author: WALTER, Justice.

text:
    Rip C. UNDERWOOD, Appellant, v. Donald F. MITCHELL et al., Appellees.
    No. 3968.
    Court of Civil Appeals of Texas. Eastland.
    March 19, 1965.
    Rehearing Denied April 9, 1965.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellant.
    Gordon, Gordon & Buzzard, Pampa, for appellees.
   WALTER, Justice.

Donald F. Mitchell and wife, Maybelle Mitchell, and Carrie Armundson, a feme sole, filed suit against Rip C. Underwood in Roberts County to recover damages for personal injuries resulting from an automobile collision. Underwood filed a plea of privilege to be sued in Potter County. Plaintiff filed a controverting plea asserting venue in Roberts County under subd. 9a of Article 1995. The court overruled the plea of privilege.

Underwood has appealed. He contends the court erred in overruling his plea of privilege because there is no evidence and insufficient evidence that J. D. Burke, the driver of Underwood’s vehicle, was at the time of the accident within the scope of his employment. He also contends such finding is against the great weight and preponderance of the evidence.

Donald F. Mitchell testified substantially as follows: I am 56 years of age and live at Benson, Minnesota. I was in Pampa, Texas, on March 2, 1964, attending the funeral of my brother. After the funeral, we decided to return home. My wife and my sister, Mrs. Armundson, were traveling with me. While we were traveling on the highway north of Pampa we had a collision. As we were traveling north on the highway we met another car traveling in the opposite direction, and I would say I was forty or fifty feet from this car. At such time another car came out from behind the car we were meeting. I immediately hit the brakes and there wasn’t time for anything else. The car that collided with us was going south and we were going north. Mrs. Armundson, my wife and I all sustained personal injuries.

Stanley Schneider testified substantially as follows: I am employed as a patrolman with the Texas Highway Department. I was stationed at Pampa on March 2, 1964. On that date I was called to investigate a collision that took place a few miles north of here on the Perryton highway. When I first observed Mr. Burke at the scene of the collision he acted like a drunk person would act and didn’t even know he was hurt. I told him I had better take him to the hospital and he told me he wasn’t hurt. I smelled alcoholic beverages on Mr. Burke’s breath. I found some beer and whiskey in his car. I took him to the hospital and he signed a consent agreement for a blood test.

Eldon Straughan testified substantially as follows: I am a chemist and toxicologist in the Crime Laboratory of the Texas Department of Public Safety. I received a blood sample purporting to be the blood of J. D. Burke. My examination revealed that the blood specimen contained a .16% alcohol, that means .16% of the blood was composed of alcohol. In my opinion the person from whom this blood was taken was intoxicated at the time the specimen was taken.

J. D. Burke testified substantially as follows: I am a driller and a tool pusher in the oil field. I have lived in Pampa since 1953. On March 2, 1964, I was an employee of Rip C. Underwood. I had been working for Mr. Underwood for a little less than a year. He was paying me $600.-00 per month and expenses. By expenses, I mean traveling expenses while I was away from home. Underwood furnished me with an automobile. I am required to do a great deal of traveling as a tool pusher. As an example of the amount of traveling I do, at one time I went to Utah and drilled one well and then came home and stayed a couple of months and went back and moved the rig to Kansas.

On March 2, 1964, I was involved in an automobile collision. This collision occurred about six or seven miles north of town. I do not remember anything about this wreck. The last thing I remember was coming by a little red school house out there and seeing some headlights. The next thing that I remember was when I woke up at Amarillo the following Friday in St. Anthony’s hospital. Before the accident I had been in Satanta, Kansas, working for Underwood. Underwood’s rig is located there. I left the field about 4:00 o’clock that afternoon. Satanta is about 130 miles from Pampa. I was driving one of Underwood’s automobiles at the time of the collision. It was a ’62 Ford. Underwood provided me with this car the year before when I went to Utah, and I have had this car in my exclusive possession ever since that time. As a tool pusher I was authorized to drive the car to and from my residence. I was authorized to use the car in coming from the location to my home. I was under orders from Mr. Cecil Rowden, Underwood’s drilling superintendent, to go to Lefors and replace a man who had a heart attack, for a few days. That was the reason I was on the highway. He was asked, “Now, the reason you were coming to Pampa was because you were going to have to go on down to Lefors the next day, is that right?” and he answered, “Yes, sir.” I would have been drawing the same money working at Lefors as I was drawing pushing tools. It was our practice to call Underwood’s office “every day, most every day.” The reason I was on the highway at the time of the wreck was because I was under orders to go on down to Lefors the next day.

H. D. Thompson testified substantially as follows: I live in Amarillo and am employed by Rip Underwood as his office manager. On the day of his wreck Mr. Burke was on Underwood’s payroll. He remained on the payroll through April. Mr. Rowden had authority to send Mr. Burke to Lefors. I have not talked to Rowden but Burke told me that Rowden sent him to Lefors.

Our Supreme Court in the case of James v. Drye, 159 Texas 321, 320 S.W.2d 319, 323, said: “On appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment.” Our Supreme Court in Renfro Drug Company v. Lewis, 149 Texas 507, 235 S.W.2d 609, 613, said: “In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto ‘it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.’ ”

In Broaddus v. Long, 135 Texas 353, 138 S.W.2d 1057, (Sup.Ct.), the court said: “In order to render the master liable for the act of his servant, such act must be committed within the scope of the general authority of the servant, in furtherance of the master’s business, and for the accomplishment of the object for which the servant is employed. * * * We approve the rule as stated in 5 American Jurisprudence, supra. Such rule is as follows: ‘Again, if it is proved that the automobile in question was owned by defendant, and further proved that the driver was in the employment of defendant, a presumption then arises that such driver was within the scope of his employment when the accident occurred. The burden of proof is then placed on the defendant to prove that at the time of the accident the driver was not acting for him, but was using the machine for his own purposes, or outside the scope of the employment.’ ”

The evidence does not conclusively show that Burke had turned aside from Underwood’s business or that he was engaged on a mission of his own or that he had departed from the scope of his employment. Burke was traveling on the highway at the time of the wreck under orders from his master’s field superintendent in his master’s car and was on the payroll for that day and for some time thereafter. Before he reached his new assignment he had a wreck. The facts and circumstances of this case conclusively established that at the time of the accident Burke was an employee of Underwood and that the automobile he was operating belonged to Underwood, therefore a presumption arises that Burke was acting within the source and scope of his employment and in the furtherance of Underwood’s business. See Eilar v. Theobold, Tex.Civ.App., 201 S.W.2d 237, (no writ history).

Appellant recognizes, under the facts of this case, a presumption arises that Burke was in the course of his employment. It is his contention, however, that his testimony is so clear and conclusive that he has discharged his burden of rebutting the presumption as a matter of law. We are unable to agree with this contention.

We have considered all the evidence and find that the court’s finding that Burke was acting within the scope of his employment was not against the preponderance of the evidence. In re King’s Estate, 244 S.W.2d 660.

The judgment is affirmed.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    Carl THOMAS, Appellant, v. Lauril M. ALLIS, Appellee.
    No. 131.
    Court of Civil Appeals of Texas. Tyler.
    March 18, 1965.
    Rehearing Denied April 15, 1965.

      Ronald L. Neill, Carrington, Johnson & Stephens, Dallas, for appellant.
    William B. West, III, Allen Butler, William M. Ravkind, Clark, West, Keller & Clark, Dallas, for appellee.
   MOORE, Justice.

Plaintiff, Lauril M. Allis and her husband, Louis Allis, Jr. formerly resided in Collin County, Texas, where they owned and operated the Rolling Hills Ranch. Louis Allis, Jr. moved to the state of Nevada and thereafter in June, 1963, filed an action for divorce against Mrs. Allis. Both parties appeared in that court and went through a lengthy trial, but for some unexplained reason the judgment in that cause has never been entered. Subsequently, while the matter was still pending in Nevada, Mrs. Allis, as plaintiff, filed suit against her husband in the District Court of Collin County, Texas, in Cause No. 26370, styled Allis v. Louis Allis, Jr. and Western Farms, Ltd., a Nevada Corporation, seeking a declaration and adjudication of her interest in and to the Rolling Hills Ranch and the cattle located thereon. That suit was later removed to the United States District Court for the Eastern District of Texas where it is now pending. Shortly after instituting that suit, Mrs. Allis filed the present action for injunction against Carl Thomas only, alleging that: “Defendant Carl Thomas has been granted authority by Louis Allis, Jr. or Louis Allis, Jr., d/b/a Rolling Hills Ranch, or Western Farms, Ltd., or both of them, to buy and sell cattle for their account and for their benefit. Unless Defendant Carl Thomas is restrained and enjoined from engaging in such transactions he will sell said cattle for the account of Louis Allis, Jr. or Louis Allis, Jr., d/b/a Rolling Hills Ranch, or Western Farms, Ltd., or both of them, or for his own account, and Plaintiff will be deprived of her interest in said cattle. Plaintiff cannot enjoin the Defendants in Cause No. 26370 from selling said cattle because they are not residents of the State of Texas or are outside the territorial limits of the State of Texas and therefore not subject to the jurisdiction of its Courts. * * * Unless Defendant Carl Thomas is restrained from making said sales, he will do Plaintiff irreparable injury, for which, for the reasons stated herein, there is no adequate remedy at law.” Plaintiff’s petition makes it clear that her cause of action for injunction is ancillary to Cause No. 26370, wherein she seeks an adjudication of her property rights.

In reply thereto, defendant filed an un-sworn answer alleging the granting of an injunction of him alone would not prevent Louis Allis, Jr. or Western Farms, Ltd. from disposing of the cattle and hence would amount to a vain and useless act which would deprive him of his employment and in turn deprive the cattle of attention and care, resulting in harm and damage to the subject matter of the suit.

After a full hearing, the trial court entered an order temporarily enjoining Carl Thomas from selling, attempting to sell, delivering for sale or otherwise removing cattle from the Rolling Hills Ranch pending a final determination of Mrs. Allis’s property rights therein, conditioned on the filing of a $5,000.00 bond. It is undisputed that Carl Thomas was employed by Louis Allis, Jr. as foreman of the ranch and had been authorized by Allis to sell cattle at his discretion, deposit the proceeds in the bank, and to draw drafts upon the bank account in payment of his salary in the sum of $300.00 per month and pay other expenses in connection with the operation of the ranch.

