text:
    Vernon Eugene APPLE, Appellant, v. The STATE of Texas, Appellee.
    No. 38394.
    Court of Criminal Appeals of Texas.
    June 26, 1965.

      Rex Emerson (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Charles E. Bonney and Joe Maida, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is forgery by alteration; the punishment, enhanced by two prior convictions for felonies less than capital, life.

The indictment alleged and the evidence, including the confession of the appellant, shows that appellant altered an American Express Company money order for the sum of “I Dols 70 Cts” by inserting the numeral 7 so as to make the instrument falsely appear as being in the sum of “$71 Dols 70 Cts.”

The money order introduced in evidence was identified from the code number and other writings thereon as that sold by a pharmacist in the amount of $1.70. The pharmacist testified that it had been altered from its original tenor of $1.70 so as to appear as $71.70, thus creating an added liability of $70.00 to the American Express Company.

Appellant and his counsel in open court entered into stipulation agreeing to the truth of the allegations of the indictment as to the two previous convictions.

The contention urged by appellant’s court appointed counsel on appeal, that there is a fatal variance between the allegations in the indictment and the proof, is predicated upon the fact that the indictment alleged that appellant altered the money order “by insertion of the numeral ‘7’ in front of the num&erals ‘1.70’,” whereas the instrument set out in the indictment shows that prior to being altered the amount was “I Dols 70 Cts.” and the evidence shows that the numeral “7” was inserted in front of “I Dols 70 Cts.”

The indictment was not attacked by exception or motion to quash and we find no material variance.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


source: Caselaw Access Project

author: McDONALD, Presiding Judge. MORRISON, Judge.

license: Public Domain

text:
    Ex parte Randolph WILSON.
    No. 38339.
    Court of Criminal Appeals of Texas.
    May 26, 1965.
    Rehearing Denied June 26, 1965.

      Wellington Y. Chew, Robert Ziesenheim, El Paso, John R. Lee, Kermit, for petitioner.
    Leon B. Douglas, State’s °Atty., Austin, for the State.
   McDONALD, Presiding Judge.

This is an application filed by petitioner, an inmate of the Texas Department of Corrections, with the District Court of Winkler County, Texas, for a writ of habe-as corpus. Pursuant to Art. 119, Vernon’s Ann.C.C.P., that Court made the writ returnable to this Court, together with the transcript and application. We shall treat the case as an original application made to this Court.

Petitioner alleges in his application that he was indigent at the time he was convicted and sentenced to 23 years for the offense of robbery by firearms on January 2, 1963, by the District Court of Winkler County, Texas, and that because of his indigent status he was unable to obtain appellate counsel.

We observe that petitioner has attached to his application an affidavit from Honorable Don M. Nugent, dated October 15, 1963, in which Mr. Nugent relates that he was appointed as counsel for petitioner in the trial of his case in Winkler County, Texas. Mr. Nugent states that he and petitioner discussed at length various aspects of the case prior to the actual trial thereof and that if, after the hearing and in the event there was a conviction, and in his opinion the court had committed material error in the trial of the case that he would assist Mr. Wilson (petitioner) with an appeal to this Court. Mr. Nugent stated that on the other hand, if, in his opinion, there was not material error committed that he would simply make all arrangements necessary for an appeal and leave it entirely up to Mr. Wilson and/or his family to make further arrangements. Mr. Nugent further related that after the trial Mr. Wilson voiced the opinion that he would like to appeal the case to this Court, but that he advised him at that time that in his opinion there was no material error in the record and that he could no longer be associated with the case. Mr. Nugent stated that he did notify the court reporter and the district judge that the Wilson family might want a transcript of the proceedings, including a statement of facts and that he prepared and had executed an affidavit in support of the pauper’s oath showing that petitioner was financially unable to employ further counsel, which he retained.

We find no showing of notice of appeal from said conviction. It is obvious to us that petitioner was not deprived of the effective assistance of counsel, as shown by the affidavit of Mr. Nugent. Petitioner has made no showing that he was represented by incompetent counsel on the trial level. He evidently relied upon the advice given him by attorney Nugent and was content to abide by it. There is no showing that petitioner ever filed the pauper’s oath and sought a record to appeal his case to this Court, nor did he request the trial court to appoint other counsel for him. We think that Mr. Nugent fully discharged his duty to petitioner. Although petitioner “voiced the opinion that he would like to appeal the case to this Court”, it was his responsibility to take the necessary steps to make his opinion a reality by notifying the trial judge and filing his pauper’s affidavit.

Finding no merit in petitioner’s application, the relief sought is denied.

ON MOTION FOR REHEARING

MORRISON, Judge.

It is urged that Pate v. Holman, 5 Cir., 341 F.2d 764, requires that petitioner’s conviction be held to be void. Petitioner relied upon an affidavit made by his court appointed counsel which we discussed in our original opinion. In such affidavit there is no showing that appellant ever made his wish for appellate review known to the trial judge or to any of the State officials enumerated in Pate v. Holman, supra.

We do not construe Pate, relied upon by petitioner, as holding that a court appointed attorney is such a state official. It should be remembered that Article 494a V.A.C.C.P. provides for compensation of attorneys only for bona fide appeal. It is clear from Attorney Nugent’s affidavit that he did not consider petitioner’s case as one which would merit a bona fide appeal.

Petitioner’s motion for rehearing is overruled.


author: WOODLEY, Judge.

text:
    Ex parte Margie L. RUCKMAN and V. L. Ruckman, Jr.
    No. 38484.
    Court of Criminal Appeals of Texas.
    June 26, 1965.

      Tom Upchurch, Jr., Amarillo, for petitioner.
    Dee D. Miller, Dist. Atty., Patrick H. Mulloy, Jr., Asst. Dist. Atty., Amarillo, Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is a collateral attack upon the convictions of the relators upon their pleas of guilty before the court, in County Court at Law of Potter County, on March 16, 1965 with punishment assessed against V. L. Ruckman, Jr. at 2 years in jail and a fine of $100 and against his wife Margie at 1 year in jail and a fine of $100.

No appeal was attempted or perfected and the record of the trial in County Court at Law is not before us.

On May 17, 1965, a petition for writ of habeas corpus sworn to by relators was filed in the 47th District Court. A hearing was had. Transcript of the evidence adduced at said hearing is before us, as is the petition and certified copies of the complaint, information and judgment of conviction in County Court at Law.

Relators gave notice of appeal from the order overruling their application for ha-beas corpus. No such order and no order of the District Judge from which an appeal lies to this Court is found in the record.

Following the hearing an original application for writ of habeas corpus was presented to this Court. This petition was filed with the transcript from the District Court and the case was docketed as an original petition to this Court.

The application presented to the District Court, sworn to by relators, averred in part:

“The County Attorney advised the Petitioners that the State law made no provisions for counsel or the appointment of counsel in misdemeanor cases. Petitioners were without funds with which to hire counsel. Although this is not a case wherein Petitioners were not told of their right to counsel, Petitioners at no time consciously waived their right to counsel. Petitioners thus entered pleas of guilty without the assistance of counsel. Petitioners received serious punishment; fines and jail terms of one year and two years respectively. Petitioners are husband and wife and are incarcerated in the same county jail.”

Relators’ sworn allegation that “this is not a case wherein Petitioners were not told of their right to counsel” is alone sufficient to distinguish this case from Harvey v. State of Mississippi, 5 Cir., 340 F.2d 263, which held:

“The failure of notice to Harvey of his right to the assistance of counsel invalidated his guilty plea and rendered his conviction and incarceration constitutionally improper. We therefore reverse the judgment of the trial court and remand the case for the entry of judgment ordering the release of the appellant from custody on the present conviction and sentence.”

The question of indigency was not in Harvey v. State of Mississippi and is not relied upon in the application for writ of habeas corpus which relators presented to this Court after the hearing in the District Court. The reason no doubt is that the evidence at such hearing does not sustain the claim that relators were unable to employ counsel.

The cases are easily distinguishable.

Harvey was a Negro farmer who had never gone to school and was unable to read and write other than to write his own name. He went to the home of the judge some 10 days before court day and the judge accepted his plea of guilty to “Possession of whiskey”. He asked what his fine would be and the judge told him that he wanted to investigate the case further and would let him know the regular court day “what his fine would be. And he left and that’s the last time I saw Clyde Harvey.”

Attorneys who interested themselves in Harvey’s behalf contacted the judge prior to court day and were told that Harvey had pleaded guilty to possession of whiskey and that he had not decided how much the fine would be; that he wanted to investigate it to determine whether Harvey was a bootlegger or “a fellow who just drinks”.

The attorneys appeared on court day and told the judge they were there in behalf of Harvey. They were informed by the judge that Harvey “had already pleaded guilty to the charge and all I lacked was sentencing. And they wanted to know what the fine was going to be and I told them to contact me that night and I would tell them. So one of them called me from Jackson and wanted to know had I decided. I told them I had and told them what the fine would be then.”

Harvey had no knowledge that the judge had entered judgment or sentence upon his finding that he was a bootlegger and his plea of guilty to “possession of whiskey” until he was arrested more than 40 days after the entry of the sentence, which was too late for him to appeal.

Relators made their pleas in open court. They first pleaded not guilty and the case was set down for trial. After consulting with Attorney Upchurch and with the Assistant County Attorney, relators appeared before the court, pleaded guilty and received the punishment they had been told would be recommended by the Assistant County Attorney.

There was also evidence adduced at the hearing that prior to entering their pleas relators had represented to the Assistant County Attorney that they had employed Attorney Upchurch to represent them and that Mr. Upchurch said he had not been paid and that it would be all right for the Assistant County Attorney to talk to them.

