author: PRICE, Chief Justice.

text:
    J. R. WATKINS CO. v. DAWSON et al.
    No. 4001.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 14, 1940.
    Rehearing Denied Dec. 12, 1940.

      Crane & Crane, of Dallas, for appellant.
    R. R. Smith, of Jourdanton, for appel-lees.
   PRICE, Chief Justice.

This is an appeal from the judgment of the District Court of Atascosa County. J. W. Dawson and wife, as plaintiffs, filed suit against J. R. Watkins Company, a corporation, and L. D. McAda, as sheriff, to enjoin them from selling under execution two certain tracts of land in Atascosa County. The property was alleged to be their homestead. Further, plaintiffs sought to cancel, as a cloud on their title to said two tracts, an apparent lien created by the filing of an abstract of judgment in the records of Atascosa County by defendant J. R. Watkins Company. Defendant J. R. Watkins Company joined issue, and by special plea asserted the .validity of his judgment lien and his right to enforce same. Trial was to the court without a jury, judgment in favor of plaintiffs for the relief sought. Defendant J. R. Watkins Company duly perfected this appeal from the judgment.

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

Before considering this appeal on its merits there is a preliminary matter that should be disposed of. Defendant filed a motion in this court to withdraw the statement of facts for correction and to postpone submission. The motion was granted-without notice to plaintiffs or their counsel, it appears, insofar as the clerk was ordered to file as a supplemental transcript of the evidence certain exhibits attached to the motion. The correction made in this manner can best be understood by reciting just how the original statement read as to the matter corrected.

' On page 26 of the statement of facts this answer by the witness J. W. Dawson appears: “Yes, sir, me and him was talking about it at mother’s place there and we agreed

⅛⅜-⅜&⅛ when we divided this property he would 1⅞-⅛ have the Devine property.” The answer had reference to a conversation between witness and his brother. ' The words, “he said,” were in typewriting and a line by pen drawn through them, and above them by pen was written, “we agreed.” The wor.ds, “like to,” were stricken out by pen. The correction made by the trial court was restoration of the words, “he said,” the elimination of the words, “we agreed,” and the restoration of the stricken words “like to.” The answer as corrected read: “Yes, sir, me and him was talking about it at mother’s place there and he said when we divided this property he would like to have the Devine property.” •

This correction was made by the trial 'court, apparently without notice to plaintiffs or their counsel. Plaintiffs filed motion asking that this court rescind its ac-' tion and give them an opportunity for a hearing as to the matter of correction before the trial court.

The trial court is responsible for the certification of a proper record here. It might have been better for this court to have afforded plaintiffs an opportunity for a hearing before permitting the record to be corrected. It might have been better for the trial court to have afforded plaintiffs an opportunity to be heard in the correction, but there was considerable difficulty attendant on this, because all attorneys were nonresident. In our opinion the correction was of no great moment. On page S of the statement of facts the same witness testified as follows:

“Q. Did you ever have any understand-, ing with any of the other members of the family about this property of your father’s and mother’s? A. Yes, with my brother.
“Q. And what was that understanding? A. Well, my brother — my brother was to take the Devine property and me and my three sisters was to take the ranch property."

Taken with the context, this testimony indicates that the witness was referring to the same time and same conversation or transaction referred to in the other answer under consideration.

The trial was before the court, judgment for plaintiffs, and necessary findings to support same are to be attributed to the trial court, if sustained by substantial evidence. The'court may have given credence to the testimony last quoted.

The motion of plaintiffs is overruled.

Let us first consider the undisputed facts. The 97.53-acre tract in dispute is a portion of the 311-acre tract which, at the time of the death of Brett Dawson, the father of plaintiff J. W. Dawson, was the community property of said deceased Dawson and his surviving wife, Betty Dawson, the mother of plaintiff Dawson. The rural homestead of plaintiff Dawson’s father and mother was on this 311-acre tract. Brett Dawson died in 1918. He was survived by his wife, two sons and three daughters. His surviving wife occupied the land as a home until about 1924 when she bought a house in the town of Devine, Medina County, which she occupied as a home up to the date of her death in 1936. Mrs. Betty Dawson after the death of her husband remained a widow to her death. This new homestead was paid for in part, at least, from the community estate. After Mrs. Dawson left the said 311-acre farm in 1924 the rents and revenues thereof were largely devoted to her support up to her death. She died intestate, and plaintiff Dawson and another son and three daughters survived her and were her sole heirs.

By deed executed in October, 1936, the heirs of Betty Dawson partitioned her estate and the estate of their deceased father among themselves. Plaintiff received as his part the 97.53-acre tract in controversy here, a part of the 311-acre tract; his brother Jesse took the property in Devine as his entire portion of the estate; the three sisters each received respective portions of the 311-acre tract, and said tract was completely partitioned between the four children other than Jesse.

Plaintiffs have been husband and wife since December 16, 1903. In 1921 they acquired the 102-acre trac-t of land herein referred to in its relation to the 97.53 acres in controversy. The 102-acre tract is farm land and from its acquisition to the present time at all times same was used, occupied and cultivatéd as the homestead of plaintiffs and their family.

This 102-acre tract is located, on an airline, about three-quarters of a mile from the 97.53-acre tract in controversy here. By road it is about a mile and a quarter or a half therefrom. The 97.53-acre tract seems to have been pasture land with some timber thereon. Before the partition it was a part of a 130-acre pasture. Since the partition deed plaintiffs have used the 97.53-acre tract in connection with their homestead tract in such a manner as to constitute same a part of their homestead. If the evidence is not undisputed on this point, it is sufficient to sustain such a finding.

On the 12th day of June, 1934, in the County Court at Law of Dallas County, defendant recovered against plaintiff J. W. Dawson and others a judgment in the sum of $864.81, to bear interest from date at the rate of 6 per cent, per annum, together with all costs of suit. On the 18th day of August, 1934, execution to Dallas County issued thereon and same was placed in the h^nds of Louis Brown, Constable of Precinct No. 1, Dallas County. The constable’s return thereon as copied in the statement of facts was as follows:

“Constable’s Return
“Came To Hand This the 21st day of August, A.D. 1934, and executed this the 21st day of August, A.D. 1934, by property found in Dallas County, belonging to the defendant, subject to execution.”

On the 22nd day of August, 1934, an abstract of this judgment was filed in the office of the County Clerk of Atascosa County and same was duly recorded and indexed. On the 24th day of February, 1939, from the Dallas County Court at Law an alias execution was issued to Atascosa County. It is the execution of this process that was halted by plaintiffs’ suit. It does not appear from the return of the sheriff just what property of J. W. Dawson was levied on, but we presume it was the 97.53-acre tract.

In this case there can be no controversy save as to the 97.53-acre tract. The 102-acre tract was at all relevant times the homestead of plaintiffs, and under the Constitution exempt from the judgment of defendant. This being true, the finding which must be attributed to the trial judge to support the judgment rendered, in substance, is, that at all relevant times herein the 97.53-acre tract was a part of the homestead of plaintiffs. If there is evidence in the record sufficient to support such a finding, the judgment should be affirmed.

Plaintiff Dawson acquired Iris interest in the 311-acre tract, of which the land in controversy is a part, as an heir of his father, and then as an heir of his mother. Title vested immediately upon the death of each. R.S.192S, Article 3314. Unless the interest so acquired by' plaintiff Dawson was exempt, the lien of defendant’s judgment attached thereto. R.S.1925, Article 5449, Vernon’s Ann.Civ.St. art. 5449. Brett Dawson, the father, died in 1918. From him plaintiff Dawson inherited an undivided one-tenth interest in the 311-acre tract, subject, of course, to the homestead interest of his mother in 200 acres thereof. The mother’s homestead right ter-mináted on or about 1924. His mother died in 1936, and he inherited a one-tenth interest in the property from her. The respective interests so acquired were held as a tenant in common with his brother and three sisters up to the partition in 1936. Unless the interest acquired from his father was exempt by reason of its being a part of plaintiffs’ homestead at the time the abstract of defendant’s judgment was filed, the lien thereof attached to such interest. Unless the interest acquired by him from his mother at the very moment same was acquired was actually being used as a part of his homestead, the lien of defendant’s judgment attached thereto.

In consideration of the question of the homestead or non-homestead status of the property with reference to the abstracting of the judgment a number of questions arise. Some of these are:

(1) May an undivided interest be dedicated as a homestead?

(2) What acts are necessary to dedicate as a part of an established homestead a subsequently acquired detached tract? -

(3) If a homestead may be acquired on an undivided interest in the tract of land, then what is the status of an additionally acquired interest in the same tract?

(4) If a homestead be dedicated on an undivided interest and thereafter the land be voluntarily partitioned among the co-tenants, then what is the status of the property received by the one establishing the prior homestead in the undivided interest?

In the case of Tucker v. Dodson, Tex.Civ.App., 245 S.W. 728, 730, the following statement of the law relative to a homestead in an undivided interest is made: “That a homestead may be established upon land held by tenancy in common, provided the just rights of cotenants are not prejudiced, is well settled by the decisions in this state.” Clements v. Lacy, 51 Tex. 150; Jenkins v. Volz, 54 Tex. 636; Southwestern Mfg. Co. v. Swan, Tex.Civ.App., 43 S.W. 813; Lewis v. Sellick, 69 Tex. 379, 7 S.W. 673; Powell v. Ott, Tex.Civ.App., 146 S.W. 1019.

This, we believe to be a correct statement of the law, amply sustained by the authorities cited. As additional authority might be cited the case of Griffin v. Harris et al., 39 Tex.Civ.App. 586, 88 S.W. 493. This case, in our opinion, has great bearing on many of the issues posed by this appeal.

From the moment the title vested by the death of the father, Brett Dawson, his children and his surviving wife were tenants in common. It is to be borne in mind that the property exceeded the homestead right of the surviving wife by over one hundred acres; likewise, that in 1925 or 1926 the mother abandoned her homestead and dedicated a new homestead in Devine. At all relevant times there was the right of a joint possession in plaintiff Dawson.

