author: WERLEIN, Justice.

text:
    H. L. HAWKINS, Individually, and as a Partner of Hawkins & Hawkins, Appellant, v. Mrs. Ernestine C. GILGER, Appellee.
    No. 14695.
    Court of Civil Appeals of Texas. Houston.
    Jan. 27, 1986.
    Rehearing Denied Feb. 17, 1966.
    Fulbright, Crooker, Freeman, Bates & Jaworski, John M. Jamison, Jerry Lee Hughes, Houston, for appellant.
    Fred W. Moore, Robert B. Hinsley and Robert L. Dabney, Jr., Houston, for appel-lee.
   WERLEIN, Justice.

Appellant, H. L. Hawkins, individually, and as a partner of Hawkins & Hawkins, appeals from the judgment of the trial court overruling as a matter of law his plea of privilege praying that the suit brought by appellee, Mrs. Ernestine C. Gilger, against him for an accounting and damages be transferred to Cass County, Texas, where are located the various tracts of land from which the minerals sold were produced, on the ground that appellee’s suit is essentially a suit for the recovery of title to an interest in land and exclusive venue lies in Cass County under Subdivision 14 of Article 1995, Vernon’s Annotated Texas Statutes.

The trial court, in its order overruling said plea of privilege on July 8, 1965, recited, among other things:

“It, also, appearing that Plaintiff filed a Motion to Overrule said Plea of Privilege of H. L. Hawkins, Sr., individually and as a partner in said partnership of Hawkins and Hawkins as a matter of law, and the parties interested in said Plea of Privilege announced ready with reference to said Motion, and after considering the pleadings and argument of counsel, this Court finds that said Motion should be granted and that the said H. L. Hawkins, Sr., individually and as said partner, should be held to have appeared generally herein and to have answered to the merits as set forth in said Plea of Privilege, particularly with reference to Special Denials in said Plea of Privilege (exclusive of the Special Denial concerning denial of partnership), all of which, this Court finds amounted to a general appearance and resulted in a waiver of said Plea of Privilege; and

“This Court having duly considered such Plea and Controverting Affidavit and the pleadings and argument of counsel, this Court being of the opinion that said Plea of Privilege should be overruled as a matter of law and that it is not necessary that either party offer any evidence as a basis for overruling said Plea which this Court finds has been waived as a matter of law.”

Prior to filing his plea of privilege, appellant filed a motion under Rule 120a, Texas Rules of Civil Procedure, objecting to the jurisdiction of the court, on the ground that he had never been and is not now a resident of the State of Texas but was and is a resident of New Orleans, Louisiana, and that he did not personally maintain an office in Houston, Harris County, Texas, and there had been no citation naming defendant, H. L. Hawkins, Sr., personally served upon him in the State of Texas. He also alleged in said motion the insufficiency of the service of process upon him under Article 2031b, Sec. 2, V.A.T.S., by serving Mrs. Joyce Bohustay, secretary in the Houston office of the partnership of Hawkins & Hawkins.

He further alleged in said motion that plaintiff had apparently attempted service of citation upon him under Article 2033b, V.A.T.S., but that plaintiff’s petition did not allege and could not honestly allege a cause of action growing out of or connected with the business conducted by the Houston office of the partnership of Hawkins & Hawkins, and that such partnership was formed and came into existence in the year 1958 while the alleged acts upon which plaintiff’s action is based occurred in 1951, 1952 and 1953, and that plaintiff’s petition clearly shows on its face that the action as alleged therein was purely personal in nature and in no way related or connected with the partnership firm of Hawkins & Hawkins. He moved that the court enter an order under Rule 120a that the attempted service of citation upon him be held for nought, that the court has no jurisdiction in this cause over his person or property, that he be not required to make further answer herein and that the court award such other relief and make such other and further orders as may be appropriate in connection therewith.

On June 21, 1965, prior to the hearing on appellant’s plea of privilege, appellant filed an instrument in writing in which he made known to the court that he elected not to urge his motion under Rule 120a but to waive the same so as to leave as his initial pleading filed in this cause his plea of privilege to have the case transferred under Subdivision 14, of Article 1995, Revised Civil Statutes of Texas, to Cass County, which he alleged to be the county where the land, the title of which was involved in the suit, is located. Ap-pellee contends that said special appearance motion was fatally defective in that it did not allege that appellant and his property were not amenable to process issued by the courts of this State, and that despite the fact that appellant had undertaken to waive such special appearance, such plea being defective in substance, constituted a general appearance in the case, and resulted in waiving appellant’s plea of privilege. We do not agree with such contention. Rule 120a, T.R.C.P., provides that a special appearance may be made by any part either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process issued by the courts of this State. This is what appellant’s motion was intended to do. It was not in any sense an answer to the merits of the case. It is our view that such motion is substantially correct when it states facts showing that the Defendant is not amenable to process issued by the courts of this State, although it may not allege verbatim the defendant’s conclusion that he is not amenable to process. In any event, when appellant waived his special appearance motion he in effect withdrew it and hence submitted himself to the jurisdiction of the court, so that it would not be necessary to obtain service on him other than as was done. The fact that he submitted himself to the jurisdiction of the court did not result in waiving his plea of privilege.

Appellee in her brief asserts that said motion was nothing more than a motion to quash the citation served on the employee of Hawkins & Hawkins. We do not agree, but if appellee is correct, then such motion if quashed, would merely result in the defendant’s appearance at 10 o’clock a. m. on the Monday next after the expiration of twenty days after the day on which the citation was quashed. Rule 122, T.R.C.P. It would not constitute, however, a waiver of the defendant’s plea of privilege which was properly filed subsequent to the filing of his motion under Rule 120a, and therefore in due order of pleading. Gulf Refining Co. v. Needham, Tex.Civ.App.1950, 233 S.W.2d 919. The cases relied upon by appellee are factually distinguishable from the instant case. Most of them were decided prior to the adoption of Rule 120a.

Appellant asserts that the trial court erred in overruling his plea of privilege as a matter of law and in not transferring the case under Subdivision 14 of Article 1995, V.A.T.S., to Cass County, where the land, title to which was in dispute, is situated. It is apparent from the hereinabove recitation in the court’s order overruling appellant’s plea of privilege that the court was of the opinion and concluded after considering such plea and appellee’s controverting affidavit and the pleadings, that appellant had appeared generally and had waived his plea of privilege as a matter of law because of having inserted therein certain answers as set forth in said plea and particularly the special denials contained therein, and further that it was not necessary to hear any evidence. No evidence was heard and the plea of privilege was overruled as a matter .of law.

The second paragraph of Rule 86, which was added to the rule by amendment effective September 1, 1962, deals with a plea of privilege to be sued in a county other than the county of one’s residence and reads as follows:

“A plea of privilege to be sued in a county other than the county of one’s residence shall be in writing and sworn to and shall state that the party filing the plea is asserting venue under and by virtue of one or more specific statutory provisions which shall be clearly designated or indicated.”

In his plea of privilege appellant without waiving his objections to the jurisdiction of the court and expressly subject thereto, alleged that the basic and fundamental issue in this suit being the title to certain mineral interests in Cass County, Texas, the exclusive venue of the suit is fixed by Article 1995 of the Revised Civil Statutes of Texas, Subdivision 14, which makes it mandatory to bring the suit in the county in which the land or a part thereof may lie.

The plea sets out rather fully that appel-lee’s suit involved the title to land located in Cass County, and was an effort to nullify, cancel and set aside a deed referred to in paragraph VI of plaintiff’s petition which was a deed from appellee to one M. T. Grubb, conveying all of ap-pellee’s right, title and interest in and to all oil, gas and mineral leases and mineral interests owned by her in certain described surveys in Cass County, Texas, excepting and reserving to her, however, all of as-signee’s leasehold and mineral interests down to and through present pay formations or horizons including all rights to 6100 feet below surface in said surveys, and assigning only such rights and interest as she might own in such surveys below present producing formations and horizons in said surveys. As to each tract assigned she excepted and reserved as a free overriding royalty her fractional mineral interest or leasehold interest of ?}/£% of all the oil, gas and other minerals produced and saved from such tract below the present producing formations. Appellant attached to his plea as an exhibit a copy of such assignment, and stated in his plea that the properties described therein were the properties involved in appellee’s suit.

We are of the opinion that the plea of privilege in question was intended to be and essentially is nothing more than a plea of privilege to be sued in Cass County where are situated the lands from which were derived the oil and minerals allegedly produced and sold, the proceeds of which appellee seeks to recover. The prayer in such plea clearly shows that no affirmative relief of any kind was sought other than the transfer of the case to the District Court of Cass County. Such prayer reads as follows:

“Wherefore, premises considered, defendant H. L. Hawkins, Sr., individually and as a partner of Hawkins & Hawkins, prays that the Court sustain this plea of privilege and venue, and that this cause be transferred to the District Court of Cass County, Texas, for all further proceedings herein and that all costs down to date be adjudged against the Plaintiff.”

Appellant did not invoke action by the court on anything other than such plea and the transfer of the case to Cass County.

The first sentence of the third paragraph of Rule 86 provides:

“When a plea of privilege is filed in accordance with this rule, it shall be prima facie proof of the defendant’s right to change of venue; provided that such plea shall not constitute a denial under oath of any allegations of plaintiff’s petition required to be denied under oath by Rule 93 unless specifically alleged in such plea.”

It is worthy of note that the rule does not prohibit the denial of other matters, but simply specifies that certain matters must be affirmatively denied under oath. The rule apparently contemplates that all other facts relevant to venue will be deemed denied by the filing of the plea of privilege. Among the matters required by Rule 93 to be verified are the following:

“(a) That the suit is not commenced in the proper county.
« * * *
“(cY That the plaintiff is not entitled to recover in the capacity in which he sues, or that the defendant is not liable in the capacity in which he is sued. (Emphasis supplied.)
iji * Sj<
“(e) That there is a defect of parties, plaintiff or defendant.”

