author: JACKSON, Chief Justice.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. HUMPHREY.
    No. 5141.
    Court of Civil Appeals of Texas. Amarillo.
    April 1, 1940.
    Rehearing Denied May 20, 1940.
    • Price & Moss, of Post, and Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellant.
    Ben F. Thorpe and John E. Sentell, both of Snyder, and Grindstaff,. Zellers & Hutcheson, of Weatherford, for appellee.
   JACKSON, Chief Justice.

This suit was instituted by the appel-lee, W. W. Humphrey; in the District Court of Garza County against the appellant, Texas Employers’ Insurance Association, to set aside an award of the Industrial Accident Board on his claim for compensation on account of accidental injuries he alleges he sustained on July 14, 1938, while in the employ of the Pos.tex Cotton Mills which he asserts carried insurance with appellant for the protection of its employees.

The appellee alleges he was totally and permanently disabled by the accidental injury received in the course of his employment for the cotton mills company.

The appellant answered by general demurrer, numerous exceptions, general denial and specially pleaded that if appel-lee received any injuries as alleged and suffered any incapacity therefrom that such incapacity was not total but only partial.

No complaint is presented as to jurisdiction nor as to the sufficiency of the pleadings of either party and no extended statement thereof is required.

In response to special issues submitted by the court, the jury found, in effect, that W. W. Humphrey sustained accidental injuries on July 14, 1938, while in the course of his employment for the Postex Cotton Mills; that he was totally incapacitated for work by his injury and such total incapacity continued until the present time; that his total incapacity will not cease but is permanent; that the prior injury of appellee received in July, 1935, did not contribute to his present incapacity; that such incapacity is not due solely to disease or infection but the injury was the producing cause of his incapacity; that at the time he received. this injury he was suffering with arthritis; that the injury aggravated the arthritis and his incapacity is due to the combined effect of the accidental injury and said arthritis; that $14.28 per week is a just and fair amount to both parties and it should be paid in a lump sum.

On these findings the court rendered judgment for appellee for. $2,852 with cost and interest from the date of the judgment.

The appellant challenges as error'the action of the court in failing to submit to the jury the question of whether appel-lee’s incapacity, if any, is partial or whether his incapacity to work if total may be restored to partial capacity to work in one or two years.

The appellant objected to the court’s charge for failure to submit the issue of partial incapacity, and the restoration of partial capacity in the future and presented requested issues which, in effect, submitted whether the incapacity was partial or, if total, then, would such total incapacity become partial in the futuro» The objection was overruled and the requested issues were refused by the court.

The appellee by a counter proposition asserts that the failure of the court to submit the question of partial incapacity did not constitute error, since the evidence shows conclusively that the appellee was totally incapacitated and would so continue, and no claim is made that he had refused medical treatment or was engaging in hurtful practices affecting his recovery. The issue of present or future partial incapacity was in no way submitted to the jury.

The appellee testified in substance that on July 14, 1938, he was in the employ of the Postex Cotton Mills in Post, Garza County, Texas, and while engaged in baling cotton waste with a press operated by man power the hooks used to keep the waste packed down in the machine failed to hold, the press lever slipped and struck him low on his left side and back with great force, knocked him down and made his whole side numb; that the accident occurred about eleven o’clock on Thursday morning and there was no one else in the room with him but, with the assistance of another man who later came in, he finished the bale of waste he was working on, went home to his lunch, came back and worked that afternoon and also the next day, Friday, but the press was not operated and he did light work; that after quitting time on Friday he consulted Dr. Williams, the company’s physician, who examined him and bound his side and back in adhesive tape; that he remained under the treatment of Dr. Williams and his partner, Dr. Surman, until August 23, 1938, but his condition continued to grow worse, and on August 24th he employed an attorney and they together went to see Dr. Grady Shytles; that at the time of the trial he had lost some ten to twelve pounds; his shoulder, left side, hip and back still hurt all the time, and since the injury he had been unable to do any manual labor but that previous thereto he had no trouble; that he went to work on the highway in Garza County with a W. P. A. gang in April or May of 1936, used a pick and shovel, pitched caliche from the ground into a truck with a shovel, did his part of the work and allowed none of the other hands to outdo him; that he continued on that job until he went to work with the Postex Cotton Mills in Post about April or May, 1937; that he had never had any pain in his left side or shoulder until he got this injury in July, 1938, but had some pain in his left hip when his ankle was hurt in 1935.

The record shows that on December 9, 1935 the appellee herein as plaintiff filed an amended petition in Cause No. 1403 in Dickens County styled W. W. Humphrey v. Texas Employers’ Insurance Association, in which he claimed that he had on July 16, 1935, while employed by W. S. Crawford as a common laborer received accidental injuries which he alleged resulted in his total and permanent incapacity. He admitted while on the stand in this case that in the trial of the cause in Dickens County he testified the injury from which he was then suffering caused pain all the way from his foot to his shoulder' and through his hip and back; that he also stated that he had lost about sixteen pounds in weight; • that he was in bed seven or eight months, was walking on crutches in December, 1935, when the case was tried and did not work any until after he settled the Dickens County suit in March, 1936.

Dr. Shytles testified that neither his physical examination of appellee nor the X-ray pictures made of him disclosed any broken bones. He stated that in his opinion the appellee was suffering from arthritis which had existed some time prior to the injury the appellee received in the cotton mills; that the arthritis was indicated by the roughening of the bones of the vertebra, but that this pre-existing condition of arthritis was aggravated by the injury and the appellee’s incapacity to work was total and permanent. He stated that when he examined appellee the first time, August 24, 1938, his teeth were in bad condition and the gums receded from the teeth and he recommended as a treatment for temporary relief diathermy with a possibility of a future surgical intervention ; that his thought relative to future surgery was it might be necessary to drain a pus pocket that could form from the accumulation of serum from mashing or bruising and, in his opinion, the appellee was not able to do manual labor at the time he first examined him nor at the time he examined him some three or four days before the trial. However, on December 27, 1938, Dr. Shytles, in a letter to the Ætna Life Insurance Company of Dallas, Texas, regarding the injury of appellee in the Postex Cotton Mills, after stating he had previously furnished a detailed report of his examination to Mr. Humphrey’s attorney giving a complete history of the case, continued: “This patient is at this time some worse than was when examined by me on September 2, 1938 due to the fact that he has been unable to get all of the proper medical treatment he should have; however, it is my opinion that unless he is given this treatment he will not improve but if given the treatment I have outlined he would likely fully recover within four or five months and would then be able to return to his work and his regular duties without further disability. The estimated total medical expense for this treatment to get the patient back to his regular duties is approximately $150.00.”

