text:
    MacRAE et al. v. MacRAE et al.
    No. 3950.
    Court of Civil Appeals of Texas. El Paso.
    May 30, 1940.
    Rehearing Denied Oct. 31, 1940.

      John J. McCullough, of Phoenix, Ariz., and Stubbeman, McRae & Sealy, of Midland, for appellants.
    Moore & Romley, of Phcenix, Ariz., and W. A. Hadden, of Fort Stockton, for ap-pellees.
   PRICE, Chief Justice.

This suit was instituted in the 112th District Court exercising jurisdiction in • Pecos County by Lillian Long MacRae in statutory form of trespass to try title to recover Survey 14, Block No. 9, H. & G. N. Ry. Co. Survey, Pecos County, containing 645.41 acres, from Katherine V. MacRae and others. Katherine V. Mac-Rae was the only answering defendant; her pleading was not guilty, and the assertion of an equitable title to the land under an alleged parol sale and parol trust. By cross action she sought to recover an undivided one-half interest in the land, asserting that same was the community property of herself and Thomas MacRae, deceased. The case was tried before the court without a jury; judgment by default was rendered against all defendants except Katherine V. MacRae.. Plaintiff Lillian Long MacRae was awarded an undivided one-half interest in the property, and defendant Katherine V. Mac-Rae was likewise awarded an undivided one-half interest.

The parties will be here designated as they were in the trial court.

Plaintiff and defendant have each perfected an appeal from the decree rendered.

The land involved is State Public School Land, same having been sold without condition of settlement. In the year 1917 Thomas MacRae made application to purchase the land, and same was awarded to him; he paid one-fortieth of the purchase price in cash and executed obligations for the balance. At the time of this purchase the said MacRae was an unmarried man. In March, 1920, Thomas MacRae and defendant were married. In 1930 this marriage was terminated by a divorce; in the decree dissolving the marriage there was no settlement of property rights between the parties. Early in 1937 Thomas MacRae married the plaintiff. This marriage was terminated by his death in October, 1937.

On September 28, 1922, during the existence of the marriage, between defendant and Thomas MacRae, they joined in a quitclaim deed purporting to quitclaim the property in controversy to John H. 'Betts. On December 17, 1928, John IT. Betts filed in the office of the County Clerk of Pecos County an affidavit in which he, in effect, disclaimed any interest in the land, stating in substance that it was never the intention to convey to him any title to the land in controversy.

On September 24, 1925, the Acting Land Commissioner of the Land Office forfeited the sale of said section of land in, controversy for non-payment of interest. On January 27, 1928, the land in question was awarded to Thomas MacRae- by the Commissioner of the General Land Office at a new price of $5 per acre (the 1917 award having been at $3.56⅜ per acre).

Thomas MacRae, a few days prior to his death, executed a deed purporting to convey the land in controversy to plaintiff, his then wife; the ■ deed recited, a consideration of ten dollars.

The trial court found against defendant on her claim of an equitable title to the entire land, but held that the property was community property of defendant and deceased Thomas MacRáe.

Plaintiff’s claim for the entire property was based on the theory' that same was at all times the separate property of her deceased husband, and that the deed to her from him before mentioned invested her with full title to the property.

It will aid in the proper disposition of this case if it be first determined whether the property in controversy was the separate property of Thomas MacRae or a part of the community estate of said MacRae and the defendant, his first wife.

Had the purchase of 1917 been consummated in accordance with the terms, it is clear and well established by legal precedent that same would have been his separate property. Plowever, the fact that the forfeiture occurring in 1925 and the repurchase in 1928, at a time when the marriage subsisted, raises a serious question as to whether this property, after the second purchase, became a part of the community or remained his separate property.

Linder the law existing at the time of the purchase in 1917; in case of forfeiture for failure to make the payments required in the obligations, at any time before a sale to another party he had the right to pay up all arreárages and have the purchase reinstated. Art. 5326, R.S.1925.

In 1925 it was provided, Chap. 94, p„ 267, of the Acts of that year, that in case the land theretofore purchased from the State, and which had been forfeited for non-payment of interest and had not been resold, that the owner of said land at the date of the forfeiture should have the right, for a period of ninety days after the date of the notice of revaluation of his land, to repurchase upon the terms and conditions prescribed in the Act. In substance the Act further provided that the former owner, within sixty days after the date the list of forfeited lands was forwarded to the Clerk of the County, might have same revalued by paying a fee of one cent per acre, and thereafter, if he desired, might make application to purchase the land on the new valuation. This Act was amended in the First Called Session of the Thirty-Ninth Legislature, 1926, c. 25, Vernon’s Ann.Civ. St. art. 5326a. It provided that after forfeiture the former owner should have the right, for a period of ninety days after the date of notice of revaluation of such land, to purchase same; if the owner should not exercise the right of repurchase given by the Act, that the Commissioner should then place the land on the market for sale in the manner that was then or might thereafter be provided by law for the sale of forfeited Public School Lands. Art. 5326a, Vernon’s Ann. Civ. St.

In Art. 4613, R.S.1925, it is provided: “All property of the husband, both real and personal, owned or claimed by him before marriage, and that acquired after-wards by gift, devise, or descent, * * * shall be his separate property.”

In Art. 4619, it is provided: “All property acquired by either the husband or wife during marriage, except 'that which is the separate property of either, shall be deemed the common property of the husband and wife.”

In Speer, Law of Marital Rights in Texas, Third Edition, Sec. 380, it is said:

“The status of property acquired during the marriage is determined by the inception of the title. More accurately speaking, the property is acquired when the title had its inception.
“This is true because when the title has its inception, a right accrues and this right is property and gives character to its status. Equities m?iy of course arise, but this is another consideration.
“When the right to the property origin nates before the marriage or after its dissolution, it is not community.”

In the case of McClintic v. Midland Grocery & Dry Goods Company, 106 Tex. 32, loc. cit. page 35, 154 S.W. 1157; loc. cit. page 1158, it is said: “In a controversy like this, to which the state is not a party, involving an jssue as to whether public land purchased from the state in the name of either husband or wife is community property or separate property, the status of the property must be determined by the character of the right by which the title thereto had its inception.” Numerous authorities are cited in support of this proposition.

In the case of Barbet v. Langlois, 5 La. Ann. 212, it is held: If the cause of the acquisition may be fairly considered as having preceded the marriage, the property is separate property, although the title was conveyed subsequent to the marriage. This case has been several times cited by our Supreme Court with approval. Briefly stated, the facts in the case were that before marriage the husband owned land fronting on the Bay. Thereafter the United States gave a preference right to such owners to purchase additional lands abutting on the rear of such property. This right the husband exercised subsequent to the marriage, and perhaps paid for same out of community funds. However, it was held that the property so acquired was his separate property.

The case of Welder v. Lambert, 91 Tex. 510, 44 S.W. 281, has important bearing here. In that case the contract by which the land was acquired was before marriage; it was performed in part before and in part after marriage. Title was granted after the death of the husband. The property was held . to be the- separate property of the husband. This case reviews and discusses a number of the cases having bearing in the instant case, among others, the case of Barbet v. Langlois, supra.

We deem the case of Stiles et al. v. Hawkins, Tex.Com.App., 207 S.W. 89, as having direct bearing on the question tendered in this case. The facts were that J. T. Rawls and W. W. Rawls settled on lands within the' Mississippi & Pacific Railroad Reserve under an Act of the Legislature of August 26, 1856. A right to purchase at fifty cents per acre was given such settlers. The Rawlses had surveys made but never completed the purchase, and subsequent to the survey sold to Stiles, an unmarried man. Stiles married on the 25th day of November, 1858. On September 13, 1859, he paid the sum of fifty cents per acre on one of the surveys and received a patent; on November 23, 1859, he paid out the other survey and received a patent. These payments were made out of the community funds. The land was held to be the separate property of Stilés. The opinion of the Court of Civil Appeals in the case is reported under the style of Hawkins v. Stiles, 158 S.W. 1011. Four opinions were written in the Court of Civil Appeals, Judge Rice writing the opinion for the majority, with Chief Justice Key dissenting; on rehearing Judge Jenkins wrote the opinion for the majority. Chief Justice Key filed another dissenting opinion on rehearing. The majority opinion held that the property was the community property of Stiles and wife; the dissenting opinion contended that the property, under the facts, was the separate property of Stiles. The majority opinions and the dissenting opinions carefully and forcefully discuss the prior decisions of the courts having bearing on the question involved. The discussions as to the principle involved and the cases applicable are clear, lucid and thorough. We deduce from this authority, and other authorities applicable, the principle that the inception of the title to public land is the initial step essential under the law to the initiation of the right to acquire the title.

Determinative of the question here is the nature and extent of the right as to the land involved of Dr. MacRae after the forfeiture' of the land in September, 1925. We think, briefly, under Arts. 5326 and 5326a, he had within the time limited by those articles, a right to have the land reappraised and after such appraisal- for ninety days the exclusive right to purchase same at the appraised value. This right was in the nature of an option. It is clear this right was not a title. Save as above stated, his right in and to the land was terminated by such forfeiture. Boykin v. Southwest Texas Oil & Gas Co., Tex.Com.App., 256 S.W. 581.

In the majority opinion in the Court of Civil Appeals in Hawkins v. Stiles, supra, it was vigorously asserted that the acquiring of a mere preference right to purchase by a single man was not the inception of the title. In the course of his dissenting opinion Chief Justice Key said [158 S.W. 1017]: “It is believed to be a sound proposition of law, well settled in this state by judicial determination, that whenever such steps have been taken as will secure to a particular person the exclusive right as against all other persons, except the state, to a particular tract of public land, then the person to whom such right has been secured has at least an equitable title to such land, which title may subsequently be perfected by performance of such additional act as may be necessary to obtain the legal title from the state.”

Under the evidence, but for the purchase of 1917 Dr. MacRae would not have had the preference right to purchase in January, 1928. The land in controversy was acquired by and through the exercise of this preference right. In our opinion, the inception of the title here involved was in the purchase of 1917. It follows that even after the repurchase of 1928 the land remained the separate property of Dr. MacRae. If community funds were used in its reacquisition, beyond question there is, or at least was, in any event, a right to reimbursement.

