author: HUGHES, Justice.

text:
    ALLIED FINANCE COMPANY, Appellant, v. STATE of Texas, Appellee.
    No. 11209.
    Court of Civil Appeals of Texas. Austin.
    Feb. 3, 1965.
    Rehearing Denied March 3, 1965.

      Locke, Purnell, Boren, Laney & Neely, J. L. Shook, John D. Crawford, Dallas, for appellant.
    Waggoner Carr, Atty. Gen., H. Grady Chandler, J. H. Broadhurst, Asst. Attys. Gen., Austin, for appellee.
   HUGHES, Justice.

This suit was brought by the State of Texas against Oakhurst Television and Supply Company, a corporation, and A. M. Fielding to recover taxes, interest and penalties alleged to be owed it under the provisions of Ch. 20, Article 20.01-20.20, inclusive, Title 122A, Taxation-General, Vernon’s Ann.Tex.Civ.St.

Taxes in the sum of $9,378.02 were alleged to be due as a result of retail sales of radio and television sets by the defendants above named.

The State also alleged that it had had issued a writ of attachment which was levied on a 1960 Chevrolet Corvair automobile and a 1956 Ford one-half ton pickup truck as the property of such defendants and that Allied Finance Company had replevied such vehicles and that it claimed an interest or lien on such vehicles but that such lien or claim was inferior to the rights of the State. Allied Finance Company was made a party defendant.

Allied pleaded that it had liens on such vehicles created by compliance with Art. 14.36-1 et seq. Vernon’s Ann.P.C., and that its liens were superior to any claim or lien of the State. Allied also alleged that Arts. 20.13 and 1.07, Ch. 20, Title 122A were unconstitutional.

It was stipulated that the origin of the liens of Allied was a conditional sales contract executed February 16, 1960, and that Certificates of Title were issued by the Motor Vehicle Division of the State Highway Department on March 24 and March 25, 1960, for the two vehicles involved on which were respectively shown the liens above noted as the only liens against such vehicles.

It was also stipulated that subsequent to February 16, 1960, it was discovered that Oakhurst Television and Supply Company was indebted to the State in the amount of $9,378.02 excise taxes under Ch. 20, Title 122A, supra, by reason of the retail sale of radio and television sets, which taxes accrued between September 1, 1959 and December 31, 1960.

It was further stipulated that, “That there is no notation on either Certificate of Title, Exhibits ‘B’ and ‘C’, of a lien in favor of the State of Texas; (b) that there was no public record and index anywhere of the amount of taxes due and owing the State of Texas by Oakhurst T. V. & Supply Company and/or Al M. Fielding, on February 15th, 1960.”

Other stipulations were made concerning the amount of taxes due, the bona fides of the parties and matters relating to the attachment and replevy which we do not particularize because no question is raised concerning them.

Trial, non-jury, resulted in judgment for the State against Oakhurst and Fielding for the amount sued for and judgment against Allied decreeing the lien of the State to be superior to its liens and rendering judgment against Allied and its replevy bond surety, Insured Lloyds, for $1700.00, the amount of its stipulated liability on the replevy bond in the event of an adverse judgment. Allied, only, has appealed.

The lien of the State upon the vehicles in suit arises by virtue of the following statutes:

Art. 1.07, Vol. 20A, V.T.C.S., which we •quote:

“(1) All taxes, fines, penalties and interest due by an individual, firm, association, joint stock company, syndicate, copartnership, corporation, agency, trustee, or receiver to the State of Texas, by virtue of this Title, shall be a preferred lien, first and prior to any and all other existing liens, contract or statutory, legal or equitable, and regardless of the time such liens originated, upon all the property of any individual, firm, association, joint stock company, syndicate, copartnership, corporation, agency, trustee, or receiver. This lien shall be cumulative, and in addition to the liens for taxes, fines, penalties, and interest now provided by law, and shall attach as of the date such tax or taxes are due and payable.”

Art. 20.13, Vol. 20A, V.T.C.S., which we quote:

“All taxes, penalties, interest and costs due by any retailer under the provisions of this Chapter and all taxes collected and required to be paid by said retailer to the State, shall be secured by a preferred lien, first and prior to any and all other existing liens, ■contract or statutory, legal or equitable, and regardless of the time such liens originated, upon all the personal property of any retailer, devoted to .or used in his business as a retailer, which property shall include equipment, inventories on hand of every kind and character whatsoever used or usable in such business, including cash on hand and in bank, accounts and notes receivable, and any and all other personal property of every kind and character whatsoever or wherever situated devoted to such use.”

These articles were both enacted in 1959. Acts 1959, 56 Leg. 3rd C.S., p. 187, Ch. 1.

The lien of Allied is by virtue of Art. 1436-1 of the Texas Penal Code, Motor Vehicles; Certificate of Title Act.

Section 1 of this Act provides, in part, that “ * * * it is hereby declared to be the legislative intent and policy of this State to * * * prevent * * * the sale of encumbered motor vehicles * * * without the enforced disclosure to the purchaser of any and all liens for which any such motor vehicle * * * stands as security * * * ”

Section 3 of the Act provides:

“Sec. 3. The term ‘Lien’ means evei'y kind of lease, conditional sales contract, deed of trust, chattel mortgage, trust receipt, reservation of title, or other written instrument of whatsoever kind or character whereby an interest, other than absolute title, is sought to be held or given in a motor vehicle, also any lien created or given by Constitution or Statute.”

Sections 42, 43, 44 and 46 of the Act provide :

“Sec. 42. No lien on any motor vehicle shall be valid as against third parties without actual knowledge thereof or enforceable against the motor vehicle of any such third parties as the issuance of a certificate of title thereof, unless an application for a new title is made as prescribed in this Act and all first and subsequent liens noted by the Department thereon.
“Sec. 43. All liens on motor vehicles shall take priority according to the order of time the same are recorded on the receipt or certificate of title of all such recordings to be made by the Department.
“Sec. 44. No lien on any motor vehicle to which a receipt or certificate of title has been issued shall be valid as against third parties without actual knowledge thereof, or enforceable against the motor vehicle of any such third parties, unless the notation of said lien shall have been caused to be made on receipts and certificates of title on said motor vehicle, as provided in this Act.
“Sec. 46. Only liens noted on a receipt or certificate of title shall be valid as against creditors of the mortgagor in so far as concerns the motor vehicle.”

The above Act, originally enacted in 1939, has been amended several times but the sections above quoted have not been amended in or subsequent to the year 1959 except Sec. 1 which was amended in 1959 but not in a manner material to the quotation we have made therefrom.

It is obvious that if the motor vehicle Certificate of Title Act is applicable to the State in the present context, it has no lien on the two attached cars. We have concluded that it is not so applicable and that the liens of the State under Arts. 1.07 and 20.13,. supra, are superior to the liens of appellant against these vehicles.

The general rule is that the State is ordinarily not within the purview of a statute unless the intention to include it is clearly manifest. 82 C.J.S. Statutes § 317, p. 554.

There is nothing in the Certificate of Title Act to indicate that it is applicable to the State in respect to its statutory lien here asserted. There is, however, evidence of legislative intent not to apply the Certificate of Title Act to the liens asserted here which is found in Arts. 1.07A and 1.07B of Ch. 1, Title 122A, Taxation-General, V. T. C. S., which provide for the recording in the office of the County Clerk of tax claims filed by the State against persons etc. against whom the State has assessed taxes to be due under such Title and which provides that from the date of such recording such claim shall operate as a lien on the real estate of the person etc. owing such tax.

Similar evidence of such intent is found in Arts. 9.08 and 10.17 of Title 122A found in Chs. 9 and 10, respectively, of such Title which Chapters relate to a motor fuel tax and a special fuels tax, the Articles noted providing for the creation of a lien on motor vehicles belonging to the tax payer by the Comptroller of Public Accounts filing notice of the lien with the State Highway Department and providing that “such liens shall not be valid as to any mortgagee of a motor vehicle if the lien of such mortgagee was created and recorded prior to the filing of such certificate by the Comptroller of Public Accounts with the State Highway Commission.”

These instances of legislative activity clearly demonstrate that the Legislature was aware of the problem created by the priority provisions of Arts. 1.07 and 20.13, and they dealt with such problem specifically as shown. We must accord to such actions by the Legislature their natural and normal effect, which is that the preferences provided in such articles remain in full force except as modified by the Legislature. To hold otherwise would be to give no effect to any of the modifying statutes, because if Allied is correct the law is the same without as it is under such, statutes.