Relevant also upon the question of the court’s failure to ritually inform relators that they were entitled to the advice and assistance of counsel prior to accepting their guilty pleas is the previous record and experience of relators as defendants in similar criminal cases. Relator V. L. Ruckman, Jr. had pleaded guilty before the same trial judge some two years before and had been charged in other cases in Colorado and Kansas. Relator Margie Ruckman had appeared before the same trial judge on four prior occasions and had served a 30 day jail term assessed against her in February 1964. She had also received a six months suspended term in Wichita, Kansas. All of the prosecutions mentioned, like the convictions attacked, involved bad checks.

The check or draft for the drawing of which relators were convicted on their pleas of guilty on March 16, 1965 was one of a number of bad checks in the hands of the County Attorney, the total amount of such checks being some $1500.

Harvey pleaded guilty to the “Possession of whiskey”. He was assessed a jail term as well as a fine in his absence, upon a “finding” by the judge through his investigation rather than upon evidence. His time for appeal had elapsed before he had any notice that a jail term had been assessed.

Relators pleaded guilty in open court with full knowledge that the jail term which was assessed would be recommended.

There is no showing in the record that the time for filing motion for new trial and for giving notice of appeal had expired when Attorney Upchurch accepted employment to represent relators.

It is clear from the facts set out in the opinion in Harvey v. State of Mississippi that Harvey was denied due process of law. It is equally clear that relators were not.

Relators’ application for writ of habeas corpus is denied.

That relators may not be denied the right to assert their claim of denial of a constitutional right in the Federal Court during the constitutional recess of this Court, no motion for rehearing herein will be entertained and mandate shall issue.


text:
    Babe WELCH, Appellant, v. The STATE of Texas, Appellee.
    No. 38420.
    Court of Criminal Appeals of Texas.
    June 26, 1965.
    Wm. Brode Mobley, Jr. (on appeal only), Corpus Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Appellant Babe Welch was convicted in the District Court of Hutchinson County in Cause No. 1888 of attempted burglary, with punishment enhanced under Article 63 P.C.

On November 10, 1955 sentence was pronounced and no appeal taken.

Appellant, having exhausted his remedy in State Court, petitioned for writ of habeas corpus filed in Civil Action No. 4199 in the United States District Court for the Eastern District of Texas, Tyler Division. After hearing the writ was granted.

Judgment was entered April 29, 1964 requiring the respondent, Dr. George J. Beto, Director, Texas Department of Corrections, to release appellant herein from his custody and set him free if within 20 days from the date of the judgment becoming final Appellant Welch had not been re-sentenced by the District Court of Hutchinson County, Texas, in Cause No. 1888 on the docket of said court, with his attorney of his own selection being present in court at the time he was re-sentenced. Respondent, Dr. Beto, appealed from said judgment to the 5th Circuit Court of Appeals. On September 2, 1964 motion by the Appellee Welch to dismiss the appeal was denied.

On February 11, 1965 Babe Welch was re-sentenced in Cause No. 1888 in the District Court of Hutchinson County, his counsel being present, and gave notice of appeal to this Court. On February 26, 1965 the appeal from the order entered in the United States District Court was dismissed on motion of the appellant as being moot.

It is appellant’s contention that the District Court of Hutchinson County was without jurisdiction to re-sentence appellant on February 11, 1965.

He agrees that if said District Court was without jurisdiction this Court is without jurisdiction to entertain the appeal from the sentence, and that the only court which could grant him relief is the Federal District Court at Tyler.

We find no error which would warrant reversal of the conviction, nor do we find that we are without jurisdiction to affirm it.

The judgment is affirmed.


author: MOORE, Justice.

text:
    Walter H. BLANTON et al., Appellants, v. Faris AUSTIN, Appellee.
    No. 143.
    Court of Civil Appeals of Texas. Tyler.
    June 10, 1965.

      Joe P. Mathews, Dallas, for appellants.
    Henry Stollenwerck, Sam S. Stollen-werck (on appeal only), Dalton, Moore, Forde & Joiner, Dallas, for appellee.
   MOORE, Justice.

This is a suit seeking a partition of a stock certificate representing 50,000 shares of stock in Nabob Investments, Inc. The cause was submitted to the trial court upon an agreed statement of facts. A brief history of the facts leading to the controversy will be necessary. Appellee, Faris Austin, was formerly the wife of Ernest M. Austin, Jr., they having been married on the 30th day of August, 1956, and divorced on the 22nd day of March, 1962. During the time of their marriage, on October 28, 1960, Ernest M. Austin acquired Stock Certificate No. 1 of Nabob Investments, Inc., which was community property. The divorce decree did not divide any of the community property nor make any reference thereto. It is agreed, however, that prior to the entry of a final judgment of divorce, Faris Austin took and kept physical possession of various items of personal property of the community and that Ernest M. Austin, Jr. likewise took and kept physical possession of various items of personal property consisting of community property, including Stock Certificate No. 1 of Nabob Investments, Inc., which certificate showed on its face that Ernest M. Austin, Jr. was the owner thereof. Appellant, Walter H. Blanton, owned all of the remaining 50,000 shares in the company. It is agreed that Walter H. Blanton had actual and constructive knowledge of the fact that the Austins were married at the time the stock certificate was issued to Ernest M. Austin, Jr. Between March 11th and March 18th, 1964, Blanton purchased three judgments from the judgment creditors of Ernest M. Austin, Jr. totaling $3,050.67 for a cash consideration of $1,615.14, and on March 20th, Blanton caused the Sheriff of Dallas County to levy execution of the stock certificate; execution sale was held on March 31st at which Blanton purchased the certificate for the total amount of the judgments. The Sheriff delivered Blanton a Bill of Sale on April 7, 1964, and on the same date the stock was transferred on the books of the corporation to Blanton. Ernest M. Austin, Jr., as plaintiff, then filed the present suit against Blanton for the purpose of setting aside the Sheriff’s sale. Faris Austin first learned of the suit on July 21, 1964, and on the following day, July 22nd, shortly before noon, she filed her plea of intervention, alleging that the stock was the cpmmunity property of she and her former husband, and since the same had never been divided, she was the owner of an undivided one-half interest therein, and prayed that the purported sale and transfer of the certificate be set aside and that she be awarded title and possession to one-half thereof. It is agreed that neither Blanton nor any of his attorneys had any notice of the filing of the plea of intervention until July 23rd. It is further agreed that shortly after the plea of intervention had been filed and at about 2:45 p.m. on the afternoon of July 22nd, a compromised settlement agreement between Ernest M. Austin, Blanton and Nabob Investments, Inc. had been signed and that Blanton had delivered to Austin a cashier’s check in the amount of $2,500.00 in settlement. The settlement agreement provided in part that Austin agreed that Blanton was the sole owner, both legal and equitable, of Certificate No. 1 of Nabob Investments, Inc. At the same time Austin also placed his endorsement on the reverse side of the stock certificate and transferred the certificate and all shares represented thereby to Blanton.

Since all matters in controversy between Austin and Blanton had not been finally settled, the court severed that portion of the suit and the cause proceeded to trial only on the appellee’s plea of intervention. After a hearing before the court, without the aid of a jury, the trial court rendered judgment decreeing that appellee, Faris Austin, recover one-half interest in Stock Certificate No. 1 of Nabob Investments, Inc., and that her interest therein be established in one-half of Stock Certificate No. 1 and that she be issued a stock certificate from Nabob Investments, Inc. correctly reflecting the 25,000 shares necessary to constitute her one-half of Stock Certificate No. 1 and that same be placed upon the stock records of Nabob Investments, Inc.

Appellants Blanton and Nabob Investments, Inc. have perfected this appeal and contend by their first point of error that the judgment of the trial court should be reversed because the ownership, if any, which appellee had in the stock certificate was a mere equitable interest and appellant Blanton being a bona fide purchaser for value of the legal title in good faith without notice, her equitable interest passed to Blanton.

The record is before us without findings of fact or conclusions of law. In the absence of such, it is well settled that in a case tried without a jury, we must test the validity of the judgment upon the assumption that the trial court found every disputed fact in such a way as to support the judgment he rendered. Construction & General Labor Union, Local No. 688 v. Stephenson, 148 Tex. 434, 225 S.W.2d 958; Wilson v. Clarke Floor Machine Company, 380 S.W.2d 768, (Tex.Civ.App.).

The parties are in agreement on the proposition that where a husband and wife, owning community property, are divorced without the court in its decree having made any division of such property in the divorce decree, they become tenants in common in the property or joint owners thereof. Ex parte Williams, 160 Tex. 314, 330 S.W.2d 605; Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102; Kirkwood v. Domnan, 80 Tex. 645, 16 S.W. 428.

As in the case of property of other kinds, the shareholder whose name appears on the stock certificate as the owner of the shares may hold the legal title as trustee, and the law recognizes the general principle that the legal title to shares may be in one person; that is, the holder of the stock certificate, whereas equitable ownership of all the shares, or a portion thereof, may be in another person. The whole beneficial interest in the shares may belong to others, or others may be beneficially interested with the registered owner or certificate holder, as where partnership shares are held in the name of one partner alone, or where one spouse holds shares for the other spouse as well as for herself. 14 T.J.S., Par. 154, p. 276, 277; Western Nat. Bank of Hereford v. Walker, 206 S.W. 544, (Tex.Civ.App.); Shear Co. v. Wilson, 294 S.W. 843, (Tex.Com.App.).

The delivery of a certificate to transfer title in accordance with the provision of the Uniform Stock Transfer Act, Art. 1358-1 et seq., is effective despite the lack of authority, provided the certificate is transferred to a purchaser for value, in good faith, without notice of any facts making the transfer wrongful. The unexpressed converse is that a taker in bad faith, or without value, or with notice of an outstanding equitable title, is not protected. 14 T.J.S., Par. 188, p. 309, 310.

