author: GRAVES, Justice.

text:
    PEDEN IRON & STEEL CO. et al. v. CLAFLIN et. al.
    No. 11066.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 5, 1940.
    Rehearing Denied Jan. 30, 1941.

      Baker, Botts, Andrews & Wharton and Albert P. Jones, all of Houston, for appellants.
    Allen, Helm & Jacobs, S. M. Helm, and Arthur P. Terrell, all of Houston, for ap-pellees.
   GRAVES, Justice.

This appeal is from a $20,000 judgment in the appellees’ favor against appellants, entered both upon a jury’s verdict in response to special issues submitted and upon independent findings of the court itself from the evidence, by the 80th District Court of Harris County, as for damages1 for personal injuries resulting to the ap-pellee, Mrs. Claflin, from the negligence of the appellants in a collision between one of the appellants’ trucks and Mrs. Claflin on the Air Line Road in Harris County, near its intersection with the Westfield Road, on November 10, 1938.

The truck, to which a trailer was attached, while belonging to the Steel Company, was being driven at the time by appellant, J. J. Wright, and the injured ap-pellee was on foot on the ground.

This summary of the jury’s findings, in response to 46 special issues, is taken from the appellants’ brief:

“(1) That just prior to the accident, Wright was operating his truck at a speed which was dangerous under the circumstances and that such act was negligence and a proximate cause of the injuries sustained by plaintiff.
' “(2) That Wright was not operating his truck at a rate of speed in excess of 45 miles per hour just prior to the collision.
“(3) That the act of Wright in operating his truck at a rate of speed in excess of 25 miles per hour just prior to the collision was a proximate cause of the injuries sustained by appellee.
“(4) That just prior to the accident Wright was negligent in failing to keep his truck under proper control and that such negligence was a proximate cause of the injuries sustained by Mrs. Howell.
“(5) That Wright was negligent in failing to keep a lookout for persons on the highway ahead of him just prior to the accident and that such negligence was a proximate cause of the injuries sustained by Mrs. Howell.
“(6) That Wright failed to sound any warning of the approach of the truck as he approached the place of collision and that such failure was negligence and a proximate cause of the injuries sustained by appellee.
“(7) That the failure of Wright to stop the truck just before he did stop it was negligence, and that such negligence was a proximate cause of the injuries sustained by Mrs. Howell.
“(8) That Wright failed to drive the truck and trailer on the concrete portion of the highway at the time of the collision and that such failure was negligence and a proximate cause of the injuries sustained by the appellee.
“(9) That prior to the accident Wright discovered Gracie Howell in a position of peril, but that such discovery was not made within such time and distance as that by the exercise of ordinary care in the use of all the means at his command, he could have avoided the accident.
“(10) That the occurrence made the basis of the suit was not the result of an unavoidable accident.
“(11) That Mrs. Howell did not fail ,to keep a lookout for vehicles approaching from the south' on the highway at the time of the accident.
“(12) That Mrs. Howell did not run suddenly across the highway after hitting Dan Schell in the face with an object.
“(13) That Mrs. Howell did not fail to look to the -right before starting to cross the highway.
“(14) That Mrs. Howell did not fail to look to her right before crossing the center line of the highway.
“(15) That Mrs. Howell failed to stop before crossing the center line of the highway but that such failure was not negligence.
“(16) That Mrs. Howell did not run into the side of the truck on the occasion made the basis of the suit.
“(17) That the plaintiff had sustained damages in the sum of $18,500 on account. of past and future physical pain, mental suffering and loss of earning capacity.
“(18) That the present cash value of future medical expenses was the sum of $1,500.”

The record and the briefs are-long, but the contentions of appellants here may be condensed into ’these four general ones, to-wit:

(1) The arguments of the appellee’s counsel to the jury in nine separate indictments were highly improper and prejudicial against the appellants, to the extent that the court reversibly erred in not granting them a new trial upon each one of them;
(2) The trial court erred in refusing to submit to the jury appellants’ specially requested issues Nos. 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15, together with two other subsidiary ones thereto attached, to the same effect;
(3) The stated findings of the court and the jury — with special reference to the manner in which it was therein determined the accident herein involved occurred— having been completely refuted by the testimony of many disinterested witnesses, by pictures taken at the scene soon after the accident happened, and by measurements made there then by disinterested officers of the law — were so against the great weight of the evidence as to be clearly wrong;
(4) The jury’s finding under issue No. 45, fixing at $18,500 the damages sustained by the injured appellee, for physical pain, mental anguish, and loss of earning capacity, was so excessive as to indicate passion, prejudice, sympathy, or some other improper motive on the jury’s part, as, in justice, to have required the setting of such finding aside in its entirety, or the reducing of it by a substantial amount.

Such of these presentments as are directed against the judgment in its entirety will' be disposed of first. This court is unable to hold either the jury’s verdict, or the trial court’s implied additional findings, so against the overwhelming weight and preponderance of the evidence in any respect as to require the exercise of its exclusive authority to reverse it upon that ground; this, for the reason that, in its opinion, there was upon the whole only such a conflict in the testimony having to do with the manner of happening of the accident — inclusive of the several acts of the two participating parties therein — as well as the extent of the appellee’s resulting injuries and the amount of her entailed damages, as it was the sole province of the court and jury to resolve.

It is not required that a reiteration, nor even a comprehensive resume, of the extensive body of the evidence be here made, entailing undue length upon this opinion; but it is enough to record this court’s finding from a review of the whole body of the evidence, that the court and jury were not unwarranted in finding the accident to have happened substantially in the manner claimed by the appellee, and the precipitated damages therefrom upon Mrs. Claflin to have been the $20,000 awarded her; there were two distinctly clashing theories severally relied upon by the opposing parties upon each of these issues, and it cannot, we think, properly be said, either that the evidence was insufficient to raise issues of fact over them, or to support as facts the findings made thereon. This conclusion seems to this court to be the more justified from the circumstance that the cause was largely- what is termed a “fact case”. As concerns the actual happening of the accident, this very brief recitation from the appellees’ brief is thought to be fully supported in the statement of facts:

‘ “The appellee and her companion, Grace Rayburn, testified that the appellee was struck in the back by appellants’ truck when appellee was on the east shoulder of the Airline Road. The defendant Wright, who was driving the truck at the time of the collision, testified that while he was pulling to the east shoulder of the Airline Highway the appellee was struck with the side of his truck. The only other witness who was in the vicinity of the collision at the time it occurred was R. H. Smith, called by the appellants, who was standing down the highway some’ 150 yards, with the lights of the truck in his eyes, but still testified that the side of the truck .struck the appellee as she crossed the highway. The only other witnesses were those that arrived at the scene of the collision after it had occurred and testified as to marks on the highway and shoulder, and identified the pictures that were taken, and attempted to impeach appellee by prior inconsistent statement attributed to appel-lee, who was suffering from a broken back, was irrational of mind if not unconscious, whose lower extremities were found to be paralyzed shortly thereafter, together with other serious injuries, and likewise attempted to impeach the testimony of Grace Rayburn on alleged inconsistent statements made while she was holding the ap-pellee’s head and hysterical, or nearly so, from fright, as to the condition of her injured companion.”

Likewise, this capitulation of what was so further reasonably shown as to her resulting injuries, and her diminisned earning capacity during her future life expectancy, is considered to have equal support:

“Appellee was unconscious off and on from the day of the accident until the following Saturday (the accident having occurred on Thursday evening) ; that when she regained consciousness she was paralyzed from her waist down; that there were other bruises on her body and injuries to her back; that she could not move her legs or toes and that there was a lot of pain in her head, and she had had very bad headaches from the date of the accident on November 10, 1938, down to the date of the trial; that at the time of the trial she weighed 19 pounds less than at the time of the accident; that she was operated on the Saturday following the Thursday on which she was injured, and it required a week or ten days before her legs regained any feeling in them; that it was a week or ten days after the operation before she could move her legs; that they operated on her spine and the scar extends from above her waist up her back as far as they could operate, about a foot or so in length; that she remained in bed at the hospital a few days less than five weeks and was taken home in an ambulance where she remained in bed for about five additional weeks; that she went to the hospital for treatment thereafter; when she started to get out of bed she was so weak she had to learn to walk over again; that she suffered pain at the time of the trial and had since the accident; that she was operated on the second time on August 2nd at Jefferson Davis Hospital; that they again operated on her spine and she stayed in the hospital three weeks that time and after she went home remained in bed two more weeks; that she had trouble sleeping at the time of the trial and has never felt well since she was injured and is in pain all the time; that she does not eat as well as she did before her injuries; that she tried to work in July and she worked three weeks and could not stand it and fainted at the place where she worked; that at the time of the trial if she walks very much her feet and legs start to get dead and have a numb feeling ; that if she tried to walk fast it makes her limp; that at the time of the trial she takes medicine to relieve the pain in her head; that she has had female trouble since her injuries and her periods have not been regular, which affects her nerves and makes her weak; that at the time of the trial she continues to spend three-fourths of her time in bed or sitting around home; that at the time of her injuries she worked as a waitress and had been earning $7 a week and got room and board which would have cost $10 or $15 a week, and received her tips, which ran between $10 and $12 a week. That at the time of her injuries she had a life expectancy of 42 years. Dr. Fred Bloom testified that he first saw appellee at Jefferson Davis Hospital ; that she was semi-conscious and paralyzed from the waist down; that she was suffering from a fracture of the spine and an injury to the spinal cord; that due to the paralysis, both of her legs, her bowels and bladder did not function normally; that he waited 48 hours, but there was no evidence of return of function, and it was necessary to operate. The fractured fifth lumbar vertebra was displaced sufficiently to cause a pressure on the spinal cord. Her spine was operated on to relieve this pressure; that this type of injury occurs only in forceful accidents with lots of force behind them; that ap-pellee was operated on the second time in August to clear up an infection in the operative wound; that this operation was done under his direction; that the injury received in the accident caused her female trouble; that at the time of the trial Mrs. Howell was totally disabled from following physical work, that she was totally and permanently disabled from following her occupation, or a similar occupation requiring physical exertion; that at the time of the trial there is still evidence of irritation to her spinal cord, weakness and atrophy or decrease in the size of the muscles and in her strength; that in his opinion the appellee would require one or two minor operations before the present drainage would stop; that she should have a bone graft in the future and would need care and observation for a year or perhaps two years before the operation could be performed on her back to relieve the pain and give her additional strength, all together, which would require a minimum of two or three years of observation and treatment, and from two to three operations in the future after the date of this trial for the proper treatment of her injuries.”

