trial court or in this Court and therefore does not constitute a subject for consideration by this Court; (2) that since appellant raised no issue in the court below regarding the identity of the property involved, the issue of identity is likewise not subject to consideration by this Court; (3) that since appellant’s special exceptions had no bearing on the summary proceedings and were not timely presented, they were waived; and (4) that appellant did not seek recovery under the doctrine of accession and, since appellee’s affidavit establishing “recorded ownership” of the property in question was uncontroverted, appellant is charged with notice thereof and was precluded from any recovery under the doctrine of accession as a matter of law.

On the first ground appellee is mistaken, because appellant did plead estoppel affirmatively in paragraph XI of his First Amended Original Answer and Cross-Action.

The second ground, we think, was properly disposed of in our original opinion. This relates to the discrepancy in the description of the property, or the matter of its identity, which we held should be left for determination by the trial court on a trial of the case on its merits.

We agree with what appellee says on the third ground for rehearing, concerning the matter of special exceptions contained in appellant’s pleadings.

He says in his motion for rehearing, as we do in our original opinion, that if the exceptions were not timely presented in the trial court they were waived. However, our reversal was not based in any degree on the failure of the trial court to pass on the exception before considering and granting the motion for summary judgment.

On the fourth ground appellee says that appellant did not seek recovery on his counterclaim under the doctrine of accession, but that whether the claim he considered as founded on “unjust enrichment” or “accession”, neither doctrine is applicable because appellant is charged with notice of appellee’s ownership. This is based on the allegations in the verified motion for summary judgment that, prior to appellant’s purchase from Schell, appellee had sold the property to one Henry Bell who had given appellee a chattel mortgage thereon to secure part of the purchase price; that the registration of such chattel mortgage “reflected that E. H. Jaynes was the owner of the property described therein.” Although a'ppellee also alleged in his said motion that Bell had “reassigned” the property to him prior to appellant’s purchase from Schell, he says the chattel mortgage was still “in effect and had not been released,” and was constructive notice to appellant of ap-pellee’s ownership. We cannot agree with this theory. If appellant had purchased the property from Henry Bell, then we would agree that appellant would be charged with notice of appellee’s lien, but when Bell reassigned the property to appellee the chattel mortgage became functus officio and was not notice to appellant of anything. No copy of the chattel mortgage is attached to the motion for summary judgment, but we think we may safely assume that it described Bell, not appellee, as the owner; and since Bell was not a party to the transaction here involved, his chattel mortgage to appellee did not put appellant on notice of appellee’s ownership. Walker v. Security Loan Inv. Co., Tex.Civ.App., 259 S.W.2d 599, err. ref. n. r. e.; Rhea Mortgage Co. v. Lemmerman, Tex.Comm.App., 10 S.W.2d 690. Even if it could be said to have that effect, there remained the fact issue as to whether Schell had actual or apparent authority to sell the property.

The motion for rehearing is overruled.


author: DENTON, Chief Justice.

text:
    Lida ALLEN, Appellant, v. Homer ALLEN, Appellee.
    No. 7275.
    Court of Civil Appeals of Texas. Amarillo.
    March 25, 1963.

      H. M. Hood, Borger, for appellant.
    Linn & Helms, Spearman, for appellee.
   DENTON, Chief Justice.

This is an appeal from an order granting a temporary injunction enjoining the wife, Lida Allen, from conversing with or having any contact with her husband, Homer Allen, pending final hearing on the merits of their divorce case.

The divorce case was filed by the ap-pellee on March 16, 1962. Upon application filed November 29, 1962, the trial court issued a restraining order enjoining the said Lida Allen as set out above. A hearing was had on December 6, 1962 to determine whether or not a temporary injunction should be issued. The trial court on that date issued the temporary injunction which is being complained of on this appeal.

