author: LANGDON, Justice. RENFRO, Justice

text:
    P. P. LANGFORD, III, Appellant, v. C. D. SHAMBURGER, Jr., Individually and as Trustee, Appellee.
    No. 16810.
    Court of Civil Appeals of Texas. Fort Worth.
    April 14, 1967.
    Rehearing Denied June 30, 1967.

      Peery, Wilson & Jameson, and Kearby Peery, Wichita Falls, for appellant.
    Nelson, Montgomery & Robertson, and Ernest Robertson, Spence, Martin & Richie, and Howard L. Martin, Wichita Falls, for appellee.
   LANGDON, Justice.

OPINION

This is a suit by P. P. Langford, III, appellant, the beneficiary, against C. D. Shamburger, Jr., individually, and as trustee of the P. P. Langford, III Trust and as Independent Executor of the Estates of C. D. Shamburger, Sr., and Mrs. C. D. (Alma) Shamburger, Sr., appellee, for an accounting as to interest on money allegedly borrowed from the trust; for interest on trust funds which were not invested by the trustee; or trust proceeds said to have been commingled with those of the trustee and for profits realized by the trustees through self-dealing with trust funds. Trial was had before a jury, and based upon the jury’s findings, the District Court entered judgment for the appellee. We reverse the judgment of the court below and remand the case for a new trial.

C. D. Shamburger, Sr., and his wife, Alma Shamburger, of Wichita Falls, Texas, were the parents of three children as follows:

(1)A daughter, Gracye Shamburger. She married Eugene Clark, Sr. Their son is Eugene Clark, Jr.

(2) A daughter, Dorothy Shamburger. She married Pierce Langford, Jr. Their children are Pierce Langford III (appellant here), Stan Langford and Sue Langford.

(3) A son, C. D. Shamburger, Jr. (ap-pellee).

This was the family status as it pertained to the children and grandchildren of C. D. Shamburger, Sr. and his wife as of November 11, 1943, date of the first trust hereinafter described.

Mr. C. D. Shamburger, Sr., was a very astute and successful businessman, primarily engaged in the cattle and lumber business. The C. D. Shamburger Lumber Co., Inc., of which he owned in excess of 80% of the stock, was the parent lumber company which did business with some 27 branch lumber companies located in North Texas and Oklahoma. He owned ranch lands in 'excess of 30,000 acres near Texline, Texas, and a ranch at Paducah, Cottle County, Texas. He ran large herds of cattle on these ranches.

Mr. Shamburger, Sr., made numerous gifts of land and personal property to all three of his children at various times. Among the gifts to his daughters, Grayce Clark and Dorothy Langford, were several hundred head of cattle. (Or the gifts were made through them to their respective husbands.) After this gift to them Mr. Sham-burger, Sr., prevailed upon his daughters and their respective husbands to create a trust naming him as trustee and placing with him these several hundred head of cattle for the use and benefit of their children, his grandchildren. This trust was created on November 11, 1943. C. D. Shamburger, Jr., was not a trustee or co-trustee under this trust. It was handled exclusively by C. D. Shamburger, Sr.

On December 31, 1946, P. P. Langford, Jr., joined by his wife, Dorothy S. Lang-ford, and by E. B. Clark and C. D. Sham-burger, Sr., revoked the prior trust of November 11, 1943. Contemporaneously with their revocation of the 1943 trust, these same parties created three new trusts out of the assets of the prior trust for the benefit of the three Langford children and a trust for Eugene Clark, Jr. Each of the new Langford trusts had as the corpus of the trust an undivided one-third (1/3) interest in the cattle allocated to the Langford interest under the original trust, together with their increase and any money derived from cattle sales. Each new trust for the benefit of the grandchildren appointed C. D. Sham-burger, Sr. and C. D. Shamburger, Jr., as co-trustees, to take possession of and to manage and control the trust properties.

In’ addition to its other terms, the 1946 trust further provided:

“The trustees and any successor trustee shall at all times maintain adequate and comprehensive records showing all items of trust property, income, expenditures and reserves, which record shall be posted to date and shall accurately show the condition of the trust estate at the close of each calendar month and of each calendar or fiscal year, and such posting shall take place during and at the end of the immediate succeeding calendar month.

“No trustee shall ever be liable for any act of omission or commission unless such act is the result of gross negligence or of bad faith or of the trustee’s own defalcation, and no trustee shall ever be liable individually for any obligation of the trust.”

C. D. Shamburger, Sr., and C. D. Sham-burger, Jr., accepted appointment as co-trustees of the trust and agreed to be bound by its terms and provisions in handling the trust estate. The newly created trust was made irrevocable and is subject to our Texas Trust Act, Art. 7425b, Vernon’s Ann. Civ. St.

In addition to the property covered by the trust, C. D. Shamburger, Sr., had given each of his grandchildren several thousand acres of land. Appellant, P. P. Langford, III, was given 4,292 acres of grassland near Texline, Texas. Arrangements were made whereby the co-trustees would run the trust cattle as well as their own cattle on land given to the grandchildren and to pay them, including the appellant, rentals for the use of such grasslands. The ownership of the grassland was completely disassociated from the trust property. From 1950 through 1956 the appellant was paid in excess of $22,000.00 in rental for his land.

The trust acquired a property known as the Shamburger-Langford Lumber Company at Walters, Oklahoma. One-third was owned by the appellant’s trust and the other two-thirds by his brother, Stan, and sister, Sue, respectively.

The appellant by his point No. 5 contends that the District Court erred in not sustaining his motion in limine which was directed to the exclusion of evidence that he had been sued in two other cases in which judgments had been taken against him; that his grandfather had made numerous gifts to him and members of his family; that he took an airplane trip to some half a dozen different countries; that he purchased an expensive sports car and camera and had built an expensive lake house. By his points N 6, 7, 8, 9, 10, 12 and 14, appellant complains of the court’s action in permitting evidence to be. introduced before the jury on the matters (above listed) as contained in his motion in limine and in permitting evidence that he had been paid in excess of $22,-000.00 in rentals for his land. By his points 15 and 16 he urges error in permitting the defendant to argue such matters.

We agree with the appellant. The motion in limine to exclude evidence concerning such extraneous matters should have been sustained. Such evidence and the arguments based thereon had no bearing upon the merits of the case or the ultimate fact issues which the jury had to determine and objections thereto should have been sustained.

At best the trial was involved and highly technical in nature. The extraneous matter introduced before the jury was calculated to confuse rather than to enlighten it. The only other purpose to be served by such evidence would be to prejudice the minds of the jury by its introduction and to compound this injury by permitting argument emphasizing such prejudice.

Over objection appellee was permitted to prove that the appellant had built a lake house at a cost of $37,956.56 and that appellant’s grandfather had paid him rentals in excess of $22,000.00 for his grassland and had given him 4,292 acres of land. This was followed by argument in part as follows:

“C. D. Shamburger, Sr. made the Plaintiff rich,- and the evidence shows it. * * * We know one thing. We know that for years after it was given to the Plaintiff. * * * Now this is not part of his trust, mind you; this is outright gift of land to this Plaintiff by his grandfather. * * * P. P. Langford, III is leasing this land that he got as a gift from this grandfather, 4292 acres of grassland, for money that he can use personally. * * * He had given them the land first and then the cattle, they put their own trust cattle on the land, let them graze on the land — neat idea. * * * I have always heard that blood is thicker than water, but evidently it isn’t as thick as money, and so here he comes back into court, and is wanting to sue and get more money, not satisfied with what has been given him by his grandfather. * ‡ * >9

The further argument was then made, based upon this improper evidence:

“The undisputed testimony shows that that little lake cabin down there cost $37,-956.56. Where do you get that figure? Well, you know he had a little dispute with Henry Naylor, and he had to be sued before he would pay Henry Naylor, so there went $11,145.70.”

Even after the trial court had ruled out the Naylor judgment, appellee sought to get this evidence before the jury through another means. Appellant was asked if he were willing to pay his account allegedly owed to the Shamburger Lumber Company and, upon his affirmative reply, was then asked if he would pay that account just like he had paid the Naylor account where suit had been brought and judgment taken against him.

Appellee argues that since trust money was advanced to pay these judgments, the trustee is required to account for the money. In his motion in limine, appellant stipulated that he would not make any contention against the appellee for advancing sums of money to pay for such judgments. Appellant also stipulated in open court, outside the presence of the jury, that appellant was making no contention against appellee concerning these judgments or monies advanced to pay them off. Under these circumstances, we are of the opinion that it was clearly error for the trial court to submit issues on these matters to the jury.

Upon retrial of this case, it should be kept in mind that we are here dealing with an express trust as distinguished from an implied or constructive trust. Appellant is not relying upon implications to establish the trust relationship. The relationship of trust is established as a matter of law by the expressed provisions of the instrument itself. The obligations and duties imposed upon him were those imposed upon the trustee of an express trust.

While it is true that the language of the trust instrument in this case purports to relieve the trustee from liability except for gross négligence or bad faith, it is still not incumbent upon the appellant to establish that the trustee was guilty of actual fraud. This is a vital distinction between actual and constructive fraud as is pointed out by Pomeroy in the following language:

“The distinguishing element of actual fraud * * * is always untruth between the two parties to the transaction, so that actual fraud may be reduced to misrepresentations and concealments. This untruth at law * * * must be virtually intentional, — a falsehood; in equity the intention is not so essential. Untruth is not the distinguishing element of constructive fraud;

“Constructive fraud is simply a term applied to a great variety of transactions, having little resemblance either in form or in nature, which equity regards as wrongful, to which it attributes the same or similar effects as those which follow from actual fraud, and for which it gives the same or similar relief as that granted in cases of real fraud.” Pomeroy’s Equity Jurisprudence, 5th Ed., Vol. 3, § 922,1941.

