author: WILLIAMS, Justice.

text:
    CONSOLIDATED FORWARDING COMPANY, Inc., Appellant, v. UNION TRUCK DEPOT, INC., Appellee.
    No. 15992.
    Court of Civil Appeals of Texas. Dallas.
    March 30, 1962.
    Rehearing Denied April 20, 1962.

      Phinney, Hallman & Pulley, and Wm. E. Livingstone III, Dallas, for appellant.
    Clark, Thomas, Harris, Denius & Winters; Wallace A. McLean and James H. Keahey, Austin, for appellee.
   WILLIAMS, Justice.

The opinion heretofore rendered in this case is withdrawn and the following substituted therefor.

Union Truck Depot, Inc. brought this suit against Consolidated Forwarding Co. Inc. seeking recovery of a portion of a freight damage claim which had been paid by Union Truck Depot, Inc. to the Dow Chemical Company in Freeport, Texas. The shipment of merchandise originated in Ohio, and was transported by Consolidated to Dallas, Texas where it was delivered to Red Arrow Freight Lines and delivered by that company to Union at Houston, Texas who delivered the shipment to its final destination at Freeport, Texas. Although the shipment was received in apparent good order, Dow Chemical Co. later filed a concealed damage claim against Union. Following investigation Union paid the claim and then sought the recovery of pro rata portion thereof from Consolidated. Plaintiff alleged that it was a party to an oral interchange agreement with Consolidated and Red Arrow pursuant to which agreement the parties were to share a pro rata liability on concealed damage claims, based on the percentage of revenue each was entitled to receive for transporting a shipment of this type.

Following trial before the court and a jury, the trial judge submitted one special issue to the jury inquiring whether or not the damage involved in this claim was actually of a concealed nature. The jury found that the damage was concealed. On this verdict judgment was entered for plaintiff. Simultaneously defendant’s motion for judgment on the verdict and, in the alternative, for judgment notwithstanding the verdict, was denied.

Appellant contends that (1) there is no-evidence of probative force to support the finding of the vital fact that there was an agreement between appellant and appellee to share pro rata responsibility for payment of concealed damage claims; (2) that there is no legal basis alleged or proved by ap-pellee to support the judgment of the trial court; and (3) that there is no proper measure of damages either alleged or proved by appellee.

In our consideration of appellant’s first point we are governed by the rules announced by Chief Justice Calvert of our Supreme Court in his Article entitled “No Evidence” and “Insufficient Evidence” points of error, 38 Tex.Law Rev. 362 wherein he states:

“ ‘No Evidence’ points must, and may only, be sustained when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.”

Appellant says that there is no-evidence to support the finding of the vital. fact that there was an agreement between appellant and appellee to share pro rata responsibility for concealed damage claims. If a review of the entire record in this case reveals any evidence to support the vital fact of the agreement we must overrule appellant’s points. Moreover, the evidence will be viewed in the light most favorable to the judgment. 4 Tex.Jur.2d 337. We have carefully examined the entire record in this case and find an abundance of testimony to support appellee’s contention of an agreement between the shippers to share pro rata responsibility on concealed damage claims. In answer to request for admission of facts appellant admitted it regularly interchanged shipments with Red Arrow; that such interchange operations were conducted pursuant to both oral and written agreements between appellant and Red Arrow; that by the terms of such agreement, shipment could originate on appellant’s lines, be interchanged with Red Arrow and continue to destination on a third carrier, such as appellee’s line; that under such a haul as that described, each of the three carriers were, pursuant to such agreement, sharing the total shipping charges received in the same ratio as the mileage of each bore to the total distance of shipment transported; that pursuant to such agreement appellant originated a shipment in Ohio, destined for the Dow Chemical Co. at Free-port, Texas; that appellant transported such shipment and delivered it to Red Arrow in Dallas; that the total freight charges for such haul were pro-rated between appellant, appellee and Red Arrow as follows: Appellant, 56%; Red Arrow, 29%; and appellee, 15%; that the appellant is a member of the National Freight Claim Council of the American Trucking Association, Inc., and has adopted such council rules and regulations which included, Rule 20 providing: “Claims for loss from a package or from damage to freight discovered after delivery to consignee, and apparently of a concealed nature shall be pro-rated on a revenue basis, (unless otherwise . mutually agreed upon by the carrier involved or provided for in these rules) without regard of handling at intermediate points; provided investigation discloses lawful basis for payment.” There is testimony in the record appellee delivered the shipment to Dow Chemical Company and was later presented with a claim for concealed damage which, after investigation by appellee, was paid in full and a demand then made upon appellant for its pro rata share of the claim based upon mileage revenue. Appellant denied that it was obligated to pay this claim. It was undisputed in the record that appellee was a member of the American Trucking Association Inc. and subscribed to the Association’s rules and regulations, including Rule 20 referred to above.

Charles C. Feldman, appellant’s traffic manager, testified that:

“A No. There are concealed damage claims filed by all carriers.
“Q You handle these day in and day out?
“A I don’t, but our company does, our claims manager who will later testify. I don’t handle damage claims at all.
“Q State to me what procedure your company follows?
“A On concealed damage they follow a procedure if it is actually concealed damage the carriers are subject to pro rate that, but it must be definite it is concealed damage, and they honor those claims.
“Q They honor a claim on a pro rata basis if it is proven it is concealed damage ?
“A If it is proved it is concealed damage.
“Q You will agree with me what we are talking about now, it comes down to whether this damage was concealed or not?
“A That seems to be the question, but I don’t think it is concealed. * * *
“Q Did you know what procedure your company followed in handling this claim or did you go blindly into it?
“A No, I didn’t go blindly into it. I wanted to be sure we had done the damage before I was ready to tell anybody to pay anything; we wanted to be sure we had done the damage, and then we would pay the claim. If we had done the damage to this freight that was sent to Freeport, if Consolidated Forwarding Company broke it or injured it or done something to it, we wouldn’t ask anybody to help us pay. We pay it ourselves if we had done it.
“Q On what basis does your company handle claims where you cannot tell who did it ?
“A. That is concealed damage claims if nobody can tell who done it.
“Q I am asking you on what basis does your company handle claims where you cannot tell who did it?
“A Apparently they would have to handle it on a pro rata basis if it couldn’t be proven who done it.
“Q The very same basis we are asking for under this lawsuit ?
“A You are asking everybody to pro rate the shipment on the strength that you say you don’t know who done it.
“Q Would you explain to this jury what is meant by pro rating the shipment?
“A That means if there is (sic) a dollar to divide and one carrier got fifty cents and another twenty five cents and another twenty five cents, whatever the amount of the damage is one would pay fifty percent and another twenty five percent and another twenty five percent. That is what'we mean.”

