author: FRASER, Justice,

text:
    Edward L. WALKER, Appellant, v. YELLOW BELLY DRAG STRIP, Appellee.
    No. 5465.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 25, 1961.
    Parkhill, Watson & Grantham, Grand Prairie, for appellant. .
    Brundidge, Fountain, Elliott & Bateman, Harold A. Bateman,- Ralph -D. Churchill, Dallas, for appellee.-
   FRASER, Justice,

This is a summary judgment case, with the facts as follows:

Edward L. Walker brought suit in Dallas County against Yellow-Belly Drag Strip, a corporation, duly incorporated under the laws of the State of Texas, with its principal office in Dallas County, Texas, for damages growing out of personal injuries alleged to have occurred as the result of plaintiff’s automobile striking large holes or dug-out places in defendant’s race track, causing plaintiff to lose control of his automobile and upset same. The defendant filed a motion for summary judgment which was sustained by the court. Plaintiff filed motion for new trial, which was overruled by the trial court on March 18, 1960, and on that date the plaintiff gave notice of appeal.

Plaintiff charges defendant with negligence in allowing the chuckholes or dug-out places to exist in the race track and for failing to discover and repair such holes, and failing to warn the plaintiff of same; and, of course, maintains that such acts or act of negligence constituted a proximate cause of the injuries sustained by him.

Plaintiff, who was a man 30 years of age at the time of the accident, testified by oral deposition that he was driving a 1951 Ford pickup truck with a “souped-up” Pontiac engine in it; that he had used this pickup for similar racing off and on for over a month; that he had raced this and other cars on this particular place, to-wit, the Yellow-Belly Drag Strip, before; that the strip is paved with asphalt on blacktop and has two lanes, one for each car. Further, he testified that he was going about 100 miles an hour when he lost control of his car; that he had driven in this same west lane, where the accident happened, some two weeks prior to the accident; that the accident happened about 10:30 at night. He further testified that he had good lights on the pickup truck and had them on, but did not see the hole before he hit it. The accident occurred in the west lane.

He further testified that he had run the pickup two or three times the evening of the accident; that he had watched other people racing for at least 45 minutes; that on the evening in question, prior to the accident, he had done his racing entirely in the east lane.

There were other affidavits or depositions; but, this being a summary judgment case, we will consider the evidence favorable to the plaintiff in its most favorable light, so as to determine whether or not any genuine issue as to a material fact existed.

We will not burden this opinion with citations relative to summary judgment cases, as such law has long been well articulated.

There seems to be no question here but that the plaintiff was grievously injured and the car demolished; but, after study of the record, we believe the trial court was correct in granting the summary judgment. It seems to us that the plaintiff here has placed himself in such a position that he is either guilty of contributory negligence or the doctrine of volenti non fit injuria applies. According to his own testimony he had been racing in the east lane on the very evening of his accident. The pictures or exhibits show that the east and west lanes are separated only by two parallel yellow-painted lines. He also testified he had watched other people racing for at least 45 minutes. He arrived at the track at 8:00 o’clock, and his accident occurred at 10 :30. He does not testify that he saw anybody using the west lane having difficulties, or hit any holes, although he did race against several people, side by side, they in the west and he in the east lane. The area was lighted, and he had lights on his car. It seems obvious, therefore, that he had had more than ample opportunity to observe all the conditions present at the time of his accident, having been there two hours or more; then raced the pickup in the west lane against another car in the east lane with the accident resulting therefrom. We think these facts place him in the' category of volenti non fit injuria. There is no evidence in the record whatever that the owner-defendant knew or should have known about the hole or dug-out places. The only testimony relevant thereto is from plaintiff, who says he hit same, and from a witness who examined the area the following day and said, by affidavit, that he saw a dug-out or chuckhole. He does not say, of course, when it got there or how it got there, and does not attempt to say that it got there before, during or after plaintiff’s accident. It is not claimed that there was anything secret or hidden about the alleged holes. Therefore, it seems painfully apparent that plaintiff knew all that defendant could have, or should have, known about the conditions of the strip or roadway, and entered willingly thereon to race. We must therefore hold that his conduct and actions placed him under the well-known volenti doctrine. A. C. Burton Co., Inc. v. Stasny, Tex.Civ.App., 223 S.W.2d 310 (err. ref.); Hansen v. Ware’s, Inc., Tex.Civ.App., 324 S.W.2d 909 (no wr. hist.); Fort Worth & D. C. Ry. Co. v. Hambright, 130 S.W.2d 436 (err. dis’m.); Russell v. Liggett Drug Co., Inc., Tex.Civ.App., 153 S.W.2d 231 (err. ref. want of merit).

If, however, the plaintiff did not or does not come under the pains and penalties of the volenti doctrine — in other words, if it can be said that he did not, and/or should not, have known or noticed the danger, if danger there was, by virtue of the alleged holes — then in our opinion he would be guilty of contributory negligence as a matter of law, for driving another man’s pickup 100 miles an hour at 10:30 at night without having ascertained whether the strip or road was safe.

We also must agree with defendant’s position that plaintiff failed to show that defendant was in any way responsible for the presence of the alleged holes, or that said defendant knew or should have known about same. It has long been basic law in Texas that no matter how tragic and grievous an accident or injury may be, the defendant must first be found guilty of negligence of some sort that proximately causes the' plaintiff’s injuries. This doctrine has been tried and tried, and tried again, in the many “slip and fall” cases that have been before the courts. These cases universally hold that unless the owner of the premises either created the hazard or negligently allowed it to remain when he knew, or should have known, of its existence, he is not liable. In other words, the defendant in this type of case must be guilty either of creating the danger or negligently permitting it to exist when he knew, or should have known, of its presence. In the case before us, plaintiff had watched other cars race and had raced side by side with other cars on this same strip, and there is no evidence in the record that anybody had any trouble other than the plaintiff. As stated above, the plaintiff said he hit one or several holes, and a witness said he found a hole the next day. Defendant denied existence of any holes. We do not consider this sufficient testimony to convict defendant of negligence. In other words, the only fact issue that appears here seems to us not to be a material fact issue. In other words, did the plaintiff, or did he not, hit a hole or some holes ? On the basis of the fact situation in this case, we do not believe this to be a material fact issue, but believe that the plaintiff had ample opportunity to inspect and observe the condition of the strip on which he eventually had his accident, and if he did not use this opportunity, then he was contributorily negligent in running the car 100 miles an hour over unknown territory, at 10:30 at night; and, lastly, that if such hole or holes did exist, there is no showing by the plaintiff that defendant either put them there, or knew or should have known that they were present, and we therefore hold that the granting of the summary judgment by the trial court was correct. Montfort v. West Texas Hotel Co., Tex.Civ.App., 117 S.W.2d 811. It has long been decided that defendant owner of premises is not an insurer of invitee’s safety. Worth Food Markets, Inc., v. LeBaume, Tex.Civ.App., 112 S.W. 2d 1089 (err. dis’m.); Smith v. Safeway Stores, Inc., Tex.Civ.App., 167 S.W.2d 1044 (no wr. hist.).

Therefore, appellant’s points are all overruled, and the judgment of the trial court affirmed.


source: Caselaw Access Project

author: FRASER, Justice.

license: Public Domain

text:
    Walter DANIEL et al., Appellants, v. DALLAS INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 5459.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 11, 1961.
    Rehearing Denied Nov. 8, 1961.
    Mullinax, Wells, Morris & Mauzy, Dallas, for appellants.
    Malone, Lipscomb, Seay & Gwinn, George E. Seay, Dallas, for appellees.
   FRASER, Justice.

This is a suit for damages and injunction, brought by plaintiff Daniel, described as a custodial employee of the School District of Dallas. The Union, of which he is a member, joins in the lawsuit. Plaintiffs, in their petition, allege that plaintiff Daniel was wrongfully discharged as school janitor because of his membership in plaintiff Union, because of Daniel’s “presentation of grievances” and lastly, because of Daniel’s testimony in earlier litigation. The relief sought was a permanent injunction requiring reinstatement of plaintiff Daniel, restoration of pay and privileges, etc. A temporary injunction was granted, but was later vacated by the Dallas Court of Civil Appeals, 323 S.W.2d 639. When the case was again tried in another Dallas district court, the appellee-defendants interposed a challenge to the jurisdiction of the court and maintenance of suit, by way of pleas to the jurisdiction and plea in abatement. Their position was that plaintiffs did not go through the proper channels which, in this case, were State school authorities, so as to entitle them to bring this action in the State courts. Appellants urged that appellees were estopped to urge their pleas to the jurisdiction and abatement. The trial court held that the pleas should in all things be sustained, and the cause dismissed for want of jurisdiction, and specifically stated that the court found that there had been a failure of plaintiffs to exhaust administrative remedies in this matter ; that such was mandatory and a condition precedent to conferring jurisdiction in the district court.

First of all, it must be noted and kept in mind that the record here reveals that the parties were in controversy as to whether Daniel had been discharged because of the three matters alleged in plaintiffs’ petition, or because his work and conduct was unsatisfactory. This, of course, creates a fact issue, and we cannot here pass on whether or not he was rightfully discharged because it has not been adjudicated by the lower court. We have no decision or finding relative to his discharge that we can review.

The record shows that plaintiff Daniel and his attorney appealed to W. T. White, Dallas School Superintendent, and then to the Dallas School Board. Plaintiffs do not contend that they presented any appeal to any State agencies; in fact, they admitted that no such appeal had been taken.

Sections 101, 107 and 201 of the “Procedures on Hearings and Appeals”, adopted by the State Board of Education of Texas, provide, among other things, that in grievances or controversies involving administrative actions or problems of local school districts, aggrieved parties should be afforded a full hearing provided request in writing has been timely filed. Also set forth are the rules governing the manner and conduct of the hearings and providing that after such hearing by the local trustees, any party to such hearing may appeal from the decisions as follows: (a) from a district board of trustees to the Commissioner of Education; (b) from the Commissioner of Education to the State Board of Education; (c) from the State Board of Education to a court of competent jurisdiction. Also, it appears that appeals may be taken from the State Board of Education as provided by Article 2922-18, Vernon’s Ann.Civ.St. Then Articles 2656, 2654 — 5 to 2654 — 7, and 2654-1, V. A.C.S., also describe the manner in which these appeals shall be taken. Article 2656 charges the State Superintendent with the administration of the school laws and a general superintendency of the business relating to the public schools of the State, and further, that he shall hear and determine all appeals from the rulings and decisions of subordinate school officers, and also this article provides that “appeal shall always be from his rulings to the State Board. * * * ” Articles 2654 and 2654 — 5 set up the position of State Commissioner of Education, vesting in him the powers heretofore vested in the State Superintendent of Public Instruction. Article 2654-1 deals with the Central Education Agency, which exercises general control of the system of public education at the State level. Article 2654-7, section 1, provides as follows: “Parties having any manner of dispute among them arising under provisions of the school laws of Texas, or any person or parties aggrieved by the actions or decisions of any Board of Trustees or Board of Education, may appeal in writing to- the Commissioner of Education who, after due notice to the parties interested, shall examine in a hearing and render a judgment without cost to the parties involved. However, nothing contained in this Section shall deprive any party of a legal remedy.” Article 2780, entitled “Power of trustees”, grants them the exclusive power ‘‘to manage and govern said schools.”

