author: COLEMAN, Justice.

text:
    John B. COFFEE et al., Appellants, v. WILLIAM MARSH RICE UNIVERSITY et al., Appellees.
    No. 14472.
    Court of Civil Appeals of Texas. Houston.
    Feb. 4, 1965.
    Rehearing Denied Feb. 25, 1965.

      ■Bracewell, Reynolds & Patterson, Joe H. Reynolds, William Key Wilde, Wright Morrow, Houston, for appellants.
    O. Don Chapoton, Alvin M. Owsley, Jr., Dillon Anderson, Tom M. Davis, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellees.
   COLEMAN, Justice.

This suit was instituted by William Marsh Rice University and the duly appointed trusT tees thereof, for the purpose of determining whether, under a proper construction of the Indenture, pursuant to the terms of which the corporation was formed, the trustees, in the exercise of their discretion, are free to accept as students qualified applicants without regard to color and to charge tuition to those able to pay. The plaintiffs prayed, in the alternative, that the court authorize such action under the equitable doctrines of cy pres and deviation, and for a declaratory judgment. The Attorney General of Texas was named defendant, and he answered and participated in the trial.

Appellants, John B. Coffee and Val T. Billups, filed a petition in intervention, in which they alleged that they were proper parties to the suit, “having a direct interest in the subject matter of said suit, an adjudication of which cannot be made without affecting their interests as former students, alumni, donors, contributors and benefir ciaries.” They also alleged that they intervened as representatives of a class, “being many former students of and alumni of Rice Institute, as well as donors and contributors to Rice Institute, all being beneficiaries under the indenture under which William Marsh Rice established the Institute.” They alleged that they, and the class they represent, made donations and contributions to Rice University pursuant to the indenture and, therefore, have an interest in the subject matter of the suit and the right to have the indenture upheld in accordance with its terms.

Other individuals, ex-students and alumni of Rice University, also filed a petition in intervention for themselves and as representatives of a class, in support of the position of the trustees, and they have not appealed, nor were they named as parties in the appeal bond filed herein.

The trial court submitted the case to the jury on special issues, and, based on the verdict of the jury, entered his judgment that William Marsh Rice University may now and hereafter admit as students qualified applicants without regard to their color or race, and may now and hereafter charge tuition for attendance at said university.

The Attorney General did not file a motion for new trial, give notice of appeal, or in any manner attempt to perfect an appeal from this judgment, and has not filed a brief in this Court. The intervenors did give notice of appeal in the judgment, and, after their motion for new trial was overruled, complied with procedural steps required for appealing the judgment.

No motion to dismiss appellants’ petition in intervention was presented to the trial court, and it appears that the Attorney General permitted appellants to take the lead at the trial. While appellees have not filed a motion to dismiss this appeal, or in any manner brought to the attention of this Court the right of appellants to appeal from this judgment, we have reached the conclusion that our jurisdiction over the subject matter of the appeal has not been properly invoked, and that we must decline to entertain the appeal for the reason that an examination of the petition and answer demonstrates that appellants have no justiciable ■interest in the controversy. City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638; Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223; Mueller v. Banks, Tex.Civ.App., 317 S.W.2d 256; Union Bus Lines, Inc. v. Southwestern Greyhound Lines, Inc., Tex.Civ.App., 250 S.W.2d 269, ref., n. r. e.; Gibson v. Richter, Tex.Civ.App., 97 S.W.2d 351; Green v. Green, Tex.Civ.App., 247 S.W.2d 583; State ex rel. Cavanaugh v. Nelson, Tex.Civ.App., 170 S.W. 814; McCarty v. Duncan, Tex.Civ.App., 330 S.W.2d 899.

The corporate charter of Rice University, in which the Trust Indenture is quoted, is attached to the plaintiffs’ original petition. By its terms a public charitable trust was created. It provided for the creation of a corporation to which the trust funds were to be transferred. The income from such funds, and all future donations, were to be expended by it for specified purposes, all of which are purely charitable. Taysum v. El Paso National Bank, Tex.Civ.App., 256 S.W.2d 172, error ref.

The general rule applicable to the question with which we are concerned is well stated in Cannon v. Stephens (1932), 18 Del.Ch. 276, 159 A. 234, as follows:

“Where a suit is concerned with a public charity, the general rule undoubtedly is that the attorney general as representative of the public is a necessary party, and has the preclusive right to sue. The general rule is not an incident to the charitable nature of the trust. That which supplies the foundation for the rule that suit to establish, protect or enforce a public charity should be conducted by the attorney general as representative of the State, is its public nature. Where the charity is for the benefit of the public at large or a considerable portion of it and the language of its creation is such that no particular individuals can be pointed out as the objects to be benefited by it, the necessity of the case requires a holding that the representative of the public is the only party capable of vindicating the public’s rights in connection with the charity, for in such case no individual can come forward and point to himself as the designated object of the charity’s benevolence.”

This statement of the law is supported by decisions in the great majority of the states and a similar statement of the law is found in many texts and treatises concerned with public charitable trusts. Anno. 62 A.L.R. 881; 124 A.L.R. 1237; Burbank v. Burbank, 152 Mass. 254, 25 N.E. 427, 9 L.R.A. 748; Gibson v. Frye Institute, 137 Tenn. 452, 193 S.W. 1059, L.R.A.1917D, 1062; Stearns v. Newport Hospital, 27 R.I. 309, 62 A. 132; Clarke v. Oliver, 91 Va. 421, 22 S.E. 175; Dickey v. Volker, 321 Mo. 235, 11 S.W.2d 278, 62 A.L.R. 858; Amundson v. Kletzing-McLaughlin Memorial Foundation College, 247 Iowa 91, 73 N.W.2d 114; Kenney Presby. Home v. State, 174 Wash. 19, 24 P.2d 403; Brown v. Memorial National Home Foundation, 162 Cal.App.2d 513, 329 P.2d 118, 75 A.L.R.2d 427, cert. den. 358 U.S. 943, 79 S.Ct. 353, 3 L.Ed.2d 352; American Law Institute, Restatement of Law, Trusts 2d, § 391; Bogert’s Trusts and Trustees, 2nd Ed., Chapter 21; 15 Am. Jur.2d, Charities, § 120.

A Texas case supports the rule that one having no duty relating to a public charitable trust, nor any peculiar or individual right, distinct from that of the public at large, in or to the trust property, has no justiciable interest in a suit to enforce the execution of the trust, or to require an accounting thereof by the trustees. Carroll v. City of Beaumont, Tex.Civ.App., 18 S.W.2d 813, error ref. In Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223, the court ordered a suit dismissed which had been brought by the Attorney General for the reason that the trust involved was a private trust and the Attorney General had no justiciable interest in its enforcement. The court said:

“Before a court of equity is authorized to interfere to enforce a charitable trust, its jurisdiction must be invoked by some party authorized to initiate the proceeding. * * * ‘
“ * * * the person or party initb- , ating the proceeding must have some interest in the subject-matter of-the suit, or he must have power to bring it by virtue of his office. The Attorney General only has power to bring such a suit when the trust or donation is to public charity only.”

In the City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754, the Supreme Court of Texas stated:

“ * * * no action lies to restrain an interference with a mere public right, at the suit of an individual who has not suffered or is not threatened with some danger peculiar to himself. * * * It has been intimated that the reason this rule was established was in order to prevent a multiplicity of suits which might result if each individual were permitted to sue for damages resulting from a public nuisance which was common to all others, but we apprehend that the underlying principle is that individuals have a right to sue for a redress of their own private injuries, but for such as affect all the public alike an individual is not the representative of the public interest. The legislature of the state represents the public at large, and has full and paramount authority over all public ways and public places. * * * A suit in such case must be brought by such officer or officers as have been intrusted by the law-making power with this duty.”

The reasoning on which this case is based has been approved, and it has been cited frequently by the Supreme Court of Texas in subsequent cases. It was cited in Staples v. State, 112 Tex. 61, 245 S.W. 639, and the' Court held: “[Ajppellees were not possessed of legal capacity or right to institute and maintain this suit, and therefore the district court and the judge of the district court of Navarro county were without jurisdiction to act upon or hear same.” See Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012; Yett v. Cook, 115 Tex. 205, 281 S.W. 837; Glover v. Cobb, Tex.Civ.App., 123 S.W.2d 794, error ref.; Adamson’ v. Connally, Tex.Civ.App., 112. S.W.2d 287; Wilson v. Pierce, Tex.Civ.App.', 123 S.W.2d 695; Laurel Land Memorial Park, Inc. v. Pinto, Tex.Civ.App., 358 S.W.2d 729, ref., n. r. e.

The jurisdiction of the District Court was properly invoked in this case by the trustees’ petition which made the Attorney General a party. It is settled that the appeal of one party, having a justiciable interest in the matter, brings before the appellate court the entire case and all of the parties in such a way as to give it jurisdiction to render any judgment which may be proper to any relief against the judgment complained of to which the appellants may show themselves to be entitled. Thompson v. Kelley, 100 Tex. 536, 101 S.W. 1074; Pfeffer v. Meissner, Tex.Civ.App., 286 S.W.2d 241, ref., n. r. e.; Gibson v. Richter, Tex. Civ.App., 97 S.W.2d 351.

It is equally true that appellate courts do not decide cases where no actual controversy exists between the parties at the time of the hearing, that is, moot cases, or cases that are not appealable under court rules or statutes. City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638; Green v. Green, Tex.Civ.App., 247 S.W.2d 583; Travis County v. Matthews, Tex.Civ.App., 221 S.W.2d 347; Mueller v. Banks, Tex.Civ.App., 302 S.W.2d 447, error ref.