The transfer of the certificate representing the 50,000 shares of stock from Austin to Blanton for valuable consideration would be effective to defeat the claim of Mrs. Austin if Blanton was an innocent purchaser, without actual or constructive notice of her equitable title.

It was stipulated and agreed that appellant Blanton had actual or constructive knowledge of the fact that the Austins were married at the time the stock certificate was issued and same constituted a part of their community property. Appellant further admitted that he received a letter on September 6, 1963, from Mrs. Austin’s attorney pursuant to a previous telephone conversation, requesting that in the event the property or any of the assets of the corporation in which Ernest M. Austin and Blanton were jointly interested be liquidated that he be notified on behalf of Mrs. Faris Austin so that the interest of Mrs. Austin and the children might be protected. Knowledge of such facts would, in our opinion, be sufficient to suggest to appellant that Mrs. Austin, by claiming some interest in the assets of the corporation, owned the stock representing such interest, or at least were such as to require him to investigate. His failure to make inquiry to clear up such suspicious circumstances tends to impeach the good faith of his purchase. At least such evidence is thought to be sufficient to sustain the trial court’s presumed finding that a reasonably prudent person could have acquired actual knowledge of the true facts by the exercise of due diligence. Freeman v. Pierce, 250 S.W. 778, (Tex.Civ.App.); Western Nat. Bank of Hereford v. Walker, supra; 14 T.J.S., Par. 189, p. 310.

Appellant not having been an innocent purchaser without notice of the outstanding equitable interest of Mrs. Austin, the rule applicable to such state of facts is that when one dealing with the apparent owner has notice of the rights of the true owner, he acquires no better title to the stock than the apparent owner can transfer. First Nat. Bank of El Paso v. Kerr, 225 S.W. 1106, (Tex.Civ.App.), citing cases.

Appellants by their second point contend that the conduct of appellee in allowing Mr. Austin to retain possession of the stock certificate, and by failing to pursue her legal remedies to gain possession of the stock certificate or request the company to make a transfer of her shares upon the books of the company was such conduct as to estop her from asserting her ownership therein.

The general rule is that if an owner of stock holds out another or allows him to appear as having full power of disposition thereof, an innocent transferee from such transferor is entitled to be protected as a bona fide holder, although the trans-feror exceeds his authority in making the sale or transfer. The basis of estoppel is deception and there can be no estoppel where the one who pleads it is not, in fact, deceived. The doctrine would not thus apply in favor of a purchaser who acted in bad faith, as where he obtained the stock with knowledge of circumstances sufficient to put him on inquiry as to the true facts. First Nat. Bank of Huntington Beach v. Van Horn, 2 S.W.2d 333, (Tex.Civ.App.); Shear Co. v. Wilson, supra.

By rendering judgment for the ap-pellee, the trial court found in effect that appellant Blanton had actual or constructive knowledge of appellee’s interest in the stock. Appellant was not deceived and therefore the defense of estoppel was not available to him. The second point of error is therefore overruled.

By the third and final point of error, appellants contend that Mrs. Austin never became the owner of any interest in the stock as a co-tenant because she and her husband prior to the divorce voluntarily partitioned the community property and he took the stock as a part of his share.

The only evidence on the question of partition is to be found in the stipulation wherein the parties agree that prior to the divorce they each took and kept some items of personal property and that Mr. Austin kept the stock certificate. There is no evidence that either of the parties ever voluntarily agreed or consented to this type of a division. There is no evidence that either of them intended to make a division of their property, nor is there any evidence that appellee ever knew of the existence of the stock certificate prior to the divorce. As we view the matter, there was no evidence of probative force raising the issue of voluntary partition and, therefore, the failure of the trial court to so find was not error.

The judgment of the trial court is affirmed.

      . Now Vernon’s Ann.Civ.St. art. 1302-6.01 et seq.


author: WILSON, Justice.

text:
    Eddie CUNNINGHAM et al., Appellants, v. R. W. McPHERSON & ASSOCIATES, INC., Appellee.
    No. 4327.
    Court of Civil Appeals of Texas. Waco.
    June 17, 1965.
    Rehearing Denied July 8, 1965.

      Heath, Rosenthal & Atlas, Houston, for appellants.
    Kucera, Lay & Lightfoot, Houston, for appellee.
   WILSON, Justice.

Appellee R. W. McPherson & Associates, Inc., sued appellants, Cunningham Brothers, alleging breach of an express contract to pay for grain handling equipment and costs of installation furnished by McPherson. It was alleged that the “agreed price for such machinery and equipment was the just, fair and reasonable price thereof, or reasonable cash value thereof, or the published catalog price thereof, or in case of the steel storage bins the dealer’s price thereof.” Alternatively McPherson sued on an implied contract to pay “the fair cash value” of the equipment labor and services rendered.

The jury found McPherson furnished the equipment at Cunninghams’ request and with the latter’s knowledge. Special Issue No. 6 inquired, “What sum of money do you find from a preponderance of the evidence to have been the reasonable value to Cunningham Brothers of the material and placement done by R. W. McPherson & Associates, Inc.” ? The jury answered $32,-500. Negative findings were made, in effect, as to existence of an express contract.

Appellants contend the recovery on a quantum meruit theory was waived under Rule 279, Texas Rules of Civil Procedure because no issue necessarily referable to this ground of recovery and necessary to sustain it was submitted. We have doubt that it can be said this contention is assigned in the motion for new trial. Nevertheless, the furnishing of goods and services at defendants’ instance which are knowingly accepted by him are elements of, and are necessarily referable to quantum meruit as a ground of recovery. Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031, 1034. It is undisputed that equipment and installation was furnished and accepted.

Complaint is made of the submission of Special Issue No. 6 over appellants’ objection that it submitted value to McPherson rather than “reasonable value” of the material and placement cost. We question also whether this point was assigned properly in the motion for new trial. In any event, if the point be considered, and if there is error in submission of the issue, it is favorable to appellants. See 5 Willis-ton, Contracts (rev. ed.) Sec. 1482. The asserted error is harmless.

Catalogue sheets of the dealer from whom appellee procured most of the equipment in question were admitted in evidence over appellants’ objections that they were self-serving, hearsay and not the best evidence. There is evidence that these sheets were used by McPherson in the original pricing to the Cunninghams and upon which the alleged express contract was based. Appellee had pleaded the express contract (found not to exist) was based on the published catalogue, or dealer’s price of the equipment. The exhibits were admissible as against the objections as constituting evidence of the agreement of the parties to establish a part of the express contract alleged. Goode v. Ramey, Tex.Civ.App., 48 S.W.2d 719, writ ref.; 17A C.J.S. Contracts § 593. Invoices based on and derived from these catalogues were also admitted over objections which were tenable, but their admission was harmless since the information was made available and admitted in admissible form.

Appellants’ points 6-10 and 13 were not preserved for review by objection or by assignment in the motion for new trial. All appellants’ points have been considered and are overruled.

Appellee’s cross point complains of that portion of the judgment by which the trial court disregarded findings of the jury that it was necessary for McPherson to employ an attorney and a reasonable attorney’s fee was $5000.00. There was no notice or motion to disregard the findings as provided by Rule 301, Texas Rules of Civil Procedure. The basis upon which these findings were disregarded is not disclosed by the record. Absent a motion, the trial court is authorized to set aside a finding and grant a new trial, or to render judgment in conformity with the verdict, but is without authority to disregard a finding. The latter power is restricted to that given by the Rule. It may not be done on the court’s own motion. Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, 972; Edmiston v. Texas & N. O. R. Co., 135 Tex. 67, 138 S.W.2d 526, 528.

We have no jurisdiction to pass upon the cross point, however, because the complaint was not in any manner called to the attention of the trial court. The trial court “must be apprised of any complaint or objection the successful party has to the judgment.” West Texas Utilities Co. v. Irvin, 161 Tex. 5, 336 S.W.2d 609, 610. Affirmed.


author: PHILLIPS, Justice.

text:
    Ross HICKMAN, Appellant, v. Beulah FINLAY, Appellee.
    No. 11310.
    Court of Civil Appeals of Texas. Austin.
    June 2, 1965.
    Rehearing Denied June 23, 1965.
    Long, Aronson & Coleman, Tom Long, Austin, for appellant.
    Byrd, Davis & Eisenberg, Tom H. Davis, Marion S. Roberts, Jr., Austin, for appellee.
   PHILLIPS, Justice.

Appellee, Beulah Finlay, brought suit to recover damages for personal injuries which she sustained when she was struck by the door of an automobile driven by her cousin, appellant Ross Hickman.

Appellant and appellee had been attending a family reunion at the home of a relative. At the conclusion thereof, appellee and appellant’s mother decided to leave with appellant and have him drive them home. Appellant went by himself to his car, started it and backed it approximately two car lengths so that the right front door of the car was in front of a driveway in which ap-pellee and his mothér were standing. Upon reaching this position, appellant brought his car to a complete stop in the street, the car lights on, the motor running, and the automatic transmission in reverse gear. Appellant maintains that he fully applied the emergency foot brake, however the evidence is not conclusive on this point.

Appellant then waited from five to fifteen minutes while the family gathered in the driveway, talking. During this period, he noticed some articles on the back seat which he felt should be rearranged to make more room on the seat. In order to rearrange the articles, appellant turned around facing the back seat with his right knee upon the front seat and his left foot and leg extended straight. While he was attempting to rearrange the articles, his left foot apparently hit the accelerator causing the car to lurch to the rear from three to five feet. At this time the right door of the automobile, which was four feet, three inches long, was open and appellee and appellant’s mother were within the area of the door. The open door knocked both women down and pinned appellee to the ground. A relative reached down, grabbed the bottom of the car door and lifted it up taking the pressure of the car off appellee. Appellee was taken immediately to the hospital and this suit grew out of her injuries.