State of Texas v. Wynne, 134 Tex. 455, 133 S.W.2d 951, (1939) is dispositive of this suit. There the Court considered. Sec. 7 of Art. 7065a, R.C.S. 1925, now repealed, which provided, in part, that, “All taxes, fines, penalties and interest due by any distributor to the State (for gasoline excise taxes etc.) shall be a preferred lien, first and prior to any and all other existing liens, contract or statutory, legal or equitable, and regardless of the time such liens originated, upon all the property of any distributor, devoted to or used in his business as a distributor * * * ” and held that the lien created by this statute was prior and superior to contractual liens accruing prior to the enactment of the statute. In reaching this decision, the Court used the following language:

“Many courts hold that property used in a business may be subjected to ■ a lien for an excise or occupation tax on the business carried on, although it is not owned by the person carrying on the business * * *
“It is contended by some of the in-tervenors, if not by all of them, that Section 7, in creating a lien to secure the motor fuel tax and providing that such lien should be prior and superior to all other liens, speaks prospectively and not retrospectively, and has no application to contractual liens accruing prior to the passage of the Act; the priority of the State’s lien over other liens being limited to those liens, contractual or statutory, accruing subsequent to the passage of such Act.
“The burden of levying taxes rests on the Legislature, and that body has plenary power of prescribing the mode of taxation to raise revenue; and the specification of certain objects and subjects of taxation in the Constitution does not prevent it from passing laws requiring other subjects or objects to be taxed, unless expressly prohibited by the Constitution. Section 17 of Article 8, Constitution, Vernon’s Ann. St
“It has been demonstrated that only a small per cent, of the amount of funds necessary to maintain the State government is raised under the ad valorem tax plan. The Legislature has been compelled to resort to other methods of raising revenue to meet the demands of our expanding State government. Hence Articles 7065a — 1 et seq., 7047, Vernon’s Ann.Civ.St, and others, of the Revised Civil Statutes were enacted. It is well known that Article 7065a — 1 et seq. is the State’s greatest revenue producer; Section 41a of Article 7047 imposes an occupation or excise tax on every person in Texas manufacturing or importing cement, and who thereafter distributes, sells or uses the same in intrastate commerce. Likewise, the law imposes an occupation or excise tax on several other occupations, and gives the State a preference lien on the property used in connection with such occupations. * * *
“It may well be admitted that the rule fixed in this Act may appear to be harsh, and will cause hardships to those who in good faith have acquired liens on property prior to the time when taxes may be due the State under this law. The Legislature has seen fit, in the exercise of its power and discretion, to so declare that' to be the public policy of this State. The history of this Act and the language used therein leaves no doubt as to the clear intention of the Legislature to declare all liens, regardless of the time when such liens originated, upon the property used by the distributor, described in said Act, to be inferior to the claim and lien of the State fixed by this law.
It appears that the Legislature has adopted this mode of taxation in order to obtain revenue to support the State government. It is the duty of the courts to uphold such legislation, unless it clearly appears to violate some provision of our Constitution. The decisions above cited tend to uphold such legislation. This Court holds that the Act in question is a valid exercise of the power delegated by the Constitution to the Legislature to levy taxes. If same is unjust and needs amending, that power rests exclusively with the Legislature.”

Following this case and in conformity with it is the case of Gummelt v. Southwestern Indemnity Company, 363 S.W.2d 379, Waco Tex.Civ.App., writ ref., n. r. e.

The above discussion and citation of authorities requires us to overrule appellant’s points that the liens asserted by it are valid as against the liens of the State and that enforcement of the tax liens of the State unconstitutionally deprives it -of its property without due process of law as guaranteed by the Federal Constitution.

The judgment of the trial court is affirmed.

      . This Article was supplemented by Arts. 1.07A and 1.07B, Acts 1961, 67th Leg., p. 201, Ch. 104, Secs. 2, 3.

      . Italics ours.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    E. A. QUILTER, Appellant, v. Patrick M. WENDLAND et al., Appellees.
    No. 14487.
    Court of Civil Appeals of Texas. Houston.
    Feb. 11, 1965.
    Rehearing Denied March 4, 1965.
    Parks & Fullenweider, Donn C. Fullen-weider, Houston, for appellant.
    Hinds & Meyer, John K. Meyer, Houston,, for appellees Patrick M. Wendland and Rev. Thomas A. Wendland.
    Holman, Saccomanno, Clegg & Martin,. Norman W. Black, Houston, for appellee.-E. W. Quilter.
   COLEMAN, Justice.

This is a suit by Patrick M. Wendland, Thomas A. Wendland, plaintiffs, and by E. W. Quilter, Intervenor, for declaratory judgment that they are the owners of certain funds in savings accounts held by Gibraltar Savings Association by right of survivorship, the accounts having been established by Mrs. E. J. Lutz, deceased, with her money as accounts in joint tenancy with right of survivorship. E. A. Quilter, the independent executor of the estate of Mrs. E. J. Lutz, was named defendant. After a trial to the court without a jury judgment was entered favorable to plaintiffs and in-tervenor and the defendant appealed.

Mr. E. D. King, Vice-President of the Gibraltar Savings Association, testified that he was in charge of the savings department of the Association with the responsibility of opening new savings accounts and handling customer relations on problems dealing with savings accounts. On September 15, 1961, Mrs. Lutz called Mr. King and told him that her health was not good and that she wanted to open three new savings accounts of $5,000.00 each on that day and wondered if he could open the accounts and bring the books out to her home and pick up her check.

Mr. King told her that while it was quite unusual for a pass book to be delivered before the money was received, he would be glad to do this for her and proceeded to secure the necessary information over the telephone. She told him that she wanted the name Patrick M. Wendland on one account, Father Thomas A. Wendland and Sister Michael Wendland on another, and E. W. Quilter on the third, so that this money could be divided among them. Mr. King explained that the Association had two types of accounts that might suit her purpose, either a joint account with right of survivorship, or a trustee account. He told her that in the case of a trustee account the niece and nephews could not draw out any of the money during her lifetime and need not be told of the accounts, but that by establishing the joint account either of the parties named as an owner of the account could draw the money on presentation of the account book, and that the money would belong to the surviving owner in either instance. Mrs. Lutz then directed Mr. King to open the joint accounts with right of survivorship. Mr. King then wrote the accounts as directed and had each account posted on the Association’s books, gave his own I. O. U. for $15,000.00, and took the pass books and signature cards to the home of Mrs. Lutz. There he was given a check for $15,000.00 and delivered the pass books and signature cards to Mrs. Lutz. He told her that it was necessary that the signature cards be signed by her and the other named owners and returned to him. Mrs. Lutz told him that her niece and nephews came by to see her from time to time and that the next time they were in she would have them sign. She directed that dividend checks be sent to her. The pass books were identical except for the names. Certificate No. 94701 is headed Savings Share Account “as joint tenants with right of survivorship and not as tenants in common.”

The signature cards delivered to Mrs. Lutz were signed by her. Only one of the appellees, Patrick M. Wendland, visited Mrs. Lutz prior to October 5, 1961, when she was admitted to the hospital where she remained until her death on December 5, 1961. All of the appellees visited her in the hospital. When Patrick M. Wendland visited Mrs. Lutz she told him of the accounts and requested him to sign the signature card. By mistake he signed the wrong card. The condition of Mrs. Lutz at the time of the visits of the other appel-lees is not shown by the evidence, but the signature cards were not presented to them and have not been signed by them. After the death of Mrs. Lutz the Association, at the request of Mr. Quilter, cancelled Account No. 94699 in the names of Mrs. Lutz and Mr. Quilter, and issued a new account No. 96631 in the name of Mr. and Mrs. E. W. Quilter. The signature cards were identical except for the names and read as follows:

“Acct. No_SIGNATURE CARD AND APPLICATION Date_19—
As Joint Tenants with Right' of Survivorship
(One signature required for withdrawal) Mr.
(1) (Last Name) Mrs. - Miss (Other names or initials used in signature)
(2) (Last Name) Mr. Mrs. - Miss (Other names or initials used in signature)
(3) (Last Name) Mr. Mrs. --- Miss (Other names or initials used in signature)
As Joint Tenants with right of survivorship and not as tenants in common the undersigned hereby apply for a savings account and membership in the
GIBRALTER SAVINGS ASSOCIATION, Houston, Texas
and herewith attach $_, to be credited thereon,

and for the issuance of a certificate evidencing such account and membership in their joint names as joint tenants with right of survivorship and not as tenants in common, as above specified. Specimens of the signatures of such joint tenants are shown below. Any one or more of the Joint Tenants is authorized to act in all matters relating to this account, including, but not limited to, the withdrawal of funds from this account and the pledging of this account, in whole or in part, as security for any loan made by the Association to one or more of the Joint Tenants. Such withdrawal or pledge shall not operate to sever or terminate the joint tenancy relationship between the Joint Tenants. It is agreed by the undersigned parties with each other, and by the parties with said Association, that any funds placed in or added to the account by any one of the undersigned joint tenants is, and shall be, conclusively intended to be a gift, at that time, of such funds to the other joint tenant or joint tenants, to the extent of his or their pro rata interest in the account. Any one of the undersigned joint tenants is authorized to withdraw funds from this account.

At all meetings at which one of the undersigned is not present the Official Proxy Committee of the Association is hereby appointed our attorney-in-fact and proxy, and we hereby authorize said Committee to cast all votes to which we are entitled by reason of membership in the Association. It is understood that said Official Proxy Committee may be changed from time to time by the Board of Directors and that a majority of said Committee, as constituted at the time of any meeting of shareholders, shall be authorized to cast the vote or votes of the undersigned.

In Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48, an investment share account was purchased by W. T. Williams in the principal sum of $10,000.00 from a savings and loan association. The certificate was issued in the name of W. T. Williams and/or Mrs. Ila Mae Krueger. The certificate was not introduced into evidence, but the receipt card recited: “W. T. Williams and/or Ila Mae Krueger or payable to the survivor of either.” The card was signed by Mr. Williams, who also signed Mrs. Krueger’s name. The evidence did not reveal whether or not Mrs. Krueger knew of the existence of the certificate prior to her father’s death. The court cited Chandler v. Kountze, Tex.Civ.App., 130 S.W.2d 327, error ref., Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470, and Davis v. East Texas Savings & Loan Association, 163 Tex. 361, 354 S.W.2d 926, for the proposition that a contract made by a decedent with a savings and loan association by which an account was established making decedent and a third person joint tenants with the right of survivorship is enforceable by the third person for whose benefit the contract was made whether he is a creditor or a donee.

The court then held that the recitation in the receipt card fell short of expressing a •clear intention to vest the absolute right of the ownership of the funds in the survivor, but that it did vest in her some present interest in and control over the certificate as well as the contractual right to possession of the proceeds as survivor, creating a re-buttable presumption of such intention.

In this case the recitations in the pass books and in the signature cards clearly express an intention to vest the absolute right to ownership of the funds in the survivor. The trial court found that such was her intention and this finding is clearly supported by the evidence.

