text:
    WILSON v. KING et al.
    No. 14166.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 24, 1941.
    Rehearing Denied March 7, 1941.
    James R. Wiley, of Denton, for appellant.
    A. Q. Mustain, of Aubrey, for appellees.
   BROWN, Justice.

L. Z. Wilson,, appellant, is the only surviving heir of his parents, F. M. and M. E. Wilson.

On January 27, 1882, one E. D. Ryan obtained title to a tract of 169 acres out of the Martha McBride Survey, in Denton County. The beginning point of the tract, as surveyed, shows to be “at a rock on the north boundary line of the original survey 750⅜ varas west of the original northeast corner of the survey”, and the field notes of the survey disclose that the first call runs west with the north boundary line of the original survey, crossing Big Elm Creek 1065 varas to a stake on the north boundary line, and the second call runs south 903 varas to a stake, the third call runs east 880 varas to the center of said creek and further in all 1050 varas to a stake, and the fourth call runs north 903 varas to the place of beginning.

There is no controversy about this description being good.

Ryan and wife, on January 30, 1882, .conveyed a tract of 57¾ acres out of said 169-acre tract to appellant’s father, and the deed discloses that this small tract was meant to be all of the 169-acre tract that lies east of Big Elm Creek. The description is by metes and bounds and same is a good •description.

Appellant’s father, on August 18, 1882, conveyed a 10-acre tract out of the 57% acres to J. L. Wilson, who, in turn, conveyed same to G. B. Marshall, who, in turn, conveyed said 10 acres to appellant’s father in August, 1900, long prior to the father’s demise.

On March 6, 1926, appellant, being the •owner of the entire 57% acres, by reason of having inherited the same, executed a •deed of trust to Schweer, Trustee, for First National Bank of Denton, Texas, to secure certain indebtedness owing to the bank, and the land conveyed is described as: “Being 57% acres out of the Martha McBride Survey, lying and situated on the waters of Big Elm Creek in Denton County, Texas, and described as follows, to-wit: Beginning at a rock on the north B. line •of the said Martha McBride Survey 750½ varas west of the N. E. corner of said McBride Survey and on the west side of a lake 15 varas from the bank of the lake from which a double Elm both prongs marked X bears N. 22 deg: E. 7% vrs. and a twin Elm both marked X brs. N. <35%'E. 14% vrs.; Thence west with the N. B. line of the. said McBride Survey to the center of the channel of said Big Elm Creek; Thence south with the meanderings of the center of the channel of said creek to the S. 'B. line of 169 acres of land deeded to E. D. Ryan by G. W. Barnett and wife; Thence east along the S. B. line of said 169 acres to the S. E. corner, same being same 57% acres deeded to G. W. Barnett and wife, L. H. Barnett, by E. D. Ryan on the 27th day of January, 1882, reference to which deed is hereby made.”

It will be observed that the fourth and “closing” call was inadvertently left out of the instrument.

Appellant being in arrears in the summer of 1927, the said bank, owner and holder of the debt and lien, brought suit thereon, and appellant was served with citation in due season, and on November 1, 1927, appellant not having appeared, a default judgment for the debt and foreclosing the lien was rendered.

This judgment correctly describes the 57% acres and the fourth and “closing” call appears in the description as is disclosed by the judgment.

An order of sale, containing the said correct description, was issued and executed by the sheriff of Denton County and the said tract of land was sold at public vendue on April 2, 1929, to F. W. Hayden, and the sheriff on that day executed a deed to Hayden, in which a correct description of the 57% acres appears.

On November 30, 1935, Hayden conveyed the tract of land to W. W. 'King, Charlie King and Ri L. King.

We gather from the record that appellant Wilson, filed the instant suit on November 8, 1938, in which he sues the three Kings named above and alleges that he is the only heir of his said parents, that they owned the said 57% acres, which he describes by metes and bounds, and he then details the sale of the 10-acre tract in controversy, as shown above, and the repurchase of same by his father. I-Ie then alleges that he is the owner of the said 10-acre tract and is entitled to its possession. His suit is in trespass to try title.

The defendants answered formally, as is required, and pleaded ownership of the land through the several conveyances shown, as well as pleas of limitation of 3, 5, 10 and 25 years.

Next, the defendants pleaded the execution by appellant of the aforesaid deed of trust, the suit brought thereon, the judgment of debt and foreclosure, the sale thereunder, the purchase by Hayden, the sheriff’s deed to Hayden and Hayden’s conveyance to them, and prayed for appropriate relief.

Defendants having so pleaded, the plaintiff — appellant—admitted the execution of the deed of trust but alleged that he only intended by such instrument to give a lien upon 47% acres of the said 57% acres, and that Schweer (the Trustee in such instrument) being an agent and officer of the said bank, in whom plaintiff reposed full confidence, and to whom the drawing of the instrument was left, fraudulently inserted the description to cover the entire 57% acres, instead of only 47% acres, as the plaintiff instructed him to do.

Defendants, by trial amendment, denied any fraud on the part of Schweer; alleged that the plaintiff renewed and extended the debt and lien in writing and that such instrument refers to the 57% acres conveyed to secure the debt; and they likewise pleaded the statute of limitations of 4 years.

The plaintiff testified, in substance, as follows : That he made the mortgage to the Bank, that he intended to give a lien on only 47% acres; that he took the old deed from Ryan and wife to his father, which describes the 57% acres, and the deed from his father and mother to J. L. Wilson, which describes the 10 acres in controversy, to Schweer for the purpose of having Schweer draw the deed of trust; that he did not know that Schweer had failed to except the 10 acres when he signed the deed of trust, that he would not have executed same had he known that it claimed to cover the 10 acres; that Schweer told him it was for 47% acres; that the land was sold by the sheriff; that he told Mr. Hayden it was going to be sold and plaintiff asked Hayden to buy it in; that he told Hayden he had 10 acres “up next to the road”, and that he showed Hayden the line between his 10 acres on the north and the 47% acres on the south; also that plaintiff was present at the sheriff’s sale.

The cause was tried to a jury and the special, issues submitted'were answered as follows: (1) that plaintiff intended to include the 10 acres in controversy in the deed of trust he executed to said bank, (2) that when Hayden purchased the land at the sheriff’s sale he “had notice that L. Z. Wilson claimed and held title to the 10 acres of land described in plaintiff’s petition”, (3) that neither King Brothers nor Hayden, nor all of them, have had adverse possession of the 10 acres for 3 years before November 8, 1938, (4) such parties have not cultivated, used and enjoyed the tract for such period of time, (5) and have not had 5 years’ adverse possession prior to said date, (6) and they have not cultivated, used and enjoyed the tract for 5 years prior to said date. Issues 7 and S were not answered, as they were conditioned upon prior answers.

Plaintiff and defendants moved for judgment, and the trial court rendered judgment for the defendants. The appeal follows.

Appellant bottoms his right to a judgment solely upon the faulty description of the tract of land as same was written into the deed of trust. All of his assignments of error raise this sole issue, and we quote the last assigned error: “(g) The description of the land in the deed of trust, citation and plaintiff’s petition in cause No. 10,292 (the foreclosure suit), is fatally defective, because the field notes do not close, and the evidence failed to show a deed to G. W. Barnett and wife, L. H. Barnett, by E. D. Ryan, on the 27th day of January, 1882, and without such showing the reference to that deed was insufficient to complete the description of the land.”

Since this suit constitutes an attack by the plaintiff on a judgment rendered against him in cause No. 10,292, we take it that this assignment of error undertakes to assert that upon the trial of the suit for debt and foreclosure of the deed of trust lien, this deed from Ryan to the Barnetts was not introduced in evidence. It was in evidence in the instant suit.

There is nothing in the record to indicate what was and what was not in evidence before the trial court. The judgment shows upon its face that the trial court heard evidence, and the trial court specifically found that the beneficiary bank had a deed of trust lien on the 57% acres, which tract is correctly described in the judgment, in the order of sale and in the sheriff’s deed.

We do not believe that the authorities relied upon by appellant are applicable to the issue before us.

His authorities may be divided into two classes: (1) such as Farmers Royalty Holding Co. v. Jeffus, Tex.Civ.App., 94 S.W.2d 255, where the conveyance when executed contained no description and made no effort to describe any land — just a conveyance delivered when the description was a blank; and (2) such as Alfalfa Lumber Co. v. Mudgett, Tex.Civ.App., 199 S.W. 337, 338, wherein the instrument purported to convey Lot 5, when the grantor did not own such lot but did own Lot 6.

