author: FUNDERBURK, Justice.

text:
    BEDNER v. FEDERAL UNDERWRITERS EXCHANGE.
    No. 1942.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 20, 1939.
    Rehearing Denied Nov. 24, 1939.

      Sam B. Spence and Geo. W. Anderson, both of Wichita Falls, for appellant.
    Saunders, Akin & Williams and Touchstone, Wight, Gormlqy, Strasburger & Price, all of Dallas, for appellee.
   FUNDERBURK, Justice.

Following all prior proceedings essential to invoke the jurisdiction of the court below, Federal Underwriters Exchange, the insurance carrier for A. G. (Dutch) Bed-ner, filed this suit, being nominally one, as at first brought, to set aside an award of the Industrial Accident Board. The adverse party, Mrs. Fay Keller Bedner, widow and beneficiary of- Andrew J. Bed-ner, the latter at the time of his death being an employee of his brother, A. G. (Dutch) Bedner, having answered and pleaded a cross-action, seeking to recover compensation insurance, the Federal Underwriters Exchange took a nonsuit without prejudice, of course, to the cross-action. Thereafter the real status of the parties was that the original defendant became plaintiff, and the original plaintiff became defendant. For convenience they will be hereinafter so designated.

The trial was by jury, but when plaintiff had rested her case, the court, upon motion of the defendant, peremptorily instructed a verdict in its favor. From the.judgment rendered thereon, this appeal is prosecuted by plaintiff.

Plaintiff made no motion for new trial. The defendant contends that because of her failure to do so, this court is limited, in its authority, to a consideration of fundamental errors, as to which it is insisted there was none; and to the one or more assignments of error presenting the single question of whether the court erred in peremptorily instructing the verdict. This question is believed to be controlled by the recently amended Rule 24 of “Rules for the Courts of Civil Appeals” (126 Tex. vi, 99 S.W.2d xxix), and Rule 71a of the “Rules for the District and County Courts” (126 Tex. vii, 99 S.W.2d xxx) as interpreted in Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270. Said Rule 71a (as amended December 9, 1936, effective March 1, 1937) states its object to be “to require a motion for new trial to be filed as a prerequisite to-an appeal in all cases, unless [1] the error complained of is fundamental, or [2] the case is tried before the court without a jury, or [3] a peremptory instruction is given in the case, or [4] the appeal is based upon some error arising after the action of the trial court upon the motion for new trial, or [5] unless there is not full five days’ time from the rendition of the judgment to the adjournment of the court for the term.” (Italics ours.) In making and establishing said Rule 71a, the Supreme Court was exercising legislative power under direct grant of such power by the Constitution, as an express exception to the general grant of all legislative power to the Legislature. Const. Art. II, sec. 1; Id. Art. III, sec. 1; Id. Art. 5, sec. 25, Vernon’s Ann.St. The controlling effect of the intention of the Supreme Court as the law maker, and the rules and principles governing the ascertainment of such intention, are the same as applicable to a statute of the state enacted by the Legislature. One such rule is that it is not the intention which the law maker intended to express, but failed to do so, which is controlling, but the intention which the language of the law does express, however uncertainly or ambiguously. A reading of the opinion in Stillman v. Hirsch, supra, leaves the impression that the Supreme Court, by said amended rules, intended to require a motion for new trial as a prerequisite to appellate review in all cases, except such as to which some statute provided to the contrary. If, however, such was the intention, it was not expressed in the rules, unless it be true that there then existed a statute the effect of which was to authorize appellate review without a motion for new trial in cases in which a peremptory instruction of a verdict is given. The review of questionably applicable statutory provisions to such effect, as made in said opinion, strongly suggests there was no such statute. Revised Statutes 1925, Arts. 2209, 2210, 2237 and 2188 were reviewed and the conclusion announced that in none of them was any provision to the effect that a motion for new trial was not necessary as a prerequisite to appellate review.

We need not search for a statutory provision authorizing appellate review in the absence of a motion for new trial in a case wherein a peremptory instruction is given, because if such statute be found it will be controlling and is clearly excepted by amended rule 71a, which even had it not expressed such exception would nevertheless have to yield to the statute. If there be no such statute then the right to appellate review without a motion for new trial certainly exists, since not prohibited by statute or said rule 71a, the latter expressly declaring the intention that the rule not include a case wherein “a peremptory instruction is given in the case.” The intention to exclude such a case from the operation of the rule is clearly and certainly expressed. There is no contrary intention expressed in the rule. There is, therefore, no necessity for resort to rules of construction. We are of the opinion that plaintiff’s right to a review of any of the rulings or actions of the court below, presented by proper assignments of error, may not be denied on the ground that no motion for new trial was made.

We may first address consideration to a number of questions presented which may be regarded as of secondary importance.

In our opinion, the trial court did not err in excluding from the evidence checks for $205.56, and $154.17 in connection with oral testimony to show that they represented payments for compensation for 12 and 9 weeks respectively, at $17.13 per week, offered as applicable to the issue of “average weekly wages” of the deceased employee. The proffered evidence was excluded on the ground that the checks were given as advance payments upon a compromise settlement of the claim in suit which for some reason failed of consummation. Being part of a compromise, the checks did not constitute an admission on the part of the defendant that the average weekly wages of the deceased employee was $17.13. The evidence was inadmissible, we think, as involving an unsuccessful effort at compromise.

There was no error in the action of the court in permitting the defendant (as original plaintiff) to take a nonsuit. Such action was not reasonably calculated to prejudice any right of the (original) defendant for affirmative relief; that being the only condition, if any, limiting the right of a plaintiff, timely claimed, to take a nonsuit. R.S.1925, Art. 2182; Brooks v. O’Conner, 120 Tex. 121, 39 S.W.2d 22; Bailey v. Federal Supply Co., Tex.Com.App., 287 S.W. 1090; Thomason v. Sherrill, Tex.Civ.App., 4 S.W.2d 304; Cornelius v. Early, Tex.Civ.App., 24 S.W.2d 757.

We think the court did err in overruling plaintiff’s exceptions to those parts of defendant’s answer specially denying that valid notice of injury had been given or claim for compensation made by the proper party in due time or in proper form and manner, or that any award had been made by the Industrial Accident Board. These facts were alleged by plaintiff in her original pleading. The defendant’s answer containing the special denials was not verified and was filed on the same day of the trial — July 21, 1938. Under Vernon’s Ann.Civil Statutes, Art. 8307b,' the absence of denial by verified pleading, under the circumstances stated, concludes such issues by a legal presumption that the allegations of such facts as made by the plaintiff in her pleading were true.

We are not able to see, however, that any prejudice resulted to plaintiff from such action of the court. It did not prevent the operation of the legal presumptions declared by the statutes. Therefore, the error of the court in overruling the exceptions, it would appear, was not reasonably calculated to prejudice the rights of plaintiff, and, if not, there would exist no presumption that it did so. The error, we think, is properly to be regarded as immaterial. Williams v. Rodocker, Tex.Civ.App., 84 S.W.2d 556.

We are also of the opinion that the court improperly admitted in evidence an affidavit of L. A. Thompson. Thompson, while a witness, was handed the affidavit and upon reading it over said: “Well here is a statement that is very wrong. I don’t know why I signed that. It says here that ‘Andy and Fay were having some words between them over some matters that I knew nothing about.’ That is a statement some insurance man put over on me. I didn’t know what I was signing.” The witness, however, acknowledged that he signed and swore to the affidavit and that it was true. He said “Yes” there was some conversation betwéen Mr. and Mrs. Bedner but “there wasn’t anything to leave the impression that there was anything wrong with it.” Thereupon, the affidavit, dealing largely with other matters, was offered and admitted over the objection to its introduction as a whole, but with the statement “We make no objection to the parts offered for the impeachment of the witness but there are other parts of it we do object to at this time.”

It is doubtful, we think, whether the affidavit was admissible even for impeachment purposes. The proposed impeachment should probably be regarded as concerning an immaterial matter and the evidence not admissible for that reason. Texas & P. Ry. Co. v. Phillips, 91 Tex. 278, 42 S.W. 852; Wells v. Ford, Tex.Civ.App., 118 S.W.2d 420.

But we need not express any definite opinion on this point, since there was no objection to the admission of the affidavit— which had already been read by the witness—concerning a conversation between plaintiff and her husband. At all events, we think only that part of the statement with, at most, such other, if any, as was necessary to make clear its meaning, was admissible and it was error to admit the portions of the affidavit having no relation to that subject.

However, it is doubtful, we think, whether the action of the court in admitting the affidavit as a whole was calculated to prejudice plaintiff. With the witness’ explanation of the particular statement, the affidavit did not contradict the witness’ testimony on the stand. The fact that the disposition of the appeal is ruled by our conclusions upon other questions renders it unnecessary for us here to determine the question of the materiality of the court’s action in admitting the entire affidavit.

The most important inquiry is whether the court properly granted defendant’s motion for a peremptory instruction of a verdict in its favor. If there was any issue which plaintiff had the burden of establishing, and which was supported by no competent evidence, or as to which the evidence was conclusively against the plaintiff, then, of course, the action of the court now under review was proper. If any completely defensive issue, pleaded by defendant, was conclusively established by evidence then also such .action of the court was proper. If all essential issues tendered by plaintiff and joined by the pleadings, not conclusively established by the evidence in favor of the plaintiff, were raised by the evidence; or, if defensive issues, not conclusively established by the evidence in favor of the defendant, were raised by the evidence then the court improperly instructed the verdict.

