author: MURRAY, Chief Justice.

text:
    OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, Appellant, v. Robert L. DUNCAN, Appellee.
    No. 14470.
    Court of Civil Appeals of Texas. San Antonio.
    May 18, 1966.
    Rehearing Denied June 15, 1966.

      Clemens, Knight, Weiss & Spencer, Theo F. Weiss, F. N. Welmaker, San Antonio, for appellant.
    Groce, Hebdon, Fahey & Smith, Charles R. Shaddox, San Antonio, for appellee.
   MURRAY, Chief Justice.

Appellee brought this suit against appellant for total disability benefits of four life insurance policies. The jury found that the appellee was totally disabled continuously since September, 1963, to the date of trial, July, 1965, and judgment was entered against appellant for combined benefits of $200.00 per month, waiver of premiums, penalty, and attorneys’ fees, from which judgment Occidental Life Insurance Company of California has prosecuted this appeal.

Appellant’s third point is to the effect that the trial court erred in overruling appellant’s motion for new trial based on the misconduct of appellee in asking a juror for aspirins during the trial. We sustain this point, which requires that we reverse the judgment.

The record shows that during the trial and during a recess, a juror, Mrs. Elvira B. McDowell, was sitting on a bench five feet outside the door of the courtroom, directly across the hall from the water fountain, when appellee asked her if she had any aspirin. She took two aspirins from her purse and gave them to him, and he walked across the hall to the water fountain and took them. Appellee admitted that he heard the trial judge caution the jurors about not having any conversation with the parties, but stated he thought the prohibition pertained to discussion of the case. By asking for the aspirin, appellee was conveying to the juror that he was in pain and needed the aspirin to relieve his pain.

Just how much pain was suffered by appellee as a result of his injuries and whether he needed to take medicine for such pain was a question in the case and one to be considered by the jury. Under all the circumstances, this was misconduct on the part of appellee requiring a reversal of the judgment.

The record shows that after appellee had testified that he had asked juror Mrs. McDowell if she had any aspirin, and she had given him two, and that he had taken them in her presence, the following happened:

“THE COURT: Didn’t you hear me carefully caution the jurors at the beginning of the trial not to even engage in casual conversation—
A No, I didn’t—
THE COURT: — with any of the parties to the suit?
A I didn’t understand that, sir.
THE COURT: You didn’t hear that?
A I didn’t understand that, sir.
THE COURT: Well, I said it very plainly.
A I’m sorry ,1 misunderstood you, your Honor.
THE COURT: Your conduct is reprehensible.
A Well, sir, I certainly apologize if there has been any — I’ve had no experience in this. But it was my honest interpretation, your Honor, that I couldn’t discuss this case or couldn’t be—
THE COURT: I didn’t say anything about discussing the case. I did say that, too, but I also cautioned the jurors in your presence not to engage in conversation, not even casual conversation in the courtroom, in the hall or elevator or anywhere.
A I’m sorry I misunderstood and broke any rules.
MR. WEISS: Now, you know, Mr. Duncan, that during the course of the trial several of the doctors testified that you did not take any — that you had told them you didn’t take any medication; you remember that, don’t you? Just answer the question.
A Well, I don’t think I’ve ever said I didn’t take any medication in this trial sir.
Q But you heard the doctors testify that you told them that you did say that ?
MR. HEBDON: Well, the record will stand for itself on that. The record is there, your Honor.
A I do not take any narcotic. That is what I call medication.
(Witness Excused)”

The evidence further shows that the jury_ on the first vote stood eleven to one for a “yes” answer to the issue submitted which would have been favorable to appellee. Then, after some discussion in which Mrs. McDowell argued in favor of a “yes” answer, another vote was taken and it resulted in twelve for a “yes” answer.

In view of all the circumstances and facts herein, there is and should be presumed injury, and the verdict should not be permitted to stand. Rules 327, 434 and 503, Texas Rules of Civil Procedure, admonish that in jury misconduct cases a new trial should not be granted unless it reasonably appears from the evidence, both on the hearing of the motion and the trial of the case, and from the record as a whole, that injury probably resulted to the complaining party. Under the entire record we conclude there was probable injury to appellant.

In Texas Employers’ Insurance Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, the Supreme Court had this to say:

“ * * * Rule 327 does not preclude the drawing of logical inferences of prejudice and unfairness from the overt act itself for an action or occurrence may be so highly prejudicial and inimical to fairness of trial that the burden of going forward with proof of harm is met, prima facie at least, by simply showing the improper act and ^nothing more. Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115; Texas Employers’ Ins. Ass’n. v. Haywood, 153 Tex. 242, 266 S.W.2d 856; Calvert, ‘The Development of the Doctrine of Harmless Error in Texas’ 31 Texas Law Review 1.”

In view of the fact that there will have to be a retrial of this cause, perhaps the less we discuss the evidence the better, we will, however, give a general statement of the facts.

Appellee was engaged in the selling of labels as an independent contractor for Louis Roesch Company on a commission basis. Louis Roesch Company manufactures labels and appellee sells them, generally to canners. ' He has been in the label selling business for some twenty years. He was in an airplane accident on October 25, 1957, and was rather severely injured. Appellant paid him for total disability from the time of his accident until September, 1963, when it stopped payment. This suit by appellee followed.

Appellee was injured in his back, right knee and right foot. He was in the hospital for five months and thereafter confined to his home for some time. He still has pain in his back but has learned to live with it, his right knee is somewhat recovered. The problem he has now is with his right foot. The joints in the metatarsal section are fused, the pressure causes the joints in his foot to separate, and he wears a brace with a steel plate under his foot to relieve some of the pressure. Motion in that area of his foot causes pain. His right ankle is shorter and completely stiff. The ankle is solid bone. He cannot walk up slopes; he once fell trying to negotiate a slope in Houston, a year and a half ago, calling on a customer. It caused a brain concussion. He has had numerous other falls, averaging one a month. He cannot negotiate rough terrain, wet ground, snow or ice. Uneven gravel surfaces are hard for him to walk on. It is difficult for him to get into some of the plants that have slopes. Before the accident he would run and catch trains, from time to time; now he cannot run. Prior to his accident he had a total of one hundred and ten accounts that he had sold at one time or another; he now has only nineteen of these accounts remaining. He cannot follow through with his accounts because of his limited ability to travel long distances.

Before his injury he often drove his automobile 50,000 miles per year, and traveled a total of about 100,000 miles. Now he is unable to drive more than from 6,000 to 10,000 miles per year. A great deal of traveling is necessary in his business. The amount of gross income he had from Louis Roesch Company during the years listed below, the amount of his expenses and the amount of income remaining are as follows :

Year Gross Expenses Net Before Sick Pay Deductions
1954 $23,935.48 $15,309.58 $8,646.90
1955 $18,799.87 $16,095.51 $2,704.36
1956 $19,501.31 $16,135.66 $3,365.65
1957 $22,070.17 $16,215.82 $5,854.35
1958 $19,711.24 $5,335.39 $14,375.85
1959 $13,159.71 $1,771.93 $11,387.78
1960 $14,987.26 $1,408.62 $13,578.64
1961 $13,657.82 $5,385.21 $8,272.61
1962 $16,128.66 $6,828.48 $9,300.18
1963 $18,307.07 $12,070.63 $6,236.44
1964 $17,100.00 $10,000.00 $7,100.00
½ of 1965 $4,726.00

The accounts that he developed in 1955, 1956 and 1957 paid off in income in 1958, 1959, 1960, and subsequent years. He has been unable to establish major accounts since the accident.

There is other testimony which we will not undertake to set out here.

Appellant’s first point is that the trial court erred in refusing to grant appellant’s motion for instructed verdict and motion for judgment non obstante vere-dicto because there is no evidence to support the finding of the jury that Robert L. Duncan was totally disabled continuously from September, 1963, to July, 1965. We overrule this point. It is not necessary that appellee be immobile, bedridden or totally unable to work before he can recover under the policies herein involved. The test is, would a reasonably prudent person in appellee’s condition in the exercise of ordinary care engage in his business.

In the very recent case of John Hancock Mutual Life Insurance Co. v. Cooper, 386 S.W.2d 208, Justice Coleman, speaking for the Houston Court of Civil Appeals, said:

“The controlling issue in this case is whether an ordinarily prudent person in the exercise of ordinary care would have refrained from working under the same or similar circumstances.”

See also: Prudential Ins. Co. of America v. Tate, 162 Tex. 369, 347 S.W.2d 556 (1961); Great Southern Life Ins. Co. v. Johnson, 25 S.W.2d 1093 (Com.App.1930); Connecticut General Ins. Co. v. Reese, Tex.Civ.App., 348 S.W.2d 549.

The evidence in this case, if believed by the jury was sufficient to support an affirmative answer to the issue submitted.

Appellant’s fourth point is that the court erred in overruling appellant’s exceptions to the court’s charge and its definitions of total disability.

The policies of insurance defined total disability as:

“Disability shall be deemed to be total whenever the Insured becomes disabled as the result of injury or disease so as to be wholly unable to engage in any occupation and to perform any work for compensation or profit.”

The trial court in connection with the issue submitted to the jury gave the following instruction:

“In connection with the above question you are instructed that disability shall be deemed to be total whenever an individual becomes disabled as the result of injury or disease so as to be wholly-unable to engage in any occupation and to perform any’ work for compensation or profit. It' does not mean,‘-however, an absolute physical inability to perform any of the duties pertaining to his occupation; but total disability, as inquired about in the above question, exists if such disability prevents the individual from substantially performing every essential operation necessary to the performance of his occupation.”

This was a sufficient definition of total incapacity, and to have given the charge requested by appellant would have had the effect of relieving appellant of all obligations under the insurance contracts herein involved. Great Southern Life Insurance Company v. Johnson, supra.

The judgment is reversed and the cause remanded for a new trial.