In her original petition appellee alleged in broad terms that appellant Hawkins was in a fiduciary and trust capacity of some kind to her without alleging any details as to how, when or where such trust relationship was supposed to have come into existence. Appellant contends that in order to make clear that the suit was not one for a simple trust accounting but that the real issue was one of title to the Cass County leases, he made verified denials of the specific facts which were apparently supposed to have brought some trust relationship into existence. He undertook to point out that while plaintiff’s petition was not altogether clear, it was in fact a suit involving title to lands in Cass County and constituted an effort by appellee to nullify and cancel the effect of a deed which she executed in 1952 to M. T. Grubb, and that such title action would necessitate the joinder of other indispensable parties, and that inherent to her attempt to avoid her 1952 deed, “ * * * there must be tried and determined, in addition to the defense that the consideration for said deed was fully performed, the land title defenses of laches, stale demand, estoppel, ratification, and the four year statute of limitations. * * *” She did not, however, plead any of such defenses but simply pointed out that such items were issues which would have to be tried when the case was tried on its merits. There was no plea of not guilty nor any general denial allegations in the venue plea nor the customary defense pleadings to the merits. No action by the court was invoked or prayed for other than a hearing and ruling on the plea of privilege and a transfer of the case to Cass County.

It is true that in paragraph VI of said plea of privilege appellant stated: “While not necessary to this venue plea, this defendant in furtherance and as a part of this venue plea makes the following verified special denials of certain facts alleged in plaintiff’s petition: * * He denies that he either individually or as a partner of Hawkins & Hawkins, is now or ever has been in any capacity of trustee to appellee; that there has ever been any trust agreement either written or oral, between them; that he has ever conspired or colluded with the other defendants or with any person against appellee; that the consideration for the deed from appellee to Grubb has failed. He says that said deed, being the one described in paragraph VI of plaintiff’s petition, was in full force and effect after January 1, 1953, the date that appellee claims to have re-acquired title to the interest conveyed by said assignment. He also denies that plaintiff was an ignorant person, and that he has in any capacity taken advantage of her in any way or form.

It will be noted that these denials are allegedly made in furtherance of appellant’s venue plea and at least in part for the purpose of showing that appellant was not acting in the capacity of a trustee and that the suit was essentially one involving title to land. It was apparently the intention of appellant in placing such special denials in his plea of privilege that they should bear upon the issue of venue. He did not invoke any action by the court upon the same or upon the merits of the case. The hearing that was set was solely for the purpose of determining whether the case should be transferred to Cass County. Appellant observed in the pleadings filed by him due order of pleading. He first filed his special appearance under Rule 120a; and then subject thereto his plea of privilege to have the case transferred to Cass County under Subdivision 14, of Article 1995; then he filed his plea in abatement subject to his plea of privilege and finally his original answer including special exceptions, subject to such plea of privilege and his plea in abatement. In his special exceptions and original answer filed July 6, 1965, subject to his plea of privilege and plea in abatement, he pleaded he was not guilty of the wrongs and trespasses contained in appellee’s second amended original petition, and denied all and singular the allegations therein, and specially denied that he was at any time subsequent to June 8, 1951, a partner with C. C. Gilger (appellee’s former husband), and denied that he individually or as a partner with his son in the firm of Hawkins & Hawkins or in any other capacity, is now or has ever been in any capacity of trustee to appellee, and denied there has been any trust agreement, either written or oral, between him in any capacity and appellee, and denied that he had ever conspired or colluded with any of the other defendants in the case or with any other person against appellee. He then pleaded the two, four, five and ten year statutes of limitation, laches and stale demand, and also affirmatively pleaded that appellee voluntarily approved and accepted the Scurlock Oil Company division orders which formed the basis of payments made to appellee from the Cass County properties, and that she approved and agreed to the interpretation given to her December 8, 1952 conveyance to M. T. Grubb by said Scurlock Oil Company in its division orders, and further pleaded that such deed shows on its face appellee’s overriding royalty interest.

The fact that appellant pleaded in his answer to the merits the special denials, some of which it was not necessary for him to place in his plea of privilege, is further evidence that it was not his intention that such denials should be acted upon by the court in connection with the plea of privilege. It is our view that some of such special denials were not necessary to the plea of privilege. They were pleaded, however, by appellant in furtherance of such plea in an effort to further show that the suit involved title to land. We are of the opinion that the adding of such special denials did not destroy the plea of privilege or constitute a waiver thereof, and that the same, if not necessary, merely constituted surplus-age.

For instances in which a Court of Civil Appeals has held that a defendant was not precluded from insisting upon his plea of privilege although the same contained a general denial, see Durrett v. Arctic Air, Inc., Tex.Civ.App., 319 S.W.2d 937; Palmer v. Cheyne Tex.Civ.App., 261 S.W.2d 373.

Our Supreme Court has held in several partition suits, although partition suits are not governed by Subdivision 14 of Article 1995, that if the defendant in his venue plea contends that the suit involves an adverse claim of title, the plea of privilege must be granted under Subdivision 14, Article 1995, unless the plaintiff discharges the burden of showing on the venue hearing that the defendant does not claim an adverse title. In Herrington v. McDonald, 1943, 141 Tex. 441, 174 S.W.2d 307, the Court held that it was not sufficient to defeat a Subdivision 14 venue assertion to show that the defendant did not have an adverse title, but that the plaintiff must show that the defendant filing the plea did not claim an adverse title. This appellee has failed to do in the instant case.

In Pena v. Sling, 1940, 135 Tex. 200, 140 S.W.2d 441, the Court said:

“Under the express provisions of Article 2007, R.C.S.1925, supra, a statutory plea of privilege or venue, duly filed, is ‘prima facie proof of the defendant’s right to change of venue.’ It follows that such a plea is sufficient, in law, to require the plaintiff to assume the burden of pleading and proving that he has a statutory right to maintain his suit in the county where he has filed the same. The burden on the plaintiff to prove his right to such venue is as complete and absolute as is his burden to plead the same. Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S.W. 747; Coalson v. Holmes, 111 Tex. 502, 240 S.W. 896; Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S.W. 550. * * *
“ * * * It follows that since the burden was on Pena et al. to bring themselves under exception 13, the burden was on them to prove that a land title suit, or suit to recover land, was not involved.”

See also Tide Water Oil Company v. Bond, 1940, 135 Tex. 334, 143 S.W.2d 751, where the court by way of amplification of the decision in Shell Petroleum Corporation v. Grays, 122 Tex. 491, 62 S.W.2d 113, stated:

“1. That in actions involving title to real estate Subdivision 14 is imperative and dominant.
“2. That even if an action took the form of a partition suit, if in fact a question concerning the title to real estate became injected into the case by defendant’s plea of privilege, the venue was governed by Subdivision 14 and not by Subdivision 13. * *
“3. Even though the action was in form of a partition suit, if the defendant in his plea of privilege injected a question affecting the title to land, the burden was upon the plaintiff to plead and prove that the suit was in fact only a partition suit, and that a suit for the recovery of lands or damages thereto, or to remove incum-brances upon the title to land, or to quiet the title to land, or to prevent or stay waste on land, was not involved.”

In the instant case it is clear that appellant in his plea of privilege did inject a question concerning the title to the land, thus placing the burden upon appellee to plead and prove that the title to land was not in any way involved. The amount of proceeds from minerals sold recoverable by appellee would depend in large measure upon whether the conveyance and assignment by appellee to M. T. Grubb was void on January 1, 1953 for failure of consideration, or whether the same was valid and subsisting. Appellee’s interest in the proceeds from royalties thus depended upon a title question in construing the validity vel non of such assignment. Even if there is doubt concerning whether appellee’s pleadings placed in issue title to land, there can be no doubt that appellant’s plea of privilege did clearly and unequivocally do so. It is worthy of note that in Pena v. Sling, supra, the court quoted the so-called plea in abatement, which was in fact a plea of privilege, as follows:

“ ‘That although the Plaintiff’s petition in this case is in form a pleading for a partition of real estate, in fact the Plaintiff seeks principally the recovery of an undivided interest in lands and to quiet the title to such undivided interest in lands. That such lands are not located in Bexar County, Texas, the county in which this suit is instituted, but said lands are located wholly within the boundaries of Duval County, Texas, and that under Subdivision 14, of Article 1995, suits for the recovery of lands or to quiet the title to lands, must be brought in the county in which the land lies, and these Defendants respectfully show that although they, are residents of Bexar County, Texas, the county in which this suit was instituted, the exclusive venue of a suit of the kind and character filed by Plaintiff is fixed in Duval County, where the land lies.’ ”

The court regarded all of the pleadings filed in said case as dealing only with venue, as shown by the following statement of Justice Critz: “No pleadings have been filed in this cause for any defendants, except as bearing on the issue of venue.”

See also Renwar Oil Corporation v. Lancaster, 1955, 154 Tex. 311, 276 S.W.2d 774, which was a suit for recovery of a “Veith. of the money realized by petitioner from the sale of oil and gas produced under the lease executed by them to Geo. H. Gay, Trustee,” and which involved several unitization agreements. The Supreme Court, in reversing the Court of Civil Appeals which held that Subdivision 14 was not applicable, said that the suit was essentially one for the recovery of land and to quiet title within Subdivision 14, Art. 1995, even though cast as one for declaratory judgment. The Supreme Court opinion does not discuss the details or the form of the plea of privilege, but the Court of Civil Appeals in its opinion (270 S.W.2d 289), stated:

“Appellee Renwar Oil Corporation filed a plea of privilege which, in addition to the ■usual form, contained a paragraph as follows: ‘That this is a suit for the recovery of lands and the oil produced therefrom, and to quiet title to same or to prevent or stay waste on land, and said suit involves the title to an interest in lands, which said lands are located in Nueces County, Texas, as is more fully shown by plaintiffs’ petition.’ ”

The mandatory and controlling effect of Subdivision 14 of Article 1995, extends to any suit in which on the venue hearing it appears either from the pleadings or proof that the real controlling issue is a question of title to land or an interest therein regardless of the form of the action or the relief prayed for. In Hammonds v. Hammonds, 1956, 155 Tex. 207, 285 S.W.2d 362, which was a partition suit praying for a partition of lands, the court in holding that venue was governed by Subdivision 14, Article 1995, stated in substance that the plaintiffs had no right to a partition of the three tracts of land because they had no interest in the same,

“and, as a matter of fact, said cause of action is brought in the guise of a suit for partition in an attempt to hold venue in a county in which the land does not lie, when the real nature of the suit is one to recover an interest in land.” The Court referred with apparent approval to the holding in Herrington v. McDonald, supra. In that •case the Court held that the burden was upon the plaintiff to show that the defendant filing the plea did not claim an adverse title.