Edward P. Englert, appellant’s claim-manager testified that appellant was a member of the American Trucking Association- and that the rules of that association provide for the apportionment of claims for loss and damage between carriers, member-carriers of the National Freight Claim Council of the American Trucking Association ; that appellant was a party to those rules.

It is to be observed from this-testimony that while there is ample evidence that both carriers involved were members of the same association and bound by the same rules regulating pro rata payment of concealed damage claims, that the principal question seemed to be whether the claim was actually a concealed one within the meaning of the rules. Appellant took the position that the claim was not a concealed claim. However, this issue was foreclosed against appellant by the jury which finding is not challenged. Thfe rules of the American Trucking Association which govern members, including both appellant and appellee, were introduced in-evidence by appellant. While the record is not clear whether the agreement between the appellant and appellee was written or oral, appellant admitted that it had adopted' and was bound by the rules of the American Trucking Association. Whether such adoption was written, oral, or implied by law, seems to be immaterial because in such an instance the rules and by-laws of the Association do constitute a contract between its members. 7 C.J.S. Associations § 11, p. 34; Cline v. Insurance Exchange, 140 Tex. 175, 166 S.W.2d 677. Appellant’s first point is overruled.

By its second point appellant contends that there is no legal basis alleged or proven to support the judgment of the trial court. This point is too general and does not meet the requirements of Rule 418, Texas Rules of Civil Procedure, llow-ever, we have consistently placed a liberal interpretation upon briefing, rules. Chief Justice'Dixon of this Court in Wyche v.

Noah, 288 S.W.2d 866 pointed out that while the point may he too general this Court will discuss the grounds as we understand them upon which appellant apparently relies to support his appeal, as disclosed in the statements and arguments accompanying his points on appeal. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478; Little v. Employees Security Life Ins. Co., Tex.Civ.App., 343 S.W.2d 517. Accordingly, we have concluded from appellant’s argument under this point that what is really contended is that the shipment in question was not one that was regulated by what is commonly called the Carmack Act Amendment to the Interstate Commerce Act, 49 U.S.C.A. § 20, which provides that a shipper may recover against any connecting carrier for loss or damage. The Carmack Amendment is applicable to interstate Motor Carriers as well as to Railroads. 49 U.S.C.A. § 319. This statute specifically allows a holder of a bill of lading to sue either the originating carrier or the delivering carrier and to recover without establishing on whose line the damage occurred. Panhandle & S. F. Ry. Co. v. Montgomery, Tex.Civ.App., 140 S.W.2d 241; Atlantic C. L. Ry. Co. v. Riverside Mills, 219 U.S. 186, 31 S.Ct. 164, 55 L.Ed. 167. The Carmack Amendment was passed to benefit shippers; it did not apply to a carrier, who, having paid the shipper, sought to collect from its fellow carriers. In such a case, the Car-mack Amendment does not relieve the plaintiff-carrier from the burden of proving who actually did the damage. 49 U.S. C.A. § 20(12). Apparently, it was for the express purpose of avoiding this frequently •impossible burden of proving which carrier did the damage that Rule 20 of the American Trucking Association Freight Claim rules was adopted. The testimony in this ■case reveals that it was impossible to ascertain which of the three carriers involved in this shipment caused the damage. For the very reason that appellee could not ■prove who did the damage it relied upon its contract with appellant that each participating carrier should share liability for concealed damage in the same ratio as shared in the income from the haul.

From appellant’s argument under this point it is also apparent that it contends that appellee’s pleadings are insufficient to support the agreement relied upon by appellee. While appellee’s pleadings leave much to be desired yet the evidence pertaining to the agreement referred to under the first point was admitted without objection and the issue was therefore tried by implied consent of the parties. Rule 67, T.R.C.P. Appellant’s second point is overruled.

Appellant’s third point that “there is no proper measure of damages either alleged or proved by appellee” is likewise too general and does not meet the requirements of briefing rules. However, again we have, in line with the authorities cited under the second point above, sought to gain the contention of the appellant by the statement and argument under this point. In its trial petition, appellee alleged that after being confronted with a claim for undisclosed damage to the property in question by Dow Chemical Co. it investigated the loss and paid Dow Chemical Co. the sum of $3,755.-90, representing the “cost of repairing the stator”. It was then alleged “having received 56% of the charges for transporting said stator, defendant is liable for 56% of the said $3,755.90 claim, or $2,103.30. On May 4, 1959, plaintiff paid defendant’s pro rata liability on said claim, by its check No. 12393, payable to Dow Chemical Co. thereby becoming subrogated to the cause of action originally held by Dow Chemical Co. because of such subrogation and under the terms of the aforementioned agreement between plaintiff, defendant and Red Arrow, defendant is liable to plaintiff in the sum of $2,103.30.” No issue was submitted to the jury on the question of damages, or the extent thereof, and appellee, plaintiff below, requested no issue to be submitted. The trial court apparently rendered judgment based on appellee’s contention that Consolidated was bound under its agreement to pay the amount of the loss to Union without the necessity of Union making any further proof, or securing a finding of the jury concerning the amount of the claim.