Neither can this Court consider points of error presented by an appellant when the matters complained of only affect the rights of a party not appealing. Blessing-Giddens Mill and Lumber Co. v. Fuller, Tex.Civ.App., 166 S.W.2d 173, ref., w. o. m.; Farmers’ Petroleum Co. v. Shelton, Tex.Civ.App., 202 S.W. 194, error ref.

The general rule applicable, we think, to this case, is stated in 3 Tex.Jur.2d, Appeal and Error — Civil, § 196, as follows: “Unless a party’s own interests or those of a party with whom he is in privity are prejudiced or aggrieved by the decision of the court, he is not entitled to appellate review. * * * ”

Since no motion to dismiss the petition in intervention was filed, and no point is presented in this Court challenging its jurisdiction or the right of appellants to maintain the appeal, we accept as having been proved all facts alleged in the petition in intervention having any bearing on their right to intervene in this cause.

Appellants have alleged a special interest in this matter by reason of the fact that they are (1) former students and alumni, (2) donors, (3) contributors, and (4) beneficiaries.

The status of appellants as former students and alumni of Rice University does not create in them a justiciable interest. An interest in the matter at issue based on sentiment alone will not support an appeal. Unless substantial rights of a party are prejudiced by a judgment, he cannot maintain an appeal. City of Wink v. Griffith Amusement Co., 129 Tex. 40, 100 S.W.2d 695; 3 Tex.Jur., Appeal and Error — Civil, § 197 et seq.

Neither as alumni, nor as potential or past beneficiaries, have appellants been given any peculiar or individual rights, distinct from those of the public at large, in or to the trust property by the Indenture; nor have they been charged with any duty relating to the trust by that instrument. By the terms of the Indenture the number of potential beneficiaries is large and indeterminate. We see no reason why the fact that in the past appellants may have received special benefits from the trust gives them a justiciable interest in the subject matter of this suit. Carroll v. City of Beaumont, supra.

A more difficult question arises on consideration of the allegation that appellants are donors and contributors to the endowment fund. However the great weight of authority supports the rule that neither the donors of a fund devoted exclusively to charitable purposes, nor contributors to such a fund, have such an interest in the fund as to entitle them to maintain suit to interfere with, or direct, the management of the fund by the trustees. In 15 Amer.Jur.2d, Charities, § 120, cases from many jurisdictions are cited in support of this rule and of the following proposition :

“As a general rule, where a fund collected for a charitable purpose is made up of contributions from many persons, no one of them is entitled to call the trustees to account for misapplication of the fund or breach of trust. A mere contributor, to have a foothold for questioning disposition of the fund, must have some special interest in the trust or reversionary interest in the fund different from that of fellow contributors.”

The power and duty of the Attorney General to represent, and protect the interests of, the general public in charitable trusts is clearly defined in Art. 4412a, Vernon’s Ann.Tex.Civ.St., providing that “[f]or and on behalf of the interests of the general public” the Attorney General shall be a necessary party to any action the purpose of which is to depart from the objects of a charitable trust as provided in the instrument creating it, or to construe, nullify or impair its provisions; providing that the judgment rendered in any such suit where the Attorney General is not a party shall be void and unenforceable, and empowering the Attorney General to join in settling or compromising any such suit or controversy, but prohibiting such settlements without his joinder. It is clear that by this act the legislature has designated the Attorney General as the sole representative of the general public in these matters.

His' duty and power in this respect cannot be assumed by anyone else whether with or without his consent. City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754; Staples v. State,. 112 Tex. 61, 245 S.W. 639. His action in electing not .to appeal from the judgment rendered by the trial court in this case renders that judgment final and binding insofar as the interests of the general public are concerned.

Certain provisions of the Texas Trust Act, Art. 7425b — 1 et seq., V.A.T.S., are applicable to the question under consideration. By paragraph A of Section 24 of that article the district court is specifically granted original jurisdiction to construe the provisions of any trust instrument and to determine the powers, responsibilities, duties and liability of trustees. Paragraph C then provides in part: “ * * * [a]ctions hereunder may be brought by a trustee, beneficiary, or any person affected by or having an active interest in the administration of the trust estate. * * * ” It is our considered opinion that appellants have' not brought themselves within any named class of persons empowered to sue and that from the fact that certain persons were named in the act an intention to exclude all others from its operation may be inferred — -expressio unius est exclusio alterius.

The Supreme Court of Texas, in McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, after holding that the Supreme Court has the same power as the Courts of Civil Appeals to consider fundamental error, said:

“We cannot blindly affirm an erroneous judgment which adversely affects the public interest, or a decree entered by a trial or intermediate appellate court which had no jurisdiction of the subject matter, merely because the litigants' have not seen fit to assign the error.”

In Armstrong v. West Texas Rig Company, Tex.Civ.App., 339 S.W.2d 69, ref., n. r. e., the court said: “* * * [w]here jurisdiction or authority to act in a particular case does not exist, it may not -be, conferred on the court by stipulation • or agreement Qfi the parties, nor. is'it a matter which is subject to waiver by the parties. * * * >}

• We reluctantly decline to consider the merits of this appeal and order that the appeal be dismissed. Court costs incurred on this appeal are assessed against appellants.

Appeal dismissed.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    Edward T. PURCELL, Appellant, v. Maxine C. SNOWDEN et al., Appellees.
    No. 3922.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 5, 1965.
    Rehearing Denied Feb. 26, 1965.

      Jandt & Jandt, Seguin, for appellant.
    Threlkeld, Saegert & Saegert, Seguin, Remy & Burns, San Antonio, for appellees.
   COLLINGS, Justice.

Edward T. Purcell brought this suit in trespass to try title against Maxine C. Snowden and husband Homer W. Snowden and Peerless Insurance Company to establish his title to certain oil and gas leasehold estates. The Snowden defendants alleged ownership of the leasehold estates, claiming that plaintiff and his predecessor in title acquired the leases in trust from the Snow-dens’ agent Lee Sievers. The case was tried before a jury and based upon the verdict judgment was rendered in favor of Maxine C. Snowden and Peerless Insurance Company for certain interests in the leasehold estates. Edward. T. Purcell has appealed.

The pleadings and evidence indicate that Homer W. Snowden was investigated for alleged violation of certain federal statutes, and upon the advice of William J. Balmer and others employed Sinon A. Murray an attorney to secure trial lawyers to represent him, and paid substantial cash to Murray and Balmer during the time the case was under investigation. Snowden was indicted in the Federal District Court at Danville, Illinois and was informed that he would be required to give additional security to those who had financed the efforts in his behalf, and to have funds to employ trial lawyers and otherwise represent him in the criminal case pending at Danville. Snowden through his wife, Maxine C. Snowden thereupon caused an undivided W32 interest in the leasehold estates here involved to be assigned to Sinon A. Murray as trustee. This assignment was dated March 21, 1957. Thereafter Snowden was tried and convicted in the Federal District Court at Danville, Illinois and his punishment assessed at a fine of $30,500.00 plus costs in the amount of $5,761.82, and in addition thereto a jail sentence was imposed. Snowden’s supersedeas bond was fixed at $37,500.00 and Peerless Insurance Company through its agent Phillip B. Kit-zer was requested to and did execute this bond. The insurance company refused to execute the bond unless it was given security, and it was agreed that an assignment of an additional W32 undivided interest in the leasehold estates involved would be made to Sinon A. Murray, trustee for that purpose. Appellees allege and the oral testimony complained of indicates that the assignment of such leasehold estates was to secure the payment of the supersedeas, bond and also to furnish monies to be paid to Maxine C. Snowden pending the appeal of the criminal case. The latter assignment was duly made and dated April 29, 1957. Snowden and his wife assert and contend that it was orally agreed that Sinon A. Murray was to hold the two assignments in trust .for the purposes for which they were conveyed to him but that Murray .subsequently repudiated the trust and claimed the properties as his own. Peerless Insurance Company asserts that the second assignment dated April 29, 1957 was made to secure it on its supersedeas bond and that after it had been paid in full for any monies it was required to pay by reason of executing such supersedeas bond such properties were to be reconveyed by Sinon A. Murray to Maxine C. Snowden. Peerless Insurance Company also alleged and showed that the appeal of Snowden was not perfected, that the bond was forfeited and Peerless Insurance Company was required to pay the $37,500.00'represented by the bond, and that such amount has not been repaid to it.

■ The Snowdens and Peerless Insurance Company allege and assert that by reason of. the confidential relationship existing between Homer W. Snowden and his attorney Sinon Murray and the breach of this confidential relation by Murray in failing to comply with the agreements he had made concerning the two assignments that a ' resulting or constructive trust was established. In answer to issues submitted it was found by the jury that the conveyances to Sinon A. Murray were not sales, and that such leases were assigned to him for the purposes contended by the Snowdens and Peerless Insurance Company, and that the title thereto was to be conveyed to Maxine C. Snowden upon the payment of the indebtedness it was intended to secure.

The evidence further shows that Sinon A. Murray transferred the leases in question to Edwin T. Burton, trustee, who did not claim '.ownership of the properties but operated them for Murray, and that later -at the request of Murray, Burton as trustee transferred the properties to Purcell who is the plaintiff and appellant in this suit. The evidence shows that Purcell took such properties with full- knowledge of all- the facts eriumerated.