Defendant in her appeal, as a basis for the claim of title to the entire property involved, presents the contention that she is vested with the equitable title thereto. In substance it is contended that her husband agreed with her that in consideration of certain property which she caused to be conveyed to him, he should convey the property involved herein to her, and she made the conveyances of the property in accordance with the agreement. Further, in lieu of a conveyance to her by her husband, the property was conveyed to John Betts by their joint deed to be held in trust for her, if not exchanged for other property, the title to which was to be taken in her name.

We have before mentioned that the record shows a quitclaim deed from defendant and her husband to John H. Betts, Jr. It is conceded by all parties that under this deed Betts did not acquire a beneficial title to the property.

Defendant, in substance, sustained the theory relied upon by her own testimony. Aside from her testimony there was no evidence sustaining this issue. Defendant may or may not have had interest in the Bowie County lands. If she had such interest, it was not an interest appearing of record — at least there is nothing in the statement of facts aside from her testimony to show interest in the Bowie County property.

In its judgment the trial court found: “That with respect to the equitable title asserted by defendant Katherine V. Mac-Rae to all the land below described, in her answer to plaintiff’s petition, the evidence adduced is insufficient to establish such equitable title, and in view of such evidence and the law applicable, the prayer of such defendant for title and possession of all the land below described is accordingly denied.”

Defendant was an interested witness and a question of fact was raised on her testimony, even though same was undisputed. It does not appear from the record that plaintiff had means readily available to contradict such testimony, if same did not represent the facts. It does not appear as to whether Betts, the grantee in the quitclaim deed, was available or otherwise. Dr. MacRae was dead. In our opinion the question of fact was one to be passed upon by the trial judge. Under his finding the evidence was deemed insufficient to support the trust claimed by defendant. This finding is final upon the matter. If there be left out of consideration the testimony that at the time of the conveyance to Betts it was agreed by the parties that he should hold same in trust for defendant, we hold that the statute of frauds would debar defendant from relief.

It is ordered that the judgment of the trial court in favor of the defendant for an undivided one-half interest in the property in question be reversed and here rendered in favor of the plaintiff, and that plaintiff recover of and from defendant all right, title and interest in and to the property involved, and that defendant take nothing by her cross action.

As so reformed and modified the judgment is affirmed.

On Rehearing.

On motion for rehearing defendants urge with great force that the statement of facts herein fails to show any application for reappraisement of the land of Dr. MacRae. This is correct. When the land was reappraised at $5 per acre does not appear. Beyond all cavil of a doubt, reappraisement there was. The land on the original sale was appraised at $3.-56% per acre.

On the forfeiture of the MacRae original purchase on September 22, 1925, notice thereof was given to the County Clerk ¿í Pecos County, which was dated September 24, 1925, and filed September 26, 1925. MacRae, so far as the record goes, did not request a reappraisement within sixty days from the notice of forfeiture.

On January 6, 1928, MacRae made application to repurchase at a valuation of $5 per acre. There is no evidence that during the period from the forfeiture and the said application the State sold the land to any other purchaser. We think.it clear and undisputed that there was no other sale. Chapter 94, p. 267, of the Acts of 1925 was amended, First Called Session of the Legislature, 1926, Chapter 25, p. 43. It is now Article 5326a, Vernon’s Ann. Civ. Statutes. Section 2 of said amended Act provides for including in the list of forfeited lands, lands theretofore forfeited and unsold.

On January 6, 1928, the Commissioner of the General Land Office gave notice that the land in controversy had been forfeited prior to January 7, 1927, and was unsold, and might be repurchased if an application for revaluation were made by the former owner within sixty days from the date of the notice.

On January 6, 1928, MacRae made application to repurchase at $5 per acre. As stated, when this valuation was made does not appear from the record. The application was to repurchase. Unless there was a reappraisement of the land the Commissioner was without authority to accord the preference right to purchase. A preference right was unquestionably given. We think the record forces the conclusion that MacRae did apply for re-appraisement of the land and same was forthwith made at $5 per acre. The land was awarded January 27, 1928, the endorsement of the Land Office on the application shows the land was appraised at $5 per acre. The law giving tire right to apply for the reappraisement does not specify that such application be in writing.

The action of the Land Commissioner in awarding the land on the application to repurchase, in the absence of a showing to the contrary, justifies the presumption that such application for appraisement was made. Gulf Production Co. v. State, Tex.Civ.App., 231 S.W. 124.

If irregularities there were in the manner of the repurchase of this land, which we do not hold, it cannot affect the main and serious question in this case. It clearly appears that it was a repurchase as provided for in Article 5326a. This right had its inception in the prior purchase when Dr. MacRae was unmarried. Title was acquired by the exercise of this right.

Had Dr. MacRae elected to reinstate his forfeited purchase by payment of the arrearages, there can be little question here. Judkins v. Robison, 109 Tex. 6, 160 S.W. 955; Gulf Production Co. v. State, Tex.Civ.App., 231 S.W. 124.

The amendment to Article 5326, R.S. 1925, gives a right additional to that of reinstatement. Magnolia Petroleum Co. v. Walker, 125 Tex. 430, 83 S.W.2d 929.

In case of forfeiture this right of reinstatement existed from the date of the purchase. This qualification must be made, that in case of a valid sale to another, the right was extinguished. Conceded, it must be, that the right to repurchase as distinguished from reinstatement had its inception in the Act of 1925 and the amendment thereto of 1926. The amendments to 5326, R.S.1925, of 1925 and 1926, were the inception of the right to repurchase. At the time of the passage of these amendments Dr. MacRae and defendant' were married, and were husband and wife on the date of the repurchase. But, as stated in Magnolia Petroleum Co. v. Walker, supra, the right to repurchase ‘ was only an alternative to the existent right of reinstatement. The right of reinstatement existed to the date of the application to repurchase. This right of repurchase or reinstatement was not a title. Houston Oil Co. of Texas v. Reese-Corriher Lumber Co., Tex.Civ.App., 181 S.W. 745, writ refused.

- But we think it had its inception in the original purchase. The title acquired by the repurchase was acquired by the exercise of this right.

Motion is overruled.


source: Caselaw Access Project

author: GRAVES, Judge.

license: Public Domain

text:
    STAYTON et al. v. CONTRERAS.
    No. 11030.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 24, 1940.
    M. R. Irion and Frank Cain, both of Dallas, for appellants.
    A. B. Gerland and C. H. Chernosky, both of Houston, for appellee.
   GRAVES, Judge.

. This appeal is from a judgment of the 61st District Court of Harris County overruling the pleas of privilege of J. W. and Alton Stayton to be sued in Chambers County, where they resided, in cause No. 260,092, styled Jose Contreras v. J. W. Stayton et al., in the District Court of Harris County, wherein they had been sued along with H. F. Stayton, a resident of Harris County, pursuant to Sub-sections 4 and 29a of Article 1995, Revised Civil' Statutes, of 1925, Vernon’s Ann.Civ.St. art. 1995, subds. 4, 29a.

The subject matter of such cause No. 260,092 in the Harris County District Court was an action by Jose Contreras against the three named Staytons, as brothers, two of whom owned a commercial truck line called “Stayton Truck Line”, for damages for injuries to himself and his own truck as a result of having been run over by one of the Stayton trucks, driven by Alton Stayton, as agent and employee of the other brothers as its owners, on July 15, 1939, while both trucks were proceeding along the highway about one and one-half miles west of Wharton in Wharton County, Texas.

The plaintiff in that suit alleged many grounds of negligence by the defendants and especially by Alton Stayton as having each and all been a proximate cause of the accident and resulting damages complained of, including these:

“(a) That Alton Stayton immediately before and at the time he drove said truck against the plaintiff’s said truck and in so overtaking plaintiff’s said truck and negligently and carelessly and in violation of the law, then and there failed in not driving to the right until said road was reasonably clear of plaintiff’s said truck.
“(b) That defendant, Alton Stayton, immediately before and at the time he drove said truck against plaintiff’s said truck negligently, carelessly and in violation of the laws of the State of Texas drove said truck at a reckless, excessive, and dangerous rate of speed in excess of 50 miles per hour.
“(c) That Alton Stayton immediately before and at the time of said collision under all of the facts and circumstances then existing, negligently and carelessly operated said truck at an excessive and negligent speed as to endanger plaintiff’s life and the lives of other occupants of plaintiff’s said truck.
“(d) That immediately before said collision plaintiff’s said automobile and the said third automobile hereinbefore mentioned and the driver who is unknown to plaintiff, were passing each other in opposite directions and said two vehicles had the right of way at said point under the law and defendant, Alton Stayton, at said time was to the rear of plaintiff’s said truck and that the defendant, Alton Stay-ton, at said times mentioned, negligently, carelessly, and in violation of the law, attempted at said time mentioned to pass said two vehicles, that is plaintiff’s said truck and third car mentioned.
“(e) That Alton Stayton in so overtaking and attempting to pass plaintiff’s truck, then and there negligently, carelessly, and in violation of the law, failed to give such assistance to the plaintiff as the circumstances then reasonably demanded of the defendant, Alton . Stayton, in order to obtain clearance and avoid striking the plaintiff’s said automobile, as aforesaid.
“(f) That Alton Stayton in so approaching and overtaking plaintiff’s vehicle then and there negligently, carelessly, and in violation of the law failed to sound audible and suitable signal to inform the plaintiff of his said approach and attempt to pass.”

The appellants’ pleas of privilege, so presented, were duly filed and in statutory form; the appellee filed his controverting affidavit, likewise in due time and form, and repeated all of his stated averments, attaching thereto a copy of his petition, in that cause.

The trial court heard the pleas of privilege and the controverting plea, received evidence, and arguments of counsel thereon, and overruled the pleas of privilege upon the issues so joined by the parties.

In this court the appellants freely concede, to quote the language of their brief, “that there was sufficient proof offered and accepted in evidence to prove each of these elements of a cause of action, except the element of negligence”, but with much earnestness they further contend “that there was no evidence, offered and accepted by the court, upon which the trial court could have predicated a finding of negligence against Alton Stayton”.