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    Ricardo PENA, Administrator of the Estate of Luis Pena and Epifania S. de Pena, Appellant, v. FIRST STATE BANK & TRUST COMPANY and Walker Craig Company, Appellees.
    No. 145.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 26, 1966.
    Rehearing Denied June 16, 1966.

      Glusing & Sharpe, by Nelson R. Sharpe, Kingsville, Lyman & Sudduth, by Charles Lyman, Corpus Christi, for appellants.
    Atlas, Freeland, Schwarz & Gurwitz, McAllen, Hill, King & McKeithan, by Neal King, Mission, for appellees.
   OPINION

SHARPE, Justice.

This appeal is from a summary judgment rendered in favor of appellees, defendants below, that appellant, plaintiff below, take nothing.

The controlling questions are (1) whether the four-year statute of limitations applies to appellant’s cause of action; and, if not applicable, (2) whether appellant’s cause of action is barred under the two-year statute of limitations.

We have concluded that the four-year statute of limitations is not applicable for the reasons hereafter stated. We are further of the opinion that the summary judgment evidence does not conclusively establish that appellant’s cause of action is barred by the two-year statute of limitations and that the case must be reversed and remanded for trial of material fact issues in such respect.

The material facts established by stipulation and otherwise may be summarized as follows. Appellant is the administrator of the estates of his deceased grandparents, who, as lessors of mineral interests, were entitled to receive royalty payments from the lessee. After their deaths the lessee continued to issue royalty checks payable to them which were received by some of their adult children, who are not parties to this suit. These children worked in a store belonging to their parents, and, apparently with authority, cashed the royalty checks. This practice was continued after the death of the parents. Appellee Walker Craig Company continued to sell groceries to the children after the death of their parents, accepted the royalty checks with the forged or unauthorized endorsements and deposited them to its account with appellee bank. That bank endorsed the checks, guaranteed the validity of all prior endorsements and received payment from the drawee bank. At all material times both appellees had actual knowledge that the payees named on the checks were dead and that the endorsements were unauthorized or forgeries. Appellant’s suit is not barred if the four-year statute of limitations is applicable.

The thrust of appellant’s argument under his first point is that Article 342-707, Vernon’s Ann.Civ.St. operates to make applicable the four-year statute of limitations (Art. 5527, V.A.C.S.) to this claim. Appellant concedes that prior to the enactment of Article 342-707 in 1943, a cause of action such as that asserted here was for money had and received and was governed by the two-year statute of limitations. However, appellant contends that the relationship resulting from the facts established here is the same as where one person deposits money in a bank to the credit of a third person, and that such action creates the relation of banker and depositor or creditor and debtor between the bank and the third person, citing Cozart v. Western Nat. Bank, 194 S.W. 644 (Tex.Civ.App., 1917, wr. ref.), and that our Supreme Court has held that Art. 342-707 is applicable to actions for money had and received brought against banks, citing Liberty Mut. Ins. Co. v. First Nat. Bank in Dallas, 151 Tex. 12, 245 S.W.2d 237 (1952). Appellant further argues that if the causes of action for money had and received, involved in such cases, have been transformed by the statute into an action on a deposit, then that the same result follows in the case at bar. We disagree. In Liberty, the suit was by a depositor against a drawee bank. It appears here that neither appellant nor the decedents were depositors in appellee bank, as that word is used in the statute, and the instant case does not come within the provisions of Art. 342-707. The four-year statute of limitations (Art. 5527) is, therefore, inapplicable. Appellant’s point one is overruled.

Under his second point appellant contends that the two-year statute of limitations (Art. 5526, V.A.C.S.) did not begin to run until he discovered the identity of the parties who knew of the unauthorized or forged endorsements, guaranteed them, collected money on the checks and knowingly participated in defrauding the estates. By their counterpoint three, appellees contend that the two-year statute of limitations ran from the date that appellees appropriated the checks, not from a subsequent time of discovery; and by counterpoint four that, in any event, appellant had notice of such appropriation of the checks more than two years prior to the filing of the suit. Appel-lees’ counterpoint three is not well taken. The cases relied on by them are not in point. The remaining question is whether the summary judgment evidence conclusively established that appellant’s cause of action was barred by the two-year statute of limitations.

The burden was and is upon appel-lees to demonstrate that there was no material issue of fact as to the running of the statute. Appellees rely upon the premise that the attorneys for appellant took the deposition of Llana and Romula Pena, two of the children 'hereinabove mentioned, in December, 1960 in another suit, and they testified that Liana had been endorsing the royalty checks made out to their parents after their deaths. The instant suit was filed in March, 1963 some twenty-seven months later. Appellees argue that since appellant’s attorneys found out who issued and endorsed the royalty checks in December 1960, that such knowledge was imputed to appellant, and the two-year statute, properly pleaded by appellees, barred the suit.

An examination of the record discloses that when the deposition of Llana Pena was taken on December IS, 1960, she answered questions to the effect that she had cashed the royalty checks; that she had used her own signature and sometimes deposited them in a bank; that she had received statements from the bank, had a complete file on them since her father’s death; and she promised to furnish them to the attorneys for appellant. The deposition of Llana Pena was sworn to on April 4, 1961. The deposition of Romula Pena Salinas was taken after that of Liana Pena, her sister, on December IS, 1960, and was also sworn to on April 4, 1961. Romula had been present when Liana’s deposition was taken and did no more than verify generally what had been said by her sister. Romula was not asked specific questions concerning the royalty checks involved in this suit.

It is established by the record here that the conduct of appellees constituted a species of fraud and deceit upon the estates of the deceased grandparents. Where such factors are present it is well settled that the statute of limitations does not begin to run until the complainant has discovered the fraud or has learned facts sufficient to put a person of ordinary prudence on inquiry which, if pursued, would have led to discovery.

In the case of Port Arthur Rice Milling Co. v. Beaumont Rice Mills, 105 Tex. 514, 143 S.W. 926 (1912), our Supreme Court held that a cause of action for conversion based upon transactions occurring in Octo-' ber, 1905, upon which suit was filed in November, 1907, was not barred by the two-year statute of limitations where the plaintiff, acting with due diligence, did not discover the defendant’s participation in the fraud until after the lapse of two years. At pages 928-929 of the opinion, the Court said:

“ * * * Before it can be said that a cause of action exists in a legal sense, there must be such a mature right as may be declared upon and maintained, subject only to such valid defenses by which it may be defeated. In 25 Cyc. 1065, the rule is laid down as follows: ‘ “The accrual of the cause of action” means the right to institute and maintain a suit; and whenever one person may sue another a cause of action has accrued, and the statute begins to run.’ Again, in 25 Cyc. 1065, it is said: ‘The statute of limitation begins to run from the time when a complete cause of action accrued —that is, when a suit may he maintained —and not until that time.’ ”
“ * * * Plaintiff, not having had knowledge of defendants’ guilty knowledge of and participation in the scheme to defraud plaintiff in its rights, for the first time had a cause of action against defendants upon the discovery of such fraud.
“This doctrine in its practical application, in so far as it relates to the case at bar, is nothing more in effect than the assertion of the doctrine that fraud, undiscovered, suspends the running of the statute of limitation. In the absence of fraud, the statute would have begun to run from the date of the conversion of the rice upon which plaintiff had a mortgage. But it is a definitely and well settled rule in this state that fraud prevents the running of the statute of limitation until it is discovered, or until, by the use of reasonable diligence, it might have been discovered. * * * ”

See, also, Burnham v. Todd (5th Cir. 1943) 139 F.2d 338, to the same effect.

Ordinarily, what constitutes reasonable diligence to discover fraud is a question of fact for the jury. Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738, ISO A.L.R. 775 (1944). We cannot say that the summary judgment evidence conclusively established that appellant discovered the fraud participated in by appellees, or by reasonable diligence, could have done so more than two years prior to filing of the instant suit on March IS, 1963. Appellant was not present when the depositions were taken on December 15, 1960. The date upon which those depositions were sworn to is within two years from the filing of the suit. There is no showing that the list of twenty-one checks here involved was furnished to appellant or his attorneys more than two years prior to filing of this suit. The depositions did not disclose that either of appellees had been connected with the handling of the royalty checks with the unauthorized or forged endorsements. In a deposition taken in the instant case, on August 20, 1963, appellee testified in substance that although he had suspected that the Oil Company was sending the royalty checks to someone, he did not know until the summer of 1961 that the company had been making the payments to his Uncle and Aunt, when he was so advised by his attorneys.

Under the record presented here, reasonable minds could differ as to whether appellant or his attorneys acted with reasonable diligence in connection with discovery of the fraud and appellees’ participation in it, and a genuine issue of material fact is presented. Ruebeck v. Hunt, supra. The determination of that issue was and is for the fact finder on the trial of the case. Appellees did not establish as a matter of law that appellant’s right to recover was barred by the two-year statute of limitations. Appellant’s point two is sustained.

The judgment of the trial court is reversed and the cause remanded.

      . ART. 342-707. Depository Contract— Limitation of Actions.
      The contract of deposit between a bank and a depositor, whether evidenced by deposit tickets or otherwise shall be deemed a contract in writing within the purview of Article 5527 of the Revised Civil Statutes of Texas. The cause of action on any such depository contract, other than a time deposit, shall not accrue until the hank has denied liability and given the depositor notice thereof. Provided that the delivery to the depositor of a statement of his account or pass book reflecting the balance, or the mailing of a statement of such account (with or without cancelled items) to the depositor at his address as reflected by the books of the bank, shall constitute a denial of any liability on the part of the bank in excess of the balance reflected by such statement or pass book, and notice thereof to the depositor, and, to the extent of any excess over the balance reflected shall accrue the cause of action. Acts 1943, 48th Leg., p. 154, ch. 97, subch. VH, art. 7.


author: CLAUDE WILLIAMS, Justice.

text:
    James R. GILLEY, Appellant, v. Harry M. ANTHONY, Appellee.
    No. 16716.
    Court of Civil Appeals of Texas. Dallas.
    May 20, 1966.