For the reasons last given, the claim of excessiveness in the amount of the judgment must fall, along with that for lack of support for any of its other essentials in .the evidence.

Upon a recurrence to appellants’ specified objections to the theory upon which the learned trial court submitted the cause to the jury, as reflected in their requested special-issues Nos. 4-15, inclusive, as well as their two subsidiary ones, it is concluded that no reversible error is pointed out in any of them; indeed, that, under the pleadings and evidence, the very comprehensive cross-examination imposed by the trial cpurt on the jury in the 46 special issues it required them to answer, reasonably and fairly submitted all the ultimate issues of fact raised by either party, and that, if there were errors in any of them, they were not of such character as were reasonably calculated to and probably did result in an improper judgment in the cause. It will only be necessary to specifically advert to Nos. 4, 7, 10, and 13, since they propounded the most material issues of fact, the refusal to submit which, appellants claimed, denied them substantial rights. Of these, the findings sought were: Under No. 4, whether the appellee, Mrs. Claflin (or Howell) “failed to discover the approach of the defendants’ truck before crossing the center line of the highway”; under No. 7, whether she “failed to give any signal of her intention to cross the highway before running across it”; under No. 10, whether she “crossed the highway on the occasion in question in a careless manner”; under No. 13, whether she “failed to discover the approach of the defendants’ truck before starting to cross the highway.”

In the first place, as appears supra, the trial court had, in a slightly different form, submitted all that was material and ultimate in these four requests under its given special issues 36, 33, and 27, propounding, respectively, in appellants’ interest on the lookout issues, (1) whether she had failed to look to her right before crossing the center line of the highway, (2) whether she had failed to look to the right before starting to cross it, and (3) whether she had failed to keep a lookout for vehicles approaching from the south on the highway at the time of the accident, each and all of which — as the quoted jury-findings show— had been answered adversely to appellants’ contentions. The granting of these requests would have therefore, in effect, amounted to a second submission of essentially the same things, which is neither required nor good practice; 41 T.J. 1051; Ft. Worth Corp. v. Bahan, Tex.Civ.App., 68 S.W.2d 228; 64 C.J., page 865 et seq.; Levy v. Rogers, Tex.Civ.App., 75 S.W.2d 304, writ dismissed; D. & H. Truck Line v. Hopson, Tex.Civ.App., 4 S.W.2d 1013, writ refused; Texas Co. v. Betterton, Tex.Civ.App., 56 S.W.2d 663, reversed on other grounds, 126 Tex. 359, 88 S.W.2d 1039.

Furthermore, the two of these requests inquiring as to whether the appellee failed to so discover the approach of appellants’ truck that is, numbers 4 and 13, appear to be merely evidentiary in character rather than ultimate, which condemns them anyway; while number 7 assumes what was otherwise shown to be a disputed if not indeed an immaterial matter — that “she ran across the highway, after striking Dan Schell with a cocoanut” — , and number 10 was uselessly too general in merely seeking whether she had crossed the highway “in a careless manner”.

The challenged arguments of counsel for the appellee are thus considered at long last, because they cast their shadows backward after the admission of evidence before the jury had been closed by the resting of both sides. They were 8 in number, as hereinafter successively enumerated, six made by one of appellee’s counsel in opening their discussions before the jury, the others, Nos. 2 and 4, having been presented by another of her attorneys in closing her case, and were, in his verbis, as follows :

“(1) The sheriff came out there and by that time Wright had some pretty nice theories about how he turned that truck off the highway to prevent that injury. It made me feel ashamed to represent a cripple girl here if you are going to believe that stuff, but when you break bis testimony down it is a different thing. It is a great deal different when you get the component parts on it, you find out some things about it. The deputy sheriff went out there after it happened. When I talked to him about his investigation out there he would not show it to me and asked me which side I was on.
“The Defense:
“There is no testimony like .that — he asked you who you represented. There is no testimony in the record and you did not demand them, and you asked him if he made that statement and the deputy denied it.
“The Court:
“You can have your bill.
“Mr. Helm:
“I want to withdraw the first part of that statement, but it is undenied that he asked me who I represented. He said he lost that diagram, and I asked if it was written on a typewriter like other reports and he said no he did not write up those on a typewriter, but that .it is one way of presenting evidence before you.”
“(2) They told you about the pictures being taken from the front and rear, the only testimony is they were taken from the rear.”
“(3) I want you men out there in the jury room to get hold of those questions and answer them and award the verdict you think she is justly entitled to and I mean that if I ever uttered a statement in the court room before that I wanted to get you to follow.
“You have full authority to arrive at that amount and I am going to ask you to consider this crippled girl's future. This is the last time she will pass before you. This is the last opportunity you will have to render a verdict that you will be proud of and that you men can go out of that jury room together and give your final answer and sealing your verdict to be read in the morning, and you can say I have rendered a verdict I am proud of,'a verdict based on the credible testimony and we have rendered a verdict for $26,000 plus $1,500 that Dr. Bloom told you was the minimum for the future medical treatment and the treatment he has given her, which in other words total $27,500.
“I want you to protect this girl if you think she is right and is telling the truth. If you think she lied do not give her anything, do not answer a single question for her, but if you think she told you the truth and is deserving and you think she deserves to be taken care of, she has not been helped yet except thrown in a charity hospital, I want you to do the right thing and do not apologize for writing that verdict, and do not say we turned that girl loose on account of secondary testimony that his Honor has told you was only admissible for impeachment purposes, and we will give this girl this money because we think she deserves it and you do not have to apologize.”
“(4) I want to thank you for listening most attentively and I know when you go into the jury room you are not coming out until you reach a verdict fair and just and one of which you are proud, and for the plaintiff in the condition she is in and is entitled to.”
“(•5) You have in this case a situation that is heart rending in one sense of the word, a nice looking girl just reaching womanhood, just reaching a point in life where maybe she is just beginning to enjoy life a little better. She has had some experience, she has not enjoyed a happy life up to the 10th day of November, 1938. She had difficulties, she had not enjoyed those blessings of motherhood and things like that that so many women of her age, she had a tough row of it, she had been knocked around the country and had earned her living in a hard way from early in the morning until late at night as a waitress.”
“(6) And they got that student doctor over from Louisiana, I do not think that he has had much experience, and he was so busy telling you about some facts that he smelled something on her breath, this paralyzed girl out there at the point of death, everybody hacking on her, he was so busy doing that he did not find out if they operated on her or anything else.”
“(7) And the great humahitarian manner of looking after her, they send a doctor up there to treat her, no, to operate on her, no, to take her out of a charity institution and put her in a hospital where they was to pay the bills, no, they go out there to spy on her, to find out what she will say, if they can get her to say anything, regardless of her conscious or unconscious condition. They are up there gathering evidence at the request of the Peden Iron & Steel Company and what does he report back to the Peden Iron & Steel Company, that the girl was conscious at the time, still apologizing for that accident out there.”
“(8) I cannot tell how you are going to answer any of these questions, all I can do is to put my entire faith and confidence in you and that you will render a fair verdict in this case. I want you to ask yourselves those questions, I want each man to ask himself what he would have done if he had been in the Peden Iron & Steel Company — I take that back. I want to ask what any reasonable, careful person would have done out there-in the shoes of the Peden Iron & Steel Company and Wright.”

Appellants offered no objections to any of these deliverances when made, except to the first part of No. (1), and the whole of No. (2), but did assign all eight as error in their motion for a new trial, which the court overruled, after “having duly considered the motion and the statements and argument of counsel”; the angle, then, from which they must he reviewed upon appeal is thus outlined by the Supreme Court in Robbins v. Wynne, 44 S.W.2d 946, at page 949, col. 1:

“The correct rule is that, if the argument be such, or is made' under such circumstances that, if objection is made at the time counsel making the argument can offer explanation therefor which will render such argument proper, or can make such amends as will render the same undoubtedly harmless, or, if the argument be of such a nature that its proper withdrawal by counsel or instructions by the court to the jury to disregard will cure the error, and render its harmful effect free from doubt, then the objections should be made at the time, and failure to do so waives the error. On the other hand, if the argument be such that the converse of the above propositions is true, then it would be idle to say that opposing counsel should object at the time, when the objection might do nothing more than render the improper remarks more damaging than they would be if he remained silent.”

So that, this court’s task as to these arguments is to determine: (1) whether or not the proceedings that followed upon the objections to the first two cured any prejudicial error entailed by their having been made, or rendered the removal of any harmful effect therefrom free of doubt; (2), whether or not any or all of the remaining six are of such a nature that, if objection had been made to them at the time, any like error and harm resulting therefrom might have been thereby cured and removed.