Story calls it legal or constructive fraud:

“It has been defined as an act which the law declares fraudulent without inquiry into its motive. * * * The necessity of considering this phase of the law arises most frequently in controversies which grow out of dealings between persons when one occupies fiduciary or confidential relations to the other.” Story’s Equity Jurisprudence, 14th Ed., 1918, Vol. 1, § 370.

Our Supreme Court of Texas has long recognized the reasons why a beneficiary, such as the appellant in this case, is not required to prove actual fraud to recover from a defalcating trustee:

“ ‘The rule forbidding conflict between interest and duty is no respecter of persons. It imputes constructive fraud, because the temptation to actual fraud, and the facility of concealing it, are so great. And it imputes it to all alike, who come within its scope, however much or however little open to suspicion of actual fraud. Equity “does not so much consider the bearing or hardship of its doctrine upon particular cases as it does the importance of preventing a general public mischief, which may be brought about by means secret and inaccessible to judicial scrutiny, from the dangerous influences arising from the confidential relation of the parties.” “The principle applies, however innocent the purchaser may be in a given case.” ’ ” Nabours v. McCord, 97 Tex. 526,80 S.W. 595,600 (1904).

In Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, (1945), the Supreme Court again declares that an “intent to defraud” is immaterial to recovery by a beneficiary:

“These matters, intent to defraud and conspiracy and injury or damage to the beneficiary, are immaterial in the determination of liability in this case. * * * It is well settled that in a suit of this kind recovery may be had by the beneficiary even though he has suffered no damages and even though the trustee may have acted in good faith.”

In Texas Jurisprudence the rule is summarized as follows:

“Any abuse of a confidential relation, or misappropriation of the property of another or participation therein, or any unconscionable dealing whereby the transfer of property is obtained, constitutes fraud in the eyes of the court of equity.” 57 Tex.Jur.2d, p. 461, § 68, Constructive Fraud.

There is no legal principle more consistently applied or more jealously guarded by our Courts than that which applies to the conduct of a fiduciary. Justice Cardozo has perhaps best expressed the rule in this regard:

“Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions. * * * Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.” Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545-546,62 A.L.R. 1(1928).

In Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786, 120 A.L.R. 720 (1938), the late Justice Hickman speaking for our Supreme Court quoted approvingly from Justice Cardozo’s Meinhard opinion and pronounced the rule governing fiduciary relationships in this State:

“When persons enter into fiduciary relations each consents, as a matter of law, to have his conduct towards the other measured by the standards of the finer loyalties exacted by courts of equity. That is a sound rule and should not be whittled down by exceptions.”

From what our courts have said, it follows that the question of liability of a defalcating fiduciary can be ascertained as a matter of law without reference to a jury. The exculpatory language of the trust instrument in this case purporting to relieve the trustee from liability except for gross negligence and bad faith cannot be used to excuse the trustee from the misapplication or mishandling of trust funds. Here the trustee borrowed trust funds for his personal benefit and failed to invest substantial sums of trust monies. We think the correct rule of law in this regard is stated in Wichita Royalty Co. v. City Nat. Bank of Wichita Falls, 127 Tex. 158, 89 S.W.2d 394 (1935) :

“The trustee’s powers are broad, but no * * * stipulation of the declaration is susceptible of the construction that the trustee is privileged to use the trust property or credit for his own benefit. While he is to be held responsible, 'only for his own wilful and corrupt breach of trust and not for any honest error of judgment,’ he has no interest in the trust or its property other than a managing interest, and such interest as may be evidenced by a certificate of ownership.”

It would be contrary to the public policy of this State to permit the language of a trust instrument to authorize self-dealing by a trustee. Our Texas Trust Act provides:

“Except as provided in Section 11 of this Act, (Corporate trustee depositing trust funds with self) a corporate trustee shall not lend trust funds to itself or an affiliate * * * ; nor shall any noncorporate trustee lend trust funds to himself, or to his relative, employer, employee, partner, or other business associate.” Art. 7425b, § 10, p. 228.

Bogert says:

“The trustee may violate the duty of loyalty by lending trust funds to himself. He thus brings into play a conflict of private and representative interests. As lender it is his duty to get the best terms possible as to interest, security, and maturity. As debtor his impulse is naturally in the direction of getting the money at the lowest rate and often on other terms not advantageous to the lender. If he lends to himself, he cannot give an impartial judgment as to the adequacy of the security offered. * * *

“If there is no formal loan but a trustee mingles the trust funds with his own and uses them in his private business, the transaction can be treated as a breach of trust on either of two theories, namely, that of conversion of the trust property, or disloyalty.” Bogert Trusts & Trustees, 2d Ed. § 543 (J), p. 548.

In Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377 (1945), the court held:

“ ‘Trustees cannot make a profit from the trust funds committed to them, by using the money in any kind of trade or speculation, nor in their own business; nor can they put the funds into the trade or business of another, under a stipulation that they shall receive a bonus or other profit or advantage. In all such cases, the trustees must account for every dollar received from the use of the trust-money and they will be absolutely responsible for it if it is lost in any such transactions.’ ”

It is also, incumbent upon the trustee to put trust funds to productive use and the failure to do so within a reasonable period of time can render the trustee personally chargeable with interest. The general rule in this regard has been stated as follows:

“Where trust money cannot be applied either immediately or within a short time to the purposes of the trust, it is the duty of the trustee to make the fund productive to the cestui que trust by investment of it in some proper security, and a duty to invest arises by necessary implication from direction to pay over the interest or income.” 57 Tex.Jur.2d, § 143, p. 529.

“Unreasonable delay in the investment of funds, where the settlor has directed investment or reinvestment, must be avoided; otherwise the trustee will be personally chargeable with interest.” 57 Tex.Jur.2d, § 148, p. 533.

Appellee argues that appellant had knowledge for at least four (4) years that the trust funds were not yielding any interest. Both the four (4) and two (2) year statutes of limitation are urged as a bar to recovery by appellant. The evidence in this case did not justify the submission of any jury issue as to the statutes of limitations. In order to toll the statute, there must be a clear and unmistakable repudiation of the trust by the trustee, and such repudiation must be brought home to the beneficiary. No such repudiation is found in this case. The correct rule in this connection is well stated in 54 A.L.R.2d, § 2 at p. 23:

“The authorities are generally well agreed that for a trustee’s repudiation of an express trust to be sufficient to set the statute of limitations in motion in his favor and against the beneficiary, the repudiation must be plain, strong, and unequivocal. * * * Generally speaking, it must be an open repudiation, and to be sufficient and effective must have been brought home to the beneficiary.”

In this connection the appellee (trustee) stated unequivocally that he had not repudiated the trust here involved.

Neither would the fact that appellant had knowledge of the trustee’s failure to invest trust funds necessarily relieve the trustee from liability. We are not here dealing with an arm’s length transaction. The fiduciary relationship must be taken into account in determining whether the beneficiary exercised the requisite degree of diligence. Courseview, Incorporated v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197 (1957).

A witness was permitted to testify as to what the Texline ranch records reflected as to transactions involving the handling of trust property, the allocation of profits and expenses to the various trusts, credits, etc. The record itself (the best evidence) was never produced nor made available to appellant. Should this question arise on retrial such records should be produced. In this connection the pertinent income tax returns should likewise be produced or made available to the extent of relevancy and materiality shown. See Maresca v. Marks, 362 S.W.2d 299, 300-301 (Tex.Sup., 1962), and 20 Tex.Jur.2d 151, § 8 and authorities cited as to limitations placed upon the production of such records.

If it is established on retrial of this cause that the trustee mixed and mingled trust funds with his and the other private funds, then we believe that the burden of proof is on those standing in the trustee’s shoes to segregate &e privately owned property from that which was held in trust. Eaton v. Husted, 141 Tex. 349, 172 S.W.2d 493 (1943). Nor do we think a trustee who has not steadfastly performed his fiduciary duties is entitled to receive any compensation for his services:

“ * * * compensation has been refused where the trustee failed to use ordinary care in his administration, * * * failed to keep proper records of trust administration, * * * failed to invest trust property, * * * mingled trust property with his own, * * * was guilty of disloyalty to the beneficiaries in that he acted for his own selfish interest. * * * ” Bogert Trusts and Trustees, 2d Ed., “Accounting and Compensation,” § 980 (Power of Court to Reduce or Deny Compensation), p. 404 (408-410).

Reversed and remanded.

ON MOTION FOR REHEARING

We have carefully examined Appellee’s persuasive Motion for Rehearing, but we have concluded that our original opinion is correct. We simply do not believe from the state of this record that the findings of the jury can be relied on because of the admission of certain inflammatory, highly prejudicial and inadmissible evidence concerning the appellant’s personal habits. We have attempted to furnish the trial court certain applicable legal principles which should govern him upon retrial of the cause.

We repeat our firm belief that in a suit for an accounting brought by the beneficiary of an express trust, the trial court, without the assistance of a jury, can determine whether the trustee’s actions are in violation of the trust instrument. In this connection, we have pointed out the vital distinction between the kind of trust we have in this case (express) and a resulting or constructive trust, the very existence of which depends upon the determination of fact questions.