The Constitution, Vernon’s Ann. St. provides : “The homestead, not in a town or city, shall consist of not more than two hundred acres of land, which may be in one or more parcels, with the improvements thereon.” Sec. 51, Article 16.

Property is dedicated as a homestead by the use thereof as such. In a rural homestead exemption is comprehended a residence and business homestead exemption. Therefore, the dedication consists of the use of a part of the tract for a residence and the’ use of the balance for the support of the family. Autry v. Reasor, 102 Tex. 123, 108 S.W. 1162, 113 S.W. 748.

In the course of the opinion in the above case Chief Justice Gaines said: “It is clear, therefore, we think, before a homestead can be claimed upon land, it must be used for some one purpose of a home, either by cultivating it, using it directly for the purpose of raising family supplies, or for cutting firewood and such like.”

This language was used with reference to a tract detached from the indisputably dedicated homestead by something like three-quarters of a mile. Likewise, we think, it is fairly inferable from the case that very slight evidence of use is sufficient to raise the issue. Despite the fact that apparently the trial court had rendered an incorrect judgment on the findings of fact, the case was reversed and remanded. As found by the trial court, the only use of the detached tract was renting'same out to produce an income for the support of the family. There being some evidence that at some time the homestead claimant had cultivated the detached tract in question, the case was reversed and remanded and not reversed and rendered.

From the date of the death of his father, Brett Dawson, and shortly after the death of his mother, plaintiff Dawson seems to have made about the same use of the 311-acre tract, or a portion thereof. He, as likewise did some of the other heirs, used regularly the uncultivated portion for the pasturage of his stock; he cut firewood and posts thereupon.

Plaintiff Dawson was the only witness testifying, and, giving his testimony full credence and a broad interpretation, a rather continuous use of the property in question in connection with the 102-acre tract and the subsistence of his family may be inferred. This interpretation, unquestionably, th'e trial court had the authority to give the testimony. After the partition plaintiff fenced the 97.53-acre tract, making about the same use thereof, however, as he had previously done.

We think that the evidence was sufficient to sustain a finding that the lien of the judgment never attached to the one-tenth interest inherited by plaintiff from his father. This, because it had been dedicated as a part of the homestead prior to the abstracting of the judgment.

A homestead right attaching to an undivided interest in property, that right survives partition and attaches to the property received in partition. Thompson & Sons Lbr. Co. v. Clifton, 132 Tex. 366, 124 S.W.2d 106, and authorities there cited.

Defendant’s judgment was abstracted in Atascosa County at the time plaintiff Dawson inherited an undivided one-tenth interest in the property from his mother.

The case of Freiberg, Klein & Co. v. Walzem, 85 Tex. 264, 20 S.W. 60, 34 Am.St.Rep. 808, held that an abstract of judgment did not create a lien on the homestead subsequently acquired if the homestead was dedicated at the moment of its acquisition.

The case of Thompson & Sons Lbr. Co. v. Clifton, supra, is to our mind conclusive here. In that case the doctrine announced in Freiberg, Klein & Co. v. Walzem, supra, was applied to an additional interest acquired by inheritance where there had been a prior homestead dedicated in an undivided interest.

Assuming the correctness of what we have heretofore said, that case applies here.

It is ordered that the judgment be in all things affirmed.


source: Caselaw Access Project

author: FOLLEY, Justice.

license: Public Domain

text:
    ZICKEFOOSE v. BLEDSOE et al.
    No. 5230.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 9, 1940.
    Elkins & Elkins, of Lubbock, for appellant.
    G. E. Lockhart,'of Lubbock, for appellee A. Sansom.
    W. R. Porter, of Lubbock, for appellee W. L. Cone.
   FOLLEY, Justice.

The appellant has failed to file a brief in this case and no excuse is offered -or good cause shown for such failure.

The appellees request that we affirm the judgment of the trial court.

Finding no fundamental error in the record the judgment is affirmed. Haynes v. J. M. Radford Grocery Co., Tex.Com.App., 118 Tex. 277, 14 S.W.2d 811.


text:
    MOORE v. RIONA PRODUCTS, Inc.
    No. 4000.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 14, 1940.
    R. M. Bounds, of McAllen, for appellant.
    Chas. E. Thompson, of McAllen, for ap-pellee.
   PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of Hidalgo County in a contested garnishment proceeding against Riona Products, Inc., a corporation, wherein it w;as adjudged that plaintiff in garnishment, hereinafter called plaintiff, and the other garnishing creditors of the Ri-ona Products Company, take nothing. Plaintiff, Paul D. Moore, perfected this appeal from the judgment.

Plaintiff instituted in the District Court of Hidalgo County a suit against Riona Products Company, a. corporation, seeking to recover the sum of $667.74. At the time of filing of this suit a writ of garnishment was sued out against Riona Products, Inc. This writ was duly served and in due time garnishee filed sworn answer thereto denying indebtedness to, or having assets of, the Riona Products Company in its possession. In due time the plaintiff controverted that answer by sworn plea, attaching to said plea a lengthy schedule of personal property - charged to belong to the Riona Products Company in the possession of the garnishee.

•In the main suit defendant Riona Products Company defaulted, and plaintiff recovered in the amount claimed.

Fred A. Rice and H. C. Heath had each, respectively, obtained judgments in the Justice Court against the Riona Products Company, and each sued out writ of garnishment against Riona Products, Inc. On the prayer of the garnishee in the District Court each were made parties thereto. They made common cause with plaintiff, and charged that at all relevant times garnishee was in possession of the property of their judgment defendant, and sought judgment against garnishee for their respective claims.

The trial was to the court, and judgment was in favor of the garnishee on the issues tendered by the controverting pleas to defendant’s answer.

No findings of fact and conclusions of law were demanded and none were filed.

Plaintiff contends that, under the undisputed testimony, he . was entitled to recover. In other w.ords, the imputed findings of the trial court are without support in the testimony.

If the contention advanced is sustained by the record, then plaintiff is entitled to relief here. If, under the pleadings in evidence, there was a disputed issue as to the facts conditioning garnishee’s liability, then the judgment of the trial court is final.

The facts, as developed by the evidence, present some complication. Riona Products Company was formerly engaged in the canning business in the City of Mc-Allen. Part, at least, of its plant was a large two-story building which defendant owned. A portion of this building was rented to the McAllen Bonded Warehouse Company, which, at all relevant times, herein, conducted a warehouse and storage business therein. The Warehouse Company rendered service for the Canning Company. For part of the goods received by it for storage, it issued warehouse receipts. However, in its. portion of the building for a flat compensation of $1,-000 per year, the Canning Company was entitled to store certain goods in the part of the building rented to the Warehouse Company.

At the time of the service of the writ of garnishment herein and prior thereto, the Canning Company, that is, Riona Products Company, was indebted to the Warehouse Company in the sum of $4,-000.

About October or November, 1938, the Canning Company became involved in financial difficulties and ceased to operate as a going concern. About that time the City State Bank & Trust Company of Mc-Allen foreclosed a second lien on the business house aforesaid and acquired title thereto at the foreclosure sale.

After the foreclosure the Warehouse Company continued to operate its business about as it had previously thereto. It was in possession of a number of cans for the Canning Company. These cans were transferred to the Bank by the Canning Company in consideration of the payment by the Bank of the indebtedness due the Continental Canning Company. These cans were originally claimed by plaintiff to be subject to its writ of garnishment, but this claim seems to have been abandoned; ’at the time the Bank acquired them, the garnishee w;as not in existence. Garnishee, Riona Products, Inc., was subsequently incorporated and the cans in question conveyed to it by the Bank.

When the garnishee was incorporated, it engaged in about the same business as the Riona Products Company had formerly pursued. It went into possession of the plant of the Riona Products Company, and the Warehouse Company continued to occupy and conduct its warehouse and storage business in the same manner it had formerly conducted same, holding and controlling the same space it had formerly controlled. Whether garnishee owned the building or the Bank owned same does not appear from the record, and we do not deem it to be material. The goods in controversy here the Warehouse Company continued to hold, save the cans before mentioned, in about the same manner it had held them before.

Certain popcorn and canned goods fdr which it had issued a warehouse receipt to the Riona Products Company were released on the order of that Company and its pledgee, the Bank.

Plaintiff in his brief seems to limit his claim to the following property:

2100 cartons at 5‡ ea. 105.00
240 24/2-1/2 cartons at 5‡ ea. .. 12.00
50 24/2 cartons at 5‡ ea. 2.50
2140 48/1 cartons at 5‡ ea. 107.00
770 24/12 ounce cartons at ea. 38.50
8500 Handy Bottle Cartons at 5‡ ea. 425.00
480 11/5 cartons at 5‡ ea. 24.00
Total . $1577.50

It is contended that this property, at the relevant times herein, was in the building, occupied by the garnishee and the Warehouse Company. Granted this be true, the conclusive presumptiop does not follow that it was in the possession of the garnishee or in the joint possession of the garnishee and the Warehouse Company. The goods were not placed there by the garnishee. It had no right to the possession or control of them. The evidence is not conclusive, at least, that it ever did so assume control thereof. The Warehouse Company seems to have claimed the right to hold same to secure the indebtedness of the Riona Products Company.

The Warehouse Company, the Bank, the garnishe.e, Riona Products, Inc., and the Riona Products Company were separate and distinct institutions,.- so far as this record goes. The possession of one was not the possession of the other.

At all times, especially after the Riona Products Company ceased to operate, the Warehouse Company seems to have maintained possession and control of the goods. In any event, the evidence is sufficient to raise issue that it did so do. *

A question of fact was raised, the finding of the trial judge was final thereon.

Judgment affirmed.


text:
    TIPPIT v. GOHMAN.
    No. 4005.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 14, 1940.
    Rehearing Denied Dec. 5, 1940.
    R. L. House, House & Irvin, and R. H. Mercer, all of San Antonio, for appellant.
    Gordon Griffin, o.f McAllen, and A.' G. Haigh, of Edinburg, for appellee.
   PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of Hidalgo County, wherein plaintiff, Margaret Gohman, recovered judgment against defendant, W. A. Tippit, in the sum of $1,250. The defendant duly perfected this appeal'.