The case of W. B. Johnson Drilling Company v. Lacy, Tex.Civ.App., 336 S.W.2d 230, cited by appellee, is factually distinguishable from the instant case. In that case the plaintiffs did not specifically or by implication allege that they were presently the owners of the fractional interest in the mineral leasehold in question. The suit was recited to be one for rent of certain personalty and for the conversion of oil or the proceeds thereof alleged to have been wrongfully sold under a distraint sale by the Internal Revenue Service. In their controverting affidavit, the plaintiffs did not plead Subdivision 14 of Art. 1995, as the ground for keeping venue in Coleman County, as specified by Rule 86, T.R.C.P., but later raised this possible ground of sustaining venue for the first time on appeal.

See Natural Gas Distributing Corporation v. Williams, Tex.Civ.App., 292 S.W.2d 353, in which case the court said:

“As we construe the matters alleged in the petition of the appellee, the dominant purpose of the suit is to recover for damages to the appellee’s interest in the land in Shelby County. His only interest in that land was that interest which he acquired by the assignment to him by the appellant of an overriding royalty in such land. When he alleged that because of certain acts of the appellant, or failure to act, the appel-lee’s profits from such overriding royalty interest had been lessened, he alleged injury and damage to appellee’s interest in that land. We hold that this pleading alleged a suit for damages to land, on the authority of Frost v. Standard Oil Co. of Kansas, Tex.Civ.App., 107 S.W.2d 1037; Humble Oil & Refining Co. v. Monroe, Tex.Civ.App., 129 S.W.2d 454. The trial court did not err therefore in holding that Subsection 14 of Article 1995 applied and was correct in overruling appellant’s plea of privilege.” See also McCurdy v. Morgan, Tex.Civ.App., 252 S.W.2d 264, which was a declaratory judgment case; and Liles v. McDonald, Tex.Civ.App., 63 S.W.2d 886, which was a suit to cancel a royalty deed allegedly procured by fraud. In both cases Subdivision 14 was held to control the matter of venue.

The judgment of the trial court overruling appellant’s plea of privilege as a matter of law is reversed and judgment is here rendered sustaining such plea and ordering the case transferred to a District Court of Cass County, Texas.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    R. F. ROBERTS, Appellant, v. W. B. FRASER et al., Appellees.
    No. 6806.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 3, 1966.
    James M. Crane, Conroe, for appellant.
    W. C. McClain, Conroe, Vinson, Elkins, Weems & Searls, Houston, for appellees.
   STEPHENSON, Justice.

This is an action in trespass to try title tried before the court and in which judgment was rendered for defendants. The parties will be referred to here as they were in the trial court.

Plaintiff’s first point of error is that the trial court erred in finding and holding that plaintiff did not prove common source of title between himself and defendants. This was the second conclusion of law as found by the trial court.

Plaintiff offered in evidence: A deed from Mrs. Emily J. McManus acting for herself and as executrix of F. E. McManus, and J. Lobit to J. B. Hale. A deed from the heirs of J. B. Hale to plaintiff. Then in an attempt to show common source of title plaintiff offered in evidence: A deed from Joseph Lobit, Emily J. McManus, Helen Gonzales Marcoulides, Theo D. Mar-coulides and Mary T. Gonzales to Thomas S.Foster and then connected the defendants with Thomas S. Foster.

It is elementary that the burden of proof is upon the plaintiff to establish a superior title in himself. This he may do by showing title from the sovereignty into himself, or a limitation title, or a common source of title. The plaintiff has failed to accomplish any of these three. No attempt was made to connect plaintiff’s title to the sovereignty nor to show a limitation title. Plaintiff relied solely upon a record title from a common source. In order to show a common source of title plaintiff must show a chain of title into defendants and himself emanating from the same common source. The plaintiff in this case failed to show his title also came from Helen Gonzales Marcoulides, Theo Marcoulides and Mary Gonzales. These were three of the grantors in the deed which was the source of defendants’ title. The Supreme Court of Texas has settled this question in Southern Pine Lumber Co. v. Hart, 161 Tex. 357, 340 S.W.2d 775. The Supreme Court gave this simple illustration as to how proof of common source must be complied with:

“Reduced to its simplest terms, a deed from X to A does not prove a common source from X, Y and Z to B.”

Because of this fatal error made by plaintiff in his attempt to prove title, it is unnecessary for us to pass upon the other points of error.

Affirmed.


author: CADENA, Justice.

text:
    Juan CRUZ, Appellant, v. Earl A. THOM, Appellee.
    No. 14427.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 19, 1966.
    Rehearing Overruled Feb. 16, 1966.
    William H. Price, San Antonio, for appellant.
    Beckmann, Stanard, Wood & Vance, Seagal Wheatley, San Antonio, for appel-lee.
   CADENA, Justice.

Plaintiff, Juan Ramon Cruz, a minor, filed this suit by and through his father, Juan Cruz, to recover damages for loss of sight in his right eye, allegedly resulting from the negligence of defendant, Earl A. Thom. When plaintiff rested, the court instructed a verdict in favor of defendant, and plaintiff appeals.

Plaintiff presents two assignments of error. First, he complains of the action of the trial court in instructing a verdiet for defendant. His second point of error relates to the action of the trial court in sustaining defendant’s exception to those portions of plaintiff’s petition in which plaintiff sought to invoke the benefit of the doctrine of res ipsa loquitur.

In view of the instructed verdict against plaintiff, we must not only accept as true all evidence which tends to support plaintiff’s contentions, but we must also indulge every inference which can reasonably be drawn from such evidence in favor of plaintiff’s position, and discard all contradictory evidence and possible inferences which are favorable to defendant. White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Mellette v. Hudstan Oil Corp., Tex.Civ.App., 243 S.W.2d 438, wr. ref. n. r. e.; 3 McDonald, Texas Civil Practice, § 11.28, p. 1032.

When we evaluate the evidence in accordance with the applicable rules, we must accept the following facts as established: At the time of the injury complained of, plaintiff’s father was doing yard work for defendant. At that time, defendant was working in his garage with some sort of machine which caused particles and slivers of plywood to fly out of the garage door and into the yard. At the request of defendant, plaintiff was directed by his father to assist in the yard work. While plaintiff, who was then seven years of age, was working near the garage, a sliver or particle of wood was hurled from the machine being used by defendant and became embedded in plaintiff’s right eye. The machine which defendant was using in his garage had no guard on it to prevent the emission of such slivers and particles of wood. There is no evidence that any person other than defendant was in the garage at the time.

From such evidence, reasonable minds could conclude that defendant knew, or could reasonably be expected to foresee, the danger inherent in the condition which 'he had actively created; that he knew, or could reasonably be expected to foresee, that the minor plaintiff, who was present in the yard at defendant’s request, was in the area of danger; that, since all of the evidence is to the effect that the slivers of wood were flying out of the garage door into the yard, the garage door was open; that defendant failed to keep a proper lookout for the foreseeable presence of plaintiff in the zone of danger; that defendant’s operation of the machine under such circumstances without a guard or screen to prevent the emission of the particles of wood, or without closing the garage door, was negligence; and that such negligence was the proximate cause of plaintiff’s injury. All of these findings, if made, would find support in plaintiff’s pleadings. Under these circumstances, the instruction of the verdict in favor of defendant was error.

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


author: MASSEY, Chief Justice.

text:
    AMERICAN PETROLEUM EXCHANGE, INC., et al., Appellants, v. L. S. LORD et al., Appellees.
    No. 16694.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 21, 1966.
    Rehearing Denied Feb. 18, 1966.

      Arthur Lee Moore, and Ernest May, Fort Worth, for appellants.
    Andress, Woodgate, Richards & Condos, and W. Andress, Jr., Dallas, and Hudson, Keltner, Smith & Cunningham, and Dale B. Hinson, Fort Worth, for appellees.
   MASSEY, Chief Justice.

Premise for the litigation in the trial court from which the instant appeal is taken lay in the judgment taken in another case. Such other case was one in which an appeal was taken. See Major v. Lord, 357 S.W.2d 820 (Waco Civ.App., 1962, writ refused, n. r. e.). It is to be noticed in that opinion that L. S. Lord’s judgment against Sam I. Major was recovered “for the use and benefit” of another. Such other was the Paul E. Hawkinson Company. That such was the case appeared on the face of the record. That the same thing was true in the instant litigation likewise appears on the face of the record.

After the appeal was perfected Paul E. Hawkinson Company moved for leave to personally become a party to the proceedings rather than merely depend upon L. S. Lord as its trustee. An asserted purpose was to quiet the appellants’ concern and insistence that if the instant judgment be affirmed they might be exposed to further liability under the former judgment.' Appellants resist such motion. We have concluded that no possible harm could accrue to appellants by granting the motion. Accordingly, the motion of Paul E. Hawkinson Company is granted and’ it is admitted as a personal participant to proceedings in this court.

