author: YOUNG, Justice.

text:
    GROGAN LORD & COMPANY, Appellant, v. The STATE of Texas, Appellee.
    No. 16089.
    Court of Civil Appeals of Texas. Dallas.
    May 25, 1962.
    Rehearing Denied June 22, 1962.
    Woodgate, Richards & McElhaney, John H. McElhaney, Dallas, for appellant.
    Henry Wade, Dist. Atty., and John J. Orvis, Asst. Dist. Atty., Dallas, for ap-pellee.
   YOUNG, Justice.

As succinctly stated by appellant; “this was a suit by the State of Texas for the forfeiture of a 1959 Ford truck which was alleged to have been used in the transportation of contraband narcotics. The only issue on appeal is whether the proceeds of the sale of the vehicle shall be awarded to the State, or to the mortgagee, Grogan Lord & Company, who unsuccessfully attempted to intervene in the trial court, and is now before this Court as appellant”.

The suit was pursuant to Art. 725d, Vernon’s Ann.Penal Code. On February 16, 1961 the State of Texas filed an original petition for forfeiture of the vehicle in question, allegedly seized January 7, 1961, and stating that the Fair Park National Bank was the record mortgagee; this institution filing a disclaimer to effect that it had not been the mortgag-ee of the vehicle since May 1, 1959. On March 7, 1961 appellant filed its petition in intervention, alleging it to be the mortgagee; attaching thereto a certificate of title issued by the State Highway Department of date February 2, 1961 as such lien holder. This was fourteen days before the filing of the State’s petition for forfeiture, but subsequent to date of seizure.

Later the State moved and contended that appellant’s petition in intervention be stricken because the Certificate of Title of Gro-gan Lord & Company, as mortgagee, was not shown to be outstanding on date of seizure “as required by the Certificate of Title Act”, 1436-1, §§ 3, 24 and 44; also Art. 725d, Penal Code, § 4, providing that notice of forfeiture be served upon “any registered lien holder”. On July 29, 1961 the intervenor’s petition was stricken upon hearing; and on later trial to the merits, a judgment of forfeiture was entered on December 6, 1961. In this connection, there is no dispute that Grogan Lord & Company loaned the money and took a mortgage on the vehicle on December 20, 1960, also that the transportation of narcotics took place later, or on January 7, 1961; appellant not applying for a Certificate of Title reflecting this loan until January IS, 1961, its Certificate of Title issuing on February 2, 1961.

Art. 725d, Penal Code provides: “At the hearing, any claimant of any right, title or interest in the vessel, vehicle or aircraft may prove his lien, mortgage or conditional sales contract, to be bona fide and created without knowledge that the vessel, vehicle or aircraft was to be used in violation of this Act.” Subds. 7 and 8, also identify a claimant as “any bona fide lien holder, mortgagee or conditional vendor.”

From above statement of facts, appellant qualified as such “claimant” entitled to the proceeds of sale and the trial court erred in not so holding. It is not disputed that appellant’s lien was created without knowledge that the vehicle was to be used in violation of the Act (Subd. 6) And appellee’s counterpoint is not well taken that “assertion of a lien on a motor vehicle only after it being seized for the transportation and possession of contraband narcotic drugs, is an attempt to circumvent the Certificate of Title Act and the forfeiture of the seized vehicle.” (Emphasis ours) The attack on the “bona fides” of appellant upon this ground is a nonsequitur as the statute does not require the claimant to be a registered lien holder on date of seizure. It was indeed a lien holder on date of filing of petition for forfeiture and thus entitled to the notice proviso of § 6, Art. 725d, Penal Code, instead of the Fair Park National Bank which had disclaimed.

The judgment of forfeiture is affirmed, but the award of proceeds from sale of the condemned vehicle to appellee is reversed and judgment is here rendered awarding such proceeds to appellant Grogan Lord & Company as prayed.

Affirmed in part and reversed and rendered in part.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    Bert N. LEE and wife, Gladys M. Lee, Appellants, v. J. B. KING and wife, Opal F. King, Appellees.
    No. 7401.
    Court of Civil Appeals of Texas. Texarkana.
    May 29, 1962.

      William M. Steger, Wilson, Miller, Spivey & Steger, Tom Banks, Tyler, for appellants.
    Will Pace, Tyler, for appellees.
   FANNING, Justice.

J. B. King and wife, Opal F. King, sued Bert N. Lee and wife, Gladys M. Lee, seeking judgment against the Lees for the balance of purchase money due on a tract of land and improvements sold by warranty deed from plaintiffs to defendants, located in Smith County, Texas, and which was described as 10 acres of land, more or less. Foreclosure of both express and implied vendor liens against the property was also sought by the Kings.

The Lees filed an original answer and cross-action on November 21, 1960, alleging partial failure of title (the western 1.9605 acre portion of the land conveyed to them) and sought reformation and correction of the note, deed and liens so as to restrict the conveyance to the property to which the Kings had a clear record title to, and sought a judgment determining and fixing the amount of loss and damages by purchasers, which they claimed to be $8,000.00. The Lees did not seek recision of the sale in such pleading filed on November 21, 1960. In their depositions given on December 10, 1960, they also stated to the effect that they desired to keep the property sold to them by the Kings, but also desired to have the sum of $8,000 deducted from the purchase price by reason of the alleged defect in title of the 1.9605 strip of land.

On March 28, 1961, the Lees filed an amended answer and cross-action in which they abandoned their request for reformation of the transaction and their suit for damages and sought for the first time to rescind and cancel the entire transaction and sale. In connection with such pleading the Lees tendered a deed to the Kings with special warranty into the registry of the court, describing the land as originally conveyed and vacated the premises which they had had possession of since the date of the prior deed.

Trial was to the court without the aid of a jury and judgment was rendered for plaintiffs for the balance of purchase money due, interest, attorneys’ fees, costs of court and foreclosure of the vendors’ liens against the property. The Lees have appealed. Original findings of fact and conclusions of law were made by the trial court. The trial court also made certain additional and amended findings of fact, and also refused certain additional and amended findings of fact requested by the Lees.

The original purchase price of the 10 acre, more or less, tract (which actually contained 9.535 acres, more or less) with improvements thereon, was $40,000.00. The Lees paid $1,000.00 earnest money when they made the contract to purchase. Under the purchase contract, the purchasers were entitled to have an up-to-date abstract of title furnished and examined by an attorney of their choice, or they could secure title insurance if they wished. Although an up-to-date abstract was available and seller’s agent advised the Lees to have an attorney of their choice to examine the abstract before purchasing the property the Lees did not avail themselves of this opportunity and purchased the property without having the title examined. The Kings executed a warranty deed to the Lees, reciting a cash consideration of $20,-000.00 and a vendor’s lien note of $20,000.00 for the balance. At the time of the delivery of the deed on September 19, 1960, the Lees gave a check to Mr. and Mrs. King for $11,088.15, and a separate check for $7,911.85 to a Tyler bank in payment of an outstanding mortgage against the land and the bank executed a release of its mortgage lien. The Lees moved into the large three story clinic on the property immediately and took possession under their deed. Some days later the Lees were successful in stopping payment on the $11,088.15 check given by them to the Kings. They also attempted to stop payment on the $7,911.85 check to the Tyler bank, but were too late on their efforts and said check was paid by the Lees’ bank in Ohio.

On October 18, 1960, after a survey and title examination, the attorney for the Lees wrote the attorney for the Kings that the Kings did not have record title to the western 1.9605 acre portion of the tract conveyed, and that he had advised his clients not to make any payments on the vendor’s lien note, etc.

On October 31, 1961, the Kings as plaintiffs filed their suit against the Lees and, as above stated, on November 21, 1960, the Lees filed their original answer and cross-action above more fully referred to.

After notice and knowledge of all claimed defects in the title the Lees continued to use, occupy and enjoy the premises conveyed to them and withheld same and the purchase price due thereon, and failed to' make any payments on the vendor’s lien note, and treated the property as their own to the complete exclusion of the Kings until on or about March of 1961.

The record title to the western 1.9605 acres of land was not in the Kings. However, this 1.9605 acres was within a fence erected by the Kings several years prior to the sale. The King Clinic, a three story building, was not located on this 1.9605 acre strip, and it and the remaining portion of the tract could be used for a convalescent home, which was the purpose for which the Lees bought the property. The sale of the property was not based on a “per acre” basis, but was sold in gross.