As to No. (1) it will be noted that the objection interposed was to counsel’s statement that the deputy sheriff, when accosted by him just before this trial about his investigation of this accident, “would not show it (his typewritten statement of his investigation) to me, and asked me which side I was on”; on being challenged by the objection, counsel withdrew that statement, and then added the second part of No. (1), as quoted supra, to which appellants made no objection; wherefore counsel’s revised statement was, “it is undenied he asked me who I represented, he said he lost that diagram, and I asked him if it was written on a typewriter like other reports and he said no he did not write up those on a typewriter”; the officer’s admitted testimony on these details otherwise was that he had had a set of typewritten records on this accident at that time, and that when so asked by appellee’s counsel if he had lost them, he replied he did not then have them with him; further, that the measurements were not then on the typewritten records; he added that after such pre-trial conversation with counsel, he went and got such records and put the measurements on them before testifying. At all events, it undisputedly appeared that, perhaps about an hour afterwards, he did in fact testify fully in court on this trial about them and from them, giving the jury the benefit of his version of the scene, how the accident appeared to him to have happened, the skid-marks he found on the ground, et cetera.

It seems to this court that this withdrawal and correction by appellee’s counsel in the attending circumstances clearly removed any potentially harmful effect from his argument as first made, and reduced it to no more than a practically immaterial misquotation of the testimony, or a mere squabble over whether the officer’s given reason for not producing his records was that “he didn’t have them with him”, or that he “had lost them”, any possibly erroneous effect of which was waived by the appellants by their failure to further object. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054; Texas Co. v. Gibson, 131 Tex. 598, 116 S.W.2d 686; Texas Employers’, etc. v. Peppers, Tex.Civ.App., 133 S.W.2d 165, writ dismissed, judgment correct; Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946, supra; Stewart v. Coats, Tex.Civ.App., 91 S.W.2d 421; Geistmann v. Schkade, Tex.Civ.App., 121 S.W.2d 494.

Indeed, if objection had been then made to the only remaining mis-statement of even the officer’s testimony—that he said he had lost the diagram—either counsel or the court certainly could, and presumably would, have corrected it to read exactly as the officer put it, that he answered he “did not have them with him”. 41 Tex.Jur. 771; Oil Belt Co. v. Touchstone, Tex.Civ.App., 266 S.W. 432; Federal Surety Co. v. Smith, Tex.Civ.App., 25 S.W.2d 994, reversed by Commission of Appeals on other grounds, 41 S.W.2d 210.

Likewise, challenged comment No. (2)—when reduced to its ultimate purport in the actual proceedings had—plainly appears to this court to have been another mere misquotation of the testimony, rather than any volunteering by appellee’s counsel of new testimony before the jury, in that, in therein saying “they told you about the pictures being taken from the front and rear”, he should have, to be exact, said, “they told you about the pictures taken from the right side and the other side”; for that was the exact statement of the appellant Wright, to whose testimony as a witness on the trial this criticised statement had reference. Mr. Wright, while so testifying, first identified one of the photographs of the scene appellants offered in evidence, which had been taken from the rear of its truck on the shoulder of the highway; after testifying that the picture had been so taken from the rear, when asked by appellee’s counsel where the person taking that picture was standing, he answered:

“He was standing on the right hand side of the highway, and he went on the other side and taken one.”

' Upon objection being interposed by appellants on the ground that the argument was not supported by the record, counsel for appellee at once withdrew the statement, and the court instructed the jury to disregard it.

' It is held that no reversible error remained; authorities last cited supra, and Texas Fireworks Co. v. Gunn, Tex.Civ.App., 189 S.W. 528, writ refused; Hubb Diggs Co. v. Bell, 116 Tex. 427, 293 S.W. 808; First States Life Co. v. Mote, Tex.Civ.App., 110 S.W.2d 591.

When comments (3) to (8), inclusive, are looked at from the appellate perspective, it is concluded that all of them “are of such a nature that, if objection had been made to them at the time, any like error and harm resulting therefrom might have been thereby cured and removed.”

In the first place, under the authorities already cited, it is considered that these presentments—all being of a waivable character—were each waived by the appellants’ stated failure to object to them when made, and their deliberately choosing to take their chances on a favorable verdict from the jury notwithstanding each and all of them.

In the second place, when they are intrinsically examined seriatim, there seems to be nothing inflammatory nor beyond the permissible scope of inferences and deductions counsel may make in presenting a cause to the jury on such evidence as was heard in this instance; there evidently was more than needful zeal and admonition to men of ordinary intelligence in these presentments to this jury, but when that is eliminated, there appears to have, been nothing left of a prejudicial and harmful effect that could properly be held to have persisted—to the injury of the appellants'—through their deliberate failure on the trial to give the court and opposing counsel an opportunity to cure and correct anything untoward in character—according to appellants’ view—that was then occurring.

For instance, under comments Nos. (3) and (4), it was not beyond the bounds of such propriety for appellee’s counsel to ask the jury for the full $27,500 damages they sued for and offered evidence to substantiate; nor to ask a verdict commensurate with the appellee’s injuries and resulting condition, as being just in the circumstances under which the accident occurred; especially so, when counsel did not therein in any way essay to inform the jury as to the legal effect of their answers; indeed, they had a right .to thus ask for nothing but a verdict on the evidence, and one that was fair and just, according to their appraisal of the testimony, in her behalf upon the entire case. Such an appeal was not in substantial substance improper, under such authorities as these: Gillette Motor Transport v. Blair, Tex.Civ.App., 136 S.W.2d 656, writ dismissed, correct judgment; International & G. N. R. Co. v. Jones, Tex.Civ.App., 175 S.W. 488, writ refused.

Comment No. (5) likewise appears to embody more fulsomeness than was called for, but still, as preceding recitations from the record have indicated, it was a summing-up of evidence that was actually before the jury, together with counsel’s rather elaborate deductions therefrom, and even these do not appear to have been outside of the record, inflammatory in character, or so violative of any rights in appellants as should be held to have survived through their failure to make any objections whatever thereto during the trial. Neither, as indicated, did they assume as facts matters that had not been testified to before the jury, hence these extended comments of counsel on the evidence in the case cannot now be held to have been outside the bounds of legitimate advocacy; Corn v. Crosby Co., Tex.Com.App., 25 S.W.2d 290.

Argument No. (6), as summarized in the appellee’s brief, which does not appear to be inaccurate, was made without objection from appellants in these circumstances : “The record shows that Dr. Tannehill was an interne at Jefferson Davis Hospital at the time of the collision in question and was on duty in the emergency room when the appellee, Mrs. Howell, was brought there, and that he examined her and admitted her to the hospital, and in examining her stuck her legs with a pin and discovered that she had no sensation and admitted her to the hospital with a possible fractured vertebra, and further testified as to conversation with her and as to every odor on her breath, but did not know what treatment was given her, nor what the ultimate diagnosis of her injuries was, nor did he know if she was even ultimately operated on, and other evidence showed that her .legs were stuck with pins and that numerous examinations were made.”

Here, too, it is thought the mere use of the word “hacking”, which did not appear in the testimony of any of the witnesses, instead of some word of like or similar character, which was used by some of the witnesses, such as “sticking”, “examining”, “operating”, or “testing her vital processes”, should not be held such an appeal to the jury’s passions or prejudices on matters not in evidence as to entail a reversal in appellants’ favor, despite their having made no complaint thereof during the trial; on the contrary, in the circumstances shown, it is thought to be classable, as only another misquotation of specific language used by the witnesses as might have been eliminated entirely, had objection thereto been made.

Likewise, succeeding comment No. (7) is quite similar, in general purport at least, to No. (6), it having been made, as stated by the appellees, in these attending circumstances“The record shows that Dr. Feagin was sent to Jefferson Davis Hospital early the next morning following the accident in question to see the ap-pellee, Mrs. Howell, but not to treat her, and was to report back to the defendant, Peden Iron & Steel Company, and the record further showed that Dr. Feagin did talk to the appellee, Mrs. Howell, and stated that she was conscious, but the appel-lee, Mrs. Howell, testified that she had never seen Dr. Feagin in her life and did not remember any such conversation, and if she talked to him, she was unconscious at the time.”

There was testimony from both Dr. Fea-gin and Mrs. Howell (now Claflin) justifying this quoted summary from the ap-pellee ; that is, while counsel’s language was strong, he was justified in commenting that the. mission of the doctor was carried out “regardless of her conscious or unconscious condition”, that he did not go there to treat her, nor to take her to some other hospital, and that he had not seen her since that visit until in the' courtroom at this trial; finally, that he had been sent there by the appellant Steel Company, with no disclosed mission.

Undoubtedly, it is thought, more euphonious language might have been used to express such reasonable and fair deductions as counsel in his advocacy was entitled to draw from these statements of the witnesses, and presumably they would have been substituted, or some other correction made, had. appellants challenged them on the trial; but not having done so, it is concluded that the appellee should not be penalized by such overzealousness of her counsel, upon statements of the two witnesses involved that were so bluntly and directly contradictory. Levy v. Rogers, Tex.Civ.App., 75 S.W.2d 304, writ dismissed; Corn v. Crosby County, etc., Tex.Com.App., 25 S.W.2d 290; City of Waco v. Killen, Tex.Civ.App., 59 S.W.2d 940, writ dismissed; First States Life Co. v. Mote, Tex.Civ.App., 110 S.W.2d 591; Wright Titus, Inc. v. Swafford, Tex.Civ.App., 133 S.W.2d 287, writ dismissed, judgment correct; Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054.

The (8th) and last comment, as therein qualified by the counsel himself who made it, appears to this court to have been well within his province in the circumstances ; as the record shows, this comment was not upon testimony dealing- with the damage issues involved, but was directed by appellee’s counsel to the alleged failure of appellants to take and introduce in evidence more photographs of the scene of the accident than they had done; wherefore, arguments having to do with appeals by counsel to the jury to place themselves in-the injured party’s shoes in assessing damages, are inapplicable. Without further discussion of the objection, it is held not well taken, for the reasons variously indicated in holdings like these: A. B. C. Storage v. Herron, Tex.Civ.App., 138 S.W.2d 211, writ dismissed, judgment correct; Texas & N. O. R. R. Co. v. McGinnis, 130 Tex. 338, 109 S.W.2d 160; Smith v. Surtees, Tex.Civ.App., 143 S.W.2d 90; Wells v. Henderson, Tex.Civ.App., 78 S.W.2d 683.