Thomas first contends that the judgment should be reversed because of plaintiff’s failure to join necessary parties. He argues that since Louis Allis, Jr. and Western Farms, Ltd. owned an interest in the cattle, their interest would be effected by the suit and they should have been joined as party defendants. He further contends that unless they are joined, the granting of the injunction against him alone would be a futile and useless act and would afford no protection to the plaintiff in that Louis Allis, Jr. or Western Farms, Ltd. could sell the cattle and thus avoid the effect of the injunction. We are not in accord with this view.

The argument would ignore the fact that Mrs. Allis sought to enjoin Thomas not only in his capacity as agent, but also sought to enjoin him individually from selling the cattle and converting the proceeds to his own account. In this respect it cannot be said that the order restraining the threatened conversion amounts to a futile or useless act. The proof shows that the cattle was a part of the community estate of Mrs. Allis and her husband. Thomas admits that he will sell the cattle unless restrained. In addition to requesting that he be restrained in his capacity as an agent, plaintiff sought to prevent him from converting the cattle to his own use and benefit. In order to protect her property rights, plaintiff had a right to seek in-junctive relief against Thomas to prevent him from converting her property and in so doing would not be required to join the other co-owners as party defendants. Acme Cement Plaster Co. v. Keys, Tex.Civ.App., 167 S.W. 186.

But even though Louis Allis, Jr. and Western Farms, Ltd. were necessary parties since each of them were non-residents and without the jurisdiction of the court, plaintiff would not be required to join them before being entitled to equitable relief in order to protect her property rights.

One with valuable property rights which need preservation pending a final determination on a final trial need not join all necessary parties before he can get temporary orders protecting his rights therein. If this were the rule, his right might be lost before the parties could be found and joined. Littlejohn v. Finder, (Tex.Civ.App.) 348 S.W.2d. 237; citing Lowe v. City of Del Rio, 132 Tex. 111, 122 S.W.2d 191; Lowe and Archer, Texas Practice, § 323.

Defendant next contends that the granting of the temporary injunction constitutes an abuse of discretion because it does not maintain the status quo but only works an undue hardship on him. He argues that if he is prohibited from selling the cattle, he will be deprived of his livelihood and required to terminate his employment which would result in injury and damage to the cattle.

It is well settled that the granting or refusing of a temporary injunction is within the sound discretion of the trial court. The action of the trial court will not be disturbed on appeal unless it clearly appears from the record that there has been an abuse of discretion. The scope of appellate review is limited to the narrow question of whether or not the trial judge’s action was a clear abuse of discretion. Lone Star Mining Company, Inc. v. Texeramics, Inc., (Tex.Civ.App.) 340 S.W.2d 871; Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589. The pleadings and the evidence clearly show that the injunctive relief requested by the plaintiff was ancillary to Cause No. 26370, styled Allis v. Allis, et al., originally filed in the District Court of Collin County and is now pending in the Federal Court. That controversy involves a bona fide dispute between the plaintiff and her husband with respect to their property rights in the cattle. Thomas was not a party to that suit and does not claim any property right in the subject matter involved. As between the owners, the order effectively preserves the status quo of the property pending a final determination of the question of title and possession and was therefore properly granted. Needham v. Arno Co-op. Irr. Co., (Tex.Civ.App.) 196 S.W. 887; Zanes v. Mercantile Bank & Trust Co. of Texas, (Tex.Civ.App.) 49 S.W.2d 922; and City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 77 A.L.R.2d 709.

Even though the result of the order may tend to work a hardship upon defendant, such would not be a sufficient reason to deny the plaintiff protection of her property rights pending final determination by the court. The balance of convenience seeking to maintain the status quo is often of great weight. City of Amarillo v. Garwood, (Tex.Civ.App.) 63 S.W.2d 888; Logue v. Perry, (Tex.Civ.App.) 67 S.W.2d 1047.

By his final point defendant contends that the court erred in granting the injunction because plaintiff had a remedy at law, which was as complete and adequate as the equitable remedy of injunction; that is, under the facts alleged, plaintiff could have applied for a writ of sequestration or sued for damages. The point is thought to be without merit.

“It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” Sumner v. Crawford, 91 Tex. 129, 41 S.W. 994, 995.

The subject matter of the main suit now pending before the Federal Court involves the question of title and possession of the cattle. The question has not yet been determined.

If, therefore, the issue in the main case involves the question of title and possession to specific property, then obviously neither the legal remedy of sequestration nor damages can adequately protect the plaintiff. Both remedies would ultimately subject plaintiff to the possibility of having to accept damages in lieu of the cattle for which she sues. Therefore, since the legal remedies are inadequate, the trial court properly granted equitable relief, maintaining the status quo and retaining jurisdiction over the property pending final determination of the question of title and right of possession. Frisby v. Rockins, (Tex.Civ.App.) 105 S.W.2d 362; Davis v. Gillen, (Tex.Civ.App.) 227 S.W.2d 834.

The judgment of the trial court is affirmed.


author: FANNING, Justice.

text:
    MIDWESTERN DEVELOPMENT CO., Inc., Appellant, v. F. B. DUNLAP, Jr., et al., Appellees.
    No. 7638.
    Court of Civil Appeals of Texas. Texarkana.
    March 23, 1965.
    Rehearing Denied April 13, 1965.

      William C. Odeneal, Jr., Dallas, for appellant.
    Spencer C. Relyea III, Dallas, for ap-pellees.
   FANNING, Justice.

A summary judgment case. On Dec. 17, 1962, appellant Midwestern Development Co., Inc., purchased two tracts of land located in Dallas County from appellees. As part consideration for the purchase Midwestern executed a $50,000.00 note to appellees to be paid in the following manner : $20,000.00 at anytime in 1963, and the remaining $30,000.00 on or before 3 years from the date of the note (Mar. 17, 1963). Said note was executed by Gordon O. Dodson as President of Midwestern and also individually. Dodson died in 1963.

This suit was brought by Midwestern and the executrix and executor of Dodson’s estate against defendants-appellees to set aside a foreclosure of the property in question under a deed of trust executed by Midwestern to E. F. Kucera, Trustee. The trustee’s sale occurred on Mar. 3, 1964.

Defendants filed a motion for summary judgment with supporting affidavits. Plaintiff filed no answer to the motion for summary judgment, no counter affidavits, no depositions, no character of evidentiary matter, and did not seek to avail themselves of the provisions of subd. (f) of Rule 166-A, Texas Rules of Civil Procedure, and did not seek such delay as might be necessary to controvert the facts stated in the supporting affidavits to defendants’ motion for summary judgment.

The trial court granted the motion for summary judgment and rendered a take nothing judgment against the plaintiffs. Plaintiff Midwestern has appealed.

Summary judgment proceedings do not seek to decide issues of fact, but to ascertain if any genuine issues of material fact exist. Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236, wr. ref., n. r. e. (1951); Lotspeich, et vir v. Chance Vought Aircraft, et al, Tex.Civ.App., 369 S.W.2d 705, wr. ref., n. r. e. (1963).

In Lotspeich v. Chance Vought, supra, 369 S.W.2d 705, it was stated in part as follows:

“Furthermore, we think it can now properly be said to be the law in Texas that the uncorroborated affidavit or deposition of an interested party or witness will support a summary judgment in the absence of a controverting affidavit or of an attempt by the party against whom the motion is urged to avail himself of the right under subdivision (f) of Rule 166-A, Vernon’s Texas R.C.P., and seek such delay as may be necessary to secure affidavits or take depositions to controvert the facts stated by the interested party or witness in his affidavit. Bottomed upon the holding to that effect in Fowler v. Texas Employers Insurance Ass’n., Tex.Civ.App., 237 S.W.2d 373, err. ref.; Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236, err. ref. n. r. e.; and Gifford v. Travelers Protective Ass’n., 9 Cir., 153 F.2d 209, 211, the Court of Civil Appeals at Waco in Holland v. Lansdowne-Moody Co., Tex.Civ.App., 269 S.W.2d 478, 481, no wr. hist., said:
“ ‘It is the law that where a plaintiff, at a hearing on defendant’s motion for summary judgment under Rule 166-A, files no counter affidavits, and makes no showing other than as stated in their pleadings, and makes no showing that affidavits are unavailable, he in effect admits the facts alleged in defendant’s sworn affidavits supporting the motion, and for which reason cannot complain of the court’s granting the motion for summary judgment.’ ”

We have carefully examined the supporting affidavits which constitute the only evidentiary matter that was before the trial court on the motion for summary judgment. From the evidentiary matter before the trial court it is clear that there were no defects in the notices of the trustee’s sale and that such sale was in conformity with law and no irregularity appears which would warrant the setting aside of the foreclosure sale. It clearly appears that plaintiffs were in default on the payment of the deed of trust note and that neither payment nor “arrangements to pay” were ever made prior to the trustee’s sale.

Appellant contends that there was a disputed issue of fact as to whether appellant made “arrangements” to pay. We think it is clear from defendant French’s affidavit that appellant did not make any arrangements to pay the sums in question before the first Tuesday in Feb. 1964, and that a fair construction of French’s affidavit compels the conclusion that appellant was required to make a part payment of its indebtedness to appellees before the first Tuesday in February, 1964, and not merely to make arrangements to pay.

The evidence, as set forth in French’s affidavit, is that in December, 1963, Nolen, acting as agent for Midwestern, asked French to waive the requirement contained in said note that a payment of $20,000.00 be made on or before Dec. 31, 1963. French unequivocally refused to do this. Early in Jan. 1964, Nolen and Mc-Cord, acting as agents for Midwestern, offered to make the past due payment of $20,000.00 if appellees would release 3Yz acres on the corner of the tract so that Midwestern could sell it or borrow on it. French refused to consider such release unless given additional security. When Nolen and McCord suggested that Midwestern could give a lien on a farm near Texarkana, French submitted the proposition that if Midwestern would pay $12,-500.00 on Jan. 15, 1964, and $12,500.00 on Feb. 15, 1964, and pay the balance on the note on or before Dec. 31, 1965, appellees would release the corner tract, provided Midwestern would also give appellees a mortgage on a farm near Texarkana (that mortgage to be released at any time upon the additional payment of $12,500.00). French stated that in response to this counter offer “Mr. Nolen and Mr. McCord then said that they would let me know what they would do.” This did not constitute any acceptance of French’s counter offer.