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

Plaintiff sought recovery from defendant for personal injuries alleged to have been the result of negligence. She alleged that on August 7, 1937, at about 10:30 P. M., she was riding in an automobile driven by Ed Bean east along Highway No. 4, between Weslaco and Mercedes; that about a half mile from Mercedes defendant left his automobile standing with the rear end thereof within three or four feet of the north edge of the pavement. It is charged ■that the lights were not burning, and if -that was incorrect, on account of the position of the car, neither the headlights nor ■the tail lights were visible to one approaching from the west; that the highway was •paved at the point in question and the paved portion eighteen feet in width; that immediately east of the point where the defendant's car was standing the highway passed •over a siphon, and on each side of the highway at this point concrete guard rails were placed about eighteen or twenty inches from the respective edges of the pavement; that the front of defendant’s car was about four- feet west from the south concrete post ■of the guard rail; that the driver of the automobile in which plaintiff was riding came ■suddenly upon said car, and on account of •its position, was forced to swerve to the right to avoid said car, and in so doing struck one of the concrete posts of the ..guard rail south of the front end of defendant’s car. Many grounds of negligence were charged against defendant in leaving 'his car so parked, and each was alleged a proximate cause of severe personal injuries to plaintiff. It was alleged, among other things, that part of defendant’s car was south of the center line of the highway, .and in so leaving the car in such position that Section 10, Chapter 42, p. 72, General Laws 41st Legislature, Second Called Session, Vernon’s Ann.P.C. art. 827a, § 10, was violated.

Defendant answered by general denial and a very detailed plea of contributory negligence.

Plaintiff replied to this answer by supplemental petition. Thereafter, plaintiff filed a trial amendment wherein she set up, m substance, the theory that prior to the collision in which she sustained her injuries defendant had negligently run into the post at the southwest end of the guard rail and thus caused his automobile to be in the position it was at the time of her injury. Under the premises many acts and omissions were charged to be actionable negligence.

At' the close of the evidence defendant moved for an instructed verdict in his favor. This motion the court overruled, and submitted the case to the jury on special issues.

The jury found, in substance, it was negligence for defendant to run his car into the concrete post, resulting in his car being left on the highway; the driving of the car by defendant against the concrete post was the proximate cause of the collision and injuries to plaintiff; that it was not negligence for defendant to leave his car in the highway in the position it was immediately after he struck the concrete post; that immediately prior to the collision in which plaintiff was injured the lights on defendant’s car were not burning; that the leaving of the car without lights burning was a proximate cause of plaintiff’s injuries; that defendant left his car standing on the highway without leaving a clear and unobstructed width of not less than fifteen feet upon the main-traveled part of the highway opposite his standing car; that such act was a proximate cause of plaintiff’s injuries; that just prior to the collision Edward Bean, driver of the car in which plaintiff was riding, was driving same at such a rate of speed that same could not be stopped within the range of the headlights; that such act was not the sole proximate cause of the accident; that the collision in question was not an unavoidable accident.

The preface of defendant’s brief is as follows: “It is the contention of the appellant that this case should be reversed and rendered, but if for any reason the court is unwilling to reverse and render this cash, then appellant asks the court to affirm said case, as he does not want "sáid case' reversed and remanded but does want-it 'reversed and rendered.”

We • see no reason why he should not so limit the scope of his appeal. Under the request, even though the motion for-an instructed verdict should have been sustained, unless justice calls for the reversal and rendition of the cause, then same should be affirmed. If, under any favorable finding on the issues raised by the pleadings and the evidence, plaintiff was entitled to recover, the court should not have instructed a verdict for the defendant, and we should affirm the case. An issue of law is presented as to the effect of the evidence. If the evidence is such that it fails to establish actionable negligence on the part of the defendant, that is, negligence a proximate cause of the injury, defendant should prevail in this appeal. Also the defendant should prevail if the evidence establishes, with that degree of certainty that the minds of ordinary men cannot reasonably differ thereon, contributory negligence on the part of the plaintiff.

These facts appear from the evidence to be practically undisputed: Plaintiff was proceeding easterly along the highway leading from Weslaco to Mercedes in a Ford car driven by Ed Bean; she was a guest of Bean and had no control over the manner of driving the car; the car of defendant was standing on the highway very near the southwest end of a guard rail which extended at this point near the south edge of such highway; the car in which she was riding struck the southwest part of the guard rail near the standing car of the defendant; this collision injured her and she suffered damage to the extent of the judgment; the traveled portion of the highway at the point of this collision is eighteen feet in width; the car of the defendant was partly, at least, on the traveled portion of the highway; there is a guard rail on the north side of the portion of the highway in question parallel to the one on the south side; these guard rails were each about eighteen or twenty inches from the respective edges of the pavement on either side.

Different inferences may be drawn from the testimony as to how far the standing car extended north on the pavement. There was evidence that it extended beyond the center line of the traveled portion; evidence from which it might be inferred that it did not so extend; evidence that there was ample space for a car to pass on the" northerly portion of the highway, and evidence that it required great care to so pass in a car; evidence that there was insufficient clearance on the north of the standing car. ■ How long prior to the accident’.defendant’s car had been so standing on the highway does not appear from the evidence.

'■■Defendant was placed on the stand by plaintiff as an adversely interested witness. His testimony was that, at about 10:30 P.M., on August 7, 1937, he was driving easterly along the highway, that a car was approaching with bright lights from the west and he turned slightly to the right to avoid the car and struck the post in question, and was thereby rendered unconscious; that he remained in his car unconscious until after the collision of the car in which plaintiff was involved; he did not know how long it was after he struck the post until the second collision occurred; hé was in his car at the time the second collision occurred. He testified-to having received a lick on the chin, a perforated lip, two broken bones in his right ankle, two cracked ribs, and a cut on the elbow. By which collision these injuries were inflicted does not appear, but we take it to be a fair inference that he attributed them to the first collision. He admitted that in the afternoon and evening prior to the collision he had drunk two or three bottles of beer; denied he was under the influence of liquor.

The evidence was conflicting as to whether shortly after the accident in which plaintiff was involved defendant was under the influence of liquor.

The extent and nature of defendant’s injuries are supported almost entirely by his own testimony. He was taken to the office of Dr. Heidick for treatment. Some of the witnesses testified to a cut on his chin and his presence at the doctor’s office.

Reverend J. T. Hickman testified that he was on the scene of the accident before the parties involved therein had left; that he saw the defendant walking up the embankment at the side of the road and apparently headed for his car. Defendant denied this.

Ed Bean, the driver of the car in which plaintiff was riding, testified that just prior to the accident he was driving about thirty-five or forty miles an hour; he was going east; he observed as he approached the standing car that such car extended over the center line of the highway; he was looking down the road in the direction he was going, and when he first saw the standing car he was from thirty to forty feet therefrom; that he applied his brakes and in order to avoid hitting the car he tried to go to the right, and in doing so hit the west part of the south guard rail; that he did not think he struck the defendant’s car; that plaintiff Was sitting on the seat beside him at the time of the accident; his lights were in good condition; a short time before, in passing another car, he had changed them to dim and had not .changed them back to bright prior to the accident; that with, his dimmers turned on he could see about thirty-five or forty feet in front of him; that he was overdriving his lights.'

Plaintiff testified she was reclining on the back of the seat shortly before the accident; her attention was attracted by the application of the brakes, and she looked up; she could not say how far the car was from the standing car at that time.

Several witnesses arriving at the scene of the accident after its occurrence testified to the position of defendant’s car and the other car on the highway when they arrived.

Witness Perry was on the scene when the last accident occurred. He was coming west from Mercedes and passed the standing car at the culvert. As he passed he saw a white sleeve protruding out of the door of the car. He drove by, stopped and walked back. Shortly before he got to the standing car he heard another car coming from the east, looked back, and he shouted to his wife to drive on and he ran east, heard the crash behind him and turned and came back to where the two cars were; that the standing car had been knocked east and the colliding car was in about the'same position that the standing car had been in when he first saw it. He had no trouble in passing the standing car; for a car going east part of the road was closed to it.

The foregoing is a summary of the testimony relative to the question to be discussed. It might be added that it seems to have been assumed throughout the trial by each party that the defendant did strike the concrete post before the accident directly in question here.

Defendant contends that the only evidence here of any negligence on his part is in running into the concrete post; if it be conceded that that was negligence, then, as a matter of law, such negligence was not the proximate cause of the plaintiff’s injuries. It is likewise urged that plaintiff was, as a matter of law, guilty of contributory negligence, and .therefore the jury should have been instructed to find a verdict in defendant’s favor.

There could be but little question had the defendant voluntarily parked his car in the position it was at the time of the accident an issue would have been tendered as to proximate cause, the necessary supporting issues being found in favor of plaintiff.

Accepting defendant’s theory of the evidence in a measure it must be conceded the actual cause of the position of the car at the time of the accident was his collision with the post. Further, if we accept defendant’s testimony, it must be conceded that after the car was placed in said position in the highway, it was not by the further voluntary acts or omissions of defendant that it remained there. The jury seemed to have accepted this testimony, for they found defendant was not guilty of negligence in leaving his car in the position it was at the time of the last accident.

It is urged that the negligence found in special issue No. 1 could not be the proximate cause of the injury, because a new independent, intervening, cause broke the causal sequence. This must be based on the theory of the negligence of the driver, Ed Bean. The jury found, on sufficient evidence, we think, that such negligence was not the sole proximate cause. If the original wrongful act cooperated and concurred with a new, unforeseen, independent and intervening cause to bring about the injury, the act or omission of defendant may still be a proximate cause. Texas Power & Light Co. v. Culwell, Tex.Com.App., 34 S.W.2d 820; Texas Public Service Co. v. Armstrong, Tex.Civ.App., 37 S.W.2d 294.

The question of contributory negligence of the plaintiff was not submitted to the jury. Contributory negligence on the part of the plaintiff does not present the issue of new, independent, intervening cause. Lowrimore et al. v. Sanders, 129 Tex. 563, 103 S.W.2d 739, 106 S.W.2d 266.