The record shows considerable dispute as to why plaintiff Daniel was discharged. Briefly, the Dallas school superintendent said he was discharged for inefficiency and personality conflict, which statements, of course, are denied by Daniel, who alleged it was because of the three matters plead in his petition.

We believe that the trial court was correct in sustaining the pleas. There are several cases that have passed on this point. Hinojosa v. San Isidro Independent School Dist., Tex.Civ.App., 273 S.W.2d 656, 658 (San Antonio Civ.App., no writ). In the above case, it is specifically stated as follows:

“The question of whether or not appellant was rightfully dismissed from his position with the school district obviously involves a question of fact. It was therefore necessary that appellant appeal to the proper school authorities before filing a suit in the district court.”

The Beaumont Court of Civil Appeals passed on this question in the case of Murray v. San Augustine County Board of School Trustees (no writ), Tex.Civ.App., 307 S.W. 2d 622. The court said therein that, because the appellant had stipulated that he had not complied with the statutes and rules, the plea in abatement must be sustained since by his admission he had established that the district court was- without jurisdiction to hear his complaint. Also, in Bear v. Donna Independent School District, Tex. Civ.App., 85 S.W.2d 797, as in some others, the court pointed out that the Legislature intended to create an educational system of public free schools sufficient unto itself, and free as far as practical from any interference from the judiciary. Therefore, it follows that the school regulations must be followed and the remedies therein exhausted before the State judiciary is vested with any jurisdiction. The Texas Supreme Court stated, in Mission Independent School District v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 570, 161 A.L.R. 877 (quoting from State ex rel. Nevills v. Sanderson, Tex.Civ.App., 88 S.W.2d 1069), “It is a well-established rule that in all matters pertaining to the administration of school laws involving questions of fact as distinguished from pure questions of law resort must first be had to the school authorities and the method of appeal there provided for exhausted before the courts will entertain jurisdiction of a complaint with reference to such matters.”

Appellants also urge that this matter should be controlled by the general laws, rather than the school laws, but we do not believe there is merit in this point, as Article 2780, V.A.C.S., seems to dispose of this matter.

Appellants also argue that Daniel’s discharge was in violation of Texas laws forbidding discharge because of membership in union-, etc. But, as we pointed out here-inabove, this is an assertion by the plaintiffs, rather than a fact established in the trial. Being a fact issue presently undecided or unresolved we, of course, cannot pass on it, and cannot take for granted or make any finding as to why plaintiff Daniel was discharged.

Appellants also argue that because the defendants — to-wit, Dallas Superintendent White and the School Board, told him there was nothing more for him to do, and that as far as they were concerned the matter was concluded, that they were therefore estopped to urge their plea to the jurisdiction. The record shows that Dr. White refused or declined to reinstate Daniel, and that the School Board, after a short hearing and consideration, advised Mr. Daniel and his attorney that these matters were handled and had been handled by Dr. White, and that they would not interfere with his disposition of the matter, and that the matter was at an end. With reference to this point, we must say that jurisdiction of a court is so important and essential that it has long been held that it cannot be conferred by estoppel. It is a statutory creation or enactment, and cannot be waived or conferred by consent or estoppel, and a court without jurisdiction cannot render a valid judgment. Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079 (S.Ct.), 48 A.L.R. 355; 14 Am.Jur. 380, sec. 184. The prior trial, in another Dallas district court, did not pass upon the question of fact discussed above, nor do we believe that its action — which consisted of a hearing on the application for injunction' — -accomplished anything by its wording or decision that might deprive the district court in this case, by judicial estoppel, of its jurisdiction to take the action that it did; to-wit, passing on the plea; nor were the defendants, by such trial, in any way estopped from challenging the jurisdiction of the court in this cause to dispose of the case.

In summing up, we believe that the law is well stated in Bear v. Donna Independent School District, 74 S.W.2d 179 at 180, where the San Antonio Court of Civil Appeals said:

“It is unquestionably the general rule that in matters involving the administration of public school matters persons considering themselves aggrieved thereby are required to appeal to the higher school authorities before resorting to the courts.”

The court then cites statutory authorities.

For the above reasons, we therefore believe that the holding of the district court was correct. It has not been judicially decided why Daniel was dismissed, and so this matter of fact remains undetermined. It is unquestioned that plaintiffs did not appeal to the State Commissioner or to the State Board of Education. We cannot say that he was discharged in violation of any general laws because, as we have just stated, it has not been established why he was discharged. Therefore, the conclusion seems to us inescapable that because plaintiffs did not follow the statutory provisions and the rules of the State Board of Education, the district court was without jurisdiction to hear the matter.

Appellants’ points are therefore overruled, and the decision of the trial court affirmed.

CLAYTON, J., not sitting.


author: McDONALD, Chief Justice.

text:
    INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. C. R. McGEE, Appellee.
    No. 3903.
    Court of Civil Appeals of Texas. Waco.
    Oct. 26, 1961.
    Rehearing Denied Nov. 16, 1961.

      '■•Barnes &■ Barnes,- Beaumont,' for appellant. ''-■
    Stephenson & Stephenson, Orange, for appellee.
   McDONALD, Chief Justice.

This is a workmen’s compensation case. Plaintiff McGee brought suit against defendant Insurance Company to recover compensation for injuries alleged to have been sustained in the course of his employment as an employee of Catalytic Construction Company. Plaintiff alleged total and permanent incapacity as a result of slipping off a crane, “sustaining double hernia and severe and permanent injury to his back.” Trial was to a jury which, in answer to special issues, found:

1) Plaintiff sustained injury on 24 February, 1958.

2) Such injury was accidental.

3) Such injury was sustained in the course of plaintiff’s employment with Catalytic Construction Company.

4) Such injury produced incapacity to plaintiff.

5) Such incapacity was total incapacity.

6) Such total incapacity commenced on 24 February, 1958.

7) Such total incapacity is permanent.

9) Plaintiff’s incapacity is not partial.

14) & 18) Set the wage rate.

19) Provides for payment in a lump sum.

20) Such injury resulted in hernia upon plaintiff.

21) Such hernia appeared suddenly and immediately following the injury.

22) Such injury was accompanied by pain.

23) Such hernia did not exist in any degree immediately prior to 24 February, 1958.

24) Plaintiff’s incapacity is not solely caused by hernia.

25) Plaintiff’s injuries are not due solely to hernia or to hernias.

26) Plaintiff’s incapacity is not due solely to disease.

The Trial Court entered judgment on the verdict, awarding plaintiff compensation for total and permanent disability in the amount of $12,963.

Defendant appeals, contending:

1) The Trial Judge was disqualified to try this case because he was a first cousin to Ward Stephenson, one of plaintiff’s attorneys.

2) The Trial Court was without jurisdiction to try the case since more than 20 days elapsed from the time plaintiff filed his notice of appeal with the Industrial Accident Board and the time when he filed a pleading which set up a cause of action.

3) The Trial Court erred in overruling motion to quash the jury, and/or to instruct the jury not to consider remarks made by an attorney in a subsequent case on the docket, to the jury panel, to the effect that there was a great difference in a workmen’s compensation case and in an automobile collision case.

4) The findings of total permanent incapacity are supported by no evidence; or alternatively, are against the great weight and preponderance of the evidence.

5) Plaintiff’s claim is limited to a hernia since he so limited it in his claim for compensation before the Industrial Accident Board.

We revert to defendant’s 1st contention that the Trial Judge was disqualified to try the case since he was a first cousin to Hon. Ward Stephenson, one of the plaintiff’s attorneys. Defendant contends that no trial judge should sit in a case if he is connected with either of the parties within the 3rd degree. (Tex.Const. Art. V., Sec. 11, Vernon’s Ann.St.; Art. 15, Vernon’s Ann.Tex.Civ.St.) And, that in a compensation case the Trial Court’s relationship to the plaintiff’s attorney is disqualifying, because the Trial Court fixes the amount of the fee to be paid to the plaintiff’s attorney. (Postal Mut. Ind. Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482.)

In the case at bar, plaintiff employed attorney Dryden. Attorney Dryden 'thereafter engaged the services of attorney Stephenson to assist him in the case. The record reflects that attorney Stephenson was to be paid by attorney Dryden, a fee, based upon the work he performed, and not out of the proceeds of the judgment. The Trial Court awarded ¾ of the recovery to the plaintiff, and ⅛ of the recovery to attorney Dryden. There was no award whatsoever to attorney Stephenson. Under the foregoing factual situation we do not think that the cited authorities are applicable, or that the Trial Judge was disqualified. Contention 1 is overruled.

Defendant’s 2nd contention is that the Trial Court was without jurisdiction to try the case. Plaintiff filed his original petition within 20 days after filing notice of appeal from the Industrial Accident Board. Plaintiff’s 1st amended petition was filed some 7 months thereafter. (Plaintiff’s original petition was brief and sketchy but did in our view allege a cause of action). It is defendant’s contention here that plaintiff’s original petition stated no cause of action and that his 1st amended petition came after the 20 days; and therefore defendant’s plea of limitation and jurisdiction should have been sustained. As noted, we think the original petition stated a cause of action, but in any event the original petition was timely filed, and the amended petition stated a cause of action. Jurisdiction of a court attaches upon the filing of a suit in that court. Once jurisdiction attaches, the court has the power to permit pleadings to be amended and new parties to be made. The case, after amended pleadings have been filed and new parties made, stands in the court in so far as jurisdictional questions are concerned, precisely upon the same basis as if the original pleadings filed had embraced fully the declarations of the last amendment. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; 11 Tex.Jur. p. 787; Conn v. Campbell, 119 Tex. 82, 24 S.W.2d 813; Indemnity Ins. Co. of North America v. Carrell, Tex.Civ. App., 318 S.W.2d 744 (n. r. e.). Contention 2 is overruled.