It is admitted by all the medical testimony offered that appellee was afflicted •with tonsilitis and pyorrhea which had produced the arthritis from which he was suffering when he was injured in the cotton mills and that the injury aggravated his arthritic condition. Dr. Williams, the physician of the company, testified in his opinion the appellee was suffering from chronic arthritis of a hypertrophic nature and that he would advise that his pyorrhea be treated by extracting his teeth which would cure the pyorrhea; that his tonsils be removed, require a correct diet and take some exercises; that from his experience and observation as a physician if such treatment should be followed, with the response that he would hope to get from such treatment he would expect that in from six months to a year Mr. Humphrey should be active again.

It will be noted that according to ap-pellee’s testimony he was injured in Dickens County on July 16, 1935, filed a suit in which he claimed total and permanent incapacity, stayed in bed several months and was on crutches when the Dickens County case was tried in December, 1935, did no work until) that case was settled in March, 1936, but did go to work on the W. P. A. gang in April or May, 1936, loading caliche onto a truck with a shovel and doing as much work as the general average of hands on the job; that he held this position until employed at the Postex Cotton Mills in April or Mav, 1937. Dr. Shytles, in his letter to the Ætna Life Insurance Company-dated December 27, 1938, prior to the trial on April 6, 1939, stated appellee’s condition, in his opinion, could be remedied by treatment.

Since the appellee in the instant case was the interested party, the jury was not required to accept his testimony as true. This witness was alone when the accident occurred and his evidence could not be controverted by appellant and there are circumstances which cast suspicion on his knowledge or veracity.

In Sturtevant et al. v. Pagel et ux., 130 S.W.2d 1017, 1018, Judge Hickman, speaking for the Supreme Court, says: “The Sturtevants were interested parties, and the rule is well established that jurors are not required to accept the testimony of such witnesses as true merely because it is not directly or expressly contradicted by other witnesses.”

See also Moore v. Conway et al., Tex.Civ.App., 108 S.W.2d 954; Tanner v. Drake, 124 Tex. 395, 78 S.W.2d 162.

The opinion of Dr. Shytles, while testifying as an expert, was not binding on the jury on the issue of continued total incapacity. Under the record there was no marked difference in appellee’s condition from December to April but the doctor revised his opinion.

Dr. Williams testified that in his opinion with proper treatment if appellee responded thereto as a physician would expect, ap-pellee would be active in the course of six months or a year.

In National Life & Accident Co. v. Muckelroy et al., Tex.Civ.App., 40 S.W.2d 1115, 1117, the court says: “That opinion testimony of physicians is but advisory in nature and may be disregarded by the jury if they see fit.”

In American National Insurance Co. v. Park, Tex.Civ.App., 55 S.W.2d 1088, 1090, the court says: “The jury had the right to discard the testimony of appellant’s medical examiner as an interested witness.”

See also Southern Underwriters v. Stubblefield, Tex.Civ.App., 108 S.W.2d 557.

The probative force to be given to the testimony of experts is within the province of the jury and there is no rule of law which requires them to give conclusive effect to such testimony. Hodges v. Hodges, Tex.Civ.App., 111 S.W.2d 779; Traders & General Ins. Co. v. Ray, Tex.Civ.App., 128 S.W.2d 80.

In determining whether a fact issue should be withdrawn from the jury, all -adverse testimony should be discarded. Childers v. Texas & N. O. R. Co., Tex.Civ.App., 89 S.W.2d 478; Stevens et al. v. Karr, 119 Tex. 479, 33 S.W.2d 725.

It is well settled that the defendant in a compensation suit is entitled to an affirmative submission of its defensive issues that the injured party’s incapacity is temporary or partial rather than permanent or total though such issues have been negatived by previous findings. Texas Employers’ Ins. Ass’n v. Horn, Tex.Civ.App., 75 S.W.2d 301; Traders & General Ins., Co. v. Babb, Tex.Civ.App., 83 S.W.2d 778. See also Traders & General Ins. Co. v. Lincecum, Tex.Civ.App., 126 S.W.2d 692.

Appellant, by proper assignment, assails as erroneous since on the weight of the testimony and because it assumes appellee is totally incapacitated, special issue No. 8 given by the court, which is as follows: “Do you find from a preponderance of the evidence that such total incapacity for work will not cease in the future? Answer: ‘His total incapacity will not cease’ or ‘His total incapacity will cease’.” The jury answered: “His total incapacity will not cease.” It is obvious that this issue as submitted by. the court is upon the weight of the evidence and assumes that appellee is totally incapacitated. The jury was not instructed to answer this issue in the event they found that appellee was totally incapacitated from his injury while working in the cotton mills but it is an attempted submission of the permanency of appellee’s total incapacity which total incapacity the court in the issue assumed to exist. This, as worded, in our opinion was erroneous. Texas Power & Light Co. v. Culwell, Tex.Com.App., 34 S.W.2d 820; Cannaday et al. v. Martin et al., Tex.Civ.App., 69 S.W.2d 434; Chicago, R. I. & G. Ry. Co. v. Hammond, Tex.Civ.App., 286 S.W. 483; City of Amarillo v. Rust, Tex.Civ.App., 45 S.W.2d 285; Texas Employers Ins. Ass’n v. Van Pelt, Tex.Civ.App., 83 S.W.2d 392; Texas Employers Ins. Ass’n v. Ebers et al., Tex.Civ.App., 134 S.W.2d 797.

The appellant also urges as erroneous the special issues by which the court submitted whether or not appellee’s incapacity, if total, was temporary. We deem it unnecessary to enter into a detailed discussion of this assignment as we think what has heretofore been said is sufficient to dispose thereof. If error is presented by the other propositions urged by appellant, they probably will not arise on another trial for which reason they are not discussed.