One essential issue which the plaintiff was under the burden of establishing was that the deceased employee received the injury resulting in his death while in the course of his employment. A counter defensive issue pleaded by defendant was that at such time said employee was in a state of intoxication. The law provides that an “injury sustained in the course of employment” shall not include “an injury received while in a state of intoxication.” R.S.1925, Art. 8309, sec. 1, subsec. 3.

While a claimant in a compensation case has the burden of establishing the issue, among others, that the injured employee was in the course of his employment when injured, we think that in discharging that burden there may be available to him certain prima facie presumptions, one of them being that the employee was not in a state of intoxication. A state of intoxication is not a normal condition but abnormal, analogous to insanity, etc. In the absence of any evidence that an injured employee was at the time of injury in a state of intoxication, all other essentials to show that he was in the course of his employment being shown, it is unnecessary, we think, that the compensation claimant offer affirmative evidence to show that the employee was not in a state of intoxication. That fact, under such circumstances, is supplied by the presumption that he was not.

There was no conclusive evidence that the deceased at the time of his injury was in a state of intoxication and, therefore, the peremptory instruction of the verdict for defendant cannot be sustained on that ground.

Plaintiff also had the burden of establishing the issue of “average, weekly wages.” According to the statutory definition of “average weekly wages” (R.S.1925, Art. 8309, sec. 1, subsecs. 1 to 5, inclusive) it was incumbent upon plaintiff to establish the amount of deceased’s “average weekly wages” by one or another of the three methods prescribed in, or in connection with, said definition.

It seems to be conceded that the evidence established conclusively that the first method (that is, based upon the employee’s own wages, received in the same employment, etc., “for substantially the whole of the year immediately preceding the injury”) was not available. The defendant contended, in effect, that the evidence did establish that the second method (that is, based upon the “daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed”) was not available. The argument is that a witness of plaintiff, whose testimony was vouched for by the plaintiff by the act of placing him upon the stand, testified there was one employee whose employment was of the same class as the deceased’s employment, who worked in the same area for another company. But, when this witness was asked “Do you know what part of the past 12 months he actually worked?” answered “Well, I don’t know. I know he was working at that time. I don’t know how many days he worked.” There was testimony by other witnesses, including plaintiff, tending to show that there was no other employee fulfilling the conditions prescribed by the statute to make the average daily wage of other employees the proper test of determining the average weekly wages of the deceased employee as provided in said second method. There was, therefore, we think, an issue of fact raised as to the deceased’s average weekly wages determinable according to said second method.

It is contended further that the peremptory instruction was proper because there was no showing that all the beneficiaries of the deceased employee were parties to the suit, in that it was not shown “that appellant was the sole beneficiary of Andrew J. Bedner under the terms and provisions of the Workmen’s Compensation Law, or that the said Andrew J. Bedner had no children by a former wife, if any.” There were no facts pleaded nor in evidence to raise a presumption that deceased had any former wife, nor, if so, to raise any further presumption based upon the first presumption that there were any children, or that any children survived. If there was any defect of parties, we think that was at most a matter of abatement and certainly not a ground for the instruction of a verdict for the defendant.

It is our conclusion that the peremptory instruction should not have been given, and that the judgment should be reversed and the cause remanded. It is accordingly so ordered.


source: Caselaw Access Project

author: BLAIR, Justice.

license: Public Domain

text:
    DAILEY et al. v. RAILROAD COMMISSION et al.
    No. 8928.
    Court of Civil Appeals of Texas. Austin.
    Oct. 18, 1939.
    Rehearings Denied Nov. 15, 1939.

      Palmer Bradley, John E. Cook, and Andrews, Kelley, Kurth & Campbell, all of Houston, for appellants.
    Gerald C. Mann, Atty. Gen., and Edgar Cale, Asst. Atty. Gen., for appellee Railroad Commission.
    Fouts, Amerman & Moore, of Houston, for appellees Harrison Oil Co. and J. S. Abercrombie Co.
   BLAIR, Justice.

This is a Rule 37 case. It arose as follows : In April, 1919, O. H. Pollard acquired title to the 20-acre tract of land in question by deed, which land is in what is now the Old Ocean Field, in Brazoria County. Appellants are the children, heirs and present owners of the 20-acre tract of land. O. H. Pollard acquired the land some seven months before the first so-called state-wide 150-300 feet oil well spacing rule was promulgated by the Commission, and some fifteen years before the first producing well was brought in in the Old Ocean Field, in 1934. On October 28, 1937, the Commission promulgated the following special Rule 37 applicable to the Old Ocean Field:

“No well for oil or gas shall hereafter be drilled nearer than thirteen hundred and twenty (1320) feet to any other completed or drilling well on the same or adjoining tract or farm, and no well shall be drilled nearer than six hundred and sixty (660) feet to any property line, lease line, or subdivision line; provided that the Commission, in order to prevent waste or to prevent the confiscation of property, will grant exceptions to permit drilling within shorter distances than above prescribed whenever the Commission shall determine that such exceptions are necessary either to prevent waste or to prevent confiscation of property.”

On May 17, 1938, appellants filed with the Commission an application to drill one oil well on the 20-acre tract, under the exception to the Rule to prevent confiscation of property, which after notice and hearing was denied by the Commission; and on appeal to the trial court the Commission’s order was sustained; hence this appeal.

Under the facts stated the land owners were as a matter of law entitled to drill one well on the 20-acre tract, and the Commission acted arbitrarily and unreasonably in denying the permit. The exceptions to prevent waste or to prevent confiscation as used in the special rule applicable to the Old Ocean Field are the same as have been provided for in each and every Rule 37 promulgated by the Commission. In the case of Railroad Commission v. Magnolia Petroleum Co., 130 Tex. 484, 109 S.W.2d 967, 971, the Supreme Court construed a similar Rule 37 and its exceptions as follows:

“By its language the rule is cast into two distinct parts. The first deals with a spacing pattern for the entire field and for wells generally; the second, with specific wells, to be drilled as exceptions to the general rule. These two parts compose the entire rule, the one as much as the other, and must be construed together.”

See also Gulf Land Co. v. Atlantic Ref. Co., Tex.Sup., 131 S.W.2d 73.

This court had occasion to pass upon the exact question here presented in the cases of Nash v. Shell Petroleum Corp., Tex.Civ.App., 120 S.W.2d 522; Shell Petroleum Corp. v. Railroad Commission, Tex.Civ.App., 116 S.W.2d 439; and Stanolind Oil & Gas Co. v. Railroad Commission, Tex.Civ.App., 96 S.W.2d 664; holding in the Nash case that [120 S.W.2d 523] :

“One of the main purposes of this exception was to protect the vested right of capture of owners of tracts so small or of such irregular shape as to preclude development under the general rule. The Commission has uniformly given this exception this construction, so far as we have been able to determine. * * * Whether the Commission had the power to omit the exception altogether, and apply the general rule to all tracts too small or of too irregular shape to develop under the rule, regardless of the date of the subdivision, does not now concern us. The Commission did authorize the exception. That it had the power to do so has never been seriously questioned; but, on the contrary, has been uniformly recognized. Having made the exception, we have reached the conclusion that it did not have the power to limit it to subdivisions antedating the rule.”

It has been the uniform holding of this court that the inherent right of the landowner to recover the oil beneath his land is the primary basis for the exception to prevent confiscation or to protect vested rights, and that such right is deemed to outweigh other consideration for which the rule was promulgated. The Supreme Court so construed the rule and its exceptions in the case of Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 99 A.L.R. 1107, holding that the exception to protect vested rights must be construed in connection with the rules of property in oil and gas; that each owner must have a fair opportunity to recover his oil through wells located on his land; that the exercise of the police power under Rule 37 and its exceptions does not change the rule of property, but merely regulates and controls the manner of its use and enjoyment; and that the. primary rule of ownership of property is still operative. And both the courts and the Commission, until the instant case, have uniformly held that since the Commission made the exception to prevent confiscation or to protect vested rights, it must apply such exception where a person owns a tract of land too small or irregular in shape to be drilled under the general spacing provision of the rule, no question of voluntary subdivision arising; and to permit the drilling of at least one well, which the landowner is entitled to drill as a matter of law.

Appellees Harrison Oil Company and J. S. Abercrombie Company seek to justify the action of the Commission in denying the permit to drill the well in question upon the ground that they offered to pool appellants’ property with adjoining acreage, alleging that under such arrangement appellants would obtain all their oil, and in consequence their vested rights to the oil would be protected. If it be assumed that the conservation statutes authorize the Commission to require pooling of acreage and that such pooling is not inhibited by the fundamental laws of both the state and the nation, upon which question we do not pass, a complete answer to the pooling contention is that the spacing rule in question does not provide for the pooling of lands, but provides that the Commission will by exception protect the vested rights of the owner of small or irregular tracts of land by permitting closer drilling than the general spacing distances prescribed in the rule. The Commission cannot arbitrarily require any pooling of acreage where it has no rule or regulation prescribing and defining pooling. The pooling of lands would necessarily curtail the owners’ free use and enjoyment of them, and would therefore necessarily require that pooling must be defined with such reasonable certainty as the subject-matter dealt with will admit of; and, when so defined, the pooling rule or regulation becomes the guide or criterion governing the Commission in passing upon any application to require pooling. Manifestly, the fundamental law of both the state and the nation would not permit the Commission to determine on the spot such far reaching limitation of the right or use of private property, but would require that such matters shall be controlled by due process of law and freedom of contract. And having promulgated the special spacing rule in question providing for an exception to protect private rights in the use of property, the Commission cannot refuse to apply that exception where, as in the instant case, the facts require its application.