Defendant contends that, as a matter of law, the injury was not reasonably to be foreseen as a result of the negligence, and therefore the negligence found was, as a matter of law, not a proximate cause- of the injury. The case of Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, is said conclusively to support this position. To determine whether the negligent omission in question (the failure to maintain a gate with a sufficient latch or fastening) was the proximate cause of the personal injuries involved, the court posed and answered this question: “Ought the- agents of the company to have foreseen that, as a result of the imperfect fastening of the gate, the injury, or any injuries similar in character, would probably result?” The question was answered by the court in the negative. Had the answer been in the affirmative, the holding would have been that an issue of proximate cause was raised.

This principle, we think, was announced in the case: That, in order to make an act or omission not amounting to a wanton wrong, actionable, the injury, or some like injury, therefrom must be reasonably foreseeable as a result by the defendant.

The principles announced in the Bigham case had been theretofore announced and applied in the case of Seale v. Gulf, C. & S. F. Ry. Co., 65 Tex. 274, 57 Am.Rep. 602.

So far as we have been able to find, the law announced in the Seale and Bigham cases has been consistently adhered to by the Supreme Court.

The immediate act of defendant found to constitute negligence was, it is true, leaving the traveled portion of the highway and striking the post. This guard rail was placed there to mark the limits of the course one might drive on the southerly half of the highway. It is to be inferred that it was a substantial obstruction. It might be reasonably inferred that the striking thereof would stop the car and injure the driver; that after the injury he might be unable to move the car or control same; it might or might not obstruct the highway.

Although, under the evidence, the question of proximate cause may be a question of law, ordinarily it is a question of fact for the jury. Paris & G. N. Ry. Co. v. Stafford, Tex.Com.App., 53 S.W.2d 1019.

We hold the question of proximate cause was an issue of fact, and believe our holding is supported by the following cases: Sullivan v. Flores, 134 Tex. 55, 132 S.W.2d 110; Missouri-K.-T. Ry. Co. v. McLain, 133 Tex. 484, 126 S.W.2d 474; Carey v. Pure Distributing Corp., 133 Tex. 31, 124 S.W.2d 847; Sturtevant v. Pagel, 134 Tex. 46, 130 S.W.2d 1017.

Evidence establishes that plaintiff was the guest of the driver of the car and not in joint control thereof. This being the fact, his negligent acts or omissions were not the acts or omissions of plaintiff.

Just prior to the plaintiff’s injury, Ed Bean was overdriving his headlights. It might be that one overdriving his headlights is negligent. If so, the evidence does not show that plaintiff was aware that the headlights were being overdriven. The distance in which a car can be stopped, of course, depends in a large measure on the efficiency of its brakes. Condition and efficiency of the brakes are perhaps necessarily known to the driver of the car, but not necessarily so as to a passenger or a guest riding therein. Negligence, as a matter of law, is not shown by plaintiff’s failure to warn the driver or protest at the rate of speed. Plaintiff’s attention was called to the road in front by the application of the brakes. The deduction is made she was not keeping a proper lookout and entirely wanting in any care for her own safety. The failure. to keep a lookout is said to convict her of contributory negligence.

Assume, for the purpose of this discussion, that she! was negligent; but even with such an assumption the evidence fails to show conclusively that it caused or contributed to her injury. Had she kept a lookout, there is no ' evidence that she would have discovered the obstructing car before Bean. Bean, on the discovery of the standing car, seems to have acted with great promptness and with due regard for the safety of the person or persons that might be occupying the standing car.

The situation here is distinguishable from that presented in the case of Texas Mexican Ry. Co. v. Hoy, Tex.Com.App., 24 S.W.2d 18. There, the guest knew the c'ar was being driven in a place of great danger. He closed his eyes to such danger. Here, there was nothing to indicate any special condition or danger. Here, the situation is analogous to that presented in the case of Schumacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857. The circumstances did not indicate any necessity on the part of the guest for a high degree of care in the matter of a lookout.

The evidence fails to show that the headlights on Bean’s car were not in compliance with Articles 798 and 827a of our Penal Code, Vernon’s Ann.P.C. arts. 798, 827a.

The judgment is affirmed.


text:
    GETZWILLER v. FERGESON.
    No. 5232.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 9, 1940.
    Grady L. Fox and John Merchant, both of Amarillo, for plaintiff in error.
    James O. Cadé, of Amarillo, for defendant in error.
   FOLLEY, Justice.

The plaintiff in error, Joe Getzwiller, hereinafter called, plaintiff, filed this suit against the defendant in error, W. E. Fer-geson, hereinafter called defendant, to recover damages for personal injuries suffered by plaintiff as a result of having been struck by a taxicab belonging to the defendant and driven by his employee in the course of his employment.

The injuries occurred on Christmas morning, 1938, at about ,1:30 A. M. • At the time he was struck plaintiff was “jaywalking” north across West Sixth Avenue in the City of Amarillo, Texas, some 75 feet east of the intersection of 'Such avenue with Van Burén Street. He was hit by defendant’s taxicab which was travelling east along Sixth Avenue. The place the plaintiff attempted to cross the avenue was immediately in front of the Angelus Hotel which is on the south side of the avenue. Several automobiles were parked at the south curb in front of the hotel. Behind these parked cars was another taxicab belonging to the defendant momentarily double-parked with a lady passenger. The plaintiff walked out north from between or near the parked cars and proceeded on in front of the double-parked taxicab and just as he had passed the middle of the avenue he was struck by defendant’s other taxicab traveling east which was apparently attempting to pass abound north of the'double-parked taxicab.

In a trial before a jury the defendant was. found guilty of three specific acts of negligence, each of which was found to have been a proximate cause of the injuries. These acts of negligence were that the defendant’s driver was driving on the left-hand side of the avenue, that he was driving in excess of 20 miles per hour, and that he failed to keep a proper lookout for pedestrians. The jury also found the plaintiff guilty of contributory negligence in undertaking to walk across the avenue at a point east of the crosswalk at the intersection and that such negligence was a proximate cause of his injuries. In response to another issue the jury found that plaintiff did not fail to keep a proper lookout for his own safety on the occasion in question. Upon this verdict the court rendered judgment for the defendant.

The plaintiff presents several assignments of error and propositions based thereon seeking to reverse the judgment of the trial court. Such assignments and propositions are not supported by any statement from the record as required by law and the rules for briefing. Therefore, unless fundamental error is apparent, they are not entitled to consideration. 3 Tex.Jur. 849, para. 621; Young v. Harbin Citrus Groves, Inc., et al., Tex.Civ.App, 130 S.W.2d 896, writ of error refused; Commercial Inv. Co. of Uvalde v. Graves et al., Tex.Civ.App., 132 S.W.2d 439, writ of error refused; National Liberty Ins. Co. v. Herring Nat. Bank of Vernon, Texas, Tex.Civ.App., 135 S.W.2d 219; Carle Oil Co., Inc. v. Owens, Tex.Civ.App., 134 S.W.2d 411; Ohmart v. Highbarger et al., Tex.Civ.App., 43 S.W.2d 975, writ of error refused; Ellerd v. White et al., Tex.Civ.App., 251 S.W. 274; Threadgill et ux. v. Fagan, Tex.Civ.App., 64 S.W.2d 405.

However, if such assignments and propositions had been sufficiently presented we have determined they are without merit; and this we shall briefly attempt to demonstrate.

The assignments and propositions may be grouped into two general contentions, namely: (1) that the evidence was insufficient to support the finding relative to plaintiff’s contributory negligence and (2) that there was a material conflict in the findings of the jury relative to plaintiff’s alleged contributory negligence.

In answer to the first contention we deem it sufficient to state that the testimony, in our opinion, amply supports the findings that the plaintiff was negligent in undertaking to cross the street at the point he did and that such negligence was a proximate cause of his injuries. In this connection, however, the plaintiff asserts the court erred in admitting in evidence a copy of a city ordinance of the City of Amarillo prohibiting “jaywalking”. No objection was made to its introduction by the plaintiff in the trial court. Furthermore, under the record, we think this matter becomes immaterial. The plaintiff was shown to have been a policeman for the City of Amarillo for 8 or 9 years and to have been a night watchman at the time of his injuries and for 7 or 8 years prior thereto. He testified he knew that it was a violation of a city ordinance to cross the street at the place and in the manner he was attempting to cross at the time he was hit. Moreover, the trial court did not rely upon the ordinance as convicting the plaintiff of negligence per se but submitted such issue to the jury. We overrule this assignment.

The second contention of the plaintiff with reference to the alleged conflict is based upon the finding that the plaintiff was negligent in undertaking to walk across the avenue at the point east of the crosswalk at the intersection and the other finding that the plaintiff did not fail to keep a proper lookout for his own safety on the occasion in question.

We are of the opinion these findings were independent issues of fact raised by the pleadings and the evidence and are not irreconcilable. The true test of a conflict in findings is succinctly stated in Speer’s Special Issues, para. 431, in the following language: “The conflict in findings that destroys the verdict is that irreconcilable difference of findings with respect to an indispensable fact in issue in the case where both findings cannot be true, but one or the other must of necessity be false”. Measured by such a rule there is no inconsistency in the finding that plaintiff was negligent in undertaking to cross the street at the point he did and the finding that he did not fail to keep a proper lookout for his own safety on the occasion in question. We think these findings may be harmonized upon the theory that the plaintiff negligently placed himself in a hazardous situation after which he kept a proper lookout while in the danger zone. But the mere fact that a person keeps a proper lookout under such conditions is no justification or excuse for his having theretofore entered into the place of peril nor would a proper lookout under such circumstances necessarily prevent the reception of injuries by reason of his negligent conduct in the first instance. Any construction to the contrary would be tantamount to holding that a person might negligently place himself in a position of peril and be excused from such negligence provided he thereafter kept a proper lookout. Such could not be the law. The contention in this respect is therefore overruled. Thrush et al. v. Lingo Lumber Co., Tex.Civ.App., 262 S.W. 551, writ of error refused.

