author: TIREY, Justice.

text:
    ANGELINA CASUALTY COMPANY, Appellant, v. Tommie R. HOLT, Appellee.
    No. 3928.
    Court of Civil Appeals of Texas. Waco.
    Nov. 9, 1961.
    Rehearing Denied Nov. 30, 1961.

      Garrison, Renfrow, Zeleskey, Cornelius, ■& Rogers, Lufkin, for appellant.
    Fulmer, Fairchild & Badders, Nacog-doches, for appellee.
   TIREY, Justice.

This is a compensation case. The verdict of the jury was favorable to the employee. The judgment states in effect that upon the pleadings, the evidence and the stipulations of the parties and the verdict •of the jury that the employee is entitled to recover the sum of $3,605.17, which represents installments of compensation ac■crued and unpaid through September 16, 1960, with interest thereon to that time, and further found that plaintiff recover the sum of $125.00 each week beginning with the week ending September 23, 1960, for five consecutive weeks, and the sum of $69.47 for the 6th week, and further found that each installment shall bear interest at the rate of 4% per annum, compounded annually, from the dates of the respective amounts decreed become due and payable until they have been paid, and decreed accordingly. The judgment further provided that the sum of ¼⅛- awarded to the employee be paid to his attorneys. The judgment further vacated the award of the Industrial Accident Board of the State of Texas made on February 19, 1959, relating to the claim styled: Tommie R. Holt, employee, v. Brown & Root, Inc., employer, and Angelina Casualty Company, Insuror.

The judgment is assailed on 14 Points. Points 1 to 5 inclusive, are to the effect that the Court erred in rendering judgment for the employee because: (1 and 2) There is no evidence of probative force that plaintiff worked substantially the whole of the year preceding the alleged injury, and that the evidence is insufficient to support such facts; (3 and 4) That there is no evidence of probative effect to support the jury’s findings that another employee worked substantially the whole of the year preceding the alleged injuries, and the evidence is insufficient to support such findings; (5) That plaintiff failed to discharge his burden of proof and obtain findings from the jury that neither plaintiff nor another employee worked substantially the whole of the year preceding the alleged injuries; that plaintiff was not entitled to a recovery based upon the answer of the jury to Issue 18, as to air average weekly wage, which would be fair and just. We are in complete accord with the appellant’s contention that there is no evidence of probative force that plaintiff worked substantially the whole of the year preceding the alleged injury, and likewise, that there is no evidence of probative force to support the jury’s findings that another employee worked substantially the whole of the year preceding the alleged injuries, and it necessarily follows that the evidence is insufficient to sustain the jury’s findings in this behalf. The testimony is undisputed that plaintiff had worked as a welder for Brown & Root almost exclusively from 1951 until his injuries in October 1958; that his work carried him from place to place; that the pay scale ranged from $2.75 to $4.50 per hour, depending on the area that they were in; that they worked ordinarily 5 days per week, 9 hours per day at $2.75 per hour, with time and a half overtime hours over 40; that during the year immediately preceding his injuries plaintiff worked for no one except Brown & Root; that he worked around “190” days — not over 200 days, and made around $5,000.00 for his work during that year; that based on his investigation plaintiff knew of no other employee doing the same class of work who worked over 200 days out of the year — they worked no more than he did, not over 190 days. The foregoing is substantially all the pertinent evidence tendered on the wage rate issues, and all of it came from the plaintiff. Appellant offered no evidence contradicting the foregoing testimony and tendered no records contradicting the testimony of claimant. Plaintiff contends in Point 5 that since plaintiff failed to discharge his burden of proof and obtain findings from the jury, that neither plaintiff nor another employee worked substantially the whole of the year preceding the alleged injuries; that plaintiff was not entitled to a recovery based upon the answer of the jury to Issue 18 as to an áverage weekly wage which would be fair and just. We overrule Points 1 to 5, inclusive, for reasons which we shall hereafter briefly enumerate. First of all, after the verdict appellant seasonably filed its motion for judgment on the verdict of the jury. We quote the pertinent parts of that motion: “That under the terms and provisions of the verdict of the jury the plaintiff should have and recover of and from the defendant Workmen’s Compensation Insurance for a period of fourteen consecutive months from and after October 3, 1958, at the rate of $35.00 per week * * * that judgment should be entered in favor of the plaintiff and against the defendant for Workmen’s Compensation Insurance at the rate of $35.00 per week * * * ”, and prayed that judgment be entered accordingly, and attached a copy of the judgment desired to be entered to the motion. (It is true that the Court denied this motion.) We are of the view that since appellant asked the Court in its motion to enter judgment in claimant’s behalf at the maximum rate of $35.00 per week, that such affirmation on its part brings this contention under the 'harmless error Rules 434 and 503, Texas Rules of Civil Procedure. Appellant’s motion for judgment in his favor on the verdict of the jury constituted an affirmation on its part that the claimant in this case is entitled to the maximum wage rate of $35.00 for his compensation. See Jones Fine Bread v. Cook, Tex.Civ.App., 154 S.W.2d 889, Points 2 and 3, and cases there cited (n.w.h). In other words, the motion filed by appellant in this behalf amounts to an admission, so surely the harmless error rule ought to be applied to a situation such as this. If appellant had filed such admission in the trial of the case before it was submitted to the jury there would have been no necessity to submit the wage rate issues to the jury. It follows that we are of the view that all of the alleged errors in appellant’s brief relating to the calculation of the wage rate issues are harmless, and that each of them pass out of the case. In the second place the evidence of the claimant as to his wages and the time that he worked, although he is an interested witness, is not contradicted by any other witness or attendant circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies and circumstances tending to cast suspicion upon it, and this brings his testimony on the wage rate issues under the exception stated by our Supreme Court in Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, Points 9 and 10. In the judgment we find this recital: “After the verdict of the jury and in due time and formj plaintiff filed and presented to the court his motiorj for judgment.” The transcript does not show any motion filed by the plaintiff' for judgment. The Clerk at our request has furnished us with the original motion of claimant. It requests the Court to enter judgment on the verdict of the jury, the undisputed evidence, and stipulations of the parties. It does not ask the court to disregard the answers of the jury to any issues. (We think we should state that the trial court in its charge did not define what is meant by the term “substantially the whole of the year”.) Appellant contends through Points 1 and 5 that there is no basis in the record upon which the court could render judgment for the maximum compensation (see Rule 301, T.R.C.P.) and says if any compensation under the verdict is applicable here it could only be the $9.00 minimum rate under Sec. 10, Art. 8306, R.C.S. We overrule these contentions for reasons which we have heretofore stated. We recognize that it was the duty of the claimant to comply with the above rule, and seasonably file his motion to disregard the answers of the jury to Issues 14 and 16 in order to reach Subsec. 3, Art. 8306, aforesaid; however, we are of the view that since appellant in its motion for judgment specifically asked that judgment should be entered 'at the maximum rate of $35.00 in claimant’s behalf on the verdict that such affirmation on its part brings this matter under the harmless error rules, 434 and 503, T.R.C.P. It follows that Points 1 to 5, inclusive, and Point 12 are each overruled.

Appellant has briefed together his Points 6 through 11. They are substantially to the effect that the Court erred: (6) In overruling its objections to the Court’s Charge as a whole; and to issues (7, 8 and 9) Because the Court failed to submit the ultimate issue of the extent of any loss of use of plaintiff’s left arm; (7) There is no finding by the jury that plaintiff sustained any total loss of use of the left arm, and the Court erred in rendering judgment for total loss of use of the left arm; (8 and 9) There is ho evidence of probative force that plaintiff sustained total loss of the use of his left arm for a period of 28 months, and that the evidence is insufficient to sus-, tain such finding; (10) That the court erred in submitting Issue No. 7, involving “a loss of the use” of the left arm accompanied by a definition of “loss of use” over defendant’s timely objection that the definition did not define any term in the issue, was inconsistent therewith, and was confusing. That in the light of the definition accompanying Issue 7, the jury could refer at most to some degree of partial and not total loss of use, and the jury having failed to find the degree or percentage of any loss of use of the left arm, Special Issues 7, 8 and 9 provide no basis upon which plaintiff could recover. Plaintiff went to trial on his first amended petition. In this pleading he did not assert a claim for specific injuries, but relied upon a claim of general disability and sought total and permanent benefits. He alleged in effect that on Octo-' ber 3, 1958, while he was engaged in the performance of his duties for his employer, and in the scope thereof, he sustained severe accidental injuries to his left shoulder and left arm when a scaffold on which he' was working slipped, causing him to fall; that a pipe which was helping to hold the scaffold in place struck plaintiff in his left armpit, and caused a severe tearing, wrenching and fracturing of the bones, muscles, nerves, ligaments, tendons and other vital tissues and organs of the left shoulder and arm; that plaintiff sustained immediate total incapacity for the performance of work as that term is defined in the Workmen’s Compensation Law of the State of Texas, and within reasonable probability such total incapacity will last permanently. Plaintiff, by trial amendment, alleged that he sustained immediate loss of use of his left arm, which said loss of use has continued at all times down to the present date, and in reasonable probability, said loss of use will be permanent in duration and has been and will be total. He prayed for compensation for 200 weeks, for said loss •o.f che use of his left arm. - The testimony-iñ •this record is voluminous; The Statement ■of Facts covers some 746 pages. We have -given the testimony our most careful consideration, and we cannot summarize it ■without unduly extending this opinion, and besides, we do not believe it would be of any precedential value to do so. Suffice to say, we think it is ample to sustain the jury’s answers to each of the issues complained of. Issue 7 was: “Do you find, from a preponderance of the evidence, that the injury, if any, sustained by plaintiff on the 3rd day of October, 1958, if any, has resulted or will result in a loss of the use ■of his left arm?”, to which the jury answered “Yes”. The court instructed the jury: “By the term 'loss of use’ as used in this Charge, is meant that the member is so -affected as to substantially and materially impair the use thereof, in the practical performance of its functions in the pursuit •of a laboring man.” Appellant in its objection to Special Issue 7 stated that such issue inquired “whether the loss of use of the arm is a loss of the complete use thereof”, and further that such issue “indicates to the jury that the Court is inquiring whether the plaintiff has sustained or will sustain a total loss of the use of the- left arm.” Appellant in its amended motion for new trial repeatedly referred to Issue No. 7, as calling upon the jury to determine whether plaintiff had sustained or would ■sustain a total loss of the use of his left arm. We think Issue 7 was submitted substantially in the language of the Statute, which provides that the “permanent loss of the use” of the arm “shall be equivalent to and draw the same compensation as the loss of that member.” See Art. 8306, Sec. 12. Issue 7 submitted the inquiry whether the plaintiff’s injury resulted in total loss of the use of the arm. We think the language of the issue according to common usage submits such inquiry and would be so understood by the jury, and that it did not mislead the jury. See Traders and General Ins. Co. v. Porter, Tex.Civ.App., 124 S.W.2d 900 (w. ref.). Since the Court did not 'define or undertake to define the issue “loss of use” or “total loss tof use”, the burden rested- upon appellant,- if it desired a definition of such phrase, to prepare and tender a substantially correct definition, which it elected not to do. See Rule 279 and cases there cited. As we have above indicated, we think the. evidence is sufficient to support the finding of the jury that plaintiff suffered a total loss of. the use of his left arm for 28 months. It is true that the evidence shows that he resumed his work as a welder a number of months after the injury, and did his work well, but with great difficulty, and testified that he worked because of economic necessity, and that the use of his left arm and hand caused him severe pain. As to the probability of the use of his arm causing him pain, he was corroborated not only by the nature of the injury and the condition of the arm and hand and the muscles thereof, but by the testimony of Dr. Beall that it would do so, and by the testimony of Dr. Warren that the type of injury was one that was calculated to cause severe pain in the- arm and shoulder and that if using the left arm caused severe pain he would not recommend that he use it. It is true that there is no contention that the arm was completely useless, and that he could not do anything with it at all; there were some things he could not do at all; that the loss of the. use of his arm was occasioned in the main by the fact that any use. of it caused him to suffer pain. The factor producing total loss of use was not physical inability to use the arm at all, but on the contrary, the practical factor that use or attempted use of it caused him to suffer pain. It is true that Holt used his left arm to some extent, and in doing so, made as much or more money as before his injury is evidentiary only. The testimony along this line raised only a fact issue for the jury who were yet privileged to credit Holt’s testimony that the use of his arm caused him to suffer pain and that perforce of the pain occasioned by the use or attempted use of it he suffered the total loss of the use of his arm. Accordingly, we overrule Points 6 through 11. See Choate v. American Motorist Ins. Co., Tex. Civ.App., 323 S.W.2d 188; Muro v. Houston Fire & Cas. Co., Tex.Civ.App., 310 S.W.2d 420 (n. r. e.); Associated Indemnity Corp. v. Potts, 5 Cir., 164 F.2d 1002; Penn. Threshermen and Farmers Mut. Cas. Co. v. Gloff, 5 Cir., 238 F.2d 839; Great Amer. Ind. Co. v. Segal, 5 Cir., 229 F.2d 845; Traders and Gen. Ins. v. Heath, Tex.Civ.App., 197 S.W.2d 130.