But appellees contend that the Commission had the discretionary power to refuse the permit upon the ground that because of a very high and dangerous gas or reservoir pressure the drilling of the well would cause great danger, and would cause waste resulting from the drilling of the well. The first producing well was brought in in 1934, and the wider or 40-acre spacing rule was not promulgated until some three years later, in 1937. The wider spacing rule was predicated upon the highly dangerous reservoir pressure; but it nevertheless provided for an exception to protect vested rights or to prevent confiscation. Having made the exception, the Commission does not have the right to limit the exception so as to nullify it. This the Commission has done, if it did do so, by refusing to apply- it because of the highly dangerous gas or reservoir pressure prevailing throughout the entire field. The exceptions to prevent waste arid to prevent confiscation of property are a part of the Rule 37 in question, “the one as much as the other, and must be construed together.” Railroad Commission v. Magnolia Petroleum Co., 130 Tex. 484, 109 S.W.2d 967, 971; Gulf Land Co. v. Atlantic Ref. Co., Tex.Sup., 131 S.W.2d 73. The Commission cannot promulgate a rule or exception to it, and then refuse to apply the rule or exception under a state of facts which would destroy the rule or exception. Brown v. Humble Oil & Refining Co., supra. If the hazards or dangers existed, the Commission should not have provided for an exception; but as to its statutory or constitutional right to do so we do not pass. Such question is not here pre-sented because the Commission made the exception to the rule, and must apply it where applicable.

Appellees Harrison Oil Company and J. S. Abercrombie Company seek to dismiss this cause upon the ground of lack of interested and, in the alternative, of necessary parties. The basis of this contention is that the appellants had executed an oil and gas lease covering the 20-acre tract, “which was outstanding, and appellants had no right to enter upon the possession of the land in controversy or drill a well thereon and therefore showed no right to any permit in any event; and in the alternative, if any right could issue, said cause should be dismissed for lack of necessary parties in that the title claimed by appellants at the time of the trial was outstanding and appellants show no right to sue.”

Appellees have not briefed this counter-proposition, and do not show that the matters were urged in the trial court. In any event, the contention is without merit.

The lease was not executed until after appellants’ application to drill the well had been denied by the Commission. The case was tried on amended pleadings, which do not show if this suit were filed before the execution of the lease. Appellants were the fee owners of the land and the royalty owners under the lease. Under these facts they were interested parties and affected by the order denying the well. Section 8 of Art. 6049c, R.S., Vernon’s Ann. Civ. St. art. 6049c, § 8, provides that “any interested person” affected by any rule or regulation of the Commission made or promulgated under the conservation laws shall have the right to appeal to the courts to review unjust and unreasonable action.

In accordance with our above conclusion, we reverse the judgment of the trial court and remand the cause with instruction to the trial court to grant the ancillary injunctive relief as prayed for by appellants.

Reversed and remanded.


author: SPEER, Justice.

text:
    CITY OF ELECTRA v. AMERICAN LA FRANCE & FOAMITE INDUSTRIES, Inc.
    No. 13968.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 20, 1939.
    Rehearing Denied Nov. 24, 1939.

      J. S. Liéb and C. P. Engelking, both of Electra, for appellant.
    Saner, Saner & Jack and W. H. Jack, Jr., all of Dallas, for appellee.
   SPEER, Justice.

American LaFrance & Foamite Industries, Inc., a foreign corporation, with a permit to do business in Texas, sued the City of Electra, a municipal corporation, for debt. For convenience, we shall give the parties the same designation as that carried by them in the trial court.

From the pleadings of plaintiff, it appears that it sold to defendant 1,200 feet of water hose for the agreed price of $1,-320. A written contract, of date September 19th, 1934, was entered into between the parties, setting out the terms of the sale. . This contract was executed in the name of plaintiff, acting through Horace Coker, as its agent, and by defendant, signed “City of Electra, by John Houser, City Sec.” That by the terms of the contract, plaintiff was to deliver the hose within thirty days from' the approval of the contract by plaintiff, and payment was to be made by defendant in instalments as follows: $345 within sixty days from date of delivery of the hose, and the remainder to be evidenced by ten notes, nine of which were to be for $65 each and one for $390, all payable within twelve months; each to bear six per cent interest per annum. That all of said notes were executed and signed in the same manner as the contract shown above. The nine notes for $65 each were made due and payable on the 19th day of the months of January to September, both inclusive, 1935. The $390 note was made due and payable on September 19th, 1935. The notes provided for interest at six per cent per annum from December 19th, 1934, and that all past due interest should bear interest at ten per cent per annum, and that if default was made in payment and they should be placed in the hands of an attorney for collection, an additional amount of ten per cent of the principal and interest unpaid should be added as collection fees.

Plaintiff further plead that it had delivered the hose according to the terms of the contract, the payment by defendant of the cash instalment of $345 and the two $65 notes maturing January and February 19th, 1935, respectively; that defendant had made default in payment of the remaining seven notes for $65 each and the $390 note; that all had been placed in the hands of its attorneys for collection under promise to pay the amount provided in the notes as collection fees. Plaintiff asked for judgment for the amount of principal and interest due, a foreclosure of its lien and for general and special relief.

Alternative pleas were made by plaintiff to the effect that if no valid sale of the hose was made, then an implied rental contract was made between the parties. However, viewing the appeal as we do, all alternative pleas have become unimportant.

Defendant answered with general denial and special pleas that (a) the notes sued on were not the obligations of the City of Electra and that their signing by the City Secretary was unauthorized by the City; (b) that no resolution or ordinance was passed by the defendant authorizing the purchase of the hose, as required by the City’s charter, and that no legal authority was ever granted by the defendant to the secretary to execute the contract and notes set out in plaintiff’s petition. Pleas of limitation were interposed by defendant to plaintiff’s claim for rentals, and as against any implied promise to pay.

By supplemental pleadings, the plaintiff plead ratification by plaintiff and estop-pel to deny the purchase and obligation to pay.

No jury being demanded, the court heard and passed upon the evidence and entered judgment for plaintiff in the sum of $1,228.-97, recited to be “based upon instruments in writing executed by defendant, together with a foreclosure of lien”, described in other parts of the judgment. Further judgment was entered for the small sum of $5.-33 on open account, about which there seems to be no controversy.

Since the court rendered judgment based on the written instruments sued on, alternative pleas by plaintiff that defendant subsequently ratified the sale and purchase, and thereby impliedly promised to pay, as well also the defenses plead by defendant of limitation, necessarily go out of the case, insofar as they affect this appeal. We are concerned only with the judgment as entered based on the written instruments.

Defendant, City of Electra, appellant here, predicates its appeal upon ten assignments of error and presents them under three propositions, the first one of which reads:

“The written contract and notes signed merely ‘City of Electra, by John Houser, City Sec.’ does not constitute a valid binding obligation of said city because same was neither authorized nor ratified by any act of the City Commission of the City of Electra.”

The substance of the second proposition is that since it was indisputably established by the evidence that the duty of the City Secretary was to attend the meetings of the City Commission, keep accurate minutes of the proceedings and enroll all resolutions and ordinances passed; and it being further established by uncontradicted evidence that the City Commisson could act in such matters as those under consideration only by ordinance, upon which a majority had voted favorably, it was error for the trial court to admit parol testimony over defendant’s objection, to prove that such ordinance and resolution were in fact passed by the City Commission, when none was shown to exist in the minute books.

The third proposition is to the effect that the judgment of the court, based on the written instruments sued on, is not sustained by parol testimony that the City Commission did, at a regular session, pass an ordinance or resolution to purchase the equipment from plaintiff and to authorize the City Secretary to execute the instruments in writing relied upon by plaintiff, when the minutes of said meeting did not disclose that such ordinance or resolution Was in fact passed by the City Commission.

The nature of these propositions is such that they may be best discussed together. The first one considered alone, presents a sound principle of law. No one would seriously contend that a City Secretary could bind the municipality by an attempt to make a contract such as this one, without proper action being taken by the governing body. It therefore becomes essential to ascertain (1) did the City Commission, by a majority vote, while in business session, pass the ordinance or resolution to purchase the plaintiff’s goods and authorize the secretary to execute the necessary papers in the name of the City, and (2) if in fact the Commission did pass the necessary resolution and the Secretary failed to record it in the minutes, was it error for the trial court to admit parol evidence to prove that the ordinance was passed purchasing the goods and authorizing the secretary to do the ministerial act of preparing and executing the papers?

There is little or no conflict in the evidence which is material to this appeal. E. W. Presson, who was secretary of defendant at the time of trial, and who was custodian of the records of the City, testified that there was nothing in the minute books kept by his predecessor showing a resolution or ordinance passed by the City pertaining to the sale and purchase of plaintiff’s merchandise.

John Houser, who was the City Secretary at the time of the alleged sale and purchase, testified that he remembered the transaction. He executed the papers sued on; he did not know who gave him the authority to execute the instruments, but that somebody did; he would not have executed them without being told to do so; he had not thought of the transaction since it took place. He did not remember what was said by the mayor and Commissioners in regard to the purchase. Upon inquiry of counsel as to whether or not he wrote up the minutes of each meeting, he said: “I could not say that I wrote everything that was done at the meetings; I think some minutes were made at each meeting, but possibly not everything that was done at the meeting; quite often things were discussed and done that were not written up. I put in those things I thought were necessary; sometimes a purchase was made or things done that did not seem necessary to go in the minutes.”