The judgment is affirmed.


author: LESLIE, Chief Justice.

text:
    WASSON v. COLLINGS, Judge, et al.
    No. 2135.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 22, 1940.
    Rehearing Denied Dec. 20, 1940.
    Thomas & Thomas, of Big Spring, for relator.
    O. M. Street, of Dallas, and Cecil C. Collings, Dist. Judge, of Big Spring, for respondents.
   LESLIE, Chief Justice.

This is an original proceeding in this court by relator, Wasson, against Cecil C. Collings,'Judge of the 70th Judicial District of Texas, to require him to do one or the other of the following acts:

“(b) That on hearing hereof a writ of mandamus issue to the Respondent (Judge) requiring him to enter a final judgment in said cause No. 3708 of the District Court of Howard County as of date September 28, 1940.
“(c) That in the alternative on hearing hereof, if. for any reason the writ cannot direct that the final judgment be entered as of September 28, 1940, then that the Respondent be required to enter final judgment on the presentation of the motion nunc pro tunc therefor at the next succeeding term of the said district court (November term 1940).
“(d) Or in the third alternative, that in case for any reason the writ should not direct the entry of a judgment as of September 28, 1940, or on a motion nunc pro tunc, then that the writ direct the court to retry the cause and enter a final judgment of some kind and. do so without further delay, at this next term.”

This proceeding is predicated upon the proposition that after a trial of cause No. 3708 in the District Court of Howard County September 28, 1940, Judge Collings refused to enter a judgment and refuses to set the cause down for trial and render a judgment therein. That in so doing he abuses his discretion as a trial judge and denies the relator, plaintiff therein, a decision in said cause.

In cause No. 3708, the plaintiff A. L. Wasson alleged- he was the owner of sections 20, 21, 22 and 23, H. & T. C. Ry. Company Survey, Howard County, Texas, and that the defendants J. S. Garlington and wife were in possession of said lands without right or title and refused to surrender same to him. The prayer in that petition is as follows: “Plaintiff prays for a decree declaring his right to possession of the said property together with all the fixtures, houses * * and that he be given his order of possession * * * against defendants * * *; and further that the regularity of the foreclosure under the deed of trust be held in all things valid * * * and that the plaintiff be held to be the owner of the land ■ * * in fee simple * *

By cause No. 3708 in the District Court of Howard County, it appears that the plaintiff Wasson sought to have his title, acquired at the trustee’s sale, adjudicated free from any defects incident to the sale. That is the nature of the cause which Relator alleges the District Judge refuses to decide or set down for a trial and final decision.

Other facts out of which this proceeding arises are in substance, as follows:

October 25, 1939, J. S. Garlington and wife, Jennie. Lou Garlington, filed in the Federal District Court at Abilene, Texas, a petition in bankruptcy seeking to avail themselves of the Frazier-Lemke Act (Bankr.Act), sec. 75, sub. s, etc., 11 U.S. C.A. § 203, sub. s. The petition was in due form, accompanied by schedules listing property, debts, etc. So far' as this record shows the proceeding is still pending in that court, but its present status is not definitely indicated. In other words, the cause may possibly be on appeal.

Schedule B lists various properties, among them, said sections 20, 21, 22 and 23. On September 3, 1927, the Garlingtons executed a deed of trust thereon to secure Relator, A. L. Wasson; for a loan of $5,-000. C. L. Wasson was made trustee. On maturity of the debt and default in its payment, he refused to act and under the terms of the trust deed, Ira E. Wasson was made substitute trustee. On December 6, 1939, he advertised the property for sale and January 2, 1940, sold same at public sale to A. L. Wasson, mortgagee. The next day, January 3, A. L. Wasson instituted cause 3708 in the District Court of Howard County. Prior to these dates the Garlingtons had, on October 25, 1939, filed their petition in bankruptcy.

The April, 1940, term of the District Court of Howard County was the first term after service of process was perfected in cause ,3708. At that term the cause was passed by agreement of the parties. At the following September term of that District Court, the cause was set for trial September 23, 1940. At the time set, the Garlingtons stated in open court before any announcement of ready for trial that a continuance of the cause would probably be applied for, stating to the court then that the ground for such motion would be that they had learned for the first time on Saturday morning, September 21, at about 11 o’clock a.m., that the Clerk of the United States District Court at Abilene would not release -to them the original papers on file in cause No. 1864, styled In re J. S. Garlington et ux., Debtors, Composition or Extension. That it was then too late to obtain certified copies of said orders, etc., and that it was impossible to contact the Federal District Judge, the Hon. T. W. Davidson to' secure permission in writing for the removal of such papers. The Hon. C. C. Collings, District Judge, then announced from the bench that such motion could, if necessary, be reduced to writing during the trial of said cause. This appears to have been the Respondents’ first motion or request for a continuance. The record shows none charged to defendants prior to September 23.

The above is in substance the understanding upon which the court, on September 23, proceeded with the trial of cause 3708. The defendants’ plea in abatement on. the ground of lack of jurisdiction of the District Court of Howard County due to the alleged pendency of said cause under the Frazier-Lemke Act in the Federal Court at Abilene, appears to have been carried along for consideration with the trial of the case on its merits. The trial proceeded and the parties closed, but a short time thereafter the trial court reopened the case, on September 28, and permitted the defendants to introduce additional testimony, namely, the amended petition in bankruptcy, etc. Finally, and at the conclusion of the hearing, the trial court granted the defendants’ continuance, .as disclosed by an order to that effect which is incorporated in this petition for mandamus filed here October 18, 1940.

Without going into details or discussing at length the nature of the testimony sought to be introduced, the statement of facts does show that the evidence introduced on the trial of cause No. 3708 embraces, .among other matters, the “Amended Debtqrs’ Petition in Proceedings under Sec. 75, sub. s of the Bankruptcy •Act, Northern District of Texas”, sworn to by the Garlingtons October 6, 1939, and ■filed in the Bankruptcy Court October 25, 1939. The statement of facts discloses other admissible testimony in corroboration ■of the fact that the bankruptcy court by such proceeding then acquired “exclusive jurisdiction” of the “farmer (Garlington) and all his property” both real and personal, and wherever situated. 11 U.S.C.A p. 974, § 203 et seq.

Subdivision n of the section, in part,' reads: “The filing of a petition or answer with the clerk of court, or leaving it with the conciliation commissioner for the purpose of forwarding same to the clerk of court, praying for relief under this section, shall immediately subject the farmer and all his property, wherever located, for all the purposes of this section, to the exclusive jurisdiction of the court, including all real or personal property * * *.”

Subdivision o of said section is even more specific and emphatic in declaring exclusive jurisdiction under the circumstances of the Federal Court over the property and person of the farm debtor. Further, there is nothing in the record to show that the Federal Court has in any way relinquished its jurisdiction of such matters or granted any petition authorizing said proceeding (3708) against the Garling-tons or their property.

Such being the record, we do not believe that the district judge in any way abused his discretion in refusing to proceed further with the trial and render a judgment which, whatever its nature, would have been void under the Federal statutes referred to. John Hancock Mutual Life Ins. Co. v. Bartels, 308 U.S. 180, 60 S.Ct. 221, 84 L.Ed. 176; Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370. See Frazier-Lemke Act in general and the numerous citations thereunder in the Code.

We cannot presume that the trial court will refuse to try the case in the District Court of Howard County as soon as the jurisdiction of the Federal Court has been relinquished over the property involved. .So soon as that proceeding in the bankruptcy court ceases to be an obstacle to -the trial, the judge will undoubtedly hear without delay and determine the cause of .action on its merits.

Further, under the circumstances stated, this court would not be warranted in holding that the trial court in granting the continuance acted so unreasonable as to be a clear abuse of discretion, amounting to a refusal to proceed with the trial pursuant to law. Matagorda Canal Co. v. Styles, Tex.Civ.App., 207 S.W. 562; Brammer v. Campbell, Judge, Tex.Civ.App., 76 S.W.2d 791, 792.

For the reasons assigned, the relief prayed for is refused.


author: FUNDUBURK, Justice.

text:
    ELLETT v. MITCHAM et al.
    No. 2053.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 25, 1940.
    Rehearing Denied Nov. 22, 1940.

      Hughes, Hardeman & Wilson, of San-Angelo, for appellant.
    F. D. Wright, of Cisco, and Conner & Conner, of Eastland, for appellees.
   FUNDUBURK, Justice.

This suit by Mrs. Callie Ellett, a widow, against G. P. Mitcham and Lone Star Gas Company, in which plaintiff seeks recovery of an undivided one-half interest (amounting to about 40 acres) in the south 333 acres of Survey 386, S.P.R.R. Co. lands, in Eastland County, having been tried without a jury, resulted in a judgment for defendants, from which plaintiff has appealed.' The trial judge made and filed conclusions of fact and law. The appellant will be referred to as plaintiff, and the appellees as defendants.

The judgment is correct upon the ground alone that defendants were owners of the land by operation of the 10-year statute of limitation, R.S.1925, art. 5510, unless the taking of a deed by G. P. Mitcham from A. H. Ellett, the divorced husband of plaintiff, within the necessary 10-year limitation period had the effect, as a matter of law, of establishing conclusively that Mitcham’s possession was not adverse. According to the conclusions of fact, unchallenged in the following particulars, I. H. Courtney and S. J. Courtney, his wife, were the common source of title. By deed dated August 17, 1918 said I. H. and S. J. Courtney conveyed land, including the land in 'question, to A. H. Ellett and J. G. Baccus. The land was divided into lots and blocks and after hundreds of different portions of same had been sold, said Baccus, by deed dated December 16, 1919 conveyed his remaining interest to said A. H. Ellett. By deed dated May 28, 1929 A. H. Ellett conveyed his right, title and interest to all the land in the original tract to G. P. Mitcham. Prior to said last-named conveyance, and continuously since the early part of, 1927, G. P. Mitcham had held peaceable and adverse possession of the land and continued to do so until title by limitation was perfected, unless, as said before, the adverse character of his possession was interrupted or shown not to be adverse, by the fact >of his acceptance of said deed from Ellett.