      Abney & Burleson, Phil Burleson, Dallas, for appellant.
    G. H. Kelsoe, Jr., Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

This is an appeal from a judgment of the Juvenile Court of Dallas County, Texas denying appellant’s petition to adopt a minor child, the daughter of appellant’s wife by a former marriage to appellee. The only petition appearing in this record is styled, “First Amended Petition for Adoption” and was filed May 27, 1965, in which appellant Gilley alleges that he is lawfully married to the natural mother of the child sought to be adopted and that such mother joins him in the petition. He further alleged:

“Petitioner would further show that the natural father of the child sought to be adopted, Harry M. Anthony, has not contributed substantially to the support of Aven Lee Anthony for a period in excess of two (2) years, nor has he contributed commensurate with his financial ability during that period.”

Appellee, the natural father, did not consent to such adoption but filed an answer contesting same in which he affirmatively denies that he failed to contribute to the support of his child. He alleges that he attempted and made every effort to pay support to the child but that such payments were refused by his former wife and that such child support payment checks were returned uncashed. He further alleged that the refusal on the part of the natural mother to accept the child support payments was an effort on her part to bring about the adoption which would constitute and be a fraud upon the natural father.

Following the hearing of a substantial amount of testimony from both parties the Juvenile judge denied the petition for adoption. No requests were made for findings of fact and conclusions of law and none were filed.

Appellant’s primary point of error is that there was no evidence, or insufficient evidence, to justify the court’s action in rendering judgment denying his petition for adoption. In support of this point appellant argues that the evidence is conclusive that appellee, the natural father, did not contribute substantially to the support of the child during the two-year period prior to the filing of the petition for adoption and therefore his written consent to the adoption was not necessary by virtue of Art. 46a, Vernon’s Ann.Civ.St., Section 6. This provision of the statute expressly provides:

“Except as otherwise provided in this Section, no adoption shall be permitted except with the written consent of the living parents of the child; provided, however, that if a living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years, and shall have left such child to the care, custody, control and management of other persons, or if such parent or parents shall have not contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability, then, in either event, it shall not be necessary to obtain the written consent of the living parent or parents in such default, and in such cases adoption shall be permitted on the written consent of the Judge of the Juvenile Court of the county of such child’s residence ; * * *

A determination of appellant’s primary point has required us to carefully examine the entire statement of facts in this case. We have done so in the light of well established rules of law.

Since no findings of fact or conclusions of law were requested of or filed by the trial judge his judgment necessarily implies all necessary fact findings in support of the same. In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto it is proper for us to consider only that evidence most favorable to the issue and disregard entirely that which is opposed to it or contradictory in its nature. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609; Tucker v. Menefee, Tex.Civ.App., 310 S.W.2d 597; Beaird v. Beaird, Tex.Civ.App., 380 S.W.2d 730; Lamb v. Ed Maher, Inc., Tex.Civ.App., 368 S.W.2d 255; City of Abilene v. Meek, Civ.App., 311 S.W.2d 654, 656 (wr. ref.).

Any doubt as to the construction of the law arising out of the equity of the situation will be resolved in favor of the prevailing party. Smith v. Tipps, Tex.Com.App., 229 S.W. 307; Shaw v. First State Bank, Tex.Civ.App., 13 S.W.2d 133.

We must also consider the question of strict construction of the adoption statutes. We think the correct rule was stated by Mr. Justice Young of this court in Stinson v. Rasco, Tex.Civ.App., 316 S.W.2d 900, in which he said:

“While adoption statutes are to be liberally construed in favor of minors in order to effectuate their beneficial purpose, Woodall v. Schmudlach, Tex.Civ.App., 299 S.W.2d 780, the rule of strict construction applies in favor of a non-consenting parent. Jones v. Willson, Tex.Civ.App., 285 S.W.2d 877. Especially so ‘in those cases where it is claimed that owing to misconduct his consent to the adoption is not required. Every in-tendment should be made in such case in favor of the parent’s claim; and where the statute is open to construction and interpretation, it should be construed in support of the parent’s natural rights.’ 1 Am.Jur. pp. 626, 627.”

Appellee, the natural father of the child, testified that the child in question, Aven Lee Anthony, was born July 13, 1960; that he and his wife, the natural mother of the child, were divorced in Las Vegas, Nevada, in March 1961. In the decree from the Nevada court the natural mother was given custody of the child but no provision was made for the payment of child support by appellee. It was stipulated that the complaint for divorce in Nevada made no request for child support payments. However, immediately after the divorce was granted he started sending approximately $30 a month as child support payments, such payments apparently being received by the mother until December 1961. In the meantime the natural mother married James R. Gilley, appellant. Ap-pellee testified that in December 1961 he visited Aven Lee in the Gilley apartment. Mrs. Gilley told him that she did not want to accept any more payments from him. An argument followed, during which Mrs. Gilley slammed the door in his face. The next day he again asked Mrs. Gilley to reconsider her refusal to accept checks from him whereupon she told him to “quit sending those checks. If you don’t, I am going to turn Aven against you. I am going to tell Aven what kind of a father you really were.” He said that he discontinued making payments following this statement for fear that his former wife would carry out her threat. He testified that although he made no regular payments of child support he did, during 1962, ’63, and ’64 send Aven Lee several United States Savings Bonds, the total amount of which being $206.95. In addition thereto he gave Aven Lee $100 in cash, $160 worth of gifts and some Christmas presents. He also said that he held two shares of stock in Dow Chemical Company as custodian for Aven Lee and that he had a policy of insurance on his life for $10,000, with his mother and Aven Lee as beneficiaries. He stated that he was able to have paid more in each of the years 1962, ’63 and ’64 but that he did not make these payments because he did not wish to jeopardize the relationship he had with the Gilleys and with his daughter which he thought would be best for his child.

Carelgene Gilley, natural mother of the child, testified that she did not threaten to turn the child against appellee, as he had testified, and that she had never refused to accept checks from him; that when appellee visited the child he would cause her to become upset; that he had stated that the reason he did not make child support payments was because he could not afford to pay them.

It is obvious from this record that there was some evidence to support the trial court’s implied findings in support of his judgment denying the petition for adoption. Nor can we say that the evidence is contrary to the great weight and preponderance of the testimony which would justify our setting aside the court’s decree. It is not for us to substitute our judgment for that of the trial judge who had an opportunity to see and hear the witnesses and to weigh their testimony.

The trial judge elected to accept the testimony of the natural father to the effect that he had been ready, able and willing to make child support payments during the time involved in the adoption statutes but that due to the action and conduct of the natural mother he refrained from doing so. It is axiomatic that the law does not require one to do a useless or futile thing. If the natural father thought and believed, as the trial court found based upon his testimony, that it would be a fruitless thing for him to make child support payments; that they would not be accepted by the natural mother; and that if such were offered she would make an effort to turn the child against him, such conduct on his part could very well, especially in the light of the liberal construction rules cited above, excuse his failure for making such payments.

In Moring v. Dodd, Tex.Civ.App., 380 S.W.2d 777, a contention was advanced concerning an agreement between the father and mother whereby child support payments would no longer be paid for the support of the minor child. In that case the trial court specifically found in his findings of fact that such agreement was not made. On appeal the court sustained such finding as being based upon adequate testimony. In the instant appeal we find the testimony conflicting but sufficient to support the implied finding of the trial court.

Appellant’s first point is overruled.

By his second point appellant complains of the trial court’s refusal to admit into evidence a power of attorney allegedly signed by appellee in connection with the divorce decree in Nevada. We have carefully examined this point and find the same to be lacking in merit. Even assuming the materiality of the tendered document appellant has not demonstrated to us that the trial court’s failure to admit same in evidence resulted in the rendition of an improper judgment. Rule 434, Vernon’s Texas Rules of Civil Procedure.

By his third point on appeal appellant contends that the trial court erred in failing to grant his motion for new trial based upon newly discovered evidence relating to certain bank accounts and accounts in savings and loan institutions in California.

In his unverified amended motion for new trial appellant alleges that appellee had made false and misleading answers to certain interrogatories propounded to him concerning his financial status in California.

Attached to appellant’s brief, but apparently not a part of the record in this case, is found a copy of answers to a deposition propounded to a witness in California who apparently is employed by a savings and loan company in California. The answers to the interrogatories relate to two trust accounts in such institution, one held by appellee in trust and the other by his mother in trust. Having carefully examined the record we find no merit in appellant’s third point. This for the reason that the rules established by our Supreme Court relating to newly discovered evidence in motions for new trial have not been complied with by appellant. In New Amsterdam Casualty Co. v. Jordan, S.Ct., 359 S.W.2d 864, the Supreme Court set forth the following elements as being necessary in order to grant a new trial based upon newly discovered evidence: (a) that admissible relevant evidence was introduced on the hearing for new trial demonstrating the existence of newly discovered evidence relied upon; (b) that there was no knowledge of such evidence until after the conclusion of the trial and that such evidence could not have been discovered prior to the trial with the exercise of due diligence; (c) that such evidence was not cumulative or to be used for impeachment; and (d) that such evidence would probably produce a different result if a new trial were granted.

Absent compliance with these rules the trial court was justified in overruling the motion for a new trial. Moreover, in view of what we have said in connection with appellant’s point one we do not feel that the “newly discovered evidence” would be material or would result in the rendition of a different judgment had it been produced at the trial.

The judgment of the trial court is

Affirmed.


text:
    F. L. RUDINE, Appellant, v. C M C CONCRETE PIPE COMPANY, Appellee.
    No. 14490.
    Court of Civil Appeals of Texas. San Antonio.
    June 1, 1966.
    Brundidge, Fountain, Elliott & Churchill, Bob Dyess, Dallas, for appellant.
    Kampmann, Kampmann, Church & Thomas, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is an appeal by F. L. Rudine from an order of the 57th District Court of Bexar County overruling his plea of privilege to be sued in Dallas County, Texas, the county of his residence.