The 13th Point is to the effect that the Court erred in refusing to submit appellant’s requested Charge No. 4, which was: “Do you find from a preponderance of the evidence that plaintiff’s injury resulted from an altercation between him and Shirley Patterson at Center, Texas, on October 4, 1958?” The defendant plead “Defendant further alleges that such injury and disability as plaintiff may now have or did have after October 3, 1958, was and is caused and resulted from an altercation which occurred between the plaintiff and Shirley Patterson at Center, Texas, on or about October 4, 1958. The true defensive issue was whether plaintiff’s injury and disability resulted solely from the altercation of October 4, 1958. Defendant’s pleading did not allege that the altercation of October 4, 1958, was the sole cause of plaintiff’s injury and disability, nor did its requested Issue No. 4 inquire whether plaintiff’s injury resulted solely from the altercation.” It is obvious that there is no merit in this contention. See Commercial Standard Ins. Co. v. Noack (Tex.Com.App.), 62 S.W.2d 72; Guzman v. Maryland Cas. Co., 130 Tex. 62, 107 S.W.2d 356; Armour & Co. v. Tomlin (Tex.Com.App.), 60 S.W.2d 204; Southern Underwriters v. Parker, Tex.Civ.App., 129 S.W.2d 738; City of Pt. Arthur v. Wallace, 141 Tex. 201, 171 S.W.2d 480.

Appellant’s Point 14 is substantially that the Court erred in failing to grant a new trial because of the highly inflammatory and prejudicial statement made by plaintiff’s counsel in his closing argument to the jury wherein he accused defendant and its counsel of bringing in immaterial evidence to mislead the jury as a part of a determined, premeditated scheme to starve plaintiff to death when he got hurt on the job. The argument complained of is as follows: “Mr. Holt was asked by his general superintendent to, go over to a testing laboratory and make a weld, and counsel brings out that statement where it says it was stretched and pulled — this pipe he made — in order to get the certificate of a certified welder, and then I asked the witness, ‘does that have anything to do with the man’s ability, physical ability, to work?’ ‘no, sir, all it does is make a weld.’ They wanted to bring that in here and even had the men bring it up here, and ‘do you have it there before you ?’ ‘yes, I have it.’ That’s the kind of testimony that they are bringing before you. Something to confuse you, mislead you. It is part of the scheme from the beginning as I said. It is part of that determined, premeditated scheme. When a man gets hurt out there, starve him to death, starve him to death.” (Emphasis added.) Defendant made no objection to the argument when made. The claimant testified in part:

“Q. All right. Now, when you signed this claim dated December 8, 1958, as a result of which you received $28.-00, you certified then that, T did not receive nor were there (nor are there now) accruing to me any disability benefits under the Workmen’s Compensation Law of any State or any similar law of the United States.’ That was on the back of that form, wasn’t it? A. I hadn’t received anything from anybody, either.
“Q. And you said further there was nothing accruing to you, didn’t you? A. According to Mr. Anderson, there wasn’t. He told me that he would starve me to death, that I wasn’t going to get any unemployment compensation.
“Q. Unemployment or Workmen’s Compensation? Now, what are you talking about? A. Workmen’s Compensation.
“Q. Mr. Anderson didn’t have anything to do with this, did he? A. He didn’t have anything to do with that, no.”

There was no objection to the foregoing testimony, and there is no explanation as to the person referred to by plaintiff as Mr. Anderson, and no motion was made to strike the foregoing testimony.

In Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 599, we find this statement: “Before a judgment is reversed because of argument of counsel two things must appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably ■did cause the rendition of an improper judgment in the case.” In Condra Funeral Home v. Mary Rollin, 158 Tex. 478, 314 S.W.2d 277, 280, our Supreme Court made this statement of the Rule:

“Under Rules 434 and 503, Texas Rules of Civil Procedure, appellate courts are directed not to reverse a trial court judgment for errors of law committed during the course of the trial of a case unless the error complained of ‘amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.’ In enforcing those Rules we have held with respect to many and various types of errors that a reversal may be ordered only when a review of ‘the whole record’ convinces the reviewing court that but for the error a different verdict or judgment would probably have been rendered.”

We think that the impact of the argument under the record as a whole was rather remote. First of all, the argument could not have had any effect on the wage rate issue, nor do we think it could have had any prejudicial effect on the amount of the time fixed for disability. See Mrs. Baird’s Bread Co. v. Hearn, 157 Tex. 159, 300 S.W.2d 646. See also Wade v. Texas Employers’ Ins. Ass’n, 150 Tex. 557, 244 S.W.2d 197. A careful examination of the whole record does not convince us that the argument of counsel probably resulted in an improper judgment. Accordingly, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    TEXAS & PACIFIC RAILWAY COMPANY, Appellant, v. Kenneth LEATHERMAN and wife, Lucille Leatherman, Appellees.
    No. 3682.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 17, 1961.
    Rehearing Denied Dec. 8, 1961.

      Wagstaff,1 Harwell, Alvis & Pope, Abilene, for appellant.
    Bradbury, Tippen & Brown, Abilene, for appellees. ’
   COLLINGS, Justice.

Kenneth Leatherman and wife, Lucille Leatherman, brought suit against the Texas & Pacific Railway Company to recover damages for alleged personal injuries to-Mrs. Leatherman while she was a passenger on defendant’s train. Pleadings of the defendant included a general denial and allegations of contributory negligence. The case was tried before a jury and based upon the verdict judgment was entered for plaintiffs in the sum of $6,500. The Texas & Pacific Railway has appealed.

In appellant’s first point it is-urged that t-he court erred in overruling its motion to dismiss the case, or to render judgment in its favor because, appellant contends, the pleadings and undisputed evidence show this case to be a suit by Lucille Leatherman, joined pro forma by her husband, and that a wife has no authority to bring such a suit. The point is overruled. There is no question but that a claim for damages for personal injuries to a married woman is community property and that the real party at interest is the husband. He alone has authority to recover for such damages. Ezell v. Dodson, 60 Tex. 331; Texas C. Railway Co. v. Burnett et ux., 61 Tex. 638; Houston Gas & Fuel Company v. Spradlin et ux., Tex.Civ.App., 55 S.W.2d 1086. Kenneth Leatherman was a party to this suit. The only question is whether he was an actual party plaintiff or merely joined as a pro forma party. The pleadings show that this suit was brought by “Kenneth Leatherman and wife, Lucille Leatherman.” The prayer sought judgment for “plaintiffs.” There were allegations referring to what “plaintiff, Lucille Leath-erman” would show, but this did not alter the fact that the suit was brought by Kenneth Leatherman as a real party plaintiff. Appellee’s pleadings considered as a whole show he was a real party plaintiff and not joined as a mere pro forma party. Although Mrs. Leatherman was not a necessary party, the fact that she joined her husband as a party plaintiff did not constitute reversible error. The fact that Kenneth Leatherman was not present at the trial but was out of the State at the time is not material.

In appellant’s second point it is urged that the court erred in refusing its requested special issues and definitions in connection therewith bearing upon the questions of whether Mrs. Leatherman was guilty of negligence in failing to keep a proper lookout for her own safety and whether such alleged negligence caused the accident. This point is not well taken. The testimony shows that Mrs. Leatherman boarded the defendant’s train in Fort Worth •at about 9:50 a. m. and that her destination was Abilene. The train arrived in Baird, Texas at about 1:05 p. m. At the time the accident occurred she was sitting alone on the seat next to the aisle; there were other people in the coach including a lady and a child immediately behind her. Passengers were also seated across the aisle. The defendant’s brakeman testified that he was removing the luggage from the luggage racks in the car in which Mrs. Leatherman was riding and placing it to the front of the car, or in the vestibule, where it could be readily unloaded when the train arrived at Abilene. He testified that as he reached for the luggage in the rack above and behind Mrs. Leatherman, it was necessary for him to stand on his tiptoes and that as he did so, the little girl who had been occupying the seat behind Mrs. Leatherman was scrambling around and got under his feet; that he was afraid he would step on the little girl and hurt her, and that it was under these circumstances that the luggage was dropped on Mrs. Leathermen’s head, causing the injuries complained of. The evidence also supports the conclusion that Mrs. Leather-man was not on guard at the time and was either asleep or practically so; that she neither looked up at the luggage rack from which the brakeman was removing luggage nor did she notice the fact that the child might have interfered with the brakeman.