It is appellant’s contention that the trial court abused its discretion in issuing the temporary injunction; and that such an order was a violation of public policy in that it discouraged reconciliation and the resumption of marital relations of the parties herein. No Statement of Facts has been filed with this Court, and the record contained no findings of fact or conclusions of law. Although both parties’ briefs refer to testimony said to have been introduced on the hearing, we cannot consider such testimony in the absence of a Statement of Facts. McMahan v. Musgrave, (Tex.Civ.App.), 229 S.W.2d 894, (Dismissed.). The granting of a temporary injunction is largely within the discretion of the trial court, and unless a clear abuse of that discretion is shown on appeal his acts will not be disturbed. Witt v. Witt, (Tex.Civ.App.), 205 S.W.2d 612. Izard v. Townsend, (Tex.Civ.App.), 208 S.W.2d 666. Crouch v. Crouch, (Tex.Civ.App.), 164 S.W.2d 35.

In the absence of a Statement of Facts, we must presume that the evidence was sufficient, and that every fact necessary to support the trial court’s order was proved at the hearing. 3 Tex.Jur.2d Appeal and Error-Civil, Section 452, page 702, and cases therein cited. Under such circumstances, we cannot hold the trial court abused its discretion.

Appellant further contends the issuance of a temporary injunction is a violation of public policy. This argument is based on the fact the appellant was enjoined from communicating with or contacting her husband pending the final hearing on the divorce; and that the injunction violates the spirit of the law which, encourages reconciliation and the preservation of the marital relationship. While it is certainly true the courts generally frown on divorces, and a “cooling-off period” of sixty days is required before a divorce can be heard or granted, the district judge is granted broad powers in making temporary orders in respect to the property and the parties in divorce actions. Article 4636, V.A.T.S. Appellee’s sworn pleadings sufficiently plead appellant’s past actions are of such a nature and extent to cause appellee irreparable injury and harm to his health. The trial court clearly acted within its discretion, and from this record we think the court’s order was proper. We know of no public policy which would prohibit the issuance of such an order under the record in this case.

The judgment of the trial court is accordingly affirmed.

Affirmed.


author: NORTHCUTT, Justice.

text:
    Juan H. CASARES, Appellant, v. PIONEER CASUALTY COMPANY, Appellee.
    No. 7242.
    Court of Civil Appeals of Texas. Amarillo.
    March. 25, 1963.
    Boling & Griffith, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   NORTHCUTT, Justice.

This is a venue suit. Appellee, Pioneer Casualty Company, issued a Texas Standard Automobile insurance policy to Virgil Haney on July 11, 1960. On July 25, 1960, Haney’s automobile was being driven and occupied solely by Richard Driggs and was involved in a collision with the automobile of Juan Casares, appellant herein. To recover damages to his automobile caused by said collision, Casares filed suit in Cause No. 10228 in the County Court at Law No. 1 of Lubbock County, Texas against Richard Driggs and Virgil Haney. Judgment was rendered in Cause No. 10228 in favor of Casares as against Driggs in the sum of $501.80 but rendered judgment for Virgil Haney that Casares take nothing and that Haney go hence with this cost. There is nothing herein to show any appeal was taken from that judgment. Since appellant introduced that judgment in evidence herein, we must presume it was a final judgment.

Casares brought this suit against Pioneer Casualty Company to recover the damages granted against Driggs in Cause No. 10228 contending the policy mentioned above included the promise to pay on behalf of the insured, Virgil Haney, or any person using or having custody of such motor vehicle with the permission of the said Virgil Haney, all sums which such person shall become legally obligated to pay as damages. The Pioneer Casualty Company filed a plea of privilege asking that the case be transferred to Bexar County, the place of its residence. Casares filed his controverting plea. The trial court sustained the plea of privilege and ordered the case transferred to Bexar County. From that judgment Casares perfected this appeal. For convenience, Casares will hereafter be referred to as appellant and Pioneer Casualty Company as appellee.