The same factual situation was presented in the case of Hamilton v. Herrin Transportation Co. (Tex.Civ.App.), 343 S.W.2d 300, n. r. e., wherein the contract between the parties provided for indemnification against loss on account of destruction or damage to freight caused by or resulting from negligence, or otherwise. Merchandise was damaged in transit and appellee paid the claim of $2,248.99, less freight, or a net of $1,955.64, for which amount the court rendered judgment against appellant. In that case, as here, there was no evidence in the record as to the value of the merchandise before or after it was damaged. The only evidence in that case, as here, was that a claim was made and paid and a later demand was made for indemnification. In holding that such proof was not sufficient to support the judgment, Associate Justice Wilson of the Waco Court of Civil Appeals said:

“Appellee’s position is that when it proved payment of the claim in good faith, ‘appellant became bound under the contract, as a matter of law, to reimburse appellee for such loss, without the necessity of making any other proof relative to the amount of the loss.’
“The position is untenable. In Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375, the same contention was made in a somewhat analogous sub-rogation claim where the insurer had paid insured under a fire insurance policy. The insurer contended that when it established defendant was liable for the loss, it was unnecessary to show the amount of damage to the insured property. The Supreme Court rejected the contention, holding that the measure of damage was not the amount paid by the party primarily liaable, but the difference between the reasonable cash market values of the property immediately before, and immediately after it was damaged. The fact that appellant in our case agreed to indemnify appellee from ‘loss or damage suffered or incurred’ by it, does not alter the application of the general rule; for the extent of appellant’s liability is not necessarily the amount voluntarily paid by appellee, even though paid in good faith. The payment was made by appellee before appellant even had notice the consignee had made a claim, and appellee was required to show ‘the reasonableness of the amount which it paid’ for loss incurred, caused by some act or omission of appellant. Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775, 779; Gulf, Colorado & Santa Fe Ry. Co. v. McBride, [159] Tex.Sup. [442], 322 S.W.2d 492, 496.”

Associate Justice Cramer of this Court in Waples-Platter Co. v. Commercial Standard Ins. Co. (Civ.App.), 287 S.W.2d 680 (affirmed as modified 156 Tex. 234, 294 S.W.2d 375) discussed the measure of damages in a subrogation case, saying that the measure of damages was not the amount paid on the fire loss claim, but was the reasonable cash market value of the property at the time it was destroyed by the fire, or, if it was not totally destroyed, the difference between the reasonable cash market value of the property immediately before and immediately after it was damaged.

In this case the only evidence is that Union paid the amount alleged by Dow Chemical Co. to have been the reasonable cost of repairing the property damaged in transit. There is no evidence in this record concerning the value of the property before or after the damage. There is no evidence that Consolidated agreed that the amount paid Dow by Union was the correct measure of damages. Appellant’s third point is sustained.

We are of the opinion that the interest of justice requires that this case should be reversed and remanded for a new trial. Rule 434, T.R.C.P.; Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. Sybil GLASGOW, Appellant, v. FLOORS, INC. OF TEXAS et al., Appellees.
    No. 15998.
    Court of Civil Appeals of Texas. Dallas.
    April 6, 1962.
    McCulloch, Ray, Rembert, Luna & Trotti and William Rembert, Jr., Dallas, for appellant.
    Thompson, Knight, Wright & Simmons and Timothy E. Kelley, Dallas, for appel-lees.
   WILLIAMS, Justice.

Mrs. Sybil Glasgow, while walking across a street in the City of Dallas, was knocked down and injured by an automobile owned and driven by Forrest Franklin Stegall. Mrs. Glasgow, a feme sole, filed suit for personal injuries against Stegall and also against his general employer, Floors, Inc. of Texas, and also Texas Instruments, Inc., in whose plant Stegall worked under a contract between Floors, Inc. of Texas and Texas Instruments, Inc. Recovery was sought against the corporate defendants on the theory of respondeat superior. It was undisputed that at the time of the accident Stegall was driving his own automobile from his home to his place of work with the Floors, Inc. of Texas at the Texas Instruments, Inc. plant. The trial court severed the cause of action against Stegall, leaving the action against Floors, Inc. of Texas and Texas Instruments, Inc. in a separate suit. The court then granted summary judgment in favor of both corporate defendants, from such judgment Mrs. Glasgow appeals contending, in two points of error, that the evidence presented in support of the motions for summary judgment create an issue of fact that Stegall was engaged in the course of his employment for Floors, Inc. of Texas at the time his car struck Mrs. Glasgow.

While Mrs. Glasgow perfected her appeal as to both Floors, Inc. of Texas and Texas Instruments, Inc., she states in her brief that she only desires to prosecute her appeal from that part of the judgment in favor of Floors, Inc. of Texas. Accordingly, we sustain motion on behalf of Texas Instruments, Inc. to dismiss this appeal. Judgment in favor of Texas Instruments, Inc. is affirmed.

Since this is a summary judgment action under Rule 166-A Texas Rules of Civil Procedure, we are governed by well-established rules announced by our Supreme Court in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, affirming this Court in Tex.Civ.App., 243 S.W.2d 220. A defendant moving for a summary judgment must assume the negative burden of showing, as a matter of law, that the plaintiff has no cause of action against him. Neigut v. McFadden (Tex.Civ.App.), 257 S.W.2d 864; Statham v. City of Tyler (Tex.Civ.App.), 257 S.W.2d 742; Achterberg v. Gillett (Tex.Civ.App.), 322 S.W.2d 306; Seale v. Muse (Tex.Civ.App.), 352 S.W.2d 534.

The sole question presented on this appeal is whether the appellant, Floors, Inc. of Texas, sustained its burden tinder Rule 166-A T.R.C.P. by demonstrating, through the medium of the pleadings and evidence in support of said motion that Stegall was not acting within the course and scope-of his employment for Floors, Inc. of Texas at the time he struck Mrs. Glasgow. To arrive at an answer to this question we have carefully examined the pleadings and supporting evidence. Insofar as the pleadings are concerned, Mrs. Glasgow alleged that at the time Stegall struck her with his automobile at about 9 :30 p. m. on March 29, 1960 that he was an employee, and acting within the course and scope of his employment for Floors, Inc. of Texas and for Texas Instruments, Inc. Floors, Inc. of Texas and Texas Instruments, Inc., following a general denial, specifically denied that Stegall was in the course and scope of his employment for either of said defendants. In their respective motions for summary judgments both Floors, Inc. of Texas and Texas Instruments, Inc. move for judgment based upon the sole proposition that Stegall was not in the course and scope of his employment for either defendant at the time of the accident. Mrs. Glasgow filed no answer to these motions. The motion of Floors, Inc. of Texas, being the only one with which we are presently concerned, was supported by the deposition of Stegall and also deposition of Harry Goff.