Ordinarily a guest or passenger is not required to keep a constant lookout while riding with a public carrier. Harrison v. Southwest Coaches Inc., Tex.Civ. App., 207 S.W.2d 159 (Ref. N.R.E.). A passenger is required to exercise ordinary care for his safety, but the care required is only that which an ordinarily prudent person would exercise under the same or similar circumstances. In 13 C.J.S. Carriers § 794, at page 1574 it is stated as follows :

“The duty of the carrier to look out for the safety of the passenger justifies a passenger, while in transit, in assuming that it will use the degree of care for his protection which the law requires, and he is not bound to take precautions against dangers which are not apparent or brought to his knowledge.”

The evidence as above summarized did not raise a fact issue on the question of contributory negligence on the part of Mrs. Leatherman. As a passenger on appellant’s train she had no duty to anticipate that the brakeman or other employee of appellant would drop a piece of luggage on her head, or to keep a constant lookout against that or some such contingency. There was no evidence that the danger was known to Mrs. Leatherman or that it should have reasonably been expected. She was not required to foresee and guard against appellant’s negligence. The court did not err in refusing appellant’s requested special issues thereon.

Appellant’s third point complains of the action of the court in allowing recovery for medical expenses in the amount of $500.00. Appellant. urges that neither the pleadings nor evidence show that the claimed medical expenses were reasonable and necessary, and that the court erred in submitting that question to the jury and in entering judgment on the verdict. The point is well taken.

Plaintiffs alleged medical bills in the sum of $482.00 but did not allege that they were reasonable and necessary. Dr. J. C. Shipman, a chiropractor, testified that his charges for treatment of Mrs. Leatherman amounted to $475.00 but there was no evidence to the effect that the treatment was necessary or that the charges were reasonable. It is well settled that a recovery can be had for only those medical expenses which are reasonable and necessary. 17 Tex.Jur.2d 21, Young v. Howell et ux., Tex.Civ.App., 236 S.W.2d 247; Dalby v. Lyle, Tex.Civ.App., 105 S.W.2d 764; Texas & N. O. Ry. Co. v. Barham, 204 S.W.2d 205. The trial court erred in submitting special issue number 6 to the jury over appellant’s objection and in entering judgment on the finding in answer thereto.

Appellee’s claim for medical expenses is severable from other issues in the case and a remand and new trial of that portion of the case is proper. McDougall v. McDougall, Tex.Civ.App., 316 S.W.2d 295, (Ref. N.R.E.); Great American Indemnity Company v. Ortiz, 5 Cir., 193 F.2d 43.

That portion of the judgment allowing appellee recovery of $500.00 for reasonable and necessary medical expenses is reversed and remanded for a retrial.

In all other respects the judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    Samuel E. ZIEGLER, Trustee, et al., Appellants, v. SOUTHWEST FILM LABORATORY, INC., Appellee.
    No. 7311.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 7, 1961.
    Rehearing Denied Dec. 12, 1961.

      John L. Burke, Jr., Grady, Johnson & Smith, Dallas, for appellant.
    Emil Corenbleth, Marvin Lewis, Dallas, for appellee.
   CHADICK, Chief Justice.

This is an action to collect a money indebtedness. The suit was brought by the Trustees of six separate Trusts against Southwest Film Laboratory, Inc. The trial court entered a take nothing judgment without prejudice to the Trusts’ right at maturity of the indebtedness to enforce its payment. The judgment is affirmed.

For the most part the evidence developed at the trial was without contradiction. It is mainly with respect to the events associated with and bearing upon a transaction occurring shortly after June 24, 1958, in which a check on the account of Samuel E. Ziegler, Trustee, payable to Southwest Film Laboratory, Inc., was deposited in the corporation’s bank account and a check drawn on the corporation’s account payable to' Samuel E. Ziegler individually and delivered to him, that there is conflict in the testimony. The following recital of the-facts relate the evidence in its most favorable aspect in support of the finding of the-jury on special issues and the judgment- entered by the court.

The enterprise named Southwest Film' Laboratory, Inc., came into corporate existence in 1950. In that year J. Manuel' Hoppenstein, Samuel E. Ziegler, Irvin-Gans and Jack A. Hopper incorporated the-business for $6,100 and the four owned all corporate stock. Ownership of the stock at time of suit was held in the following percentage: Hoppenstein 35%, Ziegler 25%, Gans 20% and Hopper 20%. From its creation day to day management of corporate operations was placed in Gans and Hopper. Both were experienced in the business the corporation was engaged in and had been connected with the predecessor organization.

Hoppenstein was a lawyer engaged in general practice and had extensive business, interests. Ziegler was a certified public accountant, with a legal education, but limited his practice to tax cases in which his accounting firm was interested. Both Hop-penstein ánd Ziegler possessed substantial financial resources, and it is apparent .from the record their opinions were deferred to in all corporate activity. Hoppenstein was President and Ziegler Secretary-Treasurer, but nominal or no salary was paid to them for service in such capacities. Ziegler’s accounting firm was auditor for the corporation, and internal corporate accounting was to a great degree supervised by Ziegler. The four stockholders also constituted the Board of Directors, but corporate policy generally reflected the views of Hoppen-stein and Ziegler.

In 1956 the corporation built a new plant. A loan of $110,000 was obtained for this purpose and Hoppenstein and Ziegler guaranteed it, the other stockholders securing to Hoppenstein and Ziegler their proportionate share of indebtedness by posting collateral.

From the inception of the corporate operation it was a common practice for the stockholders in their individual capacity to loan money at interest to the corporation as needed for working capital. Hoppenstein and Ziegler made the major loans. These loans were of two classes, or were . so treated; some were for short terms and repaid promptly, while others were treated as intended for longer duration. A financial statement dated May 31, 1958 prepared by Ziegler’s auditing firm showed loans from .stockholders as follows: Hoppenstein $19,-500, Ziegler $14,000, Gans $9,100, Hopper $7,950, a total of $50,550. These last mentioned loans were not listed as current liabilities in the financial statement but were carried as a special item of indebtedness from that time onward.

The stockholders on June 25, 1956 entered into the following agreement:

“THIS AGREEMENT made and entered into by and between Samuel E. Ziegler, Irvan Gans, Jack A. Hopper and J. Manuel Hoppenstein of Dallas, Texas, this the 25th day of June, A. D. 1956.
“WITNESSETH
“WHEREAS, the undersigned are stockholders in Southwest Film Laboratories, Inc., and the said company is in the process of constructing a building for its use at a cost of in excess •of $150,000.00; and
“WHEREAS, a loan commitment from the Texas Prudential Life Insurance Company has been procured for only $110,000.00; and
“WHEREAS, it is contemplated that the company will be in need of additional funds and working capital in excess of $50,000.00; and
“WHEREAS, it is contemplated that the undersigned will loan additional funds to the corporation at a minimum of $52,000.00, to be used for the completion of the cost of the erection of the building and to provide Southwest Film Laboratories, Inc., with needed working capital; and
“WHEREAS, the undersigned have agreed to personally guarantee the the $110,000.00 loan from the Texas Prudential Life Insurance Company and will subject themselves to personal liability for the full amount of said $110,000.00 mortgage; and
“WHEREAS, it is the desire of the parties that any such sums of money loaned by any such stockholder of Southwest Film Laboratories, Inc., up to $52,000.00 shall be frozen and not be repayable until the mortgage indebtedness to the Texas Prudential Life Insurance Company has been repaid or substantially reduced in an amount mutually agreed upon between the parties.
“NOW, THEREFORE, it is agreed between the undersigned as follows:
“IN CONSIDERATION of the personal guarantee by the undersigned of the $110,000.00 note and indebtedness, which will be payable to the order of Texas Prudential Life Insurance Company, and the mutual advantage and benefit flowing one to the other and other good and valuable consideration, it is agreed as follows:
“That the loans of the undersigned to Southwest Film Laboratories, Inc., in the various amounts loaned by the respective parties, aggregating an amount up to $52,000.00 shall be frozen as working capital of Southwest Film Laboratories, Inc., and shall not be payable to the undersigned until the full amount of the $110,000.00 liability to Texas Prudential Life Insurance Company has been repaid in full or in such substantial amount as is mutually unanimously agreed between all of the undersigned parties.
"it is further agreed that the indebtedness to the undersigned from Southwest Film Laboratories, Inc., shall not be ' assigned, pledged, 'mortgaged or hypothecated in any manner or amount except with the approval of all of the undersigned and said aforementioned respective liability of Southwest Film Laboratories, Inc., to the undersigned shall not be subject to garnishment, attachment, or assignment.”
(The heading and conclusion are omitted.)

In May, 1958 Ziegler mentioned to Hop-penstein that the stockholder loans coming within the terms of the agreement presented an opportunity for tax saving if he cared to create a trust for his daughter and transfer the $19,500 indebtedness to the Trust and let the interest thereon be paid to the Trust and taxed at a lower rate. Ziegler also told Hoppenstein that he planned such a trust for his three children. Hoppenstein made no objection, and said that he thought he could get the other stockholders to agree if maturity of the indebtedness remained unchanged.

Prior, to the May conversation mentioned above on November 1, 1957, Ziegler as set-tlor entered into a trust agreement with his wife, Florence G. Ziegler, and three other individuals, as Trustees, creating three separate and distinct Trusts designated as Regina Gale Ziegler, Trust No. 1, Rosilene Ziegler, Trust No. 1, Ruthann G. Ziegler, Trust No. 1. On the same date his wife Florence G. Ziegler as settlor entered into a trust agreement with Ziegler and the same three individuals named in this Trust, as Trustees, creating three separate and distinct Trusts designated as Regina Gale Ziegler, Trust No. 2, Rosilene Ziegler, Trust No. 2, Ruthann G. Ziegler, Trust No. 2. Some of the powers given the trustees in each of these instruments are in this language :

“The trustees shall have the full power and authority to manage, control, handle, invest and reinvest * * upon'such terms and conditions as-said trustees-, in sole discretion may deem best. * * * appoint, remove and act through agency, managers, and employees, and to confer upon them such power and authority as the trustees may deem necessary or advisable. * * *”

Each Trust was given a capital of $100 by the Trust settlor.