The various original, amended and additional fact findings of the trial court are too voluminous to copy in their entirety here. However, we deem it appropriate to copy original fact findings 19, 20, 21, 22, 23 and 24 as follows:

“(19.) That on or about March of 1961, Mr. and Mrs. Lee moved out of the premises and attempted to surrender the same to Mr. and Mrs. King, but that the attempted surrender was refused by Mr. and Mrs. King. That about the same time, in March of 1961, Mr. and Mrs. Lee filed amended pleadings in the lawsuit in which they sought for the first time to rescind and cancel their contract with the sellers; and that the Lees at such time completely abandoned any action for damages. In connection with these amended pleadings Mr. and Mrs. Lee for the first time tendered a deed into the registry of the court by which they sought to reconvey all of the property which had been described in the deed to them from Mr. and Mrs. King.
“(20.) I further find that there was never any threat of eviction to any of the premises upon which were located the buildings and permanent improvements ; that the only threat of eviction to Mr. and Mrs. Lee was to approximate 1.9605 acre western section of the tract conveyed them, and that no substantial threat or real danger of eviction as to this western 1.9605 section occurred sooner than approximately ninety (90) days prior to the time this lawsuit was tried, and that at such time that the defendant Bert N. Lee and wife, Gladys M. Lee had already failed to make several payments due under the express vendor’s lien held by sellers.
“(21.) I further find that at the time the defendants and cross-plaintiffs, Mr. and Mrs. Lee, instructed their attorney to ask for reformation of the deed and for damages in their initial pleadings, that at such time they had the benefit of substantially the same knowledge as to lack of partial record title and other defects which they had at the time they amended their pleadings in March of 1961 and sought for the first time to rescind and cancel the entire transaction; and I find that they had substantially the same knowledge of lack of partial record title and other defects on all interim dates.
“(22.) I further find that after knowledge of title or other defects that the defendants and cross-plaintiffs, Bert N. Lee and wife, Gladys M. Lee, withheld all payments due under their agreement with the sellers, as well as continuous possession of all and every part of the property conveyed them from the plaintiffs, J. B. King and wife, Opal F. King.
“(23.) I further find that plaintiffs J. B. King and wife, Opal F. King, have never refuted their obligations of warranty of title and there was never any pleading or evidence whatever of any insolvency of sellers, Mr. and Mrs. J. B. King.
“ (24.) I further find that by the time the defendants and cross-plaintiffs, Bert N. Lee and wife, Gladys M. Lee, amended their pleadings and for the first time sought recision and cancellation that it was impossible, and is now impossible to equitably restore all parties to the position they occupied prior to the sale of the property in September of 1960.”

The trial court’s Conclusions of Law were as follows:

“(1.) At the time of execution and delivery of the deed, note, checks, etc. on September 19, 1960, the contract between the defendants and plaintiffs became an executed contract, as distinguished from one merely executory; and at such time the rights and duties of the respective parties had been agreed upon
“(2.) The executed contract was one ‘bilateral’ in nature which had been consummated by the partial payment of the purchase price and promise of additional payment of the remaining portion by the purchasers, on the one hand, in consideration for the promises of the sellers and warranties in the deed conveying the land.
“(3.) Purchasers breached contract when they stopped payment on purchase money check, and breached it thereafter by failing to make any installment payment provided by the lien note and contract.
“(4.) I find as a matter of law that Mr. and Mrs. Bert N. Lee failed to establish the necessary facts which would entitle them to equitable relief and defense against the legal foreclosure suit brought by Mr. and Mrs. King under the particular circumstances involved.
“(5.) I find that Mr. and Mrs. Lee failed to timely offer to do sufficient equity required of them under the circumstances involved. In this connection I find that Mr. and Mrs. Lee never at any time offered or tendered a deed to or possession of any portion of the tract conveyed to them to which they claimed title had failed; and that their tender of a deed to the entire premises in March of 1961 was in connection with their amended pleadings and was collateral to their attempt at rescisión and cancellation.
“(6.) It is the further conclusion of this Court that the purchasers, Mr. and Mrs. Lee, cannot remain in possession of the land to which they claimed a title defect and successfully defend a suit for the purchase money without returning possession of the premises and a deed thereto. They cannot gain the possession of the property by accepting the same under a conveyance and after-wards repudiate the conveyance and retain the benefits conveyed thereby.
“(7.) It is the further, finding of this Court that the defendants and cross-plaintiffs Bert N. Lee and wife, Gladys M. Lee have waived any right which * * * they might have had, if any, to rescind and cancel the contract between the parties by virtue of their actions and conduct after full knowledge of all material facts, including such actions and conduct as: remaining in possession and enjoying the property conveyed for an unreasonable length of time, after notice of any defect, and by treating the property as their own during such time, and by initially taking affirmative action in their pleadings and cross-action to sue the sellers for reformation of the existing contract and for damages for the alleged value of that portion of the property to which they received no record title.
“(8.) I further find that the failure of record title to 1.9605 acre tract would, with reasonable diligence, have been discovered by purchasers prior to the execution of the contract.
“(9.) The failure of record title was only partial and did not materially take away the enjoyment and use for which property was intended, and which can be compensated in damages.”

We hold that the various findings of fact of the trial court are sufficiently supported by ample evidence of probative force.

We hold that the trial court rendered a correct judgment. Many authorities have been cited by the parties, however we deem the most pertinent authorities supportive of the trial court’s judgment are the following: Ogburn v. Whitlow, 80 Tex. 239, 15 S.W. 807; Cooper v. Singleton, 19 Tex. 260; Houston et al. v. Howerton, Tex.Civ.App., 48 S.W.2d 338, wr. dism.; Duke et al. v. Garrett et ux., Tex.Civ.App., 276 S.W.2d 587, wr. ref., n.r.e.; Mooers v. Richardson Petroleum Co., 146 Tex. 174, 204 S.W.2d 606.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.


author: POPE, Justice.

text:
    O. R. MITCHELL MOTORS, INC., Appellant, v. JOE MAROTTA & SONS, INC., Appellee.
    No. 13930.
    Court of Civil Appeals of Texas. San Antonio.
    June 6, 1962.
    Rehearing Denied July 5, 1962.

      Walter G. Lagerquist, Jr., San Antonio,' for appellant.
    Knopp & Berry, Mayo J. Galindo, San Antonio, for appellee.
   POPE, Justice.

Joe Marotta & Sons, Inc., the purchaser of a vehicle, recovered a judgment on a verdict for $3,347.79 against O. R. Mitchell Motors, Inc., the seller, for its breach of contract to procure a credit life insurance policy on the life of Joe Marotta, Sr., in an amount sufficient to discharge plaintiff’s debt in full upon his death. This is not a suit upon an insurance contract. South-land Life Insurance Company v. Statler, 139 Tex. 496, 163 S.W.2d 623. It is a suit for breach of a contract to procure insurance for the plaintiff. Burroughs v. Bunch, Tex.Civ.App., 210 S.W.2d 211, 214; Walcowich Bros. v. Hysaw, Tex.Civ.App., 9 S.W.2d 1046. We must determine whether (1) the evidence supports an agreement that the seller would procure the insurance and whether (2) such an agreement is legal in Texas. We affirm the judgment.

The evidence supports the finding that the seller agreed to procure the insurance. In May, 1959, Joe Marotta, Sr., plaintiff’s president negotiated the purchase of a Dodge truck with Walter Krause, defendant’s salesman. They reached a definite agreement, and on May 20 closed the trade. On June 12, before the due date of the first installment on the purchase price, Marotta died. Not until then did plaintiff learn that its president was not covered by insurance. It then sued Mitchell Motors, the seller, for breach of its contractual duty to procure the policy.

The terms of the trade were evidenced by a written order. These terms are further evidenced by the supporting testimony of Marotta’s two sons and defendant’s salesman, all of whom were present during the negotiations. The order shows that the purchaser agreed to pay $3,797 as the basic price, and shows an additional charge of $654.32, which was described on the order as “Time Charge-Rate Life Insurance.” From this total of $4,451.32, a credit of $1,000 was subtracted because of a vehicle which the purchaser traded to seller. The balance of $3,451.32 was to be discharged by thirty-six monthly payments of $95.87. No one disputes these facts as they appear on the written order.

Included in the $654.32 charge was a $103.52 premium for insurance upon the life of Joe Marotta, plaintiff’s president. The figures prove this. The testimony of Marotta’s sons and defendant’s salesman support it. The salesman qualified his testimony by stating that the seller agreed to obtain the insurance only in the event an insurer would accept Marotta as a risk. The jury did not agree with that qualification. After arriving at the terms of the contract, Mitchell Motors, through its superior officers, approved and fully ratified the agreement. The purchaser executed a conditional sales agreement upon those terms.

Mitchell Motors sold this agreement to Southwest Acceptance Company. Mitchell Motors called upon the finance company to provide insurance on Marotta, hut this was not done. The explanation for this failure was that the insurer which it contacted would not insure Marotta, who was above the age of sixty-five, and because the insured was an individual, whereas the purchaser was a corporation. No one ever informed Marotta or the plaintiff corporation that the insurance was declined. No efforts were made to procure insurance elsewhere. Unknown to plaintiff, the Southwest Acceptance Company on June 3, credited the plaintiff’s account with $103.53, which was the amount charged for the life insurance premiums.

The written order further evidenced the terms of the agreement by stating, “This order contains the entire agreement affecting this purchase, and no other agreement, understanding, representation or warranty of any nature concerning same has been made or entered into or is a part of this transaction. It has been explained to me that I am not required to include any insurance in this transaction except physical damage. Other insurance included if any, are provided with my full knowledge and consent.” The seller, therefore, emphasized and made clear to the. purchaser that he was being charged for credit life insurance. From all this evidence, Mitchell Motors charged the purchaser for credit life insurance and agreed to procure it. Appleman, Insurance Law and Practice, §§ 2270, 2271; 44 C.J.S. Insurance § 225.

The contract to procure insurance was not illegal. Obligations to procure insurance coverage are not unusual. Burroughs v. Bunch, Tex.Civ.App., 210 S.W. 2d 211. The rule is the same in cases of life insurance. Sims Motor-Transport Lines, Inc. v. Davis, 126 Ind.App. 344, 130 N.E.2d 82. A suit will lie for a breach of the obligation to procure insurance. Dufton v. Mechanick’s Nat. Bank, 95 N.H. 299, 62 A.2d 715; Johnson v. Holmes Tuttle Lincoln-Mercury, Inc., 160 Cal.App.2d 290, 325 P.2d 193; Dahlhjelm Garages v. Mercantile Ins. Co. of America, 149 Wash. 184, 270 P. 434; Atlas Auto Finance Co. v. Atkins, 79 Ga.App. 91, 53 S.W.2d 171.