A particular further finding of the trial judge was “that * * * G. P. Mitcham did not by securing the aforementioned deed dated May 28, 1929, executed by A. H. Ellett, Grantor, covering said Grantor’s interest in and to the south half of said Sec. 386, interrupt or break his continued and uninterrupted possession. I further find that the said G. P. Mitcham was not claiming title to said south half under said deed from A. H. Ellett and that by the execution of said deed the defendant, G. P. Mitcham, did not acquiesce in or agree to a superior title claimed by plaintiff.”

Upon the many authorities cited in White v. Greene, 129 S.W.2d 801, 803, we concluded in that case that it was a sound legal proposition “that in order for a possession of land to be adverse within the intent of the law providing for the acquisition of title by limitation, the claim of right, admittedly essential on the part of the possessor, need be adverse only to the owner of the land, or as including such owner.” If indeed, as we still believe, this is a sound legal proposition, then, as respects the half interest for which the plaintiff sued and which only is involved in this suit, said deed from A. H. Ellett to G. P. Mitcham was no evidence of any interruption of Mitcham’s adverse possession. The deed only purported to convey all the right, title and interest of A. H. Ellett in and to all the south half of Sec. 386, S.P.R.R. Co. lands in Eastland County. If said Ellett and plaintiff had then been divorced and said land was their community property, then A. H. Ellett’s right, title and interest, which only the deed purported to convey, was his own half of what both owned. The deed purports to convey no more, and, was, therefore, no evidence that Mitcham recognized the plaintiff as owner of any interest in the land.

Aside from the above, we think the decision in Meaders v. Moore, 134 Tex. 127, 132 S.W.2d 256, 125 A.L.R. 817, is authority for the proposition that the taking of a deed like that of Ellett’s by one already in the adverse possession of land like Mitcham, does not, as a matter of law, conclusively establish that the possession is not adverse. ' If so, then the findings of the trial judge conclude the question of fact involved against the plaintiff.

Although plaintiff apparently entertains a different view we think the conclusions of fact support the judgment upon another, and different ground than that of limitation. Plaintiff claims through a deed conveying the land to her former husband A. H. Ellett. Her title, if any, results from her marital status and the presumption that the land was community property, the conveyance having been made during the existence of the marriage relation. A. H. Ellett had the legal title and plaintiff’s, title was equitable. Mitchell v. Schofield, 106 Tex. 512, 171 S.W. 1121; Howard v. Loan Ass’n, 127 Tex. 365, 94 S.W.2d 144; Strong v. Strong, 128 Tex. 470, 98 S.W.2d 346, 109 A.L.R. 739. Plaintiff had the burden of establishing that the defendants were not innocent purchasers. Mitchell v. Schofield, supra. Among other things, the trial judge found “said divorce decree was not recorded in Eastland or Stephens County, Texas. * * * The said G. P. Mitcham had no actual knowledge of or information pertaining to the aforesaid divorce decree. At the time of the execution of said deed the said A. H. Ellett did not mention or in any manner refer to said divorce decree or to his marital status.” These findings, it seems to us, effectually exclude plaintiff’s right to recover the land because she did not discharge the burden- upon her to show that Mitcham was not an innocent purchaser.

It is our conclusion that the judgment should be affirmed and it is so ordered.


author: WALTHALL, Justice. PRICE, Chief Justice.

text:
    ZAVALA COUNTY WATER IMPROVEMENT DIST. NO. 3 et al. v. ROGERS et al.
    No. 3984.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 31, 1940.
    Rehearing Denied Dec. 5, 1940.

      G. C. Jackson, of Crystal City, and D. E. Hume, of Eagle Pass, for appellants.
    Gaines, Gaines & Roberts, of San Antonio, and John L. Pranglin and F. C. Sorrell, both of Pearsall (C. M. Gaines, of San Antonio, of counsel), for appellees.
   WALTHALL, Justice.

On March 31, 1937, Wallace Rogers, and many others, whose names are stated, as plaintiffs, for their own use and benefit and for the use and benefit of all owners of lands with riparian rights bordering on the Leona River and similarly situated with plaintiffs’ lands, filed their first amended original petition, complaining of defendant Zavala County Water Improvement District No. 3, and in their petition representing the defendant Water District as being a duly, legally and regularly created water improvement district lying and being wholly within Zavala County, Texas, and created under the laws of the State of’ Texas relating to the creation of such districts, and having for its directors John Maddox and four others named. The plaintiffs include as defendants in their individual capacities the named directors of the defendant Water District, namely, John Maddox, Earl F. King, J. B. Britton, Syd Jones and William Hargreaves.

Plaintiffs represent that each of plaintiffs is the owner of lands bordering on the Leona River, in Frio County, Texas, their said lands particularly set out and described in a designated exhibit attached to and made a part of the petition; that said .lands of plaintiffs are situated oh the Leona River and have riparian rights 'in the waters of the river, and plaintiffs are riparian owners and are entitled to the reasonable use of such waters, the Leona River being a public stream, and the waters thereof being public waters.

We omit stating plaintiffs’ complaint as to defendant Mrs. Cordelia Kincaid, she having filed a disclaimer and was dismissed from the suit.

The petition alleges that defendant Zavala County Water Improvement District No. 3 includes land on the Leona River, and fully describes the said lands, which description we omit, such lands situated on the Leona River, in Zavala County.

The petition alleges that heretofore said defendant Water District has maintained a dam across the Leona River at a point touching the land within the boundaries of such Water District, and has obstructed the flow of the water of such river both as to flood waters and as to the normal flow, and has diverted said water without any appropriation of the flood waters, and has used the riparian waters (the normal flow) to an extent greater than that to which the riparian lands in such water district are entitled, and has at times impounded all the waters flowing down such river to such dam and preventing the water in the river from passing such dam to plaintiffs’ said lands, to plaintiffs’ injury and damage ; that such dam constructed by defendant Water District was destroyed by flood in June, 1935, and defendant Water District is threatening to and will reconstruct the dam if not prevented, and again divert the said waters; that the said lands of plaintiffs are used by plaintiffs for purposes of farming and stock raising, and are dependent on the waters of said river for their livestock and for general domestic purposes, and their said lands have had heretofore an added value by reason of such river frontage; that said river is fed largely by springs, and during the greater portion of the year, if permitted to flow normally, is a flowing stream and has heretofore flowed past plaintiffs’ said lands and kept the natural reservoirs in the bed of such stream adjoining plaintiffs’ said lands full of water for their livestock and for ordinary domestic purposes; ■ that the normal flow of such river has never been such, on an average, as to justify the use of such waters for irrigation without injury to lower riparian owners.

Plaintiffs say that such action of de-r fendant in diverting the said waters constitutes a trespass upon their said lands and upon their rights to use the waters in said river, and if continued will result in permanent and irreparable injury to such lands.

Plaintiffs allege, and the evidence shbws, that the rebuilding of the dam by defendant has never been submitted to or ap^ proved by the Board of Water Engineers.

Plaintiffs pray for a temporary restraining order, and on final hearing, that the restraining order be made permanent restraining defendant from further construction or operation of such dam and distributing ditch, and for such further relief, whether at law or in equity, as plaintiffs may be entitled to. Plaintiffs’ petition is verified.

On April 15, 1937, on the hearing for a temporary injunction, plaintiffs and defendants announced to the court that an agreement had been reached by the parties as to the matters involved in the hearing, as follows:

That the defendants shall not at any t.ime conduct or maintain any improvements, dams or diversion ditches or other works that will not permit at all times the normal flow of the waters in the Leona River to pass down said stream, except in so far as preferential rights, as prescribed by statute, are concerned. It is further agreed that as soon as may be, the Board of Water Engineers, or some one designated by them, shall make all necessary measurements in determining the normal flow of the waters of the said Leona River, and thereafter shall report to the court their findings as to the normal flow as above outlined; and such findings' shall control the rights of the parties herein in so far as the waters of' said stream are concerned.

The court approved the above agreement as the judgment of the court, and ordered that same shall remain in full force and effect until the final judgment is entered in said cause.

The court further ordered that the defendants, and each of them, be temporarily enjoined from doing anything whatsoever that may be construed to be a violation of this order, judgment or decree.

On August 28, 1939, defendants filed their first amended original answer, consisting. of a general demurrer, suggesting the death of- Albert Hauser, one of plaintiffs, two special exceptions, the first as to the want of necessary parties, the exception submitting that all of the owners of land in the defendant Water District, naming them, and not made defendants, were necessary parties; the second special exception suggests that T. P. Lee, owning and operating the Cordelia Kin-caid Darq, situated some eleven miles above defefadants’ dam on the Leona River, and diverting the waters therefrom, was a necessary party; general denial;- the statute of limitations.

Each plaintiff asserts riparian ownership of land in his own right within and over and above the rights of defendant Water District which he asserts authorizes him to take for his purposes the quantity of water authorized by law; the defendant Water District pleads that it is a municipal corporation and that on September 1, 1936, by conveyance, the Comanche Irrigation Company transferred to it all of the water rights in and to the Leona River in Zavala County, Texas, owned and possessed by it (Comanche Ir.rigation Company), including the dam, irrigation ditch, etc., and in connection therewith, and at much length, states that on February 7, 1876, the parties, naming them, incorporated the Comanche Irrigation Company to construct, own and operate a ditch eight feet wide and two and one-half feet deep, stating its location and length, the said ditch to be used for manufacturing and irrigation purposes, and stating other matters with reference to said ditch not necessary to state here; that the ditch is now ’ carrying all the water there is in the river and has the capacity to carry much more; that flourishing crops have been grown the present year (1939) upon these fields by irrigation from the ditch and other preparations made for other crops in the future; that defendant Water Company complied with the irrigation law approved March 19, 1889, c. 88, and the Act amendatory thereof approved March 19, 1893, c. 44, stating in detail the things done, and, for the facts stated, referred to the records of Zavala County; that on June 18, 1914, defendant Water Company filed with the County Clerk of Zavala County an affidavit showing that one thousand acres of land were then being irrigated by it from the Leona River, the point of diversion, the size and carrying capacity of its ditch.