The day each Trust was created the trustees of each executed and delivered to Ziegler written power of attorney authorizing him to:

“ * * * act in the administration, management, control and disposition of the properties of the Trusts in accordance with all the powers, rights and authority granted to us collectively under the terms of the Trust Agreement except as expressly limited by the terms of the Trust Agreement. * * * ”

On June 24, 1958, Ziegler drew a check on Samuel E.- Ziegler, Trustee, payable to-Southwest Film Laboratory, Inc., for $10,000 which he signed as trustee. About the same date Ziegler requested a $10,000s corporate check issued to him; the employee addressed advised him that the corporate bank balance was insufficient to pay it. And Ziegler said, “That’s all right. I am going to cover it with another check. You make it out to me. In your books set up a new account and call it the Samuel E. Ziegler Trust Account. Mail me the check and in a day or two I will send you a deposit slip showing I deposited the amount. In-other words, it is just an exchange of checks.” The corporate check was issued to Ziegler, individually.' Both checks cleared the banks upon which they were drawn. Ziegler testified that he borrowed money for the Trust to cover the trustee check. The corporate books were changed to show a $10,000.00 indebtedness to S. E. Ziegler,. Trustee, under the heading “Loans Payable to Officers”. Indebtedness payable to Ziegler was reduced by $10,000.00.

The only other change made in the long term indebtedness the corporation owed the stockholders after execution of the agreement of June 25, 1956, resulted from an agreement of all stockholders to offset certain indebtedness of Hopper and Gans to the corporation. Hoppenstein did not create a trust for his child, and he first knew of the transaction involving the two $10,000 checks sometime in 1959. Hopper became aware of the transaction when he saw the trustee item in a financial statement sometime in November of 1958. Thereupon, Hopper mentioned the trust item to Ziegler and was told by him that, “It doesn’t change the position of the loan one iota”. At the time of the check transaction Gans had left the employment of the corporation although he continued as a director. He testified he did not know about this change in the indebtedness account until suit was filed.

By appropriate pleading Hoppenstein, Gans and Hopper intervened asking affirmative relief and Ziegler was impleaded as a third party defendant. The result of the case in the trial court and disposition of the appeal makes it unnecessary to detail the pleadings of the parties at this point other than note that the corporation plead as a defense that the indebtedness sued upon was not due. In answer to special issues a jury found that the Trusts loaned $10,000 to the Southwest Film Laboratory, Inc.; that the stockholders of the corporation: (1. Did not agree that Ziegler might withdraw the sum of $10,000.00; (2. Did not voluntarily abandon or waive the contract dated June 25, 1956; (3. Did not lead Ziegler to believe the funds advanced by him on behalf of the Trust would not be subject to the terms and provisions of the mentioned contract; and that the advancement of $10,000 of Trust funds by Ziegler was made in lieu of and in substitution of funds withdrawn by him in a like amount.

Only the appellant Trusts have perfected an appeal. Ten points of error are briefed. Points 5, 6, and 7 present the issues that the contract of June 25, 1956, the so-called “freeze” agreement, was too indefinite and uncertain to be enforceable; that any agreement between Ziegler as Trustee and the corporation using Trust funds for the private advantage of Ziegler was illegal and unenforceable; and that the loan made by the Trust was made with notice to the corporation that the trustee was acting without authority. The other points raise issues of “no evidence” and “insufficiency of the evidence” to support the jury findings and the judgment entered.

The appellants argue in support of their point that the agreement of June 25th, 1956 is too uncertain and indefinite to be enforced, that the instrument does not bind the parties individually nor collectively to loan any definite amount of money to the corporation; and the fact that the parties individually made numerous advances and withdrawals so confuses the status of the many loans and repayments that it is not certain which stockholder loans, including the balances shown due to stockholders in the corporation financial statement of May 31, 1958, are the subject of the “freeze” agreement.

There is a certain degree of ambiguity in the instrument as it refers to “contemplated additional loans” in one part, and in another part refers to “loans” in the present and past tense, as though speaking of then completed transactions. From the facts already recited it appears that the parties construed the instrument as controlling the maturity of the indebtedness due to stockholders as shown by the May 31, 1958 financial statement. There is no evidence that repayment to stockholders or withdrawals by stockholders occurred, except by unanimous consent of all stockholders, after the “freeze” agreement was made and before the occurrence made the subject of this suit. The parties gave the instrument a certain and definite construction which was acted upon by them and acquiesced in without question until a short time prior to this suit. See Contracts 13 T.J. (2) 300 Sec. 128; City of Athens v. Andrews, Tex.Civ. App., 231 S.W.2d 928, err. ref. Under the circumstances shown the instrument is certain, definite and enforceable.

The appellants briefed this case on the theory that Ziegler acted as a trustee in loaning' Trust money to the corporation, but it is clear from the evidence that he was in fact an agent of the Trustees of the several Trusts. The language of the several instruments introduced by the appellants as Powers of Attorney clearly reveals that the intention of the instruments was to authorize Ziegler to act for the Trustees. Ziegler’s authority to so act, even for those trusts of which he was a co-trustee, has its source in the powers given by such instruments. These instruments were identical in wording and did not purport to vest title to property, or an interest in property, in Ziegler nor to create a relationship in which Ziegler would hold a property interest subject to an equitable obligation to keep or use such interest for the benefit of the Trustees or the Trusts. In support of such construction see definitions and distinctions of these relationships in Agency, 2 Tex.Jur.2d 435, Sec. 1, I Trust and Trustees (Bogart) 67 (2)15. These documents merely made him an agent of the Trustees, and the duties and liabilities of that relationship is governed by the law of Agency. This is important in resolving questions of ratification.

In their pleadings the Trustees allege that $16,000.00 of Trust funds were loaned to the corporation, and that $6,000 of such loan, together with accrued interest on the whole sum, had been paid at the time suit was instituted. Judgment was asked for the $10,000 balance of the indebtedness and interest accruing after institution of the suit. Such pleadings by the Trustees not only fails to repudiate Ziegler’s agency or allege the loans were ultra vires and in violation of the Trust, but on the contrary asserts the existence of such loans and the collection of interest which had accrued on them.

The allegations of the pleadings treat as valid the action of Ziegler as the Trustees’ agent in making the loan. Under the pleadings of the parties the only controversy concerning the corporation obligation is the date the loan was to be paid. The Trustees contend it was payable on demand. The corporation said that payment was to be controlled by the terms of the “freeze” agreement. In Agency, 2 Tex.Juris. (2), p. 543, Sec. 95 it is said with respect to a suit upon an agent’s contract, that: “ * * * the principal’s suit is in itself ratification of the agreement, and neither pleading nor proof of the adoption of the contract will be required. * * * ” See also Lechenger v. Merchants’ Nat. Bank of Houston, Tex. Civ.App., 96 S.W. 638, er. ref., 209 U.S. 553, 28 S.Ct. 757, 52 L.Ed. 923, app. dismd. The Trustees having ratified the loan, any contention that Ziegler acted without the Trustees’ authority is removed from the case.

The pleadings, evidence and findings prevent the Trustees from taking the position in this case that Ziegler obtained private advantage in loaning Trust funds, and that the corporation having knowledge of Ziegler’s bad faith could not enforce its agreement with Ziegler respecting maturity of the loan. First, there is no evidence that the. corporation officers, or agents, except Ziegler, were aware that the Trusts existed until the switch of funds had been accomplished. There was no opportunity for the corporation, through its agents having authority to deal with the subject to know or have knowledge of Trust provisions or its agent’s limitations or agree with him to breach the trust obligation. Ziegler’s knowledge is not imputable to the corporation under the facts shown. See Agency 2 T.J. (2) Sec. 187, 193.

Reference to the Trust instruments shows that Ziegler as Agent for the Trustees was given great latitude in the investment of the Trusts’ funds. This power to invest carried with it necessarily the authority to agree to time of repayment and other terms usually ■ incident to loans of money. The “freeze” agreement in the light of' this record might be construed in such way that maturity of the loan would never occur, that is to say, that if the building indebtedness was never paid or substantially reduced then the loans referred to in the agreement would never be repayable. Assuming such construction is correct, it does not follow that such an agreement is as a matter of law a breach of trust on the part of the Trustees or Ziegler. Ziegler’s authority to make the loan and the authority of the Trustees to ratify it are within the express and implied powers granted by the several Trust agreements. The absence of pleadings by the Trustees repudiating Ziegler’s agency and asserting that the loan was beyond their powers and constituted a breach of trust strengthens this conclusion.

Consideration of all points leads to the conclusion that no reversible error is shown. All points are overruled. The judgment is affirmed.


author: BELL, Chief Justice.

text:
    Murphy VON HUTCHINS, Appellant, v. W. W. POPE, d/b/a Pope Lumber Company et al., Appellees.
    No. 13796.
    Court of Civil Appeals of Texas. Houston.
    Nov. 2, 1961.
    Rehearing Denied Nov. 30, 1961.

      Peter P. Cheswick, Houston, for appellant.
    Carl & Lee, Emory T. Carl, Houston, for appellees.
   BELL, Chief Justice.

Appellant on January 6, 1958 filed a suit for divorce against his wife, Mattie Lee Hutchins, in the Court of Domestic Relations No. 3 of Harris County. In an amended pleading filed in said court he also joined Pope Lumber Company and Jessie Albert Sims in the suit, alleging that they were claiming some interest in Lots 182 and 183 in Block 8 of Lincoln City, Section 4, an addition to the City of Houston, which he alleged to be community property of himself and his wife. Thereafter, the suit as to Pope was severed from the divorce suit and such severed controversy was transferred to the 157th District Court of Harris County. In the divorce suit the Court of Domestic Relations granted appellant a divorce and found in its judgment that as between appellant and Mattie Lee Hutchins (Sims) the above property was community property but it was expressly provided that such finding was without prejudice to the rights of W. W. Pope, d/b/a Pope Lumber Company. The divorce was granted September 8, 1959. On February 24, 1960, appellant filed an amended original petition in the District Court in which he sued in trespass to try title, seeking to recover title to the lots. He also joined his former wife, Mattie Lee Sims, and Jessie Albert Sims, the man with whom she was living, and also joined W. W. Pope and Horace Roberson.