This court, after a painstaking examination of the statement of facts, including an invited consideration of the physical and geographical scenes therein described and dealt with, is unable to see eye to eye with the appellants, concluding rather that the learned trial court was correct in holding the evidence to show a probable case of negligence against Alton Stayton, the driver for and employee of the other Staytons.

It is true that the evidence was circumstantial in large measure — probably due in part, at least, to the trial court’s refusal to permit Jose Contreras to testify to the speed of appellants’ truck just prior to the collision — but that fact in no wise militates against its admissibility and potency as proof; indeed, when all the circumstances adduced by the witnesses for the appellee are considered, it seems plain to this court that the trial court was authorized if not required to find that appellants’ driyer, at an unlawful speed, dashed up. behind and ran into the appellee’s truck, and, as he himself testified, “tore it to pieces”, when he was properly moving along upon. his own right-hand ■ side of the highway at a moderate speed of twenty-five miles per hour, being otherwise in the exercise of due care upon his part; and that the impact so precipitated upon him from. the rear by the appellants^ truck threw him with great force around at an angle. of about 45 degrees from the direction in which he had been going and across the highway itself and into the near middle of a railroad right-of-way through a wire fence, perhaps 100 feet in distance; there were many other contributing details of the proof that clearly furnished proper basis for a legitimate inference upon the court’s part that such unlawful speed, and such lack of care in the face of unusual conditions, was so visited upon the appellee by the appellants’ driver; as one of these incidents, it was shown that almost simultaneously with the attempt of the appellants’ truck to pass the appellee’s, there had been a third truck passing well-nigh abreast of the appellants’ and appellee’s trucks, but going in the opposite direction along the highway, thereby creating a dangerous situation.

It would serve no useful purpose to detail the testimony, since it is this court’s conclusion from it as an entirety that the controlling ones at least of the quoted allegations of negligence against the appellants and their driver, Alton Stayton, were established to the full measure required by such holdings as those in Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, Sisco v. Sklar, Tex.Civ.App., 113 S.W.2d 999, and Farmer v. Williamson et al., Tex.Civ.App., 131 S.W.2d 973.

Pursuant to these conclusions, the judgment will be affirmed.

Affirmed.


author: ALEXANDER, Justice.

text:
    MINNOCK et al. v. GARRISON et al.
    No. 2375.
    Court of Civil Appeals of Texas. Waco.
    Oct. 24, 1940.
    Harris & Gordon and Frank Wilson, all of Waco, for appellants.
    Tom M. Hamilton and J. W. Spivey, both of Waco, for appellees.
   ALEXANDER, Justice.

This suit was brought by Laura Min-nock and others against J. L. Garrison and others, as heirs and independent executors of the estate of J. W. Garrison and wife, for the partition of said estate. The plaintiffs also joined as defendants Drs. Latti-more, Maxfield and others, it being alleged as to these last named defendants that they were claiming to hold some sort of debts against said estate, but that said debts were barred by limitation and therefore uncollectible, and plaintiffs prayed for cancellation thereof. The main defendants, J. L. Garrison and others, filed exceptions to plaintiffs’ petition. The defendants, Lattimore and others, filed pleas of misjoinder of parties, and, by way of cross-action, sought judgment for their debts. Upon the call of the case, the court sustained the defendants’ exceptions to plaintiffs’ petition, and, upon plaintiffs declining to amend, dismissed plaintiffs’ suit. The order of dismissal made no attempt to dispose of the cross-action filed by Dr. Lattimore and others. The plaintiffs have attempted to appeal to this court.

The appellees have filed motion to dismiss appeal on the ground that the order sought to be appealed from is not a final judgment. It is a well-settled rule that an appeal can be prosecuted only from a final judgment, and that in order for a judgment to be final, it must dispose of all of the parties and all of the issues in the case. 3 Tex.Jur. 103-122. The order sought to be appealed from dismissed plaintiffs’ suit for partition of said estate and for cancellation of the debts held by Dr. Lattimore and others, but it did not undertake to dispose of the cross-action filed by Dr. Lattimore and others for judgment on their said debts. The mere dismissal of the main suit did not have the effect of dismissing the cross action. Jungbecker v. Huber, 101 Tex. 148, 105 S.W. 487; Barrier v. Lowery, 118 Tex. 227, 13 S.W.2d 688; 15 Tex.Jur. 265, 291. Consequently, said order did not dispose of all of the parties nor all of the issues and therefore is not a final judgment.

Appellants assert that the cross-actions filed by Lattimore and others were not properly before the court at the time the judgment of dismissal was entered, because the plaintiffs had not been served with citation on such cross-actions. It appears, however, that the plaintiffs appeared in court and participated in the argument on the exceptions after said cross-actions had been filed. Under these circumstances, there was no necessity for citation on the cross-actions. Thompson v. Gaither, Tex.Civ.App., 45 S.W.2d 1106, par. 5; Mueller v. Heidemeyer, 49 Tex.Civ.App. 259, 109 S.W. 447; 33 Tex.Jur. 804; 15 Tex.Jur. 266.

Appellees’ motion to dismiss appeal is sustained and the appeal is dismissed at appellants’ cost.


author: WALKER, Chief Justice.

text:
    TRINITY PORTLAND CEMENT CO. v. STATE et al.
    No. 3761.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 17, 1940.
    Rehearing Denied Oct. 23, 1940.
    Benbow & Eddy and Sidney Benbow, all of Houston, for appellant.
    Gerald C. Mann, Atty. Gen., and Glenn R. Lewis, Billy Goldberg, Cecil C. Rotsch, and Lee Shoptaw, Asst. Attys. Gen., for appellees.
   WALKER, Chief Justice.

This was an action by appellant, Trinity Portland Cement Company, against the State of Texas et al., tried to the district court of Travis county without a jury, with judgment for appellees. The appeal was. prosecuted to the Austin Court of Civil Appeals. The case is on our docket by order of transfer by the Supreme Court.

The following extracts from appellant’s petition state the nature of its cause of action:

“I.
“That Trinity Portland Cement Company is a corporation duly authorized and actually doing business in the State of Texas, same consisting of manufacturing, selling and distributing what is commonly known as ‘cement’, its by-products and other commodities of a similar nature.
“II.
“That this suit is brought against the State of Texas, George H. Sheppard, Charley Lockhart and Gerald C. Mann as authorized and provided under the provisions of Acts of the 43rd Legislature, Regular Session, 1933, Chapter 214, page 637 for the purpose of recovering occupation taxes demanded by and paid to the said George H. Sheppard, State Comptroller of the State of Texas, which taxes were paid by the plaintiff herein to the defendant, George H. Sheppard, under protest. The pertinent portions of said protest being as follows:
“ ‘That the law under which this tax is demanded and the color of authority under which the above' named officials have demanded such tax reads as follows:
'•^‘■‘Cement distributors, (a) There is hereby imposed a tax of one and one-fourth (1-⅛,⅜) cents on the one hundred (100) pounds, or fractional part thereof, of cement'on every person in this State manufacturing or producing in and/or importing cement into this State, and who thereafter distributes, sells or uses the same in irótrastate commerce. Said tax shall accrue on and is imposed on the first intrastate distribution, sale or use; provided, however, no tax shall be paid except on one sale, distribution or use. The person liable for said tax is hereby defined to be a “distributor”
“TI.
“ ‘That “Trinity Mix” is the product upon which the tax is being imposed and is not cement within contemplation of the above law, under which the tax is being demanded, and by reason thereof, the Public Officials demanding the payment of same have no authority under which to collect the same, and, therefore the tax is being erroneously, unlawfully and illegally demanded and collected/ ”
' By section III, it was alleged that on the 19th day of May, 1939, appellant paid to the State Comptroller on “Trinity Mix” taxes in the sum of $6,486.32, and on other specific dates up to January 26, 1940, additional taxes making the total sum of $9,-414.45. We give section IV: “This plaintiff will further show that this suit is not only brought for the recovery of the above taxe.s, but in order to avoid multiplicity of suits, is also brought for the purpose of re-' covering all future sums which may be demanded by the Comptroller and paid by this plaintiff to the State of Texas during the pendency of this suit.”

'Appellant alleges “as reasons and grounds for bringing this suit”: (a) The commodity taxed by the State, and upon which it had paid the taxes in issue, “is not ‘cement’ within the contemplation of the law imposing an occupation tax upon the manufacture, sale and distribution of cement” ; (b) The statute in issue contains “no express or implied grounds” subject-irig appellant’s product to taxation; (c) The ¡statute under which appellant paid the tax “is unconstitutional in that it is ambiguous, uncertain, vague and indefinite, in that it does not define what product the Legislature is attempting to assess or impose-a tax upon, and by reason thereof is rendered wholly incapable of enforcement”; -(d) The taxing statute “is unconstitutional and violates the Fourteenth Amendment to the Constitution of the United States and Section 13 of Article I of the Constitution of the State of Texas, Vernon’s Ann. St., in that the said statute is vague, indefinite, uncertain, ambiguous and does not define or lay down any ‘yard stick’ so that the taxpayer can definitely ascertain just what the legislative intent was in imposing a tax”; (e) The taxing statute “is unconstitutional in that it does not define cement with such definiteness as the taxpayer can determine just what commodity the legislature is attempting to levy a táx upon, and carries heavy penalties for the violation thereof, and therefore the same further violates the Fourteenth Amendment to the Constitution of the United States and Section 13 of Article I of the Constitution of the State of Texas”; (f) The taxing statute “is unconstitutional because it is in violation of Article 5, Constitution of the United States in that it deprives the taxpayer of its property and is subject to criminal prosecution without due process of law.”

We give section IV: “This plaintiff respectfully shows to the Court that this suit is brought against George H. Sheppard, Comptroller of Public Accounts, Charley Lockhart, State Treasurer and Gerald C. Mann, Attorney General of the State of Texas in their official capacities as authorized under and by virtue of the provisions of the Act of the 43rd Legislature, Regular Session 1933, Section 214, page 637 and that service of citation may be had by serving each and all of them.”

Appellant prayed that “it have judgment for the taxes heretofore paid the State of Texas in the amount of Nine Thousand Four Hundred and fourteen Dollars and 95/100 ($9,414.95) Dollars and that it have judgment for all other and future taxes which may be paid or required to be paid to the Comptroller of Public Accounts pending the final outcome of this suit and cause of action, together with interest thereon as authorized and provided by law,” and general and special relief.