Defendant’s 3rd contention complains of the remarks of an attorney in another case, to the jury panel, which included the jury in the instant case. Such attorney told the panel that his case was an automobile collision case and differed materially from a compensation case. He attempted to explain to the panel some of the differences. The Trial Court gave the jury in the instant case a correct charge, and there is no showing that the remarks of the attorney in the other case had any effect on the jury whatsoever. Moreover, our reading of the remarks themselves leads us to say they were substantially correct statements, and could have in no manner caused harm in the case at bar. See Rule 434, Texas Rules of Civil Procedure. Contention 3 is overruled.

Contention 4 is that the findings of total and permanent incapacity of plaintiff are supported by no evidence, and/or are against the great weight of the evidence. While the evidence is conflicting, the plaintiff himself testified that he could not get or hold a job doing all around pursuits of a working man; that he suffered continuous pain which working aggravated. The testimony of Dr. Fertella and Dr. Catalana likewise supports the jury’s findings. Contention 4 is overruled.

Defendant’s 5th contention is that plaintiff’s claim is limited to a hernia (26 weeks’ compensation plus an operation), since he so limited his claim for compensation before the Industrial Accident Board. Plaintiff made his claim to the Board under the provisions of Sec. 12b, Art. 8306, the hernia provision, and was denied all relief. He had an operation and paid for it himself. Under such facts, defendant insurance carrier did not avail itself .of Sec. 12b, Art. 8306. Defendant was put to an election to either admit liability for a hernia injury and offer an operation, or run the risk of being held liable for general injuries. Defendant here denied liability and tendered no operation, and is thus subject to suit for general injuries. Great Am. Ind. Co. v. Gravell, Tex.Civ.App., 297 S.W.2d 371 (n. w. h.); Consolidated Cas. Ins. Co. v. Ray, Tex.Civ. App., 267 S.W.2d 880 (n. r. e.) ; Tally v. Tex. Emp. Ins. Ass’n, 129 Tex. 134, 102 S.W .2d 180; National Mut. Cas. Co. v. Lowery, 136 Tex. 188, 148 S.W.2d 1089; Associated Ind. Corp. v. Kujawa, 153 Tex. 314, 268 S.W.2d 122. Contention 5 is overruled.

All of defendant’s points and the contentions thereunder made have been carefully considered and are overruled.

The judgment of the Trial Court is affirmed.


author: NORTHCUTT, Justice. DENTON, Chief Justice CHAPMAN, Justice.

text:
    PRODUCERS CHEMICAL COMPANY et al. v. Hon. Lewis M. GOODRICH et al.
    No. 7114.
    Court of Civil Appeals of Texas Amarillo.
    Oct. 2, 1961.
    Rehearing Denied Oct. 30, 1961.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for relator, Producers Chemical Co.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, and J. D. Crow, Canadian, for relators, Billy Allen Stamps et al.
   NORTHCUTT, Justice.

Billy Allen Stamps and Lillian Burnett, et al., as the plaintiffs brought suit against Producers Chemical Company, a corporation, for damages allegedly caused by Producers Chemical Co. Stamps brought suit for his personal injuries. Lillian Burnett, et al., brought suit, as the surviving wife and children of A. H. Burnett, for damages caused by the death of said A. H. Burnett.

It was alleged that Stamps was employed as a roughneck and A. H. Burnett was employed as a driller, and that they were employed by Canadian River Drilling Co. of Amarillo, Texas and were working on said company’s oil well drilling rig which was engaged in drilling an oil well on the Plutch Moore lands in Roberts County, Texas, when an explosion occurred at such place and on said date which caused the injuries as thereafter set forth. The pleadings then described the injuries and damages. The plaintiff then pleaded as follows: “Said rig was using compressed air as the agent or vehicle for carrying the cuttings from the hole being drilled, which air was being supplied by an air compressor then and there owned and operated and under the sole supervision of the defendant, Producers Chemical Company. Said compressor was attached, through lines belonging to said defendant, to the mudline of the employer of the plaintiff, and had been so set up and attached by the said defendant. Said compressor was allowed by said defendant to compress air into the said lines at a pressure of at least 1000 pounds, which air by reason of said compression had become heated, and when the same reached a critical point it combined with diesal fuel or lubricating oil which had entered said line through the said defendant’s compressor and exploded with great force and violence, shattering the said lines into small fragments and propelling them throughout the area where the rig was located and causing a blast which plaintiff alleges is the cause of his injuries.”

Plaintiff says that defendant Producers Chemical Company was negligent in the following particulars and such negligence was the proximate cause of the plaintiff’s injuries and damages, viz.:

(a) In allowing its compressor to accumulate'a pressure in the lines in excess of 1000 pounds;

(b) In operating said compressor when the same was leaking lubricating oil through its pistons into the air lines;

(c) In pouring diesel fuel into said compressor so that it entered into the air lines;

(d) In operating said compressor when the same was without safety device or devices to prevent accumulation of air pressure in excess of 1000 pounds.

(e) In operating said compressor when the same had no device or devices for cooling the compressed air entering the line;

(f) In having an inexperienced operator in control of said compressor;

and each of such acts of negligence and all of the same, taken severally as well as collectively, was the proximate cause of the plaintiff’s injuries and damages as hereinafter set forth.

The two cases were tried together and submitted to a jury upon special issues. After the jury returned their answers to the special issues, the trial court entered an order declaring a mistrial because the jury’s answer to special issue 10 was in hopeless conflict with its answers to the several subdivisions of special issues 3, 4, and 5, and declared that the case should stand for trial in due course upon the merits.

The plaintiffs and defendant each have presented their motion herein to file mandamus, contending the trial court erred in declaring a mistrial, and both are contending they are entitled to judgment upon the verdict of the jury.

Since the only issues involved herein are issues 3, 4, S, and 10 the other issues will not be considered. Issues 3, 4, 5, and 10 and the answers of the jury thereto are as follows :

“Special Issue No. 3.
“(a) Do you find from a preponderance of the evidence that at the time and place in question E. S. McDonald, or any employee of the Defendant, Producers Chemical Company, operated its compressor when same was leaking oil into its outlet line?
“Answer ‘Yes’ or ‘No’
“Answer — Yes
“If you have answered subdivision (a) ‘Yes’, then answer subdivision (b) ; otherwise you need not answer same.
“(b) Do you find from a preponderance of the evidence that such operation of the compressor, if you have so found, was negligence ?
“Answer ‘Yes’ or ‘No’.
“Answer Yes
“If you have answered subdivision (b) ‘Yes’, then answer subdivision (c) ; otherwise you need not answer same.
“(c) Do you find from a preponderance of the evidence that such negligence, if you have so found, was a proximate cause of the explosion in question?
“Answer ‘Yes’ or ‘No’
“Answer Yes
“Special Issue No. 4
“(a) Do you find from a preponderance of the evidence, if any, that at the time and place in question Defendant, Producers Chemical Company, was operating its compressor without having thereon a device to prevent the accumulation of air pressure in excess of 1000 pounds?
“Answer ‘Yes’ or ‘No’
“Answer Yes
“If you have answered subdivision (a) ‘Yes’, then answer subdivision (b) ; otherwise you need not answer same.
"(b) Do you find from a preponderance of the evidence, if any, that such operation, if you have so found, was negligence?,
“Answer ‘Yes’ or ‘No’
“Answer Yes
“If you have answered subdivision (b) ‘Yes’, then answer subdivision (c); otherwise you need not answer same.
“(c) Do you find from a preponderance of the evidence, if any, that such negligence, if you have so found, was a proximate cause of the explosion in question?
“Answer 'Yes’ or ‘No’
“Answer Yes
“Special Issue No. 5
“(a) Do you find from a preponderance of the evidence, if any, that at the time and place in question Defendant, Producers Chemical Company, was operating a compressor that did not have on it a device for cooling the compressed air before the air entered the line?
“Answer ‘Yes’ or ‘No’
“Answer Yes
“If you have answered subdivision (a) ‘Yes’, then answer subdivision (b); otherwise you need not answer same.
“(b) Do you find from a preponderance of evidence, if any, that such operation, if you have so found, was negligence?
“Answer ‘Yes’ or ‘No’
“Answer Yes
“If you have answered subdivision (b) ‘Yes’, then answer subdivision (c); otherwise you need not answer same.
“(c) Do you find from a preponderance of the evidence, if any, that such negligence, if you have so found, was a proximate cause of the explosion in question?
• “Answer ‘Yes’ .or ‘No’ .
“Answer Yes
“Special Issue No. 10
“Do you find from a preponderance of the evidence that on the occasion in question McDonald subjected himself and the Producers Chemical Compressor and employees to the control of Canadian River Drilling Company with respect both to the work to be done and the manner in which it was to be done?
“Answer ‘Yes’ or ‘No’
“Answer: Yes”

The parties herein will be referred to as they were in the trial court. We are not here called upon to determine whether McDonald was the employee of the defendant, Producers Chemical Co., or the Canadian River Drilling Co. In order to hold Producers Chemical Co. liable under the principal of respondeat superior the relation of master and servant must be shown between it and McDonald with respect to the very transactions out of which the injury arose. The issues involved herein deal with the operation of the machine and not a defective machine. Hilgenberg v. Elam, 145 Tex. 437, 198 S.W. 2d 94 by the Supreme Court.

Neither are we called upon herein to determine whether the jury was justified in finding as it did but the sole issue is whether the trial court was correct in holding there was a hopeless conflict in the answers of the jury to the special issues. No issue was ever submitted to the jury as to a defective compressor, and all of the plaintiff’s allegations of negligence were questioning the operation of the compressor. The effect of the answer to special issue 10, McDonald was a borrowed servant of Canadian River Drilling Co. In answer to special issue 3(a), the effect of the jury’s answer was that McDonald was the employee of Producers Chemical Co. Answers to issues 4 and 5 determine that Producers Chemical Co. was operating its compressor, and naturally if McDonald was operating the compressor he was either the agent and employee of Producers Chemical Co. or Canadian River Drilling Co. McDonald was acting as the employee, at the time of the accident in question, of Producers Chemical Co. or Canadian River Drilling Co. but not for both of them.