If the trial court should conclude that fiduciary breaches have occurred, then findings will need to be made as to the accounting aspects of the case. As stated in our original opinion, it appears that the trustee borrowed trust funds for his personal benefit and failed to invest substantial sums of trust moneys. But in view of this record, we are not prepared to so hold as a matter of law and we leave it to the trial court to resolve these questions upon retrial. Certainly the record leaves much to be desired with respect to the amount of recoveries sought by appellant and against whom such recoveries are directed but, as we previously pointed out, the pertinent accounting records should be made available by the ap-pellee upon retrial. Certainly a statement of accounts between the parties such as that sometimes performed by a court appointed auditor clearly seems appropriate. The accounts between the parties need to be stated in such a way as to permit the trial court to determine what effect the resolvement of the legal issues will have on the case. In this connection, we suggest that resort to pretrial procedure might be extremely helpful to the trial court as well as to the parties.

We are still of the opinion that the trial court’s failure to sustain the plaintiff’s motion in limine to exclude certain extraneous and prejudicial evidence constituted reversible error, especially since appellant had stipulated that no issues would be raised as to the matters covered in his motion. Counsel for appellee, however, has construed this holding in such a way as to deny him the use of any accounting information which could be used defensively on behalf of the trustee in stating the accounts between the parties. If there are any proper set-offs or credits with which the trustee is entitled, this, of course, should be taken into account by the trial court in his findings. Certainly the $4,077.04 which appel-lee says appellant owes him because of a transaction completely unrelated to the administration of the trust is one such item to be considered upon retrial. But this does not mean that appellee should be given permission to introduce evidence such as that introduced during the first trial of this case as to the appellant’s conduct which has nothing to do with the determination of the issues in the case.

For the reasons stated in our opinion, we do not believe the statutes of limitation can, under the circumstances in this case, bar recovery by appellant. But if the appellant were fully and fairly informed of the trustee’s stewardship and appellant failed to make any protest, then a fact question may be presented as to whether appellant acquiesced to the actions of the trustee. If, however, the trustee actually benefited by reason of the confidential relationship, we do not believe that appellant would be es-topped even though he acquiesced in the actions of the trustee unless such trustee had affirmatively made a full and complete disclosure.

Appellee again directs our attention to the exculpatory language of the trust instrument which relieves a trustee from liability except for gross negligence. Appel-lee contends that we have in effect held that such exculpatory language is unlawful, thus going contrary to the great weight of authority in this State which has upheld similar exculpatory language in other trust instruments. Our holding is not so broad and should not be so construed. What we have held is that the exculpatory language in the trust instrument here under consideration does not authorize self-dealing by a trustee. In view of the language of Section 10 of the Texas Trust Act, Article 7425b, we further express the opinion that the language of a trust instrument which specifically authorizes self-dealing by a trustee could present a serious question of public policy.

Appellee’s motion for rehearing is accordingly overruled. For the reasons stated above, appellant’s motion for rehearing is likewise overruled.

DISSENTING OPINION

ON MOTION FOR REHEARING

RENFRO, Justice

(dissenting).

But for the generosity, foresight and business acumen of appellant’s grandfather, there would have been no trust for appellant. Under the management of appellant’s grandfather and Uncle, trustees, the trust grew from a value of a few thousand dollars at the time of its creation to a sizeable fortune by the time the trust terminated upon appellant’s reaching the age of thirty-five.

After a ten day jury trial, the court entered a fourteen page judgment. On pages 8 and 9 of the judgment (pp. 158-159 of the transcript) appears the following:

“That this is an equitable proceeding; that the evidence presented herein to the Court and Jury clearly demonstrated, and the Jury found, (1) that at all times while C. D. Shamburger, Jr. served as a Trustee of the P. P. Langford, III Trust he acted in good faith in the management of the affairs of the trust, and (2) that neither the said C. D. Shamburger, Jr., his father, C. D. Shamburger, Sr. or the estates of C. D. Shamburger, Sr. and Mrs. C. D. Shambur-ger, Sr. ever used any trust funds for their own personal benefit and profit. That said findings by the Jury are abundantly supported by the evidence in the case and such findings are adopted by the Court as its own findings with respect to those matters. * * * That the facts admitted in evidence do not support a finding, nor did the jury find, that the Defendant was guilty of gross negligence or of bad faith in the management of the affairs of the trust, and there was no evidence of probative force that the Defendant was ever guilty of any defalcation. That on the other hand the facts support the conclusion that the Defendant, as Trustee, acted honestly and in accordance with his best judgment in the management of the trust affairs, which the Court finds, and that he should be relieved from liability for any claimed violation of the provisions of the Texas Trust Act by virtue of the provisions of Article 7425b-24, Subdivision E thereof; * *

The provisions of the Trust Act referred to above provide that a court of competent jurisdiction may, for cause shown, wholly or partly release and excuse a trustee, who has acted honestly and reasonably, from liability for violation of the provisions of the Act.

In my opinion the record in this case is such that the court could properly exercise its authority to release and excuse the trustee from the claimed liability.

I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    AETNA INSURANCE COMPANY et al., Appellants, v. H. M. FORD et ux., Appellees.
    No. 4180.
    Court of Civil Appeals of Texas. Eastland.
    June 30, 1967.
    Rehearing Denied July 21, 1967.

      Fischer, Wood, Burney & Nesbitt, Corpus Christi, for appellants.
    Burnett, Burnett & Joseph; Sinton, for appellees.
   COLLINGS, Justice.

H. M. Ford and wife, Alice Ford, brought this suit for a temporary restraining order, temporary injunction and permanent injunction, to prevent Aetna Insurance Company and Constable Eakin from selling under execution three tracts of land owned by them in San Patricio County. As a basis for their suit plaintiffs alleged the lands constituted a part of their homestead. Defendants answered alleging in substance that plaintiffs’ claim of homestead was false and made by plaintiffs pursuant to a scheme and plan to hinder, defraud and delay Aet-na in collection of its debt. This appeal is from an order of the District Court granting a temporary injunction as prayed.

One point is presented in which it is contended that the court erred in granting the temporary injunction restraining the execution sale of the lands here involved because such lands, as a matter of law, did not constitute any part of appellees’ homestead.

The general rule is that the granting or refusing of a temporary injunction is within the sound discretion of the trial court and that the action taken by the court will not be disturbed on appeal unless there has been an abuse of discretion. Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952). Harding v. W. L. Pearson & Co., 48 S.W.2d 964 (Tex.Com. App.). It is likewise well established that “ — the trial court’s discretion is not unlimited and does not extend to the erroneous application of the law to undisputed facts.” Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (Tex.Com.App. 1935, opinion adopted by Sup.Ct.). If the order is based upon conflicting evidence or diverse inference it will not be disturbed. 31 Tex.Jur.2d 348, 349; King v. Plainview Nat. Farm Loan Ass’n, 86 S.W.2d 833 (Tex.Civ.App.1935, no writ history). An abuse of discretion is shown only when the record reflects that the findings of the trial court necessary to sustain its order granting or refusing a temporary injunction are not supported by any probative evidence. City of Houston v. Southwestern Bell Telephone Company, 263 S.W.2d 169 (Tex.Civ.App., 1953, error ref.).

The material considerations on an appeal from an order granting a temporary injunction are set out by Judge Calvert in Transport Company of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 as follows:

“In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. James V. E. Weinstein & Sons, Tex.Com. App., 12 S.W.2d 959, 960. To warrant the issuance of the writ, the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. Rosenfield v. Seifert, Tex.Civ. App., 270 S.W. 220, 223; Nagy v. Bennett, Tex.Civ.App., 24 S.W.2d 778, 781; High on Injunctions, 4th Edition, Vol. 1, Sec. 5, p. 8. If the party enjoined prevails on a final trial of the case he finds protection against the improvident granting of the writ and consequent loss in the interim in the applicant’s bond. Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Texas Foundries v. International Moulders & Foundry Workers’ Union, Tex.Sup., 248 S.W.2d 460, 462. There is no abuse of discretion in the issuance of a writ if the petition alleges a cause of action and the evidence adduced tends to sustain it. Southwestern Greyhound Lines, Inc. v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235.”

On November 28, 1966, the execution in question issued out of the District Court by virtue of a judgment for $138,097.10 in which appellant Aetna Insurance Company was plaintiff in judgment and H. M. Ford was a defendant. On December 19, 1966, the execution was levied by the Constable of Precinct 1, San Patricio County against the three tracts of land involved in this suit and a fourth tract all of which belong to appellees Ford and wife and are claimed by them as their homestead. At the request of appellant, Aetna Insurance Company the levy on a portion of Lot 9 of Section 12, the fourth tract included in the original levy, was released. This tract was purchased by appellees in 1918 where they have at all times since resided using the residence and improvements which they constructed thereon as a home. Appellant does not question the fact that such tract is appellees’ homestead.

In 1943, appellees purchased an approximately 23 acre tract of land being all of 10 acre tracts 10 and 7 and fractional tract 8 out of said section 12. This tract joins Lot 9 on which appellees’ residence is located and appellees claim it as a part of their homestead. Appellant contends that the undisputed evidence shows appellees never at any time made any homestead use of such tract adjacent to their dwelling, and that their homestead claim thereto must fail as a matter of law. This contention is not well taken and is overruled. Whether a tract of land adjoining a dwelling plot in which a homestead estate has been acquired is a part of the homestead is generally a question of fact. Continental Investment Company v. Schmeich, 145 S.W.2d 219 (Tex.Civ.App., 1940, writ ref.); Arto v. Maydole, 54 Tex. 244. In the instant case there was no evidence that the contiguous land was put to a use inconsistent with homestead purposes. There was evidence to the effect that appellees purchased the adjoining 23 acre tract because they feared that if they failed to do so it would be used to a purpose detrimental to their home. This in itself shows an appropriation of the property to homestead purposes. Little v. Baker, 11 S.W. 549 (Tex.Sup. Ct. 1889.).