Appellant instituted this suit under the provisions of Chapter 214, page 637, Acts of the 43rd Legislature, Reg.Sess.1933, codified as Article 7057b, Vernon’s Ann. Civ. St. Appellees demanded the tax, and it was paid by appellant, under authority of Sec. 41, Chap. 212, Acts of the 42nd Legislature, Reg.Sess.1931, page 355, codified as Art. 7047, Sec. 41.a, as brought forward in appellant’s petition supra.

The first point to be considered under appellant’s brief is whether its product is “cement” within the provisions of Art. 7047, § 41.a. The facts on this proposition are as follows:

(1) Appellant manufactured and sold its product in sacks bearing the following labels :
(a) On one side of the sack:
“67 lbs. net TRINITY MIX
MASONRY CEMENT
Trinity Portland Cement Company”;
(b) On the other side of the sack:
“TRINITY MIX
Freight Shipping Bag Meeting Requirements of Consolidated Freight Classification
or: Cement — Carload Guaranteed by
Kraft Bag Corp. — Silman, Vt 4460
TRINITY MIX MASONRY CEMENT IS A PORTLAND CEMENT PRODUCT
TRINITY PORTLAND CEMENT COMPANY
DALLAS, FORT WORTH AND HOUSTON.”
(2) Appellant’s product consisted of a mixture of 50 per cent Portland cement and 50 per cent ordinary limerock, an inert material, ground up and not processed.
(3) Mr. Ganser, appellant’s plant superintendent, testified that the limerock used in “Trinity Mix” “is similar to lime, and is added to the Portland Cement, making a commodity which they call Trinity Mix, which is used in making mortar by simply adding sand to the same. It is prepared for the convenience of people desiring to make mortar in order that they will not have to mix all of the ingredients on the job. They can make mortar simply by adding a certain amount of sand to the mixture.”
(4)Mr. G. B. Boone, a chemist and chemical engineer, testified (Q. & A. reduced to narrative):
“Well, ‘cement’ can cover a multitude of sins, but, generally speaking, it is considered a material that when you mix it with water and get it into a plastic state, it can be used to bind building materials 'of one type or another together on a wall or floor, and subsequently, it becomes hard or stone-like in appearance. In the ordinary sense I would not consider lime cement; I would not consider limerock not processed cement. I consider the commodity in question, ground up limerock mixed with Portland cement, I consider the whole commodity cement. To illustrate my conclusion,’ I give the following illustration: If I' go down to the store and buy a can of flea powder, I am interested in something to kill fleas on my dog. I am perfectly satisfied that it is a can of flea powder. After I buy it you will notice the active ingredient is probably not 3%. The other material in it has nothing to do with killing fleas. If I used the active ingredients straight, I would probably kill the dog too. If I buy that product, that will answer the need. I would not class as cement gypsum or red top plaster made from gypsum. Probably, there are many commodities of the nature of cement, such as the various forms- and kinds of plaster, but I would rule them' out as cement. I believe that you should make a classification which would rule out those which couldn’t be used when exposed to the weather. The red top and dental plaster, they are not suitable to outdoor use. These are products suitable for indoor use; I would not consider these products cement If I were in my own mind going to draw up an opinion of that sort, I would consider only materials that could be used in exterior work which would fill the definition that I gave; used for binding building materials, and used in a plastic stage, and subsequently hardening and would Stand weathering and would give satisfactory service. It is quite possible that other experts might differ with my conclusion as to what constitutes cement. If you want me to give a general definition of cement, you will bring in everything that can be used to bind two bodies or particles together, and I have never heard of rubber cement being used extensively to bind building materials together.”

We give the following definitions of cement:

(1) “A substance which is mixed with water and used in a soft or pasty state to join stones or bricks in a building, to cover floors, etc., and which afterwards becomes hard like stone; esp., such a substance made with lime, or a calcined mixture of clay and lime-stone.” Webster’s New International Dictionary, Second Edition.

(2) “[The term] ‘Cement,’ as commonly used, implies that a substance dissolved in a solvent, and when the solvent is evaporated the cement hardens, and binds the layers of material together.” 14 C.J.S. page 61.

(3) Quoting from the Donaldson case, Donaldson v. Roksament Stone Co., C.C., 170 F. 192, 193:

“ ‘Portland cement is the slow-setting product of a high-temperature kiln burning a pulverized cement rock, or mixture of clay and limestone of a very exact and regular composition.’
“ ‘Natural cement is the quick-setting product of a low temperature kiln burning á cement rock of irregular composition.’ ”

(4) “The term ‘cement,’ as commonly used, implies a substance dissolved in a solvent, and when the solvent is evaporated the cement hardens, and binds the layers of material together.” Brunswick-Balke-Collender Co. v. Seamless Rubber Co., D.C., 27 F.2d 925, 926.

(5) We take the following definition from Vol. 6, page 189, Encyclopedia Americana :

“A cement is any compound which, under certain conditions, is plastic and under others develops tenacity and can be used for holding together various materials; hence glue, lime, asphaltum, mucilage and solder are cements. By far the most important class o,f cements, structurally and commercially are the hydraulic cements, compounds of lime, silica and alumina that have the property when mixed with water to a paste of cohering or setting and finally becoming stone hard, even under water. The hydraulic cements may be divided into four classes based on differences in the materials used.
“The four classes of hydraulic building material above mentioned are: (1) Hydraulic lime made from a limestone containing a small proportion of clay (8 to 10 per cent) by burning at a low temperature and slaking the burned rock and water. (2) Hydraulic or natural-rock cement made from a limestone containing a relatively high proportion of clay, by burning at a low heat and grinding the product to powder. (3) Portland Cement made from an artificial mixture of carbonate of lime (either chalk, limestone or marl), with a certain proportion of clay, burning at a white heat and grinding the clinker to powder ⅜ ⅝ ⅜ **

(6)“But this word has the ordinary commercial meaning of hydraulic cement, and also a larger, and perhaps more accepted, sense.” American Sulphite Pulp Company v. Howland Falls Pulp Company, 1 Cir., 80 F. 395, at page 404.

It is our conclusion that appellant’s commodity is “cement” within the meaning of the taxing statute. Appellant’s commodity has every essential element of cement as defined by the authorities quoted above; admittedly it contains 50 per cent Portland cement. On authority of Encyclopedia Americana, Portland cement is made from an artificial mixture of carbonate of lime (either chalk, limestone or marl), with a certain proportion of clay, burning at a white heat and grinding the clinker to powder. There is nothing in appellant’s commodity that is not a constituent element of Portland cement — half of it processed, and the other half not processed.

Appellant manufactured, advertised, sacked and sold its commodity as cement; by so doing it took advantage of the term “cement.” Appellant’s product — this mixture — must be given a classification. It is not mortar; it is not lime; since it possesses all the constituent elements of cement, we think it must be so classified. The following authorities sustain our construction of appellant’s commodity: 19 U.S.C.A. § 1001, Par. 205; Wood Pressing Corp. v. State Tax Commission, 235 Ala. 438, 179 So. 254; McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 51 S.Ct. 510, 75 L.Ed. 1183.

The second point presented by appellant’s brief is the constitutionality of the taxing statute. Appellant, by its proposition, asserts that this statute is unconstitutional “because it is vague, indefinite and uncertain, and therefore incapable of being enforced.” This proposition is overruled. Article 10, R.C.S.1925, reads:

‘.‘General rules — The following rules shall govern in the construction of all civil statutory enactments:
“1. The ordinary signification shall be applied to words, except words of art or .words connected with a particular trade or subject matter, when they shall have the signification attached to them by experts in such art or trade, with reference to such subject matter.”

In Engelking v. Von Wamel, 26 Tex. 469, Mr. Chief Justice Wheeler, speaking for •our Supreme Court, said: “* * * The rules for the. construction of statutes require that the words employed by the legislature shall be taken in their ordinary and popular acceptation, unless technical words are used, or it clearly appears from the context that they were not intended to be so understood. * * * ”

In Koy v. Schneider, 110 Tex. 369, 218 S.W. 479, 221 S.W. 880, 888, our Supreme Court said: “That the' courts should uphold a statute as valid, unless it is clearly unconstitutional, is well settled by the authorities everywhere, and is expressly conceded by said dissenting opinion in this case. The settled and oft-repeated decisions of this court, rendered prior to the enactment of said statute of 1918, are very clearly to this effect: Every intendment and presumption being in favor of the constitutionality of a statute, it should not be held invalid unless its unconstitutionality be made to appear beyond any reasonable doubt.”

It seems to be a well-settled rule of construction that a revenue act, even though it contains penal provisions, is not to be construed as strictly as other penal acts. On this point, in Lowe v. Farbwerke-Hoechst Co., 2 Cir., 240 F. 671, 672, the court said: “While ‘revenue statutes, even though embracing penalties or forfeitures, are not to be construed like penal laws generally, * * * but are to be fairly and reasonably construed so as to carry out the intention of the Legislatures’ (United States v. Stowell, 133 U.S. [1], 12, 10 S.Ct. [244], 246, 33 L.Ed. 555), * * *.”