The judgment originally taken by L. S. Lord for himself and for the use and benefit of the Hawkinson Company was dated August 28, 1961. The judgment was abstracted and filed of record in Tarrant County on September 5, 1961. As abstracted the recited amount of the judgment was $13,878.57. There seems to be no dispute between the parties but that the amount of the judgment, as rendered on August 28, 1961, was in the aggregate amount of $13,878.57, plus interest and costs of suit. The record is void of proof as to said judgment figure other than by the certificate of the District Clerk in the abstract of the judgment.

On December 31, 1962, the Sheriff of Parker County levied upon and seized some property of Sam I. Major under execution issued on the judgment of August 28, 1961. $9,651.00 realized as proceeds from the Sheriff’s sale of the property was proper to be credited upon the balance owing on the judgment at that time.

By analysis of the record we are able to ascertain that Lord and the Hawkinson Company have attempted to concede that an additional sum of a little over $2,000.00' was credited on the judgment debt of Sam I. Major. What is not explained, however, is the reason for such a credit and the time thereof.

In the suit from which the instant appeal was taken Lord, for the use and benefit of the Hawkinson Company, sought to foreclose his lien on property claimed to be subject thereto in Tarrant County perforce the record made of the abstract of judgment on September 5, 1961. In the allegations of the petition appears the following: “plaintiff herein L. S. Lord recovered judgment after remittitur, on 28 August 1961, for himself and for the use and benefit of Paul E. Hawkinson Company in the aggregate amount of $11,836.09, with interest at the rate of 6% per annum from said date until paid.” It is obvious from the record that the court construed the language of the plaintiff’s petition as though it read as follows: “L. S. Lord, plaintiff herein, recovered judgment for the use and benefit of himself and Paul E. Hawkinson Company on 28 August 1961, the amount of which, after application of credit by way of remittitur, was in the aggregate amount of $11,836.09. Plaintiff’s judgment entitles him to interest thereon at the rate of 6% per annum from 28 August 1961 until paid.”'

We see no impropriety of the trial court treating the allegations as though they so read. The ambiguity if not patent was at least latent. In the allegations of the petition the prepositional phrase “after re-mittitur” contains the preposition “after”1 coupled with the object “remittitur” in modification of the expression “recovered judgment”. As the sentence: “The box it came in was damaged” leaves in doubt whether the box had arrived in the damaged condition or was damaged after the time it arrived, — likewise the sentence: “Plaintiff recovered judgment after remit-titur * * * in the aggregate amount of $11,836.09” leaves in doubt whether plaintiff’s judgment was originally rendered for said amount or its judgment debt was reduced to that amount by way of a credit applied on the amount for which judgment had been originally rendered.

Objection to the introduction by Lord and Hawkinson Company of the abstract of judgment record showing the amount of the judgment at $13,878.57 was overruled. Appellants, Sam. I. Major and American Petroleum Exchange, Inc., complain because thereof insisting that there was a fatal variance between the record, as evidence, and the plaintiff’s petition in which it was alleged “plaintiff herein * * recovered judgment after remittitur * * in the aggregate amount of $11,836.09.” With the construction made of the language of the petition which we have hereinabove concluded that the trial court was entitled to make there would be no variance. A “variance” is a disagreement between the allegations and the proof in some matter that in point of law is essential to the claim. See 46 Tex.Jur.2d, p. 162, “Pleading”, XIV, “Evidence Authorized by Pleadings; Variance”, § 269, “In general”.

Nor do the circumstances show that the recording of the abstract of judgment failed to establish a lien on the property of Sam I. Major. That is the appellants’ contention under the claim that said abstract did not show correctly “the amount for which the judgment was rendered and the balance due thereon.” We agree that the fixing of a judgment lien is strictly construed under the statute regulating abstracts of judgments. See Vernon’s Ann. Tex.St. Title 90, “Liens”, Art. 5447, “Abstracts of judgments”. However, the evidence to which the appellants direct our attention did not prove, prima facie, the absence of the required compliance. It may be that it could have been shown that the lien was void because of a failure of the abstract of judgment to meet the strict requirements of the law; but such evidence as was introduced did not so prove. If there was some other evidence which might have done so the burden of displaying it was devolved upon the appellants. This burden they did not discharge.

In another point of error appellants complain that the Paul E. Hawkinson Company was not a proper use judgment plaintiff. We see no distinction to be made in the circumstances shown by the face of the record as made in the instant case from those made in the trial under scrutiny in Major v. Lord, 357 S.W.2d 820 (Waco Civ. App., 1962, writ refused, n. r. e.). A similar contention was resolved against Sam I. Major in that opinion. The point is overruled.

The remaining points of error require additional factual statements. The naming of American Petroleum Exchange, Inc. as a defendant was in part predicated upon allegations that certain property which stood in its name (in Tarrant County) had been transferred to it by Sam I. Major by deeds which were not recorded until November, 1961. The time subsequent to the date of the record of the abstract of judgment. The factual allegations were proved in evidence, and findings of fact made in the judgment of the court to such effect. Hence there would be no question, in view of our determination made on points of error heretofore discussed, but that the lien of Lord and the Hawkinson Company, as the use plaintiff, was properly foreclosed thereon. We do not know judicially, however, that the amount to be realized from the sale thereof will be sufficient to pay off the judgment indebtedness.

Furthermore, the naming of said corporation as a defendant was also predicated upon allegations that it was Major’s alter ego. There were four lots in Parker County, Texas which were transferred from Sam I. Major to American Petroleum Exchange, Inc. by deeds recorded in Parker County in November, 1961. By its judgment the trial court, under allegations of the plaintiff’s petition and based upon evidence deemed sufficient, held that “Sam I. Major and American Petroleum Exchange, Inc. were one and the same”, and furthermore declared that “any other property” of American Petroleum Exchange is subject to execution to satisfy the judgment originally rendered in favor of Lord against Major.

Complaint of the foregoing is made the subject of two points of error. We have examined the evidence in the case, from which it is apparent that Major owned the great majority of the stock in the corporation, and as trustee for his daughter held nearly all the remainder. There were a very few shares in two or three other individuals. At all material times, and up to the time of the trial below, Major (as practically the sole owner) treated the corporation as his alter ego. The corporation did not exist except as the shadow of his personality. The state of the record is such as entitled the trial court, as a matter of law, to disregard the corporate fiction and to declare the liability of both Major and/or the American Petroleum Exchange, Inc. according to the actual facts. See text and authorities annotated in 14 Tex.Jur.2d, p. 128, et seq., “Corporations”, “C. Entity Concept”; § 12, “When fiction disregarded”, and § 13, “ — Alter ego doctrine”. The points of error are overruled.

We have left to the last a point of error under which complaint is made because of the holding in the judgment that after expiration of the term for which the American Petroleum Exchange, Inc. was licensed to do business in Texas it could not acquire property in this state. The ap-pellees do not answer the argument presented in behalf of the point of error. While we believe appellants to be correct in the contention made we do not consider that to sustain the same would avail anything beneficial to them applicable to the instant litigation. We therefore overrule the point as immaterial.

Judgment is affirmed.


author: CHAPMAN, Justice.

text:
    TENNECO OIL COMPANY, Appellant, v. J. R. ROLLANS, Appellee.
    No. 7546.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 13, 1965.
    Rehearing Denied Jan. 17, 1966.

      Nelson, Montgomery & Robertson, Wichita Falls, J. D. Moon, Midland, for appellant.
    L. G. Owens, Greenville, for appellee.
   CHAPMAN, Justice.

The original petition instituting the cause of action that resulted in the judgment appealed from herein was filed on September 17, 1963, by J. R. Rollans, appellee, against Tenneco Oil Company for saltwater damages to land caused by flooding operations of appellant, Tenneco Oil Company. The Fourth Amended Petition upon which appellee went to trial alleged that the overflow of appellant’s salt water emergency pits, surface pipes and broken water lines carrying salt water escaped into Turkey Creek running through appellee’s farm and grazing land, causing damages to the creek bottom, banks, and soil immediately adjacent thereto.

The case was submitted to a jury on issues confining the damage recovery period within two years immediately prior to the filing of the original petition and on the theory of the difference in the value of the entire tract of 543 acres on September 17, 1961, and the corresponding date two years later. The jury rendered a verdict of $9,774.00 difference in the value of the whole tract of land on that date and $210.00 for the death of a cow from drinking the water in the creek. Judgment was awarded appellee for $9,984.00, from whieh appeal is properly perfected to our court upon eighteen points of error. The first three points raise the two-year limitation statute, which was properly pleaded, raised in the trial court, and preserved on appeal.

A special issue was requested inquiring if any amount of salt water flooded from the Tenneco Oil Company lease upon ap-pellee’s land prior to September 17, 1961, through Turkey Creek or any of its branches, and a conditional issue as to whether such salt water damaged appellee’s land. (Emphasis added). The trial court refused each issue with the following qualification:

“The above requested issue of the defendant was refused by the Court for the reason that both parties in open Court agreed that the matters inquired about therein were undisputed and that the undisputed facts would only justify an answer of yes to such issue.”

In arguing the limitation question by brief appellant cites several names and the record pages where it contends there are many witnesses who testified to salt-water damages to appellee’s land prior to September 17, 1961. The brief then states: “The specific testimony of the witnesses is not here set out in view of the admissions hereinafter set out which were made by the parties at the conclusion of the testimony.” We have searched -the record carefully and are unable to find such admissions. We would expect them to be included in the statement of facts. Since they are not, we have also searched the transcript and exhibits but have been unable to find them. Neither brief makes record reference as to where such admissions allegedly made by the parties may be found. We would assume the court’s qualifications made to the requested issues are based upon the admissions referred to, but since they are not in the record we do not feel bound by the qualifications in view of appellee’s testimony hereinafter quoted from his re-direct examination.

However, there is probative evidence which raises the question of an invasion of appellee’s land through Turkey Creek of salt water from the Tenneco Oil Company leases and consequent damages thereto prior to September 17, 1961, more than two years before the suit was filed.