Justification for the failure to conform to the contract is sought by proof that Marotta was above sixty-five years of age and that plaintiff was a corporate purchaser instead of an individual. These may be reasons for an insurance company to decline issuance of a policy, but they are not reasons that a finance company can make a new contract between buyer and seller. Neither the finance company, Mitchell Motors, nor the insurer could unilaterally make a new agreement for the. parties. This is as true with respect to the agreement to procure life insurance as it is with respect to the kind of car sold, the amount of the purchase price, the amount of the trade-in allowance, or the amount of the monthly payments.

If insurance is sought and declined, the remedy is not for one party to create a new agreement, but “to notify the owner of the property in the event of failure of such attempt to procure insurance.” Feldmeyer v. Engelhart, 54 S.D. 81, 222 N.W. 598, 599; Burroughs v. Bunch, 210 S.W. 2d 211, 214. Mitchell Motors suggests in its brief that the insurance was declined for good cause, since the corporation had no insurable interest in its president. In this it is in error. Sec. 3.49 Ins.Code, Vernon’s Tex.Civ.Stats.; McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125; 21 Tex.Law Rev. 648.

The judgment is affirmed.


author: BELL, Chief Justice.

text:
    WALTON TRANSPORTATION COMPANY, Inc., Appellant, v. HOUSTON PIPE LINE COMPANY, Appellee.
    No. 13969.
    Court of Civil Appeals of Texas. Houston.
    June 21, 1962.
    Rehearing Denied July 12, 1962.
    Lloyd L. Oubre, San Antonio, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Robert M. Welch, Jr., Houston, for appellee.
   BELL, Chief Justice.

Appellant sued appellee to recover transportation charges of $12,148.53, the charges being for transportation of steel plate, during October and November, 1957, from Houston to Texas City. Appellant also sought to recover attorney’s fees. The trial court, after a trial before the court without a jury, entered a take nothing judgment.

There are no findings of fact and we must, therefore, presume the court found every fact, which finds support in the evidence, in a manner so as to support its judgment.

It appears that a Mr. Sample owned some steel plate that was stored in Houston with Walton Stevedoring and Contracting Company, herein called Walton and Company. Walton and Company were storing it as a bonded warehouseman. Mr. Sample arranged for appellee to take title to the plate and Walton and Company continued to hold it as a bonded warehouseman for the account of appellee. Mr. Sample became president of Texas Rolling Mills, Inc., herein called Mill. The Mill contemplated building a plant in either Houston or Texas City. The Mill entered into a contract with appellee whereby it was to manufacture pipe for appellee at so much per foot. The Mill had wanted appellee to give it some financial assistance but this was refused. Ap-pellee did, however, agree to help to the extent of contracting for pipe. The plate was to be rolled into pipe. The Mill decided to build its plant at Texas City.

It is not entirely clear from the record as to how negotiations for the removal of the plate from Houston to the plant at Texas City commenced. It is, however, deducible from the evidence that both appellant and Walton and Company, they being associated companies, were interested in developing business relations with the Mill. Walton and Company leased storage or warehousing facilities at Texas City from the Mill. Mr. Olmsted, who represented both appellant and Walton and Company, and Mr. Means, who was representative of appellee, went to see Mr. Hitchcock, the Mill representative, the purpose apparently being to determine if the storage facilities at Texas City were satisfactory to appellee. Too, permission had to be obtained by Walton and Company from ap-pellee to move the plate from its warehouse in Houston to its storage facilities at Texas City. Mr. Means told Mr. Hitchcock and Mr. Olmsted that appellee would grant permission to move the plate but at no expense to appellee. Mr. Olmsted then stated they had a contract with the Mill. Earlier Mr. Roland Walton had talked with Mr. Spur-ger of appellee about getting permission of appellee to move the plate. He did not, nor did Mr. Spurger, remember that they talked about transportation charges. Appellant’s representatives do not claim that appellee expressly agreed to be responsible for the transportation charges. Appellant seeks to imply that appellee agreed to pay the charges if the Mill did not. Appellant’s witnesses say they agreed to “bill” the Mill. That is as far as they go. Too, Mr. Roland Walton said appellant would never have sued appellee if the Railroad Commission had not insisted that appellee was liable to appellant under all the facts.

About October 26, 1957, appellant started moving the plate. On November 1 Mr. Means, for appellee, wrote Walton and Company giving appellee’s authority to move the plate. In the letter it was stated that it was appellee’s understanding that it would not be charged any cost of moving the plate. Then it is stated the purpose of the letter was to “permit” movement of the plate. The plate was to remain with Walton and Company for the account of ap-pellee as a bonded warehouseman.

Uniform straight bills of lading were issued by appellant. Appellee had nothing to do with the issuance or preparation of them. They called for shipment “collect”. The plate was delivered by Walton and Company to appellant. When it reached its destination it was receipted for by Walton and Company. Each bill of lading showed the consignee to be Walton and Company and the shipper to be Texas Rolling Mills. The person alleged to have delivered the plate varies. Most of them show delivery by Houston Natural Gas Corp., though some show appellee. Admittedly the plate belonged to appellee. Delivery was actually by Walton and Company who was warehousing the plate for the account of ap-pellee. Delivery was also to Walton and Company.

The effect of the whole record is to sustain implied findings by the trial court that appellant contracted with the Mill to transport the plate and the Mill would pay the transportation charges. Too, it is reasonably to be inferred that there was an agreement with and understanding by appellant that appellee would not be liable for the charges. We think the evidence clearly supports an implied finding that appellee was in nowise a moving cause of the transportation and that appellant and Walton and Company merely sought, and appellee gave, its permission to move its property from one warehouse to another. The purpose to be served was that) not of appellee, but of appellant, its associated company Walton and Company and the Mill.

A carrier is free to contract with respect to who will pay the transportation charges. Houston & T. C. Railway Co. v. Lee County Produce Co., 14 F.2d 145 (D.C.Tex.) ; New York Central Ry. Co. v. Trans-American Petroleum Corp., 108 F.2d 994, 129 A.L.R. 206 (7th Cir.). Here we think the evidence supports the implied finding of a contract between appellant and the Mill that the Mill, and not the appellee, would be liable.

The real contention of appellant seems to be that Walton and Company was the agent of appellee and when they caused the plate to be delivered and received at its destination, they were acting as appellee’s agent and thus appellee “caused” the plate to be transported. Appellant relies on those cases which hold that where an owner “causes” freight to be transported “collect” and the charges are not paid by the consignee, the owner is liable. The cases cited do so hold. We deem them inapplicable here because of the facts.

In the first place the relation of bailor-bailee existed between Walton and Company and appellee. Farmers Gin Co. v. Texas Electric Ry. Co., Tex.Civ.App., 232 S.W.2d 890, ref., n. r. e. Walton and Company, however, did not thereby become the agent of appellee. English v. Dhane, 156 Tex. 231, 294 S.W.2d 709.

The basic error in appellant’s position is its assumption that in the' delivery and receipt of the plate Walton and Company was the agent of appellee for such movement and therefore appellee through its agent “caused” the plate to be moved. Walton and Company was not acting for appellee in causing transportation of the freight. Appellee merely “allowed” movement by giving its permission to those who were the moving parties in obtaining the transportation.

Appellant says any such agreement relieving appellee of liability is contrary to public policy. We overrule the contention. Appellant contracted with the Mill for the charges required by law. The Mill became insolvent and appellant is unable to collect its charges. We know of no' policy of the law that would make appellee liable under the facts shown.

The judgment of the trial court is affirmed.


author: PER CURIAM. RENFRO, Justice

text:
    John G. STREET, Jr., Appellant, v. CONTINENTAL CASUALTY COMPANY, Appellee.
    No. 16314.
    Court of Civil Appeals of Texas. Fort Worth.
    May 11, 1962.
    Rehearing Denied June 1, 1962.

      Herrick & McEntire, Stone, Parker, Snakard, Friedman & Brown, and Lawton G. Gambill, Fort Worth, for appellant.
    Pepper & Markward and Robert C. Pepper, Fort Worth, for appellee.
   PER CURIAM.

ON MOTION FOR REHEARING

The opinion handed down in this case under date of April 6, 1962, is withdrawn and the following substituted therefor.

In the District Court of Tarrant County, Suit No. 11360-C, styled John G. Street, Jr., v. Continental Casualty Company, was dismissed after the trial court sustained exceptions to plaintiff’s pleadings to the effect that a legally qualified dental surgeon was not a legally qualified physician or surgeon within the terms of an insurance policy upon which suit was brought. Upon appeal we held that lawful surgery performed upon the insured by a licensed doctor of dental surgery constituted operative procedure performed by a “legally qualified physician or surgeon” within provisions of the policy providing for operative procedure performed by a legally qualified physician or surgeon. Street v. Continental Casualty Co., Tex.Civ.App., 339 S.W.2d 680.

Petition for writ of error from our judgment in said case was filed. Later same was dismissed. Matters relative to the mandate of this court, in view of the condition of affairs, were regulated by the provisions of Texas Rules of Civil Procedure 442 to 447, inclusive. It is to be observed from the records of this court, of which we take judicial notice, that our mandate in the case was issued under date of August 11, 1961. Then and thereafter the provisions of T.R.C.P. 369, “Trial Court Docket of Appealed Cases” became operative to require that the clerk of the trial court re-instate Cause No. 11360-C on its docket as-a cause of action pending for trial, at variance with its status as a dismissed case-with dismissal suspended pending prosecution of the appeal. In a recent case is contained a discussion of the authorities and legal situation relative to the matter of jurisdiction, from a review of which it is made apparent that it was only on and after date of August 11, 1961, that the trial court was reinvested with jurisdiction to try or otherwise effectively act in the case, authority in said respect being controlled by the fact of the delivery thereto of the mandate of this court. Motors Insurance Corporation v. Freeman, 1958 (Tex.Civ.App., Texarkana), 314 S.W.2d 453.