It is clear that there was an agreement between Mrs. Lutz and the Association to establish a joint account with right of survivorship which was executed by acceptance of Mrs. Lutz’s money by the Association, the issuance of the pass books, the payment by the Association of dividends on the accounts, and the payment of the money in one of the accounts to Mr. Quilter as survivor. The contract between Mrs. Lutz and the Association was complete prior to her death despite the failure of the donees to sign the application card and the failure of Mrs. Lutz to return them to the Association. Krueger -v. Williams, supra.

The judgment of the trial court is affirmed.


author: PHILLIPS, Justice

text:
    FIREMAN’S FUND INSURANCE COMPANY, Appellant, v. Sam MARTINEZ, Appellee.
    No. 11264.
    Court of Civil Appeals of Texas. Austin.
    Feb. 10, 1965.
    Rehearing Denied March 3, 1965.

      Guittard, Henderson & Jones, Victoria, for appellant.
    Splawn & Maner, J. R. Lindley, Lubbock, for appellee.
   PHILLIPS, Justice

This is an action brought under the Texas Workmen’s Compensation Act, Article 8306, Vernon’s Ann.Civ.St. The appellee, plaintiff below, alleged that he sustained total, and permanent injuries while employed by Mucole Incorporated as a trash collector on the Fort Hood Military Reservation in August of 1963. The injury was to appellee’s back and was caused by lifting a trash can filled with litter weighing some fifty to eighty pounds.

Appellee duly filed his claim and perfected his appeal from the award of the Industrial Accident Board to the District Court. At the conclusion of the trial, ap-pellee was awarded judgment on a jury-verdict for compensation benefits totalling $9,072.91 for a period of 284 weeks.

Appellant is before this Court on five points of error the first three being the error of the trial court in entering judgment for total and permanent disability since there was no evidence to support the jury findings thereto, that there was insufficient evidence to support this jury finding, and that such' findings are against the great weight and preponderance of the evidence. Appellant’s fourth point is the error of the trial court in allowing the appellee to testify with respect to his future disability and the extent thereof. The fifth point is the ex-cessiveness of the judgment.

Appellee has a motion before this Court to dismiss this appeal for lack of jurisdiction. Appellee contends that the judgment in the case at bar was signed and entered May 25, 1964 and that appellant failed to file a motion for a new trial as required by Rule 324 Texas Rules of Civil Procedure within the ten days required by Rule 329-b T.R.C.P. Appellant had moved that the judgment of May 25 be set aside, however the court refused this motion but did interline the original judgment of May 25 changing the judgment to read June 17, 1964. The court stated in his order refusing to set the judgment aside that the sole purpose of changing the judgment was to extend the time in which the defendant (appellant) might file a motion for new trial. We hold that the trial court was not authorized to enlarge the time for filing the motion. Rule 5, T.R.C.P. In A. F. Jones and Sons et al. v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853, wherein the trial court granted a party leave to file a Motion for New Trial after the time set by the' rules had passed, the Court said:

“The trial court certainly could not, on its own initiative, make any effective order affirming its former judgment and thereby extend the period for perfecting' an appeal. The trial court’s inherent power resides only in the right of altering its former judgment and since it does not have the power on its own initiative to extend the period for appellate procedure, neither does it have the power to grant leave to file and then overrule a tardy motion for new trial, which, in effect and actuality, goes beyond its inherent jurisdiction and beyond the scope of Rule 320 and Rule 5.”

Appellant maintains that he filed a motion with the Court on the day the judgment was entered (May 25) objecting to the proposed judgment on the same grounds that he is now before this Court That this motion fulfilled, in every respect, the requirements of a motion non obstante vere-dicto (Rule 301 T.R.C.P.) in which case a motion for new trial is not required. See Rule 324 T.R.C.P. Also see Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887.

We agree with appellant’s contention and hold that we have jurisdiction on an appeal from the court’s overruling the motion for judgment non obstante. In such a case we may disregard the fact that a motion for new trial was not timely filed, however, we are limited in our consideration only to those points raised in appellant’s motion non obstante veredicto. Wagner v. Foster, supra. In this motion appellant raised two issues, namely, the questions of no evidence and insufficient evidence. For reasons discussed later in this opinion our consideration here is limited to the former.

This Court is well aware that there is no fixed rule of evidence by which a claimant is required to establish in a compensation case the fact that he suffered an injury that caused permanent and total disability; that such disability may be established:.by testimony of the plaintiff alone even though his testimony may be contradicted by a medical witness; and that the jury is the sole judge of the credibility of witnesses and the weight to be given their testimony in compensation cases. American General Insurance Company v. Florez, Tex.Civ.App., 327 S.W.2d 643; Travelers Insurance Co. v. Wade, Tex.Civ.App., 373 S. W.2d 881, er. ref., n. r. e.

There is no controversy over the fact that appellee injured his back in some manner in August of 1963 or that he was incapacitated until the date of trial. The following is the testimony on which the “total and permanent” issues could be sustained:

“Q. (Directed to appellee) How long were you in the hospital?
“A. I don’t remember. Four and a half days or five days.
“Q. All the time you were in the hospital did your back ever get well ?
“A. Well, it got a little better and that is all. It still hurts, you know?
“Q. Is your back hurting you now, Sam?
“A. Yes, sir, my back is hurting right now. I am tired of sitting down .and it hurts me right now.
“Q. Can you sleep at nights ?
“A. Sometimes I can and sometimes I can’t. Sometimes I have to get me some hot towels so that I can sleep good.
“Q. Where is this pain you have in your back, Sam?
"A. It is right up here.
“Q. You are indicating about your belt line and right in the middle of your back, is that right?
“A. Yes, sir.
“Q. Does it hurt anywhere else ?
“A. Right up here. I have got a pain right up here. Then when I walk I get a pain over here.
“Q. Down in your left leg?
“A. .Yes, sir.
“Q. Can you get a job now, Sam?
“A. No, sir.
******
“Q. Can you do any work now, Sam?
“A. No, sir.
“Q. Why can’t you?
“A. Because my back hurts and I can’t stand it.
“Q. Do you think this is going to be a continuing thing, Sam, this back hurting?
“A. Yes, sir. I believe it was. (Here appellant objected)
“Q. Sam, in your opinion can you get a job and hold it?
“A. No, sir.
******
“Q. Sam, based on your physical condition, in your opinion do you think you are disabled right now?
“A. Yes, sir.
“Q. Okay, Sam, now based on your physical condition, of which you are well aware, in your opinion do you feel that this is getting any better right now ?
“A. No, sir.
“Q. Has it gotten any better up to the present date from the time you got hurt ?
“A. No, sir.
“Q. All right, Sam, in your opinion based upon your physical condition do you believe that your are ever going to be able to get a job and hold it in the future? (Here appellant objected)
“A. No sir, I don’t think so.
“Q. Sam, based upon your present condition could you do any of the work now that you have done in the past?
“A. I don’t think so.
******
“Q. Is this pain or this condition getting any better, Sam?
“A. No. sir.
“Q. Is it staying about the same?
“A. It is staying about the same.
“Q. Does it hurt all of the time, Sam?
“A. Yes, sir, mostly all the time.
* * " * * * *
“Q. How did you get by ?
“A. Well, at first we had a little money and then Papa helped us a little bit and then we went broke.
“Q. When you went out for this Mr. Rodriguez, what did you do out there?
“A. We cut posts.
“Q. Did you cut any or what did you do?
“A. Well, my Daddy used to cut out there and I helped him a little bit and we would bring them on in and we made about $8.00 and we had to split it.
“Q. That gave you about $4.00?
“A. Four dollars, yes, sir.
“Q. How many days did you do this?
“A. Well, about six days. I would go maybe twice this week and don’t go any more until maybe next week and sometimes I go every two weeks.
“Q. Now, you cut fence posts here once before' for T. E. Sander-ford?
“A. Yes, sir.
“Q. Are you able to cut them out there like you used to for Mr. Sanderford?
“A. No, sir.
“Q. In fact there is quite a bit of difference, isn’t there, Sam?
“A. Yes, sir.
“Q. Now, the only work that you have ever done in your life has been hard manual labor, hasn’t it ?
“A. Yes, sir.
“Q. Pick and shovel ?
“A. Pick and shovel. ■
“Q. B ending you back ?
“A. Yes, sir.
“Q. And doing a lot of lifting and straining ?
“A. Yes, sir.
“Q. In your opinion based on your present condition, do you think you are going to be able to do that any more?
“A. I don’t think so.”

Appellee is 38 years old and has worked all of his life as a day laborer doing heavy work. He testified that he had worked some during the past August picking up pecans and cutting cedar posts, however, he tired easily and could not work for long periods of time. He had not tried to get any other job.

Dr. R. A. Murray who treated appellee after his injury at Scott and White Clinic in Temple and who had examined him on several occasions since (the last occasion being a week before trial) testified that ap-pellee’s original injury was caused by an acute strain of his low back; that his symptoms at the time of injury'would indicate such a diagnosis; that he observed ap-pellee closely through August and September and that the symptoms disáppeared; that when he examined appellee in October he was normal, that he advised appellee that he could start working in a. limited capacity and gradually increase it; that when he examined appellee a week before tr.ial he could find no symptoms of the original injury. Dr. Murray then testified that x-rays had revealed no damage to the spine and that measurements of appellee’s legs had revealed no diminution. When asked whether in his opinion appellee was capable of getting and keeping a job at the present time, Dr. Murray testified that he knew of no reason why he could not.