Appellant further contends that the undisputed evidence establishes that the Fords’ residence homestead is rural in nature and that their claim that two business lots in the city of Sinton constitutes a business homestead cannot be sustained. It is undisputed that the Ford residential property is not within the limits of the City of Sinton but is situated about 1600 feet outside of and east of such city limits. To the northwest of the Ford home there are five houses on the road toward Sinton. One of these houses is on a small tract not owned by ap-pellees in the northwest corner of Lot 9 and there are four houses on the Moss tract. West of the Moss tract is the old Morgan home. West of the Morgan tract and joining the east city limits of Sinton is the Beuna Vista Addition in which there are nine homes. The evidence also shows that there are twenty or thirty homes in the Dodd subdivision which is about Moths of a mile east of the Ford residence. South of the Beuna Vista Addition is the Rancho Chico Addition and the second Rancho Chi-co Addition where several people reside. The evidence shows that the Gerdes tract immediately west of a portion of appellees’ property and southwest of their residence is being cut up into lots. All of this property except the Dodd subdivision is between the Ford residential property and the city limits of Sinton. Mr. Ford has never used any of his residential property for farming purposes or growing crops thereon. He did keep horses on a portion of his residential property from about 1923 to 1938. Mr. and Mrs. Ford receive city utilities, water from the City of Sinton, gas from United Gas Company and electricity from the Central Power and Light Company. '

It is held that an urban homestead may be situated entirely outside the city limits of a city, town or village and that a rural homestead may be situated entirely within the limits of such a city. Jones v. First National Bank of McAllen, 259 S.W. 157 (Tex.Com.App.1924, opinion adopted by Supreme Court); Commerce Farm Credit Company v. Sales, 288 S.W. 802 (Tex.Com.App.1926, opinion approved.). The character of land as an urban or rural homestead is ordinarily a question of fact unless the facts and circumstances are such that reasonable minds cannot differ. Kimmey v. Goodrum, 346 S.W.2d 901 (Tex.Civ.App., 1961, ref. n. r. e.). In our opinion the evidence in this case presents a question of fact concerning the character of appellees’ homestead as urban or rural. Appellant’s contention to the contrary is overruled.

The city property claimed by the Fords as business homestead are lots 4 and 16, block 35, in the City of Sinton. It is undisputed that these lots, although in the same block, are not contiguous or adjacent. Ford is in the plumbing business and the evidence indicates that his office and main place of business is in the building located on lot 16 where he has been operating such business since he purchased the property in 1931. In 1947, Ford acquired lot 4 in block 35 and has since used it in connection with his business. He contends that there is evidence in the record tending to show that lots 16 and 4 are both used as a place for operating and transacting his plumbing business and that the use of lot 4 is not merely incidental to his business as contended by appellant. There is evidence to the effect that when he purchased lot 4 in 1947, he built a warehouse thereon but that he has also been using it as a shop in connection with and as a part of his business; that lot 16 is where the office is located and that portions of both buildings are also used in connection with his business for storage and warehouse purposes.

We agree with appellant’s contention that the Fords are not entitled to claim both of these non-contiguous lots as a business homestead. Appellant specifically urges that Lot 4 cannot constitute any part of Ford’s business homestead. Where a person has and is using two business homesteads he has the right to elect which he will hold but he is not entitled to claim both. Campbell v. First National Bank in Lubbock, 88 S.W.2d 1084 (Tex.Civ.App., 1935, writ ref.). In the instant case Ford has made no election. In Rock Island Plow Company v. Alten, 102 Tex. 366, 116 S.W. 1144 (1909), where two non-contiguous lots were claimed as a business homestead under the provision of Section 51, Article 16 of the State Constitution it was stated as follows:

“The homestead here defined embraces the family residence or home as well as a place of business of the head of the family. There are not two homesteads, but one homestead, a part of which may be used for the business of the head of the family. Of the lots constituting the homestead there may be one or more subject only to the limitation of the value of $5,000. They may be connected or disconnected from each other, provided, they be used for the purposes of a home; that is, for such uses as contribute to the enjoyment of the home. One or more of these lots may be devoted to the business of the head of the family, but it must constitute ‘a place to exercise the calling or business of the head of the family.’ Under this definition of the homestead, that portion which is devoted to the business must constitute a place, that is, one place, at which the business is transacted. It may consist of more than one lot if so used as to make them a place for transacting that business. Lots 1 and 2, as shown by the facts in this case, were used as a place of business by Alten. His business house rested upon both lots. Therefore they were exempt by the Constitution. McDonald v. Campbell, 57 Tex. 614; Hinzie v. Moody & Co., 1 Tex.Civ.App. 26, 20 S.W. 769; Evans & Co. v. Pace, 21 Tex.Civ.App. 368, 51 S.W. 1094. Henry v. Corpus Christi Nat. Bank (Tex.Civ.App.) 44 S.W. 568.
The language applied to the lots to be used for the purposes of a home and the lots dedicated to the transaction of the business of the head of the family presents a sharp contrast in the character of the two exemptions. For the residence, or family homestead, it is not required that all of the lots should be used as ‘the domestic or hearthstone home,’ only that they be used ‘for the purposes of the home.’ For example, the residence of the family might be upon one lot, the garden upon another disconnected from the first and the third, disconnected from both the others, might be used for the purpose of a horse or cow lot, or other purposes of the home. In contrast to that language, it is provided that for the business exemption the lots must constitute a place to exercise the calling or business of the head of a family which forbids the construction that such lots might be used ‘for the purposes’ or in aid of the business of the head of the family.”

The above holding in the Rock Island Company case has been followed in numerous instances by Texas Courts of Civil Appeals, and in our opinion is controlling in the instant case. See Farmers National Bank of Dublin v. Carmony, 62 S.W.2d 1115, 1117 (Tex.Civ.App.1933, no writ history); Mays v. Mays, 43 S.W.2d 148 (Tex.Civ. App.1931, writ ref.); Bowman v. Stark, 185 S.W. 921 (Tex.Civ.App.1916, writ dis.); Thomas v. Creager, 107 S.W.2d 705 (Tex. Civ.App., 1937, writ dis.).

The judgment is affirmed in part and is in part reversed and remanded. The action of the court in granting the temporary injunction is affirmed in so far as it restrains the sale of the Fords’ residential property. For the reasons stated the portion of the temporary injunction restraining the sale of lots 4 and 16 is reversed and the cause is remanded.


author: WERLEIN, Justice.

text:
    Ouida WILLIAMS et al., Appellants, v. HUMBLE PIPE LINE COMPANY, Appellee.
    No. 15090.
    Court of Civil Appeals of Texas. Houston.
    July 3, 1967.
    Adams & Browne, David L. Larson, Beaumont, for appellants.
    Jim K. Wilson, Houston, Dillard Baker, Houston, of counsel, for appellee.
   WERLEIN, Justice.

This is an appeal from a summary judgment granted appellee, Humble Pipe Line Company, in a suit brought against it by Ouida Williams et al. to recover damages alleged to have been sustained by them as a result of appellee’s constructing a pipe line across land belonging to appellants. Appellee admitted that it had laid such pipe line but pleaded affirmatively that it was the holder of an easement across the land which had been executed by appellants and/or their predecessors in title to the land in question.

The evidence shows that on November 14, 1936 George L. Morgan and wife, Lucy Morgan, conveyed a right of way or easement to Humble Oil & Refining Company across the land described in appellants’ petition. The right of way conveyance was amended on January 17, 1959. Such amended instrument was executed by all of the appellants except Jill Koenig Hodge and husband, J. C. Hodge, who derived their interest in the property from Georgie Morgan Koenig and husband, John H. Koenig, who had executed such amended instrument. The right of way grant as amended contains a provision specifically granting “the right of assignment in whole or in part;” and it authorizes Humble Oil & Refining Company or its assigns to lay within the 50 foot wide unobstructed right of way therein described “an additional line or lines of pipe” alongside the line specifically identified therein. Such amended right erf way grant contains the following paragraph:

“It is further understood and agreed that Humble Oil & Refining Company, its successors and assigns, may at any time lay within the right of way described above an additional line or lines of pipe alongside of the line or lines herein mentioned, and, if such privilege is exercised, Humble Oil & Refining Company, its successors and assigns, shall thereupon, within sixty (60) days after exercising such right, pay FIVE AND NO/100 DOLLARS ($5.00) per • lineal rod to the undersigned Owner, his heirs or assigns, for each additional line so laid. In the event the undersigned own an interest in said premises less than the entire fee simple estate, then said payment shall be reduced proportionately.”

On December 31, 1965, Humble Oil & Refining Company transferred, assigned and conveyed to appellee a ten-inch pipe line, in place, extending generally from the grantor’s Baytown refinery in Harris County to a point in the vicinity of Port Acres, Texas, in Jefferson County, Texas, a portion of said pipe line being situated on, over and across the right of way easement granted by appellants to Humble Oil & Refining Company, as hereinabove stated. In such instrument it is recited that the grant is subject to all the terms and provisions of the above described right of way easement, but only insofar as the same may be necessary for the assignee to lay, construct, maintain, operate, replace, change and remove (1) the presently existing 10-inch pipe line being transferred to the assignee, and (2) one additional pipe line to be laid within said easement parallel to said existing 10-inch pipe line.