The appellant presents this appeal upon four points of error contending the court erred in holding that an accident insurance company could not be sued on its policy in the county of residence of the beneficiary or named insured; in holding that a fire, marine, or inland insurance company could not be sued in the county in which the insured property was situated; in holding that appellee, a private corporation, could not be sued in the county in which it had an agency or representative; and in holding that appellee, a private corporation, could not be sued in the county in which the cause of action or a part thereof arose.

Under this record we cannot say that the trial court held that an accident insurance company could not be sued on its policy in the county of the residence of the beneficiary or the named insured; nor that the court held a fire, marine, or inland insurance company could not be sued in the county in which the insured property was situated; nor that appellee cou-ld not be sued in the county in which it had an agency or representative; nor that appellee could not be sued in the county in which the cause of action or a part thereof arose. All the court said was that the court considering the plea and controverting affidavit, arguments together with the evidence, the court was of the opinion that the plea of privilege should be sustained. There are no findings of fact or conclusions of law.

It is so well established as the law of this state that a defendant in a case has the right to be sued in the county of his domicile unless one of the exceptions of Article 1995 Vernon’s Ann.Texas Rev.Civ.St. applies that it is unnecessary to cite any authorities. Since appellant seeks to hold venue in Lubbock County under Sections 28 and 23 of Article 1995, he must show the application of the section relied upon. It is stated in Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969 as follows:

“The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important are the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exception must clearly appear. Burtis v. Butler Bros., [148] Tex.Sup. [543], 226 S.W.2d 825, and cases cited at page 828. This principle has not been altered by Rule 47 or others of our Texas Rules of Civil Procedure. See Rule 816, which expressly refers to their effect on venue.”

See also Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062.

In order for appellant to hold venue in Lubbock County under Section 28 of Article 1995 it was incumbent upon him to show that appellee was one of the kind of insurance companies referred to in Section 28. We are unable to see where appellant here has complied with that requirement. It is stated in the case of Pan American Insurance Company v. White, Tex.Civ.App., 321 S.W.2d 337 as follows:

“Furthermore, exception 28, Article 1995 applies to designated classes of insurance companies. In Insured Lloyds v. Classic Motors, Tex.Civ. App., 296 S.W.2d 350 the burden of proof is held to be upon the plaintiff to show by pleading or evidence that the defendant is one of the kind of insurance companies referred to in the particular subdivision.”

Appellant did not prove the necessary venue facts to hold venue in Lubbock County over the appellee’s plea of privilege. It is stated in National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021 what things must be proven as follows:

“Venue facts are what must be proved to make applicable some exception to Art. 1995. They are defined and can be found only in the subdivision of that article which declares the exception. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. By reference to applicable provisions of subdivision 28, as we have quoted them, it is clear that the venue facts Thomason was bound to establish in the hearing on the plea of privilege are: (1) that he was a policyholder; (2) that he resided in McLennan County; (3) that the relator was a life insurance company; and (4) that he was suing on an insurance policy. If they were not proved, the suit must be transferred to the county named in the plea of privilege.”

The appellant here was not a policyholder and neither was the policy here in question a fire nor a life policy.

There is nothing in this record to show that the appellee is an insurance company as set out in Section 28 of Article 1995. The policy here in controversy was an indemnity policy and not a fire nor a life policy as set out in Section 28. Consequently, this action is not within the contemplation of Section 28 of Article 1995. American Fidelity & Casualty Co. v. Jones Transfer & Storage Co., Tex.Civ.App., 46 S.W. 2d 1054.

Under Section 23 of Article 1995 in order for plaintiff to hold venue in a county other than the county of defendant’s domicile where defendant has filed a plea of privilege to have the case transferred to the county of its domicile the plaintiff must show the cause of action or a part thereof arose in the county where the suit was filed. Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675; Pan American Insurance Company v. White, Tex.Civ. App., 321 S.W.2d 337.