Somehow it occurred that the parties to the suit, following the opinion and judgment in this court and following the dismissal of the petition for writ of error by the Supreme Court, but prior to date of August 11, 1961, announced ready for the trial of the case and the case was tried and judgment entered, from which a purported appeal was taken to this court. Neither the trial court nor this court had any jurisdiction by reason of the fact that the case was tried on the merits, and judgment rendered thereon, at a time when the jurisdiction was pending in this court under the circumstances described in our former opinion. (339 S.W.2d 680). Said attempted proceedings in and by the trial court therefore constituted a nullity in that they constituted action taken upon a matter of which the court was not then invested with jurisdiction. The proper procedure for the District Court to now follow is to set aside its void judgment entered pursuant to said proceedings and have another trial of said cause of action No. 11360-C.

The appeal is dismissed.

RENFRO, Justice

(dissenting).

I would set aside our order of dismissal, and affirm the judgment of the trial court.


author: BOYD, Justice.

text:
    Melvin KILLOUGH et al., Appellants, v. Thelma Killough SHAFER et vir, Appellees.
    No. 16341.
    Court of Civil Appeals of Texas. Fort Worth.
    June 22, 1962.
    Rehearing Denied July 13, 1962.
    Balford Morrison, Irving, Virgil R. Sanders, Jr., and Wm. Andress, Jr., Dallas, for appellants.
    C. O. McMillan, Stephenville, for ap-pellees.
   BOYD, Justice.

James L. Killough died leaving a will, the material provisions being as follows:

“ * * * I wish all of my property to go to my wife Thelma and that she be appointed administrator without bond, but that she pay all of my just debts.

“It is also my intention after Thelma and I are both dead if there is any estate left that my part of such estate shall be apportioned to my nephew Melvin Kil-lough and to my neice Naomi Alspaugh in equal parts, or if they shall be dead, to their children such children to heir his parents part.

“This date 225 acres in Hood County. This date 20 acres in Hidalgo County.”

His surviving wife, Thelma Killough Shafer, joined by her husband Milton Sha-fer, sued for a construction of the will, and filed a motion for summary judgment declaring that the property of said decedent passed under said will absolutely and in fee simple to Mrs. Shafer; or, in the alternative, for judgment declaring that Mrs. Shafer is authorized to sell and dispose of all or any part of the property, and to make deeds and conveyances thereof and pass fee simple title thereto during her lifetime.

The court granted a summary judgment, construing the will as passing all the property of the decedent to Mrs. Shafer with power of disposition, and declaring that she is authorized to sell and dispose of all or any part of the property and to make deeds and conveyances passing fee simple title thereto.

The defendants, Melvin Killough and Naomi Alspaugh and her husband Johnny Alspaugh, have appealed.

We think the trial court correctly construed the will.

It is clear that the first paragraph of the will makes an absolute devise of the property to decedent’s wife. Such being the case, before the other paragraph can he held to reduce the estate so granted, the intention that it should have such effect must clearly appear. Darragh v. Barmore, Tex.Com.App., 242 S.W. 714. And where there is a provision that upon some contingency the estate given is passed to another, the law favors the first taker and will construe the words so as to grant to the first taker the greatest estate which they, by a fair construction in harmony with the will as a whole, are capable of passing. Hughes v. Titterington, Tex.Civ. App., 168 S.W. 45, error refused; Hancock v. Butler, 21 Tex. 804; Thomson v. Schryver, Tex.Civ.App., 159 S.W.2d 955.

In McClure v. Bailey, Tex.Civ.App., 209 S.W.2d 671, the will under construction bequeathed to testator’s wife “should she survive me, all the property real personal and mixed of which I, may die siezed or possessed of, or to which I may be entitled to at the time of my decease, and in the event of the death of both of us, then in that event, then all the rest residieu and remainder of my estate, real personal, and mixed, of which I may die siezed or possessed of or which I may be entitled to after the death of my beloved wife, and myself, if any of my said estate is left, then I give and bequeath all my said interest in my said estate” to his sisters.

It was held that the will gave the wife a defeasible or conditional fee so that the sisters would be entitled to any property of -which the wife died possessed, but they were not entitled to the proceeds of property sold by the widow.

We do not believe that the second paragraph of the will in the case at bar is ambiguous or that it cuts down the estate granted by the first paragraph, except to provide for a defeasible or conditional fee. But if it is ambiguous and uncertain it cannot be interpreted so as to limit or defeat the clear and complete grant of the first paragraph. Where the first clause of a will in clear and unambiguous language bequeaths to one devisee all the property of which the testator dies possessed, such estate so given cannot be disturbed, cut down, or diminished by a subsequent clause, which is uncertain and ambiguous in its meaning. Thomson v. Schryver, supra; Gilliam v. Mahon, Tex.Com.App., 231 S.W. 712.

The judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    The STATE of Texas, Appellant, v. Maximino GARZA, Jr., Appellee.
    No. 13931.
    Court of Civil Appeals of Texas. San Antonio.
    May 16, 1962.
    Rehearing Denied June 20, 1962.

      Charles J. Lieclc, Jr., Dist. Atty., John G. Benavides, Asst. Dist. Atty., San Antonio, for appellant.
    Rivera, Lee & Ritter, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is an appeal from a judgment of the 150th District Court, sitting as the Juvenile Court of Bexar County, declaring Maxi-mino Garza, Jr., to be a delinquent child, under the provisions of Art. 2338-1, Vernon’s Ann.Civ.Stats. The trial was to a jury and the judgment was based upon the verdict of the jury.

Appellant’s first contention is that the trial court erred in overruling the motion of the District Attorney for a non-suit. We overrule this contention. In the first place, this was a jury trial and appellant filed no motion for a new trial, which is a prerequisite to an appeal under the provisions of Rule 324, Texas Rules of Civil Procedure. There are certain exceptions provided in the Rule, but none of them exist here. The motion for a non-suit was made prior to the trial and became a preliminary motion. Rule 325, T.R.C.P., provides as follows:

“In cases of motions for continuance, or for change of venue, or other preliminary motions made and filed in the progress of the cause, the rulings of the court thereon shall be considered as acquiesced in, unless complained of in the motion for new trial; and the judge may recite in his order disposing of the motion for new trial the grounds of such ruling. Nothing in Rule 324 shall render a motion for new trial unnecessary in the instances mentioned in this Rule nor in instances of newly discovered evidence, misconduct, fraud or the like.”

Therefore, appellant waived any error committed by the trial court in overruling its motion for a non-suit.

If we be in error in holding that appellant waived its first point by failing to file a motion for a new trial, we are, nevertheless, of the opinion that the point does not present any reversible error.

We are aware of Rule 164, T.R.C. P , which provides as follows:

“At any time before the jury has retired, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard in his claim for affirmative relief. When the case is tried by the judge, such a non-suit may be taken at any time before the decision is announced.”

But this proceeding is an exception to the general rule stated in Rule 164. Renfroe v. Johnson, 142 Tex. 251, 177 S.W.2d 600. In this proceeding, the District Attorney had no personal interest or property right, and his purpose, apparently, was to prevent a hearing until Maximino Garza, Jr., had arrived at the age of seventeen years, when he might be tried as an adult, and thus defeat the jurisdiction of the Juvenile Court. This would have the effect of defeating the entire purpose of the Juvenile Act. Art. 2338-1, supra.

A plaintiff in taking a non-suit must act in good faith. J. A. Walsh & Co. v. R. B. Butler, Inc., Tex.Civ.App., 260 S.W.2d 889. Good faith, in this proceeding, would require the District Attorney to be governed by the purpose and basic principle of Art. 2338-1, as provided in Section 1 thereof, as follows:

“The purpose of this Act is to secure for each child under its jurisdiction such care, guidance and control, preferably in his own home, as will serve the child’s welfare and the best interest of the state; and when such child is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that which should have been given him by his parents.
“The principle is hereby recognized that children under the jurisdiction of the court are wards of the state, subject to the discipline and entitled to the protection of the state, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them.”

In Great American Indemnity Co. v. McElyea, Tex.Civ.App., 57 S.W.2d 966, the Court said:

“While it is probably the general rule that plaintiff may take a nonsuit, yet, where the effect of doing so would operate to destroy the trial court’s jurisdiction, the court was justified in refusing to entertain such a motion. Ocean Accident & Guarantee Corp. v. McCall (Tex.Civ.App.) 25 S.W.2d 653.”

Appellant’s other points are without merit and are overruled. The trial court did not abuse its discretion in overruling the District Attorney’s motion for a non-suit, and accordingly the judgment is affirmed.


author: WILSON, Justice.

text:
    Robert S. WILSON, Appellant, v. S. M. BURLESON et ux., Appellees.
    No. 4022.
    Court of Civil Appeals of Texas. Waco.
    May 31, 1962.
    Rehearing Denied June 21, 1962.

      Leachman, Gardere, Akin & Porter, Dallas, for appellant.
    Bradley & Geren, Carl Cannon, Groes-beck, for appellees.
   WILSON, Justice.

Appellees alleged deceased, a guest under Art. 6701b, Vernon’s Ann.Tex.Civ.Stat., was killed as a proximate result of conduct of appellant amounting to gross negligence under that statute.