The conclusions stated require an affirmance of the trial court’s judgment; it will be so ordered.

Affirmed.

On Motion for Rehearing.

This cause has been given painstaking consideration'on a rehearing, upon written arguments from both sides, that for the appellees having been invited by this court in reply to those ably urged by the appellants. After such a full review, the court is constrained to adhere to its former disposition, after correcting an error in recital appearing in its original opinion, to which appellants’ counsel have helpfully called attention.

In the concluding paragraph on page 11 of that opinion, this language is found:

“As to No. (1), it will be noted that the objection interposed was to counsel’s statement that the deputy sheriff, when accosted by him just before this trial about his investigation of this accident, ‘would not show it (his typewritten statement of his investigation) to me, and asked me which side I was on.’ ”

That recitation should have been as follows :

“As to No. (1), it will he noted that the objection interposed was to counsel’s statement that the deputy sheriff, when accosted by him just before this trial about his investigation of the accident, ‘would not show it (his original penciled statement of his investigation) to me, and asked me which side I was on.’ ”

That same inaccuracy recurs in the last line of such page 11, as follows:

“The officer’s admitted testimony on these details otherwise was that he had a set of typewritten records on this accident at that time, and that when so asked by appellee’s counsel if he had lost them, he replied he did not then have them with him.”

When corrected, it reads this way:

“The officer’s admitted testimony on these details otherwise was that he had .had a set of original penciled records on this accident at that time, and that when so asked by appellees’ counsel if he had lost them, he replied that he did not have them with him.”

This court is unable to give such important meaning to this corrected statement as appellants so earnestly do; they appear to consider it as going to the heart of the whole controversy, whereas to this court it seems to be no more than a slight inaccuracy, which still does not undermine the conclusion formerly announced upon that particular one of the challenged arguments of appellees’ counsel; as there recited, this officer, in the circumstances formerly set out, did in fact go before a jury with his “original penciled statement” of the investigation he had made on the ground of the accident, and was permitted to give his full testimony back and forth on all phases of it. It is, therefore, a non sequi-tur, it is thought., to contend, as appellants still do, that such small departure of counsel in his zeal for his client, as to have said the officer would not show him his “typewritten” statement of his investigation, instead of saying he would not show him his “original penciled” statement, changed the effect of that argument from a mere misquotation of the evidence to a prejudicial effort to then testify himself before the jury.

The inaccuracies in other respects contended for by -the appellants are not considered to be well taken.

Under the belief that the original decision was correct, the motion will be overruled.

Overruled.


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    MASSAD et al. v. BUMPUS.
    No. 5682.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 12, 1940.
    Rehearing Denied Jan. 16, 1941.
    Saye & Saye, of Longview, for appellants.
    Wynne & Wynne, of Longview, for ap-pellee.
   WILLIAMS, Justice.

N. S. Massad and F. L. Carmichael sued Raymond Bumpus, the defendant below, to recover damages accruing from a partial breach of warranty of title. On March 22, 1934, defendant executed and delivered, a deed, forthwith filed for record, which recited a nominal consideration of $5 paid and which purported to convey to H. S. Christian the fee-simple title to all of a tract of land therein described by metes and bounds and therein stated to be 9.38 acres. This instrument contains a general warranty of title clause in the usual form. Christian owned an equitable title to ½ interest at the time defendant conveyed to Christian the legal title to the whole. In the early part of 1934, the exact date not shown, plaintiffs bought from Christian a ⅜ undivided interest in the tract. Plaintiffs knew when they bought this interest that they were acquiring defendant’s ½ interest and a ⅜ interest from Christian, thus giving to each plaintiff and to Christian a ⅛ interest. At the time of purchase, plaintiffs knew defendant’s ½ interest was then being held in the name of Christian.

On December 18, 1935, many months subsequent to date of purchase agreement, Christian by separate deeds conveyed to each plaintiff a ⅛ undivided interest in a tract of land therein stated to be 11.43 acres. The field notes in all three deeds called for the same adjoining property and corners, and described the same tract of land. An increase in the distance calls on two lines, ascertained after delivery of the first deed and included in the others, accounts for the variance in the respective calls for acreage. During the interim between date of purchase agreement and date of the deeds into plaintiffs, with the legal title standing in Christian, he and plaintiffs at their expense drilled one, and probably two producing oil wells on a part, and also successfully defended a trespass to try title suit, filed by the Texas Company, on the tract. The deeds executed by Christian to plaintiffs each contain the following clause: “Provided, however, it is expressly understood, in the execution of this instrument and'the acceptance of the same by grantee, that said conveyance is made by grantor to grantee without warranty, express or implied.” We need not discuss the controverted issue whether Christian had agreed to give plaintiffs a deed with a general warranty of title, for plaintiffs grounded their suit upon the warranty of title given by defendant in his deed to Christian.

By virtue of a judgment entered September 18, 1936, the result of a trespass to try title action filed December 21, 1935, in which the litigants in the instant suit and Christian were named defendants, one Sallie Radford and husband recovered the title and possession of 4.56 acres. The field notes in above deeds describe an inverted L-shaped tract ( ), the shaded portion marking the 4.56 acres lost, the other representing the 6.87 acres retained. Plaintiffs paid $13,333.-33 for the ⅜ interest, part of which they paid when the trade was made and the balance at the time the deeds into them were executed and delivered. Of this, defendant received $5,000; Bill, his brother, $5,000; and Christian $3,333.33. At the close of all evidence, the court refused plaintiffs’ motion for an instructed verdict for $5,000 and interest, and instructed a verdict for defendant. The judgment recites from the undisputed facts that “the law is with the defendant.”

In support of the court’s action, appellee in his brief, together with recitals in his answer, takes the position that “no consideration was paid for the execution of the warranty deed from defendant to Christian,” and in support thereof offered evidence that defendant having business elsewhere placed the legal title in Christian to enable the latter to sell and convey the property should the occasion arise. That in so doing the conveyances of Christian without warranty of title were in fact the deeds of defendant.

We. are unable to agree with such position. Defendant admits that he received $5,000 of the consideration paid by plaintiffs as a result of above detailed transactions. The deeds into plaintiffs, as worded, do not purport to be deeds out of defendant, or that Christian had executed same as trustee or agent for defendant. The provisions in the deed executed by defendant are unambiguous. In the absence of fraud or mistake, and none is here claimed, parol evidence is inadmissible to vary the terms of a written contract. As stated in Galveston, H. & S. A. Ry. v. Pfeuffer, 56 Tex. 66, 72: “To deeds also with peculiar vigor is the rule applied, that to what is written no new ingredients can be added by parol.” “The warranty in a deed can neither be enlarged [nor] restricted by oral testimony of simultaneous or prior agreements.” Bigham v. Bigham, 57 Tex. 238. Regardless of defendant’s alleged reason in executing the deed, he nevertheless included in it his covenant of general warranty. Above parol evidence was inadmissible to destroy or defeat the plain, unambiguous written terms of his covenant of general warranty of title. Galveston, H. & S. A. Ry. v. Pfeuffer, supra; Bigham v. Bigham, supra; Warren v. Clark, Tex.Civ.App., 24 S.W. 1105; Morriss v. Hesse, Tex.Civ.App., 210 S.W. 710; Coleman v. Luetcke, Tex.Civ.App., 164 S.W. 1117; McCormick & Ray’s Texas Law of Evidence, p. 990; Askew v. Bruner, Tex.Civ.App., 205 S.W. 152. This covenant ran with the land and inured to the benefit of plaintiffs, the subsequent vendees, and the owners at the time uf the partial breach of warranty. 12 T.J p. 57, § 37; 21 C.J.S., Covenants, § 82, p. 938; Flanniken v. Neal, 67 Tex. 629, 4 S.W. 212.

The sale of the land to plaintiffs was in gross or in bulk. In the words of one witness, which is in no wise controverted by any evidence, “Wasn’t any value set on. any part of the tract.” The land was bought as oil-bearing acreage to be developed into production. At the time of the purchase agreement, oil-producing wells surrounded the entire acreage, but none was upon it. Plaintiffs alleged that all the acreage was of equal value. Two witnesses testified as to value of the acreage at the time of the purchase. One, after describing location of wells surrounding the acreage, testified that he did not consider the 6.87-acre tract of any greater value than the 4.56-acre tract, and thought it was probably not as good, because the oil-bearing sand begins to pinch out on the lease to the north of the 6.87-acre tract. The other, who also described the adjoining ■wells, testified that there was a slight difference at the time the trade was made. This evidence does not support defendant’s position that there is no testimony as to the value of the 4.56 acres allegedly lost and the 6.87 acres retained. This testimony discloses the land to be of equal value per acre. From this fact, the respective values of acreage lost and that retained are deducible. The purchase price figures $1749.78 per acre when the total consideration of $13,-333.33 is divided by % of 11.43 acres, or 7.62 acres purported to be conveyed by the latter deeds. Plaintiffs seek recovery upon this basis. Defendant, if liable, cannot justly complain, for if calculated on ⅜ of 9.38 acres, the average purchase price per acre would be greater. The deeds into plaintiffs purport to convey an undivided ⅜ interest in the 4.56 acres lost, which would be 3.04 acres. This calculated at $1,749.78 per acre totals $5,319.-33. If this partial breach of warranty is calculated under the rule as stated in 12 T.J. p. 101, § 68; 21 C.J.S., Covenants, § 142, p. 1012; Hynes v. Packard, 92 Tex. 44, 45 S.W. 562; Merchants’ Nat’l Bank of Clinton, Iowa, v. Otero, 25 N.M. 598, 175 P. 781; 61 A.L.R. p. 99, the amount of damages would be the same amount. Plaintiffs’ recovery, however, is not to exceed $5,000, the amount defendant received. 12 T.J. p. 73.