That French’s counter offer was never accepted is apparent from the fact that Nolen and McCord later returned to seek a further postponement of the time for payment. It was on this occasion that French told them that “They had to make their arrangements to pay these sums before the first Tuesday in February.” Notices of trustee’s sale of the property to be held the first Tuesday in Feb. 1964, were posted but because the notices were defective, proper notices were posted for the trustee’s sale to be held the first Tuesday in March, (Mar. 3) 1964. French further stated in his affidavit to the effect that he did not hear anything more from Nolan or McCord until Mar. 5, 1964, when they came to his office and stated that they would pay $25,000.00 plus interest but that Midwestern would need a release of the 3(4 acre corner tract but that they said nothing about giving additional collateral. French further stated in his affidavit: “I then told them that the trustee had foreclosed the deed of trust on Mar. 3, 1964, and that we had repurchased the property. At no time has Midwestern Development Co., Inc. ever tendered payment of the note set forth in Plaintiff’s Original Petition.”

From the uncontroverted record in this cause it is our view that there is no evidence of conduct on the part of appel-lees which would raise an estoppel of any character, and there being a default in payment under the note, the foreclosure under the deed of trust was proper. In this connection see Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, writ refused (1953).

With respect to appellant’s contention that there was a question of fact concerning the existence of a conspiracy between appellees to lull appellant into a feeling of security in order to take advantage of a profitable sale, we refer to Sparkman v. McWhirter, supra, 263 S.W.2d 832 wherein it was stated in part as follows:

“ ‘If controversy in the pleading were alone enough to prevent summary judgment, this practice would ordinarily be useless, for there is no effective constraint upon what may be asserted or denied in the pleadings and there are many generalities which are good pleading but, to the full extent of their application in a particular case, bad truth. * * *’
“Hon. Roy McDonald, member of Texas and New York Bars, author of McDonald, Texas Civil Practice, in 30 T.L.R., p. 297, reasons to the same effect : ‘But where a motion is supported by affidavits, depositions, admissions, or other extrinsic evidence, sufficient upon its face to establish facts which, if proven at the trial, would entitle the movant to an instructed verdict, the opponent must specify opposing evidence which will raise an issue as to some material fact, or must justify his failure to do so in accordance with the provisions discussed in part 3 below.’ ”

Appellees’ supporting affidavits clearly demonstrate that the trustee’s sale was in all respects proper and no irregularities were present; that plaintiffs were in default in payment of the note, did not make the required payments and that no timely “arrangements” were made to pay the note, and that under the uncontroverted facts appellees showed that they had a legal right to foreclose the deed of trust lien by making the trustee’s sale that was made. Furthermore there were no equitable grounds present under the uncontroverted facts which would estop appellees from exercising their legal right of foreclosure. Since appellees had the legal and equitable right to foreclose under the uncontroverted facts, appellant’s bare conspiracy pleadings, unsupported by any facts, would not raise an issue of material fact under the un-controverted record in this cause. Sparkman v. McWhirter, supra.

The judgment of the trial court is affirmed.


author: BELL, Chief Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. COMMERCIAL METALS COMPANY OF HOUSTON et al., Appellees.
    No. 14529.
    Court of Civil Appeals of Texas. Houston.
    April 1, 1965.
    Ford W. Hall, Houston, and James M. Shatto, St. Louis, Mo., for appellant.
    Bernard L. Chanon, Houston, for appel-lee, Scrap, Inc. of Texas.

      Joel W. Cook and Joe Corman, Houston, for appellee, Commercial Metals Co. of Houston.
   BELL, Chief Justice.

Appellee, Commercial Metals Company of Houston, herein called Commercial, recovered judgment against appellant in the amount of $960.37, this being the reasonable value of copper wire allegedly belonging to Commercial and allegedly converted by appellant. Appellee, Scrap, Inc. of Texas, herein called Scrap, recovered judgment against Commercial for $560.44. There is no complaint of the judgment against Commercial unless we should reverse the judgment against appellant. Appellant, however, appeals from the judgment against it.

It appears that sometime in 1959, Scrap bought from Buddy Dodson and A. K. Murphy, Jr., certain scrap metal including some #104 hard drawn copper wire. The wire was sold in August, 1959 to Commercial. The individuals who sold to Scrap were charged in Harris County with theft of the wire. Appellant claimed the wire had been stolen from it. On January 15, 1960, the wire was taken by the Sheriff of Harris County and delivered to appellant. Appellant was to hold the wire for use as evidence at the trial of the criminal cases. The two named individuals were indicted for felony theft but their cases were dismissed on November 29, 1962.

When the wire was taken from Commercial by the Sheriff, Commercial demanded repayment by Scrap of the purchase price of $960.37. This was refused, but on October 16, 1961, Scrap and Commercial entered into an agreement which recited that Scrap had sold to Commercial a quantity of copper allegedly stolen from appellant and that a suit (meaning criminal prosecution) had been pending a long time but had not been disposed of. It also recited the sheriff had seized the property and had not returned it to Commercial. It was then recited that if there should be no conviction and the alleged thief should go free, Scrap agreed the full amount of copper would be returned to Commercial and Commercial would credit Scrap with the full value of the copper. If there was a conviction Scrap would fully reimburse Commercial for the copper taken by the Sheriff.

On May 7, 1963, Scrap sued Commercial for $700.00 plus $250.00 attorney’s fees. The suit was on the above agreement. There were allegations about the purchase from Dodson and Murphy, the sale to Commercial and the agreement to credit Scrap if the defendants were not convicted. Allegation was that there had not been conviction but the cases were dismissed. Scrap alleged it had reimbursed Commercial $700.00 and was entitled to what it had paid.

On June 17, 1963, Commercial answered with a general denial and a special plea that Scrap had expressly or impliedly warranted it had title when it sold the copper. Too, it pled the agreement with Scrap required that the copper be returned before it was obligated to credit Scrap and that the copper had not been returned.

By way of cross-action Commercial pled Scrap owed it on account $399.93. By a third-party action Commercial interpled Mr. Kern, the Sheriff of Harris County, and appellant. In the third-party petition Commercial alleged that on January 15, 1960, deputies of Kern, aided and abetted by appellant, demanded of Commercial “the property described in Plaintiff’s petition.” The property was surrendered to the deputy sheriff “pending its use as evidence in the criminal action” against Dodson and Murphy. Then it is alleged that the prosecutions were dismissed November 29, 1962, but appellant and the sheriff had failed and refused to return the property to Commercial. Too, it pled “trespass ab initio.”

Appellant answered with a general denial, a plea of the two year statute of limitation, and a special plea asserting ownership of the wire that had in 1959 been stolen from it.

The Sheriff filed an answer denying the allegations and specially pleading he was acting in the scope of his authority and was performing his statutory duty in retrieving the property and turning it over to appellant when appellant’s representatives properly identified the wire. He asked judgment over against appellant if he were held liable. However, judgment was favorable to the Sheriff.

Trial was before the court without a jury. The court filed his findings of fact and conclusions of law. We will notice only such findings and conclusions as are material to some questions raised on this appeal.

1. Immediately prior to the sale of the 13 drums of copper wire in August, 1959 by Scrap to Commercial the wire was in the exclusive and undisputed possession of Scrap and exclusive and undisputed possession was delivered by Scrap to Commercial at the time of sale.

2. On January 15, 1960, the Sheriff, through his deputies, seized the wire and the drums on the representation of appellant that the same had been stolen from it by Dodson and Murphy, who were charged with its theft, and that shortly after such seizure the Sheriff caused the material to be delivered to appellant for the purpose of keeping said material available as evidence pending trial of the criminal case.

3. On November 29, 1962, the prosecution against Dodson and Murphy was dismissed and there has been no conviction growing out of the alleged theft of the wire.

4. Appellant has retained possession and control of the property and has refused on demand to return the wire to Commercial.

5. Appellant was not the owner of the wire and drums seized by the Sheriff.

The court made the following conclusions of law, which are material to this appeal:

1. The possession of the Sheriff and appellant was, under Articles 933 to 936, Code of Criminal Procedure, lawful until November 29, 1962, when the criminal prosecution was dismissed and, therefore, the conversion took place within two years of the filing of the third party petition in June 1963.

2. The receipts given by the Sheriff and appellant constituted written contracts to return the property to the true owners so the four year statute of limitation, and not the two year statute, was applicable.

3. There was no proof by a preponderance of the evidence that the material was the property of appellant and was stolen from it.

4. Commercial was entitled to recover from appellant both on the theory of trespass and conversion.

Appellant’s first complaint is that the court erred in holding that the two year statute of limitation did not bar recovery. Its contention is that the conversion, if there was a conversion, took place on January 15, 1960, when appellant took possession of the wire. The trial court, as above noted, found in effect that the Sheriff of Harris County seized the copper wire on the representation by appellant and that it had been stolen from appellant, and that possession was delivered to appellant by the Sheriff and that appellant was to hold the wire to be used in evidence on the trial of the criminal case against Dodson and Murphy. The court concluded the possession of the Sheriff and his nominee, appellant, was lawful until the dismissal of the criminal case on November 29, 1962, so the conversion took place within 2 years of the filing of the cross-action by Commercial.

We are of the view that the trial court could reach the conclusion that appellant was not asserting ownership to the exclusion of Commercial until it refused to return the wire after the criminal case had been dismissed, but it could conclude appellant’s possession was purely as nominee of the Sheriff who was holding possession for the sole purpose of making the wire available as evidence.