No such situation is presented to us. Here we have appellant executing a deed of trust which, on its face, purports to convey a tract of 57% acres actually owned by appellant, and the instrument discloses nothing amiss excepting the fact that the fourth and closing call is omitted in the description.

In the suit for debt and foreclosure of the lien the plaintiff bank alleged that Wilson gave it a lien on “57% acres out of the Martha McBride Survey lying and situated on the waters of Big Elm Creek in Denton County, Texas, and described as follows, to-witHere follows the description which omits the last call.

In the prayer for judgment for its debt and foreclosure of its said lien on the said lands, the bank ends the pleading, “for such other and further relief, both special and general, at law or in equity, to which the plaintiff may be entitled.”

In the Alfalfa Lumber Co. case, supra, the opinion holds: “While the defendant in this case does not pray for reformation of the instruments necessary to establish its title, nor state the facts upon which such relief might be given in the form of a cross-action, yet such facts are specially pleaded in defense, and under the prayer for general relief we should, we think, regard such pleading as sufficient to authorize the reformation of such instruments if defendant would be otherwise entitled to such relief. Aetna Ins. Co. v. Brannon, 99 Tex. 391, 89 S.W. 1057, 2 L.R.A.(N.S.) 548, 13 Ann. Cas. 1020.”

Under the authority of the Supreme Court case just mentioned, the trial court, in the foreclosure suit, seems to have been warranted in rendering the judgment in which the land is correctly described.

But there seems to be another good and sufficient reason, in equity, why appellant cannot recover the 10 acres in controversy.

He admits, unqualifiedly, that he intended to convey all of the 57% acres except the ten-acre tract, for which he sues. Stating it the other way, that he did, by his deed of trust, intend to convey.47% acres out of that tract but that he did not intend to include the other 10 acres. In other words, he admits that the deed of trust created a good and valid lien on the 47% acres, but denies that it was ever intended to cover the said 10 acres.

When appellant thus admits, by his pleadings and his testimony, that in executing the deed of trust, with the faulty description, he in good faith intended to cover and only to cover 47% acres of the tract, does he not then confine his contention solely to the issue of his intention, when he executed the lien? We believe so, and the jury has found that he intended to give a lien on the entire 57% acres.

No assignment of error is presented that attacks the verdict. Appellant simply contends that such finding by the jury is immaterial.

We do not think the verdict immaterial, and so hold.

As we view this case, appellant is making a collateral attack upon the judgment, on the theory that the judgment is void. We do not think that the judgment of debt and foreclosure is void. At best, this judgment, rendered by a court that had potential jurisdiction of the subject matter, and which is valid, and binding, on its face, is merely voidable in a proper attack.

One of the latest expressions on the subject is found in the opinion written by Chief Justice Bond, in the case of Walton v. Stinson et al., Tex.Civ.App., 140 S.W.2d 497, in which a writ was refused. This opinion reiterates the rule that in order for a judgment to' be subject to a collateral attack, it must be absolutely void; and if it is merely voidable, it must be assailed by a direct attack. Another late case is Carroll et al. v. McLeod et al., 133 Tex. 571, 130 S.W.24 277 (Commission of Appeals opinion adopted by Supreme Court).

A well-considered opinion, in the case of Battle v. Wolfe et al., Tex.Civ. App., 283 S.W. 1073, writ refused, reviews many authorities and sustains our conclusions as to the validity of a deed of trust which contains a description that is merely defective, and our further conclusion that, where the objection to the instrument is merely that the description is indefinite, the mortgagor will not be heard to say that he conveyed the property by a description so loose or indefinite that no title could pass upon a foreclosure sale of the property. See 1 Jones on Mortgages, para. 65; Tex. Juri., vol. 29, para. 35, pp. 833-835.

We are of opinion that the mistake in failing to'include the closing call, in describing the land, did not and could not deceive the mortgagor. In fact, his contention in the instant suit is that he was deceived only to the extent that the description purported to include the 10 acres for which he sues and that he never intended to include this tract in the deed of trust. The jury has found against him on such issue.

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


source: Caselaw Access Project

author: BROWN,' Justice.

license: Public Domain

text:
    WESTERN CASUALTY CO. v. DeLEON.
    No. 14170.
    Court of Civil Appeals of Tesas. Fort Worth.
    Feb. 14, 1941.
    Rehearing Denied March 14, 1941.

      Cantey, Hanger, McMahon, McKnight & Johnson and F. T. Denny, all of Fort Worth, for appellant.
    Graves & Collins and 'Garland Flowers, all of Fort Worth, for appellee.
   BROWN,' Justice.

This is a Workmen’s Compensation case, in which Floyd DeLeon is the plaintiff and 'Western Casualty Company, defendant, is the insurance carrier.

DeLeon, while working for Armour & Company, at its Fort Worth plant, claims that he fell down a flight of steps while working at the plant, on December 12th, 1935, and was injured.

On January 6th, 1936, he gave written notice of his injury and made his claim to the Industrial Accident Board, in which we find the following: “The place of injury was Armour plant. Cause of injury: slipped and fell down stair. State part of body injured: ruptured. Nature of injury, as near as possible: -.”

The quoted portions appear in the notice of injury.

The following appear in the claim before the Board: “The place of injury was Armour plant. Cause of injury: slipped and fell on stair ascending from fifth to fourth floor. State part of body injured and nature and extent of injury: ruptured.”

On February 26th, 1936, the Board made its award in the usual language, finding that the claimant had sustained an injury causing a hernia and ordering the claimant to-submit to an operation at the hands of a surgeon selected by the Board.

On March 16th, 1936, the attorney for DeLeon, in connection with DeLeon’s claim, wrote to the Board, stating, among other matters: “It is the contention of the employee, DeLeon, that on December 12th, 1935, he suffered accidental injury Jn the course of his employment, resulting in original hernia, and also received injuries to his back, totally incapacitating him from performing any part of his labor, and that as a result of his injury he is entitled to compensation at the rate of $15.09 per week beginning December 12th, 1935, and that he is also entitled to relief from the hernia by radical operation to be performed at the expense of the insurer and that he is entitled to compensation of not less than 26 weeks, beginning the date of the operation and duration of which to be determined by the outcome of the operation.”

This letter further requested the Board to order the insurer to pay the accrued compensation before the claimant presents himself to the surgeon for the operation ordered,, “so that the employee will get the benefit of his compensation and then get the benefit of surgical relief.”

' The claimant did not report to the surgeon selected by the Board but sought his own physician and was operated on in April, 1936. It is undisputed that the operation was successful.

On May 31st, 1937, DeLeon filed an amended claim with the Board, in which he gave as the nature and extent of his injury: “Hernia and an injury to back, head, legs, side and right shoulder and the body generally, am totally and permanently disabled and ask for compensation for four hundred and one weeks at 60% of average weekly wages.”

On July 6th, 1938, the Board made its award, finding the claimant suffered a hernia, that he submitted to a surgical operation on April 9th, 1936, and was cured, and awarding him compensation for 26 weeks, ordering the insurer to pay the hospital bill and the surgeon’s bill. From this award the claimant has appealed, and his pleading sets forth many injuries and results of injuries. In other words, he has definitely enlarged his claim to cover: “the arteries, blood vessels, nerves, muscles, ligaments, cartileges, tendons and tissues in and around his head, shoulder, back and spine were wrenched, torn, lacerated, bruised and otherwise injured; a s.evere strain to and a separation of the sacro-iliac joints; a severe strain and injury to his back in the lumbar region; a shock to the nervous system ; as a result of said accident and injuries he suffers nervousness, weakness, sleepness (sleeplessness?), loss of weight, loss of appetite; inability to stand erectly, limited motion of his body from the waist, a gradual withering away and weakness of his leg; inability to walk any distance without the aid of a walking cane, severe pain in his back on exertion, headache, as a result of these injuries plaintiff has and will continue to suffer pain.”

He alleges total and permanent disability as a result.

The insurer denied under oath that the claim for the injuries sued for was filed with the Board within the time prescribed by law, and sought to confine the claimant to his claim for the hernia.

The cause was tried to a jury, and on the answers to special issues the trial court rendered judgment for claimant for total and permanent disability. The insurer has appealed, and presents fourteen propositions, supported by assignments of error.

We notice the second and third propositions first, and they urge that where the only claim for compensation filed within six months from date of injury was with reference to an injury described as a rupture, and two and one-half years later a claim was filed setting up for the first time injuries to the back, shoulder and body generally, such claim being filed long after the admitted successful operation of the hernia and long after full recovery therefrom, in the absence of pleading and proof of “good cause” for the delay in filing the claim for general injuries, the court was without jurisdiction of the subject matter of the suit.