The answer to special issue 10 seems to warrant judgment for the Producers Chemical Co. The answers to special issues 3, 4, and 5 seem to warrant judgment for the plaintiffs. It is stated in Big Six Oil Co., Inc. v. West et al., Tex.Civ.App., 136 S.W.2d 950, 954 (writ dismissed judgment correct), as follows:

“We believe that a conflict which destroys the verdict must be one where one of .the conflicting findings would warrant a judgment for one of the parties and the other conflicting finding would warrant a judgment for the other party.”

We are of the opinion that the trial court was correct in holding there was a hopeless conflict in the answers of the jury. The application for writs of mandamus are both denied.

DENTON, Chief Justice

(concurring).

I .agree that a writ of mandamus should be denied in this case, but I am unable to agree with the basis upon which the majority opinion predicated its conclusion.

Both plaintiffs below went to trial on identical allegations that defendant Producers Chemical Company committed certain acts of negligence and that each act was the proximate cause of the plaintiffs’ injuries. The special issues submitted to the jury followed these allegations except the first three issues inquired if employees of Producers Chemical committed the alleged acts of negligence, and the next two issues inquired if Producers Chemical Company committed the alleged acts of negligence. (Emphasis added.) In response to Special Issue No. 10 the jury found McDonald, an admitted general employee of Producers Chemical, subjected himself and the compressor to the Canadian River Drilling Company both as to the work to be done and the manner in which it was done. The latter finding brings McDonald under the borrowed servant principle.

In my opinion the findings that Producers Chemical, through its employee, was negligent in operating the compressor when it was leaking oil through its outlet line; in operating the compressor without a devise to prevent the accumulation of air pressure over one thousand pounds ; and operating a compressor that had no cooling devise; and the finding that McDonald and other employees of Producers Chemical were borrowed servants of Canadian River Drilling Company are diametrically opposed. The answers to issues 3, 4 and 5 destroy the answer to Special Issue No. 10. The answers to issues 3,. 4 and 5 go to either the manner of operating the compressor or operating it under unsafe conditions. In my opinion neither plaintiff’s allegations nor the jury’s findings support a cause of action against Producers Chemical for furnishing an unsafe or defective chattel.

If we disregard the finding that McDonald was a borrowed servant, a judgment for the plaintiffs would be required. If we disregard the findings of Special Issues Nos. 3, 4 and 5, a judgment for defendant Producers Chemical would be required. This test has been approved by the Supreme Court in Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453 and Howard v. Howard (Tex.Civ.App.) 102 S.W.2d 473 (writ refused). It is therefore apparent that these findings are in fatal conflict and will not support a judgment for either the plaintiffs or the defendant.

CHAPMAN, Justice.

I concur in the results reached by my associates.


author: WILSON, Justice.

text:
    T. J. APPERSON, Appellant, v. Walton V. SHOFNER, Appellee.
    No. 3941.
    Court of Civil Appeals of Texas. Waco.
    Nov. 2, 1961.
    Rehearing Denied Nov. 22, 1961.

      Leonard E. Choate, Beaumont, for appellant.
    A. M. Huffman, Beaumont, for appellee.
   WILSON, Justice.

Shofner was lessee under a written lease agreement which provided he could not assign or sub-let without his lessor’s written consent. He built a golf course on the leased premises, and thereafter assigned the lease to appellant Apperson, retaining a lien on the leasehold estate and personal property on the golf course to secure payment of rents due under the original lease. Upon Apperson’s failure to pay rents, Shof-ner instituted this action to foreclose the lien.

Apperson’s defense was that since Shof-ner, the lessee failed to obtain his lessor’s written consent to the assignment, there was a failure of consideration. He alleged that the original lessor had previously advised Shofner of refusal to consent to the assignment, and Shofner’s representation that he would assign the lease to Apperson was false and fraudulent, since the assignment could not be made without lessor’s consent. He prayed for rescission, and by cross-action prayed for damages for breach of Shofner’s express warranty against outstanding interests, asserting that since the lessor would not consent in writing to the assignment, his rights thereunder were worthless.

The trial court withdrew the case from the jury at the conclusion of the evidence, concluded there was no issue for the jury and rendered judgment for debt and foreclosure of lien in favor of Shofner. By sixteen points Apperson contends he raised ultimate fact issues relating to his pleaded defenses and cross-action and the case should have gone to the jury. All of these points, however, present but a single law question under undisputed facts: is Apperson entitled to avoid the lease by virtue of the covenant against assignment without lessor’s written consent ? We think the trial court’s action was correct and affirm the judgment.

The provision in the lease prohibiting assignment by the lessee without lessor’s written consent was for the lessor’s benefit, and lessor could waive it. In the absence of interference with his possession, Apperson “has no right to complain.” Ogus, etc. v. Foley Bros. Dry Goods Co., Tex.Com.App., 252 S.W. 1048, 1053; Jackson v. Knight, Tex.Civ.App., 194 S.W. 844, 846, writ ref.; Nelson v. Seidel, Tex.Civ. App., 328 S.W.2d 805, 807, writ ref. n. r. e.; Ewing v. Moran, Tex.Civ.App., 166 S.W. 2d 760, 763; Burnett v. Gibbs, Tex.Civ.App., 196 S.W. 725, 726; 27 Tex.Jur. p. 367, 368; and see Francis v. Crowley, Tex. Civ.App., 50 S.W.2d 462, 464, writ ref.; Edwards v. Worthington, Tex.Civ.App., 118 S.W.2d 328, 333.

The undisputed evidence establishes that lessor gave unequivocal oral consent to the assignment before it was executed, agreeing to execute a written consent if it was needed. The lessor, not a party, testified oral approval and consent was given before the transfer to Apperson, and there had never been objection to, or refusal of such consent. When Apperson announced he elected to rescind the contract under which the assignment was made because the consent was not in writing, the lessor executed a formal written consent recognizing the assignment, ratifying and confirming its prior oral agreement.

Apperson was familiar with the terms of the lease, entered into and continued undisturbed possession of the leased premises for over eight months, operated the golf course and collected the income as his own. He paid to the original lessor one monthly installment of rent, which was received and accepted. He gave a check for a similar payment to lessor the following month, which lessor deposited. The check was “bad”, and appellant thereupon paid lessor a smaller amount. At this time, Apperson testified, he requested lessor to give him additional time to pay the balance of the rent due; and lessor declined on the ground it did not desire to release Shofner from primary liability to pay rent, and feared an extension agreement with Ap-person might have this effect. Under these facts the lessor effectively waived any right it had to insist on a written consent to assignment or to declare a forfeiture as urged by the defenses and cross-action of appellant. Gulf C. & S. F. Ry. Co. v. Settegast, 79 Tex. 256, 15 S.W. 228, 230; Jackson v. Knight, Tex.Civ.App., 194 S.W. 844, 846, writ ref.; Marshall v. Smith, Tex.Civ.App., 199 S.W.2d 555, 557; Edwards v. Worthington, Tex.Civ.App., 118 S.W.2d 328, 333; Stoma v. Filgo, Tex.Civ.App., 26 S.W.2d 1100, 1102; Barton v. Flanagan, Tex.Civ.App., 25 S.W.2d 947, 949, writ dism.; Fred v. Moseley, Tex.Civ.App., 146 S.W. 343, 344; 27 Tex.Jur. Sec. 220, p. 370. Such has also been the consistent holding under Art. 5237, Vernon’s Ann.Civ.Stat.

Appellant says a provision in the lease agreement that it “shall not be amended, changed or extended except by written instrument signed” by lessor and lessee precluded oral consent to the assignment, waiver or ratification. Justice Stayton said in Morrison v. Ins. Co. of North America, 69 Tex. 353, 6 S.W. 605, 609, “The answer is manifest. A written bargain is of no higher legal degree than a parol one. Either may vary or discharge the other; and there can be no more force in an agreement in writing not to agree by parol than in a parol agreement not to agree in writing.” See Groce v. P. B. Yates Mach. Co., Tex.Com.App., 288 S.W. 161, 162; 10-A Tex.Jur. p. 439.

Appellant says the oral consent to the written assignment is within the Statute of Frauds, not pleaded. If appellant could invoke the statute, lessor’s consent to assignment is not a contract for the lease of real estate contemplated by Art. 3995, Sec. 4, Vernon’s Ann.Civ.Tex.Stats., even though the assignment itself may be such.

The claimed breach of warranty was not available. Appellant’s possession had not been disturbed; there was no eviction, constructive or in pais; no paramount right was asserted or threatened against him when he sought to rescind on his claimed ground there was such right outstanding. Schneider v. Lipscomb County Nat. Farm Loan Ass’n, 146 Tex. 66, 202 S.W.2d 832, 834, 835, 172 A.L.R. 1.

Appellant’s other points briefed have been considered and are overruled. Affirmed.


author: DAVIS, Justice.

text:
    COTTON BELT GIN & MILL SUPPLY, INC., Appellant, v. ALLTEX PRECISION COMPANY, Inc., Appellee.
    No. 7313.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 7, 1961.
    Rehearing Denied Dec. 5, 1961.

      Cedric G. Hamlin, Spafford, Ledbetter, Freedman, Hamlin & Gay, Dallas, for appellant.
    G. H. Kelsoe, Jr., Daugherty, Bruner, Kelsoe & Thorp, Dallas, for appellee.
   DAVIS, Justice.

Plaintiff-appellee, Alltex Precision Company, Inc., sued defendant-appellant, Cotton Belt Gin and Mill Supply, Inc., for the making and fabrication of a stamping die, and for attorney’s fees. The order for the die was placed on August 4, 1959, and delivery was to have been in eight weeks. The die was not delivered according to the purchase order, and has never been delivered. The appellee carried the die to the appellant’s place of business three or four times for the purpose of delivering the same, but neither time would the die work, and it was carried back to the appellee’s place of business. On December 29, 1959 the appellant notified the appellee that the purchase order was cancelled.

The case was tried before a jury. The appellee actually did not prove that the die was completed and delivered at any time prior to the date that appellant notified the appellee that the purchase order was cancelled. The foreman of the appel-lee testified at the trial that he carried the die to the appellant’s place of business three or four times, neither time would it work, and each time he carried it back to the ap-pellee’s place of business. The appellant specially denied that it was indebted to the appellee in any sum, and further plead that the purchase order was cancelled on December 29, 1959, and that the consideration for said purchase had wholly failed. During the trial of the case, the appellee offered in evidence the letter of cancellation of the purchase order, without any limitations or restrictions. It appears that the appellee is bound by every statement made in the letter of cancellation. Lock et al. v. Morris, et al., Tex.Civ.App., 287 S.W.2d 500, wr. ref., n. r. e., and authorities cited therein.