Defendant claims that the parol evidence offered by him established the fact that Bill Bumpus, his brother, owned an equitable title to an undivided ¾ interest, which, with the ½ interest owned by Christian, reduced defendant’s interest to ¼ conveyed in his deed to Christian. Upon this theory, he asserts that if liable under' the warranty the recovery should be limited to ⅛ °f the $5,319.22. We pretermit details of the evidence offered upon this, other than to state that plaintiffs did not pay direct to Bill Bumpus the $5,000 received by him, and plaintiffs denied that they knew Bill owned a ¼ interest. The damages cannot be so reduced as urged, for defendant’s warranty extended to the whole of the ⅜ interest acquired by plaintiffs. Morriss v. Hesse, supra; Bigham v. Bigham, supra; Galveston, H. & S. A. Ry. v. Pfeuffer, supra. In 14 Am.Jur. p. 577, citing 61 A.L.R. p. 149, with holdings there detailed, it is stated: “The vendor cannot reduce the amount of damages assessable for a breach of covenant by showing that the whole or a portion of the consideration paid by the vendee inured to the benefit of, or was actually paid to, a third person, for, having assumed to warrant the title and such warranty having been accepted by the vendee, he is liable for a breach thereof to the extent of the consideration actually parted with by the vendee.” As stated in Coleman v. Luetcke, supra [164 S.W. 1120]: “Even if Luetcke [plaintiff] had full knowledge of the defects in the title, it would not preclude him from a suit on the warranty.” Defendant could have, but did not, limit his liability under its terms.

In plaintiffs’ general prayer they ask for judgment against defendant for the value of ⅜ of 4.56 acres lost. In paragraph 7 of their petition they allege '“that at the time the said Raymond Bumpus executed and delivered the * * * deed * * * conveying to Christian the 9.38 acre tract * * * the said Bumpus only owned an undivided ½ interest * * * and that he held title to the other undivided ½ interest therein in trust for the said Christian.” As we construe above pleadings, plaintiffs have confined.the limits of their recovery to an undivided ½ interest in each of the 4.56 acres. Mathes v. Williams, Tex.Civ.App., 134 S.W.2d 853; 33 T.J. 466, § 46; Allen v. Draper, Tex.Civ.App., 204 S.W. 792; Griner v. Trevino, Tex.Civ.App., 207 S.W. 947, 948.

Accordingly, the judgment is reversed and here rendered that plaintiffs recover jointly of defendant the value of ½ of 4.56 acres at $1,749.78 per acre, in the total sum of $3,989.49 with 6% interest per annum from September 18, 1936.


author: SMITH, Chief Justice.

text:
    AMERICAN INDEMNITY CO. v. HIDALGO COUNTY et al.
    No. 10841.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1941.
    Rehearing Denied Jan. 29, 1941.
    Davenport & Ransome, of Brownsville, for appellant.-
    R. D. Cox, Jr., of Mission, for appellees.
   SMITH, Chief Justice.

In May, 1926, O. Em Jones, then tax collector of Hidalgo County, wrongfully disbursed certain tax- funds belonging to the State of Texas and Hidalgo County and certain subdivisions thereof. The funds were paid out in pursuance of a judgment of a district court of said county.

Subsequently, but within two years of the wrongful act, the State of Texas brought this suit against Jones and his surety, American Indemnity Company, on Jones’ official bond as tax collector, to recover said funds, described in appellant’s .brief as follows:

“(1) $4,731.63 in tax money belonging to Plaintiff, State of Texas;
“(2) $7,156.73 from tax money belong-r ing to Hidalgo County;
“(3) $2,939.24 from tax money belonging to Hidalgo County Drainage District No. 1;
“(4) $1,057.75 from tax money belonging to Hidalgo County Road District No. 1; and
“(5) $493.76 from tax money belonging to Hidalgo County Common School District No. 14.
“Neither the County of Hidalgo, Hidalgo County Drainage District No. 1, Hidalgo County Road District No. 1, nor Hidalgo County Common School District No. 14 were parties to said suit; but Plaintiff, the State of Texas, sought to recover, as Trustee, the several amounts alleged to be due them, and each of them.”

In due course the cause was tried and the State recovered each of the several items sued for, and for the purposes stated. Jones and the Indemnity Company appealed to this Court, which held that the State was entitled to recover the amount owing to it, as Jones’ bond to cover taxes collected for the State was payable to the Governor for the. use of the State, but that the State could not maintain the suit in behalf of Hidalgo County and its subdivisions, since Jones’ official bond to indemnify those entities was payable to the county judge for their benefit. Accordingly, the judgment of the trial court upon that first trial was affirmed insofar as recovery was awarded the State for the amount of its tax money which had been misapplied, and reversed and remanded insofar as the State recovered in behalf of Hidalgo County and its subdivisions. American Ind. Co. v. State, Tex.Civ.App., 104 S.W.2d 68. The Supreme Court dismissed appellants’ application for writ of error for want of jurisdiction.

Upon the return of mandate Hidalgo County and its' affected subdivisions filed in the trial court what they denominated “plaintiffs’ fourth amended original petition,” in vacation just prior to the convening of the next ensuing term of the trial court, in lieu of the third amended original petition, which had been previously filed by the State for itself and said subdivisions. By this amendment Hidalgo County and its subdivisions undertook to substitute themselves as parties 'plaintiff in lieu of the State, thereby dropped from the suit. These parties set up precisely the same cause of action (upon identical allegations of fact) against Jones and -his surety which the State in all prior pleadings had undertaken to set up in their behalf. To this pleading the Indemnity Company interposed pleas in abatement and of limitation, which the trial judge overruled, and thereupon rendered judgment for the plaintiffs as prayed for. The Indemnity Company has appealed; Jones has not.

It appears that Jones appeared and actively contested the suit throughout its course in the trial court and this Court until appellees substituted themselves as parties plaintiff by filing plaintiff’s fourth amended original petition. Jones was not cited by new process to appear and answer that pleading, nor did he participate in the trial thereon, but his counsel had actual notice of the filing of the amendment and of the proceeding thereon, and somewhat regularly attended upon, but did not actually participate in, the trial. Appellant here assails the judgment upon the contention that it is invalid and of no effect because of lack of actual notice (by citar tion) to Jones of the filing of plaintiff’s fourth amended original petition, upon which the judgment was rendered. We overrule this contention, propounded in appellant’s fourth proposition of law. Jones having been cited upon the original petition, and appeared and answered thereto, he was charged with notice of the filing of all subsequent petitions, or. at least of those which did not materially change or enlarge the cause of action originally and consistently theretofore asserted against him. Art. 2001, R.S.1925; Slattery v. Uvalde, etc., Co., Tex.Civ.App., 140 S.W.2d 987; Phillips v. The Maccabees, Tex.Civ.App., 50 S.W.2d 478.

Appellant contends in its first proposition that the county and the several subdivisions thereof had no right to assert, in this one suit, their several respective causes of action against the tax collector and the surety upon his official bond; that those plaintiffs were simple creditors, with wholly separate and distinct claims, not dependent upon any trust or lien, and each can maintain its suit only in a separate action. We overrule the proposition. The several causes of action asserted by those plaintiffs were identical in nature, arose from the same wrongful act of the common defendant, whose liability to each grew out of the same relation of public trust, and was secured by the same bond, to recover upon which they joined in this suit; and, moreover, the several causes of action were provable and proven by identical facts and evidence. Clearly it was the duty of the trial judge to permit the joinder, as was done, and thereby avoid an unnecessary multiplicity of suits. City of Dallas v. Early, Tex.Civ.App., 281 S.W. 883; Adams v. First National Bank, Tex.Civ.App., 178 S.W. 993; Threadgill v. Federal Land Bank, Tex.Civ.App., 26 S.W.2d 345; American Surety Company v. Hill County, Tex.Civ.App., 254 S.W. 241; Barton v. Farmers’ State Bank, Tex.Com.App., 276 S.W. 177; Farmers’ Nat. Bank v. Merchants’ Nat. Bank, Tex.Civ.App., 136 S.W. 1120; Harris v. Cain, 41 Tex.Civ.App. 139, 91 S.W. 866; Kreis v. Kreis, Tex.Civ.App., 36 S.W.2d 821; Steusoff v. Liberty County, Tex.Civ.App., 34 S.W.2d 643; Watson v. El Paso County, Tex.Civ.App., 202 S.W. 126; Wolff v. Cohen, Tex.Civ.App., 281 S.W. 646.

In its second and third propositions appellant contends that the institution of this suit by the State in its own behalf and that of appellees did not interrupt the operation of the statute of limitation upon appellees’ causes of action, and that since appellees did not become formal parties plaintiff until more than four years after their causes of action accrued, they were barred by the statute; that the act of appellees in making themselves active parties plaintiff by amended petition more than four years after their asserted cause of action accrued, amounted to the filing of a new suit, which was barred. We conclude that appellant’s contention that appellees’ cause of action was barred under the facts stated is without merit. The causes of action asserted by appellees in the amended petition filed more than four years after accrual were precisely the same causes asserted in their behalf by the State in prior pleadings, timely filed. Insofar as appellees were concerned the State was but the nominal plaintiff, suing in behalf of appellees, the real plaintiffs, and when appellees, as the real parties at interest intervened in the pending suit and in their own names carried forward the causes of action theretofore timely asserted and consistently maintained for them by the original, if nominal, plaintiff, the statute of limitation did not operate thereon to bar them. We overrule appellant’s second and third propositions. Art. 5539b, Vernon’s Ann.Civ.Stats; 32 Tex.Jur. pp. 111 et seq.; Davis v. Preston, 118 Tex. 303, 16 S.W.2d 117; Martel v. Somers, 26 Tex. 551; Price v. Wiley, 19 Tex. 142, 70 Am.Dec. 323; Smith v. Wingate, 61 Tex. 54; Eckel v. Camden Fire Ins. Ass’n, Tex.Civ.App., 5 S.W.2d 849; Camden Fire Ins. Ass’n v. Eckel, Tex.Com.App., 14 S.W.2d 1020; Medford v. Red River County, Tex.Civ.App., 84 S.W.2d 345; Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618, 23 Am.St.Rep. 887.