The material portions of Stegall’s testimony may be fairly summarized as follows: That on March 29, 1960 he had started from his home to go to work at Texas Instruments, Inc. near Richardson, traveling in his own automobile alone, when he struck Mrs. Sybil Glasgow while she was walking across Fitzhugh Street where it intersects with San Jacinto Street. He had started to-work for Floors, Inc. of Texas about February 23, 1960; that his job with Floors, Inc. of Texas was that of supervisor over a clean-up crew doing janitorial service at Texas Instruments, Inc. plant; that he never performed any other work for Floors, Inc. except at the plant of Texas Instruments, Inc; that he had approximately 53 people working under him; that his hours of employment were from 10 o’clock at night until 6:30 o’clock in the morning; that Mr. Harry Goff, Vice-President of Floors, Inc. was his boss. Floors, Inc. had another location on Lemmon Avenue where one porter worked and occasionally he would, when going home from work, drive by the Lemmon Avenue place to see that the porter was on the job and was doing his work all right. When asked concerning his specific duties at the Texas Instruments plant he testified:

“Q He was under you, too then?
“A He was under me, too. And when we had the Material Building, also out at Texas Instruments out on Central, and I had, say, we were half a mile from the main plant, and then we had some farm houses which was out from the plant about half a mile. Each one of them was in different directions all of the way around the plant, out in the field there.
‘‘Q Did all of those get cleaned at night?
“A Yes, sir, all of those got cleaned at night. It was my job to see that those got cleaned, and I had to drive from one building to the other building to check on my porters and maids.
“Q And you needed the car?
“A Yes, sir.
“Q To do that?
“A Yes, sir.
“Q Did Floors, Inc. offer to furnish you with a car to do that or were you supposed to furnish your own car to do that?
“A I furnished my own car, but they was going to start paying me six cents a mile for the use of my car while I was on duty.
“Q Did they give you a written agreement about that ?
“A No. It was just something that was going to come up, which never did. It never did come up. I mean it was just talk about it.
“Q But part of which you were paid for was use of your car?
“A I wasn’t paid for the use of my car.”

He testified that his contract of employment with Floors, Inc. of Texas was entirely verbal, being consummated by Mr. Harry Goff and Mr. Kelly Smith. His wages at the beginning was $85 per week and he got a $5 raise to $90 per week. He further testified that after he got off from work and went home that he would never do anything connected with the company business from that time until he went back to work again. He was not subject to call and did not even have a telephone at home. Following the accident in March of 1960 he had his driver’s license suspended in April. He continued to work for Floors, Inc. until about August 15 during which time he drove to work with fellow employees and that if he needed a car at the place of business he would borrow somebody else’s car. Further concerning the use of his car he testified :

“Q Now, at no time was it ever suggested to you that you would be paid for your transportation—
“A No.
“Q —from your home to your place of business, was it?
“A No.
“Q And that was exactly where you were going at the time this accident occurred, was it not?
“A Yes, I was going to work.
“Q And neither anyone from Floors, Inc. or Texas Instruments ever told you how you were to get to work ?
“A No.
“Q That is, whether you were to go by car or bus, walk ?
“A That is right.
“Q Taxicab?
“A Bicycle or otherwise.
“Q Any way you wanted to go was your business?
“A That is right.
“Q And no one ever told you which way to go?
“A That is right.
“Q And you weren’t paid anything by anyone for the time you spent in going to work?
“A. No.”

Mr. Harry Goff testified that at the time of the accident Stegall was an employee of Floors, Inc. of Texas as a supervisor, working at the Texas Instruments, Inc. plant near Richardson where he supervised some 53 employees in their duties of cleaning certain parts of the Texas Instruments, Inc. plant. He employed Stegall, such contract being verbal, and his hours of employment were from 10 o’clock at night until 6:30 o’clock in the morning. His compensation was to be $85 per week and there was to be no compensation over and above this amount for overtime or time and half. He said that Stegall’s duties at the Texas Instruments, Inc. plant covered an area containing several buildings, the furthest one from the main plant being about half mile. Concerning use of an automobile Mr. Goff testified:

“Q What was said at the time he was employed about his need for an automobile in performing his duties ?
“A There was nothing said about an automobile.
“Q Was he asked if he had one?
“A I think I asked him if he had a car.
“Q As a matter of fact didn’t he need a car to get around from one building to another out there?
“A Well, there was no transportation out to Texas Instruments and he had to get out there and back.
“Q Yes, but, I mean, to get around while he was on the job there at night?
“A There was nothing discussed about that.
“Q He has testified that he needed the car, his car, to get from one place to another out there.
“A I never discussed it with him whether he needed the car or not. He could have walked.”

With reference to Stegall going by the Texas Instruments plant on Lemmon Avenue, Mr. Goff testified he, to his knowledge, never sent Stegall by there, did not know anything about this being a part of Stegall’s duties.

Further concerning use of an automobile Mr. Goff testified:

“Q Now, Mr. Stegall’s testimony is that from time to time Mr. Warren (an employee of Texas Instruments) would ask him to go from one of those buildings to another to inspect, and to show him what was needed and should be done in other buildings on that location.
“A Mr. Warren might have asked him to go around with him.
“Q Was that part of his duties to go with Mr. Warren when Mr. Warren asked him to?
“A I don’t know whether it was part of his duties or not, but you might say it was common courtesy. We have to get along with our customers.
“Q Well, if he hadn’t been courteous to this extent to Mr. Warren he wouldn’t have stayed with your Company very long, would he?
“A I don’t guess so.
“Q Was Mr. Stegall paid any extra compensation for his use of his car on the job?
“A No.
“Q Was payment for such use of his car ever the subject of discussion, so far as you know?
“A I think one time, yes. He asked me for some gas money.
“Q But, you didn’t pay it?
“A I don’t recall ever paying him anything, no sir.
“Q Now, then. Do you know whether you did or not?
“A Let’s see. I don’t believe I paid him any money.”

Two other supervisors for Floors, Inc. of Texas, who also work at Texas Instruments, Inc. plant, use their own private automobiles in getting around from one building to another on the job, but they, like Stegall, got no extra compensation for such use of their cars.

Stegall continued to work for Floors, Inc. for several months after the accident without using his automobile. He was finally laid off due to lack of work.