Horace Coker testified that he was a salesman for plaintiff and sold to defendant the hose and made the contract sued on; that before the contract wás made, at the invitation of the mayor, he attended a meeting of the City Commission at a regular session, where all commissioners, the mayor and other city officials were present. That the matter of purchasing the hose was discussed by the commissioners; that a motion was made and carried at the meeting to purchase the hose upon the terms and conditions that the witness had discussed with the commissioners; the contract and the notes, as they were executed, covered the sale and its terms as previously discussed and agreed upon by the commissioners. Witness also testified that the Commission had agreed to make payment out of funds from the water department. That the hose was later delivered to the defendant and used by it in its fire department. He also stated that such equipment was essential and necessary for use by a municipality for fire protection.

In addition to the fact that defendant had accepted the equipment and had constantly used it for the purposes for which it was purchased, had made the cash payment of $345.00 and payment of two $65 notes, in support of its allegations of ratification and estoppel, plaintiff offered in evidence letters written by the City Secretary during 1935 and 1937, in which requests were made of plaintiff to forbear with defendant in the payment of the remaining notes; one of said letters was dated July 1st, 1937, and stated that the City Commission had asked the secretary to contact plaintiff and procure further leniency in the enforcement of payment of the notes. The Secretary who wrote the letter testified that he had done so at the request of the City Commission. There are other matters in this letter, which he testified that the commissioners did not request him to write, but we think the statements referred to are of little consequence in this controversy.

As above stated, the contention of defendant is that since the minutes of the meeting held by the City Commission does not contain a resolution or ordinance shown to have been passed by the Commission, authorizing the purchase and execution of the contract and notes, the trial court erred in permitting the introduction of parol evidence to that effect and consequently there was no competent evidence to support the judgment based on the written instruments. With this contention we cannot agree. Assuredly, it was the duty of the secretary to keep a correct record of the proceedings of the City Commission, but this duty on his part was a ministerial one and directory only. His failure to perform that duty would not defeat the rights of plaintiff to enforce performance of a contract which in truth and in fact was duly and legally authorized by the Commission. It was not essential to the validity of the contract authorized by the Board of Commissioners that the secretary record it in the minutes. The determining factor is, did the Board pass the resolution and authorize the contract and notes in the purchase of the equipment.

The witness, Horace Coker, testified definitely that the motion to purchase the equipment at the price and upon the terms later set out in the written instruments, was made by one of the commissioners, was seconded by another, the motion put and carried. No witness attempted-to deny that his testimony was true; no person testified to the contrary. It is significant, we think, that neither of the city commissioners nor the mayor, although the latter is still serving in that capacity, took the witness stand to testify in the case. It is true that Coker was interested in behalf of his principal, but the truth of his testimony is not questioned by anyone. It was no violation of the parol evidence rule to permit Coker to so testify. His testimony was not in contradiction of the written minutes, but supplemental to them. Such testimony supplied the only existing evidence of the orders of the commissioners. We think defendant’s contention is against the rule well established in this State. Some of the authorities on this point and their holdings are as follows:

In Yorktown Independent School District v. Afflerbach, Tex.Com.App., 12 S.W.2d 130, the court had under consideration whether or not the District had levied a tax when the minutes of the proceedings did not disclose it. Parol evidence of the order was admitted by. the court over objections of the District and the court held it was not error, using this language (page 132 of 12 S.W.2d) : “It is of course true that the minutes of the board of trustees would afford the highest evidence of the action of the board and'that such minutes cannot be varied or contradicted by parol evidence, but it does not follow that where the board has acted and the minutes fail to show such action that parol evidence will not' be heard to show the real action taken. The admission of such parol evidence is not in anywise to vary or contradict the minutes, but it is to supply the only existing evidence of the actual orders of the board. It is not the actual entry in the minutes of the record of the board’s action that gives validity; such record is but evidence. The important consideration is the act of the board. See Mecom v. Ford, 113 Tex. 109, 252 S.W. 491; Martin v. Grandview School Dist. (Tex.Civ.App.) 266 S.W. 607 (writ refused); 22 C.J. p. 1041, § 1296, and page 1085, § 1426.”

In the early case of City of Belton v. Sterling, Tex.Civ.App., 50 S.W. 1027, appellee had sued appellant on a paving contract. The minutes of appellant failed to show that any such contract between the parties was entered into. The trial court admitted parol evidence, over appellant’s objection, to show that the contract was made between Sterling and the City Council. The court said: “The fact that the city, or the officer charged with the duty of making a record or minutes of the proceedings of the council, failed to enter upon the minutes the contract in question, would not defeat the right of the plaintiff [Sterling] to prove by parol evidence the contract actually entered into.”

West Texas Construction Co. v. Doss, Tex.Civ.App., 59 S.W.2d 866, 869, affirmed by Supreme Court, 96 S.W.2d 1116, involved a recovery by appellant against appellee upon paving certificates. The defendant, Doss, defended upon the ground that the minutes of the City Council did not show an ordinance recorded, making the assessment; or at any rate, the minutes were incomplete in this respect. It was held that parol evidence was admissible to prove the entire ordinance, and in doing so the minutes were not contradicted but explained, so as to make them speak the truth. Citing 2 Dillon on Municipal Corporations, sect. 557. The opinion further cites with approval the expression by the last mentioned eminent author using this language: “Statutory and charter provisions that ordinances shall be recorded, signed by the presiding officer and attested by the clerk, are directory only in their nature, and a failure to observe them will not invalidate an ordinance or prevent its taking immediate effect.”

Again, the court cites section 607 of the same text, to this effect: “Within this principle also, * * * it has been held that the validity of an ordinance is not affected by the omission of the clerk to copy it into the record, or by the fact that it was not correctly copied into the record.”

In support of the holding, these authorities are cited: 43 C.J. p. 539, sect. 873; Hutcheson v. Storrie, Tex.Civ.App., 48 S.W. 785; Bennison v. City of Galveston, 18 Tex.Civ.App. 20, 44 S.W. 613. To these citations may be added: Waggoner v. Wise County, 17 Tex.Civ.App. 220, 43 S.W. 836, writ refused; Southwestern Lloyds v. City of Wheeler, 130 Tex. 492, 109 S.W.2d 739; 30 Tex.Jur. p. 199, sect. 103 et seq.; 19 R.C.L. p. 902, sect. 203; McQuillin Mun. Corp. (Second Ed.) p. 640, sects. 654 and 655.

No criticism can be offered to the defendant, City of Electra, for interposing any legal excuse or reason for resisting payment of a debt claimed by another against it. But when, as in this case, the evidence shows without dispute that a resolution was in fact passed by the City Commission to purchase the equipment from plaintiff in the manner and under the terms claimed by plaintiff, and that the City Secretary failed to record such proceeding, equity and right would not penalize plaintiff for the dereliction of defendant’s officer. We have no doubt, based upon the authorities cited, that it was entirely proper for the trial court to admit parol evidence to prove that such an ordinance or resolution was in fact passed by the defendant’s governing body.

The authorities cited by defendant to support its contention are not in point, in that they uniformly hold that an officer of a city, such as mayor, councilman, fire chief or secretary, cannot bind the city by contracts with persons or corporations in the purchase of equipment, such as that under consideration here. They hold that it takes an official action of the governing body. In none of the cases cited by defendant does the question arise, of the admission of parol evidence to prove that an ordinance was passed, when none was shown by the minutes. For example, City of Mission v. Eureka Fire Hose Mfg. Co., Tex.Civ.App., 67 S.W.2d 455, writ dismissed, involved a suit by the fire hose company against the city for equipment, purchased by the Fire Chief at one time and by the mayor at another. The petition declared upon an express contract made by the officers mentioned. Neither of the purchases was shown to have been authorized by the City’s governing body, and it was held that claimant could not recover. Such authorities do not support the contention made by defendant in this case. We think there is no merit in the propositions urged and they are accordingly overruled.

From what we have said with respect to the validity of the contract and notes sued on, we shall not discuss the contentions of plaintiff to the effect that defendant subsequently ratified the acts of the City Secretary in executing the contract and notes, and by its acts estopped itself to deny the validity of the instruments sued on.

As above shown, the written instruments sued on by plaintiff, provide for future payments of stipulated amounts, together with interest at six per cent per annum from September 19th, 1934, to date of payment. There is a further provision that past due interest shall bear interest at ten per cent. There is also included the ten per cent collection charges if default in payment is made. The principal of the obligation represented the value of equipment acquired by defendant, for which it got the benefit; likewise the six per cent interest was equal to the legal rate imposed by law for money or other property detained. The commissioners had a perfect right to contract for these and bind the municipality for their payment. We know of no authority given to the commissioners to obligate the City to pay collection or attorneys’ fees in the form of a penalty if default should be made in payment of its just obligations; but we believe the rule to be that City Commissioners could not so bind the municipality. Western Metal Mfg. Co. v. Cameron County Water Imp. District, Tex.Civ.App., 105 S.W.2d 700, writ dismissed; Tyler v. Shelby County, 5 Cir., 47 F.2d 103, and authorities there cited.