The judgment is affirmed.


author: O’QUINN, Justice.

text:
    FETHERSTON et al. v. STATE et al.
    No. 3779.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 28, 1940.
    Rehearing Dismissed Jan. 8, 1941.

      Harry B. Sims, of Houston, for appellant.
    Albert J. DeLange, of Houston, George Terry and Turner, Rodgers & Winn, all of Dallas, Gerald C. Mann, Atty. Gen., Geo. W. Barcus, Asst. Atty. Gen., and Vinson, Elkins, Weems & Francis and Tarlton Morrow, all of Houston, for appellees.
   O’QUINN, Justice.

This appeal was prosecuted by appellants, Rosa Ryan Fetherston et al., to the Austin Court of Civil Appeals from the judgment of the district court of Travis county, sustaining the pleas of privilege of Stanolind Oil and Gas Company and Interstate Royalty Corporation, Ltd., transferring the cause to the district court of Brazoria county. The case is on the docket of this court by order of transfer by the Supreme Court.

The suit — in its nature a “vacancy suit” • — -was by the State of Texas against appellants, Rosa Ryan Fetherston et al., and ap-pellees, Stanolind Oil & Gas Company and Interstate Royalty Corporation, Ltd., and others, and put in issue the title to six tracts of land, the first of 189.78 acres, the second of 124.87 acres, the third of S3 acres more or less, the fourth of 25 acres, the fifth of unstated acres, and the sixth of 58.14 acres, aggregating 450.79 acres of Hand situated in Brazoria and Galveston counties. Appellants answered, in part, by petition in trespass to try title against ap-pellees, its codefendants, claiming a part of the lands sued for by the State; part of the land sued for by appellants in their cross-action against appellees was not involved in the suit of the State; the land sued for by appellants in their cross-action was situated in Galveston and Brazoria counties. Appellees were made parties defendant by the State, and were not made parties in the first instance on the cross-action of appellants. Appellees filed no plea of privilege against the State’s cause of action, but their pleas of privilege were directed against only the cause of action asserted by appellants in their cross-action.

No point is made against the venue of the district court under Article 5420, R.C.S. Vernon’s Ann.Civ.St. art. 5420, of the State’s cause of action against all of the defendants. We give appellants’ proposition on which they seek to sustain the venue of their cross-action in Travis county: “Plea of privilege should not have been sustained to the cross-action of Rosa Ryan Fetherston and husband, B. J. Fetherston, as the ownership of the property is the ultimate issue involved in this cause; the State of Texas made these cross-plaintiffs and the Stanolind and Interstate parties defendant to its cause involving part of the same property; the action of the State of Texas, involving the title to these properties in Brazoria and Galveston Counties, is maintainable by the State of Texas in Travis County against all the above parties (who severally claimed the property) and the cross-action of cross-plaintiffs Rosa Ryan Fetherston and husband, B. J. Fether-ston, is also maintainable in Travis County that they may get complete relief in one suit. The State of Texas has not filed any objection to the Fetherston suit. The District Court of Travis County has jurisdiction and venue to render complete relief in one suit of the entire subject matter in controversy.”

We overrule appellants’ proposition. The cause of action asserted by them in their cross-action against appellants is separate and distinct from that asserted by the State in its action against all of the defendants named in its petition. The state’s suit was simply to have the land declared vacant public land, belonging to the Permanent Free School Fund of the State of Texas. There is no relation whatever between the claim of the State and appellants’ cross-action against appellees; appellants’ cross-action against appellees must be tried on pleadings and evidence as between them only, and is governed by Section 14 of Article 1995, R.C.S. 1925, which reads: “Suits for the recovery of lands or damages thereto * * * • must be brought in the county in which the land, or a part thereof, may lie.” Reeder & Lynch v. E. B. Hayes Machinery Co., Tex.Civ.App., 257 S.W. 947; Jasper State Bank v. Townsend, Tex.Civ.App., 98 S.W.2d 224; Hanner v. Caudle, Tex.Civ.App., 49 S.W. 411; McClure v. Pair, Tex.Civ.App., 214 S.W. 683; Shaw v. Stinson, Tex.Civ.App., 211 S.W. 505; Article 1995, Sec 14, R.C.S. 1925.

Appellants’ cross-action against ap-pellees being only for title and possession of land, the equitable rule of “joinder” to avoid “a multiplicity of suits” has no application; the venue of the cross-action is determined exclusively by Section 14 of Article 1995. On this point we quote Section 30 of Article 1995: “Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

As sustaining our conclusion that the principle of joinder to avoid a multiplicity of suits does not control the mandatory provisions of Article 1995, we quote as follows from Republic Ins. Co. v. Walters, Tex.Civ.App., 88 S.W.2d 726, 728: “The two causes of action could, under the two subdivisions quoted, be maintained in Van Zandt county, and it is a general policy of the law, to avoid a multiplicity of suits, that such suits should be brought as one action; but, because of the mandatory exception declaring the venue to suits, for the recovery of lands or damages thereto, ‘must’ be brought in the county in which the land, or a part thereof, lies, courts would not be justified to strike down this declaration of the statute and exalt an opinion above the law, in order to extend the general equitable policy by retaining the entire suit against the statute. True, it seems to be a settled rule of law in this state that, in dealing with exceptions to the venue statute, which declare that a cause of action ‘may’ be brought in a particular county, or the venue is controlled by contract, as where one or more notes are made payable in a certain county, another and separate note, or account, may be added, to which no mandatory exception has application, the venue may be retained of the entire cause of action in the county having venue of any part thereof against pleas of privilege. Middlebrook v. David Bradley Mfg. Co., 86 Tex. 706, 26 S.W. 935; Warner v. Gohlman, Lester & Co., Inc., 117 Tex. 145, 298 S.W. 890. In many of the exceptions embraced in the venue statute, it is provided that suits ‘may be brought’ in some county other than the county of the domicile of the defendant; but, in many other exceptions, such as is involved here (subdivision 14), it is provided that the suit ‘must’ or ‘shall’ be brought in some other county. Courts do not extend the rule to causes coming clearly under the latter exceptions. Grogan-Cochran [Lumber Co.] v. McWhorter (Tex.Civ.App.), 4 S.W.(2d) 995.”

Again, in Pena v. Sling, 140 S.W.2d 441, 445, 128 A.L.R. 1223, writing for our Supreme Court, Judge Critz said: “Under exception 14 it is provided that suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which,the land, or a part thereof, may lie. It will be noted that this exception uses the mandatory word, ‘must.’ Under this exception it is therefore mandatory that a suit to litigate the title to or to recover land must be brought in the county where the land, or a part thereof, is situated. It is held that an action to recover land has a well-known and definite meaning, and means an action in ejectment, trespass to try title, or suit to recover the land itself. Hearst’s Heirs v. Kuykendall’s Heirs, 16 Tex. 327; Thomson v. Locke, 66 Tex. 383, 1 S.W. 112. It follows that any suit to try title, or to try title and recover possession of land, must be brought in the county in which the land, or a part thereof, is situated.”

Again, Sections 13, 23, 27 and 29a of Article 1995, Vernon’s Ann.Civ.St. art. 1995, subds. 13, 23, 27, 29a, advanced by appellants as sustaining their venue in Travis county, have no application since they must yield to Section 14. In South Texas Development Co. v. Mrs. Myrta Williams, 130 Tex. 217, 107 S.W.2d 378, Judge German said:

“A general demurrer was sustained to the various pleas of privilege by the trial court, presumably on the theory that as to the defendants residing in Harris county they could not insist upon the privilege of being sued in a county outside of the county of their residence, and as to the defendants who resided in Montgomery county they could be required to submit to the suit in Harris county because of subdivision 29a of article 1995 * * *. Defendants appealed, and the Court of Civil Appeals has certified to the Supreme Court the following question :
“ ‘The action being one affecting land located in Montgomery County within the purview of section 14 of R.S. Article 1995, did that statute confer upon the appellants —in response to their pleas of privilege, which so expressly recited that they resided in Harris County — the right to be sued thereon only in Montgomery County, where the land lay?’
“Subdivision 14 of article 1995 is as follows :
“ ‘Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.’
“While this subdivision is not jurisdictional in the sense that it may not be waived, yet it is mandatory in the sense that, when any one necessary defendant objects in proper time and manner to a trial of the cause in any county other than that in which the land is situated, the cause must be transferred to that county. Russell v. [Texas & Pac.] Ry. Co., 68 Tex. 646, 5 S.W. 686; Bender v. Damon, 72 Tex. 92, 9 S.W. 747; Fort Worth & D. C. Ry. Co. v. Jenkins (Tex.Civ.App.) 29 S.W. 1113; Black v. Black (Tex.Civ.App.) 82 S.W. (2d) 1073.”

On this point see, also, Pena v. Sling, supra; Norvell v. Stovall, Tex.Civ.App., 95 S.W.2d 1313; Grogan-Cochran Lbr. Co. v. McWhorter, Tex.Civ.App., 4 S.W.2d 995.