Defendants aver that by reason of the matters stated and by their claim of right to said waters, defendants acquired by prescription a vested right and title to the waters of the Leona River at the site of the headgate, and the right to use all the water sufficient to meet their needs for irrigation, and that plaintiffs knew all of the facts stated and the uses made by defendants of said waters and acquiesced therein.

At the close of the evidence plaintiffs filed and urged a motion for an instructed verdict in their favor, for the reasons:

1. Plaintiffs have shown themselves to be the owners of the lands on the Leona River (and Frio River), and are entitled to the riparian rights and the waters of such rivers.

2. That the Zavala County Water Improvement District No. 3 and other defendants are diverting part of the normal flow of the Leona River to the injury of the rights of the plaintiffs.

That the Zavala County Water Improvement District No. 3 and the other defendants have no right in and to the waters of the Leona River or any right to divert the same.

The court instructed the jury as follows:

“Gentlemen of the Jury:
“Under instructions from the court you are instructed to find the following verdict:
“We, the jury, find in favor of the plaintiffs.’-’

The court received the verdict. -In the judgment, after referring to the matters stated in the motion to instruct the verdict, the court said: _ “And it appearing to the court that the plaintiffs remaining in said cause were owners of the lands bordering on the Leona and Frio Rivers, and own-interest in such lands with right in riparian waters of such rivers and entitled to have the normal flow of the waters of such-rivers continue to pass their place uninterrupted by the defendants; the defendants had no right in such waters, but were diverting same without right, such motion was granted, and the following instructions given.”

The court then quotes the instructions and the verdict as above, and enters judgment that all plaintiffs, except plaintiff Albert Hauser, have judgment against the defendants, naming them, and that the defendants be perpetually enjoined from obstructing or diverting at any time any part of the normal flow of the Leona River, and that plaintiffs recover their costs.

Defendants excepted, gave notice of appeal.

Opinion.

The court having instructed the verdict, and there being no facts in the record other than those noted and stated in the judgment, we have stated the contentions of the parties as indicated in their pleadings more fully than we otherwise would.

There is no material controversy in the facts upon which this case must be decided.

As disclosed by the uncontroverted evidence, appellees severally own the lands described in their petition; that said lands border on the Leona River, and appellees are entitled to have the normal flow of the waters of said river continue to pass their said lands for their domestic uses uninterrupted by appellants, unless the appellants own by appropriation or prescription all of the normal water in the said river, and have the 'right thereunder to, use the waters for irrigation, as claimed by them in their answer.

The trial court had the report of the State Board of Water Engineers on the normal flow of the Leona River at the points involved in this case. The report of ■the Board is too lengthy to copy here. It ■shows, however, the discharge of the river at points below the appellants’ dam and the total amount of diversion of water to be thirteen second-feet, which virtually embraced the entire flow of the river, and left the river dry below such point, or standing in pools.

Appellants assert in their answer that, '“the ditch is now carrying all the water -there is in the river,” and has the capacity to carry much more than the river supplied. As stated above, appellants’ defense to the •suit is, "that it claims to own all the water in the river at the point of diversion by prescription, and claims the right to divert it. The prescription right of ownership as •appears by the evidence is by a series of years of appropriation; that is, by observance of the laws under which the right to use the unappropriated waters in streams may be acquired.

We must confine our opinion to the exact point at issue as made by the pleadings.

The right of the owner of riparian land to use the normal flow of the waters of the stream upon which it borders is an appurtenance thereof in the nature of an incorporeal hereditament.

Riparian rights constitute property within the meaning of the Constitution' and cannot be taken without the riparian owner’s consent, unless the element of estoppel or some other matter recognized by law, such as prescription, is shown. Bigham Bros. v. Port Arthur Canal & Dock Co., 100 Tex. 192, 97 S.W. 686, 13 L.R.A.,N.S., 656; 44 Tex.Jur. 48.

It is held in Mud Creek Irr. Agr. & Mfg. Co. v. Vivian, 74 Tex. 170, 11 S.W. 1078, that the mere fact that the Legislature has authorized the appropriation of certain of the public waters cannot defeat the riparian owner’s right. The riparian rights are superior to any right of appropriation obtained under the statute. Matagorda Canal Co. v. Markham Irr. Co., Tex.Civ.App., 154 S.W. 1176.

We think other persons diverting the waters in the stream who acted in concert are not necessary parties defendant, but may be joined in an equitable proceeding as joint wrongdoers, since each is liable. Jefferson County Drainage Dist. v. Langham, 124 Tex. 167, 76 S.W.2d 484. But the rule seems to be different when the wrongdoers acted independently of each other, since the liability is several and not joint. This suit, being equitable, all, while not necessary parties, may be joined to abate the wrongdoing.

This suit being by riparian owners to abate a wrongful diversion of the waters of a stream, it is not necessary that all riparian owners of land on the stream join in the suit as plaintiffs; some such owners may sue for themselves and for all others similarly situated.

Under the evidence appellants did not acquire the ownership of the waters in the stream by appropriation.

Answering more specifically some of the points raisfed by appellants, we think the suit by appellees for themselves and all others similarly situated is sufficient to include all riparian owners on the Leona River in Zavala County as parties plaintiff in the suit. They are in the same class. The defense by' appellants was the same as to each appellee, including Albert Hauser, one of the plaintiffs, who died pending the suit. We think under the circumstances shown in the record the court was not in error in not abating the suit to make his successors in interest parties, their interests being sufficiently represented by other plaintiffs in the suit.

The Zavala Water District was the defendant owning the dam and the defendant claiming the right by appropriation and prescription under the Comanche Company, and the defendant company being the one that diverted the waters of the river, we think we need not discuss or refer to other appellants separately, but will consider only the Water District in considering the right to divert the waters.

The evidence shows, we think, that the Comanche Company, under whom appellant Water District claims, had diverted all the water of the stream and made use of it for irrigation of the lands in its district for more than thirty years, and without any interruption.

Appellant here claims the ownership of the water by reason of such appropriation and use made of it by the Comanche Company and by itself during the next preceding years before the filing of appellees’ suit.

Appellants offered in evidence a deed from the Comanche Irrigation Company purporting to convey to it the ditch and such rights as that company had in the stream by reason of its appropriation and use made of its waters. On objection, the court excluded the deed on the grounds that it purports to be a deed by a corporation without a corporate seal, it had not been filed in the cause and notice of its filing given, and that the Comanche Irrigation Company, prior to the execution of the deed (1912), had forfeited its right to the execution of the deed by failure to pay its franchise tax, and its right had not been reinstated.- The record shows that the deed was such instrument that, to be offered in evidence under Article 3729, R.S. it must be filed among the papers of the suit and notice of the filing given.

To avoid the effect of not filing the deed and giving the notice, appellant offered the evidence of a Mr. Maddox, one of the directors of the Comanche Company, to the effect that witness did not know that the Comanche Company had a seal; witness signed the deed and saw the other directors sign it.

Article 1322 of the Revised Statutes, 192S, provides that any corporation may convey land, sealed with the common seal of the corporation, and signed by the president or presiding member or trustee of the corporation, or by its attorney in fact.

We think we cannot say, from what has been stated above, that the exclusion of the deed shows reversible error.

The forfeiture of the right of the Comanche Company to do business in the State did not have the effect to forfeit its charter, or dissolve or otherwise affect that company’s legal status. Real Estate-Land & Trust Company v. Dildy, Tex.Civ.App., 92 S.W.2d 318. It only suspended its powers to do business. Its directors or trustees, in such case, could act, we think, for its stockholders in disposing of its properties. Favorite Oil Company of Beaumont & Cleburne et al. v. Jef Chaison Townsite Co., Tex.Civ.App., 162 S.W. 423.

If we are not in error in so holding, the deed tendered in evidence would be a valid deed, though, under the circumstances, properly excluded.

We have considered the other assignments not discussed, and think they present no reversible error.

Under the record as presented here we have concluded to reverse and remand the case for another trial, and it is so ordered.

PRICE, Chief Justice.

I concur in the reversal and remanding of this case. In my opinion, however, all parties obtaining water from the water district were necessary parties defendant to the litigation. There is a doubt in my mind as to whether the Comanche Irrigation Company could acquire, by prescription or otherwise, riparian rights unless it was the owner of riparian lands. Riparian rights are appurtenant only to riparian lands. Richter v. Granite Mfg. Co., 107 Tex. 58, 174 S.W. 284, L.R.A.1916A, 504. Riparian rights are subject to the statute of limitation. Martin v. Burr, 111 Tex. 57, 228 S.W. 543.

In my opinion, neither the Comanche Irrigation Company nor the Water Improvement, District owned the riparian rights of the lands in the district. Parker v. El Paso County Water Imp. Dist. No. 1, 116 Tex. 631, 297 S.W. 737, in Court of Civil Appeals, 260 S.W. 667.

In this case, in my opinion, by the decree in the litigation to which they were not parties, the rights of the owners of riparian land in the district have been necessarily and directly affected.


author: GRISSOM, Justice.

text:
    HARCROW et al. v. W. T. RAWLEIGH CO.
    No. 2066.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 15, 1940.
    Rehearing Denied Dec. 20, 1940.

      Jones & Jones, of Mineóla, for appellants.
    Harry .R. Bondies, of Sweetwater, for appellee.
   GRISSOM, Justice.

The W. T. Rawleigh Company sued Wm. H. Harcrow, on purchase orders and an itemized account, and the sureties on his bond (which bond guaranteed payment to the Rawleigh Company of the purchase price of merchandise sold to Harcrow by the Rawleigh Company) for the purchase price of merchandise sold by the company to Harcrow. At the conclusion of the evidence the court instructed a verdict for plaintiff and rendered judgment for it. Harcrow and his sureties have appealed.

The defenses alleged were that the suit could not be maintained by plaintiff, and recovery should be denied for the following reasons: (a) Plaintiff was a foreign corporation doing business in Texas without a permit and the demands sued on arose out of an intrastate transaction, (b) The contract was in violation of the anti-trust statutes of Texas, in that Har-crow’s sale of Rawleigh products was restricted to a defined locality and to prices fixed by said company.