The policy provided as to property damage that appellee would pay on behalf of the insured, Virgil Haney, all sums which the insured became legally obligated to pay as damages because of injury to or destruction of property. The policy would not apply unless the insured or his spouse was driving the car or someone driving the car with their consent. Before appellee would be liable to the appellant the appellant would have to first show that Virgil Haney was liable for the damages or that Driggs was authorized by Haney to drive the automobile. Appellant introduced in evidence a copy of the judgment in Cause No. 10228 styled Juan H. Casares v. Richard Driggs and Virgil Haney in which he sought judgment for damages to his car which he now seeks in this suit to recover against the appellee. Appellant in that case recovered judgment against Richard Driggs but it was decreed that this appellant, Juan Ca-sares, take nothing by his suit as to Virgil Haney and that Haney go hence with his cost. The automobile insured in the policy here in question was owned by Haney but was driven by Driggs. There is no proof that Driggs was driving the pickup with Haney’s consent. Without some proof that the cause of action, or a part thereof, as against Haney by giving his permission to Driggs to drive the automobile in question, arose in Lubbock County, there would be no proof to sustain venue in Lubbock County without something to connect Haney with the accident.

Judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    Howard RILES et al., Appellants, v. Henry Carl REICHARDT et ux., Appellees.
    No. 14070.
    Court of Civil Appeals of Texas. Houston.
    April 4, 1963.
    Jim S. Phelps, Houston, for appellants.
    Talbert, Giessel, Cutherell & Barnett, Henry P. Giessel, Houston, for appellees.
   WERLEIN, Justice.

Appellants brought this suit to recover damages on account of personal injuries allegedly sustained by them at about 8:45 o’clock a. m. on April 1, 1959 when the ¾ ton Dodge truck in which they were riding was struck from the rear by appellees’ Mercury driven by appellee, Mrs. Reichardt. They appeal from a take-nothing judgment rendered by the court upon the jury verdict. The evidence shows that for a distance of approximately four blocks the Mercury driven by Mrs. Reichardt had been following the truck in an easterly direction on Little York Road, a black-topped two-lane road about 20 feet wide, and that both vehicles were traveling between 30 and 35 miles per hour, the speed limit being 35 miles per hour.

When the truck reached a point about 200 feet west of the intersection of Little York Road and De Priest Street in Houston, Texas, appellant Riles, who was driving it, put his arm out and began waving his hand, giving no distinct hand signal, according to appellee, but indicating alternately a right turn and a left turn, but not indicating he intended to stop. Appellee testified she saw appellant waiving his hand and thereupon took her foot off the gas and slowed down to about 30 miles per hour. Some distance before reaching the intersection, appellant’s rear stop light came on, indicating the driver had applied his brakes, whereupon appellee immediately applied her brakes. Her car skidded on the wet, muddy pavement some 60 feet over-all, or about 44 feet, and struck the rear of the truck which had come to a stop or was nearly stopped. The collision, according to the traffic officer who investigated, was some 45 feet west of the intersection. Appellee testified that it occurred in front of the second house from the corner, which would have placed it farther back. There were no traffic controls at the intersection, other than stop signs controlling traffic moving in either direction on De Priest Street into Little York Road.

To special issues submitted, the jury found that appellee, Edith Reichardt, did not fail to keep a proper lookout; was not driving at an excessive rate of speed under the circumstances; did not fail to make timely application of her brakes; -was not following too closely; was not guilty of negligence in failing to turn to the left; and was not guilty of negligence in failing to turn right. The jury also found that appellants’ vehicle was not in a position of peril, but that appellee was acting under a sudden emergency and acted prudently when faced therewith, and that such sudden emergency was not the sole proximate cause of the collision.