The judgment of the trial court is re-versec^ and the cause remanded.


source: Caselaw Access Project

author: BOND, Chief Justice.

license: Public Domain

text:
    HILDERBRAND v. LUMBROFF.
    No. 12874.
    Court of Civil Appeals of Texas. Dallas.
    April 6, 1940.
    Rehearing Denied May 11, 1940.
    W. P. Longcope and W. F. Bane, both of Dallas, for appellant.
    George T. Burgess, of Dallas, for appel-lee.
   BOND, Chief Justice.

On March 24, 1933, Pete Lumbroff executed and delivered to his wife, Barbara Lumbroff, a promissory note, payable to her order, in the sum of $1,184, with interest and attorney’s fees. The note recites : “This note, to the extent of the amount herein mentioned, represents money this day borrowed by Maker from the said Barbara Lumbroff and, to secure the credit thus extended, I have this day, by my certain deed of trust, conveyed to Mrs. Joseph McElroy, Trustee, the following lot or parcel of land: * * *” (here describes the land). The deed of trust mentioned in the note, in form customarily employed in such transactions, was executed in accordance with the reading of the note. Pete Lumbroff died and, in due time, E. A. Hilderbrand was appointed administrator of his estate, and, thereafter, the note and claim against the estate arising thereunder were properly verified and presented to the administrator for allowance, and the deed of trust lien established on lands mentioned in the note and deed of trust. The administrator returned the note and claim with his disapproval and disallowance duly noted thereon, resulting in plaintiff’s bringing this suit. On trial before the court, judgment was entered, establishing the indebtedness as a valid and subsisting claim against the estate of Pete Lumbroff, and secured by deed of trust lien upon the real estate described, classified and directed to be paid, and the lien foreclosed as an approved and matured secured claim of the third class, payable in due course of administration.

While, ordinarily, property acquired by either husband or wife during marriage, except that which is the separate property of either one or the other, in the absence of pleadings and proof to the contrary, is deemed community property, and the legal presumption prevails that it was intended, at the time it was acquired, to be community; but, where a transaction is between the husband and wife, relating to property previously acquired, as in the case at bar, where the wife becomes the creditor of the husband, evidenced by note payable to her order and reciting that same “represents money this day borrowed by Maker from the said Barbara Lumbroff’, and she accepts the beneficial interest in a deed of trust executed by her husband securing the note upon either his separate or community property, as between them, their heirs and legal'representatives, the presumption prevails that they intended the debt and lien to be the wife’s separate estate.

Courts must give some effect to such transactions. It cannot be presumed that the parties to the note and deed of trust did not intend some legal effect to be attached to their acts. If the property represented by the note and deed of trust was community, and the parties thereto made no change in the ownership, and, after the execution of the note and deed of trust, it still remained community property, as contended by appellant, then certainly their acts were useless and meaningless. We cannot give such construction to transactions of this character; on the contrary, in the absence of pleadings and proof showing that the note and deed of trust represent community property, we must hold that, prima facie, the note and deed of trust establish separate property in the wife. Levy v. Rosenthal, Tex.Civ.App., 288 S.W. 845; Emery v. Barfield, Tex.Civ.App., 183 S.W. 386. The judgment of the court below is affirmed.

Affirmed.


author: DUNKLIN, Chief Justice.

text:
    HOLT v. LOWDEN et al.
    No. 14086.
    Court of Civil Appeals of Texas. Fort Worth.
    April 26, 1940.
    Rehearing Denied May 24, 1940.
    C. A. Wright and Sol Gordon, both of Fort Worth, for appellant.

      Walker, Smith & Shannon and Jenkins Garrett, all of Fort Worth, for appellees.
   DUNKLIN, Chief Justice.

Paul Holt shipped by railroad, on a through bill of lading, 23 mares from Rosebud, Montana, to Fort Worth, Texas, and they were delivered at their destination on October 23, 1937, by the trustees of the’ Chicago, Rock Island & Gulf Ry. Co., one of the connecting carriers. This appeal is prosecuted by Holt from an adverse judgment rendered in his suit against those trustees for damages claimed by him to have resulted from negligence of the carriers in transportation, which caused the animals to sustain injuries that depreciated their market value in the sum of $667.50.

In answer to the first three special issues submitted to them, the jury found that the animals were in good condition when they started on the trip, and in an injured condition when delivered to the consignees in Fort Worth, and that by reason of the injuries they suffered in transit, their market value was depreciated in the sum of $230.

But in answer to the fourth special ⅛ sue, they further found that the injuries so sustained by the animals “were caused solely as a result of the inherent vices and natural propensities of the animals.”

On that verdict, judgment was rendered for the defendants.

There was no caretaker in charge of the animals on the trip, and no testimony was introduced to show any improper handling or explanation as to what caused the injuries. Appellant insists that the finding of the jury in answer to issue No. 4 was without sufficient support in the evidence.

Defendants introduced two Veterinarians as witnesses, Drs. L. H. Baker and W. C. Butler, both of whom inspected the animals after their arrival in Fort Worth. Dr. Baker has followed the occupation of Veterinarian for 25 years; was employed by the Western Weighing & Inspection Bureau for 12 years; examined the animals when unloaded in Fort Worth, and again three days later; he found some of the mares with a considerable portion of the bush of their tails plucked out; others with wounds in breast, legs, knees, hocks, etc., and from the character and location of those injuries it was his opinion they were caused by fighting and kicking of the animals among themselves; also that plucking of tails is one of the propensities of young animals that have been transported and of those that have not been transported, especially with range animals, as were this shipment. His testimony was based on his actual observations on other occasions. Dr. Butler’s testimony was to a like effect with respect to the injuries testified to by. Dr. Baker.

Such testimony was sufficient to support the findings of the jury in answer to Issue No. 4. Peveto v. Smith, Tex.Com.App., 133 S.W.2d 572; Wininger v. Ft. Worth & Denver City Ry. Co., 105 Tex. 56, 143 S.W. 1150; Underwood v. Security Life & Annuity Co., 108 Tex. 381, 194 S.W. 585; Traders & General Insurance Co. v. Durbin, Tex.Civ.App., 119 S.W.2d 595; McCarty v. Hogan, Tex.Civ.App., 121 S.W.2d 499, writ dismissed; Hulsey v. Patterson, Tex.Civ.App., 121 S.W.2d 509.