Based upon the pleadings, jury findings and the evidence, judgment was entered decreeing that Edward T. Purcell, trustee, have and recover an undivided i/á interest in the 1%2 interest represented by the assignment dated March 21, 1957, and that the remaining interest be awarded to Edward T. Purcell, trustee, to be held by him until the payment in full by the Snowdens of the indebtedness, if any, owing by them to Edward T. Purcell, trustee at which time the title and possession and ownership of such undivided interest in the ls/s2 interest should become the separate property of Maxine C. Snowden. It was further provided in the judgment that the title and possession to the ir/s2 interest of the assignment dated April 29, 1957 be awarded an undivided 1/2 interest to Maxine C. Snowden and an undivided interest therein to the Peerless Insurance Company until the payment by the Snowdens to the Peerless Insurance Company of $37,500.00, with interest, owed by Homer W. Snowden to the insurance company after which time the title to such of the 1%2 interest would vest in Maxine C. Snowden as her separate property.

Each of the assignments which are the subject matter of this suit and were from Lee Sievers to Sinon A. Murray provided that “WHEREAS, an undivided interest in said leases and all rights thereunder or incidents thereto are now owned by Lee Sievers.” ' Prior assignments of the leases from H K- S Operating Company to Fred Packard and others likewise recited that such leases were then owned by such assignors. Appellees Maxine C. Snowden and Homer W. Snowden were permitted by the court to testify that Lee Sievers was not the owner of such leasehold estates, but that said leases were at all times the property of.Maxine Snowden; that she was the owner of such leasehold estates when H K S Operating Company and Fred Packard held legal title thereto; that she had caused such leases to be assigned to Lee Sievers and that Sievers was holding title thereto for her at the time she caused him to assign the leases to Sinon A. Murray, trustee ; that the circumstances under which the assignments to Sinon A. Murray occurred were that Homer W. Snowden was under criminal indictment in the Federal Courts in the State of Illinois; that he and Maxine C. Snowden contacted Murray and Purcell, both attorneys, and others to assist in preparing Homer W. Snowden’s defense and to advance monies necessary for such defense; that to secure such services, advice and raise such monies an agreement was made between the Snowdens and Murray, Purcell and their associates that the oil and gas leases in question would be transferred to Murray as trustee to be held for the purpose of securing the payment of any expenses or monies advanced by Murray, Purcell and associates in connection with the defense of the criminal case against Snowden, including the securing of Peerless Insurance Company to provide a supersedeas bond after the conviction of Snowden in the criminal case; that under the agreement between the parties the assignments were made to Murray for the purposes contended by the Snowdens and Peerless Insurance Company as set out in the judgment of the court.

Appellant contends in numerous points that such testimony was in violation of the parol evidence rule because it purported to show orally that Sievers was ■holding the property in trust for Maxine Snowden when recitations in the assignments, as above indicated, were to the effect that Sievers was the owner thereof and that it was not permissible to show that he was acting for an undisclosed principal; that such evidence also purported to show oral agreements between the Snowdens and Murray, Purcell and associates made prior to the execution of the written assignments to Murray over the objection of appellant that any oral agreement made prior to the written contract was terminated and was •embodied in the written contract, and that the judgment should be reversed because of "the error in admitting such evidence.

We cannot agree with these contentions. The pleadings and the evidence show a confidential relationship between the Snow-dens and Murray and that Sievers was holding the property in trust for Maxine C. Snowden. The record further shows that Snowden and his wife caused and secured the assignments of such oil and gas leasehold estates to be made by Sievers to Sinon A. Murray as trustee for the purposes stated by the Snowdens, and that Purcell at all times had full knowledge of all the facts and circumstances including the confidential and trust relationship between the Snow-dens and Murray. Since Purcell and Murray, as trustees, acquired the legal title to the leasehold estates as indicated, both having full knowledge of the rights of Mrs. Snowden, they are not protected by the provisions of Article 7425b-8, Vernon’s Ann.Tex.Civ.St. Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471; Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401, (Sup.Ct.); Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985.

Appellant’s contention that it was error for the court to permit the introduction of testimony by Snowden and his wife and others concerning oral agreements and understandings with Purcell, Murray and others prior to the execution and delivery of the assignments in question is likewise overruled. Parol evidence is admissible to impose a constructive trust. Mills v. Gray, supra. The evidence was sufficient to establish a constructive trust, and it is held in such cases that a verbal promise to reconvey is not within the statute of frauds where, as here, the promise is made, between parties who occupy a position of confidential relationship, as a means of acquiring the interest in real estate. To permit a repudiation of the trust agreement in such a case would constitute unjust enfichment.

Special issues 1 through 7 inquired: whether the conveyances to Murray were sales; whether the Snowdens agreed with Murray and associates that Murray was to hold the leasehold interests assigned to him by Sievers on March 21, 1957, in trust to secure any indebtedness of Homer Snow-den to Murray and associates and whether upon payment of such indebtedness one-half of such leasehold interest was to be conveyed to Maxine C. Snowden; whether it was agreed by the parties that Murray as trustee was to hold one-half of the interest assigned to him by Sievers on April 29, 1957 for the purpose of securing any indebtedness of Homer Snowden to Peerless Insurance Company in connection with a bond to be executed by such company, and whether it was agreed that upon payment of such indebtedness to the insurance company said leasehold interest was to be conveyed by Murray to Maxine C. Snowden.

Appellant urges that the court erred in submitting such issues to the jury because appellant contends “none of said issues were supported by the pleadings and evidence” and further that such issues “did not seek to determine facts which would support a judgment declaring a constructive trust.”

Contrary to appellant’s contention it is our opinion that such issues do inquire concerning facts “which would support a judgment declaring a constructive trust.” We have examined the pleadings and evidence and find that such pleadings and evidence supports the submission of the special issues complained of. The Snow-dens alleged the existence of a confidential relationship between them and Sinon A. Murray, in that Murray was representing Snowden as an attorney. They also alleged that the assignments were caused by the Snowdens to be made by Sievers to Murray for certain agreed purposes; that Murray and his associates did not carry* out the purposes for which the leases were assigned to Murray, but that Murray breached the confidential relationship and agreement, and that a constructive trust was thereby created. Peerless Insurance Company also alleged the existence of the confidential relationship, the agreed purpose of the assignment made to secure it, the breach of the agreement and the creation of the resulting trust. In our opinion the trial court properly overruled appellant’s objections to the submission of the special issues complained of.

Appellant further contends that the judgment should be reversed because the court permitted Snowden to testify to the effect that the assignment dated April 29, 1957 was made to Murray as security for the Peerless Insurance Company for having executed the bond required of Snow-den. The objection by appellant was that the proper predicate had not been laid in accordance with the law of the State of Illinois. Appellant sets out in his brief the purported statutory law of the State of Illinois with reference to a surety receiving or taking securities to secure it against losses on account of its execution of a criminal bond.

Appellant urges that since the bond was posted in the State of Illinois that in order for the surety to be able to receive the benefit of security pledged the Illinois statute must be complied with, that is, that the surety must in compliance with the statute, have filed an affidavit setting out what security was given for the bond and who offered the security. Appellant urges that compliance with the statute was a condition precedent to the right to enforce any indemnity agreement; that the general rule is that when a condition precedent is required before a suit can be brought that in order to testify to the facts on which suit is based the parties offering that testimony must first lay a predicate by showing compliance with the Illinois law.

We cannot agree with appellant’s contention that the law of Illinois governs the admissibility of the evidence in question. The bond was required and filed in the Federal court and not in the Illinois State court. This suit was brought in Texas and involves the establishment of a constructive trust covering an interest in land in Texas. Ip our opinion the law of Texas governs the admissibility of evidence in the Texas courts bearing upon establishment of such a trust. As heretofore noted the evidence was admissible under Texas law as an exception to the parol evidence rule to prove a constructive trust. Appellant’s point in this connection is overruled.

Appellant tendered and sought to introduce into evidence a letter and a claim filed in the bankruptcy proceeding of Homer W. Snowden in the U.S. District Court for the State of California. Both of the exhibits were claimed by appellant to have been filed in behalf of Peerless Insurance Company, and to be admissions against interest by Peerless. The effect of such evidence was to show that Peerless was an unsecured creditor of the estate of the said Homer Snowden. Appellant contends that the tendered exhibits are contrary to the contention and testimony of appellees in the instant case to the effect that the assignment of April 29, 1957, was made to Murray to secure the Peerless Insurance Company in executing the Snowden bond. Appellant contends that such evidence was admissible as an admission against interest by Peerless and that the court erred in refusing to receive same in evidence. We cannot agree with this contention.

Peerless certainly had a claim against Homer W. Snowden for any payment it was required to make on the bond executed in his behalf. Snowden was primarily liable therefor. The statements or admissions of Peerless' in the California bankruptcy proceeding were that it had no lien securing its claim against any property belonging to the estate of Homer W. Snowden. The testimony and contention of appellees in the instant case was not that any property belonging to Snowden had been assigned to Murray to secure Peerless, but that property belonging to Mrs. Snowden had been so assigned. The claimed admissions of Peerless in the bankruptcy proceeding are not in conflict with appellee’s contention and testimony in the instant case. It was therefore not reversible error for the court to refuse to admit in evidence the exhibits in question as admissions against interest by Peerless.

Appellant’s points are all overruled. The judgment is affirmed.


author: MURRAY, Chief Justice.

text:
    The STATE of Texas, Appellant, v. F. P. BLANCHARD et al., Appellees.
    No. 14333.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 27, 1965.
    Rehearing Denied Feb. 24, 1965.

      Waggoner Carr, Atty. Gen., T. B. Wright, F. William Colburn, Asst. Attys. Gen., Austin, for appellant.
    Davis, O’Connor, Pullen & Sugerman, San Antonio, for appellees.
   MURRAY, Chief Justice.