The appellant brings forward five points of error. By point one it complains of the action of the trial court in overruling its motion for judgment non obstante veredicto. The evidence above enumerated, together with the evidence that each time the die was delivered to the appellant’s place of business, it was voluntarily carried back to the appellee’s place of business by the foreman of appellee, and the appellee had the die at the time of the trial, there would be no completion and no delivery. Although Mr. Harper, President of the ap-pellee, testified that Mr. Senter, President of the appellant, had accepted the die, which Mr. Senter positively denied, and the further fact that the appellee still has the die, does not prove that Mr. Senter had accepted it. The testimony of the foreman showed positively that the die was never completed. The letter of cancellation of December 29, 1959, being offered in evidence by the appellee definitely showed that the contract had been cancelled. Appellee proved this fact, and it is therefore uncon-tradicted. 46 Am.Jur. 393, Sec. 211. The appellee was supposed to deliver the die to the appellant’s shop and install it in appellant’s press, ready for use. What amounts to delivery is discussed in 37A Tex.Jur. 437, Sec. 209; Walker-Smith v. Jackson, (Tex.Civ.App.) 123 S.W.2d 993, err. dism., judgment correct. The point is sustained.

By its points Two and Three, appellant takes the position that the court erred in its judgment because appellant was justified in fact and in law in cancelling its purchase order. Time is the essence of the contract, and if appellant had waived the first eight week period it does not mean that appellee was granted an indefinite time in which to deliver the die. 37A Tex.Jur. 449, Sec. 213, and authorities therein cited. Under the proof offered by the appellee, there was work done on the die after the letter of cancellation had been received. There was no proof at the trial that the die was actually completed. It would be unfair to allow the appellee to recover in this action on the proof that it offered. 37A Tex.Jur. 562, Sec. 271. The points are sustained.

Appellant’s fourth point is without merit and is overruled.

By its fifth point, appellant takes the position that the verdict of the jury and the judgment of the court is manifestly unjust and contrary to the great weight and preponderance of the evidence. We have examined the statement of facts in its entirety and from what has heretofore been said,, we think the point is well taken and must be sustained. King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

For the errors herein pointed out the judgment of the trial court is reversed and the cause is remanded.


text:
    GODDARD MACHINERY COMPANY, Inc., Appellant, v. INDUSTRIAL EQUIPMENT REPAIRS, INC., Appellee.
    No. 3944.
    Court of Civil Appeals of Texas. Waco.
    Oct. 26, 1961.
    Carl R. Griffith, Beaumont, for appellant.
    O. B. McWhorter, Port Arthur, for ap-pellee.
   WILSON, Justice.

Plaintiff sued on a verified account. Defendant’s unverified answer pleaded payment and accord and satisfaction. ■ The court concluded that in the absence of verified denial under Rule 185, Texas Rules of Civil Procedure, defendant was “not entitled to offer any defense as pleaded”, withdrew the case from the jury and rendered judgment on the pleadings for plaintiff.

This was error. Even in the absence of a sworn denial, under the Rule, defendant’s pleaded defenses in the nature of confession and avoidance were available. Yelton v. Bird Lime & Cement Co., Tex.Civ.App., 161 S.W.2d 353, syl. 6, writ ref. w. m.; J. M. Radford Gro. Co. v. Porter, Tex.Civ. App., 17 S.W.2d 145, 147, writ dis.; Glasco v. Frazer, Tex.Civ.App., 225 S.W.2d 633, 635, writ dis.; McConnon & Co. v. Klenk, Tex.Civ.App., 11 S.W.2d 222, 223; American Druggists Synd. v. Holt Drug Co., Tex.Civ.App., 272 S.W. 508, 509; Queen City Motor Co. v. Texas Auto Supply Co., Tex.Civ.App., 241 S.W. 212, 214 and cases therein cited. Reversed and remanded.


author: WERLEIN, Justice.

text:
    Sidney A. LEWIS et al., Appellants, v. R. E. STUART, Appellee.
    No. 13816.
    Court of Civil Appeals of Texas. Houston.
    Nov. 2, 1961.
    Rehearing Denied Nov. 30, 1961.
    Clarence M. Wilchar, Jr., Houston, for appellants.
    Tom Sanders, Houston, 'for appellee.
   WERLEIN, Justice.

Appellants appeal from a judgment rendered against them by the trial court, sitting without a jury, -in the sum of $781.59, representing the amount of a telephone bill which appellee obligated himself to pay the telephone company, and which he • asserts appellants should have paid under the terms of their bill of sale transferring to him certain personal property in a motel and good will.

Appellants sold appellee all furniture, furnishings, air conditioning units and equipment located in the premises at 3157 Old Spanish Trail, Houston, Texas, and attached to the bill of sale a list of the personal property sold. At the bottom of the itemized list, which covers two legal size pages, is added, “All supplies, utensils, linens and personal property whatsoever located in the Thunderbird Motel and restaurant at 3157 Old Spanish Trail, Houston, Harris County, Texas.”

The pertinent paragraphs of the bill of sale read as follows:

“For the same consideration herein-above expressed, we hereby assign and transfer unto the said purchasers the goodwill of the Thunderbird Motel together with the right to use the name Thunderbird Motel. In the event of a foreclosure of the liens securing the payment of any note to purchasers to sellers, or either of them, then the right to use such name shall revert to sellers.
“Except as hereinabove provided, we hereby warrant the title to said personal property to be free and clear of any and all liens, claims or demands of any person whomsoever and that we have a perfect right to sell and deliver the same.”

Sometime prior to selling such personal property to appellee, appellants had leased the motel to Texas Twilighter Corporation, but shortly before executing the bill of sale to appellee, they had taken it back. Ap-pellee knew that someone other than appellants had been operating the motel prior to his purchase. During the time Texas Twilighter -Corporation operated the motel it had incurred said indebtedness of $781.59 to the telephone company for use of telephone number JA 6-3737. The evidence is uncontroverted that Texas Twilighter Corporation owed the bill in question and that the telephone company looked to it for payment thereof and did not look to either appellants or appellee for payment.

Appellee testified that in order to retain said number and keep the telephone company from disconnecting it, he voluntarily obligated himself to pay said bill, and that the telephone number in question had been used by the motel for a year and a half, and had been extensively advertised through various media and constituted an asset of the business.

It will be noted that neither the telephone equipment nor the telephone number is included in the itemized list of personal property that was sold. Furthermore, it is a matter of common knowledge that the contract between a telephone company and a subscriber entitles the subscriber to telephone service, for which he pays, but it gives him no proprietary interest that will permit him to sell the telephone equipment and telephone number furnished by the telephone company. It is clear that the warranty clause in the bill of sale does not cover either the telephone or the telephone number in question.

It is appellee’s contention, however, that the telephone number was a part of the good will of the business which was transferred and assigned to the purchaser. It will be noted that appellants assigned and transferred to the purchasers the good will of the Thunderbird Motel together with the right to use the name Thunderbird Motel. No mention is made of the telephone number JA 6-3737, nor is any right to use such number expressly given. We are, therefore, called upon to determine whether the transfer of good will carried with it automatically the right to retain the telephone number previously used by the business, and if so, whether as a concomitant of that right the purchaser had the right to compel the vendor to pay all delinquent charges to the telephone company, regardless of whether the vendor was liable to the telephone company for such charges.

We have neither found nor been cited to any case directly in point. The case nearest in point cited by appellant is Houston Transfer & Carriage Co. v. Williams, Tex.Com.App.1920, 221 S.W. 1081, 1082. In that case the contention was made by the vendee of a transfer business that the bill of sale contained a good will covenant which had been violated by the vendor’s widow leasing the stables formerly used by her deceased husband in connection with his transfer business, and permitting the tenant who engaged in business in competition with the vendee, to use the telephone number formerly used by the vendor. The court said:

“With ■ reference to the assignment complaining of the violation of the good will covenant, it is observed that the bill of sale contains no restrictive clause binding defendant in error not to lease the property for a competitive business; neither does it contain a restrictive clause preventing the use of the telephone number. Their rights are to be measured by the terms of the written contract, and cannot be enlarged or diminished by contemporaneous or prior stipulations, unless there be allegations and proof of fraud, accident, or mistake, in merging the agreement into the written contract.
“Plaintiffs in error seek to give the term 'good will’ such signification as to include a restriction on the part of defendant in error to lease the premises at 1604 Oak street for a competitive business, and also to prevent the use of the telephone number at that point by the lessee. We do not think that the term is comprehensive enough to include such restrictions. The mere purchase of a good will is insufficient, in the absence of an express covenant, to restrict a party in the enjoyment of a right which he has not bargained away. Had plaintiffs in error desired the restrictions mentioned, they should have secured them by positive agreement.”

We have concluded in light of the holding in the Williams case, that as a matter of law the transfer of “good will” in the instant case did not carry with it a warranty that appellee would have the right to retain the telephone number in question since there is no express covenant in toe bill of sale to such effect. We have also concluded that appellants were not obligated to. take care of the telephone bill which had been incurred by Texas Twilighter Corporation since there is no express stipulation in the bill of sale that appellants would be responsible for unpaid telephone bills for service rendered such number.

Reversed and rendered.


text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Genovevo GONZALEZ, Appellee.
    No. 3905.
    Court of Civil Appeals of Texas. Waco.
    Nov. 2, 1961.
    Rehearing Denied Nov. 22, 1961.

      Strong, Pipkin, Strong & Nelson, Dale Condron, Beaumont, for appellant.
    Joe H. Tonahill, Jasper, for appellee.
   WILSON, Justice.

Appeal from a workmen’s compensation judgment on a jury verdict.

Appellant complains of submission of Special Issue No. 1 which inquired whether claimant sustained total incapacity as a natural result of the accidental injury sustained by him in the course of his employment on the date alleged. The complaint is that (a) the court failed to submit an inquiry as to whether claimant sustained a general injury causing incapacity, exclusive of a specific injury to his leg, he having alleged both general and specific injuries; and (b) that the issue assumes a general injury and that he sustained injuries and incapacity other than to his leg.