Appellees plead, and the jury found that appellant, the host, was operating his automobile while intoxicated. In this and other respects it was found he acted in heedless and reckless disregard of the rights of the guest, proximately causing the latter’s death. The jury also found that the guest knew, or in the exercise of ordinary care should have known the host’s intoxicated condition; that thereafter he had a fair and reasonable opportunity to leave the car prior to the accident, but that his riding in, and his failure to leave the vehicle was not negligence. A negative answer was returned to the issue of whether the guest appreciated, or in the exercise of ordinary care should have appreciated the full danger in continuing to ride with appellant. Ap-pellees made a motion for judgment on the verdict, and judgment for damages found was rendered against appellant. Appellant’s alternative motions to disregard findings, for judgment on the verdict, and for judgment non obstante veredicto were overruled.

Appellant’s chief contention is that he was entitled to judgment as a matter of law. Appellees’ reply is that since the jury found the guest was not negligent in riding in, or failing to leave the car, and found he did not appreciate the full danger of his conduct, he was not negligent as a matter of law. They also say that as a matter of law he did not know of appellant’s intoxication and did not have a fair and reasonable opportunity to leave the vehicle.

The jury findings established (1) the host was operating his vehicle in an intoxicated condition, (2) the guest had knowledge appellant was operating the automobile in such condition, and (3) that he thereafter had a fair and reasonable opportunity to leave. Although the jury found that the conduct of deceased was not negligent, and that he did not appreciate the full danger thereof, “One who voluntarily enters a motor vehicle to ride with a driver then known to be intoxicated, or, who, having entered without such knowledge, discovers the intoxicated condition of the driver and fails to leave if fair and reasonable opportunity to leave is afforded, cannot be heard to say that while he knew the driver to he intoxicated he did not know the danger of entering or remaining in the vehicle. The law will charge him with knowledge of the danger,” and he will be denied recovery. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607, 613, 614. There it was said, “In the case before us the jury found” the host “was in fact intoxicated and that plaintiffs knew it, which would seem to remove the questions of contributory negligence and assumed risk [or volenti non fit injuria] from the field of jury questions.” The Supreme Court declared that “one so charged in law with knowledge of the danger, but who nevertheless voluntarily enters or remains in the vehicle, will be held to have voluntarily exposed himself to the risks involved” as the result of an intelligent choice so as to bar recovery.

Appellees apparently defend the judgment on the ground the court properly disregarded the enumerated findings by implication. The contention is unavailing: (1) appellees made no motion to disregard any finding, and “in the absence of a proper motion, notice, and hearing, the trial court had no power to enter that judgment,” and was “without authority to disregard the finding of the jury.” Insurors Indemnity & Ins. Co. v. Associated Indem. Corp., 139 Tex. 286, 287, 162 S.W.2d 666, 670. (2) There was evidence of probative force to support the findings. (3) Appellees did not challenge sufficiency of the evidence to support the verdict, but made a motion for judgment on the verdict, “which was an affirmation that such findings were supported by the evidence.” Whitehead v. Reiger, Tex.Com.App., 6 S.W.2d 745, 747; American Surety Co. v. Whitehead, Tex.Com. App., 45 S.W.2d 958, 961; Barton v. Wood, Tex.Civ.App., 162 S.W.2d 147, 148, writ ref. w. m.; Jones Fine Bread Co. v. Cook, Tex.Civ.App., 154 S.W.2d 889, 890; Fidelity & Deposit Co. of Maryland v. Risien, Tex.Civ.App., 284 S.W. 977, 980; Fire Ass’n of Philadelphia v. Moss, Tex.Civ.App., 272 S.W. 555, 558.

It is considered unnecessary to consider appellant’s additional point, but if required to do so we would overrule it. Reversed and rendered.


author: McDONALD, Chief Justice.

text:
    EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY, Appellant, v. D. K. STROTHER, Appellee.
    No. 4017.
    Court of Civil Appeals of Texas. Waco.
    May 24, 1962.
    Rehearing Denied June 21, 1962.

      Riley, Jones, Boyd, Westbrook & Lovelace, O. F. Jones, III, Waco, for appellant.
    Bradley & Geren, Groesbeck, for appellee.
   McDONALD, Chief Justice.

This is a venue case involving Subdivision 7, Article 1995 Vernon’s Ann.Tex.Civ. St., and is the second appeal of the case. See: 347 S.W.2d 957. Plaintiff Strother sued in Limestone County to set aside a settlement of a claim for workmen’s compensation made with his employer’s compensation carrier, Employers Mutual Liability Insurance Company. Defendant filed a plea of privilege to be sued in Dallas County. Plaintiff controverted, invoking the exception of Sec. 7, Article 1995 V.A.T.S., on the ground that the insured procured the settlement by fraud committed in Limestone County, where the suit was brought.

Trial was before the Court without a jury, which, after hearing, overruled defendant’s plea of privilege.

Defendant appeals, contending the Trial Court erred because: 1) there was no evidence that an injury to plaintiff’s foot on or about 4 February 1960 caused the amputation of his foot on 1 July I960; 2) there was no evidence or insufficient evidence that a fraud was committed by appellant in Limestone County within the meaning of Sec. 7, Art. 1995.

Plaintiff alleges and the record reflects that he was employed by Mexia Textile Mills in Mexia and that on or about 4 February 1960, a machine tore up and one of the arms of a gyrater caught his right leg and mashed his ankle; that he was treated by Dr. Edgar of Mexia; got no better and went to Dr. Hipps in Waco; Dr. Hipps examined and X-rayed him. .Thereafter on 5 May 1960 Mr. Ed Bennett, an employee of defendant came to plaintiff’s house in Mexia and told him that Dr. Hipps had stated that plaintiff did not have an insurance case and plaintiff believed and relied thereon and settled his case for $620; that soon thereafter plaintiff began to have more trouble with his leg and foot and he went to Dr. Brindley in Temple on 1 June 1960; that Dr. Brindley treated him during June, and on 1 July 1960 amputated his right leg 7 inches below the knee. Plaintiff alleges he is permanently and totally disabled; that he relied on and believed the statements of Mr. Bennett and Dr. Hipps that his case was not an insurance case and would not have settled but for same; and further had he known he was going to lose his leg he would not have entered into the settlement.

The record further reflects that plaintiff contracted syphilis in 1936; and had a condition known as “Charcots joint”; and that Dr. Brindley told him “about the syphilis causing his condition,” and “causing the leg to have to be amputated.” The foregoing is evidentiary only. See Hood v. Texas Indemnity, 146 Tex. 522, 209 S.W. 2d 345.

The Trial Court impliedly found that the amputation of the leg was due to the injury.

Any ultimate fact may be proven by circumstantial as well as by direct evidence. The trier of fact is the judge of the facts and circumstances proven, and may also draw reasonable inferences and deductions from the evidence adduced. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273.

Here, the record reflects that plaintiff had his leg and foot mashed by machinery on 4 February 1960; was treated by doctors; got no better and finally had his leg amputated on 1 July 1960. He had been working cmd had had no trouble with his right ankle and foot prior to his injury on 4 February 1960; since his injury he had continuous trouble with the ankle and foot. Plaintiff was shown to have contracted syphilis in 1936; and to have a “Charcots joint” condition; and Dr. Brindley told plaintiff the syphilis caused the amputation.

There is no direct evidence that the amputation of the leg was made necessary by the injury on 4 February 1960, but under the record recited it is a reasonable and legitimate inference. See Texas State Hwy. Dept. v. Kinsler, W/E Ref., Tex.Civ.App., 230 S.W.2d 364; Texas Emp. Ins. Ass’n v. Fletcher, (n. w. h.) Tex.Civ.App., 339 S.W.2d 542.

While the question may not be free from doubt, we think that for purposes of the venue hearing, the trial court’s implied finding, that the injury caused the amputation, is supported by ample evidence.

The Trial Court further impliedly found that Dr. Hipps was the defendant insurance carrier’s doctor, as distinguished from a voluntarily selected doctor of the plaintiff. In the previous case we reversed and remanded, holding the evidence insufficient to sustain the Trial Court’s finding that he was the insurance carrier’s doctor. In the instant case the record reflects that Dr. Hipps sent the report to the Company, and did not send a copy of the report to plaintiff; that defendant paid Dr. Hipps; and Dr. Hipps testified that he was treating plaintiff as a patient for the defendant I«~ surance Company. We think the foregoing ample to sustain the Trial Court’s finding that Dr. Hipps was the defendant’s doctor.

Defendant’s points and contentions are overruled and the judgment of the Trial Court is Affirmed.

WILSON, J., dissents.


author: DIXON, Chief Justice.

text:
    TOWNE INDUSTRIAL EQUIPMENT COMPANY, Inc., Appellant, v. MARMOSAIC, INC., Appellee.
    No. 16012.
    Court of Civil Appeals of Texas. Dallas.
    June 1, 1962.
    Rehearing Denied June 22, 1962.

      Clair F. Achenbach, Dallas, for appellant.
    Warren Whitham, Spafford, Ledbetter, Freedman, Hamlin & Gay, Dallas, for ap-pellee.
   DIXON, Chief Justice.

Appellant Towne Industrial Equipment Company, Inc. sued Marmosaic, Inc. on verified account for $364.43, the amount alleged to be remaining due and unpaid on an account originally in the sum of $714.13 for parts and labor furnished in repairing a fork-lift truck.