This is a condemnation action brought under Art. 3264 et seq., Vernon’s Ann.Civ. Stats. The State instituted this proceeding against F. P. Blanchard and others to condemn their right, title and interest in and to 1.725 acres of land fronting on what is called U. -S. Highway 87, International Highway No. 10, or Fredericksburg Road, and lying in a northwesterly direction from the City of San Antonio, Bexar County, Texas. Prior to the taking, defendant Blanchard owned, subject to the claims of certain taxing authorities, a total of 2.206 acres of land which had been previously subdivided into three parcels. After the taking there remained .481 acres.

Interstate Highway 10 is to be a controlled access highway with roads to be built as a part of such highway, whereby the right of ingress and egress to and from defendant’s remaining property abutting on said highway is not to be denied.

The trial was to a jury and resulted in judgment in favor of Blanchard and the other defendants in the total sum of $9,500.-00, $3,450.00 of which had previously been paid into court, leaving a balance due of $6,050.00, from which judgment the State of Texas has prosecuted this appeal.

During the trial Blanchard placed upon the witness stand three expert value witnesses, namely, Edward J. Orr, John C. Gaston, and Frank M. Drane. As a comparable sale, in arriving at the value of the subject land, these three witnesses used the sale of some land across the highway, some 300 yards to the north, by James M. Blake and wife, Betty, to George W. Delavan. Appellant contends that the court erred in admitting evidence of this sale and not sustaining its motion to strike for the following reasons, to-wit: (1) Such testimony was based in part on an improved comparable sale, while the property being valued by the jury was unimproved, and (2) part of the consideration in such transaction was another property given in trade.

The record shows that after the witness. Orr had testified to his qualifications as an expert value witness, his knowledge of land values in the neighborhood where the Blanchard land is located, his inspection of the subject land for the purpose of determining its market value on September 17, 1963, the date on which the property was. taken by the State, he was permitted, without objection, to give his opinion of the value of the land as follows: The value of all the land before the taking was $17,-250.00; the value of the 1.725 acres taken, considered as severed land, was $16,500.00; the value of the remaining land before the taking was $750.00, and after the taking $2,500.00.

After the above testimony was admitted without objection the following occurred: (Questions were by Robert B. O’Connor, Esq., counsel for appellee, and F. William Colburn, Esq., counsel for appellant).

“Q. Now, Mr. Orr, would you please relate the factual basis upon which you used to establish the value that you just testified to?
“A. Yes, I will. One tract sold for $62.00 a front foot—
“MR. COLBURN; Your Honor, may I ask that the witness be instructed to give all of the background information, the grantor, grantee, date of sale— before we get to the sales price, so that we may determine the comparability of it before we get to the sales price ?
“THE COURT: I think that is a proper request.
“MR. O’CONNOR: That is all right.
“A. Well the first tract of land which sold— which was bought by Mr. George W. Delavan fronting 215— 225 feet effective frontage on Fredericks-burg Road in 1958, with— he had a cost of $14,000.00 or $62.00 a front foot.
“MR. COLBURN: Your Honor, may I ask the witness some questions about this particular sale on voir dire, please ?
“THE COURT: Yes, sir.
“QUESTIONS BY MR. COLBURN:
“Q. Mr. Orr, as any good appraiser would, I assume you investigated this sale thoroughly before you used it as a portion of the basis of arriving at your opinion ?
“A. Yes, sir. I did.
“Q. All right, sir. I believe— I don’t know whether you gave the parties to that sale or not, but it was James M. Blake and wife, Betty, to George Dela-van?
“A. That is correct.
“Q. On August 26,1958?
“A. That is also correct
“Q. And the deed is recorded in volume 4191 at page 481?
“A. I assume that is correct. I have the volume and page.
“Q. All right, sir. Now, at the time that property was sold it had a filling station, some living quarters and some other house behind it; did it not?
“A. It had the— All of the improvements of value were sold off the following year, and the improvements of no value were torn down and left nothing but -the vacant tract. He sold off the improvements of value for $11,000.-00; it cost him twenty-five, and he had a basis of $14,000.00.
“Q. All right, sir. Without reference to the cost again, let’s make sure it is properly a matter for the Jury to consider.
“A. Okay.
“Q. I’m going to hand you what has been marked as Defendant’s Exhibit No. 17 and ask you if, as a matter of fact, that house was not located .on the property at the time of the sale?
“A. This was part— this house and 90 foot frontage was included in the sale.
“Q. Ninety foot frontage on Hausman' Road?
“A. That is correct.
“Q. And that house subsequently resold from Mr. Delavan to Mr.—
“A. Higgindorth.
“Q. —Higgindorth. So, that you wouldn’t say that that improvement had no value?
“A. No. This improvement had value, hut it was sold at its market value, period.
“Q. All right, sir. Then, did you also find in your investigation into this property that a trade was part of the basis for that?
“A. I didn’t know the full details. There was a trade of a lot.
“Q. The next deed after this one that you talked about' — from Blake to Dela-van — indicates a trade. Mr. Delavan deeded a lot in Dell Oak Park to Mr. Blake; is that correct?
“A. That is correct.
“Q. All right, sir. Now,— So, then you would say that in this transaction you are telling the jury about, there was a trade involved plus the fact that this house was on the property? (Emphasis added.)
“A. Yes, sir. That is correct.
“MR. COLBURN: Your.Honor, at this time we will object to the admission of that sale and ask that it be stricken and the Jury instructed not to consider any testimony with regard to it. The sale was obviously improved; there was a resale of a portion of it with an improvement still on it, a picture of which Defendant has introduced in evidence, plus the fact that a trade was part of the consideration, and we don’t feel it is proper in this suit where we are attempting to arrive at the value of the vacant property.”

This was followed by considerable discussion by counsel in the presence of the court. Mr. O’Connor contended that inasmuch as the house and lot on the rear of the property had been sold by Delavan for $11,000.00, and the filling station and living quarters demolished and carried away as worthless, the sale was reduced to a sale of the vacant lot for $14,000.00, the original total consideration being $25,000.00. Mr. Colburn pointed out that a part of the total consideration was a lot conveyed by Delavan to Blake, and its true market value was not shown; that the filling station and living quarters, which were demolished, were not shown to be worthless, therefore it was not established that Delavan paid $62.00 per front foot for the corner lot.

The trial court overruled the objection and motion to strike with the following comment: “I think the Court is going to go ahead and let it in. I believe your objection goes to the weight with the explanation that has been stated.”

O’Connor as counsel for Blanchard asked no further questions of Orr as to the Blake-Delavan sale, and Orr gave no further testimony as to that sale.

A serious question is here presented as to whether a timely objection was made, and as to whether appellant is in a position to complain when it is the one who developed the testimony before the jury. In 3 Tex.Jur.2d, p. 392, § 122, the following statement is made:

“An objection to the admission of evidence must be timely made, that is, it must be made when the evidence is offered, not after it has been received. The practice of permitting an improper question to be answered before objection is .neither proper nor fair. If questions asked a witness are so framed as to apprise counsel of the nature of the answer attempted to be elicited, an oh-jection comes too late when not made until the witness has fully testified. But if the incompetency does not appear until after testimony has been given, the proper practice is to move to have the evidence excluded so that the point may be preserved for appeal.”

When Orr was asked to state the factual basis upon which he established the value he had testified to, he gave the following answer: “Yes, I will. One tract sold for $62.00 a front foot.” This answer was clearly improper as an attempt to show what another parcel of land sold for, without giving any of the facts concerning the parties, the land, or the terms of the sale, and no doubt the answer would have been stricken upon proper objection or motion at the time, but appellant’s counsel made no objection, he merely asked “that the witness be instructed to give all of the background information, the grantor, grantee, date of sale— before we get to the sales price, so that we may determine the comparability of it before we get to the sales price.” The court stated, “I think that is a proper request”. Orr then testified as follows:

“Well,’ the first tract of land which sold — which was bought by Mr. George W. Delavan fronting 215— 225 feet effective frontage on Fredericksburg Road in 1958, with— he had a cost of $14,000.00 or $62.00 a front foot.”

Counsel for appellant again did not object to this testimony or ask that it be stricken, he only asked leave to question the witness on voir dire, and then proceeded, in the presence of the jury, to question Orr as to all the details of the Blake to Delavan sale. It is clear that he realized he was developing these facts before the jury, as in one place he stated: “So, then you would say that in this transaction, you are telling the jury about, there was a trade involved * * *?” After appellant’s counsel had developed all of the facts above stated, he made the following: statement to the court:

“Your Honor, at this time we will object to the admission of that sale and ask that it be stricken and the Jury instructed not to consider any testimony with regard to it. The sale was obviously improved; there was a resale of a portion of it with an improvement still on it, a picture of which Defendant has introduced in evidence, plus the fact that a trade was part of the consideration, and we don’t feel it is proper in this suit where we are attempting to arrive at the value of the vacant property.”

The court overruled the objection and request, and nothing further was offered by Orr on the Blake to Delavan sale. Orr did testify as to other alleged comparable sales.

It occurs to us that counsel for appellant did not timely object to the evidence, and he developed before the jury practically all the evidence of which he now complains. Appellant is not now in a position to complain because the jury heard this evidence when it was produced before the jury in answer to questions propounded tc Orr by appellant’s own counsel. Hubbard v. Harris County Flood Control Dist., Tex.Civ.App., 286 S.W.2d 285; 3 Tex.Jur.2d, p. 390, § 121 et seq.