Mr. Stephenson, a Deputy Sheriff, who had been assigned to investigate the theft of wire, testified about the delivery of the wire. He signed a receipt which he gave to Commercial and it stated: “This wire has been held for Sheriff’s Office as evidence in offense in Report No. 47647 and others.” He, after the wire was identified by appellant’s representative, was to meet appellant’s representative at Commercial’s place of business and appellant’s representative was to have transportation. Appellant employed Carroll Construction Company to haul the wire to appellant’s warehouse. Before the appointed time Carroll Construction picked the wire up. The shipping or delivery ticket issued by Commercial showed the wire was shipped to “Sheriff’s Department, Harris County, Texas c/o Southwestern Bell Telephone Comp.” The ticket was signed “For Southwestern Bell Telephone Comp., Carroll Construction Company, James L. Belton.” This ticket was silent as to the purpose of delivery. However, the evidence showed that Mr. Stanley George, the special agent of appellant, later gave the Sheriff a receipt and was told the wire was to be held as evidence. George told other representatives that the wire was to be held as evidence. Mr. Stephenson testified the wire was very bulky. It consisted of 13 drums. The total weight was 3278 pounds. Stephenson, prior to delivery, had directed Commercial to “hold” the wire. He then demanded the wire be returned and stated to Commercial if it wasn’t turned over to the “Harris County Sheriff’s Office, * * * it would be concealing stolen property, and it would be treated as such.” (emphasis supplied)

At no point does any representative of appellant deny that delivery was to it as the nominee of the Sheriff, to hold the wire as evidence. It is true that appellant’s representative had identified the wire to the Sheriff as its wire that was allegedly stolen by Dodson and Murphy, who were then charged, and subsequently indicted for felony theft.

We held in the case of Reiner v. Marceau, Tex.Civ.App., 338 S.W.2d 285, no writ history, that under similar circumstances the holding of allegedly stolen property at the direction of law enforcement officers, by a person in possession was law' ful under Article 933, Code of Criminal Procedure. Here the taking of possession by the Sheriff through his nominee, appellant, was lawful. We feel the court correctly concluded that appellant’s possession was the Sheriff’s possession. We also held in the Reiner case that after taking possession the Sheriff had the duty under Article 935, Code of Criminal Procedure, to within a reasonable time file a schedule of the property in the court having jurisdiction of the case, and we held that if he did not do so the owner was entitled on demand to a return of the property. Demand was made and upon refusal there was a conversion. It did not appear from satisfactory evidence that the alleged thief in that case had ever been indicted. In this case it was established that Dodson and Murphy were indicted and their case was not disposed of until November 29, 1962. No demand had been made by Commercial until after the criminal case was dismissed. We hold that the trial court did not err in holding the conversion did not occur until after demand on dismissal of the criminal case. Where the original possession is lawful the statute of limitation, in an action for conversion, does not commence to run until a demand for possession by a claimant and a refusal to return by one in lawful possession as a nominee of the Sheriff who is holding possession not for an alleged owner but for the purpose of using the property as evidence in a criminal case.

The court was in error in concluding that the receipts were written contracts and therefore the four year statute of limitation applied. They were not pled. There was no trial by consent by not objecting to the introduction of the receipts. They were admissible on a theory pled, that is, that the possession was, as above shown, lawful and the conversion did not take place until demand for possession was given. The result is an objection to their admissibility would have been unavailing. Too, the receipts contain no undertaking to return the property. The obligation to return, as to appellant, rests in parol because the testimony is that Mr. George was told to hold the property as evidence and Mr. George told other representatives to hold it for evidence.

Appellant says there was error in the trial court’s holding that the property did not belong to it. The point of error, so we interpret it, is that the undisputed evidence is that the wire belonged to appellant. There is no point of error that the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong.

We reach the conclusion there is evidence of probative force to support the trial court’s finding.

The evidence shows that wire belonging to appellant was taken from a line between La Porte and Seabrook. The wire was missed in November, 1959. It was No. 104 hard drawn copper wire. The wire was cut by the taker by cutting it from betweqp the telephone poles. Identification was made by telephone representatives who testified it was No. 104 wire of the kind used by appellant. Particularly appellant relies for identification on the sleeve used to splice two lengths of wire together. Among the various pieces of wire contained in the 13 drums they found something more than 10 sleeves. The 13 drums contained No. 1 copper wire that had been cut up. No. 1 copper wire refers to the grade of wire and not its dimension. No. 104 refers to the size of the wire and means 10$iooo of an inch. The peculiar roll of the sleeve used to join two strands of wire is relied on. There is evidence, however, though it was not without dispute, that Western Union used the same size and kind of copper wire. Western Electric furnishes wire to appellant, though manufacturers make it for Western Electric. Used wire is returned by appellant to Western Electric. What Western Electric then does with the wire is not shown. There is evidence that appellant is one of very few who use No. 104 wire. There is evidence from which the court could conclude the manufacturers of the wire sell to others than Western Electric. Too, a witness who purchased the wire when Dodson and Murphy sold to Scrap testified the wire was smooth No. 1 copper wire and had no sleeves splicing the wire such as appellant’s representatives identified.

Commercial and Scrap sufficiently proved prior undisputed possession, as found by the trial court, which is sufficient to support an action for conversion as against one shown to have no right to the wire. Scrap proved its purchase from Dodson and Murphy and then sale to Commercial. Their possession was disturbed by appellant, who the trial court on evidence of probative force found to have no interest in the wire. Lee C. Moore & Co. v. Jarecki Mfg. Co., Tex.Civ.App., 82 S.W.2d 1002; First National Bank of Colorado v. Brown, 85 Tex. 80, 23 S.W. 862.

Other related points raised by appellant have been examined by us and found to be without merit.

Affirmed.

WERLEIN, J., disqualified and not participating.


author: GRISSOM, Chief Justice.

text:
    Bascom A. RHODES, Appellant, v. J. A. SHERROD, Appellee.
    No. 3954.
    Court of Civil Appeals of Texas. Eastland.
    March 26, 1965.
    Roy A. Jones, Paducah, for appellant.
    James M. Gerdeman, Lubbock, for ap-pellee.
   GRISSOM, Chief Justice.

On May 11, 1964, J. A. Sherrod sued Bascom A. Rhodes for damages caused by a collision on February 3, 1964. On June 1, 1964, the defendant filed an answer and cross action. On the afternoon of July 14, 1964, after a trial on the merits with defendant absent, the court rendered judgment for the plaintiff for $333.44 and that the defendant take nothing on his cross action. The defendant has appealed.

Appellant’s first point is that the court erred in setting the case for trial on the day following appearance day, at the request of appellee’s counsel, without notice to or negligence of appellant’s counsel, with the fraudulent intention to take unfair advantage of appellant. This point must be overruled because the facts asserted therein were not established. It was not established that the cause was set for trial on the day following appear-anee day, or at the request of appellee, or without notice to appellant, nor was fraud established.

Points 2 and 3 are that the court erred in rendering a “default” judgment on appearance day, or the day following, because appellant had timely filed an answer and cross action. No default judgment was rendered. There was a trial on the merits. The 4th point is that the court erred in ignoring appellant’s letter requesting the Clerk to notify him of the setting of the case. The 6th point is that the court erred in overruling appellant’s motion for a new trial, when the court discovered that appellee’s attorney had requested the court to set the cause for trial on the day following appearance day, without notice to appellant’s counsel, without negligence on the part of appellant’s counsel and with the fraudulent intention to take unfair advantage of appellant. The judgment recites that appellant was duly served with process and answered; that the Judge in open court regularly called said case in its order on the docket “after due notice of setting to Defendant”; that plaintiff announced ready for trial and the court proceeded to trial and considered plaintiff’s evidence and argument and it appeared that appellant was negligent and that his -negligence was a proximate cause of appellee’s damage, etc. It was not established that appellee’s counsel requested the court to set the cause for trial at the time it was set or that he was guilty of any fraud. Appellant’s counsel admitted that he received notice that the case was set for trial on July 13th, at 9:00 A.M. His real excuse for not appearing seems to be that the notice showed many cases were set for trial on July, 13th and he didn’t think his case would be reached as soon as it was.

Appellant’s motion for a new trial is in substance as follows: (1) that he had filed an answer and cross action and delivered a copy to the attorney for appel-lee; (2) that “appellant was not informed of the date of the trial”, although he requested the County Clerk to notify him; (3) that appellee’s attorney knew he intended to present his side of the controversy, but he obtained a “default” judgment because he knew of his meritorious defense and the validity of his cross action; (4) that appellee’s attorney perpetrated a fraud on the court when he requested a “default” judgment, knowing that appellant desired to be heard, and (5) that appellant’s attorney had requested the court to notify him of the date the case was set for trial but was never advised.

Testimony was introduced by appellant on his motion for a new trial. The evidence showed that the court, in accord with its rules and custom and the rules of procedure, timely mailed a notice to appellant’s counsel of a setting of said cause for trial on Monday the 13th day of July, 1964, at 9:00 o’clock a. m. at which time approximately 38 cases were set for trial, this cause being number 27 on said list, and that appellant timely received it. Appellant’s counsel testified that he was about to go to Lubbock to see about the case in the early hours of Monday the 13th of July when he was notified that he was desired as a pallbearer for one of his friends; that he was notified that he was wanted as a pallbearer about 8:00 or 9:00 o’clock a. m. on July 13th; that he had intended to go to Lubbock that morning and get the “date” set but when he was asked to act as a pallbearer he didn’t think he could get to Lubbock and back in time, that he was afraid to take that chance; that he didn’t call the court or anyone by telephone but that he should have and that appellant’s counsel didn’t expect his case to be reached as soon as it was.

Appellant was duly and timely notified of the setting of the case for trial in accord with the custom of the court and the rules of procedure. Regardless of his good intentions he did not appear on that day, nor the following day, on the afternoon of which the case was tried without his presence. It is not shown that he went to court or further contacted anyone about the time of trial until several days later when he received a copy of the judgment rendered against appellant. No fraud was established. Other points are presented, including those asserting appellant was denied the due process of law guaranteed by the Constitutions of Texas and the United States. We think they are without merit and they are overruled.

It is evident that the court had the right to find the absence of fraud by appellee inducing appellant’s failure to appear for trial, as well as the negligence of the appellant. The conclusion is compelled that abuse of discretion is not shown. The judgment is affirmed.


author: DIXON, Chief Justice.

text:
    Lane M. HAMER et at., Appellants, v. HOPE COTTAGE CHILDREN’S BUREAU, INC., Appellee.
    No. 16480.
    Court of Civil Appeals of Texas. Dallas.
    April 2, 1965.