Appellant candidly concedes that there is no evidence of an express agreement between Stegall and his employer .requiring Stegall to use his automobile in his employment. Appellant argues that the testimony referred to raises the issue of an implied understanding or agreement between Stegall and his employer concerning the necessity of his using an automobile on his job. 10-A Tex.Jur. § 6, p. 17. To sustain her position, appellant relies principally on the case of Maryland Casualty Co. v. Smith (Tex.Civ.App.), 40 S.W.2d 913 (no writ history) which was a workmen’s compensation case wherein the employee was injured while riding a motorcycle on his way to work. In that case the court pointed out that under his contract of employment the employee was required to furnish a motorcycle to be used by him in the performance of his duty, viz., the delivering of packages and parcels for his employer; that said motorcycle was one of the instru-mentalities of the employee’s employment; that said employer did not furnish the place for the storage of the said motorcycle when not in use; that the employee at all times had to care for same so as to have it available for the performance of his duties. The court there said that by giving the Workmen’s Compensation Act a liberal construction that the facts brought the employee within such act.

The Smith case was one of the earlier “going to and returning from work” cases and while the Supreme Court in Superior Ins. Co. v. Jackson, 156 Tex. 61, 291 S.W.2d 689, 691, said that it did not disagree with the decision in the Smith case, it did proceed to distinguish it. In an earlier case, United States Fidelity & Guaranty Co. v. Flanagan, 134 Tex. 374, 136 S.W.2d 210 (opinion adopted by the Supreme Court). Judge Hickman, later Chief Justice of the Supreme Court, in denying recovery for injuries sustained by an employee on the public streets while returning home from his work said that no rule of the Workmen’s Compensation Law is more clearly established than that an employee is not to be .regarded as being within the scope of his employment while going and returning from his work over and along the public streets. Smith v. Texas Employers’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192; Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402; Sullivan v. Maryland Casualty Company (Tex.Civ.App.) 82 S.W.2d 1089 (err. ref’d.). Judge Hickman then said:

“The opinion of the Court of Civil Appeals cites and apparently bases its decision of this question upon Maryland Casualty Co. v. Smith, Tex.Civ. App., 40 S.W.2d 913. No application for writ of error was filed in that case and it appears to be out of harmony with the many decisions by this court.”

While it is thus observed that the opinion in the Smith case, relied upon by appellant, has been materially weakened and its authority questioned, yet, even so, the facts of the case at bar make it clearly distinguishable from the Smith case. As pointed out in the Smith case the motorcycle of the employee was an integral part of the contract of employment which is not the case before us here. We therefore conclude that the Smith case is not determinative of the instant appeal.

While this is not a workmen’s compensation case, it is of interest, since appellant has relied upon a workmen’s compensation case, to note the recent trend of “going to and returning from work” compensation cases as evidenced by the opinion of Chief Justice Calvert in American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370.

We are dealing here with the common law tort action. Under the common law it must be made to appear that the servant committed the wrongful act in the course of his employment for his employer, or that the act must be done in furtherance of the master’s business, and for the accomplishment of the object for which the servant was employed. 29 Tex.Jur. § 242, pp. 412-414; International & G. N. R. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039; Acme Laundry Co. v. Weinstein, Tex. Civ.App., 182 S.W. 408. Whether the relation of master and servant, as fixing liability on one person for the acts of another under the doctrine of respondeat superior, exists in a particular case depends on the facts and circumstances of each case. 57 C.J.S. Master and Servant § 563, p. 275. In applying this test to the facts in the case under consideration we deem it necessary to consider the entire record and not isolated portions thereof. When this is done we conclude that the use of Stegall’s automobile was not a necessary part of his contract of employment with Floors, Inc. of Texas. The testimony of Goff and Stegall established the fact that it was a convenience for Stegall to have an automobile with him both in driving to and from the company’s place of business at the Texas Instruments plant and also to use as a convenience in going from one part of the plant in his business of supervising other employees. There is no evidence, express or implied, of an obligation on the part of Stegall to use his automobile in his work. The testimony is positive that the employer was not concerned in any manner as to how Stegall got to and from his place of business or how he transported himself within the place where the work was done. There is no evidence that his compensation included anything for the use of his automobile. To further demonstrate the lack of necessity for the use of his automobile as a part of his work is the testimony that, after the accident in question, he continued his services with his employer without the use of an automobile for several months until he was laid off due to lack of work.

The record conclusively demonstrates an absence of an issue of fact as to the crucial question of course of employment. Any possible evidence tending to create an inference of implied contract for the use of the automobile is nothing more than a suspicion or surmise and therefore only a scintilla of evidence insufficient to create an issue. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

Appellant concedes the rule to be that an employee is not considered in the course of his employment when driving his own car to and from his place of work. American National Ins. Co. v. O’Neal, Tex.Civ.App., 107 S.W.2d 927; Norvell Service Co. v. Spell, Tex.Civ.App., 288 S.W.2d 133; Fountain v. Walker, Tex.Civ.App., 260 S. W.2d 717; Antilley v. Jennings, Tex.Civ. App., 183 S.W.2d 982; Lofland v. Jackson, Tex.Civ.App., 237 S.W.2d 785; Kennedy v. American Nat. Ins. Co., 130 Tex. 155, 107 S.W.2d 364, 111 A.L.R. 916; Barr v. Colorado Interstate Gas Co., 5 Cir., 217 F.2d 85, 52 A.L.R.2d 282.

Furthermore, the record is entirely devoid of evidence relative to right of control of the servant by the master. As correctly contended by appellee, where liability is sought to he placed on master for negligent act of the servant the test of liability of the master is whether the master had the right and power to direct and control the servant in the performance of the causal act or omission at the very instant of the occurrence of such act or neglect. The identical situation was decided by the court in Lofland v. Jackson, (Tex.Civ. App.) 237 S.W.2d 785 wherein the court held that the issue of courses of employment was not raised when the testimony failed to demonstrate a right of control by the employer to direct the movements of the employee at the time of the commission of the alleged negligent act. See also American National Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A,L.R. 409; Southwest Dairy Products Co. v. Defrates, 132 Tex. 556, 125 S.W.2d 282, 122 A.L.R. 854.