On February 10, 1966, appellee tendered to appellants the total sum of $2,520.00, or $5.00 per lineal rod, in payment of the amount called for in the easement as consideration for the laying of an additional pipe line. Such tender was made prior to the commencement of operations for construction of such pipe line, but the drafts delivered to appellants were not cashed or returned to appellee.

Appellants contend that the trial court erred in granting the summary judgment because: (1) the right or privilege of laying the additional pipe line could be barred by an unreasonable delay in doing so and hence there was a fact issue as to whether there was such unreasonable delay; (2) the right to lay at any time an additional pipe line or lines within the right of way constitutes a grant of an option unlimited as to time, which had to be executed within a reasonable time and hence there was a fact issue as to whether it was exercised within a reasonable time; and (3) the option being unlimited in time, was in violation of the Rule against Per-petuities and therefore void.

Appellee concedes that mere options unlimited as to time must be exercised within a reasonable time. It asserts, however, that its rights under the additional line rights clause in the lease is not a mere option but a presently vested expansible easement and hence it does not constitute a violation of the Rule against Perpetuities which, of course, deals only with the remote vesting of an estate and not the enjoyment thereof. Appellee further asserts that since such grant is of a vested right in property and not a mere option, it does not have to be exercised within any particular time and there was no fact issue with respect to exercising the same within a reasonable time. The evidence shows that the additional pipe line was laid within the right of way specifically described in the amended easement and in accordance with the provisions thereof.

We are of the opinion that the grant of the easement in question did not convey a mere option to appellee’s predecessor but presently vested in such predecessor an. expansible easement to lay within the right of way specifically described an additional line or lines of pipe alongside of the line or lines already laid at the time the amended easement was executed. Such vested right in appellee’s predecessor was assignable in whole or in part under the express terms of the amended easement. We know of no reason why under such express provision the easement could not be assigned to appellee in part, as was done.

In Phillips Petroleum Company v. Lov-ell, 392 S.W.2d 748, Tex.Civ.App.1965, writ ref., n.r.e., the court held that a grant such as the one in the instant case vested an expansible easement in the grantee, and that additional line rights grants are not the same as options. The court said: “It is so elementary it requires no citation of authority to say that a land owner in fee has a right to lay a pipe line or pipe lines on his land at any time, and having such right he may convey such right to another.” The law is well settled that courts must construe a deed so as to give effect to all parts thereof and will harmonize all provisions therein and not strike down any part of a deed unless there is an irreconcilable conflict. Cockrell v. Texas Gulf Sulphur Company, 1956, 157 Tex. 10, 299 S.W.2d 672; Woods v. Sims, 1954, 154 Tex. 59, 273 S.W.2d 617.

The court, in the Phillips Petroleum Company v. Lovell case, supra, cited with apparent approval cases in other jurisdictions in which language similar to that used in such case and also in the present case was held to be multiple line grants giving the right in the future to expand the servitude by the payment of further consideration for such expansion. See Hamilton v. Transcontinental Gas Pipe Line Corp., 1959, 236 Miss. 429, 110 So.2d 612; Baker v. Tennessee Gas Transmission Co., 1952, 194 Tenn. 368, 250 S.W.2d 566; Sorrell v. Tennessee Gas Transmission Co., Kentucky Court of Appeals, 1958, 314 S.W.2d 193.

In the Lovell case the court also held that the grant to construct “each separate line so laid” conveyed a present right, or a right in praesenti, to lay a pipe line or pipe lines at any time or times, just as the instrument provided, and that the provision for payment in the future for the subsequent line or lines is not subject to the Rule against Perpetuities. See Sorrell v. Tennessee Gas Transmission Company, supra; Restatement of Law, Property, Sec. 393, Comment j, p. 2321, and Sec. 399, Comment a, p. 2341; Caruthers v. Peoples Natural Gas Co., 155 Pa.Super. 332, 38 A.2d 713. See also Baker v. Tennessee Gas Transmission Company, supra; Van-diver v. Transcontinental Gas Pipe Line Corp., U.S.Dist.Ct., M.D.Ga., 222 F.Supp. 731; Patterson v. Chambers’ Power Co., 81 Or. 328, 159 P. 568.

Since the right to lay an additional pipe line is not a mere equitable right but a grant of an expansible easement presently vesting in the grantee an interest in land, it is our opinion that as a matter of law such right was not barred by the alleged delay of seven years in exercising it, and hence no genuine issue of material fact was raised with respect thereto. See Restatement of the Law, Property, Ch. 27, Sec. 399, p. 2341, Comment g, where it is stated: “The ‘expansible aspect’ of some such interests can be thought of as the progressive utilization, in its entirety, of an interest fully created at the beginning, or as the creation of an original less inclusive interest to which new rights are added from time to time.” See Sorrell v. Tennessee Gas Transmission Co., supra.

We overrule appellants’ assignment that appellee has no enforceable assignment giving it the right to lay any pipe line across .the land of the appellants on the ground that the assignment from Humble Oil & Refining Company to appellee failed to designate the location of the proposed pipe line to be laid by appellee. The easement is specifically described and the additional line was to be laid in such easement and alongside the pipe lines previously laid. This sufficiently defined the location of the proposed pipe line. See Knox v. Pioneer Natural Gas Co., 321 S.W.2d 596, Tex.Civ.App.1959, writ ref., n.r.e.; Cozby v. Armstrong, 205 S.W.2d 403, Tex.Civ. App.1947, writ ref., n. r. e.; Sorrell v. Tennessee Gas Transmission Co., supra.

Judgment affirmed.


text:
    Jack M. ROSE, Relator, v. Honorable William M. HATTEN, Judge, Court of Domestic Relations of Harris County, Texas et al., Respondents.
    No. 15170.
    Court of Civil Appeals of Texas. Houston.
    July 3, 1967.

      Schlanger, Cook & Cohn, Joel W. Cook, Houston, for relator.
    Ramey & Clay, Ben N. Ramey, Houston, for respondents, Sylvia Rose and Ben N. Ramey.
    J. Edwin Smith, Houston, for respondent, J. Edwin Smith.
    Alvin Diamond, Houston, for respondent, Alvin Diamond.
   WERLEIN, Justice.

This is an original proceeding brought by Relator, Jack M. Rose, against Honorable William M. Hatten, Judge, Court of Domestic Relations No. 2, Harris County, Texas, Ben M. Ramey, J. Edwin Smith, Alvin Diamond and Sylvia Rose, seeking a writ of mandamus requiring the Respondent Judge to set for hearing, after notice to all parties of record, Cause No. 621,096 on the docket of the Court of Domestic Relations No. 2 of Harris County, and to proceed to a final judgment in said cause, disposing of all parties and all issues raised by the pleadings in said cause, and praying for certain other relief.

The basic question before this Court is whether or not that certain judgment entered by Respondent Judge in said cause, which was a divorce proceeding, is a final judgment disposing of all the parties and the issues in the suit. In Plaintiff’s First Amended Original Petition filed in said court on May 16, 1964 by Sylvia Rose, she complained of Jack Rose and also made parties to such suit: Hodgkin’s Disease Memorial Research Center, an alleged foundation in Houston, Harris County, Texas, Dr. George Robert Kolodny, Trustee, Dr. Arthur L. Glassman, Trustee, and Spur Land Company, Trustee. Plaintiff’s suit was for divorce and settlement of property rights. The parties, Sylvia Rose and her husband, Jack Rose, at the time of the suit had no children under eighteen years of age.

In this proceeding the Relator, Jack Rose, asserts that the judgment entered by the trial court in said cause on April 5, 1967, is not a valid and enforceable judgment for the reason that the same was based upon a trial without notice to the other parties of record in the cause, and also because such judgment does not dispose of the rights of the parties to said cause other than the Relator and his wife, Sylvia Rose, and further fails to direct the manner in which the actual division of the properties of the parties is to be made between them, and how the judgment may be enforced. Relator further asserts that said judgment fails to designate any particular property as community property; fails to sufficiently describe and locate the stocks, bonds and securities belonging to the community of relator and respondent, Sylvia Rose, and fails to establish any procedure for the repairs and sale of the homestead and the disposition of money held in trust by several of the lawyers of record in the suit.

The judgment of the trial court makes no reference whatever to the parties-defendant in the suit other than the defendant, Jack Rose. Service was duly had on all of the defendants. The defendant, Spur Land Company, Trustee, filed a general denial to the allegations in plaintiff’s petition. The defendant, Hodgkin’s Disease Memorial Research Center, filed an answer alleging that the United States Patent referred to in plaintiff’s petition, the legal title to which stood in the name of Jack M. Rose, was equitably owned by said defendant, Hodgkin’s Disease Memorial Research Center, and that the community of Jack M. Rose and Sylvia Rose had no equitable interest in said patent. The defendants, Kolodny and Glassman, against whom no affirmative relief was sought, filed no answer.