From the pleadings and judgment of the court, it is apparent that an error was made of which we must take cognizance; it is fundamental. The judgment shows that it was rendered on the instruments in writing. These instruments or notes aggregate in principal $845. Each note bears interest at six per cent per annum from December 19th, 1934, until paid. The judgment was entered on May 16th, 1938. The notes further provide that past due interest shall bear interest at the rate of ten per cent per annum. The judgment as entered is for $1,228.27, and bears interest from date of entry at ten per cent per annum. The amount of the judgment is in excess of the amount for which it should have been, and should not bear interest from its date at the rate named. By a calculation it will be observed that the principal of the notes sued on is $845. Six per cent interest per annum from December 19th, 1934, to date of the judgment is $185.41, and interest at ten per cent on past due interest is $18.54, all of which aggregates $1,048.95, to which amount should be added $5.33, represented by the open account, a grand total of $1,054.28.

We therefore reform the judgment of the trial court so that it shall be in favor of plaintiff for $1,054.28, to bear interest at six per cent per annum from May 16th, 1938, on $850.33 (the principal and open account), and ten per cent per annum on $203.95 accrued and past due interest. For reasons stated above, we hold that plaintiff cannot recover collection or attorneys’ fees. In all other respects the judgment is undisturbed.

As thus reformed, the judgment of the trial court is affirmed. The costs of this appeal are taxed against plaintiff, the appel-lee here.

Reformed and affirmed.


author: MONTEITH, Chief Justice.

text:
    FOLEY BROS. DRY GOODS CO. v. SETTEGAST et al.
    No. 10860.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 26, 1939.
    Rehearing Denied Nov. 23, 1939.

      Maurice Epstein, of Houston (Wm. A. Vinson and Fred R. Switzer, both of Houston, on motion for rehearing only), for appellant.
    John H. Crooker and Fulbright, Crook-er & Freeman, all of Houston (John H. Crooker and Kraft W. Eidman, both of Houston, of counsel), for appellees.
   MONTEITH, Chief Justice.

This is an appeal in an 'action brought by appellant, Foley Bros. Dry Goods Company, against appellees, J. J. Settegast et al., to fix the fair and reasonable market value, as of July 1, 1932, exclusive of the value of improvements, of Lots 11 and 12, Block 45, in the City of Houston, Texas, for the purpose of determining the rental to be paid by the appellant for said two lots for the five-year period beginning July 1, 1932, and ending June 30, 1937, under the terms of a certain lease contract entered into between appellant and J. J. Settegast and K. M. R. Settegast, both deceased, on December 20, 1920, for the lease of said two lots for a period of 99 years. Appellees are the heirs or legal representatives of the said J. J. and K. M. R. Settegast.

Under the terms of said contract lessee agreed to pay to lessors in cash an amount of rent equal to 6% per annum net on the value of said premises, to be determined under the terms of the contract. For the purpose of the lease it was agreed that the value of said premises at the beginning of the term of the lease was $300,000, of which $60,000 was the agreed value of the improvements then on said premises, and $240,000 was the agreed value of the land. It was agreed that there should be a revaluation of the land at the end of the first ten-year period of said lease on July 1, 1932, and an additional revaluation of the land at the end of each succeeding five-year period; that the revaluation should be by appraisers, one appointed by each party, who should, as of July 1, 1932, determine and fix a fair and reasonable market value of the land, exclusive of the value of improvements, for a period of five years, beginning July 1, 1932, and that the rent for said property for said five-year period should be a sum equivalent to 6% per annum net to the lessors on said $60,000 agreed value of the improvements, plus the then appraised value of the land; it was agreed that if the appraisers appointed to fix the value of said land failed, to fix the value thereof, that then the Judge of the United States District Court should become a third appraiser, and that if the two appraisers selected for any period and the United States District Judge did not fix the value of said land, that then its value for the then ensuing period should be fixed by a court of competent jurisdiction.

Appellant alleged that prior to July 1, 1932, the respective parties in compliance with the requirements of said contract had appointed their respective appraisers, but that the appraisers being unable to agree and the Federal Judge having refused to act as umpire of said contract, plaintiff had instituted a suit in equity asking the district court .of Harris County to fix the fair and reasonable market value of said land, exclusive of the value of improvements, so that the rental for the five-year period beginning July 1, 1932, might be determined; it alleged that the value of said two lots did not exceed $40,000.

Appellees answered by general and special demurrers and exceptions and general denial. They admitted the execution of said contract and alleged the value of the lots in question on July 1, 1932, to have been not less than $340,000.

The causé was tried before a jury, who, in answer to one special issue submitted, found that the fair and reasonable market value of said two lots, exclusive of any improvements thereon, as of July 1, 1932, for the ensuing five-year period, was $175,-000. The trial court entered judgment in accordance with the jury’s finding.

The two lots in question are what is known as key lots. They extend 250 feet through Block No. 45 of the City of Houston. Lot No. 11 fronts 50 feet on Preston Avenue, and Lot No. 12 fronts 50 feet on Prairie Avenue. Each lot is 125 feet in depth. Appellant owns a lot fronting on Main Street and running back to said two'key lots and has under long term lease other property in the same block adjoining said Lots Nos. 11 and 12, not affected by said lease contract, on which it has erected a nine-story building.

On July 1, 1932, appellant was conducting a single mercantile establishment in' said building under the name of Foley Bros. Dry Goods Company. It had leased certain space therein, located in some instances partly on said key lots and partly on adjoining property, to firms and individuals who were engaged in conducting departments therein as a part of appellant’s business and under its name.

The primary issue made by the pleadings in this action was the fair and reasonable márket value of said two lots, exclusive of the improvements thereon, as of July 1, 1932, for the ensuing five-year period. The controlling question to be determined in this appeal is whether or not the court permitted the proper elements to be taken into consideration by the jury in ascertaining the value of said property under the terms of said contract.

Appellant assigns error in the action of the court in permitting appellees, over its objections, to introduce testimony in reference to the nature and character of the improvements on said two lots during said five-year period and as to the nature of appellant’s use of said improvements, including testimony as to the gross receipts of moneys received by appellant during said five-year period from said leased departments using space in said building, as not being proper elements to be taken into consideration in ascertaining the value of said property.

While the court permitted appellees to fully develop the facts in reference to the improvements on said property and the uses made thereof, including the gross rentals received by appellant during said five-year period from the leased departments using portions of said two lots, we think that the rights of appellant were amply protected by the instructions given by the court as to its consideration.

Special Issue No. 1 .reads: “What do you find from a preponderance of the evidence was the fair and reasonable market value, as that term has hereinbefore been defined to you, as of July 1, 1932, for the period of five years from July 1, 1932, to June 30, 1937, of lots 11 and 12 in block 45 exclusive of the value of any improvements thereon.”

In connection therewith the court gave the following instruction: “Certain evidence has been admitted before you concerning certain leases made by Foley Brothers to certain portions of the building now upon the lots in question. In this connection you are instructed that insofar as the consideration paid by the lessees under such leases is concerned, you may not consider the portions of such consideration that represented special services rendered by Foley Brothers to such lessees, nor the value of the use of such space as was conferred upon it by its conjunction with other lots than those in question.”

The courts of this state have uniformly held that in proving the market value of real property it is permissible to not only show the use to which the property in question is devoted, and the uses to which it is adapted, Boyer & Lucas v. St. Louis S. F. & T. Ry. Co., 97 Tex. 107, 76 S.W. 441, but our courts have held that it is permissible to show all such matters as suitability and adaptability, surroundings, conditions before and after, and all circumstances which tend to increase or diminish the present market value. State v. Carpenter, Tex.Com.App., 89 S.W.2d 194.

This rule is upheld in the case of Sullivan v. Missouri K. & T. Ry. Co., 29 Tex.Civ.App. 429, 68 S.W. 745, 746. In its opinion the court said: “Value is not to be estimated solely from the use made of the land at the time of the seizure, but the use to which it is adapted may be properly taken into account in determining what would justly compensate the owner of the land seized, since the use to which the> property is adapted may exert an important influence upon its market value. The estimate of value should be based on the use which men of ordinary prudence and sagacity would make of the land. Future contingent value cannot be considered, and yet it is not improper to consider-the surroundings of the property, and the probability that a use may reasonably be made of it more profitable than that to which the owner has devoted it. * * * ”

The rule established by the Texas courts is supported by the great weight of authority from other jurisdictions.

In the case of King v. Minneapolis Union Ry. Co., 32 Minn. 224, 20 N.W. 135, 136, by the Supreme Court of Minnesota, which also , involved a lease of certain premises for a period of 99 years and in which the terms of rental were 7% per annum on the appraised value of the land, exclusive of improvements, and the payment of all taxes and assessments, and in which a new valuation of the land was to be made each five years, which furnished the basis of the rental for the five years following, the court in its opinion said: “We think it may be stated as elementary that a person is entitled to the fair value of his property for any use to which it js adapted and for which it is available, and for which it may be sold. He is entitled to the value of his property for any use to which it may be applied, and for which it would ordinarily sell in the market, whether that use be the one to which it is presently applied, or some other to which it is adapted. It is, we think, equally true that any evidence is competent and any fact is proper to be considered which legitimately bears upon the question of the marketable value of the property. In this case evidence was introduced tending to prove that the fact of a business having been established and carried on on the premises for so long a time materially increased the market value of this property. If this was a fact, it was competent to prove it; and, if proved, we cannot see why it was not proper to take it into consideration in estimating the value.”