      Bill Thomas and F. T. Gauen, Jr., Dallas, for appellants.
    R. Douglas Coifin, Dallas, for appellee.
   DIXON, Chief Justice.

Appellants Janet Elaine Toles joined by her husband Bobby Jim Toles and her former husband Lane M. Hamer have filed a bill of review to set aside a judgment declaring three small children dependent and neglected and placing them for adoption. Mrs. Toles and her former husband, Hamer, are the parents of the children. Their suit also asks that Mrs. Toles’ written consent for the children to be placed for adoption be set aside.

The judgment declaring the children dependent and neglected was rendered without notice to Mrs. Toles and Hamer on October 3, 1963 in the Juvenile Court of Dallas County. In this subsequent action to set aside said judgment a jury was im-panelled but the court sustained a motion for instructed verdict filed by Hope Cottage Children’s Bureau, Inc., defendant in the trial court and appellee here.

The substance of appellants’ one point on appeal is that the evidence supported fact findings in accordance with appellants’ pleaded theory of their cause of action.

After a careful consideration of the whole record we have concluded that the court was correct in sustaining appellee’s motion and rendering judgment accordingly.

The parents of the children married in 1955 in the State of Iowa when the wife was fifteen years of age and the husband nineteen. Their three children had been born by the time she was nineteen years of age.

About six months after their marriage they moved to Tucson, Arizona; then to Phoenix, Arizona. In 1960 Mrs. Hamer filed suit in Phoenix for divorce. As they learned later the judgment for divorce in the Phoenix suit never became final though the parties apparently believed in good faith that it had.

After the supposed divorce Hamer left for California where for a time he was employed. But in the course of a union wage dispute he became unemployed and moved on to Seattle, Washington.

Meantime Mrs. Hamer and the children were in financial difficulties though for a short time Hamer paid child support ordered by the Arizona court. While he was still in California Mrs. Hamer and the children moved to California, but did not stay long. She returned to Phoenix and soon thereafter married a man named Keith. She and her new husband moved to Dallas, but he was unable to find work. She obtained a job working in a lounge. One day Keith committed suicide in her presence in front of the place where she was employed.

While in Dallas Mrs. Hamer discovered that her divorce from Hamer had not become final and that she was still married to Hamer. She then instituted divorce proceedings in Dallas. Hamer signed a waiver. The divorce judgment, dated August 22, 1962, of which Hamer had a copy, ordered him to pay $25.00 per week child support, the money to be paid through the Dallas County Juvenile Department. Hamer never made any of these payments.

Not long after her divorce Mrs. Hamer married Bobby Jim Toles, her present husband. But her financial status did not improve. She went to the hospital and was operated on for cancer. Bobby Jim Toles also became ill and missed time from work. They were behind on their rent payments. Mrs. Toles says they were destitute. They were threatened with eviction and had their belongings packed ready to leave, but had no place to go. It was at this time that Mrs. Toles and her present husband signed written agreements providing for the placement of the children with appellee for adoption.

In the course of her struggles Mrs. Toles had several times placed her three children with other persons. In April 1961 soon after she came to Dallas with her supposed husband Keith and while she was working in a bowling alley, some people were taking care of the children for her. At the time of Keith’s suicide she appealed to Hope Cottage Children’s Bureau and the children were placed in a foster home on July 10, 1961. Later the children were returned to her so she could take them to her parents in Arizona. In December 1961 she placed them with a family named Koch where they stayed for ten months. A short time after Mrs. Hamer married Bobby Jim Toles she again contacted Hope Cottage because she had no way of taking care of the children herself, but Hope Cottage at first would not take the children. In February 1963 Hope Cottage took the oldest boy. In April Hope Cottage at Mrs. Toles’ request took the other two boys. On April 4, 1963 she signed three written documents consenting for the boys to be placed for adoption.

The written documents above referred to expressly provide that Mrs. Toles consents for Hope Cottage Children’s Bureau, Inc., a child placing agency licensed by the Texas State Department of Public Welfare, to place the children with adoptive parents of its selection, and she also consents to their adoption without the necessity of further consent by her. The documents further recite that the consent is given freely in the best interest of the children and that she had been advised and was aware that the consent was final and could not be revoked.

In August 1963 Mrs. Toles wrote a letter attempting to withdraw her consent for the adoption.

Meantime Lane Hamer, the father of the children, had experienced difficulties also. In September 1963 he had been stricken with polio while in the State of Washington. He was hospitalized from September through November 1963. His doctor told him that he would not be able to walk for three years. He was completely paralyzed from the waist down.

The children have been placed for adoption, but their adoption has not yet been consummated. By agreement of the parties the adoption hearing will be postponed pending determination of this suit.

OPINION

We must hold that the instructed verdict and the judgment rendered were proper.

Under the circumstances Mrs. Toles could not withdraw her consent for the adoption of the children. In Catholic Charities, etc. v. Harper, 161 Tex. 21, 337 S.W.2d 111, our Supreme Court has held that where a parent has surrendered possession of a child to an agency licensed by the State Department of Public Welfare to place children for adoption and has given written consent that such agency may place the child for adoption, that consent is subject to revocation only by proof of fraud, misrepresentation, overreaching and the like. Art. 46a(6), Vernon’s Ann.Civ.St.

In this case there is no such proof. Mrs. Toles attempts to show that she was overreached. In oral argument her attorney said that she had been “coerced through circumstances.” It is true of course that due to the force of adverse circumstances Mrs. Toles was unable to care for her children. But Hope Cottage did not cause or create the misfortunes which beset her. She admits that on the occasion of several visits and negotiations with Hope Cottage representatives she discussed the adoption of her children, but she does not claim that false representations were made to her. She says simply that she did not read the three documents of consent before signing them. She herself says that nothing was done to prevent her reading them. Having had full opportunity to read the documents before signing them she will not be permitted to avoid the agreements on the ground that she was mistaken as to or ignorant of their contents. Gulf Oil Corp. v. Spence & Howe Const. Co., Tex.Civ.App., 356 S.W.2d 382, 387 (affirmed Tex., 365 S.W.2d 631); Indemnity Ins. Co. v. W. L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553; Sunderman v. Roberts, Tex.Civ.App., 213 S.W.2d 705.

Neither Lane Hamer nor Mrs. Toles was notified of the hearing which resulted in the judgment of October 3, 1963 declaring the children to be dependent and neglected. In the case of Mrs. Toles notice was not necessary since by signing the three written consents she terminated her parental rights to the children. Catholic Charities, etc. v. Harper, supra.

But Lane Hamer, the father, had not signed documents consenting to the adoption of his children and, though efforts had been made to locate him, he had not been notified of the hearing at which they were declared dependent and neglected. Therefore he was entitled to a full hearing in a subsequent proceeding on the issue of whether sufficient facts existed to authorize the judgment of dependency. The law is that on such subsequent hearing if it appears that the children had in fact become dependent and neglected, then the proceedings are valid even as against the parents although they had no notice of the first hearing. DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, 691.

The appeal now before us is from the subsequent proceeding which was afforded Hamer and Mrs. Toles. The evidence at the subsequent proceeding is undisputed that the three children were in fact dependent and neglected. Lane Hamer had received a copy of the divorce decree of August 22, 1962 ordering him to pay child support of $25.00 per week through the Dallas County Juvenile Department. As we have said, he made none of these payments. On October 3, 1963, the date of the dependency judgment, he was hospitalized with poliomyelitis and says in his pleading that he was unable to do anything for his children. Mr. and Mrs. Toles were in desperate straits, unable to pay their rent and obliged to move in with friends for food and shelter. In the face of these undisputed facts it was not error for the court to instruct the verdict in the subsequent hearing. Appellants’ point on appeal is overruled.

The judgment is affirmed.


author: WERLEIN, Justice.

text:
    Jocelyn Valiquet BELL, Appellant, v. Francis William BELL, Appellee.
    No. 14530.
    Court of Civil Appeals of Texas. Houston.
    April 1, 1965.

      H. C. Davidson, Saub, Walker & Hammond, George L. Walker, Houston, for appellant.
    Holman, Saccomanno, Clegg & Martin, and Burke Martin, Houston, of counsel, for appellee.
   WERLEIN, Justice.

This suit was brought by appellee, Francis William Bell, against Jocelyn Valiquet Bell for divorce. Appellant filed an answer and cross-action but, during the trial, took a nonsuit on her cross-action. Judgment was rendered in favor of appellee for divorce based upon the jury’s answers to two special issues. The jury found in answer to such issues that the acts and conduct by appellant toward appellee constituted excesses, cruel treatment or outrages of such a nature as to render their further living together as husband and wife insupportable and that appellee had not been guilty of cruel treatment toward appellant.

Appellant contends that the jury’s finding of cruel treatment on her part is not supported by any evidence, that there is insufficient evidence to support such finding, and that the evidence offered in support of such issue was not full and satisfactory as required by Article 4632, Vernon’s Annotated Civil Statutes of the State of Texas.

The evidence shows that appellant and appellee were married in November, 1951 and separated on December 1, 1963. Ap-pellee testified at the trial mainly with respect to the financial problems of the parties and what he considered extravagant expenditures on the part of appellant. He was employed by Brown & Root, and at the time of the trial and for some time before received an annual salary of $25,000.00. Shortly after the parties were married he began turning over his pay checks to his wife. He testified that he insisted that she take care of purchases for the family and hills. He retained $100.00 per month for himself to take care of his personal incidental expenses.

Appellant opened up several accounts, some with appellee’s consent and some without his knowledge. She generally made purchases and paid the bills, but on occasions appellee made purchases and had the bills sent to him. He testified she objected to this. She got behind in paying some of the current bills for various living expenses and for improvements and repairs on the home, most of which he agreed to. He testified that they had numerous quarrels about the expenses which were incurred. It is not shown, however, that he ever ceased turning over his pay check to appellant or that he-undertook to close the accounts and prevent her from charging things to him until shortly before he left her. There were also some arguments about which clubs they should join or in which clubs they should retain their membership. Appellee admitted that he took his turn in entertaining the people they met at dance clubs, and in buying drinks and dinners, although he did not feel financially able to do so. He resigned from the International Club mainly because of the income tax ruling. He felt he could not afford to use it. There was also some disagreement between the parties as to another club which appellant joined in order that their son, who was 10 years old, might take swimming lessons.