The third proposition contends that a claim for compensation for general injuries filed two and one-half years after the date of the injury is not an amendment of or enlargement upon a claim filed for a hernia which had been successfully operated and cured long prior to the filing of the claim for general debility, but such was an original claim which is- required to be filed within 6 months.

We believe that the law-making body of Texas intended, when it enacted the Workmen’s Compensation Law (Vernon’s T.C.S., Arts. 8306 to 8309, inclusive, and amendments), that employees in this State should have a simple, effective and inexpensive method,of applying for relief when injured in the course of employment.

The Board set up to hear and determine all claims is and was intended to be a rather informal, quasi judicial body vested with much discretion and given wide latitude in arriving at the facts in each case. Because we so believe, we are loathe to hold a claimant to a rigid rule in making his claim.

In our opinion, it is the duty of the Board to discover the injuries at its hearings. The law does not contemplate that the injured employee must secure the services of an attorney before the Board. That he may do so does not lessen the duty of the Board to arrive at the facts. Traders & General Ins. Co. v. Huntsman, Tex.Civ.App., 125 S.W.2d 431, error dismissed, judgment correct.

Furthermore, we are of opinion that when a claim is filed in due season, it matters not how the injury may be described, it may be amended at any. time before the Board has finally disposed of the claim. Traders & General Ins. Co. v. Herndon, Tex.Civ.App., 95 S.W.2d 540, writ dismissed.

Furthermore, we are of opinion that a letter written to the Board, by the attorney for the claimant, setting forth the claims and contentions of the injured employee, asking a revision and amendment of the award, in this hernia case, is an amended claim and should be considered as such. Security Union Ins. Co. v. Cartwright, Tex.Civ.App. 33 S.W.2d 1088.

Furthermore, it is evident that the ruling and award of the Board requiring the employee to submit to the hernia operation was not a final award, but that it became the duty of the Board to make a final award after the operation and when the results were made known.

In our opinion, the Board had jurisdiction over the claim when the amended claim was filed and acted upon, as shown above. De Leon v. Western Casualty Co., Tex.Civ.App., 114 S.W.2d 274.

The first proposition asserts that the verdict is incomplete and can form no basis for a judgment because the jury failed to answer three special issues, namely, whether or not the claimant would suffer partial incapacity in the future, the number of weeks he will so suffer, and the percentage of incapacity;

We find no error. The jury found first that the claimant has suffered no partial incapacity, and it was not necessary for the three issues mentioned to be answered in order for the verdict to be complete.

The eighth proposition asserts that where it is alleged that disability is the collective result of enumerated injuries, the submission of such issues separately as a predicate for the recovery of compensation in such a way as to permit the awarding of compensation on either of the alleged injuries standing alone is erroneous.

The trial court submitted to the jury two separate and distinct injuries, supported by proof, and the jury found that each was received by the claimant, and then the court submitted this issue: “Do you find from a preponderance of the evidence that Floyd DeLeon, on the 12th day of December, 1935, was totally incapacitated, as that term is defined above, as a result of such injury, or injuries, if any injury or injuries you have found, in answer to the foregoing issues ?”

The two issues referred to were with respect to an injury to the lumbar region of the claimant’s back, and to the sacroiliac joints of his back.

We find no error in the manner of submission of the issue on total incapacity.

The ninth proposition, to the effect that the charge constitutes a dual submission and an undue emphasis of the issues of liability, presents no error.

In the 10th and 11th propositions it is urged that, in a compensation case, where the evidence discloses that one of the results of the injury was the development of a hernia, which was operated after about four months, and the evidence of any other injury was conflicting, and no recovery is sought for the hernia, the trial court should have expressly excluded from the jury’s consideration any disability that resulted from the hernia; and that where the trial court did not so limit the jury in the charge, there is error because it allowed the jury to award compensation for the hernia in the absence of pleadings and proof essential to such recovery.

We find no error here, because the claimant has sued for .total, permanent disability, and he is not asking to be compensated for the hernia. If it be true that he is totally and permanently disabled, as was found by the jury, on conflicting testimony, we see no reason why the claimant should be denied the privilege, of having his own surgeon perform the operation, and of. paying the surgeon and hospital charges, either out of his own funds or out of the compensation that he recovers.

As we view this record, the hernia was merely one of the results of the injuries received, and the claimant has asked no recovery on account of the hernia. He testified that the hernia was repaired; that he has fully recovered from it.

No objection was made to the testimony touching upon the hernia, the operation and the recovery. Both parties brought out these facts. The insurer wanted the facts in evidence for the purpose of showing that the only injury claimed by DeLeon before the Board, was bottomed on the hernia, and that any and all other claims are barred because not filed with the Board within the time required by the Workmen’s Compensation Statutes.

The evidence was presented on that theory and issue and no effort was made to have it limited.

We believe that, where the trial court submitted to the jury the issues touching upon the two injuries pleaded and sustained by proof and then inquired of the jury whether these injuries, or cither of them, resulted' in total and permanent disability of the claimant, it was not necessary for the court to instruct the jury not to consider .the testimony relating to the hernia in arriving at an answer to the issues touching the disability suffered by the claimant.

The charge appears to us to restrict and confine the jury to the injuries pleaded and submitted, and in view of the testimony that the claimant has entirely recovered from the hernia, we can see no error in the charge.

The other propositions will not be discussed as they do not, in our opinion, present any new questions .on material issues, and, after consideration, all assignments of error are overruled. Judgment affirmed.


author: BAUGH, Justice.

text:
    PYLAND et al. v. SAYERS.
    No. 8990; Motion No. 9521.
    Court of Civil Appeals of Texas. Austin.
    Dec. 31, 1940.
    Rehearing Denied Feb. 26, 1941.

      Tom Gambrell, of Lockhart, for appellant.
    T. C. Johnson, Jr., of San Marcos, for appellees.
   BAUGH, Justice.

Thomas G. Sayers, independent executor of the estate of Jessie A. Sayers, deceased, sued S. J. Pyland, his wife, Nellie A. Py-land, and two sons, S. S. and M. C. Py-land, upon a promissory note for $3,000, and to foreclose a vendor’s lien given to secure it on certain described property situated in San Marcos, Texas. The two sons denied liability on the note, and disclaimed any interest in the property; and S. J. Pyland and wife defended, among other things, on the ground that the property involved was, when the lien was created, and continuously thereafter had been, their business homestead; and that the lien asserted was valid only as to a half interest therein, and asked that foreclosure be limited to such half interest only. Trial was to the court without a jury and judgment rendered as prayed for, from which S. J. Pyland has appealed.

No complaint is made as to the personal judgment against Pyland for the debt involved, nor the foreclosure of the lien in so far as a half interest in the property is concerned. The only question raised relates to the other half interest. It is here contended that the lien asserted as to such half interest by appellee is void because it was attempted to be fixed upon a homestead interest of Pyland and wife in the property, and for a purpose not authorized by Sec. 50, Art. 16 of the Constitution, Vernon’s Ann.St., and Art. 3839, R.C.S. 1925.

The material facts involved are without substantial controversy. While appellee urges that the trial court could have found from the evidence that the Pylands had, subsequent to the transaction in question, abandoned whatever homestead rights they may have had in the property, our present consideration of the question presented is predicated upon a continuing homestead right; and the question of abandonment will be subsequently discussed. The facts and circumstances under which the controversy arose were briefly as follows:

In 1925, S. J. Pyland owned lots 4 and 5 in Block 16 of the City of San Marcos, the two fronting north on San Antonio Street a distance of 158½ feet and extending back 166⅜ feet, lot 4 on the east, being a corner lot, bordering upon Fredericks-burg Street. A business house, claimed by Pyland as his business homestead, fronted 100 feet on San Antonio Street, and extended back 100 feet, thus occupying all of the front of lot 5 and a part of the front of lot 4, leaving as vacant property the east 58½ feet of lot 4 on the street corner. There were then outstanding purchase money notes, aggregating $1,187.50 against lot 4, secured by a lien upon that lot. No indebtedness against lot 5 is shown to have existed at that time. On February 28, 1925, Pyland and wife sold and conveyed to T. Z. Williams an undivided one-half interest in both lots 4 and 5. The consideration for this conveyance was that Williams assume one-half of the $1,187.50 against lot 4, execute to Py-land a note for $3,000 secured by a vendor’s lien on the one-half interest conveyed to him, and a note for $2,648.34, secured by a lien inferior to that securing the $3,000 note. The $3,000 note was then by Pyland transferred to Jessie A. Sayers. In 1927 Pyland and Williams executed a partition deed, whereby there was set apart to Williams the vacant portion of lot 4, fronting 58½ feet on San Antonio Street, and extending back along Fred-ericksburg Street a distance of 140 feet; and to' Pyland all of the remainder of lots 4 and 5 upon which were situated all of the improvements. At that time there was outstanding against said property a total indebtedness of $6,835.84, as follows: $1,187.50 against lot 4, payment of one-half of which Williams had assumed when he bought the one-half interest from Py-land; the $3,000 note owned by Sayers; and the $2,648.34 note, one-half of which was owned by Mrs. Pyland as guardian of the estate of Homer Wimberly, and the other half by S. J. Pyland. The last two mentioned purchase money notes, aggregating $5,648.34, were owed by Williams and their payment secured by liens on his one-half interest in the entire property. In brief, Williams then owed, secured by liens on his one-half interest in the entire property, a total of $6,242.09. The net result, of the partition agreement was to reduce this indebtedness owed by Williams to $2,056.25 and to fix a lien on the 58½ feet by 140 feet set,apart to him. We are not here concerned with the question of whether this could be done without the consent of the holders of the notes, as that issue is not raised by them.