Appellee Marmosaic, Inc. filed its verified answer denying that the account sued on was just and true except an item of $75.18 for two tires. Appellee further alleged that it had contracted with appellant to repair the truck in question, but that appellant failed to furnish parts and accessories necessary to place the truck in normal operation, by reason of which and by reason of appellant’s continuing failure properly to repair the truck the consideration for the account had wholly failed. Appellee specifically denied under oath that the prices set forth in the account were reasonable and alleged that the parts furnished were unnecessary.

Appellee’s verified answer put the burden on appellant to prove its case as in an ordinary suit, the verified account not being sufficient in the face of the verified answer to make a prima facie case for appellant.

Appellee filed a cross-action for $990 for damages, but no recovery was allowed on the cross-action and it does not figure in this appeal.

Four special issues were submitted to the jury. Two of them were conditionally submitted and were not answered by the jury. The jury answered the first issue to the effect that appellant repaired the truck in a good and workmanlike manner on or about August 28, 1959.

Since this appeal revolves around the jury’s answer to the second special issue we herewith quote the issue and the answer in full:

“SPECIAL ISSUE NO. 2.
“What amount, do you find from a preponderance of the evidence, that the Defendant (Marmosaic) is indebted to the Plaintiff (Towne Industrial Equipment Co.) for the work and material furnished, if any, by the Plaintiff (Towne Industrial Equipment Co) to the Defendant (Marmosaic) in connection with the repair, if any, of the said truck on or about August 28, 1959 ?
“Answer in dollars and cents or none.
"ANSWER: $77.93.”

No issues were submitted to the jury specifically inquiring- as to whether the parts and labor furnished were necessary, or whether the prices charged were reasonable. Appellant takes the position that the submission of such issues was not necessary because Charles Van Dusen, appellant’s service manager (an interested party), testified that the prices charged were “usual and customary charges for that type of work in Dallas County, Texas.”

Special Issue No. 2 as drawn is objectionable because it does not submit the material fact issues separately as required by Rule 277, Texas Rules of Civil Procedure. It is all inclusive embracing all issues both of fact, and of law that could be raised in the suit, including the issues whether each item of labor and materials was necessary or the prices reasonable. However, no objection to the form of the issue was made by either appellant or ap-pellee in the trial court, therefore appellant cannot and does not now complain of the form of the issue.

Appellant’s one point on appeal is as follows:

“The trial court committed error in overruling plaintiff’s motion to disregard the jury’s answer to Special Issue No. 2 and to enter judgment for plaintiff for $364.43, as a matter of law.”

In order to support its point on appeal appellant must show that the finding of the jury in answer to special issue No. 2 has no support in the evidence. Rule 301, T.R.C.P. In determining this question we must look only to the evidence tending to support the jury’s finding, ignoring conflicting testimony. City of Austin v. Salazar, Tex.Civ.App., 241 S.W.2d 445.

Appellant’s point on appeal cannot be sustained because there is evidence in the record to support the jury’s answer to special issue No. 2. The form and wording of the issue invited the jury to make mathematical calculations. The jury did so. It is evident, as pointed out in appellant’s brief, that the jury arrived at its answer of $77.93 as follows:

“8-28-59 Appellant’s repairs $681.15

10-23-59 Service call 9.25

12-4-59 Service call 24.03

Total $714.43

9-28-59 Paid by appellee 350.00

Balance unpaid $364.43

1-4-60 to 1-22-60 Cost of repairs to truck by Buantello $253.22

10-23-59 Service call by appellant disallowed by jury 9.25

12-4-59 Service call by appellant disallowed by jury 24.03

Total $286.50

Difference answered by jury 77.93.”

There is testimony that after the truck was worked on by appellant it still would not operate properly and it was finally necessary to pay another mechanic named Buantello the reasonable amount of $253.22 for labor and material in order to put the truck in good workable condition. This amount was claimed by appellee as deduction against appellant’s account. It is obvious that the jury agreed with appellee.

It will be observed that the two service charges of 10-23-59 and 12-4-59 were also deducted from appellant’s account. Ap-pellee claimed that these two service calls did not result in the truck’s being restored to running condition. Anyway the issue as submitted called only for the amount due for the repair of the truck on or about August 28, 1959. The two service calls came at a considerable time thereafter, so were properly excluded from the jury’s computation as of August 28, 1959.

Since there was evidence to support the submission of special issue No. 2 and the jury’s answer thereto, the court properly overruled appellant’s motion to disregard the jury’s answer to the issue. Appellant’s point on appeal is overruled.

The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    Marion FARNEY, Individually and as Next Friend for Drenda Louise Farney, a Minor, Appellant, v. Adolph HERR et al., Appellees.
    No. 16336.
    Court of Civil Appeals of Texas. Fort Worth.
    June 8, 1962.

      Gallagher, Francis, Bean, Wilson & Berry and Judson Francis, Jr., Dallas, for appellant.
    Crowley, Wright, Miller & Garrett, and John B. Garrett, Fort Worth, for appellees.
   MASSEY, Chief Justice.

Plaintiff Marion Farney, individually and as next friend for his daughter Louise Farney, brought suit against defendants Adolph Herr and David Paul Herr for damages for personal injuries to said daughter, and for medical expenses incident thereto, all arising out of an automobile collision. Louise Farney was a guest in an automobile driven by David Paul Herr when it went out of control due to ice on pavement at the top of a hill, and skidded and struck against a telephone pole at the side of the road. Adolph Herr was the father of David Paul.

After depositions were taken of all the parties to the suit, the defendants moved for summary judgment. Following a hearing on said motions, summary judgment was rendered for defendants, directing that the plaintiff take nothing by said suit.

Plaintiff appealed.

Judgment affirmed.

The parties agree that Louise Far-ney, a minor, was a guest in the automobile driven by David Paul Herr, also a minor, within the provisions of the Guest Statute. Vernon’s Ann.Tex.Civ.St. Art. 6701b “Liability for injuries to gratuitous guest in motor vehicle limited; public carrier and motor vehicle demonstrators excepted.” The plaintiff’s contention is that the collision resulted from the heedlessness, recklessness and gross negligence on the part of young Herr in the manner in which the automobile was operated immediately prior to and at the time of the collision.

Facts relative to the occurrence of the collision are these: After having attended a theater young Herr and Louise Farney, his date for the evening, went to a “drive-in” in Arlington, Tarrant County, Texas, and had soft drinks. Afterward they drove about the City of Arlington for a time, ultimately driving out U. S. Highway No. 80 toward Forth Worth, then turning around and coming back toward Arlington to Oakwood Lane, which runs to the north from its intersection with Highway No. 80. They drove north on Oakwood Lane to the point of the collision.

It appears to be without dispute that at all times until shortly prior to the time of the collision young Herr was driving the automobile with due and proper care and caution. However, it is contended that he was guilty of gross negligence immediately prior to the time of the collision in the way and manner in which he speeded up the automobile to 50 or 55 miles per hour in ascending a rather steep hill, at the top of which he encountered ice on the surface of the highway. The slipping of his tires on said icy surface resulted in his loss of control of the automobile, which skidded into the telephone pole. The time was approximately 10:00 o’clock P.M., and the weather clear, cold and dry. There was ice on the shoulders of the road, but the surface of the road, which was paved, was dry until the automobile reached the point of the collision.

When young Herr reached the point where there was ice on the surface of the road, the rear of the automobile slipped or skidded to the right, and slid broadside on down the road and across onto the shoulder to the west, and then into the telephone pole. It was the right-hand side of the automobile that struck against the telephone pole. Young Herr never did apply the brakes, but attempted to compensate for the skidding of the automobile, as same began, by turning the front wheels. The attempt at such compensation evidently came too late, for he was unable thereby to bring the automobile back under control.

There had been no ice encountered on the surface of any of the streets and highways over which young Herr had driven on the evening in question until the time and place of the collision. The point of the collision was within the city limits of the City of Arlington, and the speed of the automobile immediately prior to and at time of the collision was in excess of applicable limits. Although there is no doubt but that an issue would have been created as to the simple negligence of young Herr, we are in accord with the trial court that the evidence did not raise the issue of gross negligence. There could be no liability to plaintiff on the part of young Herr unless the issue was raised upon the matter of his gross negligence, such being essential to the imposition of liability by or through his passenger and guest in view of Art. 6701b. High and excessive speed is mere ordinary negligence and not gross negligence, insufficient in and of itself to raise the issue-of gross negligence. Burt v. Lochausen,. 1951, Tex.Civ.App., 244 S.W.2d 915, 151 Tex. 289, 249 S.W.2d 194; Rowan v. Allen,. 1940, 134 Tex. 215, 134 S.W.2d 1022.

In view of the decision in Fancher v. Cadwell, 1958, 159 Tex. 8, 314 S.W.2d 820, it is under some circumstances unnecessary to show gross negligence by proof of a continued or persistent course of negligent conduct, but it is the quality or kind of conduct established in the evidence rather than its persistence and duration which controls. Nevertheless it is necessary in the ordinary guest case to look further than the immediate negligent act,, in consequence of which a collision occurs,, in order that one may find evidence of sufficient heedlessness and reckless disregard of the rights of others to raise an issue of gross negligence. This case is the ordinary one and not the unusual and exceptional one such as Fancher v. Cadwell, and' here it would be necessary to look further than to the immediate act of negligence which resulted in the collision if one would find any course of conduct which would' amount to gross negligence. In the instant case, when one looks further than to the-immediate act of negligence which resulted' in the collision nothing reprehensible in young Herr’s conduct may be found. It follows, therefore, that the issue of gross-negligence is not raised in the case.