In State v. International & G. N. R. R. Co., 107 Tex. 349, 179 S.W. 867, 868, sustaining the term “light repairs” against the proposition that the term was vague and indefinite, our Supreme Court said:- “The term ‘light repairs’ is composed of two words of common and constant use by those engaged in every line of employment, and, when used together, should be reasonably plain in meaning to any person; and, when the term ‘light repairs’ is considered by those engaged in a special line of industry and calling, such as the railroad business, it is possible that it might have a technical meaning in common use as applied to such industry, and in such event the expression ‘light repairs’ would mean what.it is commonly understood to mean among those engaged in such special line of industry. But, aside from the possibility of this technical meaning, the inquiry is pertinent as to whether the Legislature could have used plainer words than ‘light repairs’ and conveyed a clearer meaning than that term imports. What clearer expression could have been used? What could have been provided in the act to make the meaning plainer? It occurs to us that a more definite expression could not have been used to cover the subject intended. If a definition of the term ‘light repairs’ had been attempted, it would have been impossible of construction, unless a catalogue of all repairs that might be considered ‘light’ was embraced in the act. * * * We know of no rule of construction that would authorize us to nullify an act of the Legislature because of uncertainty in meaning, when from the nature of the subject legislated upon no more definite meaning could reasonably be expressed, the effect of which would be to prohibit legislation upon the subj ect. * * *”

In State v. Shapiro, 131 Md. 168, 101 A. 703, 706, Ann.Cas.1918E, 196, it was held that certain legislation of the State of Maryland, requiring a license for “junk dealers” was not unconstitutional on the ground that it was “indefinite and uncertain.” In Houston & T. C. R. R. Co. v. Stevenson, 29 S.W.2d 995, 998, our Commission of Appeals sustained legislation making it unlawful to operate a motor vehicle on a public highway without “adequate brakes kept in good working order”; and, in holding the statute constitutional, the court said: “What constitutes ‘adequate brakes kept in good working order,’ as applied to the operation of a motor vehicle upon a highway in this state, should not be difficult to understand. We think the terms used in the statute in question are easily understood by those who are to be'governed by its provisions. This is all that should be required to meet the test of its validity.”

These authorities support the constitutionality of the taxing statute, as against appellant’s propositions.

As sustaining its contention that the taxing statute is unconstitutional, appellant cites the following authorities: (a) Winslett v. Case-Fowler Lbr. Co., 173 Ga. 539, 160 S.E. 384, 385. In that case the court was construing legislation imposing an occupation tax on manufacturers of and dealers in lumber and lumber products: It was held that the act was unenforceable “as to manufacturers of or dealers in lumber products, but is not void in so far as 'it affeóts manufacturers of or dealers in lumber.” In the case at bar, cement is taxed, but not cement products. The case is not in point, (b) Beaumont Traction Co. v. State, 57 Tex.Civ.App. 605, 122 S.W. 615. In that case the court struck down a penal statute on the ground ' that it was vague and indefinite, making it an offense to operate a street railway car without providing screens for the protection of the motorman; the court was not able, from the language of the statute, to ascertain the legislative intent. In the cáse at bar, the courts do not have to make “a blind guess” to ascertain the intent of the legislature. The statute levies a tax for each 100 pounds' of cement on those manufacturing and importing this commodity. (q) United States of America v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 299, 65 L.Ed. 516, 14 A.L.R. 1045. The legislation in that case made it unlawful “to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries.” The act did not define what should be considered an unjust and unreasonable charge. That case is not in point; the taxing statute does not assess a “reasonable and just tax” on cement, but fixes a definite tax.

As we understand the authorities cited above, defining “cement,” in enacting the statute in issue, the legislature used a generic term, well understood in the building trade. We think this taxing statute falls' directly within the rule of construction announced by the Supreme Court of the United States in Baltimore & Ohio R. R. Co. v. Interstate Commerce Commission, 221 U.S. 612, 31 S.Ct. 621, 625, 55 L.Ed. 878. That case involved the construction of an act of Congress regulating the hours of employment of railway employees. Overruling the contention that the act was invalid on the ground of uncertainty, the court said: “It is said that the words, ‘except in case of emergency,’ make the application of the act so uncertain as to destroy its validity. But this argument- in substance denies to the legislature the power to use a generic description, and, if pressed to its logical conclusion, would practically nullify the legislative authority by making it essential that legislation should define, without the use of generic terms, all the specific instances to be brought within it. In a legal sense there is no uncertainty. Congress, by an appropriate description of an- exceptional class, has established a standard with respect to which cases that arise must be adjudged.”

The power of the Legislature of Texas to levy, an occupation tax against certain occupations, and to exempt others, cannot be denied. Southwestern Oil Co. v. State of Texas, 217 U.S. 114, 30 S.Ct. 496, 54 L.Ed. 688.

The statute in issue has been in operation about nine years, and has been enforced by the Comptroller, on authority of an opinion from the office of the Attorney General of date the 11th of September, 1931, from which we quote:

. “It is a fundamental rule of construction that the absence of anything in the context of a statute to the contrary, common or popular words are to be understood in a popular sense. Sutherland Statutory Construction, Section 389, page 747; Gilmore v. Waples [108 Tex. 167], 188 S.W. 1037. And a thing or subject which is not within the intent and spirit of - the statute is not within the statute though within the letter. Sutherland’s Statutory Construction, Section 379, page 730; Hawaii v. Mankichi, 190 U.S. 197 [23 S.Ct. 787, 47 L.Ed. 1016]; Pool v. Simmons, 134 Cal. 621 [66 P. 872], And words or clauses may be enlarged or restricted to effectuate the intention or to harmonize them with other express provisions. Where general language construed in a broad sense would lead to absurdity, it may be so restrained. People v. Davenport, 91 N.Y. 574; McKee v. United States, 164 U.S. [287], 289 [17 S.Ct. 92, 41 L.Ed. 437]; Sutherland’s Statutory Construction, Section 376, page 721.
“Bearing in mind the above rules of construction, it is the opinion of the writer that the Legislature intended to impose the tax upon any substance of a cementitious nature, which, in my opinion, would be commonly understood to mean such cement as is used in construction work, namely, the construction of buildings, roads, sidewalks, and the like, and would not apply to such substance as dental cement, belting cement, and like substances as mentioned in your inquiry. It seems that this theory is supported by the act itself by imposing only a nominal tax upon the one hundred-pounds of such cement which, I understand, is the standard unit for sale of cement used for ordinary construction work.”

If the taxing statute in issue is ambiguous and open to construction, much weight should be given to the opinion of the Attorney General, quoted above, under which the State has .collected this tax. In Koy v. Schneider, 110 Tex. 369, 218 S.W. 479, 221 S.W. 880, 885, it was said: “A kindred rule is that,'where a statute is am-, biguous — open to construction — a construction given it by even the head of an executive department of the state government' will be followed and upheld by the courts, unless such construction is clearly erroneous.”

It is our conclusion that the judgment of the lower court, denying appellant a recovery for the taxes paid under the - taxing statute in issue, should be affirmed, ánd it is accordingly so ordered.

Affirmed.


author: MONTEITH, Chief Justice.

text:
    PENROD DRILLING CO. et al. v. SILVERTOOTH et al.
    No. 11046.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 10, 1940.
    Rehearing Denied Nov. 7, 1940.

      McEntire & Shank, Eckford & McMahon, and James H. Walker, all of Dallas, for appellants.
    Jones & Jones and C. A. Brian, both of Marshall, and Smith & West, of Henderson, for appellees.
   MONTEITH, Chief Justice.

Mrs. Hazel Silvertooth, individually and as the duly appointed guardian of her eight minor children, brought this action against appellant, Penrod Drilling Company et al., to recover damages alleged to have been sustained as a result of the negligent attempt to dislodge a drill stem in an oil well which caused a derrick to fall on Floyd C. Silvertooth, husband and father of appellees, which resulted in his death. The appellants, defendants in the trial court, were O. C. Zoller and Penrod Drilling Company, a partnership composed of Hassie Plunt, Nelson Bunker Hunt Trust Estate, William Herbert Plunt Trust Estate, Lamar Hunt Trust Estate, all of whom were made parties defendant, H. L. Hunt, individually and as trustee of said trust estates, and Mrs. Margaret Plunt Hill and her husband, A. G. Hill. Later H. L. Hunt individually was dismissed from the action and Mrs. S. A. Silvertooth, mother of deceased, Floyd C. Silvertooth, and Hartford Accident & Indemnity Company, were made parties defendant. Both subsequently filed cross-actions herein.

Appellees alleged that O. C. Zoller, acting jointly with the employees of the Pen-rod Drilling Company, had negligently caused a defective derrick to be erected and negligently carried on the work of drilling an oil well therewith; that by reason of their joint negligence the derrick was caused or permitted to fall on Floyd C. Silvertooth, inflicting fatal injuries upon him. They pled the doctrine of res ipsa loquitur and in the alternative alleged specific acts of negligence.

In answer to special issues submitted by the court a jury found in answer to special issue No. 1 that the derrick in question was pulled over. In answer to special issues Nos. 2 and 3, it found that such action in pulling the derrick over was negligence, and that such negligence was the proximate cause of the fatal injuries to Floyd C. Silvertooth. In answer to special issue No. 4, as to whether the derrick or its foundation was not properly constructed, the jury answered “no”, which made it unnecessary to answer the following special issues Nos. 5, 6, 7 and 8 inquiring as to the negligence of the Penrod Drilling Company in such alleged improper construction. In answer to special issue No. 9 it was found that the death of Floyd C. Silvertooth was not the result of an unavoidable accident, and in answer to special issue No. 10, the jury apportioned the damages awarded among the widow, the eight children, and the mother of Floyd C. Silvertooth. The court rendered judgment in accordance with the verdict of the jury, subtracting, however, from the $4,000 awarded Mrs. Hazel Sil-vertooth the sum of $2,980.56 and awarding that sum to Plartford Accident & Indemnity Company. It further subtracted from the amount awarded to the minor children the sum of $450 and awarded that sum to Hartford Accident & Indemnity Company for compensation paid and assumed to be paid by them.

Each of appellants moved the court for an instructed verdict in their favor and for judgment in their favor notwithstanding the verdict. They assign error in the action of the court in overruling these motions.

The record shows that Floyd C. Sil-vertooth, a man of 35 years of age, was killed when an oil well drilling derrick fell on him on April 21, 1938, in Rusk County, Texas. At the time of his death he was an employee of the Hunt Oil Company. Hartford Accident & Indemnity Company carried compensation insurance on the employees of the Hunt Oil Company, and after Mr. Silvertooth’s death acknowledged liability and paid Mrs. Hazel Silvertooth $60 in $10 weekly payments for six weeks. It then settled with her for the lump sum of $2,920.56. Payment to the eight minor children of $10 a week continued up to the date of the trial. Thereafter Mrs. Hazel Silvertooth, suing for herself and as guardian of her eight minor children, brought this action.