Garland Ray, one of appellee’s own witnesses, testified in effect that in May of 1961 the Tenneco Oil Company lease was being water flooded, that “there was plenty of evidence of leaks all over the whole place;” that it looked like they had been there before and that it showed salt water had been running down the creek in ap-pellee’s pasture.

Another witness for appellee, M. T. Baker, testified:

“Q. Did you ever see any water escaping from the lease during that time?
A. Yes, I have.
Q. Now, I will ask you to explain to the jury what you mean, how it escaped?
A. Well, they had lines running to the injection wells, and the water was going through the lines at high pressure, and the lines would create a leak and the water would escape.
Q. Have you seen it escape?
A. Yes, sir, many times.
ifc S)í ijí
O. Now, what went with that water that you saw escaping there?
A. It had a tendency to go down Turkey Creek.
;¡c ;j« sfc if? ‡
Q. Now, after the salt water reached Turkey Creek there at that bridge, where did it go down Turkey Creek ?
A. It went south until the creek made a bend, and turned east and went across the Rollans farm.
Q. Well, to get on before 1961, I believe you answered this question, though, was there any apparent salt-water damage on Mr. Rollan’s farm?
A. Only slight damage.”

In its First Amended Original Answer appellant pleaded the two-year statute of limitations and then in a trial amendment specially pleaded that the salt water from Tenneco Oil Company’s leases flooded onto or invaded appellee’s land, and a portion of it, if damaged, was damaged prior to September 17, 1961.

However, appellee was called back to the witness stand on re-direct examination and testified that the first time there were “any signs of new salt water that I know was salt-water damage, was approximately the first of January, 1962.” We believe a fair interpretation of the record would indicate that in the quote just made he was there talking about damage from the Tenneco Oil Company leases because there is probative evidence that much of the area from which water drained into Turkey Creek was salt infested and that water with salt content had been flowing into Turkey Creek since 1942 from land not involved in the Tenneco leases.

Our Supreme Court in quoting with approval from a textual statement has held:

‘Where there is a direct invasion of one’s property of a permanent character, and the original invasion and its continuance are necessarily injurious, the damage is original, and may be at once fully compensated * * *. In such case the statute begins to run from the date of the invasion * * ” Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336.

The' court in the case just quoted from also held:

“ ‘if; * * *, the act of which the injury was the natural sequence was a legal injury, — by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff’s right, — then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damages resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar.’ ” (Emphasis theirs).

We believe it is clear that this is a type act that comes within Section 1 of Article 5526, Vernon’s Ann.Tex.Civ.St., wherein it provides:

“There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
1. Actions. of trespass for injury done to the estate or the property of another.”

However, because of the above quoted testimony given by appellee on redirect examination, we believe the testimony is sufficiently conflicting as to preclude our holding as a matter of law. that the limitation plea should have been sustained. We believe the jury also had the right under this record to pass on the accuracy and reliability of the testimony of the party at interest, appellee.

It has been textually stated that:

“Where * * * the defense in limitation is raised by plea, and evidence on the issue is introduced, the question as to whether the cause of action is barred is ordinarily one of fact for the jury.” Vol. 37 T.J.2d, Sec. 208, Page 400 (Emphasis ours).

This rule would certainly be applicable, we believe, where the accuracy and reliability of the testimony of a witness is under consideration. Thompson Bros. Lumber Co. v. Longini, Tex.Civ.App., 151 S.W. 888, right-hand column, Page 890 (writ refused), and where the evidence is conflicting. Bailey v. Trammell, 27 Tex. 317, 328.

There are other serious questions raised by appellant but we believe it unnecessary to discuss them, in view of what we have said on the limitation question.

Accordingly, the judgment of the trial court is reversed and remanded for a new trial.


author: PER CURIAM.

text:
    Charlie NICKEL et al., Appellants, v. B. R. ANDERSON et al., Appellees.
    No. 217.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 3, 1966.

      Wm. H. Hamblen, Edna, for appellants.
    A. T. Leveridge, Jr.,* East Bernard, for appellees.

       This ease was never submitted to the Court on the merits nor was Oral Argument had.

   PER CURIAM.

Appellees have filed their motion to dismiss this appeal for want of jurisdiction. Plaintiffs, the appellants herein, filed a trespass to try title suit. Judgment for the defendants was rendered on September 1, 1965, by the trial court without the intervention of a jury. The procedural facts disclose that the transcript was not timely filed, and that this Court must dismiss the appeal for lack of jurisdiction. The times essential for the determination of this jurisdictional question are hereinafter set forth.

When a case is tried before the court without a jury, an appeal may be taken without the filing of a motion for new trial; however, by virtue of Rule 323 a motion for new trial may be filed in a nonjury case. When a motion for new trial is filed, Rule 386, Texas Rules of Civil Procedure, provides that the time for appeal begins to run when the motion is overruled. Park v. Essa Texas Corporation, 158 Tex. 269, 311 S.W.2d 228 (Sup.Ct.1958).

Plaintiff’s motion for new trial was timely filed on September 10, 1965. Rule 329b, T.R.C.P. No amended motion was filed, nor was there any agreement between the parties or their attorneys to extend the time for a determination of the motion. The motion was not presented to the trial judge within thirty days as provided^for by this Rule.

Rule 329b, Subsection 3, T.R.C.P., provides: “All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, * ijc * if

Because of these facts, and computing the time from the filing of the motion, i. e., September 10, 1965, the motion for new trial was overruled by operation of law, 45 days after it was filed, on the 25th day of October, 1965. However, on November 4, 1965, the trial court entered an order overruling the motion for new trial. Since the motion for new trial had already been overruled by operation of law at the expiration of 45 days (October 25, 1965), the order made by the trial judge on November 4, 1965, purporting to overrule appellants’ motion for new trial, was therefore a nullity. Burkham v. Ward, Tex.Civ.App. 1960, 336 S.W.2d 452; Lucchese v. Specia, Tex.Civ.App., 281 S.W.2d 725, writ ref. See Angelina County v. McFarland, 374 S.W.2d 417 (Sup.Ct.1964).

Appellants’ time for filing their transcript and statement of facts with the clerk of this court commenced with the overruling of the motion for new trial (by operation of law on the 25th day of October, 1965). As provided for in Rule 386, T.R.C.P., the appellants’ record was due to be filed in this court within sixty days from the rendition of the final judgment or order overruling the motion for new trial. Rainey v. Isenberg, Tex.Civ.App. 1961, 349 S.W.2d 733. The sixtieth day, the last day for the filing of the record in this court was December 24, 1965. The transcript was tendered and received by the clerk of this court on January 3, 1966.

Appellants did not file a motion for enlargement of time within which to file the record here under the provisions of Rule 386, T.R.C.P. The last day that such a motion could be filed was January 8, 1966.

The timely filing of the transcript in accordance with Rule 386, T.R.C.P. is mandatory. This Court has no jurisdiction of this cause other than to dismiss it because the record was not timely filed. Angelina County v. McFarland, supra; Consolidated Casualty Company v. Wade, Tex. Civ.App., 373 S.W.2d 841, writ dism., w. o. j.; Stanley v. Stanley, Tex.Civ.App., 398 S.W.2d 384; Magic Valley Produce Co. v. Baldridge, Tex.Civ.App., 393 S.W.2d 418; Edwards v. Hughes, Tex.Civ.App., 377 S.W.2d 235; 4 Tex.Jur.2d, §§ 553-554, pp. 77-78.

Appellees’ motion granted, appeal dismissed.


text:
    L. B. BOURQUE et al., Appellants, v. James TOWERS et ux., Appellees.
    No. 6802.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 27, 1966.
    Rehearing Denied Feb. 16, 1966.

      King, Sharfstein & Rienstra, Beaumont, Carl Vaughan, Port Arthur, for appellants.
    Sadler & Sadler, Port Arthur, for appel-lees.
   STEPHENSON, Justice.

This is an action and a cross-action for damages arising out of an automobile collision at the intersection of Thomas and Woodworth in the City of Port Arthur. Trial was by jury and judgment was rendered for plaintiffs and against cross-plaintiffs based upon the jury’s answers to the special issues. The parties will be referred to here as they were in the trial court.

Plaintiff, James Towers, was driving one of the vehicles in an easterly direction on Thomas Boulevard, with his wife by his side as a passenger. Defendants were L. B. Bourque, the owner of the second vehicle involved in this collision, and his daughter, Beverly Ann Bourque, the driver of such second vehicle. Defendant Beverly Ann Bourque was driving in a southerly direction on Woodworth. The jury found: That Beverly Ann Bourque entered the intersection when the light was red, which was negligence and a proximate cause of the collision. That Beverly Ann Bourque failed to keep a proper lookout, failed to have her automobile under proper control and was driving at a greater speed than a person of ordinary prudence would drive in the exercise of ordinary care under the same or similar circumstances and that each of these acts was a proximate cause of the collision. The jury also found that plaintiff James Towers did not fail to keep a proper lookout, and did not enter the intersection when such movement could not be made in safety.

Defendants’ only points of error are in reference to the failure of the trial court to submit a series of issues which asked whether the vehicle driven by plaintiff James Towers was in a stopped position, whether James Towers failed to remain in a stopped position until the vehicle driven by defendant Beverly Ann Bourque had cleared the intersection, whether such failure was negligence and a proximate cause of the collision. Of the four issues in this series, each of the second, third and fourth was conditioned upon an affirmative answer to the preceding issue.