Additional cases from other jurisdictions holding that it is proper to show the use - to which property is adapted for the purpose of determining the value thereof are, King v. Minneapolis Union Ry. Co., 32 Minn. 224, 20 N.W. 135, by the Supreme Court of Minnesota; In re Gilroy, 26 App.Div. 314, 49 N.Y.S. 798, by the Supreme Court of New York; Brack et ux v. Mayor and City Council of Baltimore, 125 Md. 378, 93 A. 994, Ann.Cas. 1916E, 880, by the Court of Appeals of Maryland; Bell v. Tucker, 37 Ga.App. 254, 139 S.E. 573, by the Court of Appeals of Georgia, and many others.

Under the above authorities and the rules laid down by the courts therein, we think that there was no error on the part of the trial court in admitting evidence as to the -character of appellant’s improvements on said Block No. 45, including improvements on other property therein, outside of the two lots in question, owned and controlled by appellant, and in admitting evidence as to the gross rentals received from said leased departments, since this evidence tended to show the nature and character of the use to which said property was put during said five-year period and the volume of business actually done on said premises during that period. Further, the record shows that when said .evidence was offered, appellant objected only generally thereto and at the conclusion of the trial requested that the jury be instructed to disregard said testimony as a whole, and did not request that the trial court limit said testimony to some purpose 'for which it was admissible.

Appellees contend that the record shows that there were no sales in said Block No. 45, in which the key lots in question were situated, in the entire five-year period under consideration, and that there were no sales of’ down-town business property in Houston during the year 1932, and that therefore it was necessary and proper to resort to testimony showing the fair and reasonable value of said two lots as distinguished from their market value in its strict sense.

The record shows that appellant’s witness C. H. Hurlock testified that he did not remember any sale of down-town business property in Houston in 1932 and that the few sales that occurred iri 1933 were either distress sales or were made under unusual circumstances. Appellant’s witness A. A. Brush testified that he did not know of a single sale in the immediate neighborhood of the property in question in 1932 and that the only sale that he recalled in the vicinity of Block No. 45 was in 1937. Appellant’s witness Ira Reed testified that he had studied all the sales he could find that had any bearing on the property in question and that he found practically no sales during that immediate time, that he did not think that there was a fair sale in 1932. Appellee’s witness W. G. Birchfield testified that property of the character of the key lots in question moves slowly and is neither bought nor sold on nor is it influenced by the daily market.

Our courts have uniformly held that where there is evidence showing or tending to show that a particular piece of property has no market value, or no market value at or near the place in question, or where it is a question for the jury to determine whether the property had in fact a market value, the parties have the right to introduce evidence to prove its actual or intrinsic value. 17 Tex.Jur., 437.

This rule is laid down by our Supreme Court in the early case of International & G. N. Ry. Co. v. Pape, 73 Tex. 501, 11 S.W. 526, 527. Justice Gaines, speaking for the court, said: “The value of a marketable article is the amount for which it can be sold, but the test of market price cannot be applied to such property as is not ordinarily the subject of sale. What an article will bring in the market, when no other article of a like character has been sold, is necessarily a matter of conjecture. It follows that in such a case some other method must be resorted to for the purpose of ascertaining its value.”

This rule is followed in the case of Taylor County v. Olds, Tex.Civ.App., 67 S.W.2d 1102, 1103. In its opinion the court said:

“There can be no ‘market value,’ accurately speaking, in the absence of a market; which is to say there can be no market value of property at a given time and place if there have been no sales of any property of like kind and quality and in •sufficient quantity to establish a prevailing sales price of such property. Gulf, C. & S. F. Ry. Co. v. Jackson & Edwards, 99 Tex. 343, 89 S.W. 968; International & G. N. Ry. Co. v. Pape, 73 Tex. 501, 11 S.W. 526; Pacific Express Co. v. Lothrop, 20 Tex.Civ.App. 339, 49 S.W. 898; Houston & T. C. Ry. Co. v. Crowder (Tex.Civ.App.) 152 S.W. 183; Galveston, H. & S. A. Ry. Co. v. Patterson (Tex.Civ.App.) 173 SW. 273. * * *
“In the instant case, much of the testimony was secondary evidence of value. While there was some evidence which purported to be of market value, we think the undisputed evidence showed there was no market value at the time and place in question, in that it was shown that there were no sales of similar property in that vicinity at that time, nor had there been for three or four years previously. * * In Ara v. Rutland (Tex.Com.App.) 215 S.W. 445 [446], in an opinion approved by the Supreme Court, it was held that testimony of market value which was, not expressly shown to apply to the particular place concerning which the inquiry was made would not be inferred as so applying, and we take it that, if there would exist no such inference as to place, neither would there as' to time.”

In the recent case of Lower Colorado River Authority v. Hughes et al., Tex.Civ.App., 122 S.W.2d 222, 223, the court in passing on this particular question said: “ * * * the rule is settled that when property taken or destroyed has no market value, its actual, reasonable or intrinsic value may be shown. Gulf C. & S. F. Ry. Co. v. Jackson & Edwards, 99 Tex. 343, 89 S.W. 968; Taylor County v. Olds, Tex.Civ.App., 67 S.W.2d 1102, 1103; Fort Worth & Denver Ry. Co. v. Amason, Tex.Civ.App., 239 S.W. 359; Fort Worth & Denver Ry. Co. v. Sugg, Tex.Civ.App., 68 S.W.2d 570; and 19 Tex.Jur. 200-204, and cases there cited. * * * Proof of actual, reasonable or intrinsic value of the property may be shown by the value of its uses, its particular fitness for such uses, and its adaptability for any other uses or purposes, and the reasonable value thereof; and, generally, a witness may give his opinion of the value of such property based on such uses and the value thereof, when it has been shown that he has some knowledge of such uses beyond that of the jurors.”

In the case of Norton v. Lea, Tex.Civ.App., 283 S.W. 316, 318, the court in its opinion said: “While there was testimony that said land had a market value during said years, there was affirmative testimony that during said years there were no sales of land in that neighborhood and that said tract did not have a market value. When there is evidence showing or tending to show that the property under consideration has no market value, the parties have a right to introduce evidence to prove its actual or intrinsic value. Felker v. Hyman (Tex.Civ.App.) 135 S.W. 1128, 1130; Texas & P. Ry. Co. v. Ellerd, 38 Tex.Civ.App. 596, 87 S.W. 362, 363; Houston & T. C. Ry. Co. v. Crowder (Tex.Civ.App.) 152 S.W. 183, 184, 185; Galveston H. & S. A. Ry. Co. v. Powers, 54 Tex.Civ.App. 168, 117 S.W. 459, 461.”

Under the above authorities, the record in this case showing such an absence of sales of similar property at or near July 1, 1932, as to render it a controverted issue as to whether or not the property in question had a market value, we think that it was permissible for the court to resort to testimony showing a fair and reasonable value of said property and that testimony as to the nature and character of appellant’s improvements and the nature of its use thereof, including the revenue derived therefrom during said five-year period, was admissible for that purpose, particularly in view of the qualifying instructions given by the court in connection with Special Issue No. One.

Appellant assigns error in the action of the court in refusing, at the request of appellant, duly made, to strike the testimony of the witness Jungman and in refusing to instruct the jury to disregard said testimony, for the alleged reason that on cross-examination he had admitted that the opinion expressed by him as to the value of said lots was not market value.

Appellees’ witness Jungman testified on direct examination that he had been in the real estate business seven or eight years; that he was familiar with and had made appraisals of business properties in downtown Houston and had made a survey and analysis of the two lots in question for the purpose of determining their value during the five-year period involved in this suit; that he had arrived at a value of $370,000.00, exclusive of improvements. On cross-examination, he testified that the value placed by him on said property did not .represent what the property would have brought on the market had it been offered for sale on July 1, 1932, as vacant property, but that it represented the appraised value of said property “of what any intelligent buyer, willing and able, would purchase from any willing and intelligent seller, both of them able to carry out their obligations.”

The trial court, after hearing the cross-examination of the witness, refused to grant appellant’s motion to strike, holding that said motion went to the weight to be given to his testimony and not to his competency as a witness.

The rule is well settled in this state that the qualification of a witness testifying as to market value is primarily a question for the trial court and that the trial court’s ruling thereon will not be disturbed unless it appears that the court’s ruling is clearly erroneous. Rogers & Adams v. Lancaster, Tex.Com.App., 248 S.W. 660; Independent Shope Brick Co. v. Dugger, Tex.Civ.App., 281 S.W. 600, affirmed, Tex.Com.App., 285 S.W. 599; Gulf C. & S. F. R. Co. v. Morris, Tex.Com.App., 250 S.W. 1017.

Further, appellant’s motion to strike said testimony was directed to the testimony in its entirety. Certain portions of the witness’ testimony were clearly competent and admissible and appellant having failed to point out to the court those portions which were objectionable and to move that they be stricken, it was proper for the court to refuse to strike said testimony.

The rule is well settled in this state that when objection is made to the introduction of evidence or when a motion has been made to strike evidence that has been introduced, some of which is admissible and some not, there is no error in admitting said evidence or refusing to strike said testimony when the objecting party does not specify the objectionable portions thereof. Texas & P. Ry. Co. v. Hall, 31 Tex.Civ.App. 464, 72 S.W. 1052; Durham v. Wichita Mill & Elevator Co., Tex.Civ.App., 202 S.W. 138; Texas Employer’s Ins. Ass’n v. Neatherlin, Tex.Civ.App., 31 S.W.2d 673, affirmed Tex.Com.App., 48 S.W.2d 967.

For the reasons above set forth and in view of the authorities cited in support thereof, we think that the ruling of the trial court in refusing appellant’s motion to strike the testimony of the witness Jungman in its entirety and in refusing to instruct the jury to disregard said testimony should be sustained.