Appellant’s points are overruled and the judgment of the trial court is, in all things, affirmed.


author: MASSEY, Chief Justice.

text:
    Lynn MALLOW et al., Appellants, v. The STATE of Texas ex rel. CITY OF DENTON, Texas, Appellees.
    No. 16311.
    Court of Civil Appeals, of Texas. Fort Worth.
    April 13, 1962.
    Rehearing Denied May 11, 1962.
    See also 356 S.W.2d 707.
    Shirley W. Peters, Denton, for appellants.
    John Lawhon, County Atty. of Denton County, Lee E. Holt, Coleman & Whitten, and Earl L. Coleman, Denton, for ap-pellees.
   MASSEY, Chief Justice.

A material question to be resolved, essential to the determination of the propriety of summary judgment in this case, was whether or not the superficial area of the Town of Mayhill, purportedly lawfully incorporated under authority of Vernon’s Ann.Tex.St. Title 28, “Cities, Towns and Villages”, Art. 971, “Territorial boundaries”, was in excess of more than two square miles, or 1,280 acres. It is not disputed that less than two thousand inhabitants were to be found in the town of Mayhill. If said superficial area was unquestionably established as more than two square miles (1,280 acres) the purported incorporation proceedings did not in fact result in its presumptive valid and legal incorporation, and relator’s summary judgment was proper. On the other hand, if said fact was not so established the summary judgment was improper.

We have concluded that the evidence before the Court upon the hearing of the relator’s motion for summary judgment failed to establish the absence of a genuine issue of fact within the requirements of Texas Rules Civil Procedure 166-A, and that the summary judgment was erroneously granted.

Relator’s evidence upon the matter of quantity of acreage within the boundaries of the purportedly incorporated Town of Mayhill is found in the affidavit of one C. F. Ballard, a professional engineer and surveyor, whose qualifications made of him an expert witness. It is clear from his affidavit that he made few if any measurements on the ground, but that he “plotted the said field notes on an ownership map of the said area * * * using aerial photographs of the area described and ground control points actually measured by me for accuracy checks. After completing the plotting of the field notes on the aforesaid ownership map, which I know of my own personal knowledge to be accurate, I computed the superficial area enclosed within the boundaries of the Town of Mayhill, Texas, * * *. In making this computation, I used an instrument called a plani-meter which is used by engineers and surveyors to calculate the areas shown on maps. I determined from such calculation that the boundaries of the Town of May-hill, Texas, * * * include a superficial area of 1,810.43 acres or 2.829 square miles. I personally performed the aforesaid examination, mapping and calculating as carefully and as accurately as I know how from my thirty-five years of professional experience. Based upon my thirty-five years of engineering and surveying experience and the examination and plotting of the field notes, as aforesaid, it is my professional opinion that this is an accurate determination of the superficial area enclosed within the boundaries of the Town of May-hill, Texas, * *

Here the expert’s knowledge has in the main been obtained from the statements, reports, maps or instruments made by third persons. Therefrom he makes the calculations upon which his testimony as to quantity is given, whether considered as factual or opinion evidence. In other words, his testimony is necessarily predicated upon evidence which is hearsay as to him, and to the case on hearing. As such it is inadmissible. Texas Law of Evidence, McCormick and Ray, Second Edition, sec. 1404, “Opinions Based on Statements and Reports of Other Persons”.

The affidavit of C. F. Ballard, should such be treated as properly received and considered, would not foreclose the existence of a fact issue on the matter of land quantity for another reason. Opinion evidence of experts is not conclusive. See McDonald, Texas Civil Practice, sec. 17.-26.5 in Cumulative Supplement, “Summary Judgment, (IV) Determination of Motion on Matters Outside Pleading”. Where there has been addmitted evidence consisting of maps, plats, photographs, etc., plus additional testimony as to the correctness thereof, the weight of such evidence and testimony may not be accorded conclusive effect, as a matter of law, but becomes merely an issue for the jury or other fact finding agency.

On summary judgment proceedings, an expression of opinion as to quantity, just as in an instance of expression of opinion as to value, does not have such conclusive force as to support entry of summary judgment. The credibility and weight to be given such character of evidence, which has the fundamental character of opinion testimony, is only proper to be determined after a trial in the regular manner. Sartor v. Arkansas Natural Gas Corporation, 1943, 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967.

Furthermore, the affidavit of C. F. Ballard was countered by affidavit of G. W. Woodford, in which this witness stated: “ * * * I am well familiar with the area embraced within the field notes (delineating the boundaries of the Town of May-hill) * * * anc[ iinow each and every tract of land embraced by such field notes; that I know of my own knowledge the acreage contained in each of said tracts ⅜ * That I have computed the superficial acreage embraced by the field notes described * * * by adding the acreage contained in each of the tracts embraced within such field notes; that I determined from such calculation that the area embraced within such field notes has a superficial area of 1,267.5 acres * * *.”

Relator says that the trial court disregarded the affidavit of G. W. Woodford (although such is not substantiated by the record), and argues that the circumstances are such that the affidavit is necessarily based upon conclusions either of law or fact and therefore constitutes inadmissible evidence. However, doubtful as the facts stated in the affidavit may be, and however likely to destruction or impairment as to its weight upon cross-examination (as in an ordinary trial), the affiant nevertheless stated that he had personal knowledge of the acreage in each tract of land embraced within the boundaries of the Town of May-hill, and that collectively the total acreage, therein was 1,267.5 acres, or less than two square miles. Independently considered, the affidavit must be held to have raised the issue of fact as to the quantity of land within the corporate limits of the Town of Mayhill, even were we obliged (as is not the case) to assume that but for his testimony any factual issue thereupon would be foreclosed.

The entire record has been reviewed in light of the other points of error presented. There does not exist any circumstance upon which we could properly affirm the judgment despite the erroneous conclusion that there was an absence of any fact issue to be resolved.

Judgment is reversed. The cause is remanded to the trial court for a trial on the merits.

BOYD, J., not participating.


text:
    Lynn MALLOW et al., Appellants, v. CITY OF DENTON, Texas, et al., Appellees.
    No. 16316.
    Court of Civil Appeals of Texas. Fort Worth.
    April 13, 1962.
    Rehearing Denied May 11, 1962.