The evidence shows that the two major purchases made by the parties during their marriage consisted of a vacant lot, which was later sold and of the home on Looscan Lane in the River Oaks section of Houston, which cost $42,500.00. The account of which appellee complained the most was the Suniland Furniture Company account which was opened with his consent. On this account appellant expended some $250.-00 more than the maximum amount she and appellee had agreed upon. In November, 1963, appellee took over the financial management of the family and closed the charge accounts at the various stores.

The evidence also shows that the separation of the parties occurred on Sunday, December 1, 1963; that at that time there was no argument or dispute or quarrel; that the parties, after attending church, had lunch together, and appellee left that afternoon for New York; that the next time appellant heard from appellee was when she received a letter advising her he would not return. He also wrote that he didn’t want a divorce but wanted to live away from her awhile after he got back. Some time later at her entreaty he returned home and the parties discussed their marital problems. Appellant offered to work with him in any way possible to straighten out their financial problems.

Appellee was asked whether there was any possibility of any reconciliation between him and his wife, and he answered that there was none whatsoever, and that regardless of the outcome of the trial he would never live with her again. He never testified, however, that he could not live with her or that living with her would be intolerable or insupportable, nor did he testify that his wife’s conduct in any way injured his health or wellbeing. There is no evidence of any physical violence or that the actions of appellant complained of were studied, deliberate, wilful or intended to injure appellee. Although mental cruelty constitutes a ground for divorce, without proof of physical violence, it must be established that such mental cruelty was inflicted wilfully or intentionally. McNabb v. McNabb, Tex.Civ.App., 207 S.W. 129; Buckner v. Buckner, Tex.Civ.App., 27 S.W.2d 311; Golden v. Golden, Tex.Civ.App., 238 S.W.2d 619; Norvell v. Norvell, Tex.Civ.App., 194 S.W.2d 270; Humphreys v. Humphreys, Tex.Civ.App., 200 S.W.2d 453; Bartels v. Bartels, Tex.Civ.App., 227 S.W.2d 260; Stevenson v. Stevenson, Tex.Civ.App.1964, 383 S.W.2d 92.

The quarrels and disputes about purchases and bills and as to which clubs the parties would join were not sufficient to constitute grounds for divorce. There is no testimony by appellee as to the effect that such alleged conduct on the part of his wife had on his mind or sensibilities or that the alleged acts complained of endangered his health or outraged his feelings, or inflicted any mental pain or anguish on him, or that such alleged conduct on appellant’s part was insupportable or unbearable.

The evidence shows that after appellant went to New York, he returned to Texas and stopped at Dallas. Apparently one Nadine was living in Dallas. She later moved to Houston. In any event, after appellee separated from appellant, and after the parties had met together and discussed their affairs, and appellant had indicated she would do whatever she could to work out their financial difficulties, appellant, on or about February 8, 1964, discovered appel-lee living in the apartment of Nadine in the Colonial Apartments in Houston. He testified that he had lived with her during such period which was shown by stipulation to be from January 17, 1964 to February 24, 1964. He denied that he had been intimate with her. He testified that he slept in one room and she and her four year old son slept in another room in the apartment. At such time Nadine was divorced and pregnant. After appellee moved from Nadine’s apartment, he was seen with Nadine at the Champions Golf Club in Houston. For some time he carried in his wallet a picture of Nadine.

Appellee testified that on one occasion after he had left appellant, she threatened to kill him, herself, their child, and burn the house. There is no evidence that this threat was made to appellee more than the one time. Apparently it did not greatly impress appellee as indicated by the fact that he testified that he did not know when or where the threat was made, whether it was made in the home or over the telephone. It seems that he could not have taken the threat very seriously since he agreed that appellant be given custody of his son in the divorce proceedings, and merely asked for visitation rights.

One Mrs. Satterwhite, who worked for appellee’s employer, testified that she had talked to appellant after this suit was filed and that on one occasion appellant stated over the telephone that she wished appellee would have a stroke and that she believed she had a right to shoot him, and in Texas she believed she could get away with it. Mrs. Satterwhite also testified that when talking on the telephone to appellant’s son, Rene, she overheard appellant say to him, “You don’t have to be nice to your father tomorrow. You’re going with him because you have to. He is a skunk.”

Appellant admitted that she probably did make the threat to her husband the one time, but she testified that she never seriously threatened to harm him. The record does not show when the threat was made nor whether it was made before or after she discovered her husband living in the apartment of Nadine. Undoubtedly she was in a very emotional state at the time such threat was made. She also testified that she had jokingly said to Mrs. Roths that she could shoot appellant and get away with it. She never said that she would. She had no gun and didn’t know how to use one. It will be observed here that these threats were made after appellee without justification had left appellant.

The foregoing accusations made by ap-pellee concerning the conduct of appellant prior to his unjustifiable separation from her, even if taken as true, relate merely to trivial matters or disagreements which do not constitute a sufficient basis for the disruption of the marriage relation. Hyatt v. Hyatt, Tex.Civ.App., 111 S.W.2d 341; McCullough v. McCullough, Tex.Com.App. 1931, 120 Tex. 209, 36 S.W.2d 459; Burns v. Burns, Tex.Civ.App., 76 S.W.2d 821; Mayen v. Mayen, Tex.Civ.App., 177 S.W.2d 240; Rodriguez v. Rodriguez, Tex.Civ.App., 186 S.W.2d 88.

The threat made by appellant to ap-pellee after he had left her, and while she was undoubtedly in a highly emotional state, did not impress him enough for him to remember when or where it was made. Such threat, under the circumstances of this case, does not constitute a sufficient ground for the granting of a divorce. It is our view that appellee failed to establish by full and satisfactory evidence excesses, cruel treatment or outrages that would render living with appellant unendurable or intolerable. Bradshaw v. Bradshaw, Tex.Civ.App., 293 S.W.2d 210; Allen v. Allen, Tex.Civ.App., 267 S.W.2d 911; Cantwell v. Cantwell, Tex.Civ.App., 217 S.W.2d 450; Golden v. Golden, supra; Garcia v. Garcia, Tex.Civ.App., 185 S.W.2d 227.

We have read the entire statement of facts and have concluded that the evidence in this case is insufficient as a matter of law to show cruel treatment under Article 4632, V.A.C.S., which provides that the decree of the court in divorce cases shall be rendered upon full and satisfactory evidence. “The requirement of full and satisfactory proof is also as applicable in the Court of Civil Appeals as it is in the trial court.” Christoph v. Sims, Tex.Civ.App., 234 S.W.2d 901, writ ref., n. r. e.; Mayen v. Mayen, Tex.Civ.App., 177 S.W.2d 240. This Court not only has the power, but it is its duty, to pass upon the issue of whether the evidence in the case is full and satisfactory, although it cannot pass upon the credibility of the witnesses. Gomez v. Gomez, Tex.Civ.App., 234 S.W.2d 941; Robinson v. Robinson, Tex.Civ.App., 235 S.W.2d 228; Christen v. Christen, Tex.Civ.App., 333 S.W.2d 472, and authorities cited.

The court refused to submit appellant’s requested defensive issue inquiring as to adultery on the part of appellee. It is our view that circumstantial evidence was introduced which would require submission of the appellant’s requested special issue upon another trial if supported by her pleadings. In Franzetti v. Franzetti, Tex.Civ.App., 120 S.W.2d 123, the court stated:

“It is conceded that adultery is generally held to be a complete defense to an action for divorce upon any ground including that of cruel treatment. 15 Tex.Jur. p. 493, § 42; 9 R.C.L. p. 390, § 183.
“This rule is not predicated upon the ground that the guilty plaintiff has committed an act constituting a statutory ground for divorce in favor of defendant. The basis is thus stated in 9 R.C.L. p. 387, § 180: ‘It is a general principle of the common law that whoever seeks redress for the violation of a contract resting upon mutual and dependent covenants, to obtain success must himself have performed the obligations on his part.”

To like effect, see Jones v. Jones, Tex.Civ.App., 176 S.W.2d 784, decided by this Court.

We are of the opinion that the court erred in holding and decreeing that the funds and interest thereon contributed by the employer of appellee to his account in the Brown & Root, Inc. Salaried Employees’ Retirement Trust Plan, were the separate property of the husband. We have carefully examined the Salaried Employees’ Retirement Trust Agreement of Brown & Root, Inc. and have concluded that all contributions made to such fund by appelleee and also by his employer constitute community property of himself and appellant. The deposits to appellee’s account in such fund are governed by the laws of the State of Texas, and are not affected by the spendthrift provision contained in the trust agreement.

The “Plan is based upon the condition precedent that it shall be approved and qualified by the Internal Revenue Service as meeting the requirements of the Federal Internal Revenue Code and regulations issued thereunder with respect to employees’ trusts so as to permit the Employer and Participating Employees to deduct for income tax purposes the amounts of their contribution to the trustee as contributed, and so that such amounts will not be taxable to the Members as income when contributed; * * *” The approval of the Plan by the Internal Revenue Service is required for tax deduction purposes, but it has no bearing upon the community nature of the contributions that are made. Art. 15.13 of the plan provides: “This agreement and every provision thereof shall be construed and its validity determined according to the laws of the State of Texas.”

The instant case is distinguishable from the case of Allen v. Allen, Tex.Civ.App., 363 S.W.2d 312, decided by this Court and relied upon by appellee. In that case the ownership in the pension was controlled by the Railroad Retirement Act, whereas in this case, the nature of the ownership of the contributions is controlled by our State laws and no federal law is involved which affects the community nature of such contributions. In our opinion, the present case is governed by the decision of the Supreme Court in Herring v. Blakeley, 385 S.W.2d 843.

It is possible and, indeed, quite probable that the trial court would have made a different division of the property of the parties to this suit had the court not labored under the erroneous impression that the contributions to the Trust Plan made by ap-pellee’s employer were his separate property. The matter of awarding attorney’s fees could also possibly be affected upon another trial by a different division of the property belonging to the parties.