Appellants’ first proposition is that since plaintiff alleged it was a foreign corporation and the testimony showed it did not have a permit to do business in Texas, the court erred in instructing a verdict for the plaintiff “if there is any testimony showing that said plaintiff is engaged in and transacting - business in Texas a't the time of the filing of said suit and the trial thereof.” We think said proposition cannot be sustained for several reasons. The testimony does not raise the issue that plaintiff was transacting business in Texas within the meaning of Arts. 1529-1536, R.S.1925. But, i-f plaintiff was doing business in Texas without a permit, such fact would be immaterial if the demands sued on arose out of an interstate transaction. Texas & P. R. Co. v. Davis, 93 Tex. 378, 389, 55 S.W. 562; Miller v. Goodman, 91 Tex. 41, 40 S.W. 718; 11 Tex.Jur. 162; Collins v. Hardeman-King Co., Tex.Civ.App., 74 S.W.2d 181, 183. The evidence shows conclusively that the sales of merchandise by plaintiff to Harcrow .were made in interstate commerce, unless the interstate character thereof was changed by reason of the following facts. The first $150 worth of merchandise sold by plaintiff to Harcrow had been sold by plaintiff to a former Rawleigh dealer in Rains County; it had been returned to and accepted by plaintiff as a payment upon said dealer’s debt to plaintiff, and was thereafter sold by plaintiff to Harcrow, while the goods were still located in Rains County. We think the sale of said $150 worth of merchandise did not lose its interstate character by virtue of the facts stated.

In Miller v. Goodman, 91 Tex. 41, 40 S.W. 718, 719, Judge Brown, speaking for the Supreme Court, said: “Do the facts alleged show a transaction of the character of interstate commerce ? We think that they clearly do. It is a case of sale by a corporation, created by another state, of goods manufactured in that state, and shipped into the state of Texas. It matters not whether the goods were sold before they were shipped, or shipped to the state and then sold. It is equally interstate commerce.”

In American Soda Fountain Co. v. Hairston, Tex.Civ.App., 69 S.W.2d 546, 552, plaintiff had previously sold a car-bonater in interstate commerce. It was thereafter repossessed by the plaintiff, owned and held in Texas by the plaintiff, and sold in Texas to the defendant. It was held that by such second sale the transaction had not lost its interstate character.

.In Phelps v. Jesse French & Sons Piano Co., Tex.Civ.App., 65 S.W.2d 374, the piano company had sold and shipped pianos into Texas. After the pianos arrived in Texas the purchaser failed to receive them. Thereafter the pianos were sold in Texas and suit was brought for the purchase price. The court held that by reason of the repossession and sale of the pianos in Texas, the transaction had not lost its interstate character. Also, see Shaw Piano Co. v. Ford, Tex.Civ.App., 41 S.W. 198, and North v. Mergenthaler Linotype Co., Tex.Civ.App., 77 S.W.2d 580, writ refused.

There is another reason why the sale of the $150 worth of merchandise to Harcrow in Rains County could not have the effect of making the suit one upon a demand arising from an intrastate transaction, even in part. Such sale was the first sale made to Harcrow by the plaintiff. More than $150 having been paid upon the account by Harcrow and no application thereof having been made or requested, the law applied it to the extinguishment of the first due indebtedness. First Nat. Bank v. International Sheep Co., Tex.Civ.App., 29 S.W.2d 513, 519, writ refused; Phipps v. Willis, 11 Tex.Civ.App. 186, 32 S.W. 801, writ refused; Palm v. Johnson, Tex.Civ.App., 255 S.W. 1007, 1009.

We, therefore, conclude it was immaterial whether or not plaintiff was transacting business in Texas.

Appellants contend the evidence raised the issue that the. contract between Harcrow and the Rawleigh Company was in violation of the anti-trust statutes of Texas in that there was testimony to the effect (1) that Harcrow “was to sell Raw-leigh products” only in Rains County, and (2) was to sell such products at'the price fixed by plaintiff. Wherefore, appellants conclude the court erred in instructing a verdict for plaintiff. If appellants mean that there is evidence that Harcrow agreed' to sell Rawleigh products only in a certain territory and at prices designated by the Rawleigh Company, then we have been unable to find such testimony. Harcrow’s testimony in said respect went no further than that he sold Rawleigh products only in a certain part of Rains County and at the prices “printed on the price list.” We cannot gather from his testimony any intimation either that he agreed to sell in a certain territory, of at 'prices fixed by appellee, or that he was compelled to. do so.

Appellants place much emphasis, upon an instrument sent to Harcrow by the Rawleigh Company in which Harcrow was asked to designate the place where he intended doing business, etc. This instrument is known in the record as Form No. 2138. Appellants say that although the contract appears perfectly innocent upon its face, before Harcrow “could even order merchandise he must fill out and return this instrument.” We have been unable to find any evidence supporting this contention. Harcrow does not testify that he either signed or returned said form to the Rawleigh Company. As we understand the testimony of appellee’s representatives it is to the effect that such form, if it was executed and returned by Har-crow, is not to be found in the company’s files, and that its agents are of the opinion it was never executed or returned to them by Harcrow. We think the evidence does not raise the issues of fact, as contended by appellants, and conclude, therefore, that the court did not err in instructing a verdict for plaintiff. W. T. Rawleigh Co. v. Fish, Tex.Civ.App., 290 S.W. 798, writ dismissed; W. T. Rawleigh Co. v. Harper, Tex.Com.App., 17 S.W.2d 455; McConnon & Co. v. Marshall, Tex.Civ.App., 280 S.W. 323; W. T. Rawleigh Co. v. Fletcher, Tex.Civ.App., 275 S.W. 210. All the evidence as to an agreement between the parties was in writing and constituted a matter for construction by the court, — not a question for the jury. Cook v. Dennis, 61 Tex. 246, 249; Shepherd v. White, 11 Tex. 346, 358; Booth v. Campbell, Tex.Civ.App., 240 S.W. 559; Rhoden v. Bergman, Tex.Civ.App., 75 S.W.2d 993, 998.

Appellants complain of the refusal of the court to quash the deposition of the witness Stewart because of his refusal to answer interrogatories inquiring the names of Rawleigh dealers in Hunt, Van Zandt, Hopkins, Smith and Dallas Counties in 1936, and to attach to his answers copies of Form No. 2138. (Said Form has been hereinbefore referred to.) The witness refused to answer said interrogatories because they did not pertain to the facts of the indebtedness owing by defendants to plaintiff. We think the matters inquired about were immaterial to any issue in the case. Answers to said questions certainly could not show, nor tend to show, that Harcrow was obliged to confine his sales to a certain territory, or to sell at a fixed price. If it was intended to show appellee was doing business in Texas, the witness’ failure to answer was harmless, since plaintiff was entitled to recover on the obligation sued on because the demand arose from an interstate transaction, regardless of whether plaintiff was doing business in Texas. Collins v. Hardeman-King Co., Tex.Civ.App., 74 S.W.2d 181, 183.

We have examined all of appellants’ assignments of error. What we have said is a sufficient answer to most, if not all, oi appellants’ contentions. We are of the opinion error is not shown.’ The judgment is affirmed.


author: YOUNG, Justice.

text:
    GULF COAST CHEMICAL CO. v. HOPKINS.
    No. 12914.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 19, 1940.
    Rehearing Denied Dec. 7, 1940.
    Chrestman, Brundidge, Fountain, Elliott & Bateman and J. A. Blakeley, all of Dallas, for appellants.
    .J. Frank Wilson and J. Lee Zumwalt, both of Dallas, for appellee.
   YOUNG, Justice.

The suit in the lower court was by appellant against Hopkins, a garage keeper, for loss of an automobile placed for storage on a fee basis, but not redelivered on demand. Fireman’s Fund Underwriters intervened, claiming an interest in the action, as assignee under a policy insuring the particular car against theft. Upon a trial to the court, judgment was rendered for the garage owner, from which the losing parties have appealed. It appears to be undisputed that said vehicle was stolen shortly after being stored, and the only issue before the .court was, whether Hopkins, as bailee, exercised ordinary care under the circumstances of the car’s disappearance. Munger Automobile Co. v. American Lloyds of Dallas, Tex.Civ.App., 267 S.W. 304; Exporters’ & Traders’ Compress & Warehouse Co. v. Schulze, Tex.Com.App., 265 S.W. 133; Langford v. Nevin, 117 Tex. 130, 298 S.W. 536. Appellee testified by deposition and in person, and, therefrom, the court determined' he was not at fault, which conclusion, we believe, has support in the record. In a non-jury trial, every reasonable inference of fact, supported by the statement of facts, will be drawn in favor of the court’s rendition. 3 T.J., Appeal and Error—Civil, Sec. 747, p. 1060; Houston Oil Co. v. Biskamp, Tex.Civ.App., 99 S.W.2d 1007. Such judgment must therefore be affirmed.

Affirmed.

On Motion for Rehearing.

Appellants stoutly attack our statement that the automobile in question was shown by the undisputed testimony to have been stolen. We were led to this general conclusion by plaintiff’s own alternative pleading that the car was stolen by reason of defendant’s negligence in safeguarding it; by the defense of Hopkins, alleging its theft without negligence on his part; and intervener, Fireman’s Fund Underwriters (owning the greater part of said action), in turn alleged payment to appellants of $630 under a species of theft policy. Plaintiff’s manager, Rawlins, testified that upon demand for the car, bailee Hopkins said it had been stolen, and it was later located in San Antonio. Appellants’ own statement of the garage owner’s testimony contains all the elements of theft, which commonly means a taking of personal property secretly, without right, leave, or consent of the owner; ordinarily to be established by circumstantial evidence. The whole record, we think, embodies more than a mere presumption or inference of theft, preponderating so strongly to such conclusion that the trial court could hardly have found otherwise. At least, the issue was squarely raised, thereby invoking the rule in non-jury trials that the judgment of the court must be affirmed, if there is evidence to support it upon any theory of the case.

The motion for rehearing is overruled.