      Shirley W. Peters, Denton, for appellants.
    Lee E. Holt, Coleman & Whitten, and Earl L. Coleman, Denton, for appellees.
   MASSEY, Chief Justice.

This is a companion case to Cause No. 16311, styled Lynn Mallow et al. v. State of Texas ex rel. City of Denton, Texas, 356 S.W.2d 705 which we have decided this same date.

The instant case, however, involves a cross-action filed by Lynn Mallow et al. against the City of Denton and impleaded cross-defendants, namely, W. D. Buttrill, City Secretary, the Mayor and other Council members of said Home Rule city. The case does not involve the State of Texas (relator in the quo warranto case reported under No. 16311), and in our opinion is a case in which it is not necessary that the State be a party. By the cross-action it was sought to obtain the declaration of the court in a judgment that action already taken, and action threatened, by the City of Denton, attempting to annex the cross-plaintiffs’ real properties (all of which were located within the corporate limits and boundaries of the purported Town of Mayhill), was, and would be, without legal effect and vitality and therefore absolutely void. The pleadings of cross-plaintiffs were broad enough to encompass a prayer for injunctive relief. The trial court on its own motion entered an order severing this suit from the case as considered by us under No. 16311. Said order of severance was entered following the hearing of the motion for summary judgment. It is to be noticed that the motion for summary judgment was identical under both cases. The effect of the entry of the order of severance made requisite the entry of two separate judgments, one of which related to the plea for affirmative relief in the quo warranto proceeding by the State of Texas, on relation of the City of Denton, and the other to the cross-plaintiffs’ plea for affirmative relief.

We have for consideration in the instant case the propriety of the summary judgment denying the cross-plaintiffs, Lynn Mallow et al., any right to the declaratory and injunctive relief prayed for in cross-petition. In our opinion upon the proceeding in quo warranto (under No. 16311) we have held that there existed a fact issue precluding propriety of summary judgment. That same matter is important to be considered in relation to the instant case. The City had by preliminary ordinance, or “first reading”, initiated annexation procedure, thus asserting authority over the land purportedly in the Town of Mayhill. State ex rel. Winn v. City of San Antonio, 1953 (Tex.Civ.App., San Antonio), 259 S.W.2d 248, writ ref., n. r. e. Cross-plaintiffs, Lynn Mallow et al., were seeking to prevent the enactment of any further ordinance by the City of Denton, Texas, pursuant to annexation of their land, and to annul any effect (as to said land) of the ordinance already passed. Their position would be identical to that of an owner whose property was sought to be annexed by an existing incorporated municipality, which annexation the property owner felt was in violation of law or without legal sanction, and, if actually accomplished, would be prejudicial in that it would constitute a cloud upon his title and subject him to illegal taxation. In this case the legal impediment which cross-plaintiffs assert is the prior incorporation of the land as a part of the Town of Mayhill.

In view of Vernon’s Ann.Tex.St., Title 28, “Cities, Towns and Villages”, Art. 971, “Territorial boundaries”, the presumptive propriety of the action heretofore taken in the purported incorporation of the Town of Mayhill depends upon whether or not said Town of Mayhill contained a superficial area in excess of more than two square miles, or 1,280 acres. If the superficial area was less than that quantity of land the incorporation was valid and the Town of Mayhill existed (as of date of the trial) as an incorporated town. As such, no real estate therein located would be subject to annexation by any other town or city and any such action of purported annexation would be absolutely void. Contrarily, if the superficial area was in excess of two square miles or 1,280 acres of land then the incorporation was invalid. If invalid, the purported incorporation of the Town of Mayhill could be avoided. It would be voidable rather than void. If avoided, the City of Denton would have authority to annex all or any part of the land which cross-plaintiffs believed comprised the Town of Mayhill, and the efficacy of the ordinance already enacted would be unimpaired.

Under the companion case to which we have heretofore referred we have held that there is an issue of material fact remaining to be tried, i. e., the issue of quantity of land constituting the superficial area of the purportedly incorporated Town of Mayhill. Determination of that same question of fact would be essential to the propriety of summary judgment in the instant case.

Judgment is reversed and the cause is remanded to the trial court for a trial on the merits.

BOYD, J., not participating.


author: WERLEIN, Justice.

text:
    W. E. FORBES, Appellant, v. CITY OF HOUSTON et al., Appellees.
    No. 13928.
    Court of Civil Appeals of Texas. Houston.
    April 19, 1962.
    Rehearing Denied May 10, 1962.

      Eastham, Williams & Meyer, Willard C. Williams, Thomas W. Moore, Jr., Houston, for appellant.
    R. H. Burks, City Atty., Homer T. Boul-din, Senior Asst. City Atty., Houston, for appellees.
   WERLEIN, Justice.

Appellant brought this suit for a writ of mandamus against the Mayor and City Council of the City of Houston to compel certain action pursuant to City Ordinance No. 60911, dated December 21, 1960. The case was tried before the court without a jury. From the judgment of the court denying the application for mandamus, appellant appeals.

The title of the ordinance in question reads as follows:

"An ordinance evidencing the intent of the City Council to conduct an investigation with reference to closing, vacating and abandoning Bordley Drive and Crestbend Drive at their intersection with the West City Limit Line of the City of Houston from and after Thirty (30) working days from December 14, 1960, and declaring an emergency.”

Said ordinance recites in substance, among other things, that Briargrove Park Addition was subdivided and platted adjacent to and west of Rivercrest Addition in such design and pattern that all the traffic to and through Briargrove Park Addition is routed through Rivercrest Addition, thereby creating traffic hazards, defects and unsafe places in the streets in Rivercrest, and a threat and danger to the well-being of residents therein; and that the developers of Briargrove have assured the City Council that within thirty working days from and after December 14, 1960, they will have constructed streets from Westheimer Road into and through Briargrove. Following such recitations the City Council ordained in substance: (1) that in the event said conditions are not remedied the City Council may hereafter determine that certain portions of Bordley Drive and Crestbend Drive shall be permanently closed and abandoned, (2) that the City has received the promise from the owners and developers of Briargrove that said conditions will be remedied within thirty working days from December 14, 1960 by construction of streets leading into Briargrove from Westheimer Road, and Section 3, which reads as follows :

“The City Council finds and determines that at the end of thirty (30) working days from and after December 14, 1960, an investigation shall be made by them and if deemed advisable by them an investigation shall also be made by the Director of Public Works, the Director of Traffic and Transportation the Chief of Police and the Director of City Planning, in which event the said Directors shall make a written report to the Council, and at such time the Council shall determine whether or not Bordley Drive and Crestbend Drive will be permanently closed, vacated and abandoned at their intersections with the West City Limit Line of the City of Houston.”