In answer to defense issues the jury found that appellant, Howard Riles, stopped the truck before reaching the center of the intersection where he intended to turn, and that in doing so he failed to use due care, and such failure was a proximate cause of the collision; that he failed to give a proper hand signal of his intention to stop and his failure to do so was negligence, but such negligence was not a proximate cause of the collision; that he failed to keep a propr er lookout for appellees’ vehicle and that such failure was a proximate cause of the collision. The jury also found that appellants were engaged in a joint enterprise upon the occasion in question. Special issues were submitted inquiring as to whether appellants sustained any physical injuries as a result of the collision, to which the jury answered in the negative as to each of them. The general damage issue and the issue on medical expense as to each appellant were answered “none.”

Appellants contend that the trial court erred in refusing to grant a new trial because the findings of the jury to the issues inquiring as to negligence on the part of appellee, which were all answered in the negative, are not supported by any evidence and are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We have carefully read the statement of facts, and are unable to say that the negative findings of the jury to the issues with respect to negligence on the part of appellee find no support in the evidence or that they are, with the exception of the finding with respect to following too closely, so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

The finding of the jury, that appellees’ car was not following the truck too closely, has given u's grave concern. Appellee testified at one place that she was following the truck about one car length behind it. At another time she testified that there was room between her car and the truck for a car to pass her and drive in between her car and the truck, and that such distance was the length of the car anyway. At another point she testified that the distance between her car and the truck was the length of the courtroom in which the case was being tried, and was every bit the length of the bar of the jury box. Appellant Smither was asked: “About how far back did you first see Mrs. Reichardt’s car?” and answered, “Better than SO feet, at least.”

It is true that the instant case is distinguishable from most of the cases relied upon by appellants. In this case there is no evidence that the lead vehicle had slowed down or stopped in obedience to a red traffic control light or stop sign, or in a line of traffic that had come to a stop, or that the driver of the trailing car had not kept a proper lookout or had failed to apply her brakes. The undisputed evidence is that appellee was watching the truck at all times; that when the driver of the truck began waving his hand, appellee took her foot off of the gas and began slowing down; and that both vehicles were going at approximately the same speed. There is' also evidence that no hand stop signal was given by the truck driver; that the hand signals that he did give were confusing and indicated a right or left turn into De Priest Street; that appellee applied her brakes immediately upon the truck’s stop light coming on; and that the truck stopped quickly, but without skidding, whereas ap-pellees’ car upon application of the brakes skidded about 44 feet on the road which, at such point, was wet, muddy and slippery.

We’ have concluded, however, that under the attendant circumstances, including the wet pavement, the speed at which appellee was driving, and the signals visible to appellee indicating that the driver of the truck was slowing down and would likely make either a right turn or a left turn into De Priest Street, or stop before making a turn, the finding of the jury that appellee was not following too closely is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Edwards v. Hawkins, Tex.Civ.App., 77 S.W.2d 1098; Sutherland v. Cotter, Tex. Civ.App., 226 S.W.2d 476; Miller v. Wagoner, Tex.Civ.App., 356 S.W.2d 363.

Appellants next complain that the findings of the jury with respect to negligence on the part of appellant Riles are not supported by any evidence and are against the great weight and preponderance of the evidence. The jury found that appellant Riles failed to keep a proper lookout for the automobile of appellee at the time and on the occasion in question. Applying the test enunciated by the court in In re King’s Estate, 150 Tex. 662, 244 S.W. 2d 660, we have concluded that this finding and also the finding of the jury to the proximate cause issue based thereon, are not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Riles testified that he didn’t know Mrs. Reichardt was behind him before she collided with the truck; that he didn’t see her car at any time before he stopped to make his turn; and that he didn’t know whether or not he looked in his rear view mirror to check the traffic behind him. Appellants take the position that the driver of the lead car is not required to keep a lookout for traffic that may be following or trailing. Of course, the driver of the lead car cannot maintain a continuous lookout to the rear as he must necessarily be looking ahead and watching for traffic not only ahead but traffic that might be coming in from side streets. It is our view, however, that in any situation where the lead vehicle, as in this case, stops quickly when not in obedience to a traffic control device, or when not in a line of traffic, the driver thereof has the duty of maintaining such proper lookout for trailing vehicles as will enable him to give their drivers a timely and intelligible signal of his intended movement in order to avoid a collision.