This partition deed also provided that in "consideration of the property.set apart to S. J. Pyland and wife, Pyland assumed the payment of the $3,000 note held by Sayers, and further that “it is expressly agreed and understood that the $3,000 note shall constitute a valid purchase money or vendor’s lien, upon and against the said property so set apart herein to the said S. J. Pyland and wife.”

It is not controverted that all of the parties acted in good faith, and that there was no intent to circumvent the homestead law. It is also the contention of appellee that in the partition whereby Pyland obtained the major portion of the property and all of the improvements, much greater in value than the portion set apart to Williams, in adjusting their equities and in equalizing the values of the property set aside to each, the indebtedness (the $3,000 note) assumed by Pyland should be treated as a vendor’s lien note, and that the lien should extend to all the property set apart to Pyland. That is, as between cotenants where a lien exists only against the moiety of one, and a partition is affected whereby the other assumes the outstanding debt, the conveyance to him thus creates a lien against the entire property so conveyed to him. If this be done with the consent of the holder of the indebtedness, and absent any homestead question, this contention would be correct. Such seems to be the recognized rule. See 43 Tex.Jur., § 265, p. 460; 47 C.J., § 29, p. 276; Ann. 93 A.L.R. 1268.- In none of these authorities, however, was a homestead question presented. And had none been here involved such rule would have been applicable. But manifestly, we think, such rule cannot create or fix an additional lien upon a homestead to secure a debt which it did not theretofore secure, except for the purposes authorized by the Constitution and the statute.

On the issue presented, we think it is immaterial, in so far as the Pylands’. homstead rights were concerned, how the partition between them and Williams was effectuated. It is now settled that they could hold and assert a homestead right in their one-half undivided interest in the property. Bielss v. Moeller, Tex.Civ.App., 83 S.W.2d 1098, 1101; Boone v. McBee, Tex.Civ.App., 280 S.W. 295; Thompson & Sons Lumber Co. v. Clifton, 132 Tex. 366, 124 S.W.2d 106; 22 Tex.Jur., § 167, p. 240. As such homestead it was exempt from any encumbrance save those authorized by law. The lien securing the Sayers’ note originally extended only to the one-half interest conveyed by Pyland to Williams. And when Pyland reacquired the interest of Williams in the portion set aside to Pyland, he merely assumed payment of an already existing debt secured by a lien to the extent of a one-half interest only. To hold that he could thus, by such assumption, enlarge that lien to cover his homestead interest, would result in creating an additional lien on his homestead to secure an existing indebtedness which it had not theretofore secured. It is now settled that to that extent such an asserted lien is void and unenforceable. Andrews v. Security Nat. Bank, 121 Tex. 409, 50 S.W.2d 253, 83 A.L.R. 44; 22 Tex. Jur., § 210, p. 300. If the attempted enlargement of the original lien were void, as it manifestly was, any renewal or extension of it would be equally ineffective.

Appellee urges in support of the trial court’s judgment, however, that the ' court could have ■ found that S. J. Pyland and wife, by the execution on May 10, 1937, of a deed to said property, conveying same to their sons, M. C.'and S. S. Pyland, on the recited condition that they pay off and discharge all indebtedness against said property, and the recording thereof by the grantors on May 2, 1938, they abandoned said property as their homestead. The un-contradicted testimony of S. J., S. S., and M. C. Pyland was, however, that neither of the boys lived in San Marcos; that they knew nothing of the execution of said deed until after this suit was filed; that it was never delivered to either of them; that, neither of them ever agreed to pay any of said debts, nor were they ever consulted-about them by their father. Appellee contends that since all of them were interested parties the trial court had a right to disbelieve their testimony and that without their testimony the registration of the deed constituted prima facie evidence of its delivery. 14 Tex.Jur., § 74, p. 838.

Such prima facie presumption is, however, rebuttable. Delivery of a conveyance, or its acceptance by a grantee, particularly where it imposes an obligation upon the grantee, is essential to make it effective as a conveyance. While the rule of evidence is well settled that the testimony of an interested witness is not conclusive on the fact issue involved, and may be disbelieved ; it is also true ■ that where testimony of such witnesses is uncontradicted, clear, positive, and unequivocal, and there is no evidence tending to impeach or discredit such testimony, it cannot be disregarded and a judgment rendered contrary to it. See Great Southern Life Ins. Co. v. Dorough, Tex.Civ.App., 100 S.W.2d 772, 776; Heiner v. Homeland Realty Co., Tex.Civ.App., 100 S.W.2d 793, 796, and numerous authorities cited in both cases. Also 17 Tex.Jur., § 418, p. 926. Especially is this true where there is evidence tending to corroborate such testimony. In the instant case the witness McKie testified that J. S. Pyland had at all times continuously occupied and used a part of said premises to conduct his business; and the deed itself recited that S. J. Pyland and-wife reserved the “exclusive management and control of said property during their lifetime.” Under these circumstances, the trial court was not authorized to hold that the purported deed and its registration constituted an abandonment by Pyland of said property as a homestead.

We are not prepared to say, however, that appellant was entitled to claim all of the property involved, as his business homestead. The record discloses that the entire business building fronted 100 feet on San Antonio Street; but that it was divided into two separate units, separated by a partition wall extending their entire length, the room to the west being 60x100 feet; and that on the east being 40x100 feet. There was also on the rear of lot 4, and back of the lot conveyed to Williams in the partition, a small residence which had been habitually leased by Pyland for revenue purposes, and not used in connection with his business. Also that in recent years he had used for his business purposes only the west 60xl00-foot room and had rented out to others the 40x100-foot room to the east thereof.

As to the portion of lot 4 on which the residence was located which was clearly severable from the property used as a business homestead, and not used as a part of the business homestead, nor in carrying on Pyland’s business, a homestead claim would not lie. Harston v. Langston, Tex.Civ.App., 292 S.W. 648, 649, writ refused. Whether or not the 40xl00-foot room was so constructed that it could be segregated from the 60xl00-foot room which latter room appellee contends constituted appellant’s business homestead, if any he had, as a separate and distinct building and which could be abandoned as a part of the business homestead, while the 60xl00-foot room continued to be used as such homestead, the record does not sufficiently disclose; and we express no opinion on that question.

For the reasons stated the judgment of the trial court must be reversed and the cause remanded for another trial.

Reversed and remanded.

On Appellee’s Motion for Rehearing.

In his motion for rehearing, in addition to his insistence that his lien, by virtue of the partition deed, extended to and covered all of lots 4 and 5, appellee urges: (1) That since the evidence showed that Pyland had abandoned any homestead claim to at least a part of lots 4 and 5, as to such abandoned portions the trial court’s judgment should be affirmed; and (2) that his cross-assignments of error, that the trial court erred in refusing to sustain his general demurrer and special exceptions setting up the insufficiency of Pyland’s pleas of homestead, should have been sustained.

By both pleading and proof in the court below appellee sought to establish and foreclose his lien on the entire property on two grounds: First, that his lien existed on the whole property under the facts pleaded, regardless of any homestead character of said property; and, second, that by the conveyance to their sons and the registration of that deed, S. J. Pyland and wife abandoned their entire homestead interest in said property. Nowhere do we find any pleading that the Pylands had abandoned a part of said property as their homestead by renting or non user thereof as such. While there was testimony from which the court could have found abandonment of a part thereof as homestead, his judgment was ’not based upon any such finding; and if sustainable as to part, the proof was not sufficiently clear and explicit as to such portion here claimed to have been abandoned, that this court could properly segregate it. Nor can we say, in view of the theory on which the case was tried below, that there was conclusive proof of abandonment to a definite portion of said property. See 22 Tex.Jur., § 77, p. 111.