At the time the car lurched backward, appellee had not touched the door of the car, had not begun to bend over to get into the car, had not lifted either leg or made any move to get into the car. Neither had appellant’s mother made any movements toward the car before she was struck.

Judgment in the trial court was for ap-pellee and we affirm this judgment.

Appellant is before this Court on three points of error. The first two points are the error of the trial court’s judgment in that there is no evidence of appellant’s negligence and the judgment is against the great weight and preponderance of the evidence.

We overrule these points.

The testimony of appellant himself supplies ample evidence that he was negligent in more than one respect in failing to stop his motor while he rearranged the articles in the back seat, in failing to remove the car from gear prior to rearranging the articles in the back seat, in allowing his foot to come in contact with the accelerator pedal which caused the car to lurch to the rear, and in failing to keep a lookout to determine the whereabouts of his prospective passengers. There is direct evidence unaided by presumptions or inferences that the motor of the vehicle was left running, that the vehicle was left in gear and that appellant’s foot struck the accelerator causing the movement complained of.

Appellant’s third point of error is that of the trial court in holding that appellant’s negligence was not a part of and incident to his gratuitous undertaking to transport appellee, so that appellant would have the benefit and protection of the Texas Guest Statute, Article 6701b, Vernon’s Ann. Civ.St.

We overrule this point.

Section 1, of Art. 6701b is as follows:

“No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.”

In Gregory v. Otts, Tex.Civ.App., 329 S.W.2d 904, writ refused n.r.e., the court stated that in such a case as we have here the first question to be determined is whether or not we have a guest case; that the guest statute, cited above, is in derogation of the common law and although the statute will be construed liberally to effect the purpose sought to be accomplished, it will be strictly construed in the determination of whether or not the passenger was a guest.

In Paul v. Floyd, Tex.Civ.App., 337 S.W.2d 632, error refused, the court refused to apply the guest statute to a plaintiff who undoubtedly had been the guest of the defendant and had been riding in defendant’s car. However, this plaintiff had alighted from defendant’s car and was proceeding around the front of defendant’s car to her own car that was parked nearby. Defendant’s foot slipped off the brake and his car lunged forward and struck the plaintiff. The court apparently held that the transportation of this guest had ended. By analogy we hold that under the facts before us, appellee’s transportation as a guest had not yet begun.

Appellant has cited cases from other States with statutes similar to ours where the statute has been held applicable to persons injured either entering a vehicle or alighting from same or who were injured while momentarily leaving a vehicle in which they had undoubtedly been guests. These cases present fact situations different from the case at bar in that the injured party was in actual contact with the vehicle in which they either were to become or had been guests; or, their momentary departure from the vehicle in which they were guests and their subsequent injury was a mere interruption in a journey that had not as yet ended.

We affirm the judgment of the trial court.

Affirmed.

      . Rainsbarger v. Shepherd, 254 Iowa 486, 118 N.W.2d 41 (1962), Kaplan v. Taub, Fla.App., 104 So.2d 882, Castle v. McKeown, 327 Mich. 518, 42 N.W.2d 733.

      . Marsh v. Hogeboom, 167 Kan. 349, 205 P.2d 1190.

      . Hobbs v. Irwin, 60 N.M. 479, 292 P.2d 779.


author: WILLIAMS, Justice.

text:
    S. Mort ZIMMERMAN, Appellant, v. Roland S. BOND, Appellee.
    No. 16579.
    Court of Civil Appeals of Texas. Dallas.
    June 18, 1965.

      Thompson, Knight, Wright & Simmons, Timothy E. Kelley, Norman R. Rogers, Goldberg & Alexander, Dallas, for appellant.
    Roach & Robertson, John L. Roach, Dallas, for appellee.
   WILLIAMS, Justice.

Appeal from a summary judgment in a suit on a promissory note. Appellee Roland S. Bond brought this suit alleging that on or about August 28, 1962, Blue Sewanee Development Corporation, as maker, and Albín P. Scott, William C. Huís and S. Mort Zimmerman, as endorsers, executed and delivered to Bond, as payee, a certain promissory note in the principal sum of $100,000. The suit named appellant S. Mort Zimmerman as the only defendant and no allegations were made excusing failure to join the maker of the note as a party defendant. Appellee alleged nonpayment of the note and demand upon all of said endorsers prior to filing suit. Appellant answered with a general denial following which appellee filed his motion for summary judgment. Thereafter appellant filed an amended answer and replied to the motion for summary judgment, supporting same with affidavits. In his amended answer, as well as plea in abatement, appellant contended that the maker of the note was a necessary party and that no action could be maintained against him, as endorser, in the absence of such party or proper pleading excusing the failure to sue the party primarily liable. The trial court overruled the plea in abatement and rendered summary judgment in favor of appellee.

Appellant inveighs against the judgment in three points of error the first two contending that the court erred in rendering judgment against him in the absence of suit against the maker of the note, or proper excuse for failure to do so, and the third point being that appellant’s affidavits in opposition to the summary judgment created a genuine issue of material fact as to whether there was an accord and satisfaction of appellant’s liability as an endorser on the note, and therefore summary judgment was improper. We sustain both of appellant’s contentions and reverse the judgment.

Art. 1986, Vernon’s Ann.Civ.St. provides, inter alia, that no judgment shall be rendered against a party not primarily liable on a bill of exchange or other contract, unless judgment be also rendered against the principal obligor. Art. 1987, V.A.C.S. provides that one secondarily liable, such as an endorser, may be sued without suing the maker, when such principal obligor resides beyond the limits of the state, or where he cannot be reached by the ordinary processes of law, or when his residence is unknown and cannot be ascertained by use of reasonable diligence, or when he is dead, or actually or notoriously insolvent. Rule 31, Texas Rules of Civil Procedure provides : “No surety shall be sued unless his principal is joined with him, or unless a judgment has previously been rendered against his principal, except in cases otherwise provided for in the law and these rules.” Art. 6252, V.A.C.S. expressly extends the remedy provided for sureties to endorsers, guarantors, and others secondarily liable.

No suit was brought against the maker, Blue Sewanee Development Corporation, nor did appellee allege any of the grounds provided in Art. 1987, supra, which would excuse the filing of such suit against the party primarily liable. Either the bringing of the action, or alleging facts excusing failure to do so, is a condition precedent to an action against the endorser, secondarily liable.

The provisions of Art. 1987, V.A.C.S. were discussed by the court in Republic Supply Co. v. Barrow, Tex.Civ.App., 41 S.W.2d 475, wherein the court said:

“As a condition precedent to plaintiff’s right to maintain the suit against the defendant, the burden was upon it to both plead and prove the facts already recited, which were alleged as a reason why the maker of the note was not made a party defendant to the suit. Whitaker v. Brooks (Tex.Civ.App.) 137 S.W. 921. And in the absence of any competent proof to sustain such allegations, the trial court erred in failing to abate the suit.”

Appellee concedes the statutory right of appellant but seeks to avoid the effect of same by contending that appellant waived such rights. Appellee, in his brief, directs attention to the fact that the note sued upon contains the following provision: “The makers, sureties, guarantors and endorsers of this note severally waive demand, presentment for payment, notice of dishonor, protest and notice of protest, diligence in collecting or in bringing suit against any party hereto * *

We do not think that appellant waived his rights under the statutes and rule above quoted. In the first place, when relied on, waiver must be specially pleaded. 60 Tex.Jur.2d § 12, p. 197; Middle States Petroleum Corp. v. Messenger, Tex.Civ.App., 368 S.W.2d 645; Young v. De La Garza, Tex.Civ.App., 368 S.W.2d 667. Appellee did not plead waiver as defense.

Aside from the question of lack of pleading, we hold, as a matter of law, that the waiver contained in the note is not broad enough to preclude appellant’s assertion of his right under the articles of the statutes and rules heretofore set forth. An examination of the waiver reveals that the language is explicit in its meaning that the parties waive “diligence * * * in bringing suit against any party hereto * * (Emphasis supplied). So what is waived is “diligence” and not the actual institution of the suit against the party primarily obligated. There is a distinct difference between diligence in bringing a suit and the actual institution of a suit. In each case cited by appellee in support of his contention of waiver it is shown that suit was actually filed against the maker or excuses advanced for failure to do so. We have found no Texas case discussing the exact question but we believe that a proper interpretation of the language of the waiver provisions yields to no other conclusion than that it was the intention of the parties to waive only diligence in bringing the suit and not the actual institution thereof.

Appellee advances the argument that when the maker failed to pay the note on its due date that no further action was necessary to fix appellant’s liability to ap-pellee because the endorsers’ secondary liability was then and there transformed to primary liability. This is not the law in Texas. As said by the Commission of Appeals in State Nat’l Bank of Ft. Worth v. Vickery, 206 S.W. 841, opinion adopted by the Supreme Court:

“The waiving of presentment for payment, protest, and notice does not increase the original liability of the indorser, but merely renders unnecessary the performance of these acts to fix such liability. The waiver is obviously for the benefit and to the advantage, of the payee or holder.”

The trial court erred in failing to sustain appellant’s plea in abatement.