Nor is there merit in the further contention that their testimony was not admissible for lack of qualifications of those witnesses as experts. Liner v. United States Torpedo Co., Tex.Com.App., 12 S.W.2d 552; Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103; Texas Central Ry. Co. v. Burnett, 80 Tex. 536, 16 S.W. 320; Texas Employers Insurance Association v. Jimenez, Tex.Civ.App., 267 S.W. 752; Zurich General Accident & Liability Ins. Co. v. Kerr, Tex.Civ.App., 54 S.W.2d 349, writ refused; International & G. N. Ry. Co. v. McCullough, Tex.Civ.App., 118 S.W. 558; Crockett v. Troyk, Tex.Civ.App., 78 S.W.2d 1012, writ dismissed.

If the injuries suffered by the animals resulted solely from inherent vices and natural propensities, as found by the jury, that was a perfect defense to the suit, since it is a well established .rule of decisions in this State that a common carrier of livestock is not an insurer against injuries during shipment, but is liable only for such as result from its negligence in handling them. 8 Tex.Jur., sect. 144, p. 227, and sect. 153, p. 242; Wichita Valley Ry. Co. v. Turbeville, Tex.Civ.App., 269 S.W. 498; Galveston H. & S. A. Ry. Co. v. Crowley, Tex.Civ.App., 214 S.W. 721; Ft. Worth & D. City Ry. Co. v. Berry, Tex.Civ.App., 170 S.W. 125, and other authorities cited in those decisions.

Appellant invokes the rule announced in 8 Tex.Jur., sect. 153, p. 242, and decisions there cited, that a common carrier is liable for an injury to animals in transit, caused in part by its negligence and in part by an excepted cause, for which he is not accountable, such as the Act of God or the inherent vices or natural propensities of the animals; in other words, if the negligence of th'e carrier contributes to bring about such injuries then the carrier is liable — and that it has the burden of proof to show that the injury was attributable to one of the excepted causes. It is then argued that in the absence of a specific finding by the jury that none of the connecting carriers who transported the shipment was guilty of negligence in handling the animals, no defense to plaintiff’s suit was established; even though the evidence was sufficient to show that the injuries to the animals were caused in part by their 'inherent vices and natural propensities, for which the carriers were not liable.

A sufficient answer to that contention is that the finding of the jury that the injuries to the animals were caused solely by theit inherent vices and natural propensities, necessarily included a finding that the same were not due to any negligence of the carriers. Nor did plaintiff request the court to submit to the jury the issues as to whether or not there was negligence in the handling of the shipment by the carriers, while in transit, and whether the same was a contributing cause of the injured condition of the animals at the time they reached their destination in Fort Worth. If in view of the character of the injuries testified to by defendants’ witnesses, plaintiff would have been entitled to a submission of those issues to meet the testimony introduced by defendants that the injuries were due solely to the inherent vices and natural propensities of the animals, under the doctrine announced in 41 Tex.Jur., sect. 280, p. 1115, and numerous decisions there cited, then his failure to request such issues and to object to Issue No. 4 on the ground that it improperly included both the issue of inherent vices and natural propensities of the .animals, and also the issue of negligence of the carriers, as a contributing cause of the injuries suffered by the animals, and to bring forward that objection by a proposition predicated on a proper assignment of error, precludes him from now complaining of the failure of the court to submit such issues separately and affirmatively, or of their inclusion in Issue No. 4, as above noted. Gulf, C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Harris v. Leslie, 128 Tex. 81, 96 S.W.2d 276; Texas & N. O. Ry. Co. v. Crow, 132 Tex. 465, 123 S.W.2d 649; Robertson & Mueller v. Holden, Tex.Com.App., 1 S.W.2d 570; Vernon’s Tex.Civ.St. Arts. 2185 and 2190.

For the reasons noted, all assignments of error are overruled, and the judgment of the trial court is affirmed.


author: WALTHALL, Justice.

text:
    MERRILL v. DUNN.
    No. 3914.
    Court of Civil Appeals of Texas. El Paso.
    April 25, 1940.
    Rehearing Denied May 16, 1940.

      H. G. Ferguson and A. G. Haigh, both of Edinburg, for appellant.
    A. H. Moore, of La Feria, and H. L. Faulk, of Brownsville, for appellee.
   WALTHALL, Justice.

This appeal is prosecuted from a judgment of the District Court of Hidalgo County, Texas, in a trial of the right of property case.

The case is presented here on an agreed statement of facts.

The statement, abbreviated, is to the following effect:

On November 15, 1937, plaintiff, J. H. Merrill, filed an original petition in the District Court of Hidalgo County, Texas; the petition was docketed as No. A-3768, and styled “J. H. Merrill v. Texene Packing Corporation and Curtis Dunn, Inc.”

On the above date, plaintiff filed his affidavit for attachment and bond; the writ of attachment was issued and placed in the hands of a constable, who executed the writ by levying upon a car of canned popcorn.

It was agreed of record that the value of the property attached was $1,125.

On November 17, 1937, J. C. Dunn, personally, made claim to the corn, and on that date he delivered to the constable his claimant’s oath and bond; claimant’s oath and bond were, on November 29, 1937, delivered by the constable, together with the writ of attachment and the constable’s return thereon, to the clerk of the District Court. The clerk filed all of the above papers in the original cause No. A-3768.

On October 12th (the year not stated, but supposedly 1938), the claimant, J. C.’Dunn, filed a motion to non-suit the plaintiff on the ground that the plaintiff had failed to enter his appearance at the second term of the court following the filing of the claimant’s bond and oath.

On November 15, 1938, the plaintiff filed his motion for judgment against the claimant and his bondsmen, claiming abandonment by the claimant.

The above two motions of October 12th and November 15th (1938) were the first pleadings filed by the parties in this suit.

The two motions were heard on November 22, 1938, before the court without a jury, at which hearing the claimant’s attorney appeared for the claimant and his bondsmen; plaintiff’s attorney appeared for plaintiff. At the hearing the following proceedings were had. We copy from the agreed statement.