Appellants’ plea of homestead was, we think, sufficient as against tlie exceptions made. In general, appellant pleaded that he was 64 years of age, with a wife and family; that he had for 30 years used and occupied these premises in conducting his business, describing it; that said property was adapted to that purpose; that he had no other place or way in which he could earn a livelihood; and that he had had during such period, and now has, no other place of business in San Marcos or elsewhere. Such allegations were, we think, sufficient allegations of facts to meet the rules of pleading of homestead exemption laid down in 22 Tex.Jur., § 18, p. 34. •

Appellee’s motion is therefore overruled.

Overruled.


author: STOKES, Justice.

text:
    MAYER v. JOHNSON et al.
    No. 5262.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 17, 1941.
    Rehearing Denied March 10, 1941.

      Fischer & Strickland, of Amarillo, for appellant.
    C. H. Heard, of Dallas, and D. H. Cul-ton and Morgan, Culton, Morgan & Britain, all of Amarillo,, for appellees.
   STOKES, Justice.

This suit was filed by appellant, Richard Mayer, a minor, acting by his mother and father, Ed R. Mayer, as next friends, against appellees, Montford T. Johnson, and his son, Montford T. Johnson, Jr., a minor, for damages arising from personal injuries received by appellant in an automobile accident which occurred November 25, 1937.

When appellant concluded the introduction of his testimony and rested his case, appellees presented to the court a motion for a peremptory instruction, which was granted, and judgment was entered that appellant take nothing by his suit. His motion for a new trial being overruled, appellant duly excepted, gave notice of appeal and has perfected an appeal to this court.

The record shows that the automobile which belonged to Montford T. Johnson was being operated by his son, Montford T. Johnson, Jr., and that appellant, together with six other young people, were occupying the same as guests of appellee, Montford T. Johnson, Jr. The young people were in attendance upon a social function at the club house of the Amarillo Country Club, located a short distance west of the city of Amarillo, and about midnight, during an intermission, they got into the automobile and drove to the Colonial Kitchen for some refreshments, the Colonial Kitchen being located in the city of Amarillo about a mile east of the club house. While partaking of the refreshments some other young people came to the Colonial Kitchen and conferred with some of the occupants of Johnson’s car, after which they left the Colonial Kitchen and proceeded , back in the direction of the club house. It seems that the occupants of the Johnson car thought the occupants of the ■other automobile were following them and, in a playful mood, Johnson, Jr., on his way back toward the club house, drove his car into a street leading in another direction, turned off the lights, turned the car around and stopped for the purpose, it seems, of dodging the other car. The Johnson car remained in this side street for some few minutes, with the lights off, and, thinking they had succeeded in dodging the other young people, Johnson turned the lights on and proceeded back to Tenth Street, the street which he had left when he drove into the side street, thence west on Tenth Street to Avondale Avenue. He turned- to the right on Avondale, crossed the railroad, and again turned off the lights of the car and proceeded several blocks on Avondale Avenue to Highway No. 66, some seven or eight blocks north of and parallel to Tenth Street. The point at which they reached Highway No. 66 was near the southwest corner of the Country Club grounds and several hundred yards west of the entrance to them. The testimony shows that some of the young people thought the driver would proceed east on Highway No. 66, enter the club grounds, and return to the club house, but instead, he made a slight jog to the left and entered a road which proceeded on north just outside and along the west line of the club grounds. While driving along this portion of the route Johnson, Jr., again extinguished the automobile lights, but upon being requested to turn them on and being reminded that the road was exceedingly rough, he turned them on again and proceeded north until he reached the northwest corner of the club grounds where he approached the Gem Lake road coming from the west and running east along the north side of the Country Club grounds. Here he stopped his car and then proceeded to enter the Gem Lake road, turned to the right, or east, and again extinguished the'lights of his automobile. Upon some complaint being made he remarked that he could not see but again turned on the lights and proceeded east on Gem Lake road for about a half mile where the road ended by' entering Western Avenue, a paved road .running north and south. On the east side of Western Avenue was an embankment against which the car plunged and the impact demolished the car and resulted in personal injuries to appellant, for which he seeks damages.

A number of assignments of error and propositions of law are presented and urged by appellant but, in the view we take of the case, the controlling issues are presented by the fourth and fifth propositions in which the contentions are made, first, that the court erred in instructing the jury to return a verdict in favor of Montford T. Johnson, the father, because there was abundant evidence to support a finding by the jury of negligence on the part of Montford T. Johnson, Jr., and, he having used the car with the knowledge and consent of Johnson, Sr., who knew his son, Johnson, Jr., was not a safe and careful driver, the father would be liable to appellant for the damages suffered by him as a result of the son’s negligence. Secondly, that the court erred in instructing the •jury to return a verdict in favor of Mont-ford T. Johnson, Jr., because there was abundant evidence to support a finding o°f gross negligence on his part in the man-to in which he operated the car which resulted in the accident and consequent injury and damage to appellant.

Since the decision of the Supreme Court in the case of Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, 1067, the rules governing the liability of a father who permits his children to operate the family automobile have been settled in this state. In the opinion in that case Judge Hickman, speaking for the court, quoted a text from 5 Am.Jur. Automobiles, Sec. 3S5, as follows: “An owner who lends his automobile to another, knowing that the latter is an incompetent, reckless, or careless driver, is liable for such person’s negligence; the owner’s liability in such cases is based upon his own negligence in intrusting the automobile to such a person. Intrusting the car to a minor child known to he a reckless and incompetent driver * * * constitutes an act of negligence for which the owner is liable.” The rule thus announced is approved by the court as a sound principle of law sustained by the authorities and the liability of Montfofd T. Johnson, Sr., must be measured by its provisions. The only evidence in the record tending to show that Johnson, Jr., was an incompetent, careless or reckless driver is contained in his own testimony. He was called as a witness by appellant and testified that he had been up before the cops for speeding once at Borger. He said he did not remember whether he had paid a fine on that occasion hut that he did not go to court. He said that he told his father about the incident and that he had the permission of his father to use the car the night the accident happened. We do not deem it necessary to go into an extended discussion of this phase of the case. The record does not show that the young man was actually violating the law at Borger on the occasion testified about by him. He merely stated that he had once been'“up before the cops” hut that he did not attend court in connection with the incident. Granting that he had been detained by the police at Borger or even that he had been charged with violating a traffic regulation of some kind and found guilty thereof, we do not think this one incident is sufficient to establish the fact that he was an incompetent, reckless or careless driver. It was shown that he had been driving the car for practically a year in and around Amarillo and that he had never had any other trouble or been charged or accused of recklessness, carelessness or incompetency in driving or operating ■ an automobile. Under the law as announced by the Supreme Court in the case above cited, Montford T. Johnson, Sr., could not be held liable for the consequences of the accident which caused the damage in this case unless it was shown that his son was an incompetent, reckless or careless driver, and that the father knew of his incompetency in that respect. The testimony falls far short of establishing these elements and' in so far as Johnson, Sr., is concerned, it is our conclusion that no cause of action was shown by the testimony. Appellant’s contention that the court erred in giving the peremptory instruction as to Johnson, Sr., will, therefore, be overruled.

Under the next contention presented by appellant it is asserted that there was abundant evidence to support an action for gross negligence on the part of Mont-ford T. Johnson, Jr., and that the court erred in giving the peremptory instruction as to him. The record shows that Johnson, Jr., was fourteen years of age in January, 1937, which was some nine months prior to the accident. He received from the State Highway Department the day after he became fourteen years of age a license to operate an automobile on the streets and highways of the state, and was still possessed of such license at the time of the accident. Our guest statute, Art. 6701b, Vernon’s Annotated Civil Statutes, provides that 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 unless such accident shall have been intentional on the part of the owner or operator or caused by his heedlessness or his reckless disregard for the rights of others. The statute has many times been construed by the courts and it is now well established that the terms used by the statr ute simply mean gross negligence. Pfeiffer v. Green, Tex.Civ.App., 102 S.W.2d 1077; Scott v. Gardner, Tex.Civ.App., 106 S.W. 2d 1109; Hamilton v. Perry, Tex.Civ.App., 109 S.W.2d 1142; Raub v. Rowe, Tex.Civ.App., 119 S.W.2d 190; Mims v. Seltzer, Tex.Civ.App., 143 S.W.2d 973; Napier v. Mooneyham, Tex.Civ.App., 94 S.W.2d 564; Glassman v. Feldman, Tex.Civ.App., 106 S.W.2d 721.