However, if we be mistaken in this, conclusion then the error, if any, in overruling the objection and request was waived when appellant introduced substantially the same evidence by the witness Drane. Drane did not mentioned the Blake to Delavan sale in his direct testimony, but after counsel for appellees had completed his direct examination of the witness Drane, counsel for appellant took Drane, upon regular cross-examination, and again fully developed the same evidence relating to the Blake-Delavan sale which he is now objecting to and claiming that its introduction before the jury was reversible error. Even after he had finished with testimony by Drane he did not ask that it be stricken and removed from the consideration of the jury. It was only after appellees had rested, and after appellant had placed three value witnesses of its own upon the witness stand, and they had fully testified, and after both sides had rested and the witnesses had been excused, did it file a motion to strike the testimony of Orr, Gaston and Drane. Such motion clearly came too late. After developing the testimony from Drane, appellant waived any objection it might have had to such testimony. Medina Electric Cooperative, Inc. v. Ball, Tex.Civ.App., 368 S.W.2d 227; Hubbard v. Harris County Flood Control Dist., supra; 3 Tex.Jur.2d, p. 390, § 121 et seq.

By Points Nos. Nine, Ten, Eleven, Twelve, Thirteen and Fourteen, appellant assigns as error the court’s action in overruling and not sustaining its objection to the introduction of testimony based in part upon the comparable sales from (1) Anderson to Ploch, (2) Anderson to Nabers, (3) Anderson to Nabers (a second sale), (4) Bertetti and Cassidy to Pipe Investment Company, because such sales were of property fronting on the completed portion of the same highway for which appellees’ property is being taken, and reflected enhancement in value flowing from the construction of such highway to such adjoining property.

All of the above testimony was admitted without objection or motion to strike at the time it was introduced in evidence, and some of the testimony was solicited by counsel for appellant during his cross-examination. As heretofore stated, appellant waited until appellees had rested their case, then after it had placed three value witnesses on the stand and had them fully testify, and after both sides had rested and the witnesses had been excused, it made the following motion:

“MOTION TO STRIKE TESTIMONY

“MR. COLBURN: Comes now the State of Texas and moves to strike from the record and remove from the consideration of the Jury the sales from Anderson to Ploch Oil Company, from Anderson to Nabers, from Bertetti to Humble Oil and Refining Company and from Bertetti to Pipe Investment Company on the grounds that the undisputed evidence discloses that all those sales, or each of those sales, front on the highway for which Mr. Blanchard’s property is being taken and would therefore reflect whatever influence the highway might have had on the property after it was established. Respectfully submitted.”

This motion, as well as the one first discussed, came too late and the trial court did not err in overruling it. Rule 373, Texas Rules of Civil Procedure; Nalle v. Gates, 20 Tex. 315; Robson v. Watts’ Heirs, 11 Tex. 764; Pelphrey v. Diver, Tex.Civ.App., 348 S.W.2d 453; Kelso v. Wheeler, Tex.Civ.App., 310 S.W.2d 148; Hubbard v. Harris County Flood Control Dist., supra; Texas Emp. Ins. Ass’n v. Hicks, Tex.Civ.App., 271 S.W.2d 460; Halsey v. Humble Oil & Ref. Co., Tex.Civ.App., 66 S.W.2d 1082; 3 Tex.Jur.2d p. 390, § 121 et seq.

In view of the disposition we have made of the above assignments of error, appellant’s remaining assignments are without merit and are overruled.

The judgment is affirmed.


author: BATEMAN, Justice.

text:
    The STATE of Texas, Appellant, v. James W. CHERRY et al. (1963 Pontiac Automobile), Appellees.
    No. 16493.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 8, 1965.
    Rehearing Denied Feb. 19, 1965.

      Henry Wade, Dist. Atty., and John J„ Orvis, Asst. Dist. Atty., Dallas, for appellant.
    June R. Welch, Dallas, for appellees.
   BATEMAN, Justice.

This is a suit by the State of Texas for forfeiture of a 1963 Pontiac automobile alleged to have been used in the transportation, concealment and possession of contraband narcotics. The suit was pursuant to-Art. 725d, Vernon’s Ann.Penal Code. The car was seized on July 3, 1963 while in the-possession of James W. Cherry. On September 4,1963 the State filed its petition entitled “Notice of Seizure and Intended Forfeiture,” alleging Cherry to be the record owner.

At the time of the seizure the automobile bore Georgia license plates. It was seen by two Dallas city policemen at about 4:00-o’clock in the morning being operated at a high rate of speed. When they overtook the car a preliminary search for weapons revealed a bottle of pills on Cherry’s person,, which led to further search and the discovery of narcotics in the car. The Dallas police then undertook to ascertain from the appropriate department of the State of Georgia who the licensed owner of the automobile was. Correspondence between: Dallas and Atlanta, Georgia began shortly after July 3, 1963 and apparently ended with receipt by an Assistant District Attorney of' Dallas County of a letter dated August 19, 1963, from the Department of Revenue,. Motor Vehicle Unit, State of Georgia,, which revealed that, although license plates-for the car in question had been issued to-James W. Cherry, no certificate of title had been issued to him because his application was not accompanied by a Manufacturer’s. Statement of Origin. Georgia notified the Assistant District Attorney by letter dated'. August 15, 1963 that Cherry’s application: did not show the name of any lien holder.

Although not named as a party, Edytha-Pollock Cherry filed an answer in which ■she denied under oath that the automobile was used in violation of Articles 725b, 726d and 725d of the Penal Code of Texas. Her testimony established without dispute that she was the owner of the car, having purchased it prior to her marriage to James W. Cherry. She resided in Alabama and knew nothing of Cherry’s efforts to register the car in his own name in Georgia. The purchase price of the car was fully paid.

L. C. Johnson intervened in the suit claiming a valid lien on the car given him by Edytha P. Cherry. His undisputed testimony showed that after the seizure of the automobile and arrest of Cherry on July 3, 1963 he had become surety on several bail bonds for Cherry and that to secure himself against loss thereon he had obtained from Mrs. Cherry a bill of sale to the automobile dated July 26, 1963. In addition to this bill of sale, Johnson introduced in evidence an instrument also dated July 26, 1963, consisting of a promissory note signed by James W. Cherry payable to Johnson in the sum of $3,500 and a chattel mortgage on the automobile. He also testified that when he first became interested in the matter the automobile was in possession of the Dallas Police Department, that he discussed the matter with Mr. John Orvis, Assistant District Attorney of Dallas County, telling him that he was contemplating taking the automobile as security on the bonds, and that Orvis told him that he had had no notification that any forfeiture was to take place and that he felt that if there was going to be a forfeiture it would already have been filed because Cherry had then been in jail about a month; that Orvis told him that forfeitures had to be filed immediately and, since it had been almost thirty days since the seizure, he didn’t see how they would file a forfeiture on it, and that he “didn’t have time to fool with those things until they were actually presented” to him.

John Orvis, Assistant District Attorney of Dallas County, testified that he told Johnson and his attorney that he did not have the case and did not know if it would be turned over to the Federal authorities or if it would be referred to his office; that his office had not accepted it and that he had no power whatsoever to release the automobile; that he did not tell Johnson that no forfeiture proceedings would be filed; that he had no discretion at that time either to accept the case or release it. Orvis also testified that this matter was referred to his office about the middle of August 1963, which was during vacation time, that pleadings were drawn and sent back to the Dallas Police Department for the signature and oath of the seizing officer, and were returned to his office “around about Labor Day, 1963.”

The jury found in response to special issues: (1) through (6) that immediately before its seizure the automobile in question was being used to transport, conceal and possess certain narcotic drugs; (7) that they did not find that James Walter Cherry was the owner of the automobile on July 3, 1963, but (8) that Edytha Pollock Cherry was; (9) that there was no lien on the automobile on July 3, 1963; (10) that after seizure of the automobile John Orvis did not represent to L. C. Johnson that the State of Texas would not institute proceedings to forfeit such automobile; (14) that S. O. Sorsby (the seizing officer) failed to file a notice of seizure of the automobile in question immediately with the Clerk of the District Court of Dallas County; (15) that L. C. Johnson accepted the automobile in question as security for bail bonds made by Cherry in reliance upon the failure of the State of Texas to file notice of forfeiture immediately after the seizure of the automobile ; (16) that the State did not waive its right to forfeit the automobile in question; and (17) that $1,855 was still owing and unpaid by Cherry and wife for the making of bail bonds by L. C. Johnson. Appellant moved for judgment on the verdict, which motion was overruled, and the court rendered judgment that appellant take nothing by its suit, that the forfeiture be denied and that appellant deliver the automobile to Edytha Pollock Cherry, owner, or to L'. C. Johnson.

The appellant contends under four points of error that the undisputed facts, together with the jury findings in response to Special Issues 1 through 6, clearly establish the right of appellant under the provisions of Art. 725d, V.A.P.C., to the forfeiture, despite the other findings. The appellees contend, on the other hand, that appellant did not -fully comply with the requirements of Art. 725d, in that (1) it did not ascertain and notify the owner and lien holder, as required by Subsections (c) and (d) of Section 4 of the Act, and (2) the forfeiture notice was not filed “immediately”, as provided in the first sentence of Section 4 of the Act, arguing that the provisions of a forfeiture statute must be strictly construed and that under such strict construction the State must be held to have lost its right of forfeiture.

This statute was carefully analyzed by our Supreme Court in State v. Richards, 157 Tex. 166, 301 S.W.2d 597. As pointed out therein, the language of the first clause of Section 2 is sufficiently broad and comprehensive to require the forfeiture of the property rights of all persons interested in a vehicle used in the transportation of contraband drugs, regardless of their complicity or innocence of any wrongdoing; and that provision is then made for the protection of innocent common carriers, bona fide lien holders and owners whose vehicles are unlawfully taken from them by the wrongdoer. It was held in that case that an automobile loaned by an innocent owner to one who used it unlawfully in this respect was subject to forfeiture, and that the statute does not contravene due process.

As we view the record before us, the appellant proved all elements of its case entitling it to a forfeiture of the automobile. The owner, Edytha Pollock Cherry, did not and does not contend that the automobile had been unlawfully taken from her possession. Therefore, her rights were lost to her by reason of her husband’s use of her automobile for the transportation of the narcotics. State v. Richards, supra.