By his third point appellant contends that the affidavits attached to his answer to appellee’s motion for summary judgment create an issue of fact which should have been submitted to a jury. In his affidavit appellant stated that he was the endorser on the note in question but that on July IS, 1963 he assigned and conveyed to Roland S. Bond his five per cent undivided interest in Bond’s Ltd. Partnership No. 8, and that the consideration for such assignment was that S. Mort Zimmerman would be discharged in full from any and all obligations or liabilities as an endorser of the note in question. He further said that Roland S. Bond, Jr., as agent for Roland S. Bond, did agree and accept the assignment for the underlying consideration and thereupon did release Zimmerman from any and all obligation as an endorser on the note, by virtue of which said facts there had been a complete accord and satisfaction of the liability of Zimmerman to Bond on the note. Ap-pellee does not contest the validity of appellant’s position other than to seek to avoid the effect of appellant’s affidavit by saying that the written assignment referred to by appellant in his affidavit was not attached thereto in accordance with Rule 166-A (e), T.R.C.P.

While it is true that Section (e) of Rule 166-A of Texas Rules of Civil Procedure provides that “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith,” it is equally true that in order to take advantage of such omission an objection must be made in the trial court. In Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, the Supreme Court held that appellant had waived his right to complain of appellee’s failure to attach or serve sworn or certified copies of documents referred to in his affidavit in opposition to summary judgment by his failure to object to such omission at the trial court level. To the same effect see Lotspeich v. Chance Vought Aircraft, Tex.Civ.App., 369 S.W.2d 705; West v. Texas Department of Public Safety, Tex.Civ.App., 380 S.W.2d 786; Employers Mutual Casualty Co. v. Lee, Tex.Civ.App., 352 S.W.2d 155; and Farmers & Merchants Compress & Warehouse Co. v. City of Dallas, Tex.Civ.App., 335 S.W.2d 854. In the light of these authorities we hold that appellee has waived his right to complain of the failure on the part of appellant to attach copies of the instrument to which he refers in his affidavit.

Appellant’s affidavit is amply sufficient to create an issue of fact as to an accord and satisfaction between the parties. Appellee having failed to sustain his burden of establishing the absence of issuable facts as required by Rule 166-A, T.R.C.P., it necessarily follows that the trial court erred in sustaining his motion for summary judgment.

The judgment of the trial court is reversed and remanded.

Reversed and remanded.


author: SELLERS, Justice.

text:
    Horton B. DOBSON et ux., Appellants, v. DON JANUARY ROOFING CO., Inc., Appellee.
    No. 132.
    Court of Civil Appeals of Texas. Tyler.
    June 3, 1965.
    Rehearing Denied July 8, 1965.
    Larry L. Gollaher, Thompson, Coe, Cousins & Irons, Dallas, for appellants.
    Royal H. Brin, Jr., Strasburger, Price, Kelton, Miller & Martin, Dallas, for ap-pellees.
   SELLERS, Justice.

Horton B. Dobson and wife brought this suit to recover $25,000.00 damages as a result of fire damage to their home against Don January Roofing Co., Inc. The plaintiffs’ petition alleges that they contracted with Don January Roofing Co., Inc., to replace the roof on their home and further alleges the work was being done by one Harry J. Sellars, the defendant’s employee, on August 20, 1962; that said employee, while working on the roof and while acting within the course and scope of his employment by the defendant, caused and started a fire which practically destroyed the plaintiffs’ residence to their damage as herein set out:

“Harry Sellers, Defendant’s employee, while acting within the course and scope of his employment, was negligent in some or all of the following respects, each of which was a proximate cause of the Plaintiffs’ damage, to wit:
(1) In smoking while repairing or replacing a wood shingle roof;
(2) In allowing hot cigarette ashes to fall upon the Plaintiffs’ roof;
(3) In allowing hot cigarette ashes to fall into the Plaintiffs’ attic;
(4) In replacing new shingles over the area where hot cigarette ashes had been previously dropped;
(5) In failing to maintain an adequate watch and lookout of the premises for a reasonable time after repairing the roof while smoking.
“As a proximate cause of the above negligence, Plaintiffs’ residence caught fire and the roof attic and supporting members were damaged and destroyed, the complete interior of the residence was damaged, carpeting was destroyed, furniture, clothing and personal property was damaged, shrubbery was burned, and the Plaintiffs’ home and residence was unoccupiable for three months thereafter, all to the Plaintiffs’ damage in the amount of $25,000.00.”

The defendant answers by general denial.

The defendant filed a motion for summary judgment and attached the following affidavit of Harry J. Sellars:

“On August 20, 1962, I was employed by January Roofing Co. and working alone on a roofing job at 4833 Irvin Simmons in Dallas, Texas. I was not using any flammable materials which could cause a fire. During that day I smoked a few cigarettes, but I did not drop any on the roof or into the attic or house, and I did not start a fire. Furthermore, I did not drop on the roof any coals, hot or live ashes.
“During the time I worked on the job at the above address, I was on the roof at all times and never went into the house or attic.
“As it was too hot to work on the roof all day, I quit work for the day on the above date at about 1:00 P.M. during the whole time I was there, I I neither saw nor smelled any smoke.”

The evidence of Mrs. Dobson, who was at home when the fire broke out, says that the fire occurred about 2 o’clock p. m., and that she heard hammering on the roof about 15 minutes before her attention was called to the fire; that all the electric appliances in the house were working properly and that she smelled no smoke inside the house before her attention was called to the fire which was on the roof about where Sellars was repairing the same.

The court, after several hearings on the motion for summary judgment, granted the same, to which the plaintiffs duly excepted and gave notice of appeal, and the case is properly before this court.

The appellants assign four errors of the trial court, as follows:

“Point One
“The Trial Court erred in rendering summary judgment for the Defendant solely on the basis of witness Sellars’ affidavit, since that affidavit was made by an interested witness and was inconclusive.
“Point Two
“The Trial Court erred in rendering summary judgment for the Defendant because the summary judgment evidence demonstrated that there was a genuine issue as to the cfedibility of witness Sellars’ affidavit testimony.
“Point Three
“The Trial Court erred in rendering summary judgment for the Defendant because the Plaintiffs proved by competent summary judgment evidence that they had a prima facie circumstantial case against the Defendant.
“Point Four
“The Trial Court erred in rendering summary judgment for the Defendant because Plaintiffs presented a good faith circumstantial negligence case which was not patently unmeritorious.”

We recognize the general rule complained of by appellants in their first two assignments that the evidence of an interested witness does no more than raise an issue of fact to he determined by the jury; however, the rule is not without exceptions, and in our opinion the exceptions would have application in this case. We will not further discuss this question due to our disposition of appellants’ other two assignments.

The other two assignments raise the question that the circumstantial evidence presents an issue of fact for the jury’s determination. In determining this question, this court has examined the appellants’ pleadings to determine if cause of action has been alleged against the appel-lee. The sole grounds of recovery against appellee is that of negligence of its employee, Sellars, in smoking while discharging his duties for which he was employed. His duties were to cover the roof of appellants’ house for his employer.

In the recent case of Mitchell v. Ellis, Tex.Civ.App., 374 S.W.2d 333, writ of error refused by the Supreme Court, we find this rule laid down:

“For an act to be in the course and scope of a servant’s employment it is necessary that, (1) it be done within the scope of the general authority of the servant, (2) in furtherance of the master’s business, and (3) for the accomplishment of the object for which the servant is employed.”

When this rule is applied to appellants’ petition, we are driven to the conclusion that it wholly failed to allege that the negligence complained of by Sellars was committed while in the course and scope of his employment. The above case contains the further language:

“ ‘When a servant turns aside, for however short a time, (emphasis added) from the prosecution of his master’s work, and engages in the doing of an act not in furtherance of the master’s business, but to accomplish some purpose of his own, the relation of master and servant is temporarily suspended, and the master is not liable for the servant’s acts during the period of that suspension. A servant who turns aside from the master’s work to engage in an affair of his own ceases to act for the master and responsibility for what the servant then does in pursuing his own business or pleasure rests on himself alone.’ 38 Tex.Jur.2d, pp. 512, 513, § 252 and authorities cited. Southwest Dairy Products Co. v. De Frates, 132 Tex. 556, 125 S.W.2d 282, 122 A.L.R. 854; Williams v. Roney, Tex.Civ.App., 275 S.W.2d 537, writ ref., n. r. e.”

The case of Feeney v. Standard Oil Co., 58 Cal.App. 587, 209 P. 85, was a cigarette case, and we find this language:

“Under the rule thus declared it seems clear that the defendant is not responsible for McDonald’s negligent act in dropping the lighted match into the gasoline. The lighting of the cigarette was no part of the transaction of the defendant’s business. It was an independent act for McDonald’s personal enjoyment. It occurred during the time of his transaction of the defendant’s business, but was no part thereof and was not in the course of his employment.”

We are cited by appellee to this rule in Restatement of Agency 2d, Sec. 235:

“An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed.”

One of the illustrations applying the above rule is as follows:

“A, while driving as chauffeur for P, negligently throws his lighted cigarette from the window of the car into a passing load of hay, not intending to ignite it, but careless as to where the cigarette falls. P is not liable for this act.”

In view of the foregoing authorities, we are of the opinion that the petition of appellants wholly fails to state a cause of action against the appellee, and their last two assignments of error are overruled.

The judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    Joe FERGUSON et al., Appellants, v. Matilda M. NEWTON, Appellee.
    No. 11316.
    Court of Civil Appeals of Texas. Austin.
    June 16, 1965.
    Rehearing Denied July 7, 1965.
    Dave O. Fretz, John F. Buchanan, Houston, for appellants.
    Charles C. Smith, Jr., Cameron, for appellee.
   ARCHER, Chief Justice.

This suit originated as a partition suit filed by appellants against W. R. Newton in the District Court of Milam County, seeking division in kind of 470 acres of land there situated.