The term “gross negligence” has been defined by the courts of this state in many decisions and has uniformly been held to be an entire want of care which would raise a presumption of a conscious indifference to consequences. Southern Cotton Press & Mfg. Co. v. Bradley, 52. Tex. 587, 600; Missouri Pac. Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408; Texas Pac. C. & O. Co. v. Robertson, 125 Tex. 4, 79 S.W.2d 830, 98 A.L.R. 262.

Appellant contends that the acts of Johnson, Jr., in extinguishing the lights of the automobile a number of times when they were on the circuitous route which was taken in the automobile immediately preceding the accident are significant in respect to the attitude of his mind at the time and were sufficient to constitute evidence of heedlessness and recklessness which should have been submitted to the jury. We do not agree with appellant in this contention. The evidence shows the lights were extinguished four different times during the ride that was indulged in by the young people. The first time the lights were extinguished was on the side street or road into which Johnson steered his car from Tenth Street in a playful effort to dodge the young people who they thought were trailing them. He drove into this street, extinguished the lights, made a complete turn and stopped on the east side of the street. The only rational interpretation that can be made of this act is that it was done in mere play. We find in it no evidence whatever of recklessness, carelessness or' indifference. When the journey was resumed the lights were again turned on and not again extinguished until the car had entered Avondale Avenue and crossed the railroad tracks. At that point Johnson again extinguished the lights and they remained off for a short distance, but appellant’s witnesses agreed that the night was clear and he was driving in a cautious and careful manner. The lights were again turned on before he reached Highway No. 66, and upon entering the road just outside and west of the Country Club grounds, the lights were again extinguished, but on reaching a rough portion of the road he was asked to turn the lights on and retard his speed. This request seems to have been made because the road was rough and not because of the fact that the car was being driven at a high and rapid rate of speed. Upon reaching Gem Lake road at the northwest corner of the Country Club grounds, the car was stopped and another car passed in front of it going east on Gem Lake road which, according to the testimony, stirred up some dust. Immediately after the other car passed, Johnson started his car, entered Gem Lake road and turned to his right, which was going east, where the lights were again extinguished for a short distance. When complaint was made by some of the young people, Johnson remarked that he could not see very well but he again turned on the lights. These four times constituted the only occasions when the lights were extinguished, and during no time when the lights were out is it shown or even suggested that Johnson was driving the car at a high or dangerous rate of speed. We think it is conclusive that his acts in extinguishing the lights had nothing whatever to do with the accident which caused the injury to appellant and we find nothing in his conduct which indicates a heedless, careless or indifferent state of mind. The last time the lights were extinguished the car was almost a half mile from where the accident occurred and at no time did he fail to turn the lights on when requested. It was not shown that there was other traffic on the roads nor that any dangerous condition was created at any time by the extinguishment of the lights.

If heedlessness or reckless disregard for the rights of the occupants of the car is to be gleaned from the testimony, it must be found in some act of appellee, Johnson, Jr., other than his acts in extinguishing the lights. The only other act revealed by the testimony upon which it could be based is the rate of Speed at which he drove the car down Gem Lake road immediately preceding the accident. The testimony and maps accompanying the record show that a short distance east of where the automobile entered Gem Lake road there is a considerable depression or “draw”. Upon entering' the depression the road declines for a considerable distance and after leaving the bottom of the depression it proceeds uphill, over a divide, and then into another slight depression. After ascending from the second depression and reaching the level again, it is only a short distance to Western Avenue and the bank against which the automobile collided. The testimony shows that upon entering the first depression and descending into it, the speed of the car accelerated until it was traveling about sixty miles per hour at the bottom. Upon emerging from the depression the speed decreased but the actual rate of speed at which the car traveled from there on is not shown. Appellant, who was in the front seat of the car with appellee, testified, however, that the speed of the car increased so that before reaching Western Avenue it was moving from twenty to thirty miles faster than it was at the bottom of the first depression where its speed was sixty miles per hour. If that is true it follows that before reaching Western Avenue, and immediately before the collision occurred, the car was being driven at a rate of around eighty miles per hour. It was shown by the testimony that the bank against which the car collided came into view on the road a distance of two hundred feet from it and at about that point appellant warned appellee, Johnson, Jr., about the speed at which he was driving and requested him to “slow down.” It was further shown that, beginning sixty-three feet from the embankment, the wheels of the car began to skid and continued to do so until the impact occurred. If the car was traveling eighty miles per hour at that point, a simple calculation will show that it was moving approximately 120 feet per second. After coming in sight of the embankment at 200 feet away, the driver, therefore, had less than two seconds of time in which to stop the car or in any other manner avoid the impact. A portion of this short period of time necessarily was consumed by the driver in placing his foot upon the brake and the skid marks on the road showed that during at least one-third of it the brakes were violently applied to the extent that the wheels were locked and skidding. It was not shown that Johnson knew before the accident that the embankment existed at the end of the road. One witness testified that he and Johnson had played golf nearby on a number of occasions and that the witness knew the embankment was there, but he did not know whether Johnson knew it or not. Under the testimony, therefore, Johnson could only be charged with such knowledge of its existence as he gained, or should have gained, after coming in sight of it two hundred feet away.

Discussing the question of gross negligence, Judge Smedley, in delivering the opinion of the Supreme Court in Texas Pac. C. & O. Co. v. Robertson, supra [125 Tex. 4, 79 S.W.2d 831) 98 A.L.R. 262], said: “The person charged with the act or omission cannot be consciously indifferent to the rights or welfare of another unless he knows, or should know, that such another will probably be affected by the act or omission.” Applying that principle to the testimony in this case, in order to charge appellee, Johnson, Jr., with gross negligence, we are required to find from the testimony that, after discovering the bank ahead of him, there was an entire want of care on his part as to whether his friends and invited guests were injured or not. We must say that he was consciously indifferent to their rights or their welfare and, in view of the fact that he, himself, was also in the automobile, that he was likewise consciously indifferent to his own safety. To be consciously indifferent one must be conscious of the fact that he is indifferent at. the time and upon the occasion in question, and unless we could say from the testimony in this case that Johnson knew beforehand that the embankment was ahead of him, which we cannot -say, because it is not shown by the testimony, we must conclude that during the period of less than two seconds immediately preceding the accident he was consciously indifferent and that he had an entire want of care as to whether the accident occurred or not. ■ The fact that he applied his brakes in a manner sufficiently violent to lock the wheels and skid the car a distance of sixty-three feet shows, we think, that within as short time as could be considered reasonably possible he did all he could to avoid the accident. Instead of showing an entire want of care or a conscious indifference as to the welfare of appellant and the other guests in his car, the testimony shows conclusively that at least immediately preceding the accident he exercised every possible effort to avoid it. If gross negligence is not shown during the period of time immediately preceding the accident and after appellee could have observed the embankment, then it could not exist in this case unless it may be said that appellee was guilty of gross negligence in driving the car at such a high rate of speed prior to the accident. That it was negligence to drive at such a high rate of speed as must have been attained by the car cannot be questioned, but under the holdings of our courts in the cases above cited and many others it cannot be said that driving at such a rate of speed, under the circumstances revealed by the record in this case, of itself, is gross negligence. The road over which the automobile traveled after reaching Gem Lake road was smooth and, as far as the evidence shows, there were no other vehicles traveling upon it. The record does not show any other condition or circumstance than those we .have discussed which would indicate recklessness or other conduct that could be construed as gross negligence, and in our opinion the trial court was required by the rules of law governing the case to give to the jury a peremptory instruction to-return a verdict in favor of appellees. Rowan v. Allen, 134 Tex. 215, 134 S.W.2d 1022.

Under other propositions appellant assigns error of the court in his ruling on the pleadings and in excluding certain alleged expert testimony, but in the view we take of the case, they become immaterial in so far as this appeal is concerned, and we conceive of no benefit that could be derived from a discussion of them.

From what we have said it is evident that in our opinion appellant was not entitled to recover of either of the appellees and the court below did not err in giving to the jury a peremptory instruction to return a verdict in their favor. The judgment of the trial court will, therefore, be affirmed.


author: GRAVES, Justice.

text:
    FROMEN v. GOOSE CREEK INDEPENDENT SCHOOL DIST.
    No. 11105.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 6, 1941.
    Rehearing Denied Feb. 27, 1941.
    J. S. Bracewell, of Houston, for appellant.
    Andrews, Kelley, Kurth & Campbell, 'M. E. Kurth, and John E. Cook, all of Houston, and Reid & Strickland, of Goose Creek, for appellee.
   GRAVES, Justice.