Reagan County Purchasing Co. v. State, Tex.Civ.App., 65 SW.2d 353, is the principal case cited by appellants to support their venue in Travis county. The controlling facts in that case are: In 1928 the State recovered judgment against certain purchasing and producing companies in the amount of $1,000,000 for royalty on oil produced on University land, under construction of certain contract of purchase; the judgment left open the future construction of the contract. In 1931, the State, again sued the companies for $575,000 additional royalty on allegations that a controversy had arisen between the purchasing and producing companies as to the construction of the respective leases and of the price clause of the purchasing contract. The producing companies filed cross-actions against their codefendants, the purchasing companies, alleging that if the purchase contracts were to be construed so as to give the State an award, then that the same construction of the contract would give them eight times as much. The defendant purchasing company filed its pleas of privilege to these cross-actions of the producing companies. The pleas of privilege were overruled by the trial court. The Austin Court of Civil Appeals affirmed the judgment of ihe lower court on the following grounds:

(1) The same evidence which would establish the State’s right would also establish the producing company’s right to recover on their cross-actions.
(2) The same primary purpose underlay the cross-actions of the State’s suit, namely, that of construing the price clause of the purchasing contract.
(3) The same parties were in the cross-actions as were parties to the main suit.

Appellants’ case is not in point; in the case at bar, the State’s case and appellants’ cross-action have neither the same prim.ary purpose, nor are they provable by the same evidence. Again, in the Reagan County case, Sections 5, 27 and 29a of Article 1995, Vernon’s Ann.Civ.St., were in issue; these are “permissive” sections and must yield to the mandatory provisions of Section 14. Appellants also cite Service Drilling Co. v. Woods, Tex.Civ.App., 120 S.W.2d 608; that case is not in point but falls within the rule of construction invoked in the Reagan County case on the three points summarized above. Lottman v. Cuilla, Tex.Com.App., 288 S.W. 123, also cited by appellants, has no application; that case involved contribution between joint tort-feasors and was controlled by the three principles summarized above from the Reagan County case.

It follows that the judment of the lower court should be affirmed, and it is accordingly so ordered.

Affirmed.


author: COMBS, Justice.

text:
    BUCKLEY et al. v. ATLANTIC REFINING CO. et al.
    No. 3771.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 28, 1940.
    Rehearing Denied Jan. 22, 1941.

      Hamilton, Harrell, Hamilton & Turner and Marion S. Church, all of Dallas, Gerald C. Mann, Atty. Gen., Jas. P. Hart, Asst. Atty. Gen., W. F. Bane, of Dallas, A. L. Camp, of Fort Worth, and Ed Roy Simmons, Asst. Atty. Gen., for appellants.
    Black, Graves & Stayton, of Austin, C. B. Ellard, of Dallas, Walker, Smith ' & Shannon, of Fort Worth, for appellees.
   COMBS, Justice.

This suit involves the validity of an order of the Texas Railroad Commission permitting the drilling and operation of an oil well upon a small tract of .16 acre in the East Texas oil field as an exception under Rule 37 pertaining to the spacing of wells. The trial court held the order invalid, and this appeal was prosecuted by the owners •of the lease and the Texas Railroad Commission as a statutory appeal under Vernon’s Ann.Civ.Stat. Article 6049c, Section 8. The order involved here is the second granted by the Commission granting a permit for the drilling and operation of a well on the tract involved. The first one was granted July 27, 1936, to John T. Buckley, the then owner of the lease on the small tract. That order was granted upon a finding that the drilling of the well was necessary to prevent confiscation of property, the small tract being treated as a segregated tract. That order was attacked by the Atlantic Refining Company et al. in the District Court of Travis County, which court held it valid. But on appeal to the Austin Court of Civil Appeals, the case was reversed and rendered, the court holding that the small tract had been segregated from the larger tract by a collusive or consent judgment and should not be treated as a segregated tract. See Atlantic Refining Company v. Buckley, Tex.Civ.App., 123 S.W.2d 413.

Thereafter, Cliff Drilling Company et al. owning the working interest on the lease on the smaller tract, successors in the title of Buckley, applied to the Railroad Commission for an order to permit the drilling and operation of a well on the same location covered by the former permit. In fact, it appears that the well had already been drilled under the former permit before it was set aside. A hearing was held by the Railroad Commission on May 18, 1939, and on July 1, 1939, an order was entered granting the permit for the drilling and operation of a well on the ground that it was necessary to prevent waste and also to prevent confiscation of property. That order is the one involved here. The Commission entered findings of fact with reference to the necessity for the production from the well. It found that considering the srpaller tract of .16 acre as a part of the larger tract from which it had been detached, as the Court of Civil Appeals had held it should be in the case above cited, still on the evidence the production was necessary to prevent waste and also to prevent confiscation of property. Thereafter, Atlantic Refining Company, which owns the adjacent lease on the south, and Kewanee Oil Company, which owns the lease on the west of the tract in question, brought this suit to set the order aside. The order was attacked upon the following grounds: (1) That the validity of this permit was res adjudicata by reason of the judgment in prior litigation holding the order of July 27, 1936, invalid;. (2) there had been no change of conditions since said adjudication justifying the granting of said permits; (3) that the Railroad Commission did not have authority to entertain the second application for'a permit because some of the issues in the prior litigation had not been disposed of; (4) the evidence before the Railroad Commission and the facts did not justify the granting of the permit either to prevent the confiscation of property or the physical waste of oil and gas; and (5) the permit order violated the constitutional rights of the plaintiff and the intervener by permitting the drainage of oil from their leases. Upon a trial to the court without a jury, the trial court entered judgment setting aside the order and enjoined the operation of the well and ordered it plugged. From that judgment, the Railroad Commission and the permittees have prosecuted this appeal. The appeal was originally to the Court of Civil Appeals at Austin and the case is before us on transfer by the Supreme Court.

Opinion.

We overrule appellees’ contention that the order of the Railroad Commission was invalid because res adjudicata by reason of the judgment of the Court of Civil Appeals in Atlantic Refining Company v. Buckley, 123 S.W.2d 413 above referred to. It is true that the principle of res adjudi-cata has application in cases involving permits for drilling as an exception to Rule 37, where the same matter has been formerly litigated and final judgment entered, and there has been no change of condition. But we think this principle applies only as to the issue or issues on which the Commission actually rested its findings and order. Gulf Land Company v. Atlantic Refining Company, 134 Tex. 59, 131 S.W.2d 73; Gulf Land Company v. Atlantic Refining Company, 5 Cir., 113 F.2d 902. In the present case the issues determined by the Railroad Commission in announcing its findings and entering its order are not the same issues involved in the former order held invalid by the court in the case cited.

In making the former order the Commission considered the .16 acre as a separate tract and rested its findings and order granting permit for the well upon that assumption. It made findings based thereon, to the effect that threatened drainage by wells on adjacent tracts made the drilling necessary to prevent confiscation of property. Thus the Commission grounded its findings and order upon an erroneous conclusion that the smaller tract should be considered separately. It was that basic consideration which rendered the order invalid. Here the Commission grounded its findings and order upon a different basis. The smaller tract was not separately considered, but was considered only as a part of the larger tract from which it had been detached. As so considered and upon evidence deemed sufficient, the Commission found that drilling and operation of a well in the same location covered by the former order was necessary to prevent confiscation of property. And it was found further that such development was necessary to prevent waste, a matter not determined at all in the making of the former order.

A court judgment, declaring invalid an order of the Railroad Commission granting a permit for the drilling of a well as an exception to Rule 37 to prevent confiscation of property, is not res adjudicata of the validity of a subsequent order granting a permit to drill a well on the same location on the ground of preventing waste. Gulf Land Company v. Atlantic Refining Company, 134 Tex. 59, 131 S.W.2d 73; Gulf Land Company v. Atlantic Refining Company, 5 Cir., 113 F.2d 902; Humble Oil & Refining Co. v. Turnbow, Tex.Civ.App., 133 S.W.2d 191. It has also been held that a judgment, declaring invalid an order granting a permit for the drilling of a well upon a small tract improperly considered as a separate tract, is not res adjudicata of a subsequent order and permit for the drilling of a well on the tract when considered by the Railroad Commission as a part of the larger tract from which it had been detached. Humble Oil & Refining Company v. Potter, Tex.Civ.App., 143 S.W.2d 135; Humble Oil & Refining Company v. Lassester, Tex.Civ.App., 120 S.W.2d 541, 542. In the latter case Chief Justice McClendon speaking for the Austin Court of Civil Appeals said:

“Where, independently of the voluntary segregation, the larger tract, including the segregated tract, is entitled to an additional well in order to protect the vested rights of the owners of such larger tract to recover their fair share of the oil thereunder in place, the permit to drill on the segregated tract will be upheld. And this, although the application be made to drill only upon the voluntarily segregated tract and only by the owners of that tract, and be contested by the owners of the remaining portion of the larger tract.
“Since the orders of the Commission pri-ma facie import verity, the general well recognized rule applies that the burden of proof rests upon one attacking a permit granted to drill on a voluntarily segregated tract to protest vested rights to show that, as applied to the entire tract as it existed before segregation, the well was not warranted as a protection to vested rights.”