Claimant alleged he fell 24 feet from a scaffold, breaking his hip and his leg above the knee; that he suffered, among other specified injuries, aggravation of a pre-existing spinal condition, fractures of the femur, demineralization of bones in the region of the right knee, and a back injury. The carrier pleaded his disability was limited to loss of use of the leg. Appellant relies on Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651, and Texas Employers Ins. Ass’n v. Hinkle, Tex. Civ.App., 308 S.W.2d 543, writ ref. n. r. e. Neither decision is applicable. The court here instructed the jury that “total incapacity” did not include any incapacity caused solely by loss of use of the leg. In both cited cases the trial court refused to submit any requested defensive issue as to ■whether claimant’s incapacity was caused solely by incapacity to the member, although issues were submitted as to limitation of disability to the member. Here the court submitted issues as to (1) whether any total incapacity was solely caused by incapacity to the leg, (2) whether any partial incapacity was caused solely by incapacity to the leg, (3) whether the injury alleged affected parts of the body other than the leg, (4) whether the injuries to the leg extended to and affected other parts of the body, thereby resulting in additional disability, (5) whether any incapacity was limited to the leg, (6) whether any inca-: pacity after a fixed date was solely caused by incapacity to the leg. These separate inquiries were in addition to the total incapacity instruction excluding incapacity caused solely by loss of use of the leg. These points reflect no error. Appellant’s points that there is insufficient evidence, or none, to support the affirmative answer to the first issue are overruled.

It is asserted that issue No. 8 inquiring whether claimant’s injury “affected parts of his body other than the right leg, thereby causing incapacity”, is duplicitous. The contention is overruled. Meyer v. Great American Indemnity Co., 154 Tex. 408, 279 S.W.2d 575, 579; Denbow v. Standard Acc. Ins. Co., 143 Tex. 455, 186 S.W.2d 236, 239.

It is said there is no pleading to support submission of a series of issues concerning whether the injury to plaintiff’s leg extended to and affected other parts of his body. Appellant objected to other issues submitted on the ground they did not confine the jury to findings that the injury to the leg extended to and affected other portions of the body, and because such other issues assumed this fact. It then objected in eight separate paragraphs “to omission of any issue as to whether the injury to plaintiff’s leg extended to and affected other parts of the body” and produced any incapacity; and to failure to submit these issues. It will not now be heard to say the court erred in doing what it insistently and repeatedly urged. Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 488; Mattiza v. Lachs, Tex.Civ.App., 204 S.W.2d 848; 4 Tex.Jur.2d Sec. 770, p. 281. Points as to evidence to support answers to these issues are overruled.

Finally it is insisted the court erred in overruling appellant’s plea to the jurisdiction to the effect that the claim was within the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, Tit. 33 U.S.C.A. § 903, and exclusive jurisdiction was otherwise vested thereby. The injury was sustained while claimant was employed as a painter and sandblaster on a new and incompleted drilling barge under construction at the employer’s dock in the Sabine River, a navigable stream. There is no other evidence from which it can be said claimant was engaged in maritime service or employment. There is nothing to indicate the nature of the contract under which the work on the barge was being done. Appellant had paid claimant $2,485 as compensation for 71 weeks under the Texas Workmen’s Compensation Act previous to the filing of this suit. We are unable to say the court erred in overruling the plea. Emmons v. Pacific Indem. Co., 146 Tex. 496, 208 S.W.2d 884, 888; Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008; Davis v. Department of Labor, etc., 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246; United States Cas. Co. v. Taylor, 4 Cir., 64 F.2d 521, cert. den. 290 U.S. 639, 54 S.Ct. 56, 78 L.Ed. 555; Indemnity Ins. Co. of North America v. Marshall, Tex.Civ.App., 308 SW.2d 174, 179, writ ref. n. r. e.

We have carefully considered each of appellant’s points and they are overruled.

Affirmed.


author: HUGHES, Justice.

text:
    J. B. DORMER, Appellant, v. SINGLETON FARM AND RANCH, Appellee.
    No. 10887.
    Court of Civil Appeals of Texas. Austin.
    Nov. 1, 1961.
    Martin & Martin, Hillsboro, for appellant.
    Rogan B. Giles, Austin, for appellee.
   HUGHES, Justice.

This is a venue appeal. Appellee is Mrs. Lucille V. Singleton, a feme sole, who engages in the business of farming and ranching under the name of Singleton Farm and Ranch. She sued appellant, J. B. Dormer, to recover the balance due ($791.44) upon a promissory note, in the sum of $1,650, payable at the Blanco National Bank, Blanco, Texas, executed by appellant.

Appellant filed his plea of privilege to be sued in Hill County, the county of his residence. On the venue hearing, appellant filed a trial amendment to his plea of privilege in which he denied, under oath, the execution by him or by his authority of the instrument upon which appellee’s “first amended original petition is founded. * * * »

The plea of privilege was overruled.

Appellant’s first point is that the evidence was insufficient to support the implied finding of the Trial Court that appellant executed the note in suit.

Upon the filing of the trial amendment by appellant, adverted to above, appellee filed her second amended petition and amended controverting affidavit in which, for the first time, the correct date of the note was pleaded. No complaint of these proceedings is made.

Appellant did not testify.

Mr. Foster Terrell Smith testified for appellee in part, as follows:

“Q. Are you familiar with a man by the name of J. B. Dormer? A. Yes, sir, he lives up near Hillsboro, the way I recollect it.
“Q. All right, sir. Did Singleton Farm & Ranch ever hav.e any business transaction with Mr. Dormer while you were working with Singleton Farm and Ranch? A. Yes, sir, we sold and delivered to Mr. Dormer several thousand turkey poults in the spring of ’57, I believe in May, if my memory holds right.
⅝ ⅜ ⅝ ⅜ ⅜
“A. Well, as customary with all my — routine as far as delivering turkey poults is concerned, I delivered the turkey poults first by the feed store, which happened to be a Ful-O-Pep Feed Company — I can’t remember the name, but there a man accompanied me out to this fellow’s farm, to show me where it was, and if I remember the day, it was a day about like today, rainy, and this man Dormer had several of his neighbors to help him put the poults down, and I hacked up to the window — the windows in the turkey house, I remember, were along the back and we loaded the turkey poults through the windows into the back of the house, and he had it compartmentalized, and each compartment had a brooder in it, and we put the regular number of poults under each brooder, and I was there until all the poults were put down, at which time he ascertained the count, and then he signed a receipt for the poults, and, to the best of my knowledge and belief, at the same time he signed a note, which was customary, we always delivered — never failed to have a man sign a note at the same time he signed the receipt acknowledging receipt of the poults.”

Mr. Smith testified that he saw appellant sign the receipt, and he identified the receipt in evidence as bearing appellant’s signature.

Regarding the note, Mr. Smith testified:
“Q. (Mr. Giles) All right. Now I’ll hand you this other document, which has been identified as Plaintiff’s Exhibit No. 1, and ask you if you recognize that. A. (The witness) Yes, sir, that’s the normal procedure. We have a note signed just like that every time we have a receipt signed.
“Q. Did you see Mr. Dormer actually sign that note, yourself? A. To the best of my knowledge and belief, I did.
“Q. Well, now, to the best of your— A. To the best of my knowledge and belief, this was 1957, and I’ve been out of the turkey business, I think I went out, I think I quit — I separated from Bob’s business about June, so, to the best of my knowledge and belief he signed .that note.
“Q. Did he sign any instruments while you were there — Now, I understand it’s been three years ago — Did he sign any instruments in your presence ? A. Well, I’m sure he signed both of them, just as sure as I’m sitting here.”

Both the note and receipt were offered in evidence. Appellant’s signature on the receipt, having been positively identified by Mr. Smith, was subject to comparison by the Court with the signature on the note. Without reproducing the signatures we say with assurance that to a layman the signatures appear to have been made by the same person.

Independently of this, we are of the opinion that the uncontroverted testimony of Mr. Smith supports the finding of the Trial Court. The witness testified to circumstances under which it was customary to take a note from a purchaser such as appellant was.

It is to be noted that Mr. Smith did not testify from “information and belief.” He testified that “to the best of my knowledge- and belief,” appellant signed the note. Testimony based on “knowledge” is of high standing. The “belief” which the witness-expressed was, we think, properly attributed to his “knowledge” in the absence of any objection to its admissibility.

Appellant’s second point is that there is no evidence that Blanco, Texas, is in Blanco County.

Factually this point is correct. We overrule it, however, upon the authority of Harper v. Killion, 348 S.W.2d 521, 523, Texas Supreme Court. There the Court held that a district court sitting in Cherokee County could “judicially notice the certain and indisputable fact of common knowledge that the entire city of Jacksonville is located in such county * * Rusk, not Jacksonville, is the County Seat of Cherokee County.

If the district court of Cherokee County judicially knows that the entire city of Jacksonville is located in such county, then we know of no reason, and do not think there should be any sufficient reason, for holding that the district court sitting in Blanco County does not judicially know that the entire City of Blanco is located in such county.

Blanco was the first County Seat of Blanco County. Later, Johnson City became its County Seat. From these historical facts, we probably could derive further judicial notice that Blanco was in Blanco County. We do not, however, deem it necessary.

Appellant’s last point is that ap-pellee’s controverting affidavit was not signed by appellee, but was signed by the *‘son of and agent for” appellee.

This point is overruled. Rule 14, Texas Rules of Civil Procedure, provides that any party to a suit may make a necessary ■or proper affidavit by his agent. The affidavit here recites the fact of agency and that the son and agent was “personally cognizant of the entire transaction made the basis of this suit, and that the allegations, denials and facts set out in the foregoing controverting plea are true and correct.”

No error appearing, the order appealed from is affirmed.

Affirmed.


text:
    Neal F. LIGHTLE, Appellant, v. BOCK MOTOR COMPANY, Appellee.
    No. 10892.
    Court of Civil Appeals of Texas. Austin.
    Nov. 8, 1961.
    Benjamin Shefman, New Braunfels, for appellant.
    William H. Borchers, New Braunfels, for appellee.
   HUGHES, Justice.

Appellant, Neal F. Lightle, was given the use of an automobile by and belonging to Bock Motor Company, appellee, while appellant’s car was undergoing repairs by ap-pellee. The loaned car was returned by appellant to appellee in a damaged condition, such damages occurring while appellant was using the automobile. This suit is to recover for such damages.

Upon the trial of the case, appellant offered evidence to prove, or tending to prove, that the damages to the loaned automobile were caused by the negligence of a third party and without any concurring or contributing negligence on his part. This evidence was excluded by the Trial Court upon the objection being made that the pleadings of appellant did not authorize its admission.