This appeal is from a judgment of the Eleventh District Court of Harris County, sitting without a jury, denying the appellant any recovery upon her süit herein to establish against the appellee the validity of a claimed school teacher’s contract, which she alleged she had with it to-teach in the Goose Creek schools for the school year of 1939-40. She had taught in these schools for the appellee during the prior year, in fact ■ for some 13 years before that, and declared in her trial petition that her succeeding employment had been effected between her and the appellee, pursuant to their mutual acceptance of what was termed the “tenure plan”; the substance of and setting under which it was alleged to have so become a valid contract between them, bringing about her re-employment for at least three years, beginning with such year 1939-40, is thus, in material substance, set out in her brief:

“On May 9, 1938, the school board of such district, in co-operation with the teacher’s association — herein referred to — and the Superintendent, adopted a tenure plan, and fully set forth in its minutes a form of .contract to be used. The contract form so adopted and set forth in the minutes is as follows:
“State of Texas \
County of Harris j
“It is hereby agreed by and between the Board of Education of the Goose Creek Independent School District, hereinafter referred to as the party of the first part, and ■-, a classroom teacher, hereinafter referred to as the party of the second part, and said teacher shall, under the authority of the board of education and its successors, and subject to the supervision and authority of the properly authorized superintendent of schools, teach in the said school district under the following terms and provisions, to-wit:
“The party of the first part agrees that:
“1. It shall not dismiss from its employ the party of the second part except for the following causes:
“a. Proved charges of inefficiency.
“b. Proved charges of immorality.
“c. Proved charges of willful and persistent violation of the school laws of the State.
“d. Necessary reduction in the teaching staff due to shrinkage of scholastic attendance.
“e. Failure on the part of the teacher to liold a valid certificate or license to teach.
“2. It shall not reduce the monthly or annual salary of said teacher except as a .general revision of the salary scale applic-ble to all other teachers in the employ of the school district would effect such a reduction in salary.
“3. It shall present or cause to be presented to the teacher on or before March 1st, of the current school term, a written statement of the specific charges for which teacher dismissal is sought, and shall allow the teacher the right of a public hearing, if so requested by the said teacher, the hearing to be granted not earlier than fifteen days nor later than twenty days after receipt by the party of the first part of the teacher’s request for the hearing.
“The party of the second part agrees that:
“1. It shall not terminate or seek a termination of obligations under said agreement except as shall be satisfactory to the party of the first part.
“2. It shall obey all school laws and regulations and all rules made in accordance with the school laws by the party of the first part.
“3. It shall exercise care in the protection and upkeep of the school property, furniture, fixtures and supplies.
“4. In case it prefers a public hearing on charges for dismissal,' it shall file in writing with the secretary of the board of education such a request, within ten days of receipt of the written charges.
“It is further agreed by the parties hereto that this agreement shall continue in force year after year. It is further agreed that all teachers now employed in the said school district or on leave of absence from same, shall be considered to have established tenure.
“It is further agreed that in any reduction in the teaching staff due to shrinkage in scholastic attendance, teachers shall be retained in service in order of their seniority in the Goose Creek Independent School System, subject to the regulations of the State Department of Education, and when additions to the teaching staff are made, the teachers shall be offered re-employment on the basis of their seniority in said school system, subject to the regulations of the State Department of Education.
“It is further agreed that the party of the first part shall not prefer charges for dismissal of a teacher until said teacher has been warned in writing by the superintendent of schools and given an opportunity to correct the conditions provoking the complaint.
“It is further agreed by the party of the first part that whenever it grants a leave of absence to any classroom teacher, such leave of absence, if faithfully observed by the classroom teacher, shall in no manner affect said teacher’s tenure in the Goose Creek School System.
“It is further agreed that this tenure agreement may be amended only when such changes are mutually satisfactory to the party of the first part and to a majority of the teachers affected by such change or changes.
“It is further agreed that none of the provisions hereinbefore stated shall be construed to substitute teachers.
“Dated this 17 day of May, 1938.
“Board of Education
“(Signed) P. W. Hebei, President.
“(Signed) A. Kisler, Secretary.
“(Signed) Robert W. Schmidt, President Goose Creek Teachers Association.
“(Signed) Mrs. E. M. Simmons, Secretary Goose Creek Teachers Association.”
“At such time the school teachers were maintaining a voluntary association, known as the ‘Goose Creek Classroom Teachers’ Association’, of which plaintiff was a member. At the same meeting of the Board at which the tenure plan was adopted, but subsequent to its adoption, the Board reelected the great majority of its teachers ‘for the year 1938-39’, included among whom was plaintiff. On the 25th day of May, following, plaintiff and others addressed to the school board the following communication:
“ ‘Goose Creek, Texas
“ ‘May 25, 1938.
“ ‘We, the undersigned, jointly and severally ; gree to accept the contract for employment proffered us by the School Board of the Goose Creek Independent School District, and will abide by its provisions.
“ ‘Signed:
“ ‘Ethel Fromen’.
“This letter was received by the school board. On the 11th day of May, 1938, the Superintendent sent to the teachers, including plaintiff, the following communication : ‘This is your official notification that you were re-elected as a member of the faculty of the Goose Creek Independent School District for the year 1938-39, subject to assignment by the Superintendent of Schools. You are requested to give us your written acceptance by June 3, 1938.’
“On the 18th day of May, 1938, a formal contract identical with that set forth in the minutes was executed by the president and secretary of the Board of Trustees, and also the president and secretary of the Goose Creek Classroom Teachers’ Association. No separiate individual contracts with the teachers themselves were executed. Plaintiff began teaching, and taught through the year. 1938-39.”

That statement is thus, in part, replied to by the appellee in its brief:

“For many years prior to 1938, the Board of Trustees of the Goose Creek Independent School District had, in accordance with the duties of their office, elected teachers to teach in the schools on a yearly basis, basing their selection in part upon recommendation of the Superintendent of Schools and the various principals. On May 9, 1938, the Board of Trustees met and selected teachers for the school year 1938-39, appellant being one of the teachers selected. On May 11, 1938, notice was sent to appellant advising her of such selection, and offering her employment for such year. The notice also requested appellant to accept the offer by a named date. On May 25, 1938 the appellant, along with other teachers, addressed to the Superintendent of Schools a letter of acceptance, which has been quoted in appellant’s statement, supra.
“In consummation of the contract, appellant taught for the school year 1938-39, and no question is here raised as to ap-pellee’s recognition of appellant as a teacher for that year. On April 10, 1939, the Board of Trustees rescinded the tenure plan, and held it of no further force and effect. Shortly thereafter, the Board of Trustees decided that it would be to the best interest of the schools that appellant be not re-employed for the year 1939-40, and appellant was so notified. Appellant’s present action seeks to impose liability upon appellee because of its failure to permit appellant to teach for the year 1939-40, and thereafter, and it is the position of appellee that its Board of Trustees, having' exercised their discretion in the matter of employment of teachers, and having desired not to employ appellant, no liability can be imposed.
“In an effort to allege a ‘ cause of action for breach of a contract to teach for the year 1939-40, appellant has attached to her pleadings an exhibit, setting out a so-called ‘tenure plan’, which said plan purports to be an agreement between the Board of Education of Goose Creek Independent School District ‘and-, a classroom teacher’. Such exhibit further states that it is intended to apply to all teachers then employed in the School District, or on leave of absence from the same. Although there were approximately 180 teachers employed by the School District at that time, and although the exhibit apparently contemplated a signature by an individual teacher, the exhibit, as presented, shows that it was only signed by the officers of the School Board and by the officers of the Goose Creek Teachers’ Association, an organization having approximately 67 members. In addition, there is no evidence in the record indicating that the officers of the Teachers’ Association had the authority to enter into a contract of employment on behalf of any of its members, or that the officers of the Association were authorized to execute the agreement.
“Upon the trial of this cause, appel-lee objected to the introduction in evidence by appellant of the ‘tenure pbn’ attached as an exhibit to appellant’s petition, on the grounds, among others, that the exhibit was not signed by an individual teacher, and in particular was not signed by appellant; that the Board of Trustees had no power to contract with any association for teachers; that the exhibit was in violation of Article 2781 of the Revised Civil Statutes, Vernon’s Ann.Civ.St. Art. 2781; that the exhibit was void as an endeavor on the part of the Board of Trustees to barter away power lawfully vested in them ; that the exhibit was on its face unilateral and unenforceable; and that there was no authority on the part of the purported officers of the Teachers’ Association to execute the same.”