Appellee, CMC Concrete Pipe Company, undertook to sustain venue of this suit under Sec. 4 of Art. 1995, Vernon’s Ann.Civ.St. It is appellee’s contention that, having sued two defendants, one of whom resides in Bexar County, it is entitled to maintain this suit in Bexar County. The City of San Antonio is the resident defendant. Appellee furnished appellant concrete pipe to be used by him in a contract which he was performing for the City of San Antonio. A controversy arose as to an alleged balance claimed to be due appellee by appellant in the sum of $4,805.98. The City of San Antonio was notified of this controversy and informed appellant that it would not pay him in full unless this claim was paid or settled. Whereupon appellant delivered to the City a cashier’s check in the sum of $4,805.98 for its protection, and the City then paid appellant in full. The City filed an answer stating, in effect, that it had no interest in this $4,805.98, other than to see that it was paid to the proper person. The City paid the $4,805.98 into the registry of the court and prayed that the court determine the party or parties entitled to receive said sum of money.

It is apparent from this, that the only controversy here is the one between appellant and appellee, neither of whom resides in Bexar County. The City of San Antonio was nothing more than a stakeholder of the $4,805.98, which sum it has now paid into the court.

This is in truth and in fact a suit by ap-pellee against appellant in the sum of $4,-805.98, and there exists no reason by appellant should be sued in any county other than Dallas County, the county of his residence.

Before appellee would be entitled to maintain this suit in Bexar County, it would have to prove (1) that one defendant is a resident of Bexar County, (2) that it has a bona fide cause of action against the resident defendant, and (3) that the party asserting the plea of privilege is at least a proper party to the suit against the resident defendant. 32 Tex.Law Rev. 441; Glens Falls Ind. Co. v. Sterling, 213 S.W.2d 858. Appellee has totally failed to show that it has any cause of action against the City of San Antonio. Park v. Wood, 146 Tex. 62, 203 S.W.2d 204; Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

The City of San Antonio is no more than a nominal or auxiliary- party to this suit and its residence cannot control the venue of the suit. Glens Falls Indemnity Co. v. Sterling, supra; Leslie v. Griffin, Tex.Civ.App., 23 S.W.2d 534; H. C. Burt & Co. v. City of Spearman, Tex.Civ.App., 19 S.W.2d 96; Thomas Goggan & Bros. v. Morrison, Tex.Civ.App., 163 S.W. 119.

Appellee contends, in effect, that this suit is an interpleader case and therefore venue can be maintained in Bexar County under our holding in Reid v. Uhlhorn, Tex.Civ.App., 359 S.W.2d 278 (wr. dism.). The facts in these two cases are so different that they cannot be compared. The present suit was not instituted as an interpleader case, it began as a suit on an account allegedly owing by appellant to appellee. Ap-pellee had no claim whatever against the sum of $4,805.98 held by the City of San Antonio. The City voluntarily paid this money into court and asked that it be paid either to appellee or appellant. There is but one real controversy in this case, and it is between appellant and appellee and the proper place to try it is in the county of appellant’s residence.

The judgment of the trial court is reversed and judgment here rendered sustaining appellant’s plea of privilege and ordering the cause transferred to the District Court of Dallas County, Texas, as is provided by Rule 89, Texas Rules of Civil Procedure.

Reversed and rendered.


author: DENTON, Chief Justice.

text:
    MUNICIPAL ASSESSMENT COMPANY, Appellant, v. GODFREY MOTOR COMPANY, Inc., et al., Appellees.
    No. 7617.
    Court of Civil Appeals of Texas. Amarillo.
    May 16, 1966.
    Rehearing Denied June 20, 1966.

      Lovell, Lyle, & Cobb, Dumas, for appellant.
    R. C. Hamilton, Amarillo, on the motion for rehearing only.
   DENTON, Chief Justice.

Suit was brought by Municipal Assessment Company against Godfrey Motor Company, a corporation; J. Fike Godfrey; Katherine Godfrey, a widow; Jane God-frey, a feme sole; and Louis Alaniz, for an amount due upon a paving certificate and foreclosure of an assessment lien against certain described property in the city of Spur, Texas. Trial was to the court without a jury. The court entered judgment foreclosing the assessment lien and awarded appellant attorneys’ fees, but refused to enter a personal judgment against the Godfreys. Appellees have filed no brief.

This suit was brought under Article 1105b, Vernon’s Ann.Civ.St. There is no question raised relative to the validity of the proceedings under which the city of Spur issued the paving assessment certificate and its assignment to appellant. According to the agreed statement of facts, there was no genuine fact issue as to any material fact. The sole question to be determined is whether or not the trial court erred in failing to enter a personal judgment against J. Fike Godrey, Katherine God-frey and Jane Godfrey.

The assessment certificate issued on April 30, 1963 showed Godfrey Motor Company to be the owner of the property. Prior to that time Godfrey Motor Company was a partnership composed of W. F. God-frey and one other person. On December 24, 1959 Mr. Godfrey died, dissolving the partnership. Defendants J. Fike Godfrey, Katherine Godfrey and Jane Godfrey then became owners of the property. Godfrey Motor Company was the record title holder, but it is conceded these three named defendants were the true owners of the property on the date the assessment certificate was issued. Louis Alaniz became owner of Godfrey Motor Company subsequent to the filing of this suit. Appellant sought no personal judgment against the Godfrey Motor Company or Alaniz.

From the agreed statement of facts it is noted the three appellees contended in the trial court that since the assessment certificate named Godfrey Motor Company as owner of the property, when in fact these appellees were the true owners, the assessment is void and unenforceable as a personal liability against them. This same contention was rejected in Uvalde Construction Company v. Joiner, 132 Tex. 593, 126 S.W.2d 22 (Opinion adopted). That was a case where one Boyd was named in the assessment certificate as the owner while Joiner’s name, the true owner, was not mentioned. In reversing the Court of Civil Appeals the court held: “We do not agree with the holding that the proceedings and the certificate were void because of this error in naming the true owner of the property. We must presume in support of the trial court’s judgment that it was established upon the trial that Joiner was the true owner of the lot.” In upholding the trial court’s personal judgment against Joiner the court held: “The statute under which the city proceeded, Vernon’s Ann.Civ. St. art. 1105b, provides in Section 6 thereof that, ‘Any assessment against abutting property shall be a first and prior lien thereon from the date improvements are ordered, and shall be a personal liability and charge against the true owners of such property at such date, whether named or not.’ This language calls for no construction. It has been upheld by this court as against an attack upon its constitutionality and has been enforced in accordance with its plain terms. Smithey v. Shambaugh, 126 Tex. 396, 88 S.W.2d 475, and West Texas Construction Co. v. Adams, Tex.Civ.App., 54 S.W.2d 547, affirmed by memorandum opinion in Shirey v. West Texas Construction Co., 126 Tex. 173, 54 S.W.2d 547, 86 S.W.2d 1115.”

Smithey v. Shambaugh, 126 Tex. 396, 88 S.W.2d 475, cited with approval in the Joiner case also passed on this question. There C. W. Hurley, a lienholder of the property involved, was not named in the certificate. In holding Hurley personally liable the court held: “In the present instance, the paving certificate [contained] the recitals provided in the last-named section, and nothing appears in the entire act to show that the Legislature meant to limit the probative force of the recitals to such as are named in the certificate.” Appellees’ contention is without merit.

Appellees also contend the assessment is void and unenforceable as a personal liability against them for the reason they were joint owners of the property and the certificate did not state each owner’s interest separately. Smithey v. Shambaugh (supra) also passed upon this question. There it was contended Section 11 of Article 1105b was unconstitutional in that it was a violation of Article 8, Section 1 of the State Constitution, Vernon’s Ann.St which requires all taxation to be equal and uniform; and that Section 11 of the Act was not authority for the making of a joint or lump sum assessment against joint owners. Section 11 reads: “Assessments against several parcels of property may be made in one assessment when owned by the same person, firm, corporation or estate, and property owned jointly by one or more persons, firms, or corporations, may be assessed jointly.” The court upheld the constitutionality of the Act, and overruled the contention the Act provided no authority to assess jointly. In so holding the court used the following language:

“In the light of these provisions, and of the character of cotenancy involved in the particular clause of section 11 under consideration, it becomes reasonably clear that the Legislature intended that the joint assessment provided in this clause shall have effect to charge the undivided interest of each cotenant in the common property with a proportionate amount of the assessment, and to impose on the cotenant a corresponding personal liability. Neither of said provisions of the Constitution is offended, for the reason that personal liability in each instance is in accordance with benefits accruing to the cotenant, and extends no further than the amount he justly owes. The charge against his property is commensurate with his personal liability. He has the right to discharge the assessment lien from his undivided interest in the common property by paying his portion of the assessment.”

Under the plain language of Sections 6 and 11 of Article 1105b, and the decisions cited herein, we are of the opinion the trial court erred in failing to enter a personal judgment against J. Fike Godfrey, Katherine Godfrey and Jane Godfrey in addition to the foreclosure of the assessment lien.

The judgment of the trial court is so reformed and as reformed, affirmed.


author: DIXON, Chief Justice.

text:
    Orie G. NORMAN, Ind. and d/b/a Norman Construction Company, Appellant, v. SAFWAY PRODUCTS, INC., Appellee.
    No. 16728.
    Court of Civil Appeals of Texas. Dallas.
    May 27, 1966.
    James H. Martin, Dallas, for appellant.
    Passman, Jones, Stewart, Andrews & Hunter, Paul L. Salzberger, Dallas, for appellee.
   DIXON, Chief Justice.

Appellee Safway Products, Inc. sued appellant Orie G. Norman, doing business as Norman Construction Company, for $240.26 on an alleged written lease contract, and in the alternative for conversion of part of the leased property consisting of scaffolds of the value of $170.26. Appellee also pleaded ratification and estoppel.

Appellant in his sworn answer alleges that he never executed any written contract with appellee or agreed to pay for any materials described in appellee’s petition. He further alleges that he never at any time had possession or control of the scaffolds. Still further he alleges that appellee leased the scaffolds to one Charlie Scoggins, who at all times pertinent hereto had possession and control of the property.