“Mr. Faulk offered the file mark of plaintiff’s original petition showing that said petition was filed in this court on the 15th day of November, 1937; then offered the writ of attachment issued out of this court on the 15th day of November, 1937, with the officer’s return showing levy on one car lot of pop corn; and offered claimant’s oath of J. C. Dunn, dated November 17, 1937, and filed on November 29, 1937, by the Clerk of this Court in the main suit No. A-3768, and refiled May 4, 1938, as No. A-3939. He next offered in evidence claimant’s bond and the file mark thereon showing that bond was filed by the Clerk on November 29, 1937, under A-3768 and was refiled on May 4, 1938, as No. A-3939. Defendants also offered in evidence the file mark on his motion for non-suit filed October 12, 1938.

“K. C. Boysen, Clerk of the District Court, was called as a witness and testified in substance that on the 29th of November, 1937, the claimant’s bond and oath and the writ of attachment and the officer’s return were brought to his office by the constable and by him filed among the papers of the main suit No. A-3768; that on May 4, 1938, he docketed the case of trial of the right of property for the first time as a separate suit with the file number of A-3939. On October 12, 1938, the claimant’s motion to nonsuit the plaintiff was filed and on October 24, 1938, the case was continued at request of the claimant without prejudice. On November 15, 1938, the plaintiff’s motion for judgment was filed.

“The Clerk further testified that there were regular terms of the 92nd District Court opened on the first Monday in November, 1937, January, 1938, March, 1938, and May, 1938, and a special term on the first Monday in July, 1938, and regular terms the first Mondays in September and November, 1938. The claimant then rested upon his motion.

“Then came on the plaintiff, represented by Mr. Ferguson, and submitted his motion for judgment against the defendants, and offered all of the evidence offered by the claimant, J. C. Dunn. Plaintiff further offered evidence that the defendant, J. C. Dunn, had made no further appearances than noted in this matter; that in the argument before the Court upon his motion, the Honorable H. L. Faulk, representing said claimant, J. C. Dunn, did then and there state to the Court that he was of the opinion that two full terms of this court. had passed since the case had been docketed, and that the claimant, J. C. Dunn, would not be in this court with his motion to non-suit had it not been that was his understanding.

“The plaintiff then rested upon his motion for judgment.

“At the conclusion of tire evidence on these two motions the Court overruled both motions, stating as its ground that the bond and oath of the claimant were not correctly filed and separately docketed until after the beginning of the May Term, 1938, of this court, and that at the time of the hearing two terms had not expired since the bond and oath of claimant were separately filed and docketed, for which reason each of said motions, respectively, was overruled.

“The Court then entered on his docket the following notation:

“‘11-22-38

“ ‘Claimant’s motion for non-suit of plaintiff Merrill heard and evidence introduced thereon, and same overruled. Claimant excepted.’

“‘11-22-38

“ ‘Motion of Merrill for judgment and evidence thereon heard and motion overruled. Merrill excepted.’

“Thereafter the court entered an order directing the parties to tender their issues and thereupon, without waiving his exception, but insisting that the initiative to submit issues was to and with the claimant, the plaintiff tendered issues, and the claimant and the bondsmen, their answers.

“The cause then went to trial on the 12th day of December, 1938, before a jury duly impaneled and continued for three days, and upon answers to special issues submitted, the court gave judgment (shown in transcript) ‘That plaintiff, J. H. Merrill, take nothing by this suit.’ ”

Plaintiff filed his amended motion for a new trial assigning as error, among other things, the court’s judgment overruling plaintiff’s motion for judgment.

On March 11, 1939, the court overruled plaintiff’s motion for a new trial, from which plaintiff prosecutes this appeal.

Opinion.

Appellant Merrill filed four assignments of error, under which, and as germane thereto, he submits propositions. They all assert error in overruling plaintiff’s motion for judgment, first, because the claimant had abandoned his claim to the attached property; second, because the facts show that claimant was guilty of unexplained laches, and had led appellant to presume that the claimant had abandoned his claim, thus making applicable equitable estoppel; third, because, in filing his motion to non-suit appellant, claimant did not reserve the right to further plead and assert his claimed ownership to the property, and thereby waived the right to further prosecute his claim to the property; fourth, error in overruling appellant’s amended motion to set aside the judgment and for judgment non obstante veredicto.

Appellant’s propositions are largely propositions of law and embrace many of the facts included in the agreed statement of facts.

We think only one question is presented, namely, Was the court in error, in view of the undisputed facts, in overruling appellant’s motion for judgment?

When the constable made his return of the claimant’s affidavit and bond and appellant’s attachment and bond, the clerk of the District Court filed all of the papers in the original suit, and did not at that time separately docket the case as directed by Article 7410, R.C.S., but on May 4, 1938, docketed the case as a separate suit with its own file number.

It appears then from the record that claimant’s affidavit and bond were made on November 15, 1937, and filed by the clerk on November 29, 1937, in the main suit, and refiled under its new number on May 4, 1938; that between the dates of the filing of claimant’s oath and bond with the clerk and claimant’s motion to non-suit plaintiff, filed on October 24, 1938, there were regular terms of the 92nd District Court in Hidalgo County on the following dates: On the first Monday in November, 1937, January, 1938, March 1938, May, 1938, a special term on the first Monday in July, 1938, and regular terms the first Monday in September and November, 1938. The evidence shows that at the time of the hearing of the motion two terms had not expired since claimant’s oath and bond were separately filed and docketed, and it seems, for that reason, appellant’s motion for judgment was overruled.

It is needless to remark that the “trial of the right of property,” is strictly a statutory proceeding, instituted to try the validity of a third person’s claim to personal property which has been seized, as here, under process of law.

Article 7411, of the statute, provides that at the first term of the court after the claimant’s affidavit and bond shall be returned, if both parties appear the court shall direct that a written issue between the parties be made up as in other cases.

Article 7413, of the statute, provides if the plaintiff appears and the defendant (claimant) fails to appear or neglects or refuses to join issues, -the plaintiff shall have judgment by default.

Article 7414, Vernon’s Ann.Civ.St. art. 7414, provides that if the plaintiff does not appear at the first term, the case shall be continued to the next term, when, if he appears, the like proceedings may be had as at the first term; but if he does not then appear on or before the appearance day of said term, he shall be non-suited.

Other than the above, the statute makes no provision for judgment by default, or judgment by non-suit, or any judgment other than on the trial on the merits.