This is the only question presented by the parties, however, upon an examination of the record we have concluded that we are without jurisdiction of this appeal for the reason that the judgment from which this appeal was attempted is not a final judgment.

We will make a short statement of the sequence and content of those parts of the record relevant to our disposition of this appeal.

Appellee’s original petition pleaded a simple bailment of the automobile to appellant for a valuable consideration, and its return in a damaged condition, in its first count. By alternative pleading in the second count, appellee pleaded the substance of its first count but adding allegations that the damage to the automobile was proximately caused by the negligent acts of appellant, without specifying such acts.

Appellant excepted to this pleading insofar as it sought recovery of attorney’s fees. He answered with a general denial and filed a cross claim against one Carroll L. Hunter, whom he alleged was responsible for the damages to the loaned car.

Appellee filed its first Amended Original Petition in which Mr. Hunter was made a party. The pleading was substantially the same as the former pleading except that' Hunter, as well as appellant, was charged with negligence proximately causing the automobile damages.

Appellant’s Second Amended Original Answer contained an exception to the allegations of negligence in such amended petition on the ground of generality. This answer admitted the allegations as to bailment of the automobile, and followed with a general denial. This pleading did not contain a cross action against or ask any relief from Carroll L. Hunter.

Appellee, by trial amendment, was permitted to strike from its pleading the allegation that the bailment was for a “valuable consideration.”

By Bill of Exception it is shown that prior to the introduction of testimony, appellant presented and the Trial Court sustained his exception to the allegations of negligence contained in app.ellee’s amended pleading. It is to be noted that no such exception was made by defendant Hunter. In fact, Hunter filed no pleading's. It thus appears that when evidence of Hunter’s negligence was offered and rejected, there were pleadings to support its admission.

No further pleadings were filed.

Judgment was rendered February 23, 1961, for appellee against appellant for $412.05, interest and costs. This judgment did not mention defendant Hunter, directly or indirectly.

On March 2, 1961, appellant filed, and the Clerk approved, his appeal bond.

On March 11, 1961 appellee filed, and the Court granted, the following motion:

“Now comes Plaintiff, Bock Motor Co. by and through its attorney of record, and without waiving its cause of action and judgment against Neal F. Lightle on the first, or primary, pleading and judgment in said cause, but expressly reserving said judgment and all of i'ts rights thereto, makes this, its application and motion to dismiss the alternative suit against Carroll L. Hunter based on the alternative pleading, without prejudice to the rights of Plaintiff.”

The judgment entered was not a final judgment because it failed to dispose of defendant Carroll L. Hunter. Art. 2249, Vernon’s Ann.Civ.St., Appeal and Error, 3 Tex.Jur.2d, Secs. 82-87, inclusive.

The order of dismissal as to Hunter made after the potential jurisdiction of this Court had attached by reason of the appeal having been previously perfected, was ineffective insofar as our authority to determine our jurisdiction by reason of the appeal or attempted appeal is concerned. Appeal and Error, 3 Tex.Jur.2d, Secs. 340-342, inclusive. See also Rule 164, Texas Rules of Civil Procedure, relating to nonsuit, and Rule 301, T.R.C.P., prohibiting plural judgments in a cause except when otherwise specially provided.

The appeal is dismissed.

Appeal dismissed.


text:
    Willie Dell GRUDZIECKI, Appellant, v. Jessie Mae STARR, Appellee.
    No. 3923.
    Court of Civil Appeals of Texas. Waco.
    Oct. 26, 1961.
    Rehearing Denied Nov. 16, 1961.
    William Drew Perkins, Lufkin, for appellant.
    Dies, Anderson & Dies, Lufkin, for ap-pellee.
   WILSON, Justice.

The sole question in this case is whether the provisions of Sec. 69, Texas Probate Code, V.A.T.S., operated to nullify provisions of a probated will under which ap-pellee took, and in which she was named independent executrix.

The material facts are stipulated: Testator and appellee were married in 1934. Appellant is the daughter of testator by a previous marriage. In 1945 the will involved here was executed. Testator and appellee were divorced in 1949, but six months later they re-married. In 1956, Sec. 69, which provides that if the testator is divorced after making a will, all provisions in the will in favor of the testator’s spouse so divorced, or appointing such spouse to any fiduciary capacity under the will “shall be null and void and of no effect,” became effective. Testator and ap-pellee continued to live together as husband and wife from the time of the re-marriage until he died in 1959.

Appellant contends that when the Probate Code became effective it retroactively ■operated to invalidate the provisions of the will in favor of appellant because at its effective date “the testator was divorced after making a will.”

Sec. 69 did not have the effect appellant claims. Before the Probate Code was adopted it had been held that divorce did not operate to revoke a will. Merritt v. Merritt, Tex.Civ.App., 158 S.W.2d 116, writ ref. w. m. In re Ziegner’s Estate, 146 Wash. 537, 264 P. 12, relied on by appellant is not in point; there the divorce occurred after effective date of the statute. McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898 involved the direct converse of the present facts. Probate Code, Sec. 2(b) further provides that “all things properly done under any previously existing statute * * * shall be • treated as valid.”

Affirmed.


author: RICHARDS, Justice.

text:
    Frank M. NUSE, Appellant, v. Victor A. KORMEIER, Appellee.
    No. 10898.
    Court of Civil Appeals of Texas. Austin.
    Nov. 8, 1961.
    John S. Wade, Austin, for appellant.
    Byrd & Davis; Jack C. Eisenberg, Austin, for appellee.
   RICHARDS, Justice.

Suit was brought in the County Court at Law of Travis.County, Texas by Victor A. Kormeier, appellee, against Frank M. Nuse, appellant, to recover damages for injuries to appellee’s automobile cattsed in a collision with an automobile which was operated by appellant in a negligent manner on Oltorf Street, in Austin, Travis County. Appellant answered by special exceptions and pleaded as a defense that the proximate cause of the collision and the resulting damage was caused by the negligence of appellee (a) in making a left turn at an intersection in violation of Sec. 33.25B of the Austin City Code, (b) in failing to keep a proper lookout, and (c) in failing to yield the right of way to a vehicle from the opposite direction in such manner as to create a hazard, which acts of omission or commission were in violation of the Uniform Traffic Code and directly and proximately caused the damage, if any, to appellee’s automobile. The case was tried to the Court without a jury and judgment was rendered in favor of appellee in the sum of $223.54, from which judgment this appeal was perfected.

Appellant having timely requested the Trial Court to make findings of fact and conclusions of law pursuant to Rule 296, Texas Rules of Civil Procedure, the Trial Court found from a preponderance of the evidence that appellee’s son was driving appellee’s car going east on Oltorf and was turning left into the entry-way into Twin Oaks Shopping Center. Appellant crested the hill coming west on Oltorf Street 183 feet east of the entry-way. At the place where the collision occurred the road was straight and ran approximately east and west. There had been no rain and the streets were dry and there were no traffic control devices. The street was divided to accommodate 4 lanes of traffic, 2 lanes in each direction which were separated by a double yellow stripe. The day was clear and visibility was good.

There is a broken white stripe dividing the eastbound lanes and a broken white stripe dividing the westbound lanes. The outside lanes east or westbound are 12 feet in width and the inside lanes east and west are 14 feet in width. As appellant came over the crest of the hill on East Oltorf, he was traveling west in the “left-handmost” lane of traffic. He skidded 54 feet from the time his brakes locked to the time of impact, which was 9 feet south of the north curb of East Oltorf and 1 foot west of the driveway curb on the south entrance to Twin Oaks Shopping Center. Appellee’s son was traveling in the inside eastbound traffic lane and as he approached the south entrance to Twin Oaks Shopping Center he commenced to make a turn and was traveling at a rate of approximately 5 miles per hour and was well committed to his turn before appellant came over the crest of the hill. Appellee’s son was the operator of appellee’s 1956 Chrysler and the main damage was sustained in the right rear fender area. Appellant’s skidmarks commenced in the inside westbound lane of traffic, continued across the broken white stripe and ended in the “outsidemost” westbound lane of traffic.

Based upon the foregoing findings of fact the Trial Court concluded as a matter of law that appellant was traveling at a speed that was imprudent, that such imprudent speed was negligence which was a proximate cause of the collision; that appellant was exceeding the lawful speed limit, that such unlawful speed was negligence which was a proximate cause of the collision; that appellant did not apply his brakes in time to avoid the collision, that such failure was negligence which was a proximate cause of the collision; that appellant was negligent in changing the lane of traffic in which he was traveling as he emerged from the top of the hill, that such failure was negligence which was a proximate cause of the collision; that appellee’s son kept a proper lookout and did not fail to yield the right of way; that at the entrance to Twin Oaks Shopping Center the speed limit was 30 miles per hour; that appellee’s son did turn to the left in violation of Sec. 33.25B of the Austin City Code which was negligence per se but that such negligence under the circumstances was not a proximate cause of the collision since at the time of the left turn nothing was in view which would constitute any hazard and that the reasonable and necessary cost of repair to appellee’s automobile was $223.54, which cost of repair is the proper measure of damages.

Appellant having requested additional findings of fact under Rule 298, T.R.C.P., the Trial Court found from the preponderance of evidence that appellee’s son was going 5 miles per hour when appellant crested the hill and he accelerated his automobile in order to do everything in his power to get out of the way of appellant; that appellant admitted to the police officer that he was traveling 35 miles per hour and the skidmark evidence indicated that appellant was going at least 35 miles per hour; that the damage to appellee’s car was in the right rear fender area and the damage to appellant’s car was in the right front fender area and that appellant was driving a 1959 Ford.

Appellant urges the following points of error: (1) that the Trial Court erred in finding that the left turn in violation of the City Ordinance was not negligence under the circumstances and (2) in finding that the illegal left turn which was negligence per se was not a proximate cause of the accident.

Since no statement of facts has been filed with this Court, the findings of fact by the Trial Court in cases tried without a jury are conclusive on the appellate court. Texas & P. Ry. Co., Inc. v. Purcell, 91 Tex. 585, 44 S.W. 1058; Shroff v. Deaton, Tex.Civ. App., 220 S.W.2d 489 (no writ history); Foran v. Smith, Tex.Civ.App., 228 S.W.2d 251 (no writ history).

In the absence of a statement of facts, we must presume that the evidence was sufficient to warrant the finding made by the Trial Court that the violation of the Austin City Ordinance, although negligence per se, was not negligence under the circumstances of this case such as to constitute the proximate cause of the collision.