Johnson is in no better position to claim that the forfeiture proceedings were invalid as to him. At the time of the seizure he had no interest whatever in the automobile. His lien was created after the seizure, while the automobile was in possession of the Dallas Police Department, and with knowledge on the part of Johnson that it had been seized and was subject to forfeiture because ,of the narcotics found therein. Appellees’ claim that the State lost its right of forfeiture by failing to ascertain the names of the owner and lien holder and make them parties to the suit, is without merit. They evidently had actual notice and made themselves parties to the suit and participated in the trial.

Appellees’ second contention is that the right to forfeiture was eliminated by the jury findings (14) that the seizing officer did not file the notice of seizure and intended forfeiture immediately, and (15) that Johnson relied on such failure in taking his lien. This gives us somewhat greater concern. We need not decide whether Special Issue 14 erroneously propounded to the jury a question of law rather than one of fact because our conclusion would coincide with that of the jury—we would hold as a matter of law, under the undisputed facts, that the notice was not filed “immediately”.

Even so, however, we do not think this destroyed the State’s right to forfeit the automobile, for we regard the provision in Section 4 for filing “immediately” as directory and not mandatory. Section 5 of the same Act also contains a restriction as to time in that it provides that the hearing on forfeiture shall be held within thirty days of the date of filing answer, but it was held in McKee v. State, Tex.Civ.App., 318 S.W.2d 113, wr. ref. n. r. e., that this provision was merely directory and not mandatory. We agree with this decision and, so far as we can ascertain, no Texas court has held to the contrary. The same reasoning and the same authorities cited in that case would be applicable to a construction of Section 4 of the same Act. Both sections of the statute use the word “shall” but this does not automatically or necessarily render either provision mandatory. A consideration of the entire Act and the purposes sought to he achieved thereby will not permit us to hold that the legislature intended the provision in question to be mandatory, especially in the absence of words indicating a legislative intent to do more than provide for “the proper, orderly and prompt conduct of business.” Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945.

However, if we be mistaken in so holding, we nevertheless are of the opinion that the appellees acquired no rights by the failure of the officers to comply with the statutory requirement in question. This provision of the statute is obviously for the benefit of innocent owners, whose vehicles have been unlawfully taken from them and then used in the illegal drug traffic, and innocent lien holders who have valid liens in existence at the time of the illegal use of the vehicle, and not for the benefit of persons situated as are the appellees here. Therefore, jury findings in response to Special Issues 14 and 15 are immaterial in determining appellees’ rights.

The right of the State to forfeit a vehicle used in this vicious illegal traffic comes into existence instanter upon the commission of the proscribed act, and it remains only for the State to perfect its title by seizing the vehicle and obtaining the decree of forfeiture. 7 Fifths of Old GrandDad Whiskey v. United States, 10 Cir., 158 F.2d 34, cert. den. 330 U.S. 828, 67 S.Ct. 870, 91 L.Ed. 1277. The law specifies those innocent persons whose rights may transcend that of the State; and appellees simply failed to carry the burden of showing their inclusion within that favored group. Appellant’s four points of error are sustained.

Appellees’ brief contains six cross points whereunder they contend that they were entitled to judgment as a matter of law regardless of the jury findings because: (1) appellant failed to prove the search and notice required by Art. 725d prior to proceeding with the trial; (2) the notice was not filed “immediately”; (3) the evidence pertaining to “narcotics violations” resulted from “illegal searches and seizures” and (4) was inadmissible because the officers failed to give Cherry a receipt for the narcotics and failed to file an inventory thereof with a magistrate; (5) if appellant were entitled to forfeiture, Johnson would be entitled to the automobile or to recover the proceeds of its sale to the extent of his lien; and (6) appellant either waived its right to forfeit the car by waiting 63 days to file the action or, in the alternative, was estopped to deny Johnson’s lien.

These cross points are overruled for the following reasons:

1. The requirements of Subsections (c) and (d) of Section 4 of the Act were complied with to the extent that it was possible to do so. In any event, the record does not reflect that the judge or either appellee objected to going to trial, from which circumstance we deduce that the appellees as well as the judge must have been “satisfied” that those provisions had been complied with. Moreover, both appellees had actual notice and participated in the trial.

2. Our views on the right of appellees under the circumstances to raise the question of delay in the filing of the notice are expressed above and apply here.

3. Cherry was arrested for speeding after a chase at 100 miles per hour in a zone where the speed limit was 35 miles per hour. This gave the officers the right without a warrant to search the automobile he was driving. Brown v. State, 159 Tex.Cr.R. 306, 263 S.W.2d 261; Soileau v. State, 156 Tex.Cr.R. 544, 244 S.W.2d 224; Richardson v. State, 163 Tex.Cr.R. 585, 294 S.W.2d 844. “The arrest being lawful, the search of the car was also lawful.” Minor v. State, Tex.Cr.App., 219 S.W.2d 467, 470.

4. The provisions of Sec. IS, of Art. 725b, V.A.P.C., for the giving to the person from whom narcotics are taken a receipt therefor and filing a sworn inventory thereof with a magistrate are directory and not mandatory. The evidence was admissible. Jones v. State, 169 Tex.Cr.R. 175, 332 S.W.2d 560; McKee v. State, Tex.Civ.App., 318 S.W.2d 113, wr. ref. n. r. e.

5. Having already held that Johnson’s lien rights were inferior to the right of the State to forfeit the automobile, we hold that to allow him to recover his debt out of the proceeds of the sale, under the circumstances disclosed by this record, would defeat the salutary purposes of the statute authorizing the forfeiture.

6. The jury found against the claim of waiver in response to Special Issue 16, and it is not contended that this finding lacks support in the evidence. As to estop-pel, based on Johnson’s claim that the Assistant District Attorney led him to believe no forfeiture action would be filed, we hold: (a) the State cannot be estopped from enforcing its criminal laws by anything said by an assistant district attorney in private conversation; and (b) the jury’s failure to find that Orvis represented to Johnson that the State would not institute forfeiture proceedings, supported by competent evidence, destroys the only basis claimed for the plea of estoppel.

Since we hold the findings in response to Special Issues 14 and 15 to be insufficient to support the judgment, and that the trial court should have granted appellant’s motion for judgment, we reverse the judgment and here render judgment of forfeiture in favor of appellant pursuant to applicable provisions of Art. 725d, V.A.P.C., with the proceeds of sale, after deduction of all storage and court costs, to be deposited in the General Revenue Fund. State v. Meyers, Tex.Civ.App., 328 S.W.2d 321, wr. ref. n. r. e.

Reversed and rendered.


author: SELLERS, Justice.

text:
    TEXAS TELEPHONE & TELEGRAPH COMPANY, Appellant, v. SABINE COUNTY RURAL CITIZENS COUNCIL et al., Appellees.
    No. 111.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 4, 1965.

      James G Winters, Blades, Crain, Slator & Winters, Houston, for appellant.
    Hugh O. Lea, Hemphill, for appellees.
   SELLERS, Justice.

Appellees, Sabine County Rural Citizens Council and Newton County Rural Citizens Council, as plaintiffs, sued defendant, Texas Telephone & Telegraph Company, in the District Court of Sabine County. This defendant timely filed its plea of privilege in due form to be sued in Harris County. The plaintiffs filed a controverting plea to defendant’s plea of privilege.

The material allegations contained in the controverting plea of plaintiffs are as follows:

“Plaintiff denies, and here avers to the untrue and false, the following allegations of Defendant contained in such plea of privilege: That Defendant was not at the time of service of process a resident of Sabine County, Texas, that Defendant was not such a resident at the time of the filing of such suit, that Defendant is not such a resident at the time of the filing of such plea; that no exception to exclusive venue in the County of one’s residence, provided by law, exists in such case.
“Plaintiffs petition alleges facts which show and aver and it is a fact, that Defendant corporation does business in Sabine County, Texas, has a business office in Sabine County, Texas, has done business with Plaintiffs, charging and collecting money, all in Sabine County, Texas, has made contracts with Plaintiffs in Sabine County, Texas, which legality are the subject matter of this cause, all within the meaning of exception 5 and exception 23 to Article 1995 of Vernon’s Annotated Civil Statutes.”

After hearing, the trial court entered its judgment overruling the plea of privilege to which action the defendant in due order excepted to the ruling of the court and has prosecuted an appeal to this court.

The plaintiffs in the trial court, appellees here, have filed no brief in support of the trial court’s ruling. The defendant in the trial court, appellant here, at the outset of this appeal questions the sufficiency of the controverting plea to justify the trial court’s ruling, and we are of the opinion that the contention of appellant must be sustained, and the ruling of the trial court reversed and the cause ordered transferred to the District Court of Harris County, Texas.

It will be noted that the controverting affidavit does not have attached to it a copy of plaintiffs’ petition, nor does it incorporate allegations thereof by reference or otherwise. The controverting affidavit does not undertake to set out the facts constituting the plaintiffs’ cause of action. It is a well established rule that a controverting affidavit to a plea of privilege must contain sufficient allegations within itself, or by appropriate reference, to set out a cause of action triable in the county where the suit is filed, and a failure to do so renders the controverting affidavit insufficient. Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347; Faught v. Cloud, Tex.Civ.App., 131 S.W.2d 137, and authorities therein cited.

The judgment of the trial court is reversed and the cause ordered transferred to Harris County, Texas.


author: DIXON, Chief Justice.

text:
    Mildred M. DOUGLASS, Appellant, v. Hardy SIMS, Appellee.
    No. 16440.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 12, 1965.
    James D. O’Connor, Dallas, for appellant.
    Roy P. Cookston, Dallas, for appellee.
   DIXON, Chief Justice.