Article 7415 of the statute provides that: “The proceedings and practice on the trial shall be as nearly as may be the same as in other cases before such court of justice.”

We have not found in the record or in the agreed statement of facts that plaintiff (appellant) appeared or was present at any time before the court in the matter of this suit at the first term or at the second term of the court. We think it. necessary that the facts show the appearance of the plaintiff at the second term of the court, for the reason, first, the statute requires that plaintiff appear, and, second, it is at t-hat term, and on or before the appearance day of that term, the trial court directs the written issues be made up between the parties and tried as in other cases.

Likewise, the record does not disclose whether the defendant (claimant) failed to appear.

In Field & Co. v. T. F. Fowler, 62 Tex. 65, 68, it is said: “How this appearance is to be effected is not prescribed, but when the parties come into court, as in this case, and have an entry made upon the minutes that they have appeared, it is sufficient to prevent the consequences of a failure to appear on either side. The appearance may be either in person or by attorney, and its effect continues until it is withdrawn or set aside, or the defendant fails to join issue when one is directed by the court.”

It seems to us that in order to justify the court in rendering a judgment by default for plaintiff, it should be made to appear that plaintiff did appear, and that defendant failed to appear or neglected or refused to join issue when directed.

. Appellant’s principal ground for judgment is that appellee, both in law and in fact, abandoned his claim to the attached property. Jn passing upon one of plaintiff’s exceptions the court said that the appellee had not abandoned his claim. A case should not be dismissed on the ground of abandonment, unless such abandonment clearly appears. Loftus v. Beckman, Tex.Com.App., 1 S.W.2d 268, 270; American Indemnity Co. v. McCann, Tex.Com.App., 45 S.W.2d 174. When appellant’s motion, for judgment was filed the court had not at that time directed the issues be made up, and overruled the motion. In the case of Continental Oil & Production Co. v. Austin, Tex.Civ.App., 17 S.W.2d 1114, the court held that the trial court may not enter judgment by default prior to directing tender of issues.

The record does not disclose that appellant pleaded laches or equitable estop-pel.

We have considered other assignments not discussed, and they are overruled.

We find some irregularity in some of the proceedings, but no reversible error.

The case is affirmed


author: PRICE, Chief Justice.

text:
    WHITTENBURG et al. v. J. C. PENNEY CO.
    No. 3936.
    Court of Civil Appeals of Texas. El Paso.
    April 11, 1940.
    Rehearing Denied May 16, 1940.
    Kelley, Looney & Norvel, of Edinburgh and Charles E. Thompson, of McAllen, for appellants.
    Griffin & Kimbrough, of McAllen, for appellee.
   PRICE, Chief Justice.

This is an appeal from a judgment in a case instituted and tried in the 93rd District Court exercising jurisdiction in Hid-algo County. The suit was by J. C. Penney Company, a corporation, as plaintiff,, against H. E. Whittenburg and wife, and Rio Grande Securities, Inc., as defendants. Plaintiff sought recovery of one-half the cost of .the construction of a party wall erected by it on the southerly 8½ inches-of Lot 6, Block 13, Town of McAllen, and the northerly 8½ inches of Lot 5,' in the same block and town, and the foreclosure of a lien on Lot 5 of said block for the sum sought to be recovered. Defendants answered, and a trial was had before the court resulting in the rendition of a judgment in favor of plaintiff, adjudging the lien in favor of plaintiff against said Lot S in the sum of $1,165, and adjudging a foreclosure against defendants. The trial court filed findings of fact and conclusions of law.

There is in reality involved in this appeal hut one disputed question of fact; namely, have defendants made such use of the wall in question as would entitle plaintiff to recover contribution on account of its construction of the wall, if its right to contribution be as alleged. The undisputed facts present complication and involve determination of the legal effect thereof.

In 1929, plaintiff bought Lot 6 from Frank E. Osborn, L. L. Davis and D. D. Webber, who also owned Lots 4 and 5. Lot No. 5 lies immediately south of Lot No. 6. Prior to January 13, 1930, plaintiff constructed a building on Lot No. 6 and moved into same and has since said date conducted a business therein. The south wall of such building was 17 inches in thickness and 8½ inches thereof were on the southerly part of Lot 6, and 8½ inches on the northerly part of Lot 5.

On January 30, 1930, L. L. Davis executed and delivered to H. E. Whittenburg, as trustee, a deed of trust on an undivided one-half interest in Lots 4 and 5, to secure a note for $3,000. On February 28, 1931, D. D. Webber mortgaged, by deed of trust, Lots 4 and 5 to the First National Bank of McAllen to secure two notes for $2,000 and $2,400, respectively.

Prior to the erection of plaintiff’s building there was an oral agreement entered into between it and the then owners of Lots 4 and 5. The terms of such agreement we shall assume as undisputed, in that such terms were impliedly or expressly found by the trial court. In substance it was agreed that plaintiff might erect the wall, as it did, partly on 6 and partly on 5. In the event the then or future owners of Lots 4 and 5 desired to make use of said wall as a part of a structure erected on 5, that they might do so, paying to plaintiff one-half of the cost of the construction of its south wall. It was contemplated and provided by the parties to this agreement that it should be binding on them and on their successors in title. The cost of the construction of the wall in question was the sum of $4,660.

The title to Lot 5 having passed into Rio Grande Citrus Developers, Inc., by deed, a written agreement was executed between that corporation and plaintiff, whereby it was agreed that upon the said Rio Grande Citrus Developers, Inc., or other owner of Lot 5, paying to plaintiff, or the owner of Lot 6, the sum of $1,165, the former, or the owner of Lot 5, should be entitled to join and make use of said wall, and, upon making the payment, same should become a party wall. The date of this ' written agreement was June 16, 1931, and same was filed for record August 11, 1931. It is to be borne in mind that this was subsequent to the execution of the two deeds of trust hereinbefore mentioned.