Judgment in a nonjury trial was rendered against appellant for $245.26, which amount includes $75 attorney’s fee.

EVIDENCE

The undisputed evidence offered in behalf of appellee as well as appellant is that no written contract was ever signed by either appellant or appellee.

It is also undisputed that the rentals for the leased scaffolds have been paid in full. In fact, appellant received a small refund on rentals previously paid but unearned. The only controversy is with reference to an alleged shortage in the property when turned back to appellee.

Appellant is a building contractor whose office was located at 127 West Jefferson Avenue in Dallas, Texas. He was engaged in the construction of two apartment buildings, one at 1401 Plowman Street and the other at 501 North Marsalis Street in Dallas, Texas.

Appellant testified that Charlie Scoggins is a bricklayer and was a subcontractor on the above construction jobs; that he, appellant, furnished the bricks, but did not furnish the scaffolds for the bricklayers— that was for Scoggins to do and Scoggins did. However, appellant frankly admits that he paid three months’ rentals due ap-pellee on the scaffolds, but such payments were made as advances to Scoggins on Scoggins’ subcontract. Appellant also admits that he received the monthly statements for rentals due and that he paid them for Charlie Scoggins. But he denied ever receiving the original invoice on which ap-pellee claims the lease terms were printed.

Questions were propounded to appellant in an effort to show that Scoggins told appellant that he, Scoggins, was in financial distress and asked appellant to pay the rentals for him as an advance on his subcontract. Objections to these questions were sustained on the ground that they sought to elicit hearsay testimony.

Bob Bates, dispatcher and warehouse supervisor, testified for appellee. He received a telephone call from a person who purported to speak for Norman Construction Company and ordered the scaffolds to be delivered to the job site at 501 North Mar-salis. Bates, who did not know Norman, looked the latter up in Dun & Bradstreet, found his credit rating satisfactory, so dispatched appellee’s delivery truck to the job site. The truck driver could not find the site and returned to appellee’s warehouse.

Bates testified that he then dialed the telephone number listed in the telephone directory for Norman Construction Company. A woman answered the phone saying, “Norman Construction Company.” Upon request the woman not only gave instructions as to how to get to the site, but doubled the order for scaffolds. Accordingly, appellee’s truck driver delivered the property and obtained a signed receipt. The signature on the receipt is not legible. There is no testimony as to who signed the delivery ticket. The truck driver did not testify. Bates said that he did not know Norman or his company and never communicated with the company except as above stated.

Dan Closser, Vice-President of appellee, also testified. He first described appellee’s business procedures. After leased property is delivered appellee prepares invoices consisting of one original and ten copies. The original is mailed to the customer. On the reverse side of the original invoice the terms of the lease are printed. The copies do not have these terms set out on their reverse side.

As to whether the original invoice was mailed to appellant, Closser’s testimony was as follows:

“THE COURT: Do you know of your own personal knowledge that that invoice was mailed to the address of the defendant as shown on the invoice?
“THE WITNESS: No, I don’t, personally. It’s customary to mail them. I didn’t mail it personally.”

Statements of rentals due are sent each month as the rentals accrue. However, these monthly statements do not include the terms and conditions of the rental agreement.

The terms and conditions printed on the reverse side of appellee’s printed forms for original invoices include a provision as follows:

“The leased equipment shall be at the sole risk of LESSEE from injury, loss or destruction and in case it or any part thereof be destroyed, damaged or lost, whether with or without fault on the part of LESSEE, LESSEE shall pay to the COMPANY at the address as shown on the face of this form, a sum equal to COMPANY’S list price for the same, or similar equipment.”

OPINION

In his first point on appeal appellant challenges the jurisdiction of the County Court at Law. His contention is that this is a justice court suit for $170.26, that the attorney’s fee of $75 is not to be included in determining the jurisdictional amount.

We do not agree with appellant. The terms and conditions of the lease agreement as printed on the reverse side of the original invoice include a provision for attorney’s fee. Under the circumstances the attorney’s fee is properly an element of damage, not mere court costs, in appellee’s pleaded suit on the written contract. Super-Cold Southwest Co. v. Pennington, 231 S.W.2d 687 (Tex.Civ.App., no writ hist.); Jones v. McKinney, 224 S.W. 720 (Tex.Civ.App., no writ hist.); 15 Tex.Jur.2d 502; 35 Tex.Jur.2d 344. Appellant’s first point is overruled.

As we have stated, neither party signed any written contract. Nevertheless, the trial court’s Findings and Conclusions include Conclusion No. 1, as follows:

“A valid written contract was entered into between SAFWAY PRODUCTS, INC. as Lessor and NORMAN CONSTRUCTION COMPANY as Lessee which, oral at its inception and later reduced to writing, was fully performed by Plaintiff and acted upon, acquiesced in, assented to and accepted by NORMAN CONSTRUCTION COMPANY.”

The substance of appellant’s second point is that he was never informed of the alleged written contract, which admittedly neither party signed, therefore the document cannot serve as a basis for judgment against him though some of its provisions were performed.

The gist of appellee’s second and third counterpoints is that the trial court properly held that there was a written contract. Ap-pellee argues that since appellant accepted the benefits of the contract under the terms printed on the back of the original invoice he is bound by the said terms and is responsible for the shortage in the equipment which was disclosed upon its being returned to appellee. In support of this view we are cited among other authorities to The Houston & T. C. R. Co. v. Chandler, 51 Tex. 416; Gilbert v. Texas Co., et al., 218 S.W.2d 906, 941—942 (Tex.Civ.App., ref. n.r.e.); 13 Tex. Jur.2d 135, 218.

The above cited authorities are not in point. The holding in the Chandler case was based on ratification. In order for ratification to be applicable it must be shown that the person ratifying did so with knowledge of the facts. Carlile v. Harris, 38 S.W.2d 622, Tex.Civ.App.; 2 Tex.Jur.2d 534; 2 C.J.S. Agency § 42, pp. 1081-1083; 17A C.J.S. Contracts § 521, p. 1004. In the instant case appellee failed to show that appellant ever received the original invoice with the terms and conditions printed on the back or knew of said terms and conditions. Closser, for appellee, frankly admitted that he did not know of his own knowledge that the original invoice was mailed to appellant. The latter denied very positively that he received the invoice.

In the Gilbert case above cited it was held that whether a formal signing of a written draft of a contract is essential is a matter of intent. The court held that letters between the parties were merely parts of their negotiations and did not constitute a written contract. No such situation is presented here.

As to estoppel, the rule is that a contract cannot be created by estoppel. Snow v. Gibraltar Life Ins. Co., 326 S.W.2d 501 (Tex.Civ.App., ref. n.r.e.); Mercer v. Knox, 193 S.W.2d 885 (Tex.Civ.App., no writ hist.); Oxford v. Rogers, 238 S.W. 295, 297, Tex.Civ.App.

There is no evidence in the record that appellant converted the scaffolds to his own use. The only testimony on the point offered by appellee was that of appellee’s Vice-President, Dan Closser. He frankly stated that he did not know what happened to the equipment. When asked whether he thought Norman stole it he replied, “I don’t think he stole it.”

Appellant’s second point on appeal is sustained.

Appellant’s third and fourth points are not briefed so we shall hot pass on them. Carrick v. Hedrick, 351 S.W.2d 659, 662 (Tex.Civ.App., no writ hist.); Parks v. Underwood, 280 S.W.2d 320 (Tex.Civ.App., ref. n.r.e.); Kelley v. City of Austin, 268 S.W.2d 773 (Tex.Civ.App., no writ hist.).

The record indicates that the facts have been fully developed in this case. Therefore the judgment of the trial court will be reversed and judgment here rendered that appellee take nothing in its suit against appellant.

Reversed and rendered.


author: COLLINGS, Justice.

text:
    Homer CRUM, Appellant, v. Homer STASNEY, Appellee.
    No. 4048.
    Court of Civil Appeals of Texas. Eastland.
    April 1, 1966.

      Vandygriff, Presnal & Scofield, L. Alvis Vandygriff, Austin, for appellant.
    McMahon, Smart, Sprain, Wilson & Camp, Hugh Rives, Jr., and J. M. Lee, Abilene, for appellee.
   COLLINGS, Justice.

Homer Crum brought this suit against Homer Stasney for personal injury and disability alleged to have been sustained by plaintiff by being kicked or otherwise injured by a mule owned by defendant. It was alleged that the injury was sustained on the defendant’s ranch in Brown County, Texas, on or about January 1, 1962. Upon a hearing the court sustained the defendant’s motion for summary judgment and judgment was entered denying plaintiff any recovery. Homer Crum has appealed.

The record shows that on January 1, 1962, appellee Stasney was the owner and operator of a ranch in Brown County, commonly referred to as the Lucky “S” ranch. On this ranch appellee kept a mule which he had purchased from Jack Moberley. Appellant alleged that the mule was of a vicious nature and had exhibited dangerous propensities; that this fact was or could have in the exercise of due care been known to appellee, but that, notwithstanding such knowledge, appellee permitted the mule to be retained upon the premises and allowed, permitted or condoned the mule’s running at large in the lots and pens adjacent to the living quarters of Marion Baker, who was foreman of the Lucky “S” ranch on the occasion in question. Appellant further alleged that the vicious and dangerous nature of the mule was unknown to him. Appellee, Stas-ney, denied that the mule was vicious or dangerous and particularly denied knowledge of such tendencies on the part of the mule. Appellee’s answer contained a general denial and allegations of contributory negligence. Appellee also filed a motion for summary judgment alleging that there was no genuine issue of fact to be determined; that appellant Crum was, at best, a licensee; that he had not been invited to the ranch by the owner; that Crum had no business of any kind with appellee and that appellee had no knowledge of appellant’s presence on the premises on the occasion in question. Appellee’s affidavit in support of his motion for summary judgment states that appellant was not asked or invited by appellee and that Mr. Baker did not have authority to invite guests to the ranch or to take them around his livestock or the mule. As a general rule the owner or occupant of premises owes no affirmative duty of care to a mere licensee except to refrain from injuring him willfully, wantonly or through gross negligence. Carlisle v. J. Weingarten, 137 Tex. 220, 152 S.W.2d 1073. An owner of property, however, owes an invitee or business visitor the duty of exercising reasonable or ordinary care for his safety. 65 C.J.S. Negligence § 45, pp. 521, 522.