Our former opinion in this appeal is withdrawn and the following opinion is substituted therefor.

Appellant Mildred M. Douglass seeks to appeal from a suinmary judgment for $724.-48, said amount being the principal, interest and attorney’s fee which the trial court found to be due on a promissory note signed by appellant payable to appellee Hardy Sims.

Appellee’s motion for summary judgment is supported by an affidavit executed in the form prescribed by Rule 166-A, Texas Rules of Civil Procedure, to which affidavit the original note was attached.

Appellant filed a so-called controverting affidavit which is not in the form prescribed by the rule in several particulars. Among them is this: appellant’s signature follows immediately after the statements contained in her purported controverting affidavit, but the oath itself is not signed by her. There is a line for her signature but the space above the line is blank. Following the blank space above the line for appellant’s signature is the notation that the instrument was sworn to before James D. O’-Connor, notary public, whose signature follows. James D. O’Connor is appellant’s attorney of record.

. Appellee has filed a motion to strike the transcript and dismiss the appeal. After carefully reviewing the record we have concluded that the motion should be sustained.

The record discloses that the judgment was signed November 5, 1963. Appellant filed a motion for new trial November 13, 1963. The motion was never presented or acted on by the court, so was overruled by operation of law 45 days later, December 28, 1963.

On March 13, 1964 appellant filed a motion for an extension of time to file the transcript. In her motion appellant alleged that she had filed an answer to appellee’s suit but that said answer had become misplaced and additional time was needed to locate the missing pleading so that it could be included in the transcript. She alleged “that the sole reason for not filing the transcript in this court on time was -the loss of the answer filed by appellant in the trial court.” On March 27, 1964, over appellee’s objection, we sustained appellant’s motion, granting her an extension of 30 days “from and after the expiration of the time required by law.”

On April 13, Í964 appellant filed an application for leave to file a second motion for extension of time to file the transcript in the case. In this motion appellant stated that the transcript was ready to be filed should this court see fit to grant a further extension. The second motion correctly stated that the transcript was originally required to be filed February 26, 1964. On April 24, 1964 in acting on this motion we corrected our order of March 27, 1964, the effect of the correction being to grant appellant an extension of time of 30 days from March 27, 1964 to file the record.

Appellant filed the transcript on April 24, 1964. However, the transcript does not include a copy of appellant’s alleged answer which she had stated in her original motion for extension had been lost. Neither does the record show that any attempt has been made to comply with Rule 77, T.R.C.P., which provides a means for supplying lost records and papers.

On September 18, 1964 at the same time-he filed a supplemental brief, appellee filed his motion to strike appellant’s transcript and to dismiss the appeal. This motion renews appellee’s attack on the late filing of appellant’s transcript.

As we have said, the transcript as filed still does not contain a copy of appellant’s alleged answer to appellee’s suit on the note signed by appellant and there is no showing that any attempt has been made to supply the missing instrument. It is plain that the transcript as now made up could easily have been filed within the 60-day period ending February 26, 1964.

Compliance with Rule 386, T.R.C.P.. is mandatory and jurisdictional in nature. Failure to comply with the rule cannot be waived. Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587; Ortiz v. Associated Employers Lloyds, Tex.Civ.App., 294 S.W.2d 880; Armstrong v. West Texas Rig Co., Tex.Civ.App., 339 S.W.2d 69; Hedley Ind. School Dist. v. Doneghy, Tex.Civ.App., 358 S.W.2d 724.

In the light of the undisputed facts as now shown by the record, we hold that we do not have jurisdiction of appellant’s appeal. Our orders of March 27, 1964 and April 24, 1964 are set aside. An order will be entered striking appellant’s transcript and dismissing appellant’s attempted appeal-

Dismissed.


author: MASSEY, Chief Justice.

text:
    N. E. GUTHRIE, Jr., Appellant, v. NATIONAL HOMES CORPORATION, Appellee.
    No. 16603.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 29, 1965.
    Rehearing Denied Feb. 26, 1965.
    Short & Smith, and Ray Gene Smith, Wichita Falls, for appellant.
    Fillmore, Schaeffer & Fillmore, and Roy Schaeffer, Wichita Falls, for appellee.
   MASSEY, Chief Justice.

As originally filed the plaintiff was National Homes Corporation and the defendants were N. E. Guthrie, Jr. and John D. Crow. Plaintiff obtained judgment against both defendants, jointly and severally. Crow did not appeal, but Guthrie did. Our relation of the controversy will, therefore, primarily bear upon the same as it existed between the plaintiff and Guthrie.

Recovery under the judgment was upon allegations as in a suit on a promissory note. Indisputably, there was a balance owing on the note. The suit was between the original parties to the transaction and note, the same having been executed by Crow, allegedly as agent of Guthrie for the purpose. Guthrie’s signature did not appear on the instrument. Indeed, Crow signed the note as “Crow” and the name “Guthrie” nowhere appeared.

As between the original parties a promissory note is a simple contract until it takes on peculiar features through negotiation by the payee or as may be expressly declared by statute. Certainly, as between the original parties, such an instrument is in Texas a simple contract governed by the fundamental rules applicable to contract law. 11 Am.Jur.2d 29, “Bills and Notes”, § 1 “Contracts and bills and notes compared” ; 9 Tex.Jur.2d 12, “Bills and Notes”, § 1, “In General”; 11 Am.Jur.2d 716, “Bills and Notes”, § 653, “(Effect of holder in due course status) — Absence of such status”.

With such recognized as the law applicable to the instant case we have little difficulty resolving one question posed. Guthrie contends that he may not be held liable as a principal obligor on the note because his signature does not appear thereon. There is no statement of facts. Under the jury findings (which are a part of the record presented to us) it was established that though the note was executed for his sole benefit Guthrie had not theretofore authorized the execution. Under further findings of the jury it was found that he did thereafter ratify its execution. Guthrie assumed the obligation to and did make payments upon the note. In the judgment credit was given for the payments so made.

Under principles of the doctrine of agency, particularly those applicable to ratification by that disclosed principal for whom an agent purported to act though not thereunto authorized at the time, and in respect to assuming payment of a note bearing only the signature of the one whose obligation is ratified (as though its execution was originally directed by the principal), we hold that Guthrie became a party primarily obligated upon the note. See sections under Chapter 4, Topics 1 to 4, inclusive, Restatement of the Law on Agency. We may assume that the evidence of Crow and plaintiff showed that Crow professedly executed the note on Guthrie’s account, in the belief that he was thereunto authorized. Although not binding on Guthrie at the time it could have been had the execution been directed by him. That being true he could later ratify, as the jury found he did.

Under one point another material question for determination relates to the matter of what sum should be treated as the original principal amount owing. As prepared, the note’s principal sum was expressed in words as “Five Thousand Eighty and 00/100 Dollars”. The sum payable, as expressed in figures (sometimes referred to as marginal figures in the corner of the note), was the amount $5,780.00.

Texas adopted the Uniform Negotiable-Instruments Act in 1919. It appears as Article 5932 et seq. in Vernon’s Annotated Texas Statutes. Section 17 thereof, under subsection 1, provides that where the sum is expressed in words and also in figures and there is a discrepancy between the two, the sum denoted by the words is' the sum payable. Based 'upon this and other language in the Act it is impliedly provided that parol evidence, which would show that the sum expressed in figures (and not the sum expressed in words) was the true principal sum, should be disregarded and' treated as incompetent evidence.

This is Guthrie’s contention. He says that if he is primarily liable upon the nóte (which, we have hereinabove held) the unpaid balance owing on the principal indebtedness should be $80.00 and not $780.00 as contemplated by the judgment of the trial court. Our question is: must we treat the original principal sum as the amount expressed by words, $5,080.00, or may we consider evidence introduced to show that the proper contractual sum agreed upon by the parties was $5,780.00, and that the amount expressed by the words was incorrect and inadvertently written. There is no statement of facts, so we are obliged to view the record as though such was shown by evidence.

Under the general rules applicable in construction of contracts it might be said that presumptions to be made from the instrument itself would be contradictory. One such would be that the written words would be treated as correct when they contradicted the figures. Another would be that the construction would be that the figures would be treated as reflecting the proper amount because the contract should be construed most strongly against the party who drew or wrote it and was responsible for the language used. We do not doubt, however, that the ambiguity existent is as to the intent of the parties relative to the amount to be inserted as that agreed to be paid. In such an instance parol evidence is admissible. 13 Tex.Jur.2d 264, “Contracts,” § 110, “Function of court and jury.”

Although we know of no case where such has been expressly held as •applied to the aforementioned section and ■subsection of Article 5932, “Negotiable In•struments Act”, we have no doubt that it would be proper to treat as admissible evidence of such an error and mistake. Such evidence would have probative force and effect to establish the true and correct amount upon which the parties contracted and by which they should be bound. It is to be remembered that the instrument, although a negotiable instrument, had not been negotiated. The parties to the cause of action were to be treated as “original” parties as applied to the contractual transaction.

Since we have no statement of facts we may not be certain that parol evidence to the effect that $5,780.00 was the proper amount was contradicted by any other evidence. The form of special issues, answered by the jury in favor of the plaintiff, indicates that there was controversy over the correct amount, but we would not be bound to believe there was contradictory evidence merely because such issues were submitted. We are obliged to treat the amount of $5,780.00 as certainly established without contradiction. Guthrie’s point of error merely complains of the trial court having admitted and considered parol evidence. It is overruled.