On the 9th day of August, 1932, McAllen State Bank, the then owner of the notes described in the deed of trust hereinbefore mentioned as executed by Webber on Lots 4 and 5 to the First National Bank of McAllen, same dated February 28, 1931, brought suit in the District Court of Hidalgo County, 93rd Judicial District, on same, seeking judgment on the notes against the maker and foreclosure of the lien against the maker and plaintiff here and H. E. Whittenburg, and others. All defendants were personally served except plaintiff here, the service on it was by notice to non-resident. Defendants made default, and judgment was entered on November 22, 1932. This judgment was the stereotyped foreclosure, save that as- between plaintiff there (McAllen State Bank) and defendants there (H. E. Whittenburg and wife), it was provided that same should be without impairment of any rights which Whittenburg may have in and to an undivided one-half interest in Lots 4 and 5 by virtue of the deed of trust from Davis to Whittenburg. The cause was No. B-9472 on the docket of said 93rd District Court, and will be hereinafter designated by that number. The order of sale issued on the judgment in cause No. B-9472 was never executed. Thereafter Rio Grande Securities, Inc., defendant here, purchased and had assigned to it this judgment.

On the 22nd day of January, 1935, cause No. A-2232 was filed in the District Court of Hidalgo County, 92nd Judicial District. There will be frequent occasion to refer herein to that case, and same will be at all times referred to as No. A-2232.

In No. A-2232, H. E. Whittenburg was plaintiff, L. L. Davis, Rio Grande Securities, Inc., J. C. Penney Company, and others, were defendants. Plaintiff there sought a foreclosure of the Davis deed of trust hereinbefore described as to all defendants, and personal judgment against Davis.

Rio Grande Securities, Inc., answered by-general demurrer and general denial, and a cross-action in two counts against Whittenburg, Davis, Osborn, Webber, Leslie, Jr., Leslie, Sr., Rio Grande Citrus Developers, Inc., City State Bank & Trust Company, Furst, Thomas, Sinclair Refining Company, and Mr. and Mrs. Wolfe. The parties named were also parties defendant in cause No. B-9472. Said cross-action set up the ownership of said defendant of the judgment in cause No. B-9472, and we quote therefrom as follows: “that because of claims and clouds cast upon its rights and its judgment lien and upon said above described real property, by the cross-defendants in this case, which was the subject of the foreclosure, it has refrained from having an order of sale issued, the said cross-defendants making various aiid sundry claims to and against said Lots No. 4 and 5, Block 13 * * * all of which was sufficient to cast suspicion and cloud on cross-plaintiff’s rights * * *

It then pleads that: “In order to prevent further litigation and controversy with respect to the rights, title and interest of this cross-plaintiff it shows unto the court that it is entitled to have its rights under the aforesaid judgment clarified, priority of the liens fixed if, in fact, any other liens exist, and that it be permitted to proceed with an orderly foreclosure of its original lien freed from the clouds cast upon it by the cross-defendant.”

In its prayer to the first count of the cross-action, it prays that; “Upon final hearing it be granted a decree declaring its judgment lien to be prior and superior to all rights, titles, interests, claims or liens asserted by the cross-defendants; that it recover its costs and that it be permitted by proper orders of this court to proceed with a foreclosure of its lien on the aforesaid real property freed from said clouds,” and then concludes with a prayer for general relief.

In the alternative it pleads in count two of the cross-action that the cross-plaintiff is the holder of a “judgment and judgment lien on the entirety of Lots 4 and 5, Block 13 * * * but if on final hearing * * * the court should decide that cross-plaintiff’s superior lien attaches to less than the entirety of said two lots or parcels of land and to less than the entirety of all rights, title and appurtenances thereto and improvements thereon,” then that it is entitled to have the court “definitely determine what interest therein is covered by its said first and superior judgment lien; and to determine what, if any, interest is owned or held therein by any of said cross-defendants, it being specifically denied that they have any such interest,” and by way of prayer in the alternative, following this second count of the cross-action, said cross-plaintiff prays that if the court finds “its lien to cover less than the entirety of the property,” that the real property be ordered sold as under execution and the proceeds thereof returned into court for the payment of costs and distribution among the respective parties in proportion to their interest or that, if the premises should be found susceptible of division in kind, then “for an order determining and setting out the part thereof upon which its aforementioned judgment lien is in full force and effect as a prior and superior lien, and that said lien be enforced against that particular portion of the property free and clear of clouds and claims by the cross-defendants herein,” and then it prays for general relief.

In cause No. A-2232, to the petition of plaintiff there, J. C. Penney Company, plaintiff here filed a general demurrer, general denial and special answer. In the special answer the oral agreement substantially as hereinbefore outlined is averred; construction' of its building; the south wall being common to Lots 5 and 6; its occupancy thereof at the time of the execution of the respective- deeds of trust involved in the case; its written contract with Rio Grande Citrus Developers, Inc.; further avers that the Whittenburg lien, by virtue of the premises, is subject to its right in the portion of Lot 5 occupied by the wall. A cross-action is pleaded against Whittenburg seeking to have its claims of title to that portion of Lot 5 quieted as to the claims of Whittenburg. Plaintiff here filed another cross-áction against Rio Grande Securities, Inc., and Whittenburg, for all practical purposes, setting up the same facts as in its answer and cross-action to the petition of Whittenburg. To the cross-action of Rio Grande Securities, Inc., praying the quieting of its title to the portion of Lot 5 in question, although not a cross-defendant therein, plaintiff here answered setting up about the same facts as narrated above. Plaintiff here, through its various pleadings, alleged that the mortgagees and those claiming under them had notice of the alleged contract with reference to the party wall.