It is appellant’s contention that said Section 3 of the ordinance places a clear and precise duty on the City Council of the City of Houston to make an investigation called for at the end of thirty working days from and after December 14, 1960, and to determine at the expiration of said period whether or not the two streets in question are to be permanently closed, vacated and abandoned by the City of Houston at their intersections with the west city limit line of the City. Appellee, on the other hand, contends that mandamus will not lie to compel compliance with said provisions of the ordinance because the action sought to be compelled is a legislative and governmental function within the police power of the City Council, and also because no contention is made that the Mayor and City Council have acted fraudulently, arbitrarily or capriciously relative to the investigation and determination as to whether said streets should be closed.

Appellant asserts that while mandamus cannot be used to direct the exercise of official discretion in any certain manner, it will issue to compel the exercise of discretion where there has been a refusal to act at all. Carnes v. Cunningham, Tex.Civ. App.1961, 350 SW.2d 59. In Parrish v. Wright, Tex.Civ.App., 293 S.W. 659, the court held that the city could be manda-mused to pass an ordinance regulating the plumbing business and appointing a board of plumbing inspectors pursuant to a state statute. See also Ferris, Extraordinary Legal Remedies, §§ 206, 207; and Yokley, Municipal Corporations, Vol. 4, p. 16, § 594, where it is stated: “However, where by force of statute a mandate is placed on a municipal council to take certain action and the council refuses to do so, its action may become subject to mandamus since no discretionary prerogatives are involved.”

It is our view that the instant case is distinguishable from the case of Parrish v. Wright, supra, where a mandate was imposed upon the City by state law, and that it does not come within the rule of law enunciated by Yokley. In order for an action of the city council to be subject to mandamus, the act must be a ministerial act or, if discretionary, there must have been a clear case of abuse of discretion. Stone v. City of Wylie, Tex.Com.App.1931, 34 S.W.2d 842. “An act is said to be ministerial where the law clearly spells out the duty to be performed by an official and does so with such certainty that nothing is left to the exercise of discretion or judgment.” Yokley, Municipal Corporations, Vol. 4, p. 4, § 593(b); 55 C.J.S. Mandamus § 63, p. 100, and authorities cited.

The ordinance in question, which must be considered as a whole, does not impose upon the City a clear and precise ministerial duty as asserted by appellant. The title of the ordinance' clearly shows that it is an ordinance merely evidencing the intent of the City Council to conduct an investigation at some indefinite time after December 14, 1960. Section 1 of the ordinance ordains that “in the event said conditions are not remedied, the Council may hereafter determine that portions of said streets shall he closed.” (Emphasis supplied.) Section 3 of the ordinance does not state what kind of an investigation shall be made, or the nature or extent thereof, or how and in what manner it will be made. Much is left to the exercise of discretion and judgment on the part of the Council, and for such reason the act is not to be deemed merely ministerial. 55 C.J.S. Mandamus, § 63, p. 101. It also ordains that if deemed advisable an investigation shall also be made by certain Directors and the Chief of Police. It is manifest that the Council did not deem it advisable for such directors to make an investigation since none was made.

The ordinance in question was passed by the City Council in the exercise of its legislative powers as an expression of intent with respect to the performance of future acts by the City Council. The Council could repeal it at any time in the exercise of its discretion and legislative powers, and its rescission would render the issuance of a writ of mandamus useless and unavailing. Holcombe v. Fowler, 118 Tex. 42, 9 S.W.2d 1028.

Any investigation that the City might be mandamused to make would be inseparably tied into the determination by the City as to whether said streets should be closed or kept open. Such determination by the City would clearly be a legislative act on its part in the exercise of its discretionary and governmental powers,' expressed or enacted in a resolution or ordinance, which would close or keep open such streets. The law is well settled that the decision or determination of the City as to the closing or vacating of streets is a governmental function within the police power of the city council not ordinarily subject to mandamus since the city is given wide powers in connection with such matter. Art. 1175, subd. 18, Vernon’s Annotated Texas Statutes; Sec. 4 of Article II, p. 7, 1958 Charter of the City of Houston.

The city council, when acting upon subjects over which it has the power to legislate, is an independent lawmaking body and ordinarily cannot be interfered with in the absence of arbitrary, capricious or unreasonable action on its part. There is no pleading or evidence that the City, in failing to make such investigation and determination, was acting arbitrarily or unreasonably. Houston Electric Co. v. Mayor and City Council of City of Houston, Tex. Civ.App., 212 S.W. 198, error dism., and authorities cited; Stone v. City of Wylie, supra; 16 C.J.S. Constitutional Law § 151 (1), pp. 723, 724 ; 28 Am.Jur., p. 672, Injunctions, §§ 169, 170; 39 Tex.Jur., p. 533, Streets, § 18, and cases cited.

We think appellant has failed to show a clear legal right to the relief sought, and that the trial court properly refused to grant the writ of mandamus. If appellant suffers damage to his property in the future, it will result only from the decision of the City not to close and abandon the streets in question, and such decision would clearly be within the discretion and legislative powers of the City. Wortham v. Walker, 1939, 133 Tex. 255, 128 S.W.2d 1138; Stanford v. Butler, 1944, 142 Tex. 692, 181 S.W.2d 269; High’s Extraordinary Legal Remedies, 2nd Ed., § 9, pp. 12, 13; 55 C.J.S. Mandamus, § 325, pp. 560-563. It may also be observed that appellate courts are reluctant to disturb the discretion exercised by a lower court in granting or refusing the award of a writ of mandamus. In re Hart, 159 N.Y. 278, 54 N.E. 44; City of Sioux Falls v. Sioux Falls Traction System, 1928, 53 S.D. 471, 221 N.W. 84; State ex rel. Board of Public Inst. for Dade County v. Wood, 1938, 140 Fla. 176, 191 So. 837.

Judgment affirmed.