Rule 279, Texas Rules of Civil Procedure, required the trial court to submit the controlling issues raised by the pleadings and the evidence, but did not require such court to submit other issues of various phases or different shades. This jury found defendant Beverly Ann Bourque entered this intersection when the light was red. All of the evidence shows plaintiff James Towers stopped his car while the light was red and proceeded into the intersection when the light changed to green from his standpoint. The jury found that plaintiff James Towers did not fail to keep a proper lookout and did not enter the intersection when such movement could not be made with safety. This was a fair submission of the controlling issues raised by the pleading and evidence and it was not error for the trial court to refuse to submit the series of issues made the basis of these points of error. McCall v. Williams, Tex.Civ.App., 311 S.W.2d 743.

The uncontroverted evidence shows that plaintiff James Towers was in a stopped position, and that he did not remain in a stopped position until defendant, Beverly Ann Bourque, had cleared the intersection, and it could not have been error to refuse to submit these issues. Under Rule 272, T.R.C.P., the trial court was required to submit only controverted issues. Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517. The last two issues were conditioned upon the jury answering the first two issues, and under these circumstances it could not be error to refuse to submit these conditional issues. Gulf, C. & S. F. Ry. Co. v. Jones, Tex.Civ.App., 221 S.W.2d 1010.

The plaintiff, James Towers, having the right-of-way by reason of this being an intersection controlled by signal lights, and having kept a proper lookout, and having entered the intersection when the movement could be made in safety, was under no duty to stay in a stopped position until the other automobile cleared the intersection. The points are overruled.

Judgment affirmed.


author: HOWARD, Judge.

text:
    STATE ex rel. MID-AMERICA PIPELINE COMPANY, a Corporation, Relator, v. James S. ROONEY, Judge of Division Number One of the Circuit Court of Clay County, Missouri, Respondent.
    No. 24303.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 7, 1966.

      Robert E. Coleberd, Hale, Coleberd, Kin-caid & Waters, Liberty, for relator.
    Sevier & Turnage, by Robert Sevier, Liberty, for respondent.
   HOWARD, Judge.

This is a proceeding on an original petition for writ of prohibition filed in this court. A suit was filed in the Circuit Court of Clay County, Missouri, by Wade Shanks, as plaintiff, against Mid-America Pipeline Company, a corporation, as defendant, seeking damages for injuries to plaintiff’s land and property occasioned by the construction of a pipeline by defendant across plaintiff’s land. The relator, defendant below, had theretofore condemned a right-of-way for such pipeline across plaintiff’s land, and in such condemnation proceedings, it was recited that relator covenanted “to pay seperately to (plaintiff below) present or future damages, if any, caused to crops, fences, grasses, surface of land or other property belonging to (plaintiff below), if such damage result from the construction, operation or maintenance of said pipelines.”

In the suit below the plaintiff Wade Shanks served upon relator, defendant below, 21 interrogatories, some of which contained sub-divisions, consisting of a total of 39 questions, calling for answers giving detailed information as to the time, place and manner of entering upon plaintiff’s property, excavating and constructing the pipeline, and the nature and description of equipment used in such construction. Relator filed its answer under oath to all the interrogatories, as follows:

“That defendant employed the Williams Brothers Company, a corporation, as an independent contractor to construct the pipe line across plaintiff’s farm; that as such, said Williams Brothers Company constructed said pipe line using its own equipment and crew; that this defendant did not have any part nor did it supervise or direct the construction of said pipe line across plaintiff’s farm, and does not have any information or knowledge in regard to said construction of said pipe line which would enable it to answer plaintiff’s interrogatories heretofore submitted.”

Thereafter, plaintiff filed a “Motion to Compel Answers to Interrogatories” claiming that the above quoted answer was inadequate and amounted to no answer at all. Such motion to compel answer was sustained by the trial court, and relator here is seeking our writ of prohibition to prohibit enforcement of such order. Relator contends that the order requiring further answers to the interrogatories is in excess of the trial court’s jurisdiction because (1) the interrogatories call for information not available to the corporate relator, but which is within the knowledge of the contractor who constructed the pipeline under contract with relator, and who is not an agent of relator; (2) that relator has no means of obtaining answers to the interrogatories, and (3) that if the relator is compelled to answer such interrogatories, such answers would constitute hearsay and relator should not be required to give an answer, under oath, based on hearsay.

Thus we have a situation where the interrogated party has answered under oath that the work about which the interrogatories inquired was performed by another corporation under contract and not by the party to the litigation. The corporate party to the litigation has answered under oath that it “does not have any information or knowledge in regard to said construction”. The question for our determination is whether or not the trial court is exceeding its jurisdiction in ordering, and attempting to enforce its order, that relator answer such interrogatories.

Civil Rule 56.01 V.A.M.R. provides that interrogatories to a corporate party shall be answered “by any officer or agent, who shall furnish such information as is available to the party” (emphasis supplied). We must therefore determine whether or not the information required to answer the interrogatories “is available” to the corporate relator within the meaning of this rule.

The truthfulness of the answer given by relator is not controverted by the pleadings in this case, and therefore we will assume that it is true. State ex rel. McCubbin v. McMillian, Mo.App., 349 S.W.2d 453. Respondent contends that corporate relator in the condemnation of its right-of-way in effect assumed a non-delegable duty to compensate plaintiff below for damages to his property, resulting from the construction of the pipeline along such right-of-way; that relator can not escape such liability by contracting with another for the construction of the pipeline and that, therefore, the Williams Brothers Company can not be an independent contractor, but must be an agent of and under the control of relator. Relator counters that Williams Brothers is, in fact, an independent contractor and not an agent and not under the control of relator. We do not believe that the issue thus presented, and the arguments in support thereof, are determinative of this action, and, therefore, we will make no attempt to determine which brand should be placed on the Williams Company. We are not now dealing with a question of relator’s liability for any damage that may have been done or with an attempt by relator to avoid such liability. Our only concern is with a question as to the proper scope of discovery and this issue must be determined by the fact situation presented and not by the label stamped upon the Williams Company.

The parties have not cited, and independent research by the writer has not revealed, any Missouri case which would govern the determination of the question here presented. In this situation and since our present rules of discovery, and particularly Civil Rule 56.01 relating to interrogatories, are based upon and taken from the Federal Rules of Civil Procedure, decisions by the federal courts construing their rules may be persuasive even though not controlling. It should be noted that the applicable provisions of our Civil Rule 56.01 are identical with Federal Rule 33.

No federal case has been found which would conclusively rule the point in question, but we do believe that the principles enunciated in the cases hereinafter discussed lead to the correct conclusion. In the case of Galanos v. United States, D. C., 27 F.Supp. 298, cited by relator, the suit was against the government on a policy of G.I. insurance. It actually involved a request for the production of documents rather than answers to interrogatories. The court held that the government must produce records of certain VA hospitals concerning the plaintiff, but that since the government did not control private corporations which had employed the plaintiff, from time to time, during the period in question, it could not be required to produce the employment records of such private corporate employers. It appeared that the government did in fact have either copies of such records, or information contained in such records, but the court did not require the government to supply such information.

In Riley v. United Air Lines, Inc., 32 F.R.D. 230, (D.C.1962), the suit was for damages for the death of a passenger, and the Air Line Company had answered interrogatories by stating that it had “no knowledge” of the facts inquired about because the crew of the plane had died in the crash. In considering a motion to require additional or further answers to interrogatories the court said: “These answers make it reasonably clear that by ‘knowledge’ defendant refers to direct personal knowledge of living employees, and that defendant intends to exclude information which it has obtained from third persons.” The court pointed out that in answering interrogatories the party is required to give any information that it has regardless of whether such information comes from the personal knowledge of its officers, agents or employees, or whether such information has been secured by it as the result of investigation, or otherwise, from third parties. The court said: “In this situation, defendant should furnish whatever information it now has, regardless of when or from whom it acquired it. * * * If no one under defendant’s control now has any information from any source as to a particular interrogatory, defendant may so state under oath, and such a statement shall be a sufficient answer.”

In Greenbie v. Noble, D.C., 18 F.R.D. 414, the interrogatories sought information from the records of a subsidiary corporation of Sears Roebuck & Company. The court said: “Hence, all that remains is the factual question of whether or not Sears can obtain the information from sources under its control. If it cannot furnish the information sought, Sears should so state under oath.” In Hornung v. Eastern Auto. Forwarding Co., D.C., 11 F.R.D. 300, the court said: “A corporation cannot avoid answer by an allegation of ignorance, if it can obtain the information from sources under its control, although it may qualify its answers to show its source in order to avoid admission of something which it does not admit.”

In Stanzler v. Loew’s Theatre & Realty Corporation, D.C., 19 F.R.D. 286, the court said: “[A] party is entitled to compel his adversary to make a full disclosure of all facts which the latter has learned which are relevant to the subject matter of the pending action and are unprivileged.” However, with regard to interrogatories concerning actions by “any subsidiary or affiliated corporation” the court held that the corporate party could not be compelled to undertake an investigation into the internal affairs of any other corporation. The same result was reached in Savannah Theatre Company v. Lucas & Jenkins, D.C., 10 F.R.D. 461.

From these federal cases it would appear that if the corporate relator does, in fact, have any information (regardless of the source of the information) it must supply the same in answer to interrogatories calling therefor. However, the corporation can not be required to make investigation and secure information from sources not under its control. The courts also point out that if the information supplied in answer to interrogatories is based on hearsay the corporation can qualify its answer by specifying the source so as to avoid admitting something that it does not, in fact, admit.

Thus it would appear in the present case that relator would be required to answer the interrogatories propounded, by giving all information that it might have secured from whatever source concerning the activities inquired about in the construction of the pipeline. However, the answer to the interrogatories, under oath, states that the relator “does not have any information or knowledge in regard to said construction”. By use of the words “information or knowledge” it would appear that this answer meant not only that the officers, agents and employees of the corporation had no personal knowledge (this because the work was done by Williams Brothers and not by relator) but also that the corporation (its officers, agents or employees) had not, in any way, secured any information from Williams Brothers or its officers, agents or employees as to the facts surrounding the construction of the pipeline, which would be relevant in answering the interrogatories.