It seems likely that the case has not been fully developed with respect to what effect, if any, appellant’s alleged conduct had upon appellee. For this reason and also because of the other matters hereinabove considered, the case will be reversed and remanded rather than rendered.

Reversed and remanded.


text:
    Ruth A. McLAIN, Appellant, v. Dean GILLIAM, Appellee.
    No. 3975.
    Court of Civil Appeals of Texas. Eastland.
    March 19, 1965.
    Rehearing Denied April 16, 1965.
    Herbert C. Martin, Amarillo, for appellant.
    Jones & Rittenberry, Amarillo, for ap-pellee.
   GRISSOM, Chief Justice.

Ruth A. McLain and Dean Gilliam were engaged to be married. During said engagement, in contemplation of marriage, McLain delivered to Gilliam $4200.00 of her money which Gilliam paid on his debts. Thereafter Gilliam broke the engagement and McLain sued to recover her money. The jury found that said money did not belong to McLain; that McLain delivered the $4200.00 to Gilliam as a gift and that Mc-Lain intended to make a gift to Gilliam of the $4200.00 “after their engagement had terminated.” Judgment was rendered that plaintiff take nothing. She has appealed.

Appellant’s first point is that the jury having found that she made a gift of the money to Gilliam, and the uncontro-verted evidence showing that such funds were delivered by her to Gilliam after they were engaged, in contemplation of marriage, and that Gilliam paid his debts with it and thereafter broke the engagement, that she is entitled to recover her money as a matter of law. We sustain said point.

It was undisputed that during the time that said parties were engaged, in contemplation of marriage, Ruth McLain delivered to Gilliam her $4200.00 and that he paid his debts with it. The applicable rule is stated in 38 C.J.S. Gifts § 61 at page 849 as follows:

“A gift to a person to whom the donor is engaged to be married, made in contemplation of marriage, although absolute in form, is conditional; and on breach of the marriage engagement by the donee the property may be recovered by the donor.” '

That rule was recognized in the Texas case of Shaw v. Christie, Tex.Civ.App., 160 S.W.2d 989, 991. In 92 A.L.R. at page 605 the statement is made that “Upon the theory that gifts made in contemplation of marriage are made upon an implied condition that they are to be returned if the donee breaks the engagement, the following cases support the proposition that where the engagement is broken by the donee recovery of such gifts or their value may be had.” There follows a citation of decisions approving said rule in Illinois, Kentucky, Maryland, Missouri, New Jersey, New York, Pennsylvania, Vermont, West Virginia, England and Canada. In 92 A.L.R. at page 608, Grossman v. Greenstein, 161 Md. 71, 155 A. 190, is cited. It was there held that the father of a girl who deposited money in the joint account of his daughter and her fiance, in contemplation of their marriage, was entitled to recover the funds on deposit upon breach by the fiance of the agreement to marry. In Burke v. Nutter, 79 W.Va. 743, 91 S.E. 812 it was held that money advanced by the plaintiff to the defendant, to whom he was then engaged to be married, and in expectation of marriage, “whether understood and intended as a loan or a gift”, was recoverable if the defendant thereafter broke the engagement without plaintiff’s fault. In Williamson v. Johnson, 62 Vt. 378, 20 A. 279, 9 L.R.A. 277, 22 Am.St.Rep. 117 it was held that a gift by a man to a woman, in expectation of marriage, of money to enable her to purchase her marriage wardrobe and to defray her expenses in going to his home to be married, was conditional, and entitled him to recover the money back upon her failure to fulfil the engagement, although he attached no conditions to the gift and had no expectation that the money would ever be refunded. Other cases to the same effect are also cited there. In Guffin v. Kelly, 191 Ga. 880, 14 S.E.2d 50, 54, it was said:

“It is generally held that gifts made in contemplation of marriage are subject to an implied condition that they are to be returned if the donee breaks the engagement, and that the rule applies to real estate as well as personalty; also that in a proper case equity will take jurisdiction to enforce a re-conveyance.”

See also 24 A.L.R.2d 588; Janes v. Goyne, 8 Cal.App.2d 686, 182 P.2d 231; Priebe v. Sinclair, 90 Cal.App.2d 79, 202 P.2d 577 and Anderson v. Goins, Tex.Civ.App., 187 S.W.2d 415.

The judgment is reversed and judgment is rendered for appellant for $4200.00.


author: COLLINGS, Justice.

text:
    J. Wesley WOOD, Appellant, v. JOHN FARRELL LUMBER COMPANY, Appellee.
    No. 3967.
    Court of Civil Appeals of Texas. Eastland.
    March 26, 1965.
    Rehearing Denied April 16, 1965.
    Jay S. Fichtner, Dallas, for appellant.
    Monning & Monning, Amarillo, for ap-pellee.
   COLLINGS, Justice.

John Farrell Lumber Company, a corporation, brought this suit in Potter County against J. Wesley Wood on a promissory note. The defendant filed a plea of privilege to be sued in Smith County the place of his residence. Plaintiff filed a controverting plea claiming venue in Potter County under the provisions of Article 1995, Vernon’s Ann.Tex.Civ.St. After a hearing the court overruled the plea of privilege. J. Wesley Wood has appealed.

Appellant J. Wesley Wood presents one point of error contending, in effect, that the court erred in overruling his plea of privilege because the written contract upon which appellee predicates its cause of action does not state that it is payable in Potter County.

It is alleged in appellee’s petition that appellant Wood executed and delivered to Amarillo National Bank his promissory note on January 14, 1954 and thereby promised to pay to such bank or its order the sum of $2,875.00 with 6% interest. A copy of the note was attached to appellee’s petition and among other things provides that “ * * * we, or either of us, promise to pay to the order of the Amarillo National Bank at Amarillo, Texas, Twenty Eight Hundred Seventy Five and no/100 Dollars * * *."

It was stipulated that Amarillo is the county seat of Potter County, Texas and that the corporate limits of the City of Amarillo include land in both Potter County and Randall County and that Amarillo National Bank is located in the area of Amarillo lying in Potter County. Appellant contends that the fact that Amarillo is the county seat of Potter County is not material or relevant in determining the plea of privilege. Appellee contends that the fact that corporate limits of the City of Amarillo includes land in both Potter and Randall County is not material to determination of the plea of privilege.

Subdivision 5 of Article 1995 provides as follows:

“Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

Appellant points out that the note sued upon called for payment “to the Amarillo National Bank or its assignee ‘at Amarillo, Texas’ ”, but does not designate a “particular county” of performance. Appellant concedes that generally speaking courts will take judicial knowledge of the fact that the county seat of a county is located in that county. Appellant contends, however, that in the instant case the fact that the City of Amarillo is the county seat of Potter County is not material because it is stipulated that Amarillo lies in both Potter and Randall Counties, and therefore, the fact that Amarillo may be the county seat of one of those counties does not establish a “Particular County” in which the obligation was to be performed for venue purposes; that the provision for payment of the note “at Amarillo” could be complied with by payment in that part of Amarillo located in Randall County as well as it could by payment in that part of Amarillo in Potter County.

In our opinion appellant’s contention is well taken. The note here sued upon does not designate “a particular county” of performance or a “definite place therein” as required in subdivision 5. There was no promise to pay in “Potter County”. There was no promise to pay at the Amarillo National Bank which is located in the area of Amarillo lying in Potter County. There was only a promise to pay to the Amarillo National Bank “at Amarillo.” The agreement of appellant to make payment “at Amarillo, Texas” did not designate a definite place in Potter County because it could be complied with by the performance of such promise in either Potter or Randall County. It was stipulated that portions of Amarillo are in Potter County, and portions thereof are in Randall County. In Great Western Loan and Trust Company v. Montgomery, Tex.Civ.App., 376 S.W.2d 92, it is stated as follows:

“A written contract which leaves to either party, the obligor or the obligee, the privilege of selecting the place of performance in one of two or more counties is not, in our opinion, a contract performable in a ‘particular county, expressly naming such county, or a definite place therein, by such writing’ as required by sub. 5.”

See also Albin v. Hughes, Tex.Civ.App., 304 S.W.2d 371; Turner v. Ephraim, Tex.Civ.App., 28 S.W.2d 608.

Appellee further contends that the judgment should be affirmed because no statement of facts or findings of fact and conclusions of law have been filed, and a presumption therefore prevails that the trial court found all facts necessary to support the judgment. We cannot agree with that contention. The authorities cited by appellee have no application in this case because appellee’s pleadings setting out the note upon which the suit is based and the facts stipulated to by the parties are determinative of the disposition of the plea of privilege.

The judgment is reversed and the cause remanded with instructions to transfer the case to the District Court of Smith County.


author: NYE, Justice.

text:
    ANCHOR CASUALTY COMPANY, Appellant, v. ROBERTSON TRANSPORT COMPANY, Appellee.
    No. 53.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 25, 1965.
    Rehearing Denied April 15, 1965.

      Carey Williams, Houston, for appellant.
    John L. McConn, Jr., of Butler, Binion, Rice & Cook, Houston, for appellee.
   NYE, Justice.

Anchor Casualty Company, appellant, as intervenor, sued Robertson Transport Company for the sum of Two Thousand Two Hundred Dollars ($2,200.00) based upon the amount that it had paid to Clyde Haynes on a policy of collision insurance. Anchor succeeded to all of the rights of Haynes by subrogation with reference to an alleged claim against Robertson.

Haynes owned a truck that was leased to Robertson. Anchor carried the collision insurance on the truck. The truck was wrecked due to the negligence of Robertson while in its possession and control. Anchor paid Haynes’ claim for the damage suffered and then intervened in this suit against Robertson. Anchor seeking the amount it had paid Haynes alleged that the truck was under a contract of bailment from Haynes requiring Robertson to be responsible for the damage caused by his negligence. Robertson’s suit against Haynes was dismissed, leaving only the suit by Anchor against Robertson, which was tried before the court without the intervention of a jury. Robertson, in effect, defended on the basis that the contract of bailment was a special contract relieving it from any liability. Judgment was entered against Anchor that it take nothing from Robertson.