Another factor in the case, applicable to the liability, if any, of Adolph Herr, the father of David Paul Herr, is that of negligent entrustment. The question would be whether the father negligently permitted the son to drive any automobile,, and in particular the automobile which he was driving on the evening of the collision, —and further, whether, by reason of such negligent entrustment, he is independently liable for the consequences thereof which-resulted. Under the circumstances of this case the liability, if any, of the father would be derivative. His liability could only arise through a liability found to be existent in his son. The son would be liable to those asserting such only in the event he was ■guilty of gross negligence, this being a •guest case. We have held that the issue of gross negligence was not raised. Adolph Herr would not be liable, for in the absence of gross negligence his son could not be liable under the provisions of Art. 6701b. We believe that where there is negligent entrustment of an automobile to an incompetent driver, operation of the law does no more than to make the incompetent driver the agent of him who has entrusted the automobile to the driver, and subject him to potential liability under principles of respondeat superior. We are not here concerned with any independent and separable act or omission, amounting to negligence on the part of Adolph Herr, by reason of which he might be held individually liable for the injuries sustained by Louise Farney irrespective of the liability of his son.

Furthermore, even if it be held that David Paul Herr was in fact guilty of gross negligence, his father, Adolph Herr, could not be held liable. It indisputably appears that there would be no evidence which could be introduced upon a trial of the merits of the case sufficient to raise a fact issue as to whether there had been any entrustment of the automobile in question to the son by the father. Earlier in the evening David Paul Herr had been driving liis brother’s automobile. This vehicle was not equipped with a heater and the night was cold. Since the young couple desired to take the drive they did take, they went by the Herr home and exchanged automobiles. Unbeknownst to Adolph Herr the young couple took the automobile later involved in the collision, it being a vehicle which belonged to said father’s employer, and which the son had been forbidden to drive. The doctrine of negligent entrustment may not be so extended as to impose liability upon the alleged “trustor” for the negligent operation of a vehicle which he had expressly forbidden the alleged "trustee” to drive.

It is our holding that the pleadings and depositions on file show that there is no genuine issue as to any material fact, and that the defending parties were entitled to a complete summary judgment in their favor. Texas Rules Civ.Proc. 166-A “Summary Judgment”.

Judgment affirmed.


author: CHAPMAN, Justice.

text:
    Lois HIGGS et al., Appellants, v. AMARILLO POSTAL EMPLOYEES CREDIT UNION, Appellee.
    No. 7151.
    Court of Civil Appeals of Texas. Amarillo.
    May 21, 1962.
    Rehearing Denied June 18, 1962.

      Merchant, Fitzjarrald, Poole & Merchant, Amarillo, for appellants.
    Harris Lofthus, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal from the court below involving a contest between two assignment creditors and a holder of a note upon which suit was pending over the disposition of a debtor’s funds in the garnishee bank. All emphases shown herein are ours.

On October 27, 1960 Amarillo Postal Employees Credit Union filed suit against Jack Mills on a past due note in the amount of $1,486.72 and immediately afterwards served a Writ of Garnishment on North State Bank where Mills had on deposit $1,200.00. The bank filed their answer on October 31, showing their indebtedness to Mills of the amount just stated and asking for $200.00 attorneys’ fees.

Mills filed his answer on November 4, 1960. On December 19, thereafter, Mills executed an assignment to his mother-in-law, Lois Higgs, in the amount of $850.00 and an assignment to Merchant, Fitzjarrald, Poole ■& Merchant, a law firm, in the amount of $350.00. The next day Mills filed a Motion to Quash the Garnishment.

On January 27, 1961 the garnisher served its second Writ of Garnishment on Mills’ bank deposit. On April 7, 1961 the trial court heard the Motion to Quash, ordered the first Affidavit for Garnishment quashed, permitted the garnishee recovery out of Mills’ funds on deposit of $200.00 for attorneys’ fees and ordered the balance of $1,000.00 in his account be deposited in the Registry of the Court.

On May 15, 1961 the two assignment creditors, the mother-in-law of Mills and the law firm, filed a Plea of Intervention.

On June 5, 1961 the garnisher filed its Motion to Strike Intervenors Plea of Intervention. On the same day the case was tried on its merits. The court rendered judgment in the amount of $1,546.20, being the sum due on the note with interest, attorneys’ fees, etc. for the garnisher and ordered the clerk of the court to pay to the garnisher the $1,000.00 in the Registry of the Court as a credit on the judgment. Appeal is perfected by intervenors upon one point, to wit: “It was error for the Trial Court to award funds to plaintiff under a void garnishment when the same had been legally assigned and transferred prior to the issuance of a valid garnishment.”

The Statement of Facts herein show two valid written assignments with sufficient consideration in each made respectively to Mrs. Higgs and the law firm. There are no findings of fact or conclusions of law before us nor does the judgment recite a finding that the assignments were made in defraud of creditors. We recognize the rule that if issues of fact were raised we must view the evidence most favorable to appellee and to presume that all facts necessary to support the judgment have been found in favor of appellee, provided the evidence will support such findings. United States Truck Lines v. Texaco, Inc., Tex.Civ.App., 337 S.W.2d 497 (Writ Refused). However, this record is without contradiction that the assignments were validly made upon sufficient consideration and with the intention of the debtor to prefer two creditors over another.

Our Supreme Court in Quinn v. Dupree, 157 Tex. 441, 303 S.W.2d 769, has said:

“Every payment of a debt by an insolvent, whether made in money or property, tends in a popular sense to hinder, delay or defraud other creditors in the collection of their respective debts. In the same sense, the taking a lien on part of an insolvent’s property to secure a debt necessarily has the effect of hindering other creditors in the enforcement of payment of their debts by a sale of the entire interest in the property on which the lien is given. In the absence of a law declaring preferences invalid, * * * every debt- or has the right to pay or secure one or more of his just debts with any property he has, provided that no more property is transferred than is reasonably necessary to pay or secure the debt. A mere intention to prefer one creditor over the other thus will not vitiate the transaction, and the conveyance or security instrument will not be held void as to creditors unless it was executed with fraudulent intent or amounts to a fraud in law.”

The court in the Quinn case then said: “Whether a conveyance or lien instrument was made with intent to defraud creditors is ordinarily a question for the jury or the court passing on the fact. * * and the burden of proving fraudulent intent was on the respondent” [appellee in the instant case]. This record is silent on proof of fraudulent intent. The court below could not presume such intent and neither can we. 26 T.J.2d, Sec. 160, Fraudulent Conveyances, Page 451.

It appears without controversy in the record that the attempted garnishment of October 27, 1960 was void because it was based on an insufficient affidavit. The judgment of the trial court so states, the affidavit included in the transcript shows on its face its invalidity, and appellee obviously recognized it because a second garnishment was served before the court even passed on the first affidavit. Since it was void it is just as if no garnishment had been made, and the fact that the assignments made by Mills were prior in time to the valid garnishment left no indebtedness by the bank to Mills and the second garnishment impounded nothing. In Smith v. Texas & P. Ry. Co., Tex.Civ.App., 39 S.W. 969, 972 (Writ Refused) it is said:

“If the debtor had previously assigned the debt, then the equitable title and beneficial interest passed thereby to another party, and he owed such other party [other parties in our case] and not the debtor of the garnishing creditor.”

In New York Life Ins. Co. v. Patterson & Wallace, 35 Tex.Civ.App. 447, 80 S.W. 1058, 1061 (Error Refused) the court said:

“The appellant in this case took no greater rights in the fund deposited in the Dallas bank, by its writ of garnishment and service thereof, than Manner-ing possessed at the time of such service. He having previously assigned the amount of $275 of said fund to the in-tervenors, that amount, then, was the property of and owned by the inter-venors, and was not subject to the writ of garnishment.”

Accordingly the judgment is reversed wherein the $1000.00 in the Registry of the Court was ordered paid to appellee and the funds are ordered paid to the assignees, appellants here, in proportion to their respective interests. The judgment of Amarillo Postal Employees Credit Union against Jack L. Mills is affirmed.


author: WILLIAMS, Justice.

text:
    Rosemarie Tyrell WELBOURN, Appellant, v. Maxine Beulah NEGLEY, Appellee.
    No. 16018.
    Court of Civil Appeals of Texas. Dallas.
    June 8, 1962.
    Hermes Nye, Dallas, for appellant.
    V. Robert Curtis and A. L. Breeland, Dallas, for appellee.
   WILLIAMS, Justice.

This appeal presents the sole question of the propriety of the action of the trial court in granting a summary judgment against the plaintiff in a “slip and fall” case. Mrs. Welbourn was a tenant in an apartment house owned by Mrs. Negley. The apartment house was located on a sloping terrain and there was a brick walkway which was used by the owner and tenants to go from the house to the garden and to the garages. Mrs. Welbourn, while watering flowers which she kept in the garden, slipped on a loose brick in the steps of the walkway and fell, sustaining personal injuries for which she brought suit to recover damages against Mrs. Negley. Mrs. Welbourn' alleged that the bricks in the steps and walkway had been loose for a long period of time; that she had warned Mrs. Negley to repair the steps in question; and both plaintiff and defendant had previously fallen on the steps at the same place and under approximately the same circumstances. Mrs. Negley answered, alleging as principal defense that the condition of the walkway was open and obvious and therefore plaintiff could not recover. Mrs. Negley then filed a motion for summary judgment based upon the proposition that both plaintiff’s pleadings and her deposition revealed that Mrs. Welbourn knew of the condition complained of; that the same was open and obvious to the plaintiff, and that no issue of fact remained since plaintiff could not recover, as a matter of law. Plaintiff filed no response to the motion for summary judgment nor offered any extraneous evidence in opposition thereto. The trial court, considering the pleadings and plaintiff’s deposition, sustained the motion and this appeal follows.