Appellant urges that the court erred in granting summary judgment against him because (1) there was a material fact question concerning his status on appellee’s ranch at the time he was injured, that is, whether he was an invitee, or, as appellee claims, a mere licensee, and (2) that a material fact question exists concerning the dangerous and vicious tendencies of the mule which caused appellant’s injuries and whether appellee knew or should have known of such tendencies.

The record on the motion for summary judgment consists of the pleadings, affidavits and depositions on file. Rule 166-A, Texas Rules of Civil Procedure. Appellee filed two affidavits in support of his motion for summary judgment, one by himself and the other by Sheriff Moberley. The deposition of Crum was taken and pertinent portions thereof are quoted in appellee’s motion for summary judgment. Appellant in his deposition testified that the only reason he went to the Stasney ranch on the occasion in question was for a social visit; that Marion Baker was his brother-in-law, was manager of Mr. Stasney’s ranch and that he “just decided” that he would go and visit him. He stated that he did not tell the Bakers he was coming to see them; that he and Baker were brothers-in-law and that “you don’t write or call”. Affidavits were filed on behalf of appellant by Marion Baker and his wife. In the affidavit of Marion Baker in support of appellant’s answer to Stasney’s motion for summary judgment, Baker stated: “I was assured that visits by relatives would be welcome, and on or about January 1, 1962, my brother-in-law, HOMER CRUM, and his family were invited to visit with us for the purpose of a visit and to conduct business regarding additions that were being planned for the Ranch house.” It is well settled that a social guest is a mere licensee. The test of whether one is an “invitee” or “licensee” on the premises of another is whether he is there by the owner’s invitation to transact business in which the parties are mutually interested. 25 Words and Phrases, Perm. Ed., pp. 291, 293. Appellee admits in his brief that Baker’s affidavit “contains facts which, if true, might tend to show that appellant was a business invitee.” Also see Snelling v. Harper, Tex.Civ.App., 137 S.W.2d 222 (Dis.Judg.Cor.). It is, however, contended by appellee that Crum’s statement in his deposition that the only reason he went to the Stasney ranch on the occasion in question was for a purely social visit was never repudiated, modified, explained nor was it shown that he was mistaken in his testimony given by deposition and that such testimony is therefore binding upon him. Appellee contends that the record therefore conclusively establishes that appellant is a licensee to whom no duty was owed except not to injure him willfully, wantonly or through gross neglect. We agree with appellee’s contention. Griffin v. Superior Insurance Co., 161 Tex. 195, 338 S.W.2d 415 (1960), McCormick and Ray, Texas Law of Evidence, Vol. 2, pg. 25; 169 A.L.R. 824; Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302; Stanolind Oil and Gas Company v. State, 136 Tex. 5, 145 S.W.2d 569 (1940).

We are of the opinion that even if it should be held that appellant was an invitee at the time of coming to the ranch, in that he was invited there “to conduct business regarding additions that were being planned for the Ranch house”, still the court did not err in granting appellee’s motion for summary judgment. One who has entered premises as an invitee may become a licensee by using the premises for purposes not included in his invitation. 65 C.J.S. Negligence §§ 24, 33, pp, 437, 489, 490; Burton Construction & Shipbuilding Company v. Broussard, 145 Tex. 50, 273 S.W.2d 598 (1954). In Cowart v. Meeks, 131 Tex. 36, 111 S.W.2d 1105 (Commission of Appeals, Opinion adopted by the Supreme Court, 1938), it is stated as follows :

“In determining this question the general test is whether the injured person, at the time of the injury, had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some relation which inures to the mutual benefit of the two, dr to that of the owner, no invitation can be implied, and the injured person must be regarded as a mere licensee.”

The record in our opinion shows without question that when Mr. Crum went out with a camera to have his picture made on the mule that he was doing so for his own convenience and satisfaction and not in connection with any common interest or business relationship between appellant and Stasney or Stasney’s ranch foreman, Baker. Mendoza v. Texas and Pacific Railroad Company, 70 S.W.2d 261 (CCA); Boneau v. Swift & Company, 66 S.W.2d 172 (Missouri Appeals); Snelling v. Harper, 137 S.W.2d 222 (CCA 1940), Dismissed, judgment correct.

We also overrule appellant’s second point urging that there was a material fact issue concerning the alleged dangerous and vicious tendencies of the mule in question and whether Stasney knew or should have known of such tendencies. Stasney’s motion for summary judgment and his affidavit and the affidavit of Sheriff Mober-ley are to the effect that the mule in question was not a dangerous and vicious animal. Sheriff Moberley stated in his affidavit that he had owned the mule about a month before selling it to Mr. Stasney; that the mule was very gentle; that he rode it nearly every day and it never displayed any wild or vicious tendencies; that although all mules are stubborn and temperamental, this particular mule was tamer and more easy going than most; that the mule was well broken to ride and gentle as a riding animal; that several other people rode the mule during the time he owned it, including his wife, and that the mule never demonstrated any vicious tendencies whatever. Mr. Stasney stated in his affidavit that about three or four months before appellant’s injury he acquired the mule from Sheriff Moberley; that he was informed by Mr. Moberley that the mule was gentle and broken to ride by both adults and children; that during the time he owned the mule it never demonstrated any dangerous tendencies and never hurt anybody; that he knew that his foreman Marion Baker and his son Glen Baker had ridden the mule and that the mule never hurt them and so far as he knew it had never hurt anybody.

In appellant’s answer to appellee’s motion for summary judgment it was alleged that the mule had demonstrated vicious and dangerous tendencies prior to the time of the accident on January 1, 1962, and that Stasney knew of such demonstrated dangerous tendencies. In support of his answer to appellee’s motion for summary judgment appellant submitted as exhibits the affidavits of Marion Baker and his wife Opal Baker. Baker stated that he personally advised Mr. Stasney that the mule would buck and kick and that it would have to he “broke to work before it could be used as an animal to be attached to a cart.” Opal Baker stated in her affidavit that she observed the mule as it pitched and kicked after the accident; that she had personal knowledge of the fact that the mule did pitch after the accident because she saw the mule “pitch my son off” while he was attempting to ride the mule a few days after the accident to Homer Crum. In our opinion the affidavits opposing Stasney’s motion for summary judgment do not raise a fact issue concerning any vicious or dangerous tendencies displayed by the mule prior to Mr. Crum’s injury. The fact that the mule would “buck and kick” and needed to be “broke” does not under the circumstances show that the mule was vicious and dangerous to a licensee on the premises. There is no showing that Mr. Stasney had knowledge of any vicious or dangerous tendencies on the part of the mule. Appellant’s second point is overruled.

The judgment is affirmed.


author: BELL, Chief Justice.

text:
    ALVIN INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. Kathy Ann COOPER, Appellee.
    No. 14827.
    Court of Civil Appeals of Texas. Houston.
    June 2, 1966.
    Joe H. Reynolds, Houston, Reynolds, White, Allen & Cook, Houston, of counsel, for appellants.
    James P. Simpson, Simpson, Hancock & Green, Texas City, for appellee.
   BELL, Chief Justice.

This is an appeal from a temporary injunction requiring appellant and the members of its Board of Trustees to admit ap-pellee as a student at Alvin High School.

The facts are undisputed. Appellee was in her sophomore year in Alvin High School in January, 1965. At that time she withdrew from school and married John W. Cooper. Subsequently a child was born to the marriage. At the time this suit was filed on January 13, 1966, appellee had filed a suit for divorce against her husband; and since he refused to join her in this suit, she was permitted to sue without his joinder. At the time of suit appellee was 16 years of age.

The trial court overruled a plea that it had no jurisdiction since appellee had not exhausted her administrative remedies. On hearing the injunction asked for was granted.

The only reason appellee was being denied admission was because of a rule adopted by appellants that forbids admission of a married mother. The effect of that portion of the rule as interpreted by the Board of Trustees is to permanently exclude from Alvin schools such persons. The rule reads thus:

“A pupil who marries can no longer be considered a youth. By the very act of getting married, he or she becomes an adult and assumes the responsibility of adulthood. As a married student he or she shall not serve as an officer of the student body or any class or school organization. A married pupil shall not represent the school in an interschool contest or activity and shall not participate in school activities other than regular classes. If a married pupil wants to start her family, she must withdraw from public school. Such a pupil will, however, be encouraged to continue her education in the local adult education program and correspondence courses.”

We are concerned only with the last sentence of the rule and its construction by appellants to forever prevent a mother who has a child from re-entering the public high school.

The undisputed evidence shows she cannot be admitted to the adult education program until she is 21 years old. It also shows that the correspondence courses are in homemaking and are not of such a nature as to entitle her to credit for entry into college. The practical and legal effect is that appellee is deprived of a legal education, except as she might obtain it at her own expense in a private or parochial school.

Undoubtedly the law of Texas is that in matters of school administration, where there is a question of fact involved, a complainant must exhaust his or her administrative remedies before resorting to the courts for relief. Where, however, there are undisputed facts and there is a pure question of law as to whether the school authority has the legal right to take the action it has, resort may be had initially to the courts. Questions of fact are initially to be determined by the school agencies, but the courts are vested with authority to determine the legal powers of those agencies to take the action they have taken on undisputed facts. This does not mean that the courts will pass on the wisdom of the action taken in the exercise of a legally vested authority. Mission Independent School Dist. v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 161 A.L.R. 877 (S.Ct.); McIntyre v. Hoblinski, 333 S.W.2d 697 (C.C. A.) writ ref.; Bruce et al. v. Stilwell et al., 206 F.2d 554 (5th Cir.); Warren v. Sanger Independent School Dist., 116 Tex. 183, 288 S.W. 159 (Comm.App.) opinion adopted.