Appellant contends that the finding of the jury as to the value of said two lots is without sufficient evidence to support it and is against the great weight and preponderance of the evidence.

We cannot agree with this contention. While the testimony of the witnesses covers a wide range of values, there was ample evidence before the jury to support its finding as to the value of the two lots in question.

The rule is well established in this state that an appellate court will not disturb the findings of a jury on conflicting evidence where there is some evidence to support their verdict, unless the verdict is so overwhelmingly against it as .to shock the conscience or show clearly that the conclusion reached was wrong or was the result of some passion, prejudice or improper motive. Dallas & W. Ry. Co. v. Kinnard, Tex.Sup., 18 S.W. 1062; Massie v. City of Floydada, Tex.Civ.App., 112 S.W.2d 243; El Paso Electric Co. v. Whitenack, Tex.Com.App., 1 S.W.2d 594; Commercial Casualty Ins. Co., Inc., v. Hamrick, Tex.Civ.App., 60 S.W.2d 247, affirmed, Tex.Com.App., 94 S.W.2d 421; Phipps v. American National Ins. Co., Tex.Civ.App., 116 S.W.2d 800.

We have fully considered each of the propositions presented in appellant’s bri'ef. ■ They show no error in the record which requires a reversal of the case. We are of the opinion that none of them should be sustained and that the judgment of the trial court should be affirmed.

Affirmed.


text:
    LINN v. NORED.
    No. 8819.
    Court of Civil Appeals of Texas. Austin.
    Oct. 25, 1939.
    Rehearing Denied Nov. 22, 1939.

      N. C. Walker, of San Saba, for appellant.
    Eskridge & Groce, of San Antonio, for appellee.
   BLAIR, Justice.

Appellant, William V. Linn, sued appel-lee, Gene Nored, for damages for personal injuries sustained when appellee drove his automobile in which appellant was riding into the rear end of a trailer attached to a truck, which was being operated on the same highway at a slow rate of speed, and traveling in the same direction of the automobile at the time of the accident. At the conclusion of the evidence the court instructed a verdict for appellee; hence this appeal.

The decision in the case turns upon the question of whether appellant was the guest of appellee within the meaning of the provisions of Art. 6701b, Vernon’s Ann. Civ.St., which reads: “No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.”

Appellant alleged that he was not the guest of.appellee because just prior to entering the automobile of appellee he had drunk a large amount of intoxicating liquor which caused him to lose control of his faculties and that he did not know or understand what he was doing; and that without his knowledge or consent appellee took him in his automobile and started on the trip from San Saba to Fort Worth; that the transportation was without consideration; and that! while proceeding along the highway, appellee, due to the several specific acts of negligence alleged, ran his automobile into the rear end of the trailer, resulting in the serious injuries to appellant. Appellant further alleged that appellee was reckless, careless, and grossly negligent with respect to each of the specific negligent acts charged against him.

The facts in the case are simple, and in the main are not controverted. They show that appellant and appellee had known each other for several years prior to the occurrence of the accident in question; that they had done business together, and had made a number of trips from San Saba to Fort Worth, both in appellee’s automobile and in trucks. On the day of the accident, appellant and appellee had loaded some cattle in the morning and had returned to San Saba about 10 o’clock; and about the middle of the afternoon they loaded more •cattle. During the day appellant had not ■eaten anything, but had been drinking intoxicating liquors, particularly in the afternoon preceding the departure for Fort .Worth. Appellee invited appellant to go with him to Fort Worth, where each of the parties had friends, and where they had gone together on numerous other occasions. Appellant was not to pay anything for the transportation from San Saba to Fort Worth. It is undisputed' that at or near the time they started to Fort Worth appellant was able to walk; that he got in the automobile on his own “power,” and that he carried on conversations with others, and discussed business matters, which would not indicate that his mind had become a complete blank. He claimed to have fallen asleep shortly after he got in the car, and was not awakened until just a moment prior to the collision, although the parties had traveled some 122 miles at the time. While this evidence was conflicting as to whether appellant was so drunk' that he did not know what he was doing when he entered the automobile and started the trip, the trial court concluded that if he were he was nevertheless a guest within the contemplation of the statute regarding liability of the owner of a motór vehicle for injury to a guest. We sustain this conclusion of the trial court.

The contention of appellant is predicated in the main upon the argument that only persons sui juris and therefore capable of making a contract can become a guest under the terms of our statute, and that in consequence minors, lunatics, and intoxicated persons cannot become guests, because they are incapable of making a binding contract. No case is found nor cited which deals with intoxicated guests, but several cases from other states which have similar guest statutes to ours hold that the relationship of host and guest is not created by contract; and a great weight of authority holds that a minor riding in an automobile without paying compensation therefor is a guest within the meaning of the several statutes construed, which are entirely similar to our statute.

In the case of Balian, by Next Friend, v. Jas. G. Ogassin, 277 Mass. 525, 179 N.E. 232, 78 A.L.R. 1021, the Supreme Court of Massachusetts held that a motorist’s gratuitous undertaking to transport another imposes no liability for ordinary negligence, even where such other person is a child of tender years; and that the age of the child riding as a guest in the automobile does not affect the degree of care of the operator, though it may affect the nature thereof. See 179 N.E. 232, 78 A.L.R. 1021; 82 A.L.R. 1365; Chaplowe v. Powsner, 119 Conn. 188, 175 A. 470, 95 A.L.R. 1177; Herzog v. Mittleman, 155 Or. 624, 65 P.2d 384, 109 A.L.R. 662; and cases cited.

It is quite generally held that a minor plaintiff’s tender years do not take the case out of the statute, because the age does not affect the degree of care required of the defendant, though it may affect the nature thereof. We need not consider what degree of care appellee owed appellant in the instant case; nor does any question arise as to whether he was an unwilling guest or nonassentive passenger, because there is no question raised that ap-pellee did not care for appellant in every respect, except as to the acts of negligence in driving his automobile. The assumption of appellant that the relationship of host and guest must arise out of a valid contract cannot be indulged in. Our guest statute clearly provides that the creation of the relationship is based upon the fact that no consideration is paid for the transportation ; that is, the relationship of host and guest arises where a guest is not “paying any consideration for his transportation.” It is fundamental that every contract must be supported by consideration; and since no consideration whatever passes under the guest statute, it necessarily follows that the legislature intended that the relationship of host and guest may be created without contract.

As used in the statute the term “guest” has its general and common understanding, and means that one is a guest who is the recipient of the voluntary hospitality of the owner or operator of the automobile.

In Chanson v. Morgan’s Louisiana & T. R. & S. S. Co., 18 La.App. 602, 136 So. 647, 649, it is stated that “an automobile guest is a person received and entertained in the automobile of another.”

It is clear under the evidence that appellant in the instant case was a guest in the automobile. of appellee under the common use and meaning of the term “guest.” He was there by invitation; he was welcome; he was not paying anything to appellee for the hospitality shown him; he was under no form of duress; and the primary reason for appellee’s offering the transportation was reciprocal hospitality and-pleasure. Our statute is an exact copy of the Connecticut statute. The courts of the state of Connecticut have uniformly held that the relationship of host and guest is not created by contract, and is created in a case of one’s riding as a mere recipient of hospitality, and is reciprocal as between neighbors and intimate friends. Fly v. Swink, 17 Tenn.App. 627, 69 S.W.2d 902; Aycock v. Green, Tex.Civ.App., 94 S.W.2d 894; Napier v. Mooneyhan, Tex.Civ.App., 94 S.W.2d 564; Chaplowe v. Powsner, 119 Conn. 188, 175 A. 470, 471, 95 A.L.R. 1177; Audia v. De-Angelis, 121 Conn. 336, 185 A. 78; Flynn v. Lewis, 231 Mass. 550, 121 N.E. 493, 2 A.L.R. 896.

Manifestly our statute makes no distinction between a drunk and sober person, or between minors and adults, or sane and insane persons; and since the term “guest” is used in its general sense, we are of the view that it should apply to a person under the influence of intoxicating liquor, no question of duress arising. The fact that one is intoxicated may produce circumstances which may affect the nature of the care required, but it does not affect the degree of responsibility fixed by the statute. The standard remains the same in every case; that is, that the host is not liable for injury to the guest, except where caused by his heedless or his reckless disregard of the rights of others; or, as our courts have construed those terms, where he is guilty of gross negligence as that term has been defined by our courts. Texas Pacific Coal & Oil Co. v. Robertson, 125 Tex. 4, 79 S.W.2d 830, 98 A.L.R. 262. And before one may recover under the guest statute he must show that the host’s “heedlessness or reckless disregard of the rights of others” was such as to show the entire want of care, sufficient to raise the belief or presumption that the act of negligence complained of was the result of conscious indifference to rights, welfare, safety of the person affected, or such a persistent course of action as will constitute gross negligence. Napier v. Mooneyhan, Tex.Civ.App., 94 S.W.2d 564; Campbell v. Paschall, 132 Com.App. 226, 121 S.W.2d 593; Patterson v. Tomlinson, Tex.Civ.App., 118 S.W.2d 645, writ refused; Vernon’s Ann. Civ.St. art. 6701b, and cases cited.