Anchor, perfecting its appeal to this Court, contends in three points that the trial court erred in refusing to render judgment for Anchor because: (1) the necessary elements for recovery were proved as a matter of law; (2) the only affirmative defense plead by Robertson was proved by Anchor to have no basis in fact; and (3) the only reason assigned by the trial court for refusing to render judgment for Anchor is immaterial as a matter of law and does not support the judgment rendered. All of these points will be considered together.

The trial court found that it was never within the contemplation of Haynes and Robertson that Robertson would be held liable to Haynes or anyone claiming by or through Haynes for damages to the truck while it was in the care, custody and control of Robertson. The trial court concluded that Haynes could not recover from Robertson for the damage to the truck because such recovery was not within the contemplation of the parties at the time Haynes and Robertson entered into the contract and therefore Anchor as subrogee of Haynes and standing in the shoes of Haynes cannot recover from Robertson for the damage to the truck.

The lease in question was entered into by Haynes and Robertson after a series of negotiations. The lease provided in effect that Robertson would operate the truck and receive a set percentage of the gross take for its services. Thereafter, all of the expenses of the operation were to be deducted and the balance remaining, if any, was to be turned over to Haynes. If there was not sufficient revenue to cover the expenses of operation it was to be carried forward and deducted from any future amounts that Haynes would subsequently become entitled to. The contract provided that Haynes would personally drive and operate the truck. If it ever became necessary to substitute a driver, then such substitute operator would have to be approved by Robertson; otherwise, the contract would become null and void. A former employee of Haynes was driving the truck at the time of the damage, working, however, under the direction of Robertson. The contract further provided that Robertson was to deduct from the gross revenue before any payment was made to Haynes, the cost of collision insurance “for the protection of the equipment (the truck in question) described herein.”

The contract further provided that

“ * * * if the lessor (Haynes) already has fire, theft and collision insurance on his equipment, and the premium has already been paid, then the lessor shall be required to furnish to the lessee (Robertson) before this lease is effective, an endorsement from his fire, theft and collision carrier showing that the lessee (Robertson) is an additional insured under the lessor’s (Haynes) fire, theft and collision coverage.”

Robertson contends that it was made clear by the terms of the lease that any loss or damage to the truck would be borne by insurance and not by Robertson or Haynes individually. To substantiate this position, Robertson points out that the lease agreement specifically provided for collision insurance for the protection of the vehicle; that the cost of such insurance was to be borne by Haynes, either by providing for insurance initially or to permit the cost of such insurance to be deducted by Robertson from proceeds which otherwise would go to Haynes; and that if Haynes already had collision insurance he was required to obtain an endorsement showing Robertson to be an additional insured under the collision coverage before the lease was to become effective. Robertson further contends that it was established by the evidence, and/or found by the trial court, that it was never the intention of the contracting parties (Haynes and Robertson) that either of them would bear any loss from damage to the truck, in that the evidence showed: that both Haynes and Robertson thought that Haynes had collision insurance initially protecting both parties from damages to the vehicle; that Robertson relied on Haynes’ statement that he had such insurance initially, and further that Haynes would secure an endorsement showing that Robertson was an additional insured on his collision insurance policy. We agree with Robertson’s contentions.

The record showed that Robertson and Haynes believed that the truck in question was insured for loss caused by a collision. Haynes had collision coverage prior to the lease of the truck in question to Robertson, but the insurance either expired by its own terms, or was inadvertently cancelled by Haynes prior to the time the lease went into effect. During negotiations of the lease it developed that the truck was mortgaged by Haynes to his bank. One of Robertson’s employees testified to the effect, that he too believed that Haynes had the collision coverage insurance because it was the usual policy of banks to require such coverage to protect the chattel that was mortgaged. Robertson’s employee contacted Haynes on several occasions prior to the loss requesting Haynes to send them the collision endorsement naming Robertson as an additional insured. Each time Haynes would be surprised that Robertson had not already received such endorsement, and would then go on to assure them that he would obtain the endorsement. No endorsement for Robertson was ever obtained by Haynes. Actually, Haynes did not have collision insurance on the truck during the several months the truck was leased to Robertson and not until it was brought finally to Haynes’ attention by his banker and a collision binder or coverage was obtained from Anchor a few days before the loss.

It is the law generally that where a chattel is delivered to a bailee in good condition and is not returned, or returned in a damaged state caused by the negligence of the bailee, the bailor is entitled to his damages. 8 Tex.Jur.2d 264, § 50; Louisiana & Arkansas Railway Co. v. Priddy, 355 S.W.2d 835 (Tex.Civ.App.1962, err. dism.); Big “D” Auto Auction, Inc. v. Hightower, 368 S.W.2d 881 (Tex.Civ.App.1963). However, the application of the general principles of the law of bailment may be abrogated by the parties who may make their own contract in reference to their mutual rights and liabilities. Sanchez v. Blumberg, 176 S.W. 904 (Tex.Civ.App.1915); Brazos River Gas Co. v. McGarr, 113 S.W.2d 643 (Tex.Civ.App.1938); 8 Tex.Jur.2d 256, § 39. They may be express contract, enlarge, abridge, qualify or supersede the obligations which otherwise would arise from the bailment by implication of law. 8 Am.Jur.2d 1021, § 127; Callihan v. Montrief, 71 S.W.2d 564 (Tex.Civ.App.1934, err. ref.); Langford v. Nevin, 293 S.W. 673 (Tex.Civ.App.1927); Munger Automobile Co. v. American Lloyds of Dallas, 267 S.W. 304 (Tex.Civ.App.). If such contract is not contrary to public policy there is nothing inherently bad about a contract provision which exempts one of the parties from liability for its own negligence. The validity of an arrangement whereby a bailee contracts with the bailor to procure insurance covering the bailed property is valid and not contrary to public policy. Either the bailor or the bailee may insure, or by special contract require one party or the other to insure, the bailed property for the joint benefit of both parties. See 8 C.J.S. Bailments § 23, p. 378. Collision insurance protecting the bailee from his own negligence or the negligence of his employees may be required by special contract through a course of dealings which establishes a standard of conduct between the parties. Robertson’s employee testified, without objection, that the provision requiring Haynes to furnish Robertson with an endorsement from his collision insurance carrier naming Robertson as an additional insured, was the usual provision that Robertson, as well as any other truck people around there usually required from the lessor. 13 Tex. Jur.2d § 129.

Appellant Anchor admits that the parties to a bailment may expressly limit the tort liability of the bailee by the express provision of the contract of bailment but such limitation of liability will not be implied and provisions in the contract alleged to have such effect will be strictly construed and will not be held to have such effect unless no other meaning may reasonably be ascribed to the language imposed. Citing Langford et al. v. Nevin, 117 Tex. 130, 298 S.W. 536 (1927).

We recognize the rule that requires a strict construction of the terms of the contract exonerating the bailee from liability for its own negligence. Wichita City Lines, Inc. v. Puckett, 156 Tex. 456, 295 S.W.2d 894 (1956). This case, cited by Anchor, is distinguishable by the facts. In this Wichita City Lines case, a building was occupied by a lessee and was damaged by fire caused by the negligence of the lessee. The building was insured by the lessor. The lessee contended that the insurance was for his protection and benefit and predicated this contention on a single phrase in the lease, i. e. “Lessor agrees to carry his own insurance against loss by fire, etc., on the entire building.” The Supreme Court held that this provision did not impose any obligation on the lessor to take out any insurance to protect himself or the lessee. The lease contract provided that in the event of fire, and should the lessor deem it unfit for occupancy, he could decide not to repair, and terminate the lease. The court held that this was inconsistent with any intention in the insurance provision (above quoted) to protect the interests of the lessee.

The subject contract provided for collision insurance for the protection of the vehicle. This was during the period of time that the vehicle was under the care, custody and control of Robertson. Haynes testified that he never intended to hold Robertson responsible for the bailed truck. Haynes stated that during a discussion of subrogation possibilities with Anchor that he protested to Anchor’s insurance adjuster when advised that Anchor might look to Robertson to recoup its loss. Haynes said: “And when they told me that, I protested, because I did not want them to go to Robertson Transport because that was not my intent. I have my truck insured and I did not look to anyone to carry the insurance for me.” If there is any doubt in construing the lease agreement, then the party’s construction of his own language constitutes the highest evidence of his intentions. Where the parties to an instrument in writing have by their acts and conduct placed a construction upon the same, showing their intentions, then such acts and conduct should be given strong weight in arriving at the intention of the parties in the execution of the instrument, and, in the absence of clear language in such instrument indicating an intention to the contrary of the parties as expressed by their acts and conduct, the courts should adopt the construction of such instrument as placed upon it by the parties thereto. 14 Tex.Jur. pp. 924, 925; 13 Tex.Jur.2d § 128; Col-Tex Refining Co. v. Coffield & Guthrie, Inc., 264 S.W.2d 462, (Tex.Civ.App., err. ref. 1954); Zeppa v. Houston Oil Co. of Texas, 113 S.W.2d 612 (Tex.Civ.App.1938, err. ref.); Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504 (1942); City of Fort Worth v. Barlow, 313 S.W.2d 906 (Tex.Civ.App.1958, ref., n. r. e.).

There is ample evidence that Haynes lead Robertson to believe that the truck in question was covered by collision insurance at the time that the contract of bailment was entered into, and several times subsequently. The record further shows that Robertson relied upon these representations. Booty v. O’Connor, 287 S.W. 282 (Tex.Civ.App.1926, err. ref.); 22 Tex.Jur.2d 660, Estoppel, § 1 and following.

It is, of course, fundamental that a subrogee stands in the shoes of the subrogor and in absence of some special contract arrangement has no greater rights than those of the subrogor. Fox v. Kroeger, 119 Tex. 511, 35 S.W.2d 679, 77 A.L.R. 663 (1931); San Antonio Cattle Loan Co. v. Blalack & Son, 256 S.W. 974 (Tex.Civ.App.1923), affirmed Sup.Ct. 267 S.W. 474; 39 Tex.Jur. 795, § 35, Subrogation. We hold that under the facts before us, for the reasons stated herein, Haynes could not have recovered the damages to the bailed truck from Robertson. It therefore follows that since Anchor admits that it stands in the shoes of Haynes, the trial court was correct in denying Anchor’s claim against Robertson. Appellant’s points are overruled. The judgment of the trial court is affirmed.