In passing on a motion for judgment notwithstanding the verdict, the trial court must be governed by the test of whether there is any evidence of probative force sufficient to raise an issue of fact. Any inference that may be reasonably drawn from the testimony must be indulged against granting the motion. And if there is any evidence of probative force sufficient to raise an issue of fact, the motion must be denied. See 33 Tex.Jur.2d, Sec. 74, p. 588 and the cases there cited. Rule 301 T.R. C.P. states that a jury finding can be disregarded only when it has no support in the evidence. Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206.

In the case at bar, disregarding, appellee’s testimony as to future probability which should not have been admitted (Traveler’s Insurance Co. v. Wade, supra), there was no question but that he was injured. He also testified that he was not able to work for some nine months preceding trial in his usual capacity as a laborer and that his condition had not improved at all during this time. In viewing the evidence where a motion for instructed verdict Or judgment notwithstanding the verdict is sought, all testimony must be considered in its most favorable light to one against whom instruction is to be given, and conflicts are to be disregarded and every reasonable intendment deducible from evidence indulged in his favor. McElwee v. Manufacturers Casualty Ins. Co., Tex.Civ.App., 221 S.W.2d 381, er. ref., n. r. e.

The jury had the right to infer that appellee was permanently disabled from the evidence presented and would not be able to do heavy work again even though a medical witness had expressed an opinion to the contrary. Oilmen’s Reciprocal Ass’n v. Harris, Tex.Civ.App., 293 S.W. 580. Moreover it was the jury’s province to weigh all of the evidence, to decide what credence should be given to the whole or any part of the testimony of each witness. The jury were the judges not only of the facts proved, but of the inferences to be drawn therefrom, provided such inferences were not unreasonable. See Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194.

Inasmuch as we are precluded in this appeal from considering any points other than that of no evidence, we do not discuss appellant’s remaining points.

The judgment of the trial court is affirmed.

Affirmed.


author: FANNING, Justice.

text:
    The STATE of Texas, Appellant, v. Joyce STINSON et al., Appellees.
    No. 7617.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 26, 1965.
    Rehearing Denied Feb. 23, 1965.

      Samuel D. McDaniel, Asst. Atty. Gen., Austin, for appellant.
    Traylor Russell, Russell & Perkins, Mt. Pleasant, for appellees.
   FANNING, Justice.

A condemnation case. The State took for highway purposes 3.195 acres of ap-pellees’ 71 acre farm. The 3.195 acre tract taken contained two valuable springs that flowed into a large cistern covered by a pump house, and out of which cistern spring water for two residences and several pastures on the remainder of the 71 acre tract was provided. Trial was with the aid of a jury. The special issues submitted and the jury’s answers thereto were as follows:

“SPECIAL ISSUE NO. 1.
“What do you find from a preponderance of the evidence was the reasonable market value on the 21 day of December, 1961 of the 3.195 acres of land, including all buildings and improvements thereon, condemned by the State for highway purposes, considered as severed land? Answer in dollars and cents.
ANSWER: $4500.00
“SPECIAL ISSUE NO. 2.
“What do you find from a preponderance of the evidence to be the market value of Defendants’ tract of land, exclusive of the strip of land condemned for highway purposes, immediately before the strip was taken for highway purposes? Answer in dollars and cents.
ANSWER: $36,500.00
“SPECIAL ISSUE NO. 3.
“What do you find from a preponderance of the evidence was the market value of the remainder of the Defendants’ tract of land, exclusive of the strip of land condemned, immediately after the strip was taken for highway-purposes? Answer in dollars and cents.
'ANSWER: $20,075.00
“In answering Special Issue No. 3, you will exclude any increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by Defendants in common with the community generally, and not peculiar to them, and connected with their ownership, use any enjoyment of the particular tract of land across which the strip of land has been condemned, and taking into consideration the uses to which the condemned strip is to be subjected.”

Judgment was rendered for appellees in accordance with said verdict after deducting the amount of the special commissioners’ award previously withdrawn by the appellees. The State of Texas has appealed.

Appellant by its first point contends that there is no evidence to support the jury’s answers awarding damages to the remainder of appellees’ lands in an amount greater than $200.00. ($200.00 was the amount of damages to the remainder testified to by one of appellant’s witnesses.) Appel-lees’ first counter-point in reply is as follows:

“Where all witnesses for both land owner and the Condemnor testified fully as to the value of the strip taken and then all witnesses testified as to the value of the ‘remainder’ of the land, there was no error that would, necessitate a reversal of the case because the language ‘exclusive of the strip of land condemned for highway purposes’ was not used in determining the value of the remainder, and especially so since neither party made any objection to the evidence in the. trial of the case nor submission of Special Issues.” . .

Appellees introduced the evidence of witnesses Embrey, Garrett, Cargill, Morris, Blankenship and Joyce Stinson, one of the appellee owners. These witnesses all duly qualified and were permitted to testify as to the values involved. Embrey testified as to the value of the 3.195 acre tract taken, and was then asked the question as to the value of the remainder of the Stinson property “excluding the 3 acres”. Garrett, after testifying as to the value of the 3 acres taken, was then asked as to the value of “the remainder” of the Stinson property as of the date of the taking and the same is true of the witnesses Cargill, Morris, Blankenship and owner witness Joyce Stin-son. Also where the State offered the evidence of its two expert witnesses Brown and Bloodworth, the State’s counsel did not ask these witnesses questions as to the value of defendants’ land “exclusive of the strip of land condemned”. Also the State made no objections to the questions asked by defendants on the ground that these questions as to values were not precisely in the language of the Carpenter case (89 S.W.2d 194).

We think that merely because the value questions asked of the witnesses were not framed in the exact form of the special issues suggested in the Carpenter case that this would not prevent the testimony adduced as to values of the remainder from being deemed evidence of probative force under the record in this cause and especially so in the absence of objection to such testimony. In this connection see Rayburn, Texas Law of Condemnation, Sec. 135, and authorities referred to therein. Also see City of Houston v. Collins, Tex.Civ.App., 310 S.W.2d 697, no writ (1958), wherein it was stated in part as follows:

“Appellant has cited State v. Carpenter, Tex.Com.App., 126 Tex. 604, 89 S.W.2d 194, in support of his.contention. The special issues in this case were framed in the exact form suggested in that case. As we see it, that case laid down the law on the framing of the special issues to he submitted to the jury in cases where there is a taking of a part of a tract with resulting damages to the balance, so that there can be no double recovery of damages to the remaining tract. We cannot, however, find any basis in that case for the contention that the court intended to place the landowner in a verbal strait-jacket by having to refer to the land being taken as severed land whenever he referred to it in interrogating a witness about its value.”

The findings of the jury on the issues submitted were within the values testified to by appellees’ witnesses. We overrule appellant’s first point.

Appellant contends by its second and fourth points to the effect that the findings of the jury, when viewed in the light of the evidence, show conclusively that ap-pellees received double damages for the taking of their springs, that the evidence is insufficient to support the jury’s answers to special issues 1, 2 and 3, and that the answers to special issues 1, 2 and 3 are against the great weight and preponderance of the credible evidence in the case.

Appellees, members of the Stinson family, owned approximately 71 acres of land, about 2 miles west of Mt. Pleasant in Titus County, Texas, on the north side of Highway 67. There are two houses on the tract, one large brick house occupied by the mother of Joyce Stinson and a frame house occupied by Joyce Stinson. Stinson is a cattle dealer, owning an interest in a livestock auction business in Mt. Pleasant. In addition to two homes on the tract, and garden, there were two barns, and the 71 acre tract was cut up by fences into several pastures. Stinson would put different classes of cattle in the various pastures for the purpose of showing them to buyers. In one he may have had dairy cows, in another beef cows, in another heifers, and in others various others. In the southeast corner of this 71 acre tract were two very large, strong and valuable springs whose flow had never lessened throughout the years, even in the severest droughts. These springs furnished potable water of high quality for drinking and other domestic purposes for the two houses, for use on the yards, flowers, irrigation of the garden, and then water was piped into watering troughs in each of the pastures for use of the livestock. The supply from these springs was apparently unlimited and was the only available potable water on the 71 acres. It was good water that required no treatment or filtering for domestic use. The State took a 3.195 acre strip of land out of the southeast corner of the Stinson land with approximately 500 feet frontage on Highway 67, and took the two springs which flowed into a large cistern covered by a pump house, which were located on the 3.195 acre strip. The two Stinson residences, barns, garden, pastures, most of the water pipes, watering troughs and fenced pastures, which received their water supply from the springs taken were located off of the strip taken and were located on the remainder of the 71 acres not taken. The two springs taken were located close together, and both flowed by gravity into a large concrete cistern in which there was a pump and water was supplied, as above outlined, to the 71 acre farm. After the springs were extinguished by the State by filling them with clay dirt and when the Stinsons no longer had access to the springs and the waters thereof, Stinson drilled a well on the remainder not taken but was unable to get a satisfactory supply of water; and thereafter for domestic water he was reduced to hauling water at $6.00 per 1,000 gallons. For stock water he had to depend upon a small pool confined to one pasture, and a creek which dried up at times. It was shown that a dependable supply of good water was necessary for both domestic use and for Stinson to carry on his cattle operations, and without it the value of the remainder of the 71 acres not taken was considerably lessened.

Unquestionably the springs taken were very valuable and beneficial to the entire 71 acres. Of course, the springs increased the value of the 3.195 acre strip taken, on which they were located, but at the same time it can not be logically argued that the taking of the strip containing the springs, cistern and pump house did not damage the remainder of the 71 acre farm, which the springs served, as by the taking of the strip containing the springs and water supply the Stinson place was converted from a well-watered 71 acres to virtually a dry land 68 acre tract, and whose use and value has been drastically reduced.