At the time of the accident Penrod Drilling Company was engaged in drilling well No. 6 on the Hunt Oil Company’s Thompson lease in Rusk County, Texas, under a written contract with the Hunt Oil Company, the material parts of which provided: “We, (Penrod. Drilling Company), agree to drill and complete this well, furnishing at our expense and risk all labor, drilling tools and supplies, equipment and appliances necessary for its skillful drilling and completion * *

Prior to said accident said well had been drilled to an approximate depth of 3,100 feet. On the night of April 21, 1938, the drill stem became stuck in the well and efforts were made by the drilling crew of Penrod Drilling Company to dislodge it. These efforts were unsuccessful and appellant, O. C. Zoller, production superintendent of the Hunt Oil Company, was notified. He instructed Floyd C. Silvertooth to take a truck load of pipe to the well and went to the drilling site himself to assist the employees of Penrod Drilling Company in removing said drill stem. On the second pull in an effort to remove said drill stem after he arrived, the derrick fell to the ground in a northeasterly direction over the side of the derrick on which the draw works were located. The leg of the derrick on the side toward which the derrick fell was slightly bent and the legs of the derrick on the opposite side from which it fell were pulled loose from their foundations. After the derrick fell a transit was run on the four corners of the foundation. The foundation under the northeast corner of the derrick was found to be three-eighths of an inch lower than the foundations 011 which the other three legs stood. The jury found on sufficient evidence that said derrick and its foundation had been properly constructed.

Appellants contend that under the record in this case appellees must recover, if at all, under the doctrine of res ipsa loqui-tur and that this doctrine is not available to them, for the alleged reasons that said derrick was not in the exclusive control of Penrod Drilling Company at the time of said accident; that the evidence left the cause of the accident open to speculation; that appellants had proved a very probable cause of the fall, the low corner of the derrick, for which Penrod Drilling Company was not responsible; and that the evidence showed that Penrod Drilling Company was using the usual and customary methods and tools and was performing the labor in which they were engaged in the usual and customary manner. This contention cannot be sustained.

In order to invoke the principle of doctrine of res ipsa loquitur, the particular thing causing an injury complained of must be shown to be under the management of the defendant or its servants and the accident be shown to be such as in the ordinary course of things does not happen if those who have the management or control use proper care. In a proper case for the application of the rule where the physical facts involved in an accident are of such a character as to compel an inference that it resulted from negligence, such facts are themselves evidence of negligence, and it is incumbent upon the defendant, if he wishes to avoid the effect of the doctrine, to introduce evidence to explain, rebut or otherwise overcome the presumption or inference that the injury complained of was due to negligence. Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659; Texas & N. O. R. R. Co. v. Schreiber, Tex.Civ.App., 104 S.W.2d 929; Southland Greyhound Lines, Inc. v. Frausto et al., Tex.Civ.App., 69 S.W.2d 497; 45 Corpus Juris, 1219.

In the instant case, the evidence shows that at the time of said accident Penrod Drilling Company had taken control of the drilling operations on said well as an independent contractor, under a written contract under which it was obligated to drill said well, and that its employees were conducting said drilling operations. The jury found, on sufficient evidence, that said derrick was pulled over; that the action in pulling it over was negligence, and that such negligence was a proximate cause of the fatal injuries to Floyd C. Silvertooth, and that said derrick and its foundations had been properly constructed. The jury further found- that the death of Floyd C. Silvertooth was not the result of an unavoidable accident.

While appellant, O. C. Zoller, undertook to assist the employees of Penrod Drilling Company in their efforts to loosen said drill stem, there is no showing that he was an employee of the Penrod Drilling Company or that he was authorized to take charge of said operations or that its employees were permitted or authorized to take orders or instructions from him. Certainly his act in volunteering his services and advice in releasing said drill stem would not per se constitute him its agent or employee, nor would his actions bind said partnership.

The evidence adduced, supported by a finding by the jury, eliminated two of the three possible causes of the fall of said derrick, namely, the questions as to whether the derrick itself or its foundation were properly constructed, leaving the single cause of excessive strain, which was found in favor of appellees by the jury on sufficient evidence.

Penrod Drilling Company having taken possession and control of the drilling operations, and the evidence having conclusively shown that they were performing the work at the time of said accident, the court was amply justified in rendering judgment against Penrod Drilling Company and the parties who composed such partnership.

As to appellants’ contention that there was no testimony nor was there a finding as to any act of negligence on the part of 'appellant O. C. Zoller, the record shows that he was not an employee of Penrod Drilling Company. It is not shown that his advice or assistance was requested or that he was authorized to give advice or instructions to the employees of Pen-rod Drilling Company. It follows that, in assuming to give aid to Penrod Drilling Company and its employees, he became a volunteer assistant in the work in which the Penrod Drilling Company was engaged. Under above facts and in the absence of a finding by the jury as to any act of negligence on the part of O. C. Zoller which would or did proximately cause the death of Floyd C. Silvertooth, we think that the court erred in overruling and not sustaining the motion for an instructed verdict in his favor.

Appellants assign error in the action of the court in overruling and not sustaining motions for an instructed verdict and for judgment non obstante veredicto in favor of appellants, Nelson Bunker Hunt Trust Estate, William Herbert Hunt Trust Estate, Lamar Hunt Trust Estate, and H. L. Hunt, trustee of said estates, for the alleged reason that the evidence showed that, at the time of said accident on April 21, 1938, the partnership of Penrod Drilling Company was composed of Margaret Hunt and Plassie Hunt, and that at such time none of such trust estates were members of said partnership.

The record shows that at the time of said accident, the partnership of Penrod Drilling Company was composed of Margaret Hunt, who owned 40 per cent of the physical assets of said partnership, and Plassie Hunt, who owned 60 per cent thereof. On October 12, 1938,. the partnership was dissolved and on October 13, 1938, Margaret Hunt sold all of her interest in the partnership to said three trust estates, one-third to each, for the sum of $55,500. Each of the conveyances to said trust estates recited that the trust estates took the property and property rights conveyed “subject to but not assuming all legal and outstanding incumbrances and contracts.” Prior to the filing of this action, Hassie Hunt formed a new partnership, continuing the name “Penrod Drilling Company”, composed of himself and said three trust estates, appellants- herein.

While the record shows that the new partners of Penrod Drilling Company, said three trust estates, did not assume the existing liabilities against said partnership, in the absence of an agreement to do so, the law is well settled that an incoming partner takes only a partnership interest in the partnership property subject to trusts, equities, charges and liens existing against it. Reese v. Carey Bros., Tex.Civ.App., 286 S.W. 307; Freeman v. Huttig Sash & Door Co., 105 Tex. 560, 153 S.W. 122, Ann.Cas. 1916E, 446; 32 Tex. Jur. 467; 47 Corpus Juris 1029.

Under the above authorities, appellant trust estates are, we think, proper parties to this action, since they are shown to hold the physical assets acquired under said conveyances. However, they would not be personally liable in this suit for an amount over and above the value of the physical properties so acquired.

It follows from these conclusions that the judgment of the trial court should be reformed so that it may provide that ap-pellees shall have and recover of and from appellants, Nelson Bunker Hunt Trust Estate, William Herbert Hunt Trust Estate, and Lamar Hunt Trust Estate, no personal judgment over and above an amount which may be derived out of and from the assets of said trust estates which were acquired from Margaret Hunt, and that as thus reformed the judgment of the trial court should be in all respects affirmed, with the exception of that portion thereof which was rendered in favor of appellees against appellant, O. C. Zoller. The judgment of the trial court in that respect is reversed and here rendered that appellees take nothing against appellant, O. C. Zoller. It is accordingly so ordered.

Reversed and rendered in part, and in part reformed and affirmed.


author: BROWN, Justice.

text:
    SOUTHERN UNDERWRITERS et al. v. STONE.
    No. 14124.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 18, 1940.
    Simpson, Dorenfield & Fullingim, of Amarillo, and Will R. Saunders and Henry D. Akin, both of Dallas, for appellants.
    Gillen, Francis & Gallagher, of Dallas, for appellee.
   BROWN, Justice.

This is a workmen’s compensation case, brought here by the insurance carrier, in which only three assignments of error are presented. The situation is so unusual that we are constrained to make special mention of such a record.

The claimant and appellee, Bernie M. Stone, in his petition alleged that he was holding to a cable while working for C. W. Burgess, on an oil well, when the slack in the cable was suddenly taken up and he was hurled backwards about twelve feet and his back struck against the end of what is known as a cap sill, and he sustained injuries to his muscles, ligaments, bones and attachments in plaintiff’s back and pelvis, that he sustained a sprain of the lumbo-sacral joint, and a crushing fracture of the upper part of the fifth lumbar vertebra and fractures of the right transverse processes of the second, third, fourth and fifth lumbar vertebrae, and fractures of the first and third lumbar vertebrae, and the cartilage between the lumbar vertebrae in the lower back were torn, bruised, injured and damaged, and that by reason of such' injuries he has suffered total and permanent disability, for which he prayed the maximum recovery in a lump sum settlement.

The cause was submitted to a jury on special issues, and on the verdict returned by the jury, judgment was rendered for the claimant, covering total and permanent disability, and the amount was ordered to be paid in a lump sum.

The cause was appealed to the Court of Civil Appeals for the Texarkana District, and was, by the Supreme Court, transferred to this court.

The first assignment of error contends that the trial court should not have submitted Issue No. 1 to the jury in the manner same was submitted, over appellants’ objections.

Issue No. 1 is: “Do you find from a preponderance of the evidence that on the 13th day of May, 1938, the plaintiff, Bernie M. Stone, sustained injuries when he was thrown against a cap sill while working for C. W. Burgess?”

The objection that this issue leaves the jury free'to speculate and conjecture upon the kind and type of injuries, if any, which the plaintiff is alleged to have received at the time and that it does not restrict the jury to the pleadings and the testimony, is, in our opinion, well taken.

The objections made are full, complete and specific, and were overruled.

Because of the many injuries pleaded and the great amount of testimony adduced concerning them, it seems evident to us that there are a number of specific injuries alleged, as distinguished from results of injuries, and that the issue should not have been given in such broad language.

Among the many Courts of Civil Appeals cases cited by appellant is that of Southern Underwriters v. West, 126 S.W.2d 510 (San Antonio Court), and a writ of error was refused in such case. In the opinion, a number of cases are cited that also appear in appellants’ brief.