In Le Sage v. Smith, Tex.Civ.App., 145 S.W.2d 308, writ dism., judgment cor., relied upon by appellants, the court announced not only the general rule that the driver of a vehicle is under no duty to maintain a lookout for vehicles approaching from the rear, but also the following exception:

“ * * * unless the driver of such car either slows down his vehicle or intends to stop the same, under which circumstances, or either of them, it would be the driver’s duty to keep a proper lookout for vehicles following such car and to then give a proper signal to apprise the driver of the car in the rear of such intention.”

In the case at bar, the evidence is undisputed that appellant Riles kept no lookout whatever to the rear. There is also ample evidence that he gave no intelligible hand signal of his intention to stop or to slow down, although it is undisputed that he intended to slow down and make a lefthand turn into De Priest Street, and that he did in fact stop or practically come to a stop at least 45 feet from the intersection where he intended to turn to the left. The fact that the truck’s stop light came on when appellant Riles applied his brakes did not relieve him of the duty of maintaining a proper lookout to the rear, which, if maintained, would have apprised him of the close proximity of appellees’ car, and probably would have enabled him to avoid the collision. Jones v. Downey, Tex.Civ.App., 359 S.W.2d 116; Deal v. McLeroy, Tex.Civ. App., 346 S.W.2d 934.

The following language of the court in Scott v. McElroy, Tex.Civ.App., 361 S.W. 2d 432, writ ref., n. r. e., is applicable to the present case:

“This is not a case in which the lead driver slowed down or stopped because his travel was impeded by traffic, Le-Sage v. Smith, Tex.Civ.App., 145 S.W. 2d 308; nor is it one in which the driver stopped in obedience to traffic signals or traffic controls. Kuykendall v. Doose, Tex.Civ.App., 260 S.W.2d 435; Bass v. Stockton, Tex.Civ.App., 236 S.W.2d 229. A lookout to the rear is not required in those cases, but Le-Sage v. Smith, supra, states the exception to that general rule. When one in a stream of traffic slows his vehicle, or stops it, or changes his course, a duty arises to see what is behind when he makes the change.”

Appellants contend that the finding of the jury that Riles was negligent in failing to bring his vehicle to a stop before reaching the center of the intersection where he intended to turn to the left, and also the findings of negligence and proximate cause predicated thereupon, are not supported by any evidence and are against the great weight and preponderance of the evidence. In view of our holding with respect to contributory negligence on the part of the driver of the truck in failing to keep a proper lookout, we think it will serve no useful purpose to consider these assignments of error.

We overrule appellants’ points that the finding of the jury that Riles and Smither were engaged in a joint enterprise is not supported by any evidence and is against the great weight and preponderance of the evidence. Appellants have not briefed such points, and hence have waived them. Doherty v. San Augustine Independent School Dist., Tex.Civ.App.1944, 178 S.W.2d 866, writ ref.; Rayburn v. Giles, Tex.Civ.App.1944, 182 S.W.2d 9, writ ref.; Rule 418, Texas Rules of Civil Procedure. Although not required to do so, we have considered such points and find no merit in them.

We also overrule appellants’ contention that the finding by the jury that Smither sustained no injuries or damages is not supported by any evidence and is against the great weight and preponderance of the evidence. We think the jury’s findings are amply supported by the evidence.

In view of our holding with respect to contributory negligence on the part of appellant Riles, we find it unnecessary to decide whether or not the finding that he sustained no injury or damages is against the great weight and preponderance of the evidence. In the case of Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W. 2d 334, our Supreme Court held that the issue of damage becomes immaterial after a jury finding of contributory negligence which proximately caused the collision. There is nothing in the record to indicate that the jury’s verdict was based upon bias or prejudice.

Judgment affirmed.