We are of the view that appellants were without legal authority to adopt the rule or policy that excludes the mother of a child from admission to the school if she is of an age for which the State furnishes school funds. Appellee was when this suit was filed and tried and is now under 18 years of age. She was listed by appellants as a scholastic for whom funds should be available to the school district.

It is true as appellants contend that Article 2780, Vernon’s Ann.Tex.Civ.St. gives trustees broad powers to enact rules for the administration of school affairs. Certainly under it rules may be passed that the trustees deem necessary to maintain discipline among students, but this does not mean they may enact a rule the effect of which permanently excludes a person of scholastic age from attendance at school. We think the above statute must be construed in the light of other statutes in determining the authority of the school trustees.

Article 2902 V.A.T.S. provides that all children over six years of age and under 18 years of age at the beginning of the scholastic year shall be included in the scholastic census and shall be entitled to the benefit of the public school fund for that year. It further provides that the trustees shall admit the benefits of the public schools to any person over six and not over 21 years old at the beginning of the scholastic year, if such person or his parents or legal guardian reside within the * * * district. (Emphasis ours).

The effect of this article of the statute is to give the benefits of the public school funds to those persons between six and 18 years of age but it goes further and defines persons who are entitled to admission as those persons within the district or whose parents or guardians are within the district, who are over six years of age and not over twenty-one. Such persons are entitled to admission as a matter of law.

Article 2904 authorizes school districts to admit persons under six and over 21 to school and to provide the conditions for their admission. It then provides that as to such persons as are found to be incorrigible, the trustees may suspend such persons but such suspension shall not extend beyond the current term.

The effect of those statutes when construed together is to require a school district to admit persons over six years of age and under 21 years of age provided they, their parents or guardian reside in the district. The school district is therefore without legal power to adopt the rule involved in this case.

This holding does not mean that rules disciplining the children may not be adopted, but any such rule may not result in suspension beyond the current term.

We do not deem Article 2892 V.A.T.S. as material to this case. It merely requires the attendance at school of children between the ages of 7 and 17 years for at least 165 days per year. We have no case involving this statute. We have a case where a scholastic who is entitled to attend wants to do so but is prevented from doing so by a rule the school district had no legal authority to pass.

The trial court correctly overruled the plea to the jurisdiction and correctly issued its writ.

Affirmed.


text:
    STULL CHEMICAL COMPANY, Inc., Appellant, v. BOGGS FARMERS SUPPLY, INC., et al., Appellees.
    No. 4036.
    Court of Civil Appeals of Texas. Eastland.
    March 11, 1966.

      Simpson, Adkins, Fullingim & Hankins, W. P. Sturdivant, Amarillo, for appellant.
    Graddy Tunnell, Paul Lyle, Morehead, Sharp, Boyd & Tisdel, Plainview, for ap-pellees.
   COLLINGS, Justice.

This is a plea of privilege case. It is an appeal from the order of the District Court overruling pleas of privilege filed by Stull Chemical Company, Inc., to alleged causes of action filed by the original plaintiffs and to third party actions. Five cases are involved, presenting somewhat similar fact situations. The cases were tried together without a jury and at the close of the evidence the court overruled all pleas of privilege. Stull Chemical Company, Inc., has appealed.

Stull Chemical Company, Inc., hereafter referred to as Stull, is a Texas corporation with its principal place of business at San Antonio, Bexar County, Texas. It is a chemical company engaged primarily in the manufacture, wholesale and distribution of insecticides, pesticides and other chemicals intended for use in agriculture. Boggs Farmers Supply, Inc., hereafter referred to as Boggs, is also a Texas corporation. Its principal place of business is at Kress in Swisher County. Boggs is primarily engaged in the retail sale of farm supplies, including fertilizers, herbicides, insecticides and other chemicals primarily intended for use in agriculture. Boggs also sometimes contracted to custom apply certain chemicals to various tracts of land for the purpose of weed control and other control purposes.

The plaintiffs are all land owners, lessees of land, or parties otherwise interested in crops growing in Swisher County in the year 1964. Plainsman Supply, Inc., is not a party to any of the suits involved, but is a Texas corporation which in the normal course of its business operation purchases bulk chemicals from Stull and in turn wholesales them to various dealers such as Boggs.

The record shows that in 1964 Boggs entered into contractual relationships with various land owners, lessees or other parties interested in growing crops in Swisher County whereby Boggs agreed to apply certain herbicide formulas to growing crops for the purpose of reducing weed infestation. Boggs entered into such a contract with Charles B. Martin, Jr., and A. C. Glenn to spray the grain sorghum crop growing on the farm lands of such parties with a Stull product bearing the trade name “Instemul DA-40” for the purpose of controlling and killing weeds growing in the grain sorghum crop. At the time the trade name preparation was applied said plaintiffs had growing cotton crops and soybean crops within close proximity to their grain sorghum crops. It was and is the contention of the plaintiffs that the preparation applied by Boggs to the grain sorghum crops either volatilized and floated or initially drifted onto the cotton and soybean crops owned by such plaintiffs and resulted in damage to said crops.

Two other plaintiffs, E. L. George, the owner of certain land in Swisher County and Kenneth Hart, who farmed such land, also brought suit against Boggs and Stull. The fact situation in this suit is similar to that in the suit filed by Martin and Glenn. Boggs contracted with George and Hart to spray a grain sorghum field for the purpose of killing and controlling noxious weeds. Said plaintiffs alleged that the preparation used by Boggs either volatilized and floated or initially drifted onto cotton crops owned by them in close proximity to the grain sorghum fields sprayed by Boggs with resulting damage to their cotton crops.

In three other cases filed against Boggs and Stull Company the fact situations are somewhat different. In such cases the plaintiffs had no direct contractual relationship with Boggs. In each of such cases it was alleged that Boggs, while spraying a third party’s field with the preparation in question for the purpose of controlling noxious weeds, permitted the herbicide to either volatilize and float or to initially drift upon cotton fields owned by such plaintiffs, thereby causing damage to their cotton crops.

Each of the plaintiffs initially sued Boggs and Stull as joint defendants. Stull in each instance filed a plea of privilege to be sued in Bexar County. In each of the cases Boggs filed a third party complaint against Stull. In each instance of a third party complaint by" Boggs against Stull, a plea of privilege was filed to the third party complaint. The five cases were consolidated for hearing on the pleas of privilege. In the three cases by original plaintiffs who alleged no contractual connection, with Boggs, such plaintiffs, after hearing on the pleas of privilege, took a non-suit against Stull. In each of these three suits the court then overruled the plea of privilege filed by the third party defendant Stull to the third party action of Boggs. The court also overruled the pleas of privilege filed by Stull to the suits instituted by the original plaintiffs who alleged a contractual relationship with Boggs, and overruled the pleas of privilege filed by Stull to the third party actions of Boggs in such cases.

In appellant’s second point it is urged that the court erred in overruling the pleas of privilege filed by the defendant and cross-defendant, Stull Chemical Company, to the original petitions of the original plaintiffs, Glenn and Martin, and Hart and George and to the third party complaints of Boggs Farmers Supply, Inc., stating as reason therefor that the defendant and cross-defendant, Stull Chemical Company, is domiciled in Bexar County and that no exception to exclusive venue in the county of its domicile is shown to exist.

The original plaintiffs, Glenn and Martin, and Hart and George contend that the court did not err in overruling the pleas of privilege filed by Stull to their original petitions, claiming that venue was properly laid in Swisher County under the provisions of Subdivisions 4 and 23 of Article 1995, Vernon’s Ann.Tex.Civ.St. Subdivision 4 of the venue statute provides that:

“If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.”

It is held that where a plaintiff brings suit against two defendants, one of which resides in the county where the suit is brought and the other in a different county, and seeks to obtain the benefit of subdivision 4 of the venue statute he may do so by alleging and proving a cause of action against the resident defendant and alleging a cause of action against the nonresident defendant so intimately connected with the cause of action alleged and proved against the resident defendant that the two may be joined under the rule intended to avoid a multiplicity of suits. Proof of the nature of the suit is shown by plaintiffs’ petition. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (Com. of App., opinion adopted by Sup.Ct.).

The suits by the original plaintiffs Glenn and Martin, and Hart and George were against two defendants, Boggs and Stull. It was alleged and proved that Boggs resides in Swisher County where the suit was brought and that Stull resides in Bexar County. Stull admits that it is a proper party to the suit against the resident defendant Boggs, but contends that the original plaintiffs have not met their burden “to plead and prove by a preponderance of the evidence” a cause of action against the resident defendant Boggs. We cannot agree with this contention. In our opinion the original plaintiffs did allege a cause of action against both the resident Boggs and the nonresident Stull and proved a cause of action against Boggs, the resident defendant.