In the case of Southern Underwriters v. Boswell, 141 S.W.2d 442, we attempted to find a distinction between, the case under consideration and the rule as laid down in such cases as Federal Underwriters Exchange v. Arnold, Tex.Civ.App., 127 S.W.2d 972 (in which the Supreme Court dismissed the application for a writ of error with the notation: “Correct judgment”), but the Supreme Court granted a writ in the Boswell case and the Texas Syllabi advises us that such writ was granted on the first, seventh, eighth and ninth assignments of error.

The ninth charges that we erred in holding that it was not reversible error for the trial court to submit Special Issue No. 1, over the objection that such issue is too general, indefinite and speculative and is not confined to the proof and the pleadings.

In view of the action of the Supreme Court on application for a writ of error in the Boswell case, and the action of such court in the Arnold case (also decided by us), we are not led to believe that the writ was granted in the Boswell case for the purpose of handing down an opinion at variance with the several decisions of Courts of Civil Appeals wherein such general issues as were given in such cases and in the case at bar have been condemned.

The first assignment of error is sustained.

The third proposition asserts that the trial court erred in submitting Special Issue No. 5 in the form given because it erroneously places the burden of proof upon the defendant. .

The issue is: “Do you find from a preponderance of the evidence that said total incapacity to labor, if any, is temporary?”

This issue as given required the defendant to establish, by a preponderance of the evidence, that the total incapacity of the claimant was temporary, when it was' the duty of the plaintiff, under his pleadings and the view of his case taken by him, to establish by a preponderance of the evidence that such disability was not temporary.

We are inclined to the opinion that the plaintiff having pleaded and sought to establish by his evidence that his disability is both total and permanent, the issue should have been so framed as to place the burden of proof upon the plaintiff to establish the fact that his disability is not merely temporary.

The reasoning in Texas Fire & Casualty Underwriters v. Blair, Tex.Civ.App., 130 S.W.2d 409, writ dismissed, correct judgment, seems to sustain our view.

We cite, also, Hartford Accident & Indemnity Co. v. Leigh, Tex.Civ.App., 57 S.W.2d 605.

We are inclined to sustain the third assignment of error.

The second assignment of error complains of language used by plaintiff’s counsel in his final argument to the jury.

It is certain that the language used should mot have been employed and counsel evidently saw “the error of his way”, as the record shows that, when the defendant objected to the argument, counsel attempted to withdraw it from the jury and told the jury not to consider it. But the record does not show that the trial court sustained the objection made, or that the trial court instructed the jury not to consider the argument.

As little as some may think it so, the average juror gives great weight to what is “said” by a trial judge in the trial of a cause.

That is the very evident reason why the trial judge may not comment upon the weight to be given to any testimony or evidence, either orally or through the charge.

If there were no other error in this record requiring a reversal of the judgment, we would not reverse for the language used by counsel, under the facts in this case.

For the reasons given, the judgment is reversed and the cause remanded.


author: FOLLEY, Justice.

text:
    SANNS et al. v. CHAPMAN et al.
    No. 5195.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 23, 1940.
    Rehearing Denied Nov. 4, 1940.
    Robt. A. Sowder and Walter F. Schenck, both of Lubbock, for appellants.
    Stubbeman, McRae & Sealy, of Midland, for appellees.
   FOLLEY, Justice.

This is an appeal from a judgment overruling a motion for a new trial filed under article 2236, R.C.S. of Texas, providing, in substance, that in cases where judgment has been rendered on service of process by publication and the defendant has not appeared in person or by an attorney of his own selection, the court may grant a new trial upon an application showing good cause filed by the defendant within two years after the rendition of the judgment.

The motion for new trial was for the purpose of setting aside the judgment in cause No. 2200 styled Chas. C. Chapman et al. v. John Sanns et al. in the District .Court of Terry County, Texas, which was filed and entered January 18, 1938, wherein Chas. C. Chapman and others recovered judgment against John Sanns, Mrs. John Sanns, wife of John Sanns, and the unknown heirs of such defendants, deceased, their heirs and legal representatives, for title and possession of the west one-half of section 11, Block D-14, C. & M. Ry. Co. Survey in Terry County, Texas. The motion for new trial herein was filed within the two-year period by the appellants, Ralph Sanns and James E. Sanns, the only children of John Sanns, deceased. The record reveals that John Sanns, through whom the appellants claim title to the land, died March 3, 1933.

In the proceeding below from which this appeal is prosecuted the appellants failed to allege or prove want of actual notice of the pendency of the suit in cause No. 2200 prior to the time of the trial thereof or that they had been deprived of the opportunity of being represented in the trial thereof by a counsel of their own selection.

In the case of Dennis et al. v. McCasland, 128 Tex. 266, 97 S.W.2d 684, 686, in discussing the meaning of “good cause” as used in article 2236, it is said: “ ‘Good cause’ within the meaning of article 2236 is shown when it is made to appear that defendant had no actual notice of the pen-dency of the suit prior to the time of trial of the cause, and has a meritorious defense against either the whole or a part of the cause of action asserted, the presentation of which would probably have resulted in entering of a different judgment.”

Also, in Ashton et ux. v. Farrell & Co. et al., Tex.Civ.App., 121 S.W.2d 611, 616, the meaning of “good cause” under the statute involved is thus defined: “ ‘Good cause’, within the meaning of Art. 2236, is shown where defendant had no actual notice of the pendency of the suit prior to the judgment, and alleges a meritorious defense to the action, either in whole or in part, which probably would have resulted in a different judgment.”

A similar definition will be found in Smalley v. Octagon Oil Co. et al., Tex.Civ.App., 82 S.W.2d 1049, 1052, in the following language: “Good cause, as used in said statute, is shown in such cases when it is made to affirmatively appear that the defendant had no actual notice of the pen-dency of such suit, and that he has a meritorious defense to either the whole or a part of the cause of action asserted therein, the presentation of which would probably have resulted in the rendition of a different' judgment.”

In Smith et al. v. Higginbotham et al., Tex.Civ.App., 112 S.W.2d 770, 773, it is stated: “It will be observed by the wording of article 2236 that the motion shall show ‘good cause.’ By this it is meant that the verified motion must show good cause why the movant did not appear at the trial and present his defenses shown by the motion to exist.”

Under the above authorities it is evident that one of the essential elements of “good cause” within the meaning of article 2236 is that the defendant must show that he did not have actual notice of the pendency of the original suit prior to the trial of that cause. Apparently this element is just as important as the other relative to a meritorious defense. We are therefore of the opinion the failure of the appellants in this proceeding to allege and prove want of actual notice of the original action prior to the judgment therein is fatal to their right to a new trial and dispenses with the necessity of determining the issue as to a meritorious defense. Mussina v. Moore, 13 Tex. 7; Kitchen v. Crawford, 13 Tex. 516; Wiseman v. Cottingham et al., 107 Tex. 68, 174 S.W. 281; Hunsinger v. Boyd, District Judge, et al., 119 Tex. 182, 26 S.W.2d 905; Dunlap v. Wright, Tex.Civ.App., 280 S.W. 276. Such being true it follows there was no error in the judgment.

The judgment is affirmed.


author: GRAVES, Justice.

text:
    PARKER et al. v. PERKINS et al.
    No. 11015.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 3, 1940.
    Rehearing Denied Nov. 7, 1940.

      Alpha & Brunson, of Houston, for plaintiffs in error.
    Charles Murphy, of Houston, for defendants in error.
   GRAVES, Justice.

This appeal by writ of error, is from a judgment of the court below, sitting without a jury, whereby, the title to and possession of Lot Three (3) and one-half of the adjoining Lot Four (4), in Block Two (2), of the Seneschal Addition to the City of Houston, was awarded to the defendant in error as against the claims thereto of the plaintiffs in error.

'The defendant in error was the plaintiff in the trial court, whereas the plaintiff in error, Alice Parker, joined pro forma by her husband, was an intervenor— the original defendant herein having been one George Brown, against whom such adverse judgment also ran, but who is named as a defendant in error under the writ of error bond filed herein by Alice Parker.

She, as such intervenor, thus in substance grounded her claim for the property in her intervention plea against the plaintiffs’ petition below:

“That this intervenor is the devisee and heir at law of Rachel Rogers, deceased, and as such is entitled to seizin and possession of the above described property; that said property was the community estate of Van Duncan and wife, Rachel Duncan; that Van Duncan died intestate some twenty-five years ago; that said Rachel Duncan, who at the time of her death was known as Rachel Rogers, died on the 28th day of August, A.D.1938; that Rachel Rogers left a written will already filed for probate.in the County Court of Harris County, Texas, by which will this intervenor was given a life estate in said property; that inteirvenor is also the maternal sister and next of kin of the said Rachel Rogers, deceased, and is therefore entitled to the use and possession of the said property;
“That the original defendant herein is the tenant of this intervenor, and that said tenant’s use and occupation of the said premises and property is the use a.nd occupation of this intervenor.”

In the appealed-from decree, the learned trial court made these among other findings and recitations:

“And it appearing that the plaintiff, Julia Isapheen Duncan Perkins is the daughter and sole heir of Van Duncan, and the property involved was the separate property of Van Duncan, and the use and possession of the property hás been in Rachel Duncan, the widow of since the death of Van Duncan about 1916, and Rachel Duncan departed this life about August, 1938, the right to the possession now vests in the plaintiff, Julia Isapheen Duncan Perkins.
“It is therefore by this court considered, adjudged and decreed that the plaintiff, Julia Isapheen Duncan Perkins, do have and recover of and from the defendant, George Brown, and the intervenor, Alice 'Parker, a married woman joined herein by her husband pro-forma, John Parker, the title .and possession of * * * Lot Three (3) and the half of Lot Four (4) adjoining Lot Three (3) in Block Two (2), Seneschal Addition to the City of Houston,”

There accompanies the record a full statement of .facts, but there is no bill of exception nor other recorded protest presented (not even an exception to the judgment rendered) against any evidence received, or other action taken upon the trial.