In Greenman v. City of Fort Worth, Tex.Civ.App., 308 S.W.2d 553, wr. ref., n. r. e., (1957), the City of Fort Worth condemned a strip of land belonging to Greenman bordering the Trinity River, and after the taking Greenman’s remaining land did not reach the river. Part of Greenman’s farm was low land and could have been irrigated from the Trinity River and Greenman had irrigated 40 acres of his land and was thereby able to make valuable alfalfa crops on his land. The case was submitted on the Carpenter case issues and the landowner was awarded compensation for the tract taken and was also awarded damages to the remainder of his land not taken. In this case the court stated:

“Appellant had the right to ‘inject’ the element of value flowing from his irrigation rights. He acquired the right to use water from the river for irrigation purposes when he bought the land. It is a vested right. Motl v. Boyd, 116 Tex. 82, 286 S.W. 458; Chicago, R. I. & G. Ry. Co. v. Tarrant County Water Control & Improvement Dist. No. 1, 123 Tex. 432, 73 S.W.2d 55. Riparian rights are superior to any rights of appropriation conferred by statute. 44 Tex.Jur., p. 44, sec. 30. They constitute property, and cannot be taken from the owner by condemnation without payment of just compensation. 44 Tex.Jur., p. 47, sec. 34. Such rights are not unlimited, but they are substantial. Appellant was entitled to take-water from the river as a matter of right and not as a matter of favor. The value of this property right was as. material as any other element of value.”

In Hibbets v. Johnson, Tex.Civ.App., 342 S.W.2d 642 (1961) (reversed on other matters Johnson v. Court of Civil Appeals, 162 Tex. 613, 350 S.W.2d 330), Hibbets owned 200 acres which were irrigated by one water well. The State condemned 8.24 acres, which included the well. The case was submitted upon the Carpenter case issues and the jury by its answers found the value of the 8.24 acre strip taken and also found the remainder to be damaged. The Court of Civil Appeals stated in part as follows:

“It was not the building of the road that affected the damages to the remaining 191.7 acres; it was the taking of an irrigation well upon the 8.24 acres which was used to irrigate all the land. When the 8.24 acres containing-the irrigation well was condemned, the 191.7 acres was reduced to a dry land farm and consequently damaged the value. No one can reasonably contend that the taking of the irrigation well, thereby making the remaining 191.7 acres dry land instead of irrigated land, would not damage the 191.7 acres.”

While the above quoted portion of the opinion of the Court of Civil Appeals is dicta we are of the view that it is a logical and correct statement.

The special issues submitted in this cause were framed in accordance with the suggestions made in the Carpenter case. No. objections were made by the State to the value evidence offered by appellees on the ground that the questions asked were not in the precise language of the Carpenter case issues. We find that the evidence as to values was sufficiently developed. The fact that the jury awarded damages for the part taken (which included the springs) and also awarded damages to the remaining 68 acres which were served by the springs, does not necessarily mean that the jury’s verdict awarded double damages to appel-lees. The presumption prevails that the jury observed the court’s charge unless the contrary appears. We do not agree with the State that the record conclusively shows that appellees received double damages for the springs taken. Appellant’s 2nd point is overruled.

We also hold that the evidence is sufficient to support the findings of the jury to special issues 1, 2 and 3. Also after carefully considering the entire record in this cause in the light of the rules enunciated in the case of In Re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952), we further hold that the jury’s findings to special issues 1, 2 and 3 are not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust Appellant’s 4th point is overruled.

We further hold that the trial court was correct in its ruling that the State’s appraisal witnesses should not be permitted to testify concerning what certain landowners in the area near the Stinson land told them about the cost, depth, supply of water, kind of water, and other facts relative to water wells in the area, as such was hearsay evidence.

The two expert appraisal witnesses of the State admitted that they were not well drillers and had no personal knowledge of the sub-surface water conditions in the area of the lands in question; and that their opinion as to whether water would be available was based solely upon what someone had told them. The State did not attempt to bring in the witnesses living in the area who purportedly had the information which the State’s expert witnesses attempted to bring in by hearsay.

The State relies upon State v. Oakley, 163 Tex. 463, 356 S.W.2d 909 (1962) for admission of the hearsay evidence in question. The gist of the narrow question before the Supreme Court in the Oakley case is stated in the following excerpt from the Oakley case at p. 911 :

“The question before us is narrowed to that of the admissibility of the testimony of the expert witness concerning sales of which he did not have personal knowledge, and which was offered for the limited purpose we have noted, since neither the qualifications of the expert witness nor the comparability of the sales to which he testified are challenged.”

In the case at bar, the State’s expert witnesses had no personal knowledge of the sub-surface water conditions in the area, nor the cost of drilling water wells, and they were not qualified by education and experience as geologists or experts on water sands and water well drilling so as to render an opinion on the availability of water in the area or the cost of drilling wells or the depth thereof.

The State’s expert witnesses were permitted by the trial court to fully testify about sales in the area that were considered comparable to the Stinson lands and the hearsay evidence in this respect was not objected to by appellees. The hearsay evidence offered by the expert witnesses relative to what other people in the area would say about water wells also did not involve any lands which were cited as comparable sales. Clearly the proffered hearsay evidence in question was not offered to show comparable value with other tracts that had been sold in the area.

The Oakley case, while permitting a real estate appraisal expert witness to testify from hearsay as to comparable sales for the limited purpose stated in the opinion, is not authority for the proposition advanced here by the State. Certainly a real estate appraisal expert should not ipso facto (without any other qualification) be deemed a geologist or water well expert and should not be permitted to testify as to hearsay statements made to him relative to water sands, water well drilling, depth and costs of water well drilling. Appellant’s third point is overruled.

' The judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    MARYLAND CASUALTY COMPANY, Appellant, v. Virginia E. MASSIE et al., Appellee.
    No. 6721.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 31, 1964.
    Rehearing Denied Feb. 17, 1965.
    Strong, Pipkin, Strong & Nelson, Beaumont, for appellant.
    D. H. O’Fiel, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a suit brought under the Workmen’s Compensation Law for death benefits. The petition alleged that plaintiff Virginia E. Massie brought this suit as the widow of Walter M. Massie, deceased, and on behalf of their minor daughter. Judgment was for plaintiff based upon jury findings. The parties will be designated here as they were in the trial court

The jury found that Massie sustained a personal injury on or about August 10, 1962, in the course of his employment with Texas Brine Corporation, which was the producing cause of his death.

Defendant contends there was no evidence to support the finding of the jury; that Massie sustained an injury in the course of his employment. This is a question of law to be determined by this court by considering all the evidence favorable to such finding and' disregarding all other evidence.

The evidence showed: that Walter Mas-sie was employed as a truck driver; that he was on call 24 hours per day; that Texas Brine Corporation, the employer, advertised 24 hour service in the telephone directory, and listed Massie’s name and telephone number to call; that Massie’s regular working hours were from 7:00 a. m. to 5:30 p. m.; that Massie made many calls after regular working hours; that Massie and other employees punched a time clock; that Massie had “punched in” at 7:00 the date of the alleged injury and had not “punched out”; that Massie and his wife and child lived in a trailer house located on company property about a block from the plant; that at the time of his injury he had come to the trailer house to get a cup of coffee, which was not an unusual thing; that Massie had not checked out at the time he came to the trailer house for coffee, and still had more calls to make; that Mas-sie came to the trailer house about 3:00 or 3:30 in the afternoon; that it started to rain so Massie moved the truck around to the front of the trailer so it would be available for use; that a strong wind overturned the trailer; that Massie was straining to hold the trailer up at the time he received his injury; that a person was still considered on the payroll while stopping for coffee. All of this evidence supported the findings of the jury that Walter Massie received an injury while in the course of his employment.

Defendant also contends that the evidence was insufficient to support such findings of the jury, and that such findings were against the great weight and preponderance of the evidence. In passing upon these points we consider the entire record. There was evidence: that Massie was an hourly paid time worker; that this employer had no 24 hour employees; that Massie called his boss by telephone and told! him he thought he would knock off for the day and that all the hauling had been done before the alleged injury. This testimony, when considered with the testimony set out above, did no more than raise an issue for the jury to determine which it did favorably to plaintiffs. Such findings of the jury are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. The points are overruled.

The defendant plead that if Walter Massie sustained an injury that it resulted from an “act of God” and that on the occasion he was not subjected to a greater hazard than the general public. The jury also found in answer to a separate special issue, that Walter Massie was not subjected to a greater hazard from the tornado than the general public. Defendant contends this finding is irreconcilably in conflict with the finding of the jury that Massie sustained an injury in the course of his employment. The trial court gave the statutory definition as follows:

“The term ‘injury sustained in the course of employment’ as used in the Workmen’s Compensation Law, does not include:
“(1) an injury caused by the act of God unless the employee is at the time engaged in the performance of duties that subject him to a greater hazard from the act of God responsible for the injury than ordinarily applies to the general public.”

The court then defined “act of God” as follows:

“By the term ‘Act of God’ as used herein, is meant any accident that is due directly and exclusively to natural causes without human intervention and which no amount of foresight, pain or care, reasonably exercised, could have prevented. The act must be one occasioned exclusively by the violence of nature, and all human agency is to be excluded from creating or entering into the cause of the resulting mischief. The term implies the intervention of some cause not of human origin and not controlled by human power.”

These two findings of the jury are in conflict. In the answer that Massie was injured in the course of his employment the jury found that if Massie was injured by an “act of God”, that he was not subjected to a greater hazard than the general public. There is no way to reconcile these two answers in an “act of God” case. Plaintiff argues that no issue was presented or submitted by plaintiff to the fact that such injuries were the result of an “act of God”. Under all of the evidence, if plaintiff sustained an accidental injury, it could only have resulted from the windstorm. Under all of the cases, cited to this court, in view of the definition submitted by the trial court, this injury was the result of an “act of God” as a matter of law, and no jury finding was necessary. Continental Casualty Co. v. Smith, 227 S.W.2d 363; United States Fidelity & Guaranty Co. v. Rochester, 281 S.W. 306; Traders & General Ins. Co. v. Pool, 105 S.W.2d 492; Security Union Casualty Co. v. Kelly, 299 S.W. 286. The only question was whether Massie was engaged in the performance of duties that subjected him to greater hazard from the “act of God” than ordinarily applied to the general public. The finding as to course of employment was in the affirmative and the finding-as to the other issue in the negative. This is an irreconcilable conflict and this point must be sustained. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985; Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772.