We have carefully considered the judgment entered in said cause and have concluded that it does dispose of all the issues raised in the amended petition filed therein. The court found and decreed that the patent, to which Hodgkin’s was asserting a claim, was the community property of the plaintiff and defendant, Jack M. Rose. There has been no appeal perfected from the judgment of the trial court by Hodgkin’s or any of the other defendants in the case, and none of the defendants other than the relator are complaining here. Plaintiff in her petition alleged that she had a 3% interest and the community of herself and husband a 20% interest in what is described as the “South Main property”, although the entire title to said property was in the name of a trustee, Dr. George Robert Kolodny. The court partitioned only the undivided 23% interest of the Roses in said property, decreeing that Sylvia Rose shall own an undivided 7% and Jack Rose an undivided 16% in such property, after allowing certain offsets in favor of relator. The judgment ordered that the funds held in trust be partitioned.

All issues between relator and respondent, Sylvia Rose, were determined by the court after a full hearing. The judgment of the court determined their rights and interest in all the property, and is a final judgment, although it should have been more specific in directing how certain provisions therein were to be carried out and enforced. We do not agree with relator’s contention that the judgment is not final because of the alleged failure of the court to dispose of all the issues in the case and of the defendants other than the respondent, Sylvia Rose. It is our view that the trial court, being a Court of Domestic Relations, had no jurisdiction to adjudicate any disputes as to property, real or personal, as between the husband and wife and third parties. The jurisdiction of the Courts of Domestic Relations for Harris County is prescribed by Article 2338-11, Section 3, of Vernon’s Annotated Texas Statutes. Jurisdiction to adjudicate property rights between a husband and wife and third party claimants is not given to such courts. As between the spouses the judgment does dispose of all the property owned by them, or of their undivided interests therein if they did not own the whole interest in the property. By thus disposing of all the property before the court and partitioning it to the Roses, the court’s judgment by implication disposed of any claim of third parties to such property.

The law is well settled that a judgment may dispose of all parties and issues by necessary implication. 33 Tex. Jur.2d, page 606, Judgments, Sec. 86, and authorities cited. “ * * * a judgment which grants part of the relief but omits reference to other relief put in issue by the pleadings will ordinarily be construed to settle all issues by implication.” 4 McDonald, Texas Civil Practice, page 1340, Sec. 17.10. See Vance v. Wilson, Tex.Sup. 1964, 382 S.W.2d 107; Comer v. Brown, Tex.Com.App.1926, 285 S.W.307; Southern Pac. Co. v. Ulmer, Tex.Com.App.1926, 286 S.W. 193. The general rule is that a judgment is not final with reference to appeals unless all the issues of law and of fact necessary to be determined are determined, and the case is completely disposed of, so far as the court has the power to dispose of it. We are of the opinion that the judgment of the trial court in the instant case did dispose of all the rights of the parties and of all the issues and parties insofar as it had the power to do so. Hargrove v. Insurance Inv. Corporation, 1944, 142 Tex. Ill, 176 S.W.2d 744; Freeman’s Law of Judgments (5th Ed.), Vol. 1, p. 70, Sec. 45.

The fact that the judgment in the instant case fails to declare in what manner certain provisions contained in the judgment may be enforced, does not militate against its finality. In Ware v. Jones, Tex. Com.App.1923, 250 S.W. 663, 665, the court said:

“However, if the rights controverted by the parties be settled by the judgment, it will be held final, although further proceedings should be required to carry the judgment into full effect. Such proceedings may be expressly provided for in the face of the judgment without affecting its finality, provided they are merely incidental to its proper execution.”

See also Pennington v. Pennington, 145 S. W.2d 688, Tex.Civ.App.1940, n. w. h.

Petition for mandamus denied.


author: WILSON, Justice.

text:
    M. G. PETER, Appellant, v. 2117 WALKER CORPORATION, Appellee.
    No. 4634.
    Court of Civil Appeals of Texas. Waco.
    June 29, 1967.
    Ranseler O.' Wyatt, Houston, for appellant.
    Aaron Goldfarb, Houston, for appellee.
   OPINION

WILSON, Justice.

Summary judgment was rendered dismissing appellant’s severed action against ap-pellee corporation. We affirm.

The petition alleged appellant and two others, individuals who were originally named defendants, formed appellee corporation. Its purpose was to acquire a building to be leased to another corporation formed at the same time to sell food products. The petition alleged that appellant then agreed with the other two incor-porators that he would supervise organization of the business, and the repairing and remodelling of the building which was to be bought, on condition “that he would own an undivided one-third interest in said building and that he would be issued one-third of the corporate stock” of appellee corporation; that he subsequently performed the services which had been agreed upon prior to incorporation, but the other incorporators caused all stock to be issued to themselves; and that the president and secretary of the corporation (who were the other two in-corporators) have refused to issue one-third of the stock to appellant. It was alleged the other incorporators had thereby defrauded appellant, and that he had been delayed in discovering the claimed fraud.

The only relief prayed for was monetary damages, actual and exemplary. The pre-incorporation agreement relied on was said to be oral. It was alleged to have been made more than two years before the suit was filed. The action against the two other incorporators was severed from that against appellee corporation.

Appellant says there were issues of fact to be determined: whether he rendered services, and if so, their value. These are not material as against the corporation under his pleadings. He also says the corporation became trustee of the stock for the lawful owners. He did not predicate his action on this theory. He did not seek to impose a trust. His action is not aimed at obtaining stock or certificates. He sued only for damages.

Article 12, Section 6 of the Texas Constitution, Vernon’s Ann.St. prohibits issuance of corporate stock except for money paid, labor done or property actually received. Appellant alleged he was to receive stock for services to be performed in the future. Appellant does not seek to compel the corporation to issue stock; he prayed only for damages for wrongs alleged to have been committed by the individual defendants, who are not before us on this appeal. Whatever may be his rights against those individual defendants, he has alleged no basis for a cause of action against the corporation for damages.

It is generally held that a pre-incorporation agreement to perform services in the future does not constitute “labor done” under the constitutional provision. Champion v. C. I. R. (5 Cir. 1962) 303 F.2d 887, 891; 11 Fletcher, Corporations, (1958) Sec. 5187, p. 537. We do not consider it necessary to pass on this question, or that concerning limitation, as appellee urges.

Appellee’s motion to dismiss the appeal is overruled. Affirmed.


text:
    A. E. WALTON, Appellant, v. The STONEWALL NATIONAL BANK OF CORPUS CHRISTI, Appellee.
    No. 4183.
    Court of Civil Appeals of Texas. Eastland.
    June 30, 1967.
    Rehearing Denied July 21, 1967.

      Butler, Schraub & Gandy, Corpus Christi, for appellant.
    Fischer, Wood, Burney & Nesbitt, James R. Harris, Corpus Christi, for appellee.
   COLLINGS, Justice.

The Stonewall National Bank of Corpus Christi on January 16, 1965, brought suit against C. H. Cravens on a past due note for $25,000.00, a copy of which was attached to plaintiff’s petition, and at the same time secured a writ of attachment which was levied on certain described land of Cravens. Thereafter, plaintiff joined A. E. Walton as a defendant seeking the cancellation of a deed of trust and deed, both of which were executed by Cravens to Walton, dated January 16, 1965, and covering the land levied upon. As grounds for cancellation of such instruments plaintiff bank alleged that they were fraudulently executed with the purpose and intention of hindering and defrauding the bank as an existing creditor of Cravens. The execution of the note was not denied, under oath, or otherwise, but both Cravens and Walton alleged that the note was without consideration, and obtained by fraud and misrepresentation. Walton further alleged that Cravens was indebted to him in the sum of $31,000.00; that the conveyances to him were for the purpose of securing such indebtedness, and that his claim to and lien on the land in question was superior to any claim asserted by the plaintiff. Plaintiff’s special exceptions to the pleadings of the defendant, asserting failure of consideration and that the note sued upon was obtained by fraud and misrepresentation, were sustained because such allegations were mere conclusions and no facts were alleged in support thereof. The case was tried before the court without a jury and judgment was rendered for the bank for the principal amount of the note, for interest, attorney’s fees, cancellation of the deed and deed of trust and establishment of the bank’s lien rights. A. E. Walton appealed to the Court of Civil Appeals for the 13th Supreme Judicial District at Corpus Christi and the cause has by order of the Supreme Court of this State been transferred to this court.

Appellee’s motion to strike the statement of facts on the ground that the filing thereof on March 9, 1967, was not timely and that there was no showing of good cause for appellant’s failure to timely file same is overruled. The Corpus Christi Court of Civil Appeals,, on March 9, 1967, properly granted appellant’s amended motion for an extension of time to file the statement of facts as prayed, for good cause, and same was on that date filed.

Appellant urges points contending that:
“(1) There is no evidence to support the trial court’s implied finding establishing the following essential element of the ground of recovery the trial court sustained against appellant Walton with reference to the deed executed January 16, 1965 by C. H. Cravens et ux to appellant Walton, to wit, the element involving the claim that a relation of creditor and debtor existed between appel-lee bank and C. H. Cravens at the time of execution of that deed.”
“(2) That the trial court committed reversible error in refusing to permit appellant Walton to introduce into evidence the deed executed January 16, 1965 by C. H. Cravens et ux and thereby made out a prima facie case that would have entitled him to judgment awarding him title to the land described in such deed.”
“(3) That there is no evidence to support the trial court’s implied factual findings relied on by that court as basis for the provisions in the appealed-from judgment holding liens exist against the property in question in favor of appellee bank and foreclosing such liens and ordering a sale of such property.”

Appellee by counterpoints asserts that the judgment should be affirmed (1) because appellant failed to produce a timely or a complete statement of facts establishing the errors complained of, (2) because all elements of appellee’s claim were judicially admitted by both defendants and (3) because appellant, Walton, failed to amend as ordered by the court.