If this is a reasonable construction of the answer filed by relator, and we believe that it is, then the trial court has exceeded its jurisdiction in requiring further answer to the interrogatories and in threatening to enforce such order, because Williams Brothers is not a party to the litigation below and from relator’s answer to the interrogatories, which is not contradicted, it appears that the information necessary to answer the interrogatories is not available to relator. Relator could only make further answers to the interrogatories by interviewing the officers and employees of Williams Brothers or by making an investigation into their books and records. The court can not properly require a party to conduct such an investigation and any attempt to do so is in excess of the jurisdiction of such court.

It should be noted that relator’s contention that it is entitled to our writ of prohibition because its answers to the interrogatories would be based on hearsay is not tenable. As noted above, in such situation the answer can include the source from which the information is acquired and thus avoid any binding admission. The older Missouri cases, denying a right to discover where answers would be based on hearsay, are not in point because they were decided under a provision limiting discoverable information to that which would be admissible in evidence. Under our present rules, discovery can properly be had of information “reasonably calculated to lead to the discovery of admissible evidence.”

Respondent asserts that since the trial court has already issued its order there is nothing upon which our writ of prohibition can act, and, therefore, the writ should not issue. This does not follow because, although the order has issued, it appears that answers have not been made and our writ may properly go to the enforcement of such order. Where the action of the court below is not complete and something remains to be done to effectuate the order of the trial court, the writ will lie to prohibit the doing of that which remains to be performed. See State ex rel. Ellis v. Creech, 364 Mo. 92, 259 S.W.2d 372 and State ex rel. Siegel v. Strother, 365 Mo. 861, 289 S.W.2d 73. Further it has long and often been held that prohibition is the proper remedy where the trial court has improperly required discovery to be made. Among the many cases on such point, see: State ex rel. Williams v. Buzard, 354 Mo. 719, 190 S.W.2d 907; State ex rel. Kansas City Public Service Co. v. Cowan, 356 Mo. 674, 203 S.W.2d 407; State ex rel. Terminal R. Assn. of St. Louis v. Flynn, 363 Mo. 1065, 257 S.W.2d 69; State ex rel. Headrick v. Bailey, 365 Mo. 160, 278 S.W.2d 737.

It is also strongly contended by respondent that the matter of requiring further answers to interrogatories rests within the discretion of the trial court and prohibition will not lie to control such discretion. Since Civil Rule 56.01 requires that a corporate party answer interrogatories only where the information necessary for such answer is “available” to such party and since we have found that in this instance the information necessary to answer the interrogatories is not “available” to relator, it follows that the matter is not within the discretion of the trial court and that the order requiring answer is in excess of the trial court’s jurisdiction.

It appears that through inadvertence Wade Shanks, plaintiff below, and the party to be affected by our writ, has been named as a party respondent in this proceeding. This is in error. State ex rel. Carney v. Higgins, Mo., 352 S.W.2d 35, 100 A.L.R.2d 687, and State ex rel. Book v. Goodman, 364 Mo. 485, 263 S.W. 2d 409. Therefore, as to Wade Shanks our preliminary writ is discharged and his name is stricken from the caption of the case.

For the reasons expressed in the foregoing opinion, as to respondent James S. Rooney, Judge of Division Number One of the Circuit Court of Clay County, Missouri, our preliminary writ of prohibition heretofore issued is made absolute.

CROSS, P. J., and FRANK W. HAYES, Special Judge, concur.

BLAIR, J., not participating.


author: CLEMENS, Commissioner.

text:
    Joseph J. SCHULTZ and Ruby Mae Schultz, Plaintiffs-Respondents, v. QUEEN INSURANCE COMPANY and American Central Insurance Company, Defendants-Appellants.
    No. 31637.
    St. Louis Court of Appeals. Missouri.
    Dec. 21, 1965.
    Rehearing Denied Jan. 19, 1966.
    Application to Transfer Denied March 14, 1966.

      Jerome M. McLaughlin, of Willson, Cunningham & McClellan, St. Louis, for appellants.
    W. W. Sleater, III, St. Louis, for respondents.
   CLEMENS, Commissioner.

This is an appeal from a $3,525 judgment for plaintiffs on two fire and windstorm insurance policies. The case now presents only the appeal of the defendants-insurers. (Initially, the plaintiffs appealed from the trial court’s denial of their claim for penalties for vexatious delay, but we dismissed that appeal, No. 31,636, for plaintiffs’ failure to file a brief. Civil Rules 83.06 and 83.09, V.A.M.R.)

The issues raised here concern plaintiffs’ failure to make a formal proof of loss, their duty to comply with conditions of the policy as to inspection and appraisal, and the propriety of plaintiffs’ verdict-directing and damage instructions.

The plaintiffs are husband and wife and own the damaged realty by the entirety. Each defendant issued a $3,000 fire insurance policy with extended coverage, including damage by windstorm. Plaintiffs pleaded $3,011.25 windstorm damage to the property, compliance with the policy provisions, and defendants’ refusal to pay. The defendants’ answer admitted only that the policies had been in effect, denied all other allegations, and pleaded failure to comply with conditions of the policy. At the close of plaintiffs’ evidence, the defendants moved for a directed verdict; and that being denied, they declined to offer evidence. Verdict and judgment were against each defendant for $1,500 principal and $262.50 interest.

The issues raised require us to consider the evidence favorably to the plaintiffs. Mrazek v. Terminal R. R. Assn. of St. Louis, 341 Mo. 1054, 111 S.W.2d 26 [1]; Quigley v. St. Louis Public Service Co., Mo., 201 S.W.2d 169[1]; 3 Mo.Dig. Appeal and Error (Hereafter we will refer to plaintiff Joseph J. Schultz as plaintiff, in the singular.) Plaintiffs owned an old two-story brick dwelling, divided into one first-floor and two second-floor apartments. Only the former was occupied. On the night of February 9-10, 1959, a heavy windstorm struck the neighborhood. Later that morning, plaintiff, who was in the business of repairing, inspecting and appraising buildings, sent an employee, Joe Page, to inspect the building. Page did so and found that two windows had been blown inward and some roofing had been torn. Plaintiff estimated the damage at $171.42, and promptly prepared two detailed estimates and mailed them to the defendants. Then, on either the 11th, 12th or 13th of February, plaintiff himself inspected the dwelling and discovered the damage was more extensive than Page had reported. He found that the front wall was cracked and buckled and had pulled loose from both the roof and the first-floor ceiling joists. Plaintiff feared a collapse of the roof and upper floor, and immediately began installing upright 4" by 4" braces on each floor of the house. Apparently, only the weight of the roof had been holding the damaged brick wall in place, for as plaintiff completed the bracing operation the wall fell outward. The next day, plaintiff obtained repair estimates from two other builders: one was for $2,546 for only part of the work, the other was for $3,140.-65 for all the work. Plaintiff sent these bids to the defendants on February 15, 1959. For reasons not explained, plaintiff then proceeded to do the repair work himself, using some four or five of his own regular employees. On February 18, the defendants’ adjuster, a Mr. Maxton, came to the building while plaintiff was proceeding with the repairs. Plaintiff explained the damage to Mr. Maxton, who said nothing about money except that he wasn’t going to pay the amount he was asking or “anything like that.” Then on February 20, plaintiff wrote both defendant companies, complaining of their failure to adjust the loss. Mr. Maxton again inspected the building on March 5, a short time before plaintiff had completed the repairs. Subsequently, at an undisclosed time, plaintiff had a telephone conversation with Mr. Maxton in which the amount of damage “was disputed.”

Plaintiff further testified that the reasonable cost of the repair was $600 for materials, $2,200 to $2,400 for hired labor, and $300 as the “customary charge for overhead profits.” He also testified that the “before and after” values of the property were $7,000 and $1,800, respectively.

At the close of plaintiffs’ case, the defendants moved unsuccessfully for a directed verdict, and offered no evidence. Verdict, judgment and appeal duly followed.

Defendants now vigorously maintain they were entitled to a directed verdict for two reasons. Their principal attack is aimed at the plaintiffs’ admitted failure to file a proof of loss. The policies contain the standard requirements that the insureds give immediate written notice; that they protect the property from further damage; and “within sixty days * * * render to the company a proof of loss signed and sworn to by the insured, stating [details as to time, ownership, value, amount of loss, incumbrances, purpose of occupancy, etc.].” The policies further provided that no action shall be sustainable in any court unless all of the requirements thereof have been complied with.

In support of this ground for a directed verdict, the defendants cite three pertinent cases. In Sims v. State Ins. Co. of Hannibal (1870), 47 Mo. 54, by dictum the court said that where the policy so provides, the filing of a proof of loss “is a condition precedent to recovery.” However, the justi-ciable issue in that case was the authority of the insured’s agent to execute the proof of loss. In Leigh v. Springfield Fire & Marine Ins. Co. (1889), 37 Mo.App. 542, this court adhered to the dictum of the Sims case, supra, and held that the insurer had not waived the proof of loss. However, the case was not reversed outright, but was reversed and remanded. The defendants find stronger support in Burnham v. Royal Ins. Co. (1898), 75 Mo.App. 394. There, the insured neither gave immediate notice nor filed a proof of loss; and the court ruled that these were conditions precedent to recovery and affirmed the trial court’s action in directing a verdict for the insurer.

A departure from such a harsh result first appeared in the landmark case of Dezell v. Fidelity & Casualty Co. (1903), 176 Mo. 253, 75 S.W. 1102(4). There, the Supreme Court, at 75 S.W. 1. c. 1119, made a distinction between insurance policies providing that notice and proof of loss were conditions precedent and those declaring that failure to comply constituted a forfeiture. The court said: “ * * * Where no forfeiture is prescribed in the contract, the court should have regard to the consequence that results from the failure to give the notice as shown by the facts in the case, and, if it appears that the purpose for which the notice and proofs were required has really been accomplished, the plaintiffs should not be precluded. * * * ” The distinction was next recognized in James v. United States Casualty Co. (1905), 113 Mo. App. 622, 88 S.W. 125[5], which held that the phrase in a policy saying “that a claim should not be valid” unless conditions were complied with, did not mean “that the policy would be forfeited for want of notice.”