After hearing evidence for both sides, the learned trial court expressly m”de these among other, findings, in so denying the appellant any relief:

“Findings of the Court.
“This matter presents two legal angles— first, as to whether or not the tenure plan is valid, and, next, as to whether or not it was ever put into effect in so far as the plaintiff is concerned. I want to de^l with that in reverse order. The resolution of the Board of Trustees of the Goose Creek Independent School District in May of 1938, in which the so-called tenure plan was adopted, seems to my mind to contemplate a form of individual contract with each teacher, to be formally executed by the contracting parties. Before that time, for many years, by custom, the contracts between the defendant and the teachers were evidenced, first, by an election by the Board, by a letter of notification from the Superintendent and a written acceptance by the individual teacher, written into which understanding, of course, was the scheduled salary for the particular position. On the same day that this tenure plan was adopted by this Board of Trustees, they, by resolution, elected teachers for the school year 1938-1939 by name, the plaintiff being included. Gentlemen, ' that action of the Board in electing those teachers for that period by name is, to my mind, in direct conflict with the tenure plan; it, to my mind, negatives any intention upon the part of the Board of electing those teachers for that limited time to put them under the benefits of what might be c lied the tenure plan. It is true that if thereafter, upon proper resolution, the tenure plan contract had been signed, as was evidently their purpose, if they intended to put it into effect, a different question might be presented, but it was never signed by the individual teachers; to my mind, the action of the Board in electing these teachers for the year 1938-1939 school year is a distinct limitation. * * *
“Then the question of the validity of this plan comes up. Article 2781 provides that as to school districts of the then scholastic population of this district, contract could be made with teachers for not to exceed three years, and that is the sole statutory authority. Now, without passing upon the merits or demerits of the tenure plan, because that is the province of the Legislature and the Board, it seems to me that this plan is in direct contravention of the public policy of this state, one reason, at least, being that for a third of the school year the Board has, by this plan,' completely and absolutely surrendered its authority over the teacher staff, by surrendering all authority to discharge a teacher after March 1st. I will agree with counsel that where there is a valid contract it can only be cancelled by the School Board under certain conditions, but, when a Board attempts to surrender its inherent power to cancel the contract for a third of a term, even when it might have just cause, it is to my mind in contravention of the public policy of this state, and that, if such a tenure contract could in law be deemed, by reason of the facts in this case, to have been executed, that, nevertheless, the same is void.”

The record further shows that on April 10 of 1939 the appellee rescinded its “tenure plan” in toto, in this final order: “A motion was made by L. A. Lovering and seconded by W. K. Robbins, that all resolutions granting tenure plan to employees hereby be rescinded. The vote on this motion was as follows: ‘Ayes’: Messrs. Hebei, Martin, Lovering, Tipton and Robbins ; ‘Nos’: Messrs. Magness and Kizler. The motion carried.”

Without extended discussion, it is the conclusion of this court that the judgment holding no valid contract to have been consummated by the declared-upon proceedings, and the so-called “tenure plan” to have been void and unenforceable, as being in contravention of the public policy of this state, is correct.

Indeed, it seems plain, first, that such scheme or plan was never shown to have been consummated as an agreement between the appellant and the appellee, as therein plainly contemplated; but that, second, if it had been, its provisions would have been in direct contravention of R.S. Article 2781, Vernon’s Ann.Civ.St. Art. 2781, which provides, in so far as material, as follows: "Teachers’ contracts. The Board of Trustees of any city or town or any independent school district may employ a superintendent, principal, teacher, or other executive officers in the schools therein for a term not to exceed three years, provided that the Board of Trustees of an independent school district which had a scholastic population of 5,000 or more in the last preceding scholastic year may employ a superintendent, principal, teacher, or other executive officers in the schools therein for a term not to exceed five years. All twelve-month contracts made by trustees of independent school districts with employees herein mentioned shall begin on July first and end on June 30th of the year terminating the contract.”

If these two conclusions be sound, which they are thought to be, it would be a work of -supererogation to extend the opinion by developing others.

The burden was on appellant of showing that the appellee, through its board of trustees, promised to employ her for the school year of 1939-40, and that she accepted that employment, just as it admittedly appears had been done as to 1938-39; the record fails to show a meeting of that burden by her in any essential particular, there having been shown no conscious undertaking by both parties to assume any such obligation; 10 Tex.Jur. 13, par. 3; 1 Williston on Contracts, par. 64. The trial court has found, both on the facts and the law, that no such contract had been shown, and there is no successful attack upon that finding as being without sufficient support in the evidence.

It is true the board of trustees was shown to have adopted the quoted “tenure plan” earlier on the same day — May 9 of 1938 — on which it re-elected appellant for the school year of 1938-39; but there was a hiatus, or missing link, between that adoption and that election of appellant, in that the plan was in no effective way made a part of the contracts with the teachers; on the contrary, as its terms plainly imply, it contemplated that, to become effective, it should be signed both by the school board and the individual teacher affected thereby; whereas, it was in fact only signed by individuals purporting to be officers of a “Teachers’ Association”, the membership of which was shown to constitute only a little more than one-third of all the teachers in the Goose Creek Schools. Appellant herself never signed such a document, nor was one ever tendered her for her signature, by the undisputed evidence; on the other hand, what she did in this respect has been fully stated in the quotation from her brief, supra, which both the findings of the court and the evidence fully sustain; wherefore, it can be deduced that both sides to the contract of employment for the year 1938-39 merely meant thereby what they said, that the period of that employment was to be for the school year of 1938-39 only, no more nor less; the terms of the “tenure plan” in nowise indicate that such signature “Teachers’ Association”, through its president and secretary, was signing it on appellant’s behalf, nor is there any evidence that it or they had any such authority; so that, even if the adoption of this plan had been a proposed contract for 1939-40 by the appel-lee to appellant through such “Teachers’ Association”, no consummation of a binding contract on the part of both parties would result therefrom, since, as indicated, it could not be legally accepted by such a private association for her, and never was by the appellant herself; indeed, as before suggested, there is no indication on the face of that paper, nor any evidence aliunde, that .the “Association” either was signing or was authorized to sign it for this appellant. 1 Williston on Contracts, par. 8.

In these circurAstances, the appel-lee was plainly not estopped to deny that it had such a declared-upon contract with appellant for 1939-40, and at least two more years, as she urges, because there having been no such contract pre-exist-ing, estoppel alone could not create a cause of action for one. Massachusetts Bonding & Ins. Co. v. Dallas Steam Laundry, Tex.Civ.App., 85 S.W.2d 937, writ of error refused; Brookfield v. Drury College, 139 Mo.App. 339, 123 S.W. 86.

The gist of appellant’s whole contention is, that the “tenure plan”, constituted a contract obligating the appellee to retain her as a teacher not only for the school year of 1939-40, but for at least two more of the years, limited to three by R.S. Article 2781, Vernon’s Ann.Civ. St. Art. 2781, which admittedly applied to the appellee-district. Its terms, however, do not seem to import any such meaning; to the contrary, there being no definite time prescribed during which it was intended to operate, but only the statement therein that it was to be in force “year after year”; if, therefore, it be taken according to the only express provision it contains in this respect, it would appear to have intended a perpetuity in duration, which obviously would be in contravention of R.S. Article 2781, Vernon’s Ann.Civ.St. Art. 2781.

If, on the other hand, it was meant to keep it in duration for an indefinite time, under well-settled authority it would have constituted a tenure terminable at the will of either party. Brown Method Co. v. Ginsberg, 153 Md. 414, 138 A. 402; East Line & R. R. R. Co. v. Scott, 72. Tex. 70, 10 S.W. 99, 13 Am.St.Rep. 758; Hunter v. Strong, Tex.Civ.App., 265 S.W. 539, writ of error dismissed; 1 Williston on Contracts, p. 60, par. 39.

Texas seems to have no law providing for permanent tenure of teachers such as appellant was, cited R.S. Article 2781, Vernon’s Ann.Civ.St. Art. 2781, being, instead, an expression of its public policy with reference to the length of terms for which its teachers may be employed.

It would seem to plainly follow that the boards of trustees, without an improper abdication or relinquishment of the authority conferred upon them by such law, may neither employ the teachers themselves for a different or longer time, nor delegate their statutory authority to employ and discharge teachers, as well as otherwise control and administer the affairs of such schools. State v. Board of Regents, 209 Wis. 83, 244 N.W. 618. That this “tenure plan, if given effect, would trench upon such statutory duties so conferred. upon boards of trustees in these school districts in Texas is apparent ftom a mere reading of its recitations; it, therefore, as held by the trial court, is plainly void upon its face, as being opposed to the statutes and public policy of this state.

These conclusions require an affirmance of the judgment; it will be so ordered.

Affirmed.