W. W. Pope filed his answer in which he claimed that he held title to Lot 183 as a bona fide purchaser for value without notice of any claim by appellant. He also filed a cross-action in trespass to try title.

Roberson also filed his answer, claiming title to Lot 182 as a bona fide purchaser for value without notice of any claim of appellant. He also filed a cross-action in trespass to try title.

The trial court, after trial to a jury, rendered judgment against appellant and favorably to Pope and Roberson.

From the evidence it appears that appellant and Mattie Lee Hutchins were husband and wife from 1944 until the date of the divorce judgment, September 8, 1959. They lived together as husband and wife until about July, 1957, when Mattie Lee left appellant and started living with Jessie Albert Sims, with whom she apparently continued to live on all dates material to this case. While appellant and Mattie Lee lived together they resided in a home on Amboy Street. The subject property is located on Lucky Street.

By separate deeds dated April 30, 1955, Booker Bryant, the uncle of Mattie Lee, conveyed the lots to appellant and Mattie Lee. These deeds were not filed for record until December 27, 1957. On November 6, 1957, Booker Bryant and wife, Malinda Mae Bryant, conveyed both lots to Jessie Albert Sims and wife, Mattie Lee Sims. They were under the impression that appellant and Mattie Lee had been divorced and that she was married to Sims. She represented that she was married to Sims. The deed was filed for record November 8, 1957.

On November 6, 1957, Sims and Mattie Lee, representing themselves to be husband and wife, executed a mechanic’s lien contract calling for the .construction of a 4-room house on Lot 183 at a cost of $10,350. This was filed for record November 12, .1957. On November 6, 1957, this contract was assigned to W. W. Pope, d/b/a Pope Lumber Company. On the same day Sims and Mattie Lee executed a deed of trust to W. Noble Carl, Trustee, to secure a note for $10,100.00, which was given by Sims and Mattie Lee in payment for the improvements to be made. They had paid Reuben W. Polk, the contractor, $250.00 cash. This was filed for record June 16, 1958.

Testimony given at the trial shows that W. W. Pope furnished the lumber and material and paid for the labor in building the house and it was completed for occupancy about Christmas, 1957.

The note was not paid, and a substitute trustee sold Lot 183 at a trustee's sale on June 9,1958, W. W. Pope becoming the purchaser.

On November 13, 1957, Sims and Mattie Lee executed a mechanic’s lien contract to Reuben Polk calling for very extensive repairs to be made on a shack located on Lot 182 at a cost of $7,050.00. On November 18, 1957, this was assigned to W. W. Pope, d/b/a Pope Lumber Company. The contract and assignment were filed for record November 18, 1957. On November 13, Sims and Mattie Lee executed a deed of trust to W. Noble Carl, Trustee, to secure a $6,700.00 note given Polk by Sims and Mattie Lee. On December 31, 1957, Pope reassigned the mechanic’s lien contract to Polk, together with the $6,700.00 note.

It appears from testimony given at the trial that Pope had furnished materials to Polk for the repairs. The repairs were made and the house was ready for occupancy about Christmas, .1957. It further appears that Horace. Roberson agreed to advance Polk $1,500.00 and on December 31, 1957, Polk assigned the note and contract to Roberson. .This advance was to help pay for money owing for labor and materials that had gone into' the repairs for the house. Roberson actually paid Polk $500.00 on December 31, 1957 and $1,000.00 on January 2, 1958.

Thereafter, Sims and Mattie Lee not having paid the note, a substitute trustee sold Lot 182 and Plorace Roberson became the purchaser. The sale took place June 9, 1958. Roberson recognizes that Pope had an interest of $2,500.00, representing the cost of materials he furnished which have never been paid for.

It is the position of appellant that the property having been conveyed to him and Mattie Lee jointly by Booker Bryant in 1955, it was community property and Mattie Lee had no right to convey it. Too, he claims that at all times material it was his homestead.

The position of appellee Pope is that the property was the separate property of Mattie Lee or, even if it be community of her and appellant, it makes no difference in this case. The basis of this is that the deed into appellant and Mattie Lee was not . recorded until December 27, 1957 and that he had no notice of any claim by appellant until after his rights had become fixed under the mechanic’s lien contract and deed of trust of November 6, 1957, and the building of the house had been completed.

Appellee Roberson makes the same claim as to Lot 182, except that since he made the advances áfter the deed to appellant was recorded, he relies on his purchase at the trustee’s sale which was under a valid deed of trust in Polk and Pope who furnished labor and material for the extensive repairs on the shack on the lot, such being furnished prior to any notice of appellant’s claim. The repairs were finished about Christmas, 1957.

The jury found that Polk had no notice of the unrecorded deed prior to the contract of November 6, 1957; that Pope had no notice prior to the assignment to him; that Polk built the foundation without notice of such deed and that Pope erected the house on Lot 183 without notice of the deed. It also found in substance that Polk and Pope had no notice of appellant’s deed until after the work had been completed on the building on Lot 182. It also found that the property was a gift from the mother of Mattie Lee to her, the deed being from Bryant only because he held legal title for Mattie Lee’s mother. Too, they found that at all time material, Mattie Lee represented herself to be the wife of Jessie Albert Sims. Further the jury answered issues which established payment of value by Polk, Pope and Roberson. Also it found Roberson had no notice of the deed when he acquired the note and deed of trust.

The court held as a matter of law that the property was not the homestead of appellant.

The evidence establishes that Lurie Thomas was the mother of Mattie Lee. She bought the two lots but asked her brother, Booker Bryant, to take title in his name. She also instructed him to convey the lots upon her death to her daughter, Mattie Lee. After the death of Lurie, Mattie Lee Hutchins requested a conveyance and the deeds executed in 1955 to Mattie Lee and her husband were given by Bryant. They are the deeds that were not recorded until December 27, 1957. Appellant testified he paid $10.00 each for the lots. One was shown to be worth $800.00 and one $750.00. The jury found, on sufficient evidence, that the lots were a gift to Mattie Lee. This made the lots the separate property of Mattie Lee. The evidence shows that in November, 1957, when the rights of appellees were acquired through the execution of the mechanic’s lien contract, the note and the deed of trust, and the building of the house and making of repairs in December, Mattie Lee was permanently separated from appellant. They separated' in July and never lived together thereafter until they were divorced.

They being permanently separated, Mattie Lee could create a lien pn ancj convey the property without the joindpr of her husband. Webb v. Webb, 148 Tex,' 405, 224 S.W.2d 868.

Appellant urges,' however, that the deed into appellant and Mattie Lee 'as husband and wife establishes the property as community and testimony may not be introduced to show otherwise. The deed into husband and wife prima facie establishes the property as community. In the situation here presented evidence may be introduced to show facts which make it in law the separate property of the wife. Foster et al. v. Christensen, Tex.Com.App., 67 S.W. 2d 246; Sparks et al. v. Humble Oil & Refining Company, Tex.Civ.App., 129 S.W.2d 468, writ ref.

Appellant next contends the property was his homestead. We will not recite all the evidence. It suffices to say that neither he nor his wife ever lived on the property. They at all times lived on Amboy and he owned an undivided interest in such property. He and Mattie Lee 'only Visited Mattie Lee’s mother and their children while Mattie Lee’s mother was caring for the children. Then their visit was only for a night or two at a time. -Appellant testified he and Mattie Lee never lived there. No one lived there after Mattie Lee’s mother’s death prior to 1955. Appellant does testify that in 1956 he was making some repairs on the shack so he and Mattie Lee could move there. He made no repairs, under his testimony, after 1956.

The effect of the testimony of appellant himself is to establish his homestead on Amboy Street. At most his testimony indicates an intention to make the Lucky Street property his homestead at some indefinite time in the future. He is never shown to have abandoned his home on Am-boy. See Archibald v. Jacobs, 69 Tex. 248, 6 S.W. 177; O'Brien v. Woeltz, 94 Tex. 148, 58 S.W. 943; Carstens v. Landrum, Tex.Com.App., 17 S.W.2d 803.

W. W. Pope was a bona fide purchaser for value of Lot 183. The jury found facts establishing that Polk had no notice of the unrecorded deed when he obtained the note, mechanic’s lien contract and deed of trust from Mattie Lee and Jessie Albert Sims. Too, Pope had no notice when he took the assignment and neither he nor Polk had notice until after the 4-room house was completed. His rights were thus fixed. He was a good faith mortgagee for value. 29 Tex.Jur., § 48, p. 853; Lyday v. Federal Land Bank of Houston, Tex.Civ. App., 103 S.W.2d 441, writ dism.; Art. 6627, Vernon’s Ann.Texas St. While Pope purchased at the trustee’s sale, which was after the deed of appellant was recorded, and he had notice of the claim, his rights were fixed prior to any actual or constructive notice. Barrett v. Eastham Bros., Tex.Civ.App., 86 S.W. 1057, no writ hist.

Roberson was charged with notice when he took the assignment from Polk. However, he succeeded to the rights of Polk and Pope who were bona fide mortgagees for value without notice. Lewis v. Johnson, 68 Tex. 448, 4 S.W. 644; Holmes v. Buckner, 67 Tex. 107, 2 S.W. 452.

Appellant complains that the trial court excluded the judgment in the divorce suit except for the purpose of showing the date of the divorce. The appellees were not parties to the suit after the asserted cause of action against them was severed. The judgment was not admissible against them to show the property was community property. The judgment finding it to be community property as between appellant and Mattie Lee expressly stated such was without prejudice to the rights of appellee Pope. Roberson was never a party to that suit. The recitals and findings were purely hearsay as to appellees. Kincheloe v. Kincheloe, Tex.Civ.App., 152 S.W.2d 851, writ ref.; Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786.

The other Points asserted by appellant have been considered and are overruled.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Hazel Dean CAYLOR et vir, Appellants, v. TEXAS STATE OPTICAL COMPANY, Appellee.
    No. 3909.
    Court of Civil Appeals of Texas. Waco.
    Nov. 2, 1961.
    Rehearing Denied Nov. 30, 1961.

      W. G. Walley, Jr., Beaumont, for appellant.
    Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellee.
   McDONALD, Chief Justice.

This is an appeal from an instructed verdict in Ifavor of the defendant.