The departure from the old rule had become more marked by 1926. In the case of Malo v. Niagara Fire Ins. Co. of New York, Mo.App., 282 S.W. 78[1], the insured gave no written notice and filed no proof of loss, both required by the policy as a precedent to recovery at law. The court held such a condition precedent was not a forfeiture clause and, hence, did not bar recovery.

Then, in 1934, the present issue was squarely before this court in the case of Walker v. American Automobile Ins. Co., Mo.App., 70 S.W.2d 82 [1], We followed the Dezell and Malo cases, supra, and ruled that the insurer’s defense of lack of notice was conditioned upon its showing prejudice and damages, saying at 1. c. 89:

“ * * * The provision that the insurance is subject to the agreement to give notice falls far short of giving a right to defeat the insurance for failure to perform the agreement within the time specified for its performance, •without any shozoing of prejudice to the insurer thereby. The provision means that the insurance is subject to the agreement construed as it ought to be construed, that is, with a proper regard for the consequences of its breach. [Citing cases.]” (Our emphasis.)

In St. Paul & Kansas City S. L. R. Co. v. United States Fidelity & Guaranty Co., 231 Mo.App. 613, 105 S.W.2d 14 [16], the court said: “Moreover, there was no proof of actual prejudice. Prejudice is not to be presumed from mere delay in giving notice. The prejudice must be actual and must be shown to be actual. * * * ”

For later cases applying these principles, see Schaeffer v. Northern Assur. Co., Mo. App., 179 S.W.2d 923 [7]; Dixon v. United States Fidelity & Guaranty Co., Mo.App., 155 S.W.2d 313 [1]; and Western Casualty & Surety Co. v. Coleman, 186 F.2d 40 [1], where Missouri cases were reviewed by the United States Court of Appeals, Eighth Circuit, and the trial court was sustained in its conclusions: “ * * * (1) that, under Missouri law, the failure of an insured to give notice of an accident does not defeat recovery on the policy unless it expressly provides for a forfeiture; (2) that, in order to sustain the defense of delayed notice, an insurer must allege and prove that prejudice resulted from the delay; * *

Back to the evidence in this case, we see that the plaintiffs promptly, and in detail, notified both defendants of the damage initially discovered. Plaintiffs then began shoring up the dwelling, in accordance with the policy provision requiring them to protect the building from further damage, and they gave defendants written bids for repair of the newly discovered damage; whereupon defendants’ adjuster examined the building but declined payment of plaintiffs’ demand. Plaintiff then wrote defendants demanding payment. All this occurred during the sixty-day period for filing proof of loss. Plaintiffs’ loss and damage was an open book to the defendants; they did not ask plaintiffs for further information or a formal proof of loss. (This would have been required if this had been a fire loss. Section 379.185 RSMo 1959, V.A.M.S.) Defendants first raised this point in general terms in their answer, and then in their motion for a directed verdict. We need not decide whether defendants waived their right to insist upon the proof of loss, but pertinent cases are listed below. Instead, we rule the issue as one of claimed forfeiture, for that would be the effect of granting defendants’ motion for a directed verdict and of the judgment which would have followed.

The policies here contained no forfeiture clause, and there was neither pleading nor proof that defendants were prejudiced by plaintiffs’ failure to file a formal proof of loss. The cases discussed above require us to uphold the trial court in denying defendants’ motion for a directed verdict on this ground.

The defendants make a second claim of error in the denial of their motion for a directed verdict. Still relying on the conditions precedent clause of the policies, they claim plaintiffs may not recover because they proceeded to repair the damaged premises without notifying the defendants; that defendants were therefore deprived of their rights (1) to inspect the damaged property to determine the cause of loss and extent of damage, and (2) to invoke the appraisal procedures available under the policies. Assuming, arguendo, that plaintiffs did repair the property without giving notice, we find no clear relationship between the claimed lack of notice and the claimed result.

We may logically infer that plaintiffs’ prompt repair of the dwelling did have some effect upon inspection and appraisal by the defendants, but the evidence does not show that plaintiffs’ conduct did in fact prevent defendants from inspecting the building or appraising the damage. Additionally, we hold that the principles of forfeiture and prejudice discussed above on the issue of plaintiffs’ failure to file a proof of loss are equally applicable to these asserted defenses of inspection and appraisal. The defendants did not prove that they were in any way prejudiced by the alleged lack of inspection and absence of appraisal. There being no applicable forfeiture provision in the policy, the trial court was also correct in denying defendants’ motion for a directed verdict on these asserted grounds.

Having ruled that plaintiffs were entitled to go to the jury, we now consider defendants’ complaints of plaintiffs’ instructions. Defendants level a three-pronged attack at Instruction No. 1, which directed a verdict for plaintiffs. So far as relevant to defendants’ attack, it required the jury to find that plaintiffs owned the insured property; that it was damaged by windstorm; that this was reported to the defendants; and that defendants failed to pay their share of the damage, if any.

Defendants first complain that this instruction failed to require the jury to find that plaintiffs filed a proof of loss. We have already ruled that this would be incumbent on plaintiffs only if defendants had proved they were prejudiced by plaintiffs’ failure. Having shown no prejudice, the defendants may not foist this burden onto the plaintiffs. Next, the defendants say the instruction did not require a finding that plaintiffs owned the property. It did so specifically. Lastly, defendants claim the instruction assumed damage to the property, but we note that every mention of damage was hedged in by the phrase “if any.” Each of the three complaints as to Instruction No. 1 is without merit.

Instruction No. 2 presented the issue of damages. The first paragraph says:

“The Court instructs the jury, that if you find in favor of the plaintiffs under Instruction No. 1, then you shall assess their damages at the difference between the market value of the property herein involved, immediately before and immediately after such damages, if any, are sustained, * *

Defendants complain that there was no evidence of the market value of the property. Apparently, their complaint concerns the omission of the adjective “market,” modifying the noun “value.” Plaintiff was qualified as an expert on real estate values, and then was asked his opinion as to the “value” of the property before and after the windstorm. He answered that the “price” was $6,950 to $7,000 before the storm, and that it was “worth” $1,800 afterward. Defendants neither objected to the questions, moved to strike the answers, nor challenged the testimony on cross-examination. Although the correct measure of damage should be based on “reasonable market value,” the quoted testimony, having come in without objection, was substantial evidence thereof. See Hildebrand v. Erickson, Mo. App., 242 S.W. 1014 [7]; and Thompson v. St. Louis-San Francisco R. Co., Mo.App., 268 S.W. 885 [2, 3]. In any event, this was not material error. Compare Black v. Highley, Mo.App., 382 S.W.2d 46 [3-5].

The last paragraph of the damage instruction was impliedly conditioned upon the jury’s finding that plaintiffs had been damaged, and told the jury: “And you shall further award to the plaintiffs interest on the said damages at the rate of 6% per annum from March 10, 1960 [the date suit was filed].” The jury itself, not the court, calculated the interest.

The defendants’ complaint is that the damage instruction directed the jury to award interest if plaintiffs were damaged, instead of only permitting it to do so. The objection assumes that an allowance of interest was permissible and, thus, raises only the question of whether a verdict for plaintiffs for the amount of their loss entitled them to interest thereon as a matter of right. Section 408.020 RSMo 1959, V:A. M.S., provides:

“Creditors shall be allowed to receive interest at the rate of six per cent per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand of payment is made; * ‡ ‡ ff

This statute applies to insurance policies generally (Brown, etc., v. Railway Passenger Assurance Co., 45 Mo. 221, 1. c. 227; Keeton v. National Union, Mo.App., 182 S.W. 798 [8]), and to property insurance in particular (Payne v. Bankers' & Shippers' Ins. Co. of New York, 229 Mo.App. 901, 77 S.W.2d 183[10]; Boenzle v. United States Fidelity & Guaranty Co., Mo.App., 258 S.W.2d 938 [9]). The very point defendants now raise was denied on the strength of this statute in the case of Bamberge v. Supreme Tribe of Ben Hur, 159 Mo.App. 102, 139 S.W. 235 [1, 2], where this court said at 1. c. 238:

“ * * * Nor can we sustain the second assignment of error, to the effect that the court had committed error in peremptorily directing the jury to find interest if they found for plaintiff. We do not understand the cases referred to by the counsel for appellant sustain the proposition. When interest is asked for in the petition or pleadings and the law allows it, there is no error in the court directing the jury to include in their judgment' the amount of the debt as well as interest. * * * ”

We rule that both of defendants’ objections to Instruction No. 2 are without merit.

In summary, we find that the trial court properly denied the defendants’ motion for a directed verdict, and that the given instructions were not subject to the defendants’ objections. These being the only points raised, the judgment should be affirmed.

PER CURIAM.

The foregoing opinion of CLEMENS, C., is .adopted as the opinion of this court.

Accordingly, judgment is affirmed.

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

      . Siegle v. Phoenix Ins. Co., 107 Mo. App. 456, 81 S.W. 637(1); Burgess v. Mercantile Town Mut. Ins. Co., 114 Mo. App. 169, 89 S.W. 568(1-3); Cullen v. Insurance Co. of North America, 126 Mo.App. 412, 104 S.W. 117(1-2); Loewenstein v. Queen Ins. Co., 227 Mo. 100, 127 S.W. 72(1-4); Campbell v. National Fire Ins. Co., Mo.App., 269 S.W. 645 [3-4]; Propst v. Capital Mut. Assn., 233 Mo.App. 612, 124 S.W.2d 515 [7-9]; Hughes v. Patriotic Ins. Co., Mo. App., 193 S.W.2d 958 [4-6].