The record shows that on January 16, 1965, at 8:45 a. m., appellee bank filed suit for collection of a $25,000.00 past due note against C. H. Cravens; that at the same time appellee filed an affidavit for attachment which attachment was served on January 16, 1965, at 11:25 a. m. on real property belonging to Cravens; that eleven minutes before the service of the writ of attachment appellant, A. E. Walton, filed for record a deed to the property attached; that twenty-nine minutes prior to the service of the writ of attachment, Walton filed for record a deed of trust to the attached property. Thereafter, appellee bank amended its pleadings and brought A. E. Walton in as a co-defendant alleging that the conveyances to him were fraudulent and asking cancellation thereof.

We overrule appellee’s contention that the case should be affirmed because appellant failed to produce a complete statement of facts. The certificate to the statement of facts as originally filed recited that it was a “correct transcript of the reported part of the hearing had on the above entitled and numbered cause.” (Emphasis ours). It is true as contended by appellee that the language of this certificate indicates that other evidence may have been introduced but not reported in the statement of facts. The rule in such cases is that in the absence of a complete statement of facts showing all the evidence it is presumed on appeal that there was evidence to support the findings and judgment. Thrasher v. Hensarling, 406 S.W.2d 515, (CCA 1966, no writ history) ; Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683, (1951). Here, however, a supplemental certificate of the statement of facts was filed by Honorable Horace S. Young, Judge of the trial court which shows that no evidence was offered when the court reporter was not present and that at such times the court merely heard further argument of' counsel.

Many material facts in the case were established by admissions of the parties in pleadings, in answer to requests for admissions and in admissions made by attorneys in open court. Cravens filed an application for receivership in the case in which he admitted that he was indebted to appellee bank and to Walton; that he desired the property in question to stand good for such indebtedness and that his execution of the deed and deed of trust covering the property to Walton was under an oral agreement that Walton would sell the property and remit the balance of the proceeds to Cravens after deducting the amount of the debt which Cravens owed Walton. Walton admitted in answer to requests for admissions that he and Cravens were friends and business associates; that at the time he received delivery of the deed of trust and deed in question Cravens’ indebtedness to him was less than $5,000.00; that it was not his intention at the time to take possession of the property nor did he ever take possession thereof or make any payment on any indebtedness of Cravens; that the $46,000.00 note mentioned in the deed of trust is fictitious and never existed; that he did not deliver any thing of value to Cravens in return for the deed of trust or for the deed; that he had notice of Cravens’ debt to appellee bank and that Cravens was unable to arrange an extension of such indebtedness and that before execution of the deed and deed of trust by Cravens he advised appellant that he, Cravens, was going to be sued by appellee. In a supplemental certification of the statement of facts the following facts are shown:

“1. That prior to the intended empanel-ling of the jury in this cause, Defendant C. H. Cravens’ counsel admitted in open court that his client was liable; that his client had no real controversy with the position of the Bank; that Mr. Harris should prepare a judgment, which judgment should recite that the Court found for the Plaintiff from the evidence.
2. That immediately after the admission of liability by the attorneys for C. H. Cravens, the attorneys for A. E. Walton announced in open court that, in view of the Court’s previous ruling in reference to the pleadings and request for admissions of the Plaintiff to A. E. Walton, A. E. Walton had nothing to offer and judgment should be entered.”

We overrule appellant’s points urging in effect that there was no evidence to support the implied finding that a relationship of creditor and debtor as contemplated by Article 3996 and 3997, Vernon’s Ann. Tex.Civ.St. existed between appellee bank and Cravens at the time of execution of the conveyances by Cravens to appellant, and no evidence to support the holding in the judgment that there was a lien on the property in question in favor of the bank.

It was alleged in appellee’s petition that Cravens executed the $25,000.00 note to the bank, that such note was held by the bank, was past due and unpaid, and a copy of the note was attached to appellee’s petition. Cravens admitted that he was indebted to the bank. He never denied execution of the note, under oath or otherwise. Cravens’ attorney in open court admitted that his client had no real controversy with the position of the bank; that Cravens was liable and that the bank’s attorney should prepare a judgment so holding. Appellant, particularly, argues that the bank has failed to establish the required relationship of creditor and debtor as contemplated by the statute because it did not offer the note in evidence. This contention would be well taken if the record showed any material controverted fact issue which might be resolved by introduction of the note, such as whether the note was executed, a dispute concerning some provision of the note concerning the amount of interest, or the amount of payments made thereon. In the instant case there is no dispute concerning any such material fact issues. The only defenses attempted to be raised in the pleadings were affirmative defenses of lack of consideration and fraud. As heretofore noted, these defenses were not properly raised because no facts were alleged in support of general allegations, and exceptions thereto were sustained. In any event the material facts concerning the note in question and Cravens’ indebtedness to the bank are admitted. We cannot agree with appellant’s contention that such admissions of the indebtedness by Cravens do not constitute evidence against Walton on the material issues here involved. Contrary to appellant’s contention the record also supports the judgment decreeing that there was a lien Qn the property in question in favor of the bank. The court did not err in cancelling and holding for naught Cravens’ conveyances to Walton and in foreclosing the bank’s lien on the property.

Appellant’s points are overruled.

The judgment is affirmed.


author: BARROW, Chief Justice.

text:
    Thomas E. CHILDRE, Appellant, v. Ruth W. CHILDRE, Individually and as Executrix of the Estate of G. Charles Childre, Deceased, Appellee.
    No. 14599.
    Court of Civil Appeals of Texas. San Antonio.
    June 28, 1967.
    Rehearing Denied July 26, 1967.
    Forrest A. Bennett, San Antonio, for appellant.
    Thompson, Coe, Cousins & Irons, Franklin H. Perry, Dallas, for appellee.
   BARROW, Chief Justice.

This is an appeal from a take-nothing judgment based upon an instructed verdict granted defendant at the close of plaintiff’s case. Appellant brought this suit against appellee, individually and as executrix of the estate of G. Charles Childre, deceased, and asserted two counts as a basis for recovery. Appellee asserted that both counts were barred by limitations, the first being barred by Sec. 313, Tex. Prob.Code, V.A.T.S. (1956), and the second by Art. 5526, Vernon’s Ann.Civ.St.

In his original and amended petitions appellant alleged that he had furnished various and sundry articles to deceased during his lifetime of the value of $3,-528.28, as shown by an exhibit attached to said petitions. G. Charles Childre had paid $700.00 on this claim, leaving due and owing the sum of $2,828.28, for which judgment was sought, together with reasonable attorney’s fees in the sum of $750.00. The exhibit sets forth various items of labor and materials used in construction and repair of a hunting camp at Junction, Texas; furniture bought and delivered to a Lake Travis site; repairs to a jeep; new tires for a trailer and the expense of moving the trailer from Junction to San Antonio and return.

G. Charles Childre died on July 20, 1963, and this claim was filed with the Clerk of the Probate Court of Bexar County on September 12, 1963. No action was taken on same by appellee executrix, and this suit was filed by appellant on October 19, 1964.

At the close of appellant’s evidence, ap-pellee made a motion for an instructed verdict on the first count, based on appellant’s failure to file his suit within ninety days after appellee was presumed to have rejected the claim, under the provisions of Secs. 308, 310, Tex.Prob. Code Ann. At this time appellant’s counsel stated: “We think that the second request of counsel should be denied. (Referring to the second count of appellant’s amended petition). The first we will agree that the Probate Code prohibits the collections on the $2,828.28. It is odd that these figures came out that way, but they did, and I think that that part is good and we are not asking for any issues on that. We will ask for our issues on the others, your Honor.” Whereupon the court instructed the jury to return a verdict for appellee.

Despite this waiver of issues on this count, appellant, by motion for new trial and on this appeal, asserts that this claim was not barred, since limitations do not run in case of an independent executrix. In support thereof he cites Ditto Investment Co. v. Ditto, Tex.Civ.App., 293 S.W. 2d 267, no writ. Although there is some doubt as to the application of the rule set forth in Ditto, since the amendment of Sec. 146 of the Probate Code in 1957, it is seen that there is no showing that appellee was independent executrix of this estate. The order of appointment was not introduced into evidence. However, appellant asserted at the motion for new trial that the will which was there introduced expressed the intention that appel-lee act as independent executrix, and that in passing upon at least one claim appellee, by affidavit, stated that she was so acting.

We know of no authority that permits an administration to become “independent” by implication or by acts of the executor. Sec. 145, Tex.Prob.Code Ann., provides that the testator may provide in his will for such an administration. The provision in this will giving appellee the discretion to determine if a sale of stock was necessary falls short of providing for independent administration and, in any event, appellee’s power in this estate was contained in the order probating the will. Appellant’s action in waiving issues on this count relieved appellee of any burden of presenting evidence on same.

The record shows that the claim set forth in the first count of appellant’s petition was filed with the clerk on September 12, 1963, and was deemed to have been rejected by appellee thirty days thereafter. Secs. 308, 310, supra. Since appellant did not institute suit on this claim within ninety days after this rejection, the trial court properly held that this claim was barred by limitations. Sec. 313, supra; Russell v. Dobbs, 163 Tex. 282, 354 S.W.2d 373 (1962).