The pleadings of the original plaintiffs were, in substance, that Boggs Farmers Supply, Inc. was a corporation engaged in the business of selling insecticides and weed control spray materials designed for .he destruction and control of weeds; that Boggs was also engaged in the selling and application of said materials on the land of purchasers. They alleged that Stull Chemical Company was engaged in the manufacture of a special herbicide formulation called Instemul, which said herbicide formula was to be sprayed and spread on plants and farm land by the Stull Bi-fluid System to kill and control noxious weeds. They alleged that in June of 1964, the original plaintiffs contacted Mr. Andrew Boggs, an agent and officer of Boggs Farmers Supply, and inquired concerning the possible use of a weed control spray called Instemul; that Boggs was an authorized sales outlet or distributor for Stull Chemical Company in selling Instemul DA-40 as a herbicide; that Andrew Boggs represented and warranted to .said plaintiffs that he had investigated the weed control material in question and that it was perfectly safe to use this spray on a grain sorghum crop to control and kill weeds growing therein; that such material did contain 2,4 — D as a weed killing agent, but that a Bi-fluid Spraying Process had been perfected by Stull Chemical Company and that such material, as a herbicide, if applied by the Stull Bi-fluid Spraying Process, would not drift or volatilize and could be safely used in close proximity to cotton and other crops without damage to said crops. It was alleged that said plaintiffs relied upon the representations and warranties of Boggs; that they also relied on the advertising used and disseminated in Swisher County and surrounding counties during the time in question by Stull Chemical Company, and shown to such original plaintiffs, and by reason of such representations, warranties and advertising authorized Boggs to apply the weed control agent to their grain sorghum crop as a weed control measure and agreed to pay therefor the sum of $4.50 per acre. Said plaintiffs further alleged that they made known to Boggs the purpose and exact location for which they were buying the spray material and the particular use intended to be made of it; that Boggs agreed to apply said spray and expressly and impliedly warranted that such spray material would not be harmful to cotton and other crops in the area; that plaintiffs relied upon the skill and judgment of Boggs and the skill and judgment of Stull in the formulation and manufacture of Instemul DA-40; and that the express and implied warranties of both defendants that said spray material so sold and applied was suitable for the purpose for which it was intended to be and was used. Plaintiffs alleged that they relied upon the skill and judgment of both Boggs and Stull and the express and implied warranties of such defendants that such herbicide material would not kill or damage other growing crops in the area. Said plaintiffs further alleged that, contrary to the express and implied warranty of said defendants, the material described which was sprayed on plaintiffs’ grain sorghum for control of noxious weeds was dangerous and injurious to cotton crops growing in the immediate vicinity, and that 2,4 — D damage was caused to plaintiffs’ cotton crop, which damage plaintiffs sought to recover.

The evidence shows that the material in question, Instemul DA-40, contained a hormone killer to which broad leaf plants such as cotton and soybeans were particularly susceptible; that shortly after application of the material to plaintiffs’ grain sorghum plaintiffs sustained damage to their nearby cotton and soybean crops. The evidence shows that Boggs made an investigation to try to determine if 2,4-D damage to plaintiffs’ cotton and soybean crops could have come from any other source, but was unable to find where any other farmer in the vicinity had used a 2,4-D agent in the summer of 1964. Andrew Boggs testified that the material in question caused the damage to the growing crops of the original plaintiffs herein. Mr. Boggs stated that the damage which he observed decreased the yield of the cotton crop. There was ample evidence to the effect that Boggs represented and warranted that the material in question would be safe to use in spraying the grain sorghum crops and that such spraying would not damage susceptible crops nearby, either on plaintiffs’ land or on the land of neighbors. The original plaintiffs testified that they relied upon said warranties and representations to their damage.

Stull’s pleas of privilege to the suits filed by the original plaintiffs were properly overruled under the provisions of subdivision 4 of the venue statute. In our opinion such pleas of privilege were also properly overruled under provisions of subdivision 23 of the venue statute. Subdivision 23 provides in part that suits against a private corporation may be brought in the county in which the cause of action or a part thereof arose. Stull is a private corporation. It is held that a party seeking -to maintain venue in a particular county under the provisions of the statute permitting suits against private corporations to be brought in any county in which the cause of action or a part thereof arose has the burden of proving a cause of action against the defendant. Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605. The record shows that the original plaintiffs met their burden of pleading and proving a cause of action against Stull which arose in whole or in part in Swisher County.

The evidence also supports the action of the court in holding that venue of Boggs’- third party cross actions against Stull was properly laid in Swisher County. In connection with this matter appellant particularly urges that there is no evidence, or in the alternative insufficient evidence, to support the court’s implied finding that Stull breached an express or implied warranty to Boggs. In our opinion there was evidence and sufficient evidence showing that Stull represented to Boggs that its product was safe when used and applied in close proximity to cotton and soybean crops. The evidence also amply supports the implied finding that appellant’s product was not safe when applied in close proximity to such susceptible crops. The pleadings and evidence show that Stull furnished advertising material which was delivered to Boggs in Swisher County to be used in promoting sales of its product, Instemul DA-40. Exhibits of such advertising material were introduced in evidence. The evidence shows that such advertising material was exhibited by Boggs to the original plaintiffs herein before they entered into the contracts with Boggs; that the product which was manufactured by Stull was purchased by Boggs through a distributor and delivered in sealed containers or drums in Swisher County for sale. Sales representatives of Stull encouraged and solicited Boggs as an agent or sales outlet for the sale of its product in Swisher County to be sold or applied t~ crops in the manner recommended by Stull. The advertising material and representatives of Stull represented such product to be safe when used in close proximity to crops such as cotton which were susceptible to damage. This representation or warranty is illustrated by plaintiffs’ exhibit númber 1 which ■ is a picture demonstrating Stull’s warranty under which it was stated that “this row of cotton was sprayed with 2,4 — D in a IS mph. wind.” Relying upon such representations the material in question was applied by Boggs to growing crops in Swisher County by the Stull Bi-fluid Spraying Process, recommended by Stull. In our opinion the evidence shows that damage resulted therefrom both to crops of original plaintiffs who contracted with Boggs, and to nearby crops of plaintiffs who did not contract with Boggs. It is unquestioned that there was 2,4-D damage to the crops involved, and the evidence supports the conclusion that there was no other spraying in the community. These facts constitute circumstantial evidence that Stull’s herbicide product so applied by Boggs in the vicinity of the injured crops either volatilized and floated or initially drifted onto and damaged such crops. Aerial Sprayers, Inc. v. King, Tex.Civ.App., 317 S.W.2d 602; Aerial Sprayers, Inc. v. Yerger, Hill & Son, Tex.Civ.App., 306 S.W.2d 433. The evidence supports the implied finding of the trial court that both the original plaintiffs and Boggs proved causes of action against Stull which arose in whole or in part in Swisher County, and that venue was properly held to be in that county under the provisions of Subdivision 23, supra. In support of our holding concerning Boggs’ third party cross actions against Stull see Josey Miller Company v. Wilson, Tex.Civ.App., 384 S.W.2d 231 and Charles Pfizer and Company v. Branch, Tex.Civ.App., 365 S.W.2d 832; Kirksey v. Warren, Tex.Civ.App., 348 S.W.2d 33.

The alleged damage to cotton crops in close proximity to the area sprayed by Boggs subjected Boggs to claims by each of such cotton farmers for his alleged damage. Each of such farmers brought suit against Boggs to recover for damages to their growing cotton crops alleged to have been caused by the action of Boggs in spraying the sorghum grain crops of the original plaintiffs herein. Boggs was thus subjected to claims of alleged damages in Swisher County and therefore sustained damage in Swisher County. Such damage was a part of his cause of action which arose in Swisher County, where these suits were filed. It was not necessary that before liability of Boggs could arise that it must have adjusted its liability with those who brought claims against it for damages. Josey Miller Company v. Wilson, supra; Brown Company v. Terrell, Tex.Civ.App., 310 S.W.2d 757; Davis v. Ferguson Seed Farms, Tex.Civ.App., 255 S.W. 655.

Appellant’s points are all overruled. The orders of the trial court overruling appellant Stull’s pleas of privilege were proper. Such orders are affirmed.


author: PER CURIAM.

text:
    J. D. LEE, Appellant, v. J. D. OWEN, Appellee.
    No. 14423.
    Court of Civil Appeals of Texas. San Antonio.
    May 18, 1966.
    Royce A. Oxford, Dell City, for appellant.
    Ronald Calhoun, El Paso, for appellee.
   PER CURIAM.

This suit was filed by appellee, J. D. Owen, against Adolph Gold and appellant, J. D. Lee, seeking judgment upon a promissory note and foreclosure of a vendor’s lien securing payment of the note. An interlocutory default judgment was entered against Adolph Gold on September 13, 1965, and on January 13, 1966, judgment was entered after a non-jury trial, by which appellee recovered from Gold and appellant for his debt in the sum of $5,866.11, together with interest and attorney’s fees, and foreclosure of his vendor’s lien on certain lots in Hudspeth County, Texas.

Lee perfected his appeal to the Court of Civil Appeals for the Eighth Supreme Judicial District of Texas, sitting in El Paso. The transcript and statement of facts were filed in that Court on March 9, 1966. No brief or motion for good cause was filed by appellant within thirty days thereafter, as required by Rule 414, Texas Rules of Civil Procedure. On April 22, 1966, appellee filed his motion to dismiss the appeal because of appellant’s failure to file a brief. On the same date, the Supreme Court of Texas transferred this cause and fourteen others to this Court.

On May 6, 1966, appellant filed a motion in this Court requesting a thirty-five day extension of time in which to file his brief and praying that appellee’s motion to dismiss the appeal be denied. This motion which is supported by affidavit of appellant’s counsel sets forth in general terms the following reasons for failure to timely file brief: There is no stenographer in the small city where appellant’s attorney practices law and he is forced to do his own stenographic work; there recently was a session of the District Court and another of a County Court in Hudspeth County, and this attorney is County Attorney; the attorney recently was in an automobile accident and confined to a hospital for nearly a week; the attorney was required to make out quite a number of income tax reports; and “all in all this attorney just has been snowed under with his work and way behind with everything which needed doing the last six weeks all at once.”

It is seen that this motion for extension of time was not filed until nearly thirty days after the brief was due. Good cause is not shown for appellant’s failure to time-lv file his brief, nor is it shown that appellee has not suffered material injury thereby. 4 Tex.Jur.2d, Appeal & Error, § 633. Appellant does not assert that there is any custom or practice in the Eighth Supreme Judicial District at variance with the provisions of Rule 414, T.R.C.P. and our research indicates the contrary. See Santana Petroleum Corporation v. Go Services, Inc., 389 S.W.2d 96.

Appellant’s motion for extension of time is overruled and this appeal is dismissed. Rule 415, T.R.C.P.

      . Cf. Hoke v. Poser, 384 S.W.2d 335 (Tex.1964).