Defendant further contends that there was no evidence to support the finding of the jury that Massie’s injury was a producing cause of his death. Dr. James Albert Brown was the only medical witness testifying in this case. The autopsy report was admitted in evidence, over defendant’s objection. Dr. Brown testified he had not seen nor examined Walter Massie. All of his testimony was based upon reading the autopsy report and hypothetical questions. It is argued by defendant that the statements in the autopsy report as to the cause of Massie’s death are opinions and conclusions and are hearsay evidence and therefore have no probative force. We have read the evidence in reference to this point carefully and have concluded that the autopsy report did not contain objectionable opinions and conclusions. It is our interpretation of this evidence that the autopsy report contained only the actual findings by the doctor conducting the autopsy. There was no speculation on the part of the doctor as to the cause of the condition he found. In this light, the autopsy was admissible under both the Travis Life Insurance Company v. Rodriguez, Tex. Civ.App., 326 S.W.2d 256, case and the Martinez v. Williams, Tex.Civ.App., 312 S.W.2d 742, case. The point is overruled.

Reversed and remanded.


author: CHADICK, Chief Justice.

text:
    Mary ISBELL, Appellant, v. Annie ISBELL, Appellee.
    No. 7618.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 2, 1965.
    Rehearing Denied March 2, 1965.

      Hardy Moore, Moore & Lipscomb, Paris, Austin Guest, Clarksville, for appellant.
    B. F. Edwards, Pat C. Beadle, Clarks-ville, for appellee.
   CHADICK, Chief Justice.

This suit originated as a trespass to try title action to recover undivided interests in two separate tracts of land. On the motion of defendant Annie Isbell, the trial judge withdrew the case from the jury and ■rendered judgment that plaintiff Mary Is-itbell take nothing by her suit.

w-' The judgment entered necessarily decided that a deed dated April 20, 1946, from J. A. Isbell and his wife, Lizzie Isbell, to Annie Isbell conveyed the entire undivided interest and estate in the two tracts of land then vested in either or both J. A. Isbell and Lizzie Isbell. The issue between the parties is the size of the fraction of interest conveyed by the J. A. and Lizzie Isbell to Annie Isbell deed. That is, whether or not such deed conveyed all interest vested in either or both such grantors, or only an undivided one-third, if the grantors’ presumptive interest at the time the deed was made was an undivided one-half. Clarity may be served by omitting at this point a description and the terminology of the conveyances under consideration as well as other factual detail and pleadings and first disposing of two incidental questions.

'• Advanced by the appellant Mary Isbell as grounds for reversal is a theory that appel-lee Annie Isbell in her pleadings in the trial court, specifically her cross-action for reformation of the J. A. and Lizzie Isbell deed of April 20, 1946, judicially admitted that at the date of that deed a one-half undivided interest in the two tracts of land was vested in J. A. and Lizzie Isbell. The proposition is that, as between the parties, the admission of the cross-action conclusively established such interest in J. A. and Lizzie Isbell or alternately raised a fact issue in that respect for jury determination.

Annie Isbell answered Mary Isbell’s ■conventional trespass to try title petition with a plea of not guilty, followed in the •same instrument by pleas setting up several of the statutes of limitation, then further pled several affirmative defenses and the action to reform the J. A. and Lizzie Isbell deed of April 20,1946. The reformation pleading is prefaced by the phrase "" * * * without waiving the hereinbe-fore defensive matter * * * This' proviso clearly marks the action pled as alternative to the pleading that preceded it. Admissions made in this alternative plea for reformation have no effect outside the ambit of that particular action, which is to say, the admission establishes nothing relevant to Annie Isbell’s primary defense of not guilty. Climatic Air Distributors of South Texas v. Climatic Air Sales, Inc., 162 Tex. 237, 345 S.W.2d 702; Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65; Red River Valley Pub. Co. v. Bridges (Ct. Civ.App.), 254 S.W.2d 854, wr. ref., n. r. e.; Rule 48, Vernon’s Ann.Tex.Rules.

Appellee, Annie Isbell, asserts that certain testimony of Lizzie Isbell given during direct examination by counsel for Mary Isbell disclosed the intention of the grantors J. A. and Lizzie Isbell to convey by this deed to Annie Isbell, dated April 20, 1946, all interest they claimed in the two tracts, not just an undivided one-third. The testimony referred to appears in the statement of facts as follows:

“Q. Do you recall the occasion that ■ you and your husband signed a deed to Mrs. Annie Isbell, in about 1946?
"A. Yes.
“Q. What property was it?
“A. The Glass.
“Q. What property did you convey in that deed?
“A. The Glass survey, and the Turner survey.”

A reasonable construction of this testimony in the context in which it was given does not bear out the claimed result. Strictly and literally the witness states her opinion of the effect of the deed. It does not detail the circumstances surrounding the transaction nor give any insight into the intention of the parties, particularly the grantors when they used the term “ * * all of our undivided one-third (i/jrd) interest' * * ” in describing the land conveyed. Accordingly, the testimony is of no value in' determining the intention of the parties to the instrument.

When the parties rested, the trial judge was confronted with this deed that the parties tacitly agree is latently ambiguous insofar as the size of the fractional interest it purported to convey is concerned. The record contains nothing to suggest the grantors and grantee in the deed were not available to testify, but confirms the presence in court of Annie Isbell and Lizzie Isbell as witnesses. The circumstances surrounding the transaction that produced the deed are not of record. As a consequence, the judgment of the trial court takes off from incapacious grounds, and is waveringly borne aloft by dubiously applicable rules (of construction, trailing a vapor stream of doubt.

It was stipulated R. Isbell and wife, M. S. Isbell, parents of J. A. Isbell and J. D. Isbell, husbands, respectively of Lizzie Is-bell and Annie Isbell, were the owners in their community right of the Henry Glass 160 acre survey in Red River County, Texas, and the common source of title thereto;, and that the Federal Land Bank of Houston is the common source of title to the 273.2 acre tract in the Joshua Turner Survey in the same County. All evidence introduced at the trial was offered by the plaintiff, this included the following deeds: (1) dated September 24, 1937, the Federal Land Bank of Houston to Annie Isbell and Lizzie Isbell, respectively the wives of J. D. Isbell and J. A. Isbell, conveying the Joshua Turner survey tract, with a reservation of a one-half (14) royalty interest; (2) dated March 30, 1929, M. S. Isbell, individually and as Community Administra-trix to J. A. Isbell and J. D. Isbell, conveying the Henry Glass 160 acre survey, (it was stipulated Mrs. M. S. Isbell was then duly appointed and a qualified and acting Community Administratrix of the estate of herself and her husband, R. Isbell, deceased) ; (3) dated April 20, 1946, J. A. Isbell and wife, Lizzie Isbell, to Annie Is-bell, wife of J. D. Isbell, deceased, conveying interests in four tracts of land, reading in its parts here pertinent as follows:

“ * * * all that certain An undivided one-fourth interest in and to the following described tract of land.
“FIRST TRACT: * * *
“SECOND TRACT: * * * Also all of our undivided one-third (i/j) interest of, in and to the following described land, to-wit:
“THIRD TRACT: Situated in Red River County, Texas, about 8 miles South, 15 degrees East from Clarks-ville, being the Henry Glass pre-emption Survey * * * containing 160 acres, more or less; (the First Tract in the Plaintiff’s petition).
“Also our undivided one-third ()/$rd) interest of, in and to the following described tract of land, to-wit:
“FOURTH TRACT:' All that certain 273.2 acres of land, more or less, a part of the Joshua Turner Survey, Abstract No. 829, and more particularly described as follows, to-wit: (the Second Tract in the pláintiff’s petition).
“The grantors- -herein reserve unto themselves, their heirs 'and assigns forever, an undivided one-sixth interest in and to the oil, gas and other minerals they now own in, * * *

(4) dated September 8, 1961, Lizzie Isbell and husband, J. A. Isbell, to Mary Isbeli, conveying “all of our one-sixth interest in the two tracts of land heretofore referred to above as being in the Glass and Turner Surveys.”

Under deed numbered (1) above, Annie Isbell and Lizzie Isbell were vested with title as co-tenants to the Turner survey tract, and under deed numbered (2) above, J. A. Isbell and J. D. Isbell were vested with title as co-tenants to the Glass survey tract. Standing alone and unexplained, the legal presumption arises that the grantee co-tenants in each of the deeds are vested with title to equal undivided interest in the respective tracts of land. John Hancock Mut. Life Ins. Co. v. Bennett (Tex.1939) 128 S.W.2d 791; Deeds, 19 Tex.Jur.2d, Sec. 118, p. 413; 26 C.J.S. Deeds § 127, p. 966. Based on this presumption Lizzie Is-bell held an undivided one-half interest in the Turner Survey tract, and her husband J. A. Isbell held an undivided one-half interest in the Glass Survey tract. However, this presumption is rebuttable and yields to evidence of ownership in a different proportion or fraction. Ford v. Anderson, (Ct.Civ.App.) 83 S.W.2d 443, no writ; Keltner v. Glenn, (Ct.Civ.App.) 81 S.W.2d 1051, no writ

The deed of J. A. and Lizzie Isbell to Annie Isbell (numbered 3 above) grants “ * * * all of our one-third (i/3) undivided interest 4a and te * * * ” in the two tracts of land. The trial judge presumably construed this language as an affirmation by them as grantors that they owned, claimed or held only a one-third undivided interest in each of the two tracts. In other words, that J. A. and Lizzie Isbell as grantors in their deed (numbered (3) above), which was subsequent in time to the deeds (numbered (1) and (2) above) vesting title in them, explained and interpreted these two prior deeds and declared the true, rather than the presumptive fractional interest that was conveyed to them by such prior deeds.