Appellant filed an amended petition on November 18, 1966. The first seven paragraphs are the same as his original petition and asserted his cause of action on the account. Following same, appellant alleged, in the alternative, that appellee came upon his property and took possession of a trailer belonging to him and refused to return it, to his damage in the sum of $2,000.00. Further, he alleged that she took possession of a jeep belonging to him, which was reasonably worth $1,000.00, and holds it in trust. He prays that if he is mistaken in his first count that he recover possession of his trailer and jeep or have judgment for their value.

The evidence established that appellant and his uncle, G. Charles Childre, entered into a written hunting lease in 1957, with Jack Hoggett who owned land near Junction. The lease provides that all camp houses, buildings and other improvements placed on said premises by lessees would become the property of lessor at the termination of the lease. An immobilized house trailer was attached to a building in 1958 for use as living quarters. In 1961, a tornado damaged the building as well as the trailer. Appellant testified that Hog-gett gave him the trailer in consideration of appellant’s repairing the building. Appellant bought tires for the trailer and moved it to San Antonio, where it remained in his possession until appellee picked it up in September, 1963.

The jeep belonged to Charles Childre, although appellant repaired it twice and spent over $600.00 on it. Appellant was prevented by the Dead Man’s Statute, viz., Art. 3716, Vernon’s Ann.Civ.St., from testifying how he came into possession of the jeep. He testified only that he had the jeep in his possession from 1961 until appellee took it early in 1964.

Thus it is seen that the acts of conversion for which damages were sought in appellant’s second count occurred more than two years before the amended petition was filed and are therefore barred by the two-year statute of limitations, viz., Art. 5526, Vernon’s Ann.Civ.St., unless limitation was tolled by the filing of appellant’s original petition.

Art. 5539b, Vernon’s Ann.Civ.St., provides substantially that whenever any pleading is filed by any party to a suit embracing any cause of action and at the time of filing such cause of action it is not subject to a plea of'limitation, no subsequent amendment or supplement changing any of the facts or grounds of liability shall be subject to a plea of limitation, provided such amendment or supplement is not wholly based upon and grows out of a new, distinct or different transaction and occurrence.

Thus, in determining whether appellant’s second count is barred by limitation, it is necessary to determine whether or not this claim, set up in appellant’s amended petition, is wholly based upon and grows out of a new, distinct or different transaction and occurrence than that asserted in his original petition. Leonard v. Texaco, Inc., 10 Tex.Sup.Ct. J.462 (June 17, 1967); Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816 (1950); City of Houston v. Magness, Tex.Civ.App., 364 S.W.2d 702, writ ref’d.

It is seen that the original petition asserted a cause of action based upon an account for labor and materials furnished deceased. The amended petition asserted, in addition thereto, a count seeking damages for conversion by the executrix of a trailer and jeep. This is a new, distinct and different transaction, even though a part of the account is based upon labor and materials used on the trailer and jeep which were allegedly converted by appellee. Although the prayer was in the alternative, the allegations would support a recovery by appellant on his account against the deceased and also from appellee for conversion of his property. Appellant’s ownership of the trailer is allegedly based upon a contract with Hoggett. His ownership of the jeep was never established. The conversion was based on acts of appellee after the death of G. Charles Childre. The trial court did not err in holding this claim barred by the two-year statute of limitations.

The judgment of the trial court is affirmed.

      . The possibility of su,eh a change has been expressed, gee Woodward, Some Developments in Independent Administration, 37 Tex.Law Rev. 828, 837; Winn, Non-Judicial Administration, S.L.J. 384, 393; Kitchens v. Culhane, Tex.Oiv.App., 398 S.W.2d 165, writ ref’d n. r. e.; Hunter v. Cook, Tex.Civ.App., 375 S.W. 2d 574, writ dism’d; contra, State v. Traylor, 374 S.W.2d 203, 204, Tex.Sup. 1963; Gibraltar Mortg. is Loan Corp. v. Lerman, Tex.Civ.App., 346 S.W.2d 487, no writ.


author: WALTER, Justice.

text:
    Baldomero G. MARTINEZ, Appellant, v. Janies B. VANCE, Jr., et al., Appellees.
    No. 4175.
    Court of Civil Appeals of Texas. Eastland.
    June 30, 1967.
    Rehearing Denied July 28,1967.

      Carter, Stiernberg, Skaggs & Koppel, Harlingen, for appellant.
    Ewers, Toothaker, Ewers, Byfield & Abbott, McAllen, for appellees.
   WALTER, Justice.

Baldomero G. Martinez, Jr., filed suit against James B. Vance, Sr., Vance Tractor and Implement Company and James B. Vance, Jr., for damages resulting from an automobile collision. Based on a verdict, judgment was rendered that the plaintiff take nothing. The plaintiff has appealed.

James B. Vance, Jr., was driving a Buick owned by Vance Tractor & Implement Company in the City of Brownsville when it collided with an automobile driven by Martinez. A jury found that Vance was .guilty of several acts of negligence which were a proximate cause of the collision. However, they found, in answer to issue 26, that Martinez was contributorily negligent in failing to stop at the esplanade and in answer to issue 27 that such negligence was a proximate cause of the collision.

Appellant says the court erred in failing to set aside the answers to issues 26 and 27 and in overruling his objections to such issues. He says there was no evidence to support the answers and that they are against the preponderance of the evidence.

On the night of the accident Martinez and his friend had purchased a pitcher of beer, drank some of it, and had gone to a bowling alley. He was taking his friend home when the accident occurred. Martinez testified substantially as follows:

About the midnight hour I was driving my car in an easterly direction _on Roosevelt Street in Brownsville. I was accompanied by my friend Belisario Alanis. As I approached International Blvd., I stopped in obedience to a stop sign. International is divided into two north bound lanes and two south bound lanes with a parking lane on each side of the street. This intersection was well lighted. As I approached the edge of the intersection, I saw the lights of a vehicle traveling in a northerly direction on International. This was Vance’s car and “it was far away.” It was in lane number one next to the esplanade. I proceeded to cross and about the time I reached the esplanade I saw the lights of Vance’s car about a block away. Martinez was asked:

“Then what happened next?” He answered :

“Well, as I was about to finish crossing that street, I heard my friend, Belisario, you know, try to tell me something, which made me look to my right again, but I didn’t get to see very much. I mean I didn’t get to turn to my right completely when I had just gotten hit by the car.”

A short time before the accident, Vance was returning home from Matamoros where he visited some bars and had a few drinks. He testified substantially as follows :

I was traveling north on International Blvd. at between thirty and forty miles per hour on the inside lane next the esplanade.

I first noticed the Martinez car when it was about a block away. He was in motion, coming out past the stop sign making about five miles per hour. When it occurred to me that Martinez was not going to stop, I turned to my right into the the next lane and started applying my brakes. Vance marked the position of the collision on an exhibit which was near the curb line of the intersection on the southeast corner.

In passing on no evidence points to determine if there is any evidence to support findings of the jury, we consider only the evidence most favorable to the finding. Renfro Drug Company et al. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 at page 613, 23 A.L.R.2d 1114 (1950) We have concluded that there is some evidence of probative force to support the jury’s answers to issues 26 and 27.

We have considered the entire record and have concluded that the answers to issues 26 and 27 are not against the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Appellant says that issues numbers 26 and 27 are not controlling issues. Based on the authority of Witchita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, we hold that issues 26 and 27 presented the controlling fact issues and constituted a proper submission thereof.

Appellant says that issue 26, inquiring whether Martinez’ failure to stop at the esplanade was negligence and issue 28, inquiring if Martinez’ failure to apply his brakes just prior to the collision was negligence, constitutes an improper fragmentation or granulation and a double submission of a controlling issue. He objects to issue 27, the proximate cause issue, and issue 29, another proximate cause issue, for the same reason. We cannot agree with these contentions.

In Barclay v. C. C. Pitts Sand and Gravel Company, 387 S.W.2d 644 (Sup.Ct.1965), the court said:

“It is nevertheless well settled that as a general rule and when the question is properly raised, special issues relating to either primary or contributory negligence should be restricted to specific acts and omissions which have been raised by the pleadings and evidence. Fox v. Dallas Hotel Co., Ill Tex. 461, 240 S.W. 517; Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99; Kainer v. Walker, Tex.Sup., 377 S.W.2d 613.”

Also see Broad and Narrow Issues by Justice Pope, Vol. 26, Texas Bar Journal, page 921.

Martinez says he had no duty to bring his car to a stop at the esplanade and, therefore, as a matter of law, he could not be negligent in failing to do so and that such failure could not be a proximate cause of the collision. In C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Sup.Ct.1966), the Supreme Court said:

“When the jury found from a preponderance of the evidence that ‘at the time, place, and on the occasion in question’ the plaintiff ‘failed to keep a proper lookout,’ it necessarily found that the plaintiff had a duty to keep a lookout for dangers which might reasonably have been anticipated, De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 99 (1955), and a breach of the duty. If the jury believed that the plaintiff drove his pickup from the shoulder onto the highway, it was well within its province in finding that before doing so he owed a duty to look to his rear for vehicles approaching from the west and failed to do so.”

In Henwood v. Gilliam, 207 S.W.2d 904 (Civ.Apps. 1947, writ ref.), the court said:

“What is ordinary care under a given ground of facts must be determined by the jury as to what, in their judgment, a man of ordinary prudence would have done for his own safety under the attendant circumstances. The jury, in all such cases, are the triers of the facts and the trial judge, if there is any substantial evidence supporting the finding, must follow the verdict of the jury in rendering judgment. In which case, this Court is without the power to disturb the judgment.”

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.