In these circumstances, it is obvious that little is presented to this Court for review, since the intcrvenors so grounded their claim to any interest in the property upon a condition of fact the trial court thus expressly finds did not exist — that is, that the property involved constituted the separate property of Van Duncan and not the community estate of himself and his wife, Rachel Duncan, under whom as such a community owner the plaintiffs in error claimed; not only so, but the further finding that the defendant in error is the daughter and sole heir of Van Duncan remains wholly unchallenged by aught that is made to appear, hence is conclusively established as a fact, irrespective of whatever question, if any, may have been raised below as to her parentage; indeed, the plaintiff in error in her brief admits that the defendant in error was the daughter of Van Duncan.

With the record in this condition, since the court had jurisdiction of the cause and of the parties, and its judgment is one it had the power to render under the pleadings and evidence, no entertainable attack having been made upon its determinative findings of fact, nothing remains for this court to do but to affirm the judgment. It will be so ordered.

Affirmed.


author: STOKES, Justice.

text:
    TINNEY et al. v. WILLIAMS et al.
    No. 5209.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 21, 1940.

      . Crenshaw, Dupree & Milam, of Lubbock, for appellants.
    Alvin R. Allison, of Levelland, for ap-pellees.
   STOKES, Justice.

The appellees, V. J. Williams and N. L. Gentry; filed this suit in the county court against appellants, C. W. Tinney and R. Frazier McGuire, to recover $212.50 alleged damages resulting to appellees from an automobile collision. They alleged that on the 9th of October, 1938, they were the owners of a 1938 model Chevrolet coupe, which was .being driven by their employee, R. R. Williams, in an easterly direction on Sixth Street in the city of Lubbock; that when he reached the intersection of Avenue K and Sixth Street an automobile owned by the appellants and being operated by L. Pratt, an employee of appellants, emerged from Avenue K, and collided with appellees’ automobile resulting in the injury complained of. They alleged that immediately prior to the injury their automobile was of the market value of $800 and immediately thereafter its market value was $650.

The case was submitted to a jury upon special issues and the jury found these values to be $600 prior to the injury and $494 immediately afterwards. The court thereupon rendered judgment in favor of the appellees for the sum of $106, being the difference in the market values before and after the collision as found by the jury.

Their motion for a new trial being overruled, appellants duly excepted, gave notice of appeal, and have perfected an appeal to this court, alleging numerous errors, the principal and controlling issues made by which are, first, that there was no proper proof of the alleged damages resulting to appellees from the collision. Secondly, that there was no proof of the agency of Pratt, the driver of appellants’ automobile. Thirdly, error in the form of certain special issues submitted by the court, the complaint being that they were duplicitous and in violation of the provisions of Art. 2189, R.C.S.1925, and, fourthly, that the court erred in sustaining the objection of appellees to the introduction of a written statement as an impeachment of the testimony of a witness for appel-lees.

The first complaint presented by appellants pertains to the manner in which appellees sought to establish the amount of their damages. Appellees alleged the market value of their automobile immediately preceding the collision to be $800 and that immediately thereafter its value was only $650. The evidence introduced by them to establish the damages pertained only to the cost and expense to which they were subjected in having the automobile repaired. The driver of appellees’ car testified that he believed the bill was $108 or approximately that amount, and other than this statement there was no evidence as to the amount of appellees’ damages. It has many times been held by the courts that, while a plaintiff may recover for items of expense necessarily incurred in repairing damage inflicted upon his property by the negligence of the defendant, yet the defendant is not necessarily liable for the amount so expended or has agreed to pay. The amount for which he is liable is such as was reasonably necessary to place the property in the condition in which it was before it was damaged. The general rule prevailing in this state by which the measure of such damages should be established is the difference between the market value of the property immediately prior to the injury and its market value immediately thereafter. In cases where the property is susceptible of being restored to its former state, however, it is permissible to allow recovery for the reasonable value of replacements and repairs that are made necessary by the injury. El Paso Electric Co. v. Collins, Tex.Civ.App., 10 S.W,2d 397; Campbell v. Johnson, Tex.Civ.App., 284 S.W. 261; Morris v. Ridenour, Tex.Civ.App., 43 S.W.2d 147; Chicago, R. I. & G. Co. v. Zumwalt, Tex.Com.App., 239 S.W. 912; Pecos & N. T. Ry. Co. v. McMeans, Tex.Civ.App., 188 S.W. 692.

The true measure of damages to personal property which is injured but not totally destroyed is, like other species of damages, founded upon the principle of fair compensation for the pecuniary loss sustained and this can be arrived at much more accurately by observing the market value rule. It includes all recoverable elements of damage and is supported by the great weight of authority as being the general rule. If the damaged property after being repaired is worth less than it was worth before it was damaged, the difference in its value is recoverable. On the other hand, if it is of greater value by reason of the repairs placed upon it than it was before it was injured, manifestly it would not be fair nor just to require the defendant to pay such increase in value in addition to the damages actually caused by his negligence. We think the court erred in rendering judgment upon the findings of the jury in respect to the measure of damages. In the first place there were no pleadings concerning the amount of expense to which appellees were subjected in having their car repaired after the collision and the testimony concerning such items of expense was not admissible. In the second place there was no evidence to warrant the submission to the jury of special issues concerning the market value. While it is permissible to base a recovery for such-damages upon the reasonable cost of replacements and repairs, it can be allowed only under proper pleadings to that effect. Plaintiffs in such cases are not required to allege the measure of their damages. If the facts concerning the injury are alleged and supported by the evidence, the measure of the damage is a question of law for the court, but the pleading must reveal the basis upon which the plaintiff seeks to recover and the measure of the damages will be applied in accordance-with the allegations. It is not permissible, therefore, for the plaintiff to allege his-damages under the market value rule and then establish them under the rule which allows a recovery of the reasonable cost of repair. To hold otherwise, would violate the fundamental principle of pleading, which is to inform the opposite party of what the pleader expects to prove, and! open the way for deception in that respect.

Appellants complain further in: this regard that there was no evidence of the reasonableness of the charge made for-repairing appellees’ automobile. We sustain this assignment. As we have stated,, it is permissible for a plaintiff to recover the reasonable expenses incurred by him in having his property restored to its former condition where it is properly pleaded, but defendants in such cases are not liable for the amount paid out by the plaintiff nor for the amount agreed to be paid by him because the defendant was not a party to such agreement. The rule is, therefore, that it must be shown by both pleading and evidence, that the amount so 'paid out was reasonable and the injured party is permitted to recover only such an amount as would be reasonably incurred in repairing his property and restoring it to its-former condition. Kuehn v. Neugebauer, Tex.Civ.App., 204 S.W. 369; Wheeler v. Tyler S. E. Ry. Co., 91 Tex. 356, 360, 43 S.W. 876; Galveston-Houston Electric Ry. Co. v. English, Tex.Civ.App., 178 S.W. 666; Rishworth v. Moss, Tex.Civ.App., 191 S.W. 843; Galveston, H. & S. A. Ry. Co. v. Thornsberry, Tex.Sup., 17 S.W. 521; Missouri, K. & T. Ry. Co. v. Warren, 90 Tex. 566, 40 S.W. 6.

Under their next contention appellants complain of the action of the court in overruling their objections and exceptions to certain special issues and in rendering judgment against them thereon because it was not shown by the evidence that L. Pratt, the driver of appellants’ automobile, was the agent of appellants or that they were in any manner responsible for his acts and conduct in connection tfvith the collision. The record is devoid of any such evidence and these assignments must likewise be sustained. The law never presumes agency. It is always a fact to be proved and the person who alleges it has the burden of proving it by a preponderance of the evidence. Appellees suggest in their brief that they alleged agency on the part of Pratt and that there was no proof that he was not the employee of appellants. Having alleged agency it was their duty to prove it. Appellees having failed to make proof of the agency of Pratt, the court was not warranted in presuming that he was appellants’ agent nor in the various references made to him in the charge in which the court assumed he was such. Winter v. Morgan & Williams, Tex.Civ.App., 256 S.W. 342; J. I. Case Threshing Mach. Co. v. Morgan, Tex.Civ.App., 195 S.W. 922.

The next contention made by appellants pertains to the forms of certain special issues, the complaint being that they were duplicitous and assumed the agency of the driver of appellants’ automobile when his agency had not been established by the evidence. In issues Nos. 9, 10 and 11, the court submitted to the jury the questions of whether or not the driver of appellants’ automobile attempted to cross Sixth Street after appellees’ automobile had entered the same; whether or not he failed to yield the right-of-way to appellees’ automobile, and whether or not he failed to stop his car before entering the intersection. In the same special issues the court included the questions of whether or not these acts on his part were negligence and whether or not they were proximate causes of the injury to appellees’ automobile. These special issues were manifestly multifarious and duplicitous and in gross disregard of the provisions of Art. 2189, R.C.S.1925. By that article the court is required to submit each issue separately and' procure separate findings from the jury thereon. It may be true that, in some cases, as contended by appellees, these issues were' immaterial since, in answer to special issues Nos. 6 and 7, the jury found that the driver of appellants’ automobile failed to maintain such lookout for cars approaching the intersection as a person of ordinary care would have done under the same or similar circumstances, and that such failure was a proximate cause of the injury and damage to appellees’ automobile. International-Great Northern Ry. Co. v. Acker, Tex.Civ.App., 128 S.W.2d 506, and authorities there cited. Special issues Nos. 6 and 7 were erroneous, however, in assuming that L. Pratt was the agent of appellants and that they were responsible for his conduct on the occasion of the collision.

The remaining complaint is that the court erred in sustaining appellees’ objection to a written statement offered as evidence by appellants that was signed by the driver of appellees’ automobile a short time after the collision which they assert was in contradiction of certain statements made by him on the witness stand. The statement was offered in the nature of an impeachment of the witness’ testimony. The basis of appellees’ objection was that the statement was procured from the witness by the agent of an insurance company and pertained to insurance. If the written statement revealed that it was obtained by the agent of an insurance company, the record does not reveal it. At any rate, the portion of the statement offered by appellants did not contain any reference to insurance or any insurance company and the portion offered was admissible for the purpose for which it was offered.

What we have said demonstrates, we think, that errors were committed in the trial, the nature of which requires a reversal of the judgment. For the errors which we have discussed, the judgment will be reversed and the cause remanded.