All doubt as to the meaning of the language in question is to be resolved in favor of the grantee, Annie Isbell. See Deeds, 19 T.J.2d, Sec. 10, p. 398. The fact that Annie Isbell paid J. A. and Lizzie Isbell the valuable consideration recited in the deed indicates that she was of the opinion that they owned some interest in the land they purported to convey to her. Viewing this deed from grantee Annie Is-bell’s standpoint at the time it was delivered to her, the recital “all our undivided one-third (]4rd) interest * * * ” would seem to imply that an undivided one-third constituted all interest then claimed by the grantors in the tracts conveyed. There is authority that when a grantor in a deed undertakes to recite the estate vested in him by a prior deed or deeds he limits his interest to the estate he describes, though he might be vested with an estate of greater dignity than that claimed in his interpretive deed. See Klein v. Humble Oil & Refining Co., 126 Tex. 450, 86 S.W.2d 1077; Henderson v. Book (Tex.Ct.Civ.App.), 128 S.W.2d 117, writ refused; Deeds, 19 Tex. Jur.2d, Sec. 122, p. 420. Well settled also is the rule that a deed will be considered to convey the greatest interest and estate that a fair construction permits. Deeds, 19 Tex. Jur., Sec. 117, p. 411, and case listed in footnote 14.

There is, however, another rule that more persuasively supports the affirmance of the trial court judgment. A plaintiff in a trespass to try title case must recover, if at all, on the strength of his own title. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226; Land v. Turner, (Sup.Ct. 1964), 377 S.W.2d 181;. Trespass to Try Title, 56 Tex.Jur.2d, Sec. 7, p. 67, et seq. In this case the burden was on Mary Isbell to show that the ambiguous deed (numbered (3) above) from J. A. and Lizzie Isbell to Annie Isbell did not convey the entire interest owned by the grantors. This she failed to do. Having fallen short in that respect, her title to a one-sixth undivided interest in the two tracts fails because the deed (numbered (4) above) from J. A. and Lizzie Isbell to her dated September 8, 1961, conveys nothing as no title is shown to be vested in her grantors.

The judgment of the trial court is affirmed.


text:
    TEXAS STATE OPTICAL, Appellant, v. Hazel Dean CAYLOR et vir, Appellees.
    No. 6725.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 28, 1965.
    Rehearing Denied Feb. 24, 1965.
    See also Tex.Civ.App., 351 S.W.2d ■646.

      Keith, Mehaffy & Weber, Beaumont, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellees.
   STEPHENSON, Justice.

This is a suit for damages for breach of contract. Trial was by jury and judgment was rendered for plaintiff. The parties will be referred to here as they were in the trial court.

The following document was admitted in evidence.

“Victoria, Texas
Nov. 8, 1955
“It is hereby agreed that Dr’s J. S. and N. Jay Rogers will purchase the Kent Optical Co. and its contents (excepting typewriter & personal items of Dr. Roy Baker) for the sum of Ten Thousand, two hundred and twenty one Dollars ($10,221.00).
“Drs S. J. & N. Jay Rogers agree to employ Dr. Roy Baker as an Optometrist in oiie of the Dallas offices of the Texas State Optical Co. Dr. Baker is to receive a starting salary of ($8,000.00) per year, phis some bonus', an agreement to be written up within the next five days to cover the same in detail.
“Lease arrangements on Kent Optical’s location to be worked out to both parties satisfaction.
(s) Dr. S. J. Rogers (s) Roy L. Baker.”

November 21, 1955, Dr. Roy Baker was killed in an automobile accident. Dr. Baker had not gone to work for Texas State Optical and Texas State Optical had not paid any part of the $10,221.00 for the Kent Optical Company. Plaintiff, mother of Dr. Baker, brought this suit individually and as Administrator of the Estate of Roy L. Baker, deceased, for the purchase price set forth in the above document. Defendants, Dr. S. J. Rogers and Dr. N. J. Rogers, doing business as Texas State Optical, alleged in their answer that no contract was ever consummated, and that the primary consideration for such a contract was the personal service to be rendered by Dr. Baker. The only issue submitted to the jury was as follows:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that by the first paragraph of the instrument dated November 8, 1955, Dr. Roy Baker intended to sell and Drs. S. J. and N. J. Rogers intended to purchase for $10,221.00 the Kent Optical Company and its contents (excepting typewriter and personal items of Dr. Roy Baker), irrespective of whether or not Dr. Roy Baker went to work for Dr. S. J. Rogers and Dr. N. J. Rogers in one of the Dallas offices of Texas State Optical Company?
“Answer YES or NO.
“ANSWER: YES.»

Defendants contend that there was no evidence to support the finding of the jury. This is a question of law to he determined by considering only the evidence favorable to such finding and disregarding all other evidence.

The evidence shows: That the instrument set out above dated November 8, 1955, was drawn by defendant, Dr. S. J. Rogers, in his own handwriting. That Dr. Rogers at the time such instrument was signed had made a list of the equipment located in the Kent Optical Company, also listing the value of each item and that the total of such values was $10,221.00. November 14, 1955, that J. Price, area supervisor for Texas State Optical Company, went into possession of the premises of Kent Optical Company and took a detailed inventory, delivered merchandise, collected money on accounts and with cards sent patients to the office of Texas State Optical Company office also located in Victoria. The keys to the Kent Optical Company were turned over to J. Price. Such possession continued until after the death of Dr. Baker. That Mrs. Jennie Elliot testified she had been an employee at Kent Optical Company and was present while Dr. S. J. Rogers and Dr. Baker were discussing the transaction and it was agreed that Dr. Baker was going to open an office in Marfa and if that business failed he could then have a job with Texas State Optical Company. That Dr. Baker would be employed by Texas State Optical Company only if he desired employment. Dr. S. J. Rogers also testified by deposition that Dr. Baker wanted to get out of Victoria and wanted something to assure him he would have a position with Texas State Optical Company. All of this evidence supported the finding of the jury, and the point is overruled.

Defendants also contend that there was insufficient evidence to support such finding, and that such finding was against the great weight and preponderance of the evidence. We have considered all of the evidence in passing upon these points. Dr. S. J. Rogers testified: That Texas State Optical Company needed an optometrist, and the only reason for the agreement was to employ Dr. Baker. That Texas State Optical Company had one office in Victoria and did not need another. That $10,221.00 was the actual cost of the equipment, and it could have been bought new by Texas State Optical Company at a price 45% less. That the reason for paying Dr. Baker $10,221.00 was so he could pay off his debts, and Texas State Optical Company by paying Dr. Baker only $8,000.00 per year would recover this additional amount paid on the purchase price. That a contract of employment was being prepared at the time of Dr. Baker’s death. This evidence, when considered along with the other evidence, did no more than raise an issue for the jury to decide, which it did favorably to plaintiff. The finding of the jury was not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. The points are overruled.

Defendants requested the trial court to submit the following issue:

“Do you find from a preponderance of the evidence that the promise of Texas State Optical to purchase the equipment of Dr. Baker was bargained for and given in exchange primarily for Dr. Baker’s promise to work as an optometrist in a Dallas office of Texas State Optical?”

It was not error to refuse the submission of this issue because such issue assumed a disputed fact. It assumed that Dr. Baker had promised to work as an optometrist in a Dallas office of Texas State Optical. The evidence set forth in this opinion shows that this was a hotly contested issue. The point is overruled. Rule 279, Texas Rules of Civil Procedure.

In their last point, defendants contend under the evidence as a matter of law there was no meeting of the minds and therefore no contract. It is argued that the instrument of November 8, 1955, shows on its face that the parties had not agreed upon the amount of a bonus and that an agreement as to employment would be written up within the next five days to cover the same in detail. If this suit had been brought to enforce the terms of an employment contract, then this would have been a valid argument. However, the jury found, with support in the evidence, that the parties intended to enter into a contract to sell and purchase the Kent Optical Company irrespective of the employment contract. -This finding by the jury supports the action of the trial court in entering a judgment against defendants for failure to carry out their agreement of purchase, as a separate and divisible contract. Defendants also argue that an agreement would not be concluded between the parties until lease arrangements on Kent Optical’s location had been worked out to the satisfaction of the parties. Plaintiffs had alleged both waiver and estoppel in reference to this point. The undisputed evidence shows that defendants took possession of the premises and exercised dominion and control of Kent Optical Company and its contents to the exclusion of Dr. Roy Baker and everyone else. Such action constituted a waiver, as a matter of law, of the provision as to satisfactory arrangements of a lease agreement. Jordan Drilling Co. v. Starr, Tex.Civ.App., 232 S.W.2d 149. Defendants retained possession of Kent Optical Company and its contents until after the death of Dr. Roy Baker. Defendants then repudiated any obligation under the agreement of November 8, 1955. By such repudiation defendants are estopped to-deny that satisfactory arrangements as to a lease agreement had not been made. Also, in reference to this point, for defendants’ position to be tenable, the making of satisfactory lease arrangements would have to-be a “condition precedent” to the conclusion of the purchase agreement. The instrument itself contains no language tO' create either a condition precedent or a condition subsequent. The language is “lease arrangements on Kent Optical’s location to be worked out to both parties’ satisfaction”. Defendants insist that this is part of an indivisible contract. The jury found that the contract was divisible as to-the purchase agreement and the employment agreement. Divisibility of a contract of this nature is ordinarily determined by the divisibility of its subject matter. It is clear from the language of the letter agreement of November 8, 1955, the parties were dealing with three distinct and separate matters. This court considers each of the three to be divisible and not dependent upon the others or any one of the others. The provision that lease arrangements were to-be worked out to both parties’ satisfaction was unenforceable since it was a contract to be made in the future and was not specific as to all essential terms. With essential parts of the lease arrangements left to future negotiations, this part was void. Foster v. Wagner, Tex.Civ.App. (1961) 343 S.W.2d 914 (err. refused n. r. e.) and cases-cited therein; Stekoll Petroleum Co. v. Hamilton, 152 Tex. 182 (1953), 255 S.W.2d 187, and cases cited therein on p. 192. Considering the finding of the jury, the letter contract of November 8, 1955, and all the evidence, the minds of the parties did meet as to the first part of the letter contract of November 8, 1955. This is the separate contract upon which plaintiff sued, to-wit: to recover the purchase price of $10,221.00, etc. Defendants’ point of error that “The trial court erred in overruling appellant’s motion for judgment non obstante veredicto because the evidence showed conclusively that there was never a meeting of the minds of the parties as to all of the essential terms of the proposed contract to be entered into” is overruled.