Plaintiff, as administratrix of the estate of her deceased son, Dr. Roy L. Baker, filed this suit against Dr. S. J. Rogers and Dr. N. J. Rogers, doing business as Texas State Optical Company, seeking to recover the sum of $10,221. allegedly due her deceased son by virtue of the terms of a certain contract, wholly in the handwriting of Dr. S. J. Rogers. Plaintiff alleged that her son, Dr. Baker, was an optometrist and the owner of Kent Optical Company in Victoria, Texas; that he entered into a written contract with defendants as follows:

“Victoria, Texas
“Nov. 8, 1955
“It is hereby agreed that Drs. J. S. and N. J. Rogers will purchase the Kent Optical Co. and its contents (excepting typewriter and personal items of Dr. Roy Baker) for the sum of Ten Thousand, two hundred and twenty one dollars ($10,221.00).
“Drs. S. J. and N. Jay Rogers agree to employ Dr. Roy Baker as an optometrist in one of the Dallas offices of the Texas State Optical Co. Dr. Baker is to receive a starting salary of $8000.-00 per year, plus some bonus, an agreement to be written up within the next 5 days to cover same in detail.
“Lease arrangements on Kent Optical’s location to be worked out to both both parties’ satisfaction.
(S) Dr. S. J. Rogers (S) Roy L. Baker”

That pursuant to such agreement in writing, Dr. Baker delivered the business and property to Drs. S. J. and N. J. Rogers and they took possession of same, but that they refuse to pay the $10,221. in accordance with the contract.

That Dr. Baker was killed in an automobile accident on 21 November, 1955.

Defendants answered that the written contract sued on was merely a memorandum of preliminary negotiations looking forward to the execution of a contract in the future and was consequently not a valid contract; and in the alternative defendants plead that the primary consideration was for the personal service to be rendered by Dr. Baker, and he having died, there was no liability on the contract.

Trial was to a jury. The record reflects that Dr. Baker wanted to sell Kent Optical Company and that Dr. Baker and Dr. Rogers together, took a detailed inventory of the contents of Kent Optical Company in Victoria, Texas, to arrive at the $10,221. figure; that after the execution of the contract, Texas State Optical Company took over the business, changed the lock on the door; collected accounts due; referred patients to their other Victoria location for examination; employed Dr.'Baker’s office assistant; and had the radio station change the advertising announcement from “Kent Optical Company” to “Texas State Optical Company” at two locations. Dr. Rogers testified that the contract was contingent on Dr. Baker’s going to work for Texas State Optical Company; the former office assistant, Mrs. Elliott, testified that Dr. Baker was trying to establish a business in Marfa, and only desired Dr. Rogers to agree to employ him so that he would have a place, if the Marfa location fell through. Plaintiffs tendered evidence that the lease arrangement on Kent Optical location had been worked out to both parties’ satisfaction, which evidence was excluded by the Trial Court. As noted, Dr. Baker was killed in an automobile accident on 21 November 1955, and thereafter defendant refused to pay the $10,221.

' At the close of the plaintiff’s evidence, defendants' moved for 'an instructed verdict on the ground that the evidence conclusively demonstrated ‘as a matter of law that the minds of the parties had never met on all of the essential terms of the proposed contract; that the contract declared upon was a memorandum constituting preliminary negotiations looking forward to the execution'of a contract in the future; and that the consideration for the contract was Dr. Baker’s personal services to be rendered in the future, and which he could not render due to his death.

The Trial Court granted such motion for instructed verdict and entered judgment that plaintiff take nothing.

Plaintiff appeals, contending: 1) that the- Trial Court erred in instructing the jury to -return a verdict for defendants; 2) that there were several fact issues for determination by the jury; 3) that the Trial Court erred in- not permitting plaintiff to show by competent evidence that the lease arrangement -mentioned in the 3rd paragraph .of the contract had been resolved to the complete satisfaction of all the parties or-their legal representatives, ..

The contract herein is composed of 3 paragraphs, all in Dr. Rogers’ handwriting.

The 1st paragraph is an unequivocal agreement for defendants to purchase Kent Optical Company and its contents for $10,221. We see no ambiguity in this paragraph. In the 2nd paragraph defendant agrees to employ Dr. Baker for $8000. per year plus a bonus, the details of which were to be covered in a further written memorandum. Dr. Rogers testified that Dr. Baker had agreed to go to work for Texas State Optical. Mrs. Elliott, Dr. Baker’s office assistant, testified that Dr. Baker was planning to open an office in Marfa, and that he just wanted to be assured of a job with Texas State Optical, if he should need it. Moreover, Dr. Rogers, in his deposition taken prior to trial, stated that Dr. Baker wanted some assurance that he would have a position with Texas State Optical. The foregoing substantiates the testimony of Mrs. Elliott.

The 3rd paragraph of the contract provided that the lease arrangements were to he worked out to the satisfaction of both parties. Plaintiffs tendered - evidence that this had been done, but such evidence was excluded by the trial court.

We think that paragraph 2, supra, is ambiguous as to whether Dr. Baker agreed to go to work for Texas State Optical. The evidence as to the intention of the parties in this regard is conflicting.

In determining whether a motion for an instructed verdict was properly or improperly granted, we are bound to view the facts and the inferences drawn therefrom in a light most favorable to the party against whom the instructed verdict was granted. Further, the evidence and all legal inferences drawn therefrom must be in the most favorable light against an instructed verdict. Our courts further say that it is only where there is no evidence or where the evidence is of such a character as to be of no probative force or value, that a Trial Judge may-take a case from a jury and himself decide the issues. Mundy v. Stiles, Tex.Civ.App., n.r.e., 257 S.W.2d 750; Duke v. Garrett, Tex.Civ.App. (n.w.h.) 263 S.W.2d 680; Hubbard v. Gray Tool Co., Tex. Civ.App. (n.r.e.) 307 S.W.2d 599. See also: Burt v. Lochausen, 151 Tex. 289, 249 S.W. 2d 194; Olds v. Traylor, Tex.Civ.App., W/E Ref., 180 S.W.2d 511.

We think that a fact issue was tendered as to whether Dr. Baker was to go to work for Texas State Optical, and that the instructed verdict for defendant was improper.

Further, upon another trial, tendered evidence as to the satisfaction of the parties to the lease arrangements, if properly proved up, should be admitted.

Reversed and remanded.


author: CHAPMAN, Justice.

text:
    Delwood Morris LOCKE, Appellant, v. W. C. RATLIFF, Appellee.
    No. 7088.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 16, 1961.
    Rehearing Denied Nov. 13, 1961.

      Albert Smith, Lubbock, for appellant.
    R. C. Hamilton, Kolander, Moser & Templeton, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal from a judgment of the court below for personal injuries, loss of earnings, and property damages, based upon a jury verdict. The litigation grew out of an automobile intersection collision. Ap-pellee, W. C. Ratliff, was plaintiff below. Defendant below, Delwood Morris Locke, being a minor, Albert Smith was appointed his attorney and guardian ad litem. Appeal was perfected by the minor individually and by his guardian ad litem. The parties will hereafter be referred to as appellant and appellee.

Appellant’s first point asserts error of the trial court in refusing to give the following special issue and accompanying instruction, together with its negligence and proximate cause components:

“(a) Do you find, from a preponderance of the evidence, that on the occasion in question Mr. Ratliff failed to grant the right of way to the car being driven by Delwood Locke?
“You are instructed that when two vehicles enter the intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, unless, there is a stop sign or yield right of way sign, properly placed and properly erected by the proper authority, requiring traffic approaching the intersection from another direction to stop or yield the right of way.”

Taking' the evidence in its most favorable ■light to the appellant the appellee was proceeding south at 20 miles per hour on Lincoln St., a two way street in the city of Amarillo. Appellant testified he was going east at about 30 miles per hour on 11th St. and was traveling in the north lane on a one way street. He also testified:

“Q. At about what part of that intersection did the collision happen? ' A. Not far from the center.”

The physical facts show without controversy that the front part of appellant’s automobile struck the right rear door of appel-lee’s car, whirling it around to where it was facing west when it stopped. From this state of facts it would indicate that appel-lee’s machine entered the intersection first, since it was traveling south, was struck at a time when the two machines were not far from the center of the intersection, and only lacked the distance from its rear door to the back of its car of having sufficiently cleared the intersection for appellant’s machine to have passed through the intersection behind appellee’s car even though appellant was traveling one third faster.

Appellant did not request an issue as to whether the two vehicles entered the intersection at approximately the same time within the purview of Article 6701d, Section 71(b), Vernon’s Ann.Civ.St., nor did his explanation permit such consideration by the jury in order to find that appellee failed to grant the right of way. To the contrary, the explanation given in connection with the requested issue simply assumed that they entered at approximately the same time, an assumption that could not be made as a matter of law from the facts in this case.

There is the question in this case of a stop sign at the intersection which required those traveling on 11th street to stop before proceeding into the intersection of Lincoln at 11th street. However, there is evidence to the effect that the sign had been pushed out to the edge of the southwest corner of the intersection and that the word “Stop” was not visible to appellant as he approached Lincoln street. Additionally, the jury found there was not a stop sign facing appellant. Therefore, we are giving the appellant the benefit of that testimony and finding, but even in doing so we still have to hold that the trial court correctly refused the required issue and accompanying instruction because it assumed the cars entered the intersection at approximately the same time.

This court has heretofore approved an instruction relative to the legal rights of persons operating motor vehicles at street intersections given in connection with issues inquiring of the jury who entered the intersection first or if they entered the same time. There we said: “The trial court’s instructions correctly pronounce the law in regard to the right of way at intersections and made the law applicable to both parties in submitting the issues above referred to. No such issues were tendered in connection with appellants issue here complained about but such issue and instruction assumed the vehicles entered the intersection at the same time. We therefore find no error in the record before us of the trial court’s refusal to give the issue as requested, the driver to the right not being entitled to the right of way under Art. 6701d, Sec. 71(b), unless they entered the intersection at approximately the same time.

Appellant also complains of the failure of the trial court to give his requested issue No. 2 which reads as follows:

“Do you find, from a preponderance of the evidence, that the failure of Mr. Ratliff to apply his brakes in time to avoid the collision, and his failure to sound his horn and in that manner warn the defendant that he did not intend to yield the right of way, if you have found he did not intend to yield the right of way, was negligence?
“Answer Yes or No;
“Answer-.”

As may be readily seen, this requested issue is duplicitous and multifarious, requiring a finding in one question of failure to apply brakes, failure’ to sound the horn, and a finding that appellee did not intend to yield the right of way.