The suit was filed as against W. R. Newton on the 16th day of October, 1963. On March 31, 1964, appellants amended their petition to include Matilda M. Newton as a defendant, and she was duly served with citation on April 1, 1964. Subsequently Mrs. Newton filed an answer incorporating a denial of the ownership of any interest in the property described in appellants’ amended petition, with the reservation that if any of the property described in such petition was embraced in the field notes set forth in her Cross-Action such embraced portion would not be subject to partition because neither appellants nor W. R. Newton had an interest therein.

By her Cross-Action appellee asserted title to 24.03 acres of land under the Ten-year Statute of Limitation.

Pursuant to setting by the court, at appellants’ instance and request, the case was called for trial on September 14, 1964. Appellants in open court insisted that the matter of the Cross-Action should be disposed of before determination of the partition suit, and agreed in open court to waive citation upon appellee’s Cross-Action, and agreed, not only with counsel but with the court, that the court might proceed to hear such Cross-Action. Appellants, as well as their counsel, were present in open court during these proceedings.

The defendant, W. R. Newton, was present in person and by counsel during these proceedings.

After the appellants, through their counsel, had entered their appearance, by dictating an answer, consisting of a general denial and a plea of not guilty, the case was presented.

The case was tried before the court without a jury and judgment was rendered for the appellee.

The points of error upon which this appeal is based are directed to the error of the court in the findings of fact and conclusions of law because such were not substantiated by the evidence, and the casual grazing and sowing of grass does not constitute grounds of adverse possession against record title holder, possession was not fair and open, the declarations of an agent are not competent to establish the fact or scope of agents’ authority, the placing of the land in the Soil Bank Erosion Program does not constitute adverse possession and the burden of proof rests upon the claimant to establish that the record owner had notice of adverse claim to the land.

Appellants assert that since no improvements, except fences, were erected on the surface, crossplaintiff relied on casual grazing and sowing of grass and such usage did not constitute adverse possession against the record title holder.

Article 5510, Vernon’s Ann.Civ.St, sets out the conditions and requirements of the ten limitations for the recovery of land, and Article 5515 requires adverse possession to be actual, visible and hostile to the claims of another, and the usage thereof.

The testimony was given by Dr. Newton, a son of appellee, who stated that his mother was 80 years of age; that his father Dr. W. R. Newton, Sr., purchased the land consisting of about 1200 acres in the early thirties. The witness testified that he was familiar with the land; that his father died in 1938 intestate, and left as his heirs his widow and a number of children all of whom conveyed their interests to their mother, Mrs. Matilda M. Newton; that he was familiar with the fences and had replaced or improved the fences over the years; that the last fencing was done in the early fifties, and was sufficient of turning cattle, etc., and at all times looking after his mother’s interest; that there were soil improvements, some grain planted, and some truck farming; that the fences were crooked in places; that he had never heard of anyone claiming any part or interest in the land.

On cross-examination Dr. Newton testified that he acted as an agent for his mother in putting up fences, and testified to meeting Joe Ferguson, Shorty Ferguson and Lloyd Ferguson in 1953, and of a conversation as to the fence lines on the north part of the land, and located some old posts and barbwire, and that Joe Ferguson said: “put the fence right back where it is” and that the fence was put up where it had been.

The witness described the 24 acre tract as being rolling and crossed by ditches; that Joe and Lloyd made a statement that this was the old line of their land.

Chalmers Terry testified that he was employed by the Soil Conservation Service and was generally familiar with the Dr. Newton land and located the 24 acre tract as being on the line of a 113-acre tract, described in deed from C. M. Beard et ux to W. R. Newton dated March 25, 1930, and recited the field notes thereof, which are set out in the deed and identified the exhibits and helped to survey the Newton land, and saw the fences consisting of three o' four strands of barbwire.

Odie Sapp testified that he was familiar with the land in general and lived on the land for a few years from 1951 until 1956 in a house situated next to the highway, farming, working on fences and with cattle, and fixed a fence, replacing an old fence all rusted down and practically no fence at all along close to the Old Lake. The witness stated that he farmed some on the Newton estate and planted some grain on the area south of the lake, and several kinds of grasses; the land was crossed by gullies and that he never heard of anyone claiming any interest in the Newton estate.

On cross-examination the witness said that Mrs. Newton never came out to the place and told them anything, but that Dr. Newton told them what to do.

Lloyd Ferguson testified that he was well acquainted with the 470 acre tract, looked after it and paid the taxes since his father died in 1943, and leased the land for pasture, deducted the taxes from the lease money and divided the rest with the heirs and Dr. Newton. The witness testified that he saw the land where the 24 acres is located and described it as gullies and woods with a little open land that could be cultivated; that Dr. Newton told the witness about a year prior to the suit that Mrs. Newton was holding the land adversely to him and Joe and Jack Oakes.

We have carefully considered all of the evidence and conclude that appellee did not offer any evidence of proof to establish a claim under the 10-year statute of limitation.

The court made findings of fact and conclusions of law in support of the judgment but we do not believe such were substantiated under the evidence and usage of the land under the law.

We do not attach importance to deeds from the children of Mrs. Newton conveying their interest in the estate of their father to their mother, since all of such deeds are dated within three years of the time of trial.

Dr. W. R. Newton, Jr., testified as to his mother’s possession and usage and that any fencing, planting or grazing was under his supervision and the work was done by his employees.

Dr. Newton was at all times a co-tenant with the Fergusons and under no circumstance could he adversely claim this property against his cotenant either for himself or as agent for anyone else without notice to his cotenant.

Article 5510, V.A.C.S., sets out the requirements of adverse possession, and appellee did not meet this requirement. Vol. 2, Tex.Jur., 2nd Series, Art. 107, page 213; Richey v. Miller, 142 Tex. 274, 177 S.W.2d 255, 170 A.L.R. 832; Odem v. Leahy, Tex.Civ.App., 264 S.W. 218, er. ref.

The judgment of the trial court is reversed and judgment here rendered that appellees take nothing.

Reversed and rendered.


author: COLEMAN, Justice.

text:
    INTERNATIONAL SERVICE INSURANCE COMPANY, Appellant, v. Bastiaan BOLL, Appellee.
    No. 14582.
    Court of Civil Appeals of Texas. Houston.
    June 10, 1965.
    Rehearing Denied July 8, 1965.

      Milas C. Bradford, Jr., and Daryl Bris-tow, Houston, and Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.
    Funderburk, Murray & Ramsey, John Murray, Houston, for appellee.
   COLEMAN, Justice.

This is a suit to recover attorney’s fees incurred in the defense of two law suits arising out of an automobile collision. The trial court rendered judgment for appellee. The issue presented by this appeal is whether the allegations contained in the petitions filed in the previous suits, whether true or false, stated a cause of action within the coverage of an insurance policy issued by appellant to appellee.

The policy of insurance with which this case is concerned obligated appellant to pay on behalf of the insured all sums for which he might become legally obligated to pay as damages because of property damage or bodily injury sustained by any person “arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the Company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; * * * »

Attached to the policy was an indorsement providing “ * * * the insurance afforded by this policy shall not apply with respect to any claim arising from accidents which occur while any automobile is being operated by Roy Hamilton Boll * *

It is undisputed or stipulated that the claim concerning which the prior suits were filed arose out of an accident which occurred while Roy Hamilton Boll was operating the insured automobile. It is also stipulated that Roy Hamilton Boll is the only son of Bastiaan Boll, the insured.

The first suit was initiated by Bastiaan Boll when he filed a suit for property damage to his automobile arising out of a collision between his automobile and one owned by Nolen Plunk. Boll alleged that at the time of the collision his vehicle was being driven by his son, Roy Hamilton Boll. Plunk then filed an answer and cross-action for property damage, asserting that his damage was caused by being struck by an automobile owned by Bastiaan Boll “and being driven by his son. * * ” A copy of the cross-action was furnished the insurance company who refused to defend because the policy did not cover claims arising out of accidents while the automobile was being operated by Roy Hamilton Boll. Subsequently Plunk filed an action seeking to recover damages for personal injuries which he alleged he suffered in the same collision. In his petition he again alleged that the automobile owned by Bastiaan Boll was being driven by his son, without naming the son.

Roy Hamilton Boll was not named as a defendant in either suit. In Plunk’s cross-action in the first case, and petition in the other, he specifically alleged that the automobile “Owned by Bastiaan Boll, and being driven by his son,” while proceeding west on Holcombe Boulevard disregarded a red light and struck Plunk’s vehicle in the intersection controlled by the light. In Plunk’s petition this allegation was followed by a general allegation of negligence in various particulars, all dealing with the manner in which the vehicle was operated, including the running of the red light. In the next paragraph the petition again alleges that the collision, and the damages and injuries sustained by Plunk, were proximately caused by the negligence of the defendant in permitting his minor son to drive his vehicle. The petition for damages caused by personal injuries was not called to the attention of the Insurance Company and it was not requested to furnish a defense in this case, it being appel-lee’s position that such action was not necessary because the company had already denied it had such an obligation in the matter of property damage arising out of the same accident. Both actions were successfully defended and only attorney’s fees are involved in this action.

It is well settled that in cases involving policies of insurance wherein the insurer bound itself to defend any suit against the insured alleging damages within the terms of the policy, even though such suit may have been groundless, false or fraudulent, the test of the liability of the insurer to defend depends upon the allegations of the plaintiff’s petition. If the petition does not state facts sufficient to clearly bring the case within or without the coverage, the insurer is obligated to defend if there is, potentially, a case alleged within the coverage of the policy. This obligation is not affected by facts ascertained before suit, or developed in the process of litigation, or by the ultimate outcome of the suit. However, the insurer cannot be called on to defend a suit against the assured in which the petition upon its face alleges a state of facts not covered by but excluded from the provisions of the policy. Heyden Newport Chemical Corporation v. Southern General Insurance Co., Tex. Supreme Court Journal, Vol. 8, p. 187; Maryland Casualty Company v. Moritz, Tex.Civ.App., 138 S.W.2d 1095, writ ref.; Travelers Insurance Company v. Newsom, Tex.Civ.App., 352 S.W.2d 888, ref., n. r. e.; Sewer Constructors, Inc. v. Employers Casualty Company, Tex.Civ.App. (Houston), 388 S.W.2d 20.