At the conclusion of the evidence, the trial court sustained the motion of appellee that the evidence did not raise the question of gross negligence or of reckless and heedless disregard of the rights of appellant within the meaning of the statute, and instructed a verdict for appellee. Appellant contends that at least a jury question was raised as to whether appellee was heedless or reckless in the operation of his car, or was grossly negligent in the manner of its operation at the time of the accident. We do not sustain this contention. The three specific acts of the heedless or reckless disregard of appellant’s rights and gross negligence were (1) that appellee operated the automobile at a high, reckless, and careless rate of speed at the time of the collision; (2) that he failed to keep a proper lookout to have seen the trailer in time to have avoided the collision by stopping the automobile; and (3) that he failed to turn to the left so as not to collide with the rear end of the trailer. These questions are all so closely related that we will discuss them as one.

Appellee testified that it was raining; that his windshield wiper was being operated; that, of course, his vision was somewhat impaired; that he was operating his car at from 40 to 45 miles per hour; that he did not see the trailer until within about 40 or 50 feet.of it; and that because of the slickness of the road he did not apply his brakes and did not swerve his car either to the right or left for fear of skidding and turning over. The impact of the collision knocked his front fenders off and turned the radiator back over the motor and knocked the hood off, and slightly bent the frame of the car, damaging it to the extent that it would take from $200 to $225 to repair it. The accident occurred about 8:30 or 9 o'clock; it was dark and visibility was not as far as it would have been had it not been raining. The truck and trailer were being operated without a tail light, or with very dim lights, and was being driven very slowly because the lights had “shorted” out. The trailer was being drawn at from 5 to 10 miles per hour, on the right-hand side of the road. Appellee stated that he did not see it in time to stop his car, and did not attempt to swerve his car either way in order to pass it, because of fear of skidding and turning over. There was no evidence by any other witness as to the speed in which appellee was operating his car, and the only other circumstance was the fact that the impact tore the two front fenders and hood off the car and bent the radiator baclo over the motor. A witness testified that in his judgment, if the automobile had been going faster than 45 miles an hour, the collision would have done much more damage to it. This is all the evidence on the issue of speed. It is also all the evidence on the issue of whether appellant kept a proper lookout and whether he was negligent in failing to swerve his car either to the right or left in order to avoid the collision. This evidence does not show heedless and reckless disregard of the rights of appellant by appellee; nor does it show gross negligence. From this evidence the ordinary reasonable mind could not conclude that appellee was guilty of anything more than ordinary negligence in either driving his car at the rate ‘of speed he was at the time of the accident, or in failing to keep a 'proper lookout for the car in the road ahead of him, or to swerve his car to the left in order to avoid colliding with the rear end of the trailer.

The cases have construed our guest statute with regard to the liability of the host for operating his automobile at high and excessive rate of speed, and have held that the mere fact that an automobile was operated at a high and excessive rate of speed only raised the issue of ordinary negligence. Crosby v. Strain, Tex.Civ.App., 99 S.W.2d 659. They have also held that thoughtlessness, inadvertence, or error in judgment did not constitute heedless nor reckless disregard of the rights of others within the meaning of the statute; and there must be something of a continued or persistent course of action in order to constitute heedless and reckless disregard of the rights of others or gross negligence. Pfeiffer v. Green, Tex.Civ.App., 102 S.W.2d 1077; Aycock v. Green, Tex.Civ.App., 94 S.W.2d 894; Glassman v. Feldman, Tex.Civ.App., 106 S.W.2d 721; Hamilton v. Perry, Tex.Civ.App., 109 S.W.2d 1142; Vernon's Ann.Civ.St. art. 6701b, and cases there cited.

The judgment of the trial court will be affirmed.

Affirmed.


author: ALEXANDER, Justice.

text:
    FIRST NAT. BANK OF MARLIN v. DUPUY et al.
    No. 2136.
    Court of Civil Appeals of Texas. Waco.
    Oct. 12, 1939.
    Rehearing Denied Nov. 23, 1939.

      Robt. D. Peterson, of Marlin, and J. W. Spivey, of Waco, for plaintiff in error.
    E. M. Dodson, of Marlin, and Geo. E. Shelley, of Austin, for defendants in error.
   ALEXANDER, Justice.

H. A. Dupuy was the tax assessor and collector for the city of Marlin and also the Marlin Independent School District for three terms of two years each, the last term ending April 15, 1936. He was entitled to a commission of 2% of the taxes so assessed by him for his services. On March 30, 1936, he borrowed money from the bank and as security therefor gave to the bank an assignment of all fees and commissions due him by said taxing units for assessing the 1936 taxes. Prior to making the loan, the bank secured a written' acceptance of such assignments, signed by the mayor of the city of Marlin and attested by the city secretary and the chairman of the board of trustees of the Marlin Independent School District. The bank sued Du-puy to recover on his note and the taxing units to recover on said written assignments and acceptances. The taxing units denied the authority of the mayor and the chairman of the board of school trustees to bind the taxing units by their acceptance of said assignments and alleged that Dupuy was indebted to said taxing units for taxes collected and misappropriated- by him in amounts in excess of the fees due him, and that by reason thereof they were not liable to the bank on said assignments. A trial before the court without a jury resulted in judgment for the bank against Dupuy on the note hut in favor of the taxing units on the assignments. The bank has appealed.

The first material question to be determined is the validity or effect of the acceptances of the assignments by the mayor and chairman of the board of school trustees. There is no contention that the city council or board of trustees ever formally or otherwise authorized or ratified the acts of the mayor or chairman of the board of trustees in accepting said assignments. The affairs of a municipality are usually vested in a city council or other governing board and in order to bind such

municipality by contract, it is necessary that the contract be authorized or ratified by the administrative board as a body and not merely by the mayor or other individual member thereof. 34 Tex.Jur. 457; 30 Tex.Jur. 190, 264, 323; City of Floydada v. Gilliam, Tex.Civ.App., 111 S.W.2d 761; King v. Guerra, Tex.Civ.App., 1 S.W.2d 373; City of Denison v. Smith, Tex.Civ.App., 260 S.W. 207; Indiana Road Mach. Co. v. City of Sulphur Springs, Tex.Civ.App., 63 S.W. 908; Penn v. City of Laredo, Tex.Civ.App., 26 S.W. 636. The same rule applies to schools and school districts. 37 Tex.Jur. 944; Foster v. City of Waco, 113 Tex. 352, 255 S.W. 1104; Moore v. Leonard Independent School Dist., Tex.Civ.App., 74 S.W. 324; Elgin-Butler Brick & Tile Co. v. Hillsboro Independent School Dist., Tex.Civ.App., 205 S.W. 942. Since the purported contracts of acceptance were approved only by the mayor and chairman of the board of school trustees and not by the city council and board of trustees, they were hot binding on the city nor the school district.

The bank was charged by law with notice of the limited authority of the mayor and chairman of the board of school trustees and cannot rely thereon as a basis of estoppel as against the city or the school district. 34 Tex.Jur. 442; Parker v. State, Tex.Civ.App., 68 S.W.2d 637; Zeigler v. Federal Land Bank of Houston, Tex.Civ.App., 86 S.W.2d 864; Ft. Worth Cavalry Club, Inc., v. Sheppard, 125 Tex. 339, 83 S.W.2d 660.

From what has been said, it is apparent that the purported acceptances were invalid. Since the purported acceptances were invalid, the bank stands in the same position as it would if it had a mere assignment from Dupuy. As such as-signee, the bank acquired no better right against the taxing units than Dupuy himself had. 5 Tex.Jur. 43. The relation be-rween Dupuy and said taxing units, was contractual, the being under obligation to )pay to them all taxes collected by him. He could not demand of the taxing units pa3 for his services until he had accounted for the taxes received by him. The evidence establishes without dispute that Dupuy at some time during his service as collector for said taxing units misappropriated and failed to account for funds belonging to said taxing units in amounts in excess of his unpaid commissions. It is not material whether these defalcations occurred during his" first, second or third term of office, for his claim for fees earned, during his last term of office stand on no higher basis. than do the claims of the taxing units for the funds previously misappropriated by him, and the taxing units would have, a right to offset their claims, for ...such defalcations against his__daim for fees earned, during hisTasFor any otheFterm of office, 5 Tex. Jur. 41, 42. "Since the“bank acquired no greater right than Dupuy himself had, the taxing units could make a like offset as against the bank as Dupuy’s assignee. 5 Tex.Jur. 43; Kirkpatrick v. Great American Ins. Co., Tex.Civ.App., 299 S.W. 943.

It is urged that the claim for funds misappropriated by Dupuy during his first and second terms was barred by limitation and that the taxing units had no right to offset same against Dupuy’s commission earned during his last term. The record .does not make it clear that any of the funds misappropriat’ed”'weré so misap-propriated prior to Dupuy’s last term, and the presumption would be in favor of an implied finding that all such misappropriations occurred during the last term. Moreover, there was ample evidence to support an implied finding by the trial court that Dupuy fraudulently concealed his misappropriation in such manner that the taxing ⅛⅛ could not discover the' shortage until" after his last term of office had ex pired. Under “these “circumstances, limita tion would not begin to run until after discovery of the fraud. 20 Tex.Jur. 112, secs. 75-76; Glenn v. Steele, Tex.Sup., 61 S.W.2d 810; Trinity-Universal Ins. Co. v. Maxwell, Tex.Civ.App., 101 S.W.2d 606; Owen v. King, Tex.Civ.App., 84 S.W.2d 743; Swindall v. Van School Dist. No. 53, Tex.Civ.App., 37 S.W.2d 1094.

We have carefully considered all of plaintiff in error’s assignments of error and find no reversible error.

The judgment of the trial court is affirmed.