Rule 277, Vernon’s Ann.Texas Rules of Civil Procedure, provides in part that “ * * * special issues shall be submitted distinctly and separately and each issue shall be answered by the jury separately * * Rule ■279 provides in part as follows: “Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment.”

We do not believe the issue tendered with its component part is a proper one for global submission and therefore hold the trial court did not commit reversible error in refusing it in the form tendered. Appellant’s next two points concern the alleged error of the court in permitting appellee’s counsel to question witnesses concerning the stop sign over objections that there had been no showing that the sign was erected by proper authorities. Under our disposition of the case we believe that question is not of material significance. It is unnecessary for us to hold whether such evidence was or was not admissible because even if we should say, arguendo, it was not admissible there could not possibly have been any harm resulting from it under this record, since the stop sign does not figure in our disposition of the case. Rule 434, V.A. T.R.

Under the next point-appellant urges error of the court in entering a judgment without giving appellant an opportunity to file a motion asking the court to disregard the jury finding of $300 difference in the market value of appellee’s automobile immediately before and immediately after the collision.

Appellant’s brief asserts that one of the counsel for appellee had what amounted to an understanding with appellant’s counsel that judgment would not be entered until the látter had an opportunity to examine it and approve it as to form. Without knowledge of such understanding co-counsel for appellee, not of the same firm, presented the judgment to the trial court and if was signed and entered without counsel for appellant, who was in the trial of another 'case in another county, having the opportunity to examine the judgment and approve or disapprove it as to form. Though this writer as a trial judge always gave both parties an opportunity to examine judgments before entering them and to approve or disapprove them as to form, we do not feel justified in sending this case back for aiiothertrial in the absence of some rule of statute ór case law permitting us to do so. Appellant admits by brief that he has found no authority to justify his position on this point. Neither have we found any specific authóritv. Rule 305, V.A.T.R., provides counsel for whom judgment is rendered shall prepare the form of judgment to be entered and submit it to the court. Rule 306a,' V.A.T.R., provides in effect that judges are directed to cause, and attorneys . . . are directed to use their efforts to cause all judgments . . . to be reduced to writing and signed by the trial judge . . . . Neither of these rules provide that counsel for the losing side should be entitled as a matter of law to see'the judgment before it is entered and we know of no rule that would give its the authority to reverse the case because such procedure was not followed. We believe justice would be better served if both parties were given the right to approve the judgment as to form before it is entered but we know of no authority by which we may require it under present existing rules.

Appellee next urges reversible error in Mr. Hamilton’s closing argument wherein he said: “Bring back a verdict which will allow him to recover his damages.”

Immediately following this statement Mr. Smith objected and moved the court to declare a mis-trial. The motion to declare a mis-trial was denied but the court instructed the jury to answer the questions as they found the facts to be without regard to the consequences.

After counsel had discussed the issues and argued to the jury as to how he thought they should be answered we believe it was improper for him to tell the jury to bring back a verdict which would entitle his client to recover his damages. However, we believe appellant has wholly failed to show from the record that such argument probably caused the rendition of an improper judgment in the case. Suit was for $7,500 for personal injuries and loss of earnings, and the testimony would probably have supported that much damages. The testimony was without contradiction that the difference in the value of appellee’s automobile immediately before and immediately after the collision was $700. The jury only ah lowed $300 for his automobile and $1,950 for all other damages.

In an interpretation of Rule 434, V.A. T.R., our Supreme Court in Aultman et al. v. Dallas Railway & Terminal Co., 260 S.W.2d 596, 599, has said:

“Before a judgment is reversed because of argument of counsel two things must appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.”

We are of the firm opinion that such argument did not cause the rendition of an improper judgment. Both cases cited by appellant for his support on this point were decided before the new rules and under the presumed error doctrine. Such cases have little value as precedents. Aultman v. Dallas Railway & Terminal Co., supra.

Accordingly, the judgment of the trial court is affirmed.

      . Appellee testified he was going 15 to 20 miles per hour.

      . Dallas Railway & Terminal Co. v. Orr, Tex.Civ.App., 210 S.W.2d 863.

      . The issues were those inquiring if plaintiff entered the intersection first, if de-fondant entered the intersection first, and if they entered at the same time.

      .All emphasis herein are ours unless otherwise shown.


author: DIXON, Chief Justice.

text:
    THRIFT FINANCE COMPANY et al., Appellants, v. STATE of Texas, Appellee.
    No. 15832.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 27, 1961.
    Rehearing Denied Dec. 1, 1961.
    Weinberg & Sandoloski, Dallas, for appellants.
    Will Wilson, Atty. Gen., and Jack N. Price, Asst. Atty. Gen., for appellee.
   DIXON, Chief Justice.

On April 17, 1959 the State of Texas through its Attorney General filed suit pursuant to Art. 4646b, Vernon’s Ann.Civ.St. against Delmas M. Pulley, individually and doing business as Thrift Finance Service to enjoin the latter from violating the usury laws, Art. 16, sec. 11 of the State Constitution, Vernon’s Ann.St. and Art. 5069, V. A.C.S.

Sec. 1 of Art. 4646b, V.A.C.S.'provides that the Attorney General may institute suit to enjoin any person from charging usury who is engaged in the business of habitually loaning money for the use and detention of which usurious interest has been charged against or contracted to be paid by the borrower.

Sec. 2 of the Statute defines the business of habitually loaning money as “the making of as many as three (3) loans on which or in connection with which usurious interest is charged or contracted for within a period of six (6) months next preceding the filing of any suit.”

Sec. 2a of the Statute provides that actual and necessary expenses permitted and authorized by law shall not be considered interest; and that there shall exist a prima facie presumption that the actual and necessary expenses of making any loan is $1.00 for each $50.00 loaned.

On June 17, 1960 the trial court sustained a motion for summary judgment, and a judgment was accordingly entered permanently enjoining appellant Pulley from “demanding, receiving or by use of any means attempting to collect from a borrower usurious interest on account of any loan, and from thereafter charging any borrower usurious interest or contracting for any usurious interest in the State of Texas.”

In his first and fourth points on appeal appellant contends that it was error to render summary judgment against him because the record discloses a number of fact issues. It is appellant’s position that (1) since the notes he received from the borrower do not show any usury on their faces it is necessary to determine the intention of the lender and to ascertain whether the lender intended to charge or deduct interest in a greater amount than that allowed by law; and (2) there is a fact issue as to whether usurious interest was actually charged, and, if so, whether appellant made three or -more usurious loans within six months of the filing of suit.

We are unable to agree with appellant that any material fact issues are disclosed by the record. Admissions made by appellant himself in an oral deposition are sufficient to support the court’s judgment.

Appellant testified that he operates on the “open note” plan, that is, the gross amount due as shown on the note is the amount of money actually loaned plus interest for the duration of the note. For example, a loan of $25.00 cash was made to a person named Everado Montellano. The borrower signed a note for $33.60 payable in eight weekly installments of $4.20 each. Appellant himself identified the difference of $8.60 as interest. Obviously the interest on the loan was greatly in excess of 10%, the legal rate.

Claude Tate, Assistant State Auditor, in an affidavit which is part of the record, says that even if a service fee of $J.00 for necessary expenses is presumed in accordance with the Statute, the charge of $7.60 as interest on the $25.00 principal of the above loan amounts to 325.63.% per annum.

Appellant identified several exhibits described as “Manager’s Reports” showing numerous loans made to various persons similar to the loan made to Everado Montel-lano. These loans were all made during a period within six months next preceding the filing of appellee’s petition.

Throughout most of his deposition appellant referred to the difference between the amount actually loaned and the amount shown on the notes as interest. Toward the latter part of his deposition he mentioned certain notes in which this difference also included a “service fee”. However, under the circumstances this testimony cannot be accepted as raising a doubt that the interest charged was usurious. Appellant made no attempt to break down or itemize the so-called service fees. Nowhere does he claim that in any case the “fee” exceeded the $1.00 per $50.00 loaned, which $1.00 is the amount of necessary expenses which may be presumed under the Statute. If he were to claim that the amount of the legitimate service fee exceeded the statutory presumption of $1.00, the burden would be on him to prove the amount. Watts v. Mann, Tex.Civ.App., 187 S.W.2d 917, 929 (Syl. 40).

Appellant testified that he does not operate as a broker lending money for other persons, so there could not have been a ■brokerage charge. He does not operate under a credit insurance plan, so there could not have been a fee for credit- insurance. He does operate in accordance with a rate chart in which the rates are set out substantially as described in the Everado Mon-tellano loan.

Appellant had earlier testified to the amount of rent he paid and to the salary of a bookkeeper. He also referred to his bill for postage. From his testimony it is plain that he attempted to include these ordinary overhead expenses in the so-called ■“service fee”. But ordinary overhead expenses incurred in operating a business of lending money are not the type of expenses for which a service charge may be made against borrowers. Eastern Mortgage & Securities Co. v. Collins, Tex.Civ.App., 118 S.W.2d 479; Baltimore Trust Co. v. Sanders, Tex.Civ.App., 105 S.W.2d 710; National Bond & Mortgage Corp., v. Mahanay, Tex.Civ.App., 70 S.W.2d 236; Forreston State Bank v. Brooks, Tex.Civ.App., 51 S.W.2d 645.

There is no doubt that appellant intended to collect a greater rate of interest than 10%. We quote from his oral deposition:

“Q. And you never did operate under what we call the brokerage plan? A. No, sir. * * *
“Q. They wanted to operate under their system instead of operating like' you are? A. Well, you know, to be honest with you, I guess that is the reason that I am not borrowing through them. I did not think that their method was a good method, and no more proper than what I am doing today, and, if I felt like it was — I am not saying that I am right — but when they wanted me to borrow money from them on whatever policies they had, if I had thought that it was better, I would have gone along with them.” (Emphasis ours).

Appellant’s first and fourth points on appeal are overruled.

The substance of appellant’s second and third points is that it was error to render summary judgment in favor of appellee since appellee’s petition is not verified as provided by Rule 682, Texas Rules of Civil Procedure, nor are any affidavits from borrowers on file in this cause.

Again we are unable to agree with appellant. Appellee’s petition, though not verified, contains detailed allegations, which if proved, make out a case of violation of our usury laws. These allegations were, proved beyond all question by appellant’s own testimony contained in his signed sworn oral depositions. Thus the truth of the allegations is established by undisputed evidence, the legal effect of which not only equals, but far exceeds that of a sworn pleading.