The Newsom case, supra, held that the reason the insurer’s duty to defend such suits is determined solely by the allegations of the petition, arises from the insured alleging such injuries * * ” Company shall defend any suit against the insured alleging such injuries * * ” The court then pointed out that where the language in an insurance policy is plain and unambiguous the courts must enforce the contract as made by the parties.

The insurer cannot be called upon to defend a suit against the insured where the petition upon its face alleges a state of facts not covered by, but excluded from, the provisions of the policy. U. S. Fidelity and Guaranty Co. v. Baldwin Motor Co. (Com.App.), 34 S.W.2d 815; Farmers Cooperative Soc. No. 1 of Quanah v. Maryland Casualty Co., Tex.Civ.App., 135 S.W.2d 1033; Hardware Mutual Casualty Co. v. Schantz (5th Cir.), 186 F.2d 868.

In this case we are concerned with an indorsement excluding from the “insurance afforded by this policy” any claim arising from an accident while the insured vehicle was being driven by Roy Hamilton Boll. It is undisputed that this claim arose out of such an accident. The obligation to furnish a defense to a suit for damages arisihg out of the operation of the insured vehicle is a part of the insurance afforded by the policy. The parties, by the insurance contract, agreed that this obligation would not arise if the vehicle was in fact being operated by Roy Hamilton Boll at the time of a collision made the basis of the suit. The policy provided that the company would defend suits alleging injury or property damage “payable under the terms of this policy.”

The petitions in both instances advised the insured that the claim arose out of an accident when his automobile was being driven by his son. He knew he had only one son, and he knew the terms of the indorsement relied on by the company. Under the facts of this case the petitions filed against Bastiaan Boll cannot be construed to allege a claim potentially within the coverage of the policy of insurance in question.

The judgment of the trial court is reversed and judgment is here rendered that appellee, Bastiaan Boll, take nothing by his suit.


text:
    Weldon C. LONG, Appellant, v. EMPLOYERS CASUALTY COMPANY et al., Appellees.
    No. 4315.
    Court of Civil Appeals of Texas. Waco.
    May 27, 1965.
    Rehearing Denied June 17, 1965.

      Edwards & Faulkner, Waco, for appellant.
    Jones, Boyd, Westbrook & Lovelace, L. Wayne Scott, Waco, for appellees.
   WILSON, Justice.

Upon appellees’ petition alleging appellant was engaging in the operation of an insurance agency in contravention of his previous contract of employment with ap-pellees a writ of temporary injunction was issued “pending final hearing and determination of this cause”, enjoining appellant from soliciting or servicing insurance business within the territory specified in the contract “until August 17, 1966,” a date some 20 months subsequent to the order.

Both parties urge on us their construction of the employment contract and their rights under its terms. The scope of review is limited to determination of whether there was a clear abuse of the trial court’s broad discretion in granting the temporary injunction, Janus Films v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589; McLennan & Hill Counties, etc. v. Hurst, Tex.Civ.App., 378 S.W.2d 946, 948; and the purpose of the hearing is to determine whether applicant has a probable right that will probably be endangered unless the writ issues. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519; City of Lubbock v. Stubbs, 160 Tex. 111, 327 S.W.2d 411, 415. No clear abuse of discretion is shown.

Final adjudication of the rights of the parties on the hearing for temporary injunction is not authorized, however, for “legal rights cannot be finally determined upon a hearing relating to the wisdom or expediency of issuing a status quo order.” Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421. Upon such a hearing the substantive effect of the contract cannot be declared. Houston Belt & T. Ry. Co. v. Texas & New Orleans R. Co., 155 Tex. 407, 289 S.W.2d 217, 218; McLennan & Hill Counties, etc. v. Hurst, Tex.Civ.App., 378 S.W.2d 946, 948.

Appellant asserts an error of substantive law which the trial court could not reach on the hearing for temporary injunction without accomplishing the whole object of the suit, an action not authorized upon the preliminary hearing. Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460, 464, syl. 11, and cases cited. His point 3 is sustained.

One-half the costs on appeal are taxed against appellees. The order is modified by deleting therefrom the words, “until August 17, 1966”; and as so modified is affirmed.


author: BATEMAN, Justice.

text:
    PETCO CORPORATION, Appellant, v. W. F. PLUMMER, Appellee.
    No. 16569.
    Court of Civil Appeals of Texas. Dallas.
    June 4, 1965.
    Rehearing Denied July 2, 1965.

      Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellant.
    Baker, Jordan, Shaw & Foreman, Russell M. Baker, Dallas, for appellee.
   BATEMAN, Justice.

Appellee W. F. Plummer sued for damages for bodily injuries resulting from a gas explosion, originally naming as defendants Lone Star Gas Company (herein called Lone Star), Petco Corporation (herein called Petco), L. & L. Electric Company and Gene’s Plumbing Company. Petco had built a house for resale and had contracted to sell it to one Jones and wife, who were in the process of moving into the house at the time of the explosion, although a deed conveying the property to them had not yet been executed. A gas cooking stove had been installed in the kitchen, but at the request of the purchasers it had been replaced with an electric stove, and in making this change the gas pipes in the kitchen were left uncapped. L. & L. Electric Company had been the electric contractor and Gene’s Plumbing Company the plumbing contractor. Lone Star Gas Company, a public utility, furnished gas to Petco during the construction of the house for the convenience of Petco’s and other workmen. There was a stopcock outside the house at the foundation, where the gas in the house could be turned on and off.

On February 23, 1962, one of Petco’s employees had turned the gas on at the foundation, had gone into the house, smelled gas and saw that the gas lines leading into the kitchen were open and uncapped. He informed a painter on the job and another of Petco’s employees of this situation, and the other employee turned the gas off at the foundation. Neither of these Petco employees passed this information on to any of Petco’s supervisory employees. Three days later, on February 26, 1962, Mrs. Jones made the appropriate meter deposit with Lone Star and Lone Star’s employee came to the house to change the gas service into the name of Mr. and Mrs. Jones. Discovering that the gas had been turned off at the foundation stopcock, Lone Star’s employee turned it on, ignited the hot water heater and attempted unsuccessfully to light the central heating system. He did not discover the gas leak in the kitchen. On the same day Plummer, who was an employee of the heating contractor, entered the house to turn on the central heating system. As soon as he did so the explosion occurred, resulting in serious bodily injuries to Plummer.

After suing the four defendants, Plum-mer settled with all of them except Petco and filed an amended petition naming only Petco as defendant. Petco then brought Lone Star Gas Company back into the case by cross-action for indemnity or, in the alternative, contribution.

The jury found that Petco’s employees were negligent (1) in failing to inspect the gas lines in the kitchen to ascertain whether they were capped, (2) in failing to cap such lines or have them capped, and (3) in failing to notify Petco’s foreman or supervisors that the lines were open and uncapped; each of which negligent omissions was found to be a proximate cause of the explosion. The jury also found that Lone Star was negligent (1) in turning the gas on at the foundation cutoff and leaving it on, (2) in failing to make a five-minute meter test, and (3) in failing to observe the flow of gas through the meter after turning it on; and that each such negligent act was a proximate cause of the explosion.

Lone Star had paid Plummer $75,000 in compromise settlement, taking from him a covenant not to sue and agreement to indemnify it against further liability. Plum-mer had also settled with L. & L. Electric Company for $1,250 and with Gene’s Plumbing Company for $1,750, giving to each of them also a covenant not to sue. The jury found that Plummer’s damages were $150,-000, to which the court added $15,959.92, which had been stipulated as medical expenses, making a total of $165,959.92. The court then credited thereon the $3,000 received by Plummer from L. & L. Electric Company and Gene’s Plumbing Company, reducing the total damages to $162,959.92, then held that Petco was entitled to contribution from Lone Star and rendered judgment for one-half of the figure last mentioned, or $81,479.96. Petco appeals on three points of error.

By its first point of error Petco says the court erred in rendering any judgment against it, its theory being that it was entitled to indemnity against Lone Star as a matter of law under the record and jury findings and, since Lone Star was in turn entitled to indemnity from Plummer under the terms of their settlement agreement, the only proper judgment was one that Plummer take nothing against Petco. This would avoid useless circuity of action among these parties and arrive at the same result. Panhandle Gravel Co. v. Wilson, Tex.Civ.App., 248 S.W.2d 779, wr. ref. n.r.e.

This principle is well recognized in our jurisprudence, but in the present situation is applicable only if Petco can demonstrate that Lone Star breached a duty which it owed to Petco and that Petco did not breach any duty which it owed to Lone Star. Petco takes the position here that since it owned the house and was a customer of Lone Star, the latter owed to it a duty which it breached by committing the three acts of negligence found by the jury.

We fail to see in this record a breach by Lone Star of any duty owing by it to Petco except the general duty which it owed to Plummer and all others who were lawfully on the premises at the time of the explosion. Petco contends that Lone Star owed a special duty to it because it was a customer. It is true that Lone Star furnished gas to Petco at this house during its construction, but on the day of the explosion, according to the undisputed evidence, the act of Lone Star’s employee in turning the gas on at the foundation stopcock and leaving it on was in response to the request of Mrs. Jones, one of the purchasers of the property, that the gas service be transferred from Petco’s name to theirs. In doing this the employee read the gas meter so that gas furnished prior to that date could be charged to Petco and gas furnished thereafter charged to Jones. We do not think that under these circumstances Lone Star owed any special duty to Petco which it did not owe to all persons lawfully on the premises.