The appellees contend further that the evidence before the Railroad Commission and before ,the trial court established that the findings of the Commission to the effect that drilling and operation of the well in question was necessary to prevent waste and to prevent confiscation of property were without support. This contention is overruled. Our construction of the evidence is that the issues of both waste and confiscation of property were issues of fact for the determination of the Commission in the first instance and that the fact findings of the Commission on both issues had support. At the hearing before the Commission, Gordon Griffin, an expert witness testified that the well in question was necessary to prevent waste, and that if it were not allowed to produce, there would be' thousands of barrels of oil left under ground which would never be recovered. J. S. Hudnall, another expert witness, testified before the Commission that the operation of the well would result in an increased recovery of 47,579 barrels of oil. He also testified that because of the manner in which the field had been drilled in this vicipity, there was an area of approximately 8.88 acres within which no well had been drilled, although the average density of drilling in vicinity was one well to approximately 3.86 acres. He testified further that the well in question would reduce the undrilled area so that the average density would be about that of the surrounding area, and that the location of the well as fixed by the permit was an ideal' location for the purpose of promoting uniformity of drilling and recovery of the greatest amount of oil from the reservoir. It was also testified in substance that the drilling and operation of the well would give the larger tract of which the .16-acre tract is a part, its fair proportion of the recoverable oil. These two witnesses offered by the proponents were the only expert witnesses who testified at the hearing before the Commission, the appellees having offered none. At the district court trial they testified in substance to the same effect but were cross-examined at great length by the appellees. The appellees also offered an expert witness, R. D. Parker. Both by the cross-examination of the appellants’ witnesses and by testimony of their witness Parker, appellees raised issues against the findings of the Commission on the questions of waste and confiscation of property. But it is clear we think that they did no more than to raise fact issues on these points. There was evidence to support the findings of the Commission, and such being the case, the court could not substitute its findings for those of the Commission. Gulf Land Company v. Atlantic Refining Company, 134 Tex. 59, 131 S.W.2d 73.

But the appellees insist that they brought this suit not merely as a proceeding in the nature of an appeal from the Railroad Commission’s action in granting the permit as a statutory proceeding under Article 6049c, Section 8,-but also “as a proceeding in equity to restrain the production of any oil from any well operated pursuant to said permit, and to cancel the permit * * * upon the ground that plaintiff’s constitutional rights have been violated by the issuance of said permit.” In that connection they say, and they so plead, that the appellants had secured their drilling permit as a result of fraudulent and collusive conduct; that the spacing of the well by appellants would drain large quantities of oil from Atlantic’s property, and that Atlantic could not prevent such drainage without the expenditure of large sums of money, and that as a result of the Commission’s action in granting the permit, Atlantic will be deprived of its property without due process of law. Appellee Kewanee in its petition of intervention took substantially the same position.

Regardless of whether or not the appel-lees have the right to prosecute this case in the nature of a bill in equity on the grounds alleged, and thus test the validity of the order of the Railroad Commission independently of the procedure provided -by the statute, we think they failed to make a showing that their property has been or will be taken without due process of law. They did offer evidence tending to show that the well in question will take considerable oil which they otherwise would succeed in taking from the reservoir by their wells. And also that the Davis tract upon which the well in question is located, and of which the .16 acre is a part, will recover more than its total recoverable oil, and that the .16-acre tract will recover some ten times as much oil as the recoverable oil supposed to be under the land. But it was also shown that appellees will recover more than the recoverable oil under their land. It was testified that the oil is migratory and is being forced by water pressure to migrate as oil is produced from the field. And sd it seems probable that all parties at interest in this suit will obtain some oil now under lands belonging to others and thereby reduce the oil recovered by persons in some other part of the vast oil field.

But we think the appellees established no right to prosecute this action other than as provided by the statute. Fundamentally the question involved is simply the administration of the spacing rule by the Railroad Commission. The statute prescribes an adequate legal remedy. Gulf Land Company v. Atlantic Refining Company, 134 Tex. 59, 131 S.W.2d 73. It does leave controverted questions of fact concerning the granting or withholding of permits to the sound discretion of the administrative agency, the Railroad Commission. But our Supreme Court in interpreting the law has left ample power in the courts to protect the fundamental rights of persons involved. In the above case the court makes it perfectly clear that while the Commission has the duty of passing in the first instance upon fact questions involved in the granting or withholding of a well permit, and that its findings in that regard are not to be set aside by the court and the court’s judgment substituted therefor where there is substantial evidence to support the findings of the Commission, still the courts retain jurisdiction to pass upon all questions of law and also to determine whether the Commission has in ,any case acted “in a clearly illegal, unreasonable, or arbitrary manner.” It seems to us that the statute as interpreted by our court of last resort provides proper and adequate legal safeguards for the rights of property. We can see no reason for holding that resort to remedies lying outside the act is' necessary in a case such as this involving merely the application of .the spacing rule. Should such become the rule of decision it would open an avenue of procedure whereby the courts could be converted into administrative agencies thereby taking over functions which the statute intends and public policy requires shall be committed to the Railroad Commission. In the Gulf Land Co. case our Supreme Court has clearly shown that this is not to be done. An order of the Railroad Commission which satisfies the test of validity thus prescribed by our Supreme Court does not contravene the “due process clause” of the Fourteenth Amendment. Texas Railroad Comm. v. Rowan & Nichols Oil Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368, Id., 61 S.Ct. 66, 85 L.Ed. -.

The judgment of the trial court is reversed and judgment here rendered for the appellants.

Reversed and rendered.


author: WALKER, Chief Justice.

text:
    STEAMASTER AUTOMATIC BOILER CO. v. CLEVELAND.
    No. 3763.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 26, 1940.
    Rehearing Denied Jan. 8, 1941.

      Cofer & Cofer and Walter Greig, all of Austin, for appellant.
    Harris & Harris, of Austin, for appel-lee.
   WALKER, Chief Justice.

This suit was filed in County Court of Travis County on the 13th day of September, 1939, by appellee A. P. Cleveland, “complaining of Steamaster Automatic Boiler Company, successor by change of corporate name of Master Steam Equipment Company: the Steamaster Automatic Boiler being a foreign corporation, incorporated under the laws of the State of California, with L. F. Shaver, of 525 South Irving Street, Dallas, Texas, Dallas County, its agent and representative, upon whom service may be had, styled herein as Defendant.” For cause of action appellee alleged “that on or about the 18th day of November, 1938, Plaintiff ordered from and purchased of Defendant and its successor, one (1) Ten (10) H. P. Steamaster Automatic Boiler, for the purchase price of Four Hundred Fourteen Dollars and Twenty Cents ($414.20), to be delivered by Defendant and its successor from Los An-geles, California, to the ‘City Cleaners’, of Temple, Texas, the purchaser thereof;” that the boiler was delivered to him and paid for by him; that it was sold under a strict guaranty of efficiency and material; and that the guaranty was breached. The action was for damages for breach of guaranty.

On the 3rd day of October, 1939, Walter Greig, an attorney of the Travis County Bar, filed in this cause in the county court an amicus curiae suggestion “that L. F. Shaver, who has been served in the above numbered and entitled cause as authorized agent and representative of said corporation, Steamaster Automatic Boiler Company, is not in truth or in fact its agent or its representative,” which was by the court overruled. On the 2nd day of January, 1940, appellant, Steamaster Automatic Boiler Company, filed its plea of privilege, praying that this suit “be transferred to the County Court of Los Angeles County, California.” On the 29th day of January, 1940, appellee filed his controverting affidavit to appellant’s plea of privilege, and by agreement of the parties the issues on these pleas were set for hearing before the court. However, on January 29, 1940, before the hearing was had, appellant, with leave of the court, filed its amended plea of privilege praying that this suit “be transferred to one of the County Courts at Law of Dallas County, Texas, of which there are two, viz., County Court of Dallas County at Law No. 1 and County Court of Dallas County at Law No. 2, either of which has jurisdiction and venue over the person of defendant.” On January 30, 1940, appellee filed his controverting affidavit to the amended plea of privilege, excepting thereto generally, and specially that it had been waived. On the merits he pled that his contract with Master Steam Equipment Company was made in Travis County, and generally the facts constituting his cause of action fór breach of guaranty. On the 20th day of February, 1940, judgment was entered overruling appellant’s plea of privilege, from which it prosecuted its appeal to the Austin Court of Civil Appeals. The case is on the docket of this court by order of transfer by the Supreme Court.

Opinion.

The court filed conclusions of fact and; law in support of the judgment overruling the plea of privilege. Appellant’s principal points are: (a) There was no evidence to support the allegation that Steamaster Automatic Boiler Company was the successor by change of corporate name, or otherwise, of Master Steam Equipment Company. (b) The second point is the court’s error in receiving in evidence certain carbon copies of correspondence between ap-pellee and Master Steam Equipment Company, notice not having been given to appellant to produce the originals.

We sustain the first point. We find no evidence in the record of any corporate connection between appellant and Master Steam Equipment Company, nor do we find any evidence in the record that appellant assumed the obligations of the contract whereby Master Steam Equipment Company sold appellee the boiler ⅛ issue. Ap-pellee rested under the burden of establishing his cause of action against appellant, and that burden was not met by the simple allegation in his controverting affidavit that appellant was the successor to Master Steam Equipment Company by change of corporate name. That allegation should have been sustained by proof. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91.

The second point against the admission of the carbon copies of certain letters can be obviated on another trial.

The filing of the amicus curiae suggestion by Mr. Greig did not constitute an appearance by appellant. On the record this suggestion was filed by Mr. Greig as an amicus curiae and not as appellant’s attorney.

The first plea of privilege filed by appellant was fatally defective, wherein appellant prayed that this cause be transferred to the1 County Court of Los Ange-les County, California, a relief beyond the jurisdiction of the court. However, it constituted an effort to file'a plea of privilege, and was subject to amendment. With permission of the court, a plea of privilege may be amended on the same conditions and to the same extent as other pleas. Mueller-Huber Grain Co. v. Heid Bros., Tex.Civ.App., 58 S.W.2d 198; Lillie v. Globe Printing Co., Tex.Civ.App., 6 S.W.2d 444; Cobb v. H. C. Burt & Co., Tex.Civ.App., 241 S.W. 185; Patterson Produce Co. v. Tombs, Tex.Civ.App., 14 S.W.2d 959.

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

Reversed and remanded.