The rule of law that an act or omission must be shown to be a proximate cause of an injury is applicable where the alleged act or omission is the violation of a statute or an ordinance. East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613, 616. And even though appel-lee’s admitted violation of Sec. 33.26 of the Austin City Code constituted negligence per se, it was necessary for appellant to show that such negligence was the proximate cause of the collision. Yellow Cab Co. v. Pfeffer, Tex.Civ.App., 233 S.W.2d 964, 966 (no writ history).-

The Trial Court having found as a fact that at the time appellee’s son commenced to make the left turn he was traveling at approximately 5 miles per hour, was keeping a proper lookout and was well committed to his turn before appellant came in sight over the crest of the hill, appellee’s son had the right to assume that appellant was operating his automobile within the legal speed limit and could not reasonably foresee that appellant would be imprudently operating his automobile at an excessive speed. The Trial Court’s findings of fact support his conclusion that the violation of the City Ordinance, although negligence per se, was not a proximate cause of the collision. Roddy v. Herren, Tex.Civ.App., 125 S.W.2d 1057 (no writ history).

Both of appellant’s points of error are overruled and the judgment of the Trial Court is affirmed.

Affirmed.


author: WESTHUES, Judge.

text:
    STATE of Missouri, at the Relation of James K. HAND, Arthur P. Beauchamp, and George L. Thompson, of Maries County, Missouri; and Homer Campbell, Clyde Bull, Clarence Martin, Gene Smoot, Eugene Elkins, and Millard Hauck, Members of Board of Directors, Dixon Reorganized Schools R-I, Pulaski County, Missouri, Relators, v. Jesse BILYEU, Reba Deardueff, and Von Conner, Last Members of West Fairview School District No. 52, Maries County, Missouri; Von Conner, (Mrs.) Dessie Bilyeu, and Frank Hodge of Maries County, Missouri, and Willard Terry, Howard Henderson, Max John, Tim Ramsey, Ed Minzes, and James Murphy, Board of Directors, Reorganized School District R-I, Maries County, Missouri, Respondents.
    No. 48913.
    Supreme Court of Missouri, En Banc.
    Nov. 13, 1961.
    Edgar M. Eagan, Jefferson City, of counsel for appellants.
    Bond & Dominique, John O. Bond, P. Pierre Dominique, Jefferson City, for respondents.

      Thomas F. Eagleton, Atty. Gen., C. B. Burns, Jr., J. Gordon Siddens, Asst. Attys. Gen., for intervenor.
   WESTHUES, Judge.

This is a mandamus proceeding which grew out of whether a common school district, known as West Fairview School District No. 52 of Maries County, Missouri, should be attached to Reorganized School District R-l, Maries County, or to the Dixon Reorganized Schools R-l in Pulaski County. The cause was first heard in the Circuit Court of Maries County, Missouri, where the trial court quashed the alternative writ which had theretofore been issued. An appeal was taken to the Springfield Court of Appeals. That court reversed the judgment of the trial court with directions to enter an order making the alternative writ peremptory. This court granted an application to transfer the cause here. It was argued and submitted at our September Session, 1961. In addition to the briefs filed by the parties directly interested, the State’s Attorney General was permitted to intervene and file a brief.

The relators are taxpaying citizens of the now defunct West Fairview Common .School District and the members of the Board of Directors of the Dixon Reorganized Schools R-l of Pulaski County. Respondents are Jesse Bilyeu, Reba Deardueff, and Von Conner, who were the last board members of the West Fairview District; Von Conner, Mrs. Dessie Bilyeu, and Frank Hodge, residents of Maries County; and the members of the Board of Directors of the Reorganized School District R-l of Maries County.

Briefly, the facts as shown by the record are these: West Fairview School District No. 52 was a common school district located 'in the southern portion of Maries County, a short distance from Dixon in Pulaski County. The boards of education of Maries County and Pulaski County attempted to form reorganized school districts as provided for in Sec. 165.673 and Sec. 165.677, V.A.M.S., RSMo 1959. (All statutory references are to said revision unless otherwise indicated.) The county boards of education of the two counties failed to agree as to the disposition of the territory in West Fairview District whereupon the question was submitted to the State Board of Education. The State Board approved the plan of reorganization as submitted by the Board of Education of Pulaski County which included the West Fairview District, subject to a vote to be taken within 60 days, as provided for in Sec. 165.680. Notification of this decision was made on March 13, 1959. On April 21, 1959, an election was held in the Dixon Reorganized Schools R-l, resulting in a vote approving the action of the State Board of Education. On March 16, 1959, the West Fairview Board met and instructed the clerk of the board to post notices for a special election to be-held at the West Fairview schoolhouse on Tuesday, March 31, at 2 p. m., for the purpose of voting on the question “to annex West Fair-view School District #52 in its entirety to Reorganized School District R-l Maries County, Missouri.”

At the appointed hour, a meeting was held at the schoolhouse. The meeting was organized by electing Von Conner as chairman and Dessie Bilyeu as secretary. In all respects, the meeting was conducted in accordance with Sec. 165.267, except that the chairman failed to announce the result of the vote. The vote, as tabulated, showed 21 against annexation and 20 in favor of annexation. It will be noted that at this point it became the duty of the chairman, who is the defendant Von Conner, to announce the result. The statute, Sec. 165.267, supra, prescribing the procedure at such a meeting expressly so provides. Note what it says: * * * each person desiring to vote shall advance to the front of the chairman and deposit his ballot in a box to be used for that purpose. When all present shall have voted, the chairman shall appoint two tellers, who shall call each ballot aloud and the- secretary shall keep a tally and report to the chairman, who shall announce the result; * * (Emphasis supplied.)

The chairman did not comply with the plain mandate of the statute. Instead, the meeting broke up. At a later date, there was a meeting of the West Fairview Board, at which time, under the supervision of the Board, four absentee ballots were counted, ■ — -all in favor of the annexation. Thereafter, the Board of the Reorganized School District R-l of Maries County accepted the West Fairview District. The property of the West Fairview District was delivered to the Maries Board. For a detailed statement of the procedure followed, see the opinion of the Springfield Court of Appeals, 346 S.W.2d 221.

This mandamus proceeding was filed asking that a writ be issued commanding Von Conner, the chairman of the meeting, to comply with his statutory duty to announce the result of the vote as taken at the meeting; that the writ command the secretary of the meeting, Dessie Bilyeu, to include in the minutes that Von Conner had announced the result; that the writ order the members of the Board of Maries Reorganized District to deliver to the Dixon District all of the books and property in their hands which was the property of the West Fairview District. As stated supra, the trial court denied the writ. The Court of Appeals reversed the judgment and remanded the cause with directions to enter a judgment in favor of the relators.

The cause was ordered transferred to this court on the sole ground that in our opinion the Court of Appeals erred in treating the subject of the absentee voting laws. As we interpret the opinion, it was held that the absentee voting laws were not applicable to any school district election. This court considered that subject in a recent case. See State ex rel. School District of City of Jefferson, Cole County, Missouri v. Holman, Mo., 349 S.W.2d 945, No. 49009. We ruled in that case that the absentee voting laws were applicable to elections held in school districts when conducted under the election laws of this state. We referred to the opinion of the Springfield Court of Appeals in this case and pointed out that the question before the Court of Appeals was whether the absentee voting laws were applicable to a vote taken at a school meeting of a common school district conducted in accordance with the provisions of Sec. 165.267, supra. Note that Sec. 165.300(4) provides that “The voting at said special school meeting or special election shall be by ballot, as provided for in section 165.267, in the case of common school districts, or as provided for in section 165.330 in -the case of town, city or consolidated school districts, * * The question of whether the absentee voting laws are applicable to elections in school districts where there are polling places and election judges as provided for general elections, particularly Sec. 165.330, was not before the Court of Appeals and is not now in the case before us. This court has no fault to find with the result reached by the Court of Appeals. This is for the reason that the absentee voting laws may not and obviously cannot be used when a vote is taken at a school meeting under the provisions of Sec. 165.267, supra. The provisions of that section prescribe with particularity the procedure for taking a vote. Such procedure leaves no room for any voting except by those attending the meeting. It has been held that a person must be present at the time the voting is taking place, otherwise the voter may not cast a ballot. See State ex inf. Walker ex rel. Wagster v. Consolidated School District No. 4C of Dunklin County, 240 Mo.App. 91, 213 S.W.2d 271, affirmed 358 Mo. 839, 217 S.W.2d 500, 1. c. 502(2). In that case, this court en banc stated the following concerning the statute in question: “We think that when all present had voted and the tellers were appointed that the above section contemplated the voting should be brought to an end.”

We rule that it was the duty of Von Conner to' make an announcement stating the result of the vote immediately after the ballots had been counted. We further rule that this was a ministerial duty which may be enforced by mandamus.

We are fully satisfied with the opinion of the Springfield Court of Appeals in its treatment of the subject of the writ of mandamus. We find nothing in the brief filed by respondents in this court that was not fully considered by the Court of Appeals. In the brief in this court, under Point III, it is stated that “Relators cannot by mandamus require the Court to ascertain whether the Board of respondent West Fairview School District in determining whether the absentee ballots cast should or should not have been accepted, since the Board in determining the validity or invalidity of said ballots acted in a quasi judicial capacity.” A sufficient answer to that point is that the Board of West Fairview School District had absolutely nothing to do with the meeting at which the vote was taken. Whatever action the board may have taken after that meeting with reference to the vote was nugatory for want of authority to act. The Court of Appeals correctly ruled in holding that the Reorganized School District R-l of Maries County did not attain the legal status of a de facto district and was not acting under any color of authority as to the territory of the West Fairview District. It is conceded that an election was held in the Dixon District which resulted in a vote approving the plan of the State Board of Education and accepting the territory comprising the West Fairview District. That, in a legal sense, completed the annexation of West Fairview to the Dixon District.

It would serve no useful purpose for this court to review the question of the application of the writ of mandamus in this case when, in our opinion, the matter was fully considered and correctly decided by the Court of Appeals. We hereby approve and adopt, without setting forth, that part of the opinion of the Springfield,; Court of Appeals beginning with that paragraph marked Syl. (5) on page 226 and continuing to the end of the opinion on page 231 of 346 S.W.2d.

It follows that the judgment of the trial court must be reversed and the cause remanded with directions that the order quashing the alternative writ be set aside and that a judgment be entered making such writ peremptory.

It is so ordered.

All concur.