So much has been written on the rights and duties of tortfeasors among themselves that we pretermit a full discussion here of the development of the law thereon. See Hodges, “Contribution and Indemnity Among Tortfeasors,” 26 Tex.L.Rev. 150; Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449, 140 A.L.R. 1301; Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563; Gattegno v. The Parisian, Tex.Com.App., 53 S.W.2d 1005; and Palestine Contractors, Inc. v. Perkins, Tex.Sup. 1964, 386 S.W.2d 764. Suffice it to say here that under the modern rule indemnity is not allowed in such cases unless it be found that the tort-feasors are not in pari delicto. The rule is thus stated in 30 Tex.Jur.2d, Indemnity, p. 453, § 9:

“A common-law right to indemnity, as distinguished from contribution, exists where two or more persons are chargeable with negligence and are liable to the injured party, but where, as between the wrongdoers, a duty is owing from one to the other or one is guilty of a greater degree of culpability. In this situation, the person owing the duty or guilty of the greater culpability may be required to indemnify the other negligent person in full for whatever damages he has been compelled to pay.”

It seems clear to us that Petco is not entitled to indemnity from Lone Star under the common law, but that their respective rights are governed by Vernon’s Ann.Civ.St, Art. 2212, providing for contribution, which rule the trial court applied. As we see it, each of these defendants owed a duty to exercise ordinary care for the safety of Plummer and all others lawfully on the premises. Both were found to have breached that duty, and each was guilty of the same quality of negligence toward Plummer. “Thus they stand in pari delicto with each other and must, under the statute, share equally the burdens arising from their wrongful conduct.” Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563, 566. See also Gulf, Colorado & Santa Fe Ry. Co. v. Bliss, Tex.Sup.1963, 368 S.W.2d 594, 596, and Union Iron & Metal Co. v. Gibson, Tex.Civ.App., 374 S.W.2d 458, 462, wr. ref. n. r. e.

The first point of error is overruled.

Appellant Petco argues in its second point of error that, since Plummer had settled with three other joint tortfeasors, the judgment against appellant should have been for only one-fourth of Plummer’s damages as found by the jury. Appellee objects to our consideration of this second point because it is not germane to any ground of error in appellant’s amended motion for new trial. Rule 374, Vernon’s Texas Rules of Civil Procedure. Appellant says this objection is without merit because its contention is not one for which a new trial would be a proper remedy. We do not agree with appellant. If this was a matter which appellant intended seriously to present to this court it should have first presented it to the trial court and given that tribunal an opportunity to rule upon it. This could have been done by appropriate motion, before or even after final judgment was rendered, and unfavorable action on the motion could have been assigned as error in the motion for new trial. In our opinion, the point was waived, but if we be mistaken in so holding we would nevertheless be compelled to overrule the point for the reasons now to be discussed.

Appellant relies on the recent case of Palestine Contractors, Inc. v. Perkins, Tex.Sup.1964, 386 S.W.2d 764. In that case Mrs. Perkins had suffered personal injuries in a collision between her automobile, a truck belonging to Palestine Contractors, Inc., and an automobile operated by one Conoway. After the collision Mrs. Perkins and her husband gave Conoway a covenant not to sue, which did not contain an indemnity agreement, and then sued Palestine Contractors. The latter filed a third party action against Conoway for indemnity or, alternatively, contribution. The jury found both Palestine’s driver and Conoway guilty of negligence which was a proximate cause of the collision. Judgment was rendered against Palestine Contractors for $26,500, with recovery over against Conoway for half, or $13,250. After reviewing the authorities in Texas and other jurisdictions, together with several learned treatises, and placing its decision squarely on Gattegno v. The Parisian, Tex.Com.App.1932, 53 S.W. 2d 1005, the Supreme Court held that the giving of the covenant not to sue to Cono-way precluded the Perkinses from recovering from Palestine Contractors more than half the damages found by the jury. Their judgment was reduced from $26,500 to $13,-250. The court rejected the argument that in a case where the settling defendant was insolvent the plaintiff should have his full damages from the non-settling defendant, less the amount paid by the insolvent settling defendant.

However, we are not persuaded that the holding in Palestine Contractors, Inc. v. Perkins, supra, requires limiting the judgment against appellant in this case to one-fourth of the total damages found. We think the cases are easily distinguishable. In the Palestine Contractors case the other tortfeasor Conoway was a party to the suit, was definitely being sued on the third party action for indemnity or contribution, and the jury convicted him of an act of negligence proximately causing the collision. Thus it was established beyond doubt that Conoway was a joint tortfeasor. In the present case, however, neither L. & L. Electric Company nor Gene’s Plumbing Company was a party to the suit; no one was alleging that either of them had negligently caused the explosion; and Petco did not see fit to bring them back into the case, as it did Lone Star, and sought no indemnity or contribution against either of them in the trial court, and there was no finding of fact that either of them was guilty of any negligence proximately causing the explosion. As we read and understand Justice Green-hill’s scholarly opinion in Palestine Contractors, Inc. v. Perkins, supra, it does not require the award of damages to be diminished in proportion to the number of persons claimed by the appellant, for the first time in the appellate court, to have participated in the wrongdoing which caused the plaintiff’s injuries, but only in proportion to the number of parties to the suit who have been found to be tortfeasors as alleged.

We think the opinion of the Houston Court of Civil Appeals in Skyline Cab Co. v. Bradley, Tex.Civ.App., 325 S.W.2d 176, 183, wr. ref. n. r. e., is more in point here. In that case Mrs. Bradley, a passenger in the taxicab of Skyline Cab Company when it collided with an automobile driven by a Mrs. Foster, sued the cab company, its driver and Mrs. Foster, but thereafter settled with Mrs. Foster for $4,200 and dismissed as to her. Skyline sued Mrs. Foster as a third party defendant for damages to its cab in the sum of $464.62, but did not seek either indemnity or contribution as to Mrs. Bradley’s claim. Mrs. Foster sued Skyline in a separate suit for her damages, and Skyline’s driver filed a separate suit against Mrs. Foster for his damages. By agreement the three suits were consolidated. The jury found Mrs. Bradley’s damages at $14,500, and the court gave her judgment for that amount less the $4,200 which had been paid to her by Mrs. Foster in settlement. It was claimed that under Gattegno v. The Parisian, Tex.Com.App., 53 S.W.2d 1005, the release given Mrs. Foster discharged one-half of the damages awarded, but this theory was rejected because Skyline and its driver had made no claim over against her for indemnity against their liability to Mrs. Bradley and did not even ask for contribution. The Houston court held, and we agree, that these facts distinguished that case from Gattegno v. The Parisian, supra. As the principle asserted here by appellant was rejected by the Houston court in that case because Mrs. Foster was not found to be a joint tortfeasor, so we reject it in this case where the alleged tortfeasors were not even parties to the suit. Skyline Cab Co. v. Bradley was discussed but not overruled or disapproved in Palestine Contractors, Inc. v. Perkins, supra. Appellant’s second point of error is overruled.

By its third point of error the appellant Petco complains of the exclusion from the jury of any evidence of the payments made to appellee by Lone Star Gas Company, Gene’s Plumbing Company and L. & L. Electric Company, and the covenants not to sue executed in favor of such parties. Appellant argues that this evidence should have been admitted as bearing on the credibility of the witnesses, Plummer himself and certain employees of Lone Star and one of the partners in Gene’s Plumbing Company. It says that this testimony “would show their motive to gang up and attempt to put all the hlame on Petco.” In the first place, no evidence of the settlements with L. & L. Electric Company or Gene’s Plumbing Company was offered. Nevertheless, we hold that none of this evidence was admissible for any purpose, and that there was no error in excluding it, on the authority of Skyline Cab Co. v. Bradley, Tex.Civ.App., 325 S.W.2d 176, 182, wr. ref. n. r. e.; Myers v. Thomas, 143 Tex. 502, 186 S.W. 2d 811; Johnson v. Willoughby, Tex.Civ.App., 183 S.W.2d 201, wr. ref.; and Caswell v. Satterwhite, Tex.Civ.App., 277 S.W.2d 237, wr. ref. n. r. e.

However, even if the evidence were admissible for the limited purpose claimed by appellant, we would hold that the error in excluding it was harmless. Naturally, no evidence was tendered as to negligence on the part of L. & L. Electric Company or Gene’s Plumbing Company, as they were not parties, and no issues thereon were submitted to the jury. The jury found Lone Star guilty of three specific acts of negligence proximately causing the explosion. Therefore, it is difficult to see how Petco was harmed by the court’s action. Rule 434, T.R.C.P. The third point of error is overruled.

By cross-point appellee says that because of a stipulation, made orally by the attorneys before the actual trial started, counsel for appellant agreed that the damages found by the jury would be credited only with the total of $78,000 paid to appellee by Lone Star, L. & L. Electric Company and Gene’s Plumbing Company, rather than under the contribution statute (Art. 2212, V.A.C.S.). This would increase the judgment to $87,-959.92. Alternatively, appellee contends that proper application of Art. 2212 would make the judgment an even half of the total damages, or $82,979.96, without giving credit for the $3,000. We have carefully considered these contentions and find them to be without merit. Appellee’s cross-point is overruled.

We find no reversible error. We think the case was fairly tried, that the evidence and jury findings support the judgment and that the amount of the recovery was correctly computed under the law. Accordingly the judgment is

Affirmed.