The facts are undisputed. In her deposition, appellant testified that the steps in question had been in bad repair every since she moved in the apartment; that she had used the steps regularly to water her pot plants in the garden and that on one occasion she had fallen in the same place and hurt her finger. She said that appel-lee had fallen on the steps in question and had sustained injuries as a result thereof. She and appellee had discussed the dangerous condition of the steps and she had requested appellee to have them repaired hut no action had been taken to remedy the dangerous condition. On the day in question the weather was dry and there was plenty of light.

In determining the question of the propriety of the action of the trial court in sustaining the motion for summary judgment we follow the well-established rule that we must review the record in the light most favorable to appellant and indulge every reasonable intendment in favor of appellant. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Little v. Employees Security Life Ins. Co., Tex.Civ.App., 343 S.W.2d 517. Applying this rule to the uncon-troverted facts in this case we are of the opinion that appellant’s pleadings and her testimony demonstrate that she is barred from recovery as a matter of law and therefore the trial court’s action in granting a summary judgment was correct.

The basic rule is stated in 27 Tex.Jur. § 207, p. 350, as follows,'

“Proof being made that the tenant had actual knowledge of the dangerous condition of the premises, it is to be concluded primarily that he is not entitled to recovery, for very evidently he was in a better position than was the landlord to avert the injury. To hold in this situation that the landlord is liable would be, as the Commission of Appeals said in reversing a judgment in favor of the tenant, ‘to require plaintiff in error to take better care of defendant in error than she would take care of herself’ ”.

Baermann v. Bradix, Tex.Civ.App., 5 S.W.2d 869; Pollack v. Perry, Tex.Comm.App., 235 S.W. 541; Fergeson v. National Bank of Commerce, Tex.Civ.App., 174 S.W.2d 1015.

This case is governed by the principles announced in the decision of the Supreme Court in Robert E. McKee, Gen. Cont. v. Patterson, 153 Tex. 517, 271 S.W.2d 391. In that case Justice Calvert, after an exhaustive review of the law relating to the owner of premises and the duty and obligations of the person injured on such premises, stated that where the invitee (1) was confronted with the existence of a condition of which he knows, (2) containing dangers which he appreciates, (3) voluntarily encounters them, (4) of his own free will and as a result of an intelligent choice, he cannot recover against the owner, as a matter of law. Applying these principles to the instant appeal the record demonstrates conclusively that Mrs. Wel-bourn was confronted with a condition in the walkway of which she admittedly was familiar; that the condition contained dangers which she not only appreciated but discussed with appellee, and, with such knowledge she voluntarily and of her own free will and as a result of an intelligent choice proceeded to encounter, resulting in her own injuries.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice. WILSON, Justice

text:
    TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Mrs. Ruth BOTTOM, a feme sole, Appellee.
    No. 3957.
    Court of Civil Appeals of Texas. Waco.
    May 31, 1962.
    Rehearing Denied June 28, 1962.

      ' Touchstone, Bernays & Johnston, Dallas, Crawford C. Martin, Hillsboro, for appellant.
    Baker, Jordan, Davey & Shaw, Dallas, Jack Sims, Hillsboro, Stark, Carroll & Davey, Gainesville, for appellee.
   McDONALD, Chief Justice.

This is a suit for death benefits under the Workmen’s Compensation Act, brought by the widow of Wilbur F. Bottom, deceased, against his employer’s compensation carrier.

Bottom was driving a truck (which belonged to Bottom, but was under lease to Safety Convoy Company), enroute from Hillsboro to Dallas, when he sustained injuries in an accident from which he subsequently died.

Trial was to a jury which, in answer to the single issue submitted, found that Bottom’s fatal injuries were sustained in the course of his employment for Safety Convoy Company, his employer. Judgment was entered for plaintiff on the verdict.

Defendant appeals, contending

1) There is no evidence or insufficient evidence to show that deceased sustained accidental injuries in the course of his employment.

2) The Trial Court erred in submitting Issue 1, and the accompanying instruction, because it was confusing, multifarious, and incapable of being understood by an ordinary intelligent jury.

3) The Trial Court erred in not submitting defendant’s Requested Issues 1, 2, 3, 4, 5, 6, 7 and 8, inquiring if deceased’s injuries were sustained in the course and scope of his employment.

4) The Trial Court erred in overruling defendant’s motion in limine to preclude plaintiff from reading his pleadings to the jury, advising the jury that maximum recovery in this case would be $35 per week for 360 weeks, such matters not being in issue, as defendant had admitted the payments, if any, should be in a lump sum.

We revert to defendant’s 1st contention that there was no evidence or insufficient evidence to show that deceased sustained injuries in the course of his employment.

Deceased at the time of his death was an employee of Safety Convoy Company. His pay was on a loaded mile basis. Nevertheless he had other duties, which were in the course and scope of his employment, and in furtherance of the employer’s business, and for which he received no pay as such. Some of these duties were: return trips, waiting time, repair time, loading time, attending postings, and waiting on the lot.

Deceased owned his truck but leased it under a written lease to his employer. He received an agreed rental from his employer for the truck, and drove it for them under a separate employment contract. The contract under which Bottom leased the truck to Safety Convoy provided that Safety Convoy should have full possession and control of the truck at all times; complete supervision of the operation of the truck, and complete control of the operation of the truck.

Safety Convoy is located in Dallas. Deceased purchased the truck from a dealer in Hillsboro, and had the truck serviced and repaired in Hillsboro. Under deceased’s lease agreement, it was deceased’s obligation to keep the truck in good condition and repair. Safety Convoy knew and approved of the servicing and repair of the truck in Hillsboro.

On the occasion of his death, deceased had taken the truck to Hillsboro for servicing and repair, and was returning to Dallas to attend a posting of loads for dispatch, at the time of his accidental injury and death.

Article 8309, Sec. lb “Transportation or travel as basis for claim for injury”, provides in part:

“Unless transportation is furnished as a part of the contract of employment, * * * or unless the means of such transportation are under the control of the employer, * * * such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment.”

Under deceased’s lease of the truck to Safety Convoy, Safety Convoy had complete control of the truck, and for our purposes here, may be considered in the same category as it would have been, had it been the outright owner of the truck.

It is true that deceased went to Hillsboro to have the truck serviced and repaired, and that this was his obligation under his lease agreement with Safety Convoy. He also spent the night with his family in Hillsboro. Nevertheless at the time of his accidental injury which resulted in his death, deceased had previously completed attending to the servicing and repair of the truck (and any visitation with his family), and was enroute to a posting of loads for delivery at the company’s headquarters. To attend postings was a duty of deceased’s employment, and certainly in furtherance of the employer’s business, for indeed without attendance at postings of loads for delivery, the employer’s business would not be carried out, and no merchandise would be trucked to its destination. Deceased was on a direct route to an assigned task and duty, required by his employment, and was travelling in the transportation furnished by and under the control of the employer when he was injured.

The evidence is ample to sustain the jury’s finding.

We have moreover considered the evidence as a whole as we are bound to do under In re King’s Estate, 150 Tex. 662,. 244 S.W.2d 660, and conclude that the finding is not against the great weight and preponderance of the evidence. See Fritzmeier v. Texas Emp. Ins. Ass’n, Tex.Com. App., 131 Tex. 165, 114 S.W.2d 236; Jones v. Cas. Rec. Exch., Tex.Civ.App., W/E Ref. 250 S.W. 1073. Contention 1 is overruled.

Defendant’s 2nd and 3rd contentions complain of the court’s submission of Issue 1 ana the accompanying instruction; and of the court’s refusal to submit defendant’s 8 requested issues inquiring if deceased was injured in the course and scope of his employment.

The Court submitted Issue 1 with instructions as follows :

“Issue 1. Do you find from a preponderance of the evidence that the fatal injuries sustained by Wilbur F. Bottom on October 11, 1959 were injuries sustained in the course of his employment for Safety Convoy Company?” Answer “Yes” or “No.”
“In connection with the foregoing issue you are instructed that by the term ‘injuries sustained in the course of his employment,’ is meant injuries of every kind and character having to do with, and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises •or elsewhere. Unless transportation is furnished as a part of the contract of employment, expressly or by implication, or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of -occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

We think the court submitted the ultimate issue, and that it was not necessary to submit the requested issues which were evidentiary. As for the instruction, it was in the very terms of the statute, Article 8309, § lb Vernon’s Ann.Tex.Civ.St. See Maryland Cas. Co. v. Smithson, Tex.Civ. App. (n. r. e.), 341 S.W.2d 951 which is directly in point. Contentions 2 and 3 are overruled.

Defendant’s 4th contention is lev-elled at the Trial Court’s not sustaining its motion in limine to preclude plaintiff from reading its pleadings to the jury advising the jury that maximum recovery in the case would be $35 per week for 360 weeks. Defendant admitted the payments, if any, should be made in a lump sum. From the record as a whole we conclude that this contention, if valid, is harmless, and presents no reversible error. See Texas Emp. Ins. Ass’n v. Logsdon, Tex.Civ.App., n. r. e., 278 S.W.2d 893; Traders & Gen. Ins. Co. v. Smith, Tex.Civ.App., n. r. e., 311 S.W.2d 91.

All of defendant’s points and contentions are overruled and the judgment of the Trial Court is affirmed.

Rehearing denied,

WILSON, Justice

(dissenting on rehearing).

I respectfully dissent. The evidence negatives course of employment.