Other points of error complain of the trial court’s action in overruling Guthrie’s motion for instructed verdict and his motion for judgment non obstante veredicto. Premise for both complaints lies in Guthrie’s contention that he may not be held liable since his signature did not appear on the note. We have already held that presence of his signature was not essential to the imposition of liability.

Judgment is affirmed.


author: BRADY, Commissioner.

text:
    Orville HANDSHY, Plaintiff-Respondent, v. NOLTE PETROLEUM COMPANY, Defendant-Appellant.
    No. 31642.
    St. Louis Court of Appeals. Missouri.
    Feb. 16, 1965.
    Heege & Heege, George F. Heege, III, Thomas W. Wehrle, Clayton, for defendant-appellant.
    Marvin Klamen, Clayton, William P. Byrne, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

This appeal has recently come to this writer by reassignment. This is an action for personal injuries in which the respondent, upon jury trial, recovered judgment in the amount of $6,000.00. The appellant’s timely after-trial motions were overruled and it has perfected this appeal. The parties will hereafter be referred to by their designation in the trial court.

The defendant advances four allegations of prejudicial error among which is the contention that the trial court erred in instructing upon general negligence because the uncontradicted evidence showed the specific negligence. This contention is decisive of this appeal, and we will therefore limit our recitation of the factual situation to those facts bearing upon that issue. However, it should be pointed out that the other allegations of prejudicial error raised by defendant deal with the trial court’s action in admitting certain testimony over objection, in excluding from evidence certain exhibits, and in giving the measure of damages instruction. There is no contention that plaintiff failed to state a cause of action nor that the trial court improperly ruled defendant’s motion for a directed verdict offered at the close of all the evidence on the basis that plaintiff had failed to make a submissible case.

The plaintiff pleaded that the defendant’s employees “ * * * negligently and carelessly delivered said fuel, causing said fuel to overflow onto plaintiff’s property”; that by reason of “ * * * said negligence aforesaid, plaintiff’s property became in imminent peril of damage and destruction”; and “[t]hat while acting to protect his property, plaintiff was caused to fall down a flight of steps, injuring him thereby.” The injuries to the plaintiff were described in detail. The defendant denied the pertinent allegations of the petition and alleged plaintiff was contributorily negligent in that plaintiff failed to “ * * * look, watch or observe * * * ” where he was walking and negligently walked into the spilled oil without making any effort to clean the oil away.

On the date with which we are here concerned the plaintiff was sitting in an office he maintained in his home. The defendant’s employees regularly delivered fuel oil to the plaintiff, and on this occasion the truck pulled up in front of the house and one of the defendant’s employees, Eugene Wood, the driver, got the hose out and carried it up to the fill pipe which was located right by the door of plaintiff’s house. Wood then knocked on plaintiff’s door and plaintiff told him to fill the tank. Wood then started the flow of oil into plaintiff’s tank. When the truck motor, which has to be running to pump the fuel oil, began to slow down, Wood left the hose and nozzle with his helper Black and went to the front of the truck to “rev” it up. The tank became full and Black attempted to turn the oil off but didn’t know how to operate the nozzle and the oil ran out of the fill pipe and onto plaintiff’s patio. Plaintiff went to the window and saw Black standing there with the nozzle in his hand and oil running out on the patio. The plaintiff went outside and as he opened the door, he heard Black say, “I can’t turn it off, Gene.” It further appeared that the defendant’s employee Wood had worked for defendant since 1946, but Black had only started work that morning and had not been instructed as to how to shut off the nozzle. The plaintiff helped Wood turn off the hose. Wood then asked the plaintiff to get him a broom and also to open the drain on the patio. The plaintiff did so and Wood started sweeping oil into the drain. After making three or four “swipes” with the broom Wood said, “Oh, my gosh, what about the basement?” The plaintiff was then asked if “ * * * sometime after he made that statement, did you then start to go to the basement?” and answered, “I started to walk to the basement.” The plaintiff’s theory was that the oil that accumulated on his shoes when he got the broom and opened the drain caused him to slip and fall on the basement stairs.

In those parts pertinent to the issue which we rule on this appeal Instruction No. 3 hypothesized that as the fuel oil was being delivered “ * * * said oil did suddenly and unexpectedly overflow from said pipe and onto the patio and into * * * ” the plaintiff’s home; that the plaintiff “ * * did thereafter step into said oil * * * ” ; that the plaintiff “ * * * believed that there was danger of damage to his property in said basement and a danger of fire by virtue of oil overflowing from the storage tank located in the basement of his home * * * ”; that the plaintiff “ * * in an attempt to protect his family and property attempted to walk to the basement steps in order to descend said steps to go to the basement of his home * * * ”; and that as the plaintiff “ * * * was at the top of said steps he slipped and fell by reason of oil being on his shoes, if you so find, and was caused to sustain the injuries mentioned in evidence * * Instruction No. 3 went on to inform the jury that “ * * * you are instructed that such facts, if you believe them to be true, are a sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent * *

Before passing upon the merits we are confronted with plaintiff’s motion to dismiss the appeal for failure to comply with the rules. The main contention advanced by the plaintiff in support of this motion is that the defendant has not properly stated its points and authorities as required by Rule 83.05 (e), V.A.M.R. Plaintiff also contends that the allegations of error which defendant advances in its brief were not properly preserved by inclusion in the motion for new trial as required by Rule 79.03, V.A.M.R. With respect to the latter contention, the transcript discloses that the defendant made only a general objection to the giving of the instructions offered by the plaintiff. It was therefore under a duty to make specific objections to the giving of the instructions in its motion for new trial, Rule 79.03, supra. In the paragraph of that motion dealing with Instruction No. 3, the defendant alleged “ * * * that there was no basis in the evidence for the submission of said instruction * * It is true that usually the language “there was no basis” is employed in those cases where the contention is that the evidence to support the giving of the instruction is totally lacking. However, if defendant is correct in its contention that this record discloses uncontested proof of specific negligence, then there is no basis in the evidence upon which to base the giving of an instruction submitting the case upon general negligence. The fact that in the instant case the contention is that the basis does not exist due to an excess of proof of general negligence; i. e., proof which shows specific negligence, does not prevent this contention from being encompassed within the language of the motion for new trial That there was no basis for the submission of the instruction. The gist of defendant’s allegation in the motion for new trial and of its allegation of error and supporting argument before this court is the same. We hold the requirements of Rule 79.03, supra, have been met.

In his motion to dismiss due to an alleged violation of Rule 83.05(e), supra, the plaintiff’s allegation is that “ * * * said point fails to set forth sufficient legal grounds of alleged error in the Court’s ruling.” It is difficult to ascertain exactly what plaintiff means by such language. The defendant alleged “[t]he Court erred in giving and reading to the jury, at the request of plaintiff, Instruction No. 3, because the instruction is erroneous for the following reasons * * Among the reasons separately stated in subparagraphs was the contention that while plaintiff had pleaded general negligence, the evidence showed the specific negligence of the defendant in leaving the hose attended by an employee who had not been instructed in how to shut off the hose and that it was therefore error to instruct upon general negligence. We cannot agree that such an allegation of prejudicial error “ * * * fails to set forth sufficient legal grounds of alleged error” as plaintiff contends in his motion to dismiss. As stated earlier, we herein hold this allegation of error to be decisive, and since we also find it to have been preserved for our ruling as required by Rule 79.03, supra, and presented to us in a form not in violation of Rule 83.05(e), supra, it is unnecessary to rule upon the motion to dismiss as it affects the other allegations of error. The motion to dismiss is without merit.

The plaintiff tacitly concedes that this record contains proof of specific negligence but contends that this proof is not sufficient to foreclose the submission of general negligence in that “ * * * [t]here may have been other reasons why the hose was not shut oil in addition to defendant’s employee not knowing how to shut it off. * * * ” Plaintiff urges that in the absence of uncontroverted proof that the failure of defendant’s employee to shut off the hose is the only way the accident could have happened he is entitled to submit upon general negligence. In support whereof the plaintiff cites and relies upon Rothweiler v. St. Louis Public Service Co., Mo.App., 224 S.W.2d 569, rev. Mo., 234 S.W.2d 552, and Williams v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 659, rev. 363 Mo. 625, 253 S.W.2d 97. In Williams v. St. Louis Public Service Co., 253 S.W.2d 97, 1. c. 102, the court states that a general negligence submission may not be denied “ * * * unless specific negligence, the real or precise cause is definitely shown by direct evidence. * * * ” However, this does not mean that in order to prevent plaintiff’s submission of general negligence such specific negligence must appear as to render totally impossible any other cause. The uncontroverted evidence was that the oil was caused to overflow because of the failure of the defendant’s employee Black to turn off the hose. The plaintiff testified that he heard Black say he could not turn off the hose, and all the evidence was that the defendant had failed to instruct him as to the operation of the nozzle and he did not know how to shut it off. Moreover, the plaintiff’s evidence strongly tends to disprove that there could have been any other cause as the overflow stopped when the plaintiff helped shut off the hose. These facts render the instant case distinguishable from those cases upon which the plaintiff relies wherein the cause of the occurrence is left in doubt. The proof was that the defendant employee Wood left his co-employee Black to tend the nozzle of a hose through which oil was being pumped knowing that Black had not been instructed as to how to shut off the nozzle and stop the flow of oil. The defendant does not contend that plaintiff failed to make a case of specific negligence. Compare Rothweiler v. St. Louis Public Service Co., supra; Williams v. St. Louis Public Service Co., supra. It 'does contend that such proof prevents the submission of this case upon general negligence and his contention has merit.

The decision reached herein renders unnecessary any ruling upon the other assignments of error. The judgment should be reversed and the cause remanded. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is reversed and the cause remanded.

RUDDY, P. J., and WOLFE and ANDERSON, JJ., concur.