Affirmed.


author: PHILLIPS, Justice.

text:
    Elizabeth M. TRIGG et vir, Appellants, v. Lorenza BLAKEMORE et al., Appellees.
    No. 11267.
    Court of Civil Appeals of Texas. Austin.
    Feb. 3, 1965.
    Rehearing Denied Feb. 17, 1965.
    Second Motion Denied March 3, 1965.

      M. W. Plummer, Sr., Houston, for appellants.
    Victor B. Rogers, Austin, for appellees.
   PHILLIPS, Justice.

The plaintiffs in the court below, Elizabeth M. Trigg and her husband A. T. Trigg, brought suit against the defendants herein alleging wrongful eviction from certain premises, malicious prosecution, damages to furniture and other appurtenances, that the writ by which they were evicted by the sheriff, then in office, was defective. One of the defendants herein is the bonding .company that underwrote the sheriff’s official bond.

The Triggs’ petition was filed during the summer of 1962. The petition was amended and in September of 1962 the court sustained certain special exceptions, hereinafter set out, directed at the amended petition. The Triggs did not amend the petition further and in June of 1964 the trial court granted the defendants’ motion for summary judgment and dismissed the case.

The special exceptions sustained by the court which are the basis of the court’s order granting summary judgment are: (1) improper joinder of the State of Texas; (2) improper joinder of the surety .company on the defendant sheriff’s bond; (3) the insufficiency of details alleged concerning the sufficiency of the writ in question.

Appellants, Triggs, are before this Court on four points of error the first three being the error of the trial court in sustaining each of the abovementioned exceptions; the fourth being that even should the court have correctly sustained the objections, the petition still alleged a cause of action which should have been tried.

We sustain appellants’ four points of error and reverse and remand this cause for trial.

As stated above the defendants’ first special exception complained that there were no facts alleged to make the State a necessary or a proper party, that nothing is alleged to show any injury to the State or any wrong committed against the State, that special permission must be given by the State before it can be made a party to a suit.

This case, in addition to the other elements described, is a suit against the sheriff on his official bond made payable to the Governor of Texas. These facts are identical to those described in Bordelon v. Philbrick, Com.App., 125 Tex. 460, 84 S.W.2d 710, where the court stated that the case was one which could be brought by the plaintiff in the name of the State for his use and benefit, citing Article 1991, Vernon’s Ann.Civ.St The .court also stated that regardless of to whom the bond was made payable it was also a common law obligation and was intended for the use and benefit of all persons who might be injured or affected by a failure of the constable to faithfully perform and discharge all duties required of him by law, citing Howard v. United States, Use of Stewart, 184 U.S. 676, 22 S.Ct. 543, 46 L.Ed. 754. Also see Tabor v. McKenzie, Tex.Civ.App., 49 S.W.2d 874.

In view of the fact that the State is only a nominal party here and is named merely on the relation of the appellants, we are directing that the name of the State be dropped from the style of the case so as to avoid any possible misunderstanding as to the role of the State herein.

The second objection sustained by the trial court was that the surety company was prematurely brought into the suit for the reason that no judgment had been rendered against the sheriff, consequently the company was neither a necessary or a proper party.

Rule 40, Texas Rules of Civil Procedure under the title of Permissive Joinder of Parties states that all persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. This rule applies to action on bonds. Fox v. Cone, Com.App., 118 Tex. 212, 13 S.W.2d 65; 9 Tex.Jur.2d, Sec. 44, p. 451.

In their special exception number 3 sustained by the court, the appellees (defendants below) plead: “This defendant specially excepts to paragraph VI of plaintiffs’ petition for its sufficiency; It alleges a writ of restitution was issued out of the Justice Court of Precinct No. 2, of Bastrop County, Texas, but fails to allege the facts in connection therewith; That unless the facts in connection with the issuance of the writ of restitution are alleged, this defendant and this court is unable to determine whether it was lawfully issued; It also fails to allege what legal action was taken by defendants in justice court; When the suit was filed against the defendants an obligation was cast upon the defendants to do something about it; If they did nothing to defend themselves and allowed judgment to be rendered against them, and have never done anything to protect themselves, then they will have waived their right to complain and would now be estopped from claiming damages for some injury caused them by their own conduct; * *

Appellants allege in their amended petition that the writ was issued out of the Justice Court of Precinct No. 2, of Bastrop County on April 27, 1961 to seize the property of one Elizabeth Grady (appellant Elizabeth Trigg’s name was then Elizabeth Brady), and when said writ had been executed, to return same to the court on or before 30 days from the date of issuance, that the writ was void and defective in that the sheriff knew or had reason to know that the appellant was not correctly named therein; that the appellant’s then husband A. T. Trigg was not named in the writ; that seizure and execution was accomplished on June 1, 1961 more than 30 days after the date of issuance.

Since appellants alleged rightful possession of the property in question, damage by their eviction etc. the fact that there is an allegation that the writ in question was executed after its expiration was sufficient to show execution under a writ that was void. See Nance v. Barber, 7 Tex.Civ. App. 111, 26 S.W. 151; Rone v. Marti, Tex.Civ.App., 244 S.W. 639; Ludtke v. Bankers’ Trust Co., Tex.Civ.App., 251 S.W. 600, err. ref. In this respect alone, appellants have stated a prima facie case.

Appellees contend that in their motion for summary judgment in the court below they asked that the case be dismissed for want of prosecution and pointed out to the court the delay of some twenty months from the time the court sustained appellees’ special exceptions to the motion for summary judgment. They further contend that the case was dismissed for lack of prosecution which was discretionary with the trial court. We do not agree. The court’s order granting summary judgment stated that inasmuch as it has sustained the three objections stated above and that plaintiffs (appellants) had failed and refused to amend the pleadings, no cause of action remained on the pleadings and they should be dismissed.

Appellees have attempted to point out to this Court wherein other aspects of appellants’ petition are insufficient to state a cause of action however as such alleged defects were not objected to in the court below we cannot consider them here. Rule 90 T.R.C.P.; 45 Tex.Jur.2d, Sec. 176, page 725.

Reversed and remanded.

ON MOTION FOR REHEARING

In their Motion for Rehearing appellees insist that the case at bar was dismissed by the trial court for want of diligence in prosecution and not for appellants’ failure to amend as recited in the court’s judgment. They call this Court’s attention to that portion of the judgment wherein the Court states:

“ * * * and the plaintiff’s having wholly failed and refused to amend said Pleadings, and that no cause of action remains on the pleadings; the court is of the opinion that said cause should be dismissed.”

This Court is not bound by any reason given by the trial court in support of his judgment and if such judgment is sustainable for any reason, ordinarily, this Court is under the duty to affirm. See Maher v. Gonzalez, Tex.Civ.App., 380 S. W.2d 764. For this reason we discuss appellants’ point of dismissal for lack of prosecution.

In Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, our Supreme Court held that in dismissing a case for want of prosecution, the question is whether there was a clear abuse of discretion by the trial court and that question is one of law. Here the Court held that a dismissal for failure to prosecute a motion for new trial for more than eight years was not an abuse of discretion.

We believe, and so hold, that in the case at bar a dismissal for want of prosecution would have been a clear abuse of discretion.

As stated above, appellants’ petition was filed during the summer of 1962. The petition was amended and in September of 1962, the court sustained the special exceptions set out above. Appellants did not amend and in June of 1964, the trial court granted appellees’ motion for summary judgment and dismissed the case.

Appellees’ motion for summary judgment was filed May 20, 1964. Appellants answered this motion the same being filed June 18, 1964. Appellants’ answer was accompanied by an affidavit of appellants’ attorney, who practices law in Houston, Texas, stating his desire to bring the case to trial, that since the filing of the suit, he has been busily engaged and unable to request a setting; that there had been no efforts on the part of the appellees herein to bring the case to trial.

In the Bevil case cited above the Supreme Court stated the rule announced in Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, as follows:

“Such rule as so developed and applied may be explained in these words: Where the defendant in a suit is called to answer and has responded to the call, the duty devolves on the plaintiff to proceed in prosecuting the suit to a conclusion with reasonable diligence, and whenever a' delay of an unreasonable duration occurs, such delay, if not sufficiently explained, will raise a conclusive presumption of abandonment of the plaintiffs suit, and a discontinuance results.”

We hold that the delay of appellants in asking for a setting under the facts of this case was not unreasonable and that their explanation for such delay was sufficient to maintain the suit on the docket for such other disposition as the court may have seen fit.

Motion overruled.