We call attention, too, to the fact that the judgment entered by the court, though a summary judgment, was a final judgment for a permanent injunction. It was not merely a temporary injunction. The court had before it evidence to support the final judgment. The case of Wilson Finance Co. v. State of Texas, Tex.Civ.App., 342 S.W. 2d 117, involved a trial on the merits, not a summary judgment. But the court reached the same conclusion that we have reached here in regard to a failure to verify a pleading. We think the same reasons which guided the court to its decision in the Wilson case are applicable here. See also Magnolia Petroleum Co. v. State, Tex.Civ. App., 218 S.W.2d 855; Hamblen v. Knight, 60 Tex. 36; Johnson v. Daniel, 25 Tex.Civ. App., 587, 63 S.W. 1032; Edrington v. Allsbrooks, 21 Tex. 186; Eccles v. Daniels, 16 Tex. 136, 137; and 27A Tex.Jur. 294. Appellant’s second and third points are overruled.

The judgment of the trial court is affirmed.

WILLIAMS, J., not sitting.


text:
    Robert Murray GILLELAND, Appellant, v. Mrs. Gertrude MEADOWS et al., Appellees.
    No. 15922.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 3, 1961.
    Rehearing Denied Dec. 1, 1961.
    Esir Tobolowsky and E. D. Hurt, Dallas, for appellant.
    G. IT. Kelsoe, Jr., Dallas, for appellees.
   DIXON, Chief Justice.

Our opinion heretofore delivered in this case is withdrawn and the following opinion is substituted.

This is a partition suit in which, appellant Robert Murray Gilleland was plaintiff in the trial court and the defendants were his former wife Gertrude Meadows, her present husband; E. C. Meadows, and three minor children of Gilleland and his former wife.

Preliminary Statement

Robert Gilleland and Gertrude Gilleland were divorced in 1952 in a suit instituted by the wife. The decree provided that the community homestead of the parties at 2923 Grafton Street in the City of Dallas, Texas be set aside to the wife Gertrude Gilleland “for the use and benefit of the three minor -children, provided, howeverr that the plaintiff remains a single ■person, until the youngest of said -children shall become 21 years of age.” ’’(Emphasis ours). Soon after the marriage of Gertrude Gille-land to E. C. Meadows on November 28, 1957, appellant Gilleland instituted this partition suit.

This is the second appeal of the case. At a former trial judgment was rendered against appellant Gilleland, denying his right to a partition of the Grafton Street property. The trial court held that the part of the divorce judgment reading “providing, however, that plaintiff remains a single person” was contrary to public policy, void and unenforceable. Upon appeal the judgment in the partition suit was reversed. The Court of Civil Appeals at Waco held that the above quoted clause in the divorce judgment was not an attempt to limit the right of Gertrude Gilleland to remarry, but was merely a limitation on the right of Gertrude Gilleland to use appellant Robert Gilleland’s interest in the Grafton Street property in the event she did remarry. Gilleland v. Meadows, Tex.Civ.App., 329 S.W.2d 485.

The opinion in the above appeal quotes from the findings of fact filed by the trial court following the first trial of the partition suit. These findings recite that at the time of the first trial of the partition suit two of the children were over 21 years of age, were married and did not live on the property; and that the third child was then 19 years of 'age, living on the property and would become 21 years of age on September 5, 1960. ■ - .

Following reversal on appeal and remand of the cause the'trial court ordered partition of the property. A receiver was appointed and the property on Grafton Street was sold by the receiver on July 8, 1960 to ap-pellee Gertrude Meadows and her husband, E. C. Meadows for a consideration of $7,300. ■ ■

■ The -parties have stipulated that the net proceeds to be distributed amount to $4,-823.-19. This includes small amounts ’on hand in addition to the net proceeds -of the sale -of the Grafton Street property-. The court allowed - Gertrude Meadows certain" credits for money expended by her, but denied appellant Gilleland’s claim for the rental value of the use of the property by Gertrude Meadows. The court then concluded that out of the $4,823.19 on hand, Gertrude Meadows was entitled to $4,372.00 and appellant Gilleland was entitled to $451.19. As Gertrude Meadows had already drawn an advance of $2,000 against her share of the proceeds, there remained only $2,372 to be paid to her. From this judgment the present appeal was taken by Robert Gilleland.

Facts

The record does not include a statement of facts. However the trial court made extensive findings of fact which are shown in the record. In the absence of a statement of facts we must presume that the findings of fact made by the court were supported by the evidence. Continental Fire & Casualty Ins. Corp. v. Surber, Tex. Civ.App., 231 S.W.2d 750; Chapman v. Harris, Tex.Civ.App., 231 S.W.2d 549. The facts established by the court’s findings and by other parts of the record are sufficient to enable us to decide the law issues applicable to the case.

In addition to- the facts already stated in this opinion, the following facts have been established beyond dispute: appellant Gil-leland and his wife Gertrude Gilleland each owned an undivided one-half interest in the Grafton Street property following their divorce in 1952, and neither party has transferred his interest except through the receiver’s sale of July 8, 1960; after the divorce Gertrude Gilleland made payments out of 'her separate funds on the lien indebtedness and on taxes and insurance on the property in an amount of $2,872; she also made improvements on the property out of hér separate funds which-increased and enhanced the value of the property to the extent of $-1,500; -thus Gertrude Gil-leland became entitled to a total credit for lien payments, insurance, taxes and improvements" of $4,372; Gertrude Gilleland married E. C-. Meadows -On November 28, 1957, and both Gertrude Meadows and E. C. Meadows have lived in the house since the date of the marriage; the reasonable rental value of the Grafton street property (including the improvements that were made) from the beginning of the year 1956 to the date of the sale by the receiver on July 8, 1960 was $62.50 per month; neither Gertrude Gilleland nor anyone else has paid .appellant any rent for the use and occupancy of the Grafton Street property since the date of the divorce in 1952.

Opinion

The trial court concluded as a matter of law that Mrs. Meadows was entitled to reimbursement in the amount of $4,372 for the money paid by her out of her separate funds since the divorce on the lien, taxes, insurance and improvements on the Grafton Street property. We think the court was correct in so concluding.

The trial court further concluded that appellant Gilleland was not entitled to anything for the use of the property by Mrs. Meadows continuously since the divorce of the parties in 1952. With this conclusion of law we do not agree.

The rule as we understand it is stated in Roberts et al. v. Roberts et al., 136 Tex. 255, 150 S.W.2d 236, 238, 136 A.L.R. 1019; and in Rucker v. Butcher, Tex.Civ.App., 300 S.W.2d 183, 185. We quote from the opinion of our Supreme Court in the Roberts case:

“ * * * * while at common law, under the rule above announced, a tenant in common who occupies joint property without complaint from his •cotenants is not required to account for the value of the use thereof yet when he resorts to equity and seeks contribution from his cotenants for funds expended in the betterment of the common estate, it would seem that he should be required to do equity and allow as an offset the value of the use of the premises. 62 C.J. 478; Clute v. Clute, 197 N.Y. 439, 90 N.E. 988, 37 L.R.A.,N.S., 146, 134 Am.St.Rep. 891; Ward v. Pipkin, 181 Ark. 736, 27 S.W. 2d 523; Patterson v. Miller, 154 Ark. 124, 241 S.W. 875; Engle v. Terrell, 281 Ky. 88, 134 S.W.2d 980; Mast-baum v. Mastbaum, 126 N.J.Eq. 366, 9 A.2d 51.”

In the instant case Gertrude Meadows resorted to equity, and elected to seek contribution from her cotenant, appellant, Gil-leland, for funds expended by her in the betterment of their common property. This she was entitled to do. But having so elected she will be required to do equity by allowing her cotenant an offset against her claim for contribution — the offset being the rental value of appellant’s interest in the property while it was being used by Gertrude Meadows.

However, we do not agree with appellant’s contention as asserted in his two points on appeal where he says that he is entitled to such offset for the entire period from the date of the divorce, August 20, 1952, to the end of the year 1959. From the date of the divorce until Gertrude Gilleland married E. C. Meadows on November 28, 1957, her possession and use of the property was by virtue of the provision in the original divorce judgment of 1952 whereby the Grafton Street property was set aside to Gertrude Gilleland for the use and benefit of the minor children, “provided, however, that the plaintiff remains a single person”. Therefore, she was not accountable to appellant for rent prior to the time she married E. C. Meadows.

It is to be remembered that the limiting clause above quoted was upheld in the first appeal. Gilleland v. Meadows et al., Tex. Civ.App. 329 S.W.2d 485. Therefore, Gertrude Meadows’ right of exclusive possession by virtue of the divorce judgment terminated when she married E. C. Meadows on November 28, 1957. It was then, but not until then, that appellant Gilleland became entitled to a partition of the property; and it was then, but not until then, that accountability began running against Gertrude Meadows for the use of the property.

As disclosed by his two points on appeal appellant, apparently seeks an offset credit for the use of the property only through the year 1959. He does not seek credit for the use of the property clear up to the time of the receiver’s sale, July 8, 1960.

With the established facts before us the offset to which appellant is entitled becomes a mere matter of arithmetical calculation.

Appellant was entitled to be credited with the rental value of his interest in the Grafton Street property from the date of the marriage of Gertrude Meadows, November 28, 1957, to the end of the year 1959, a period of 25¾5 months. At $62.50 per month the rental value of the whole property for the period was $1,566.67. Since appellant was the owner of only an undivided one-half interest in the property he was entitled to only one-half of its rental value, or $783.33.

In other words out of the total of $4,823.19 to be distributed the amount allowed to appellant Gilleland should be increased from $451.19 by adding the sum of $783.33, making a total allowance to Gille-land of $1,234.52. The amount allowed to Gertrude Meadows should be decreased from $4,372 by subtracting the sum of $783.33, leaving a total allowance to Gertrude Meadows of $3,588.67. Since it is undisputed that Gertrude Meadows has already been paid an advance of $2,000 out of her share of the proceeds, the balance still remaining to be paid to her is $1,588.-67.

Appellant’s two points on appeal will be sustained only in part as above indicated.

The judgment of the trial court will be modified so that Gertrude Meadows will be paid the sum of $1,588.67 which will be in addition to the $2,000 already paid to her. Appellant Gilleland will be paid the sum of $1,234.52. As so modified the judgment of the trial court is affirmed.

Costs incurred. subsequent to the decision of the Court of Civil Appeals in the first appeal of this case will be taxed’ equally against the parties. All costs incurred through the first appeal of the case will be taxed against appellees.

WILLIAMS, J., not sitting.