The trial was to the court without a jury. A somewhat involved judgment was rendered, the substance of the salient features thereof it is necessary to set forth. It awarded to Whittenburg a recovery in the sum. of $5,212.35, and a foreclosure against all parties on an undivided one-half interest in Lots 4 and 5, providing same was a first and superior lien, subject, however, to an easement thereinafter to be mentioned; it recited as to the judgment in' cause No. B-9472 that same was valid, subsisting and unsatisfied, and that Rio Grande Securities, Inc., was the then owner thereof; provided that said judgment be merged into the judgment then rendered; that no process should issue out of the judgment in cause No. B-9472 for its enforcement, but such process issue out of cause No. A-2232 for the enforcement of the judgment then rendered, in the manner and to the extent therein provided; that said Rio Grande Securities, Inc., was entitled to collect the sum of $4,303.04, with accrued interest and the cost in cause No. B-9472; and reawarded judgment in its favor in that sum and a foreclosure of the deed of trust lien on an undivided three-fourths interest in and to Lots 4 and 5 (it was parenthetically recited that Rio Grande Securities, Inc., had acquired title to an undivided one-fourth interest in Lots 4 and 5) against all defendants, subordinating same as to the foreclosure decreed in favor of Whittenburg (parenthetically it was recited that the foreclosure was to be subject likewise to the easement there-inafter mentioned). The easement was declared in a subsequent part of the decree in the following language: “(a) That said foreclosure in favor of plaintiff, H. E. Whittenburg, and in favor of defendant— cross-plaintiff, Rio Grande Securities, Inc. —be, and the same are subject, however, to the right and easement of said defendant, J. C. Penney Company, to use and maintain the party-wall now existing, constituting the south wall of its present store building which is located on Lot No. 6, in Block No. 13, of the Original Town of Mc-Allen, the center line of said party-wall being the boundary line between Lots 5 and 6, of said Block No. 13, and said wall extending over approximately 8-½" .on the ho'rth part of said Lot 5, and approximately the same distance on the south part of Lot 6, and the. easement for the continued existence and maintenance of said wall as against all parties to this suit, their heirs, successors or assigns, is specifically recognized and adjudged.”

There was a final disposition of all parties to the judgment, providing in substance that relief sought not granted therein was denied.

Process issued on the judgment in accordance with the provisions thereof. A sale was had and Rio Grande Securities, Inc., and Mrs. Whittenburg bought said property at such sale, each acquiring an undivided one-half interest in Lots 4 and 5, and same were so held on the institution of the suit here.

Sometime in 1937, the defendants in this cause erected a building on Lots 4 and' 5, which, it is alleged, on account of the use made of the south wall of plaintiff’s building, gave the right of contribution to plaintiff in accordance with the oral agreement hereinbefore recited.

We deem it pertinent to set forth here the substance of the pleadings in the instant case. Plaintiff alleged the oral agreement for the construction of the party wall in substance as we have outlined same, the erection thereof in pursuance of said agreement, the subsequent giving of the two deeds of trust under which defendants claim, the judgment and proceedings in cause No. A-2232. It is alleged that in that cause it was adjudicated that the oral agreement between the owners of Lots 5 and 6, with respect to the construction of the wall, was in fact made; that by virtue thereof plaintiff’s right to construct the wall on said Lots 5 and 6 was recognized, and the full ownership of the wall was vested in plaintiff subject to the rights of the owners of 4 and 5 to acquire a half interest in same; that said matters were res adjudicata between the parties to said suit No. A-2232 and all parties subsequently acquiring any right, title or interest in said property.

Plaintiff alleged the use of the wall by defendants and their failure and refusal to pay one-half of the cost of the construction thereof.

The contract of June 6, 1931, between plaintiff and Rio Grande Citrus Developers, Inc., is alleged, providing in effect that if it, or. any subsequent owner of 4 and 5, made use of the wall to pay to the, owners of Lot 6 the sum of $1,165. In substance, notice to the mortgagees of the oral contract in respect to the wall was alleged at the time of the execution and delivery of their respective mortgages. Plaintiff sought judgment for $2,423.99, with interest, and the establishment of ah equitable lien on Lot 5 for that amount, or, in the alternative, judgment for $1,165 and interest and the establishment and foreclosure of an equitable lien.

Defendants’ answer consisted of a general denial and special plea alleging that the judgment in cause No. B-9472 decided every issue properly raised in the instant case, and that under said judgment it was adjudicated that plaintiff had no right in the premises; denied knowledge of the alleged oral agreement, and denied that any such oral agreement there was; conceded that Lot 5 was subject to the easement of plaintiff’s wall, but alleged defendants were entitled to use and enjoy said wall to the same extent as plaintiff; asserted in substance that defendants owned that portion of the wall that had its support on Lot 5; denied any use of the wall except as same incidentally served to close their building on the north end.

Before considering the effect of the judgments in causes No. B-9472 and No. A-2232 on the asserted rights of plaintiff, let. us consider the creation,, nature and content of such asserted rights. The oral agreement made prior to the erection of the wall in question has been hereinbefore set forth. By virtue of that agreement and the erection of the wall in pursuance thereof, plaintiff acquired the right to construct and maintain same in part on Lot 5 as to the then owners of Lots 4 and 5, and their successors. This right is not seriously disputed by defendants. It is seriously disputed that the rights acquired by the then owners or, subsequent owners of Lot 5 were burdened by part of the obligations provided in the agreement. This agreement conferred on plaintiff and its successors the use of a part of Lot 5 as support for the south wall of the building. On payment by the owners of Lot 5, or their successors, it had the obligation to permit the use of its wall.

Upon the erection of the wall by plaintiff in accordance with the agreement, the statute of frauds was satisfied and a true easement was created. See Meadows v. Page, 187 Ga. 686, 1 S.E.2d 656; 20 R.C.L., 1103, p. 26.

If the proposition just announced is correct, we think there is very little distinction between this case and the case of McCormick v. Stonehart, Tex.Civ.App., 195 S.W. 883, writ denied; likewise of the principles announced in Jones v. Monroe, Tex.Com.App., 285 S.W. 1055.

What has been heretofore said has not taken into consideration the effect of the judgments in causes No. B-9472 and No. A-2232.

To cause No. B-9472 plaintiff here was a party. It is clear that any right emanating out of' the mortgagor subject to the mortgage was subjected to that foreclosure. If the agreement between Rio Grande Citrus Devolopers, Inc., and plaintiff created a new independent right, it was certainly foreclosed against in the decree. That the rights of plaintiff here are alleged to have arisen prior to the mortgage foreclosed by the decree we think is not a material consideration. There was an opportunity given to assert such rights. The purpose of the suit was to subject the interest of plaintiff here in the property to the debt of the plaintiff there. There is no limitation as to the effect of the foreclosure on any right or title of plaintiff here. However, the foreclosure decreed has never been consummated by sale. Defendants here claim under the foreclosure decreed in A-2232 and consummated by order of sale issuing thereon.

In order to determine the rights of the ¡parties here both judgments must be considered. Each was rendered by a different court possessing jurisdiction co-ordinate with the other. The subject matter included in B-9472 was included with numerous other matters in A-2232, and all of the parties here, or those with whom they are in privity, were parties to each of said actions. On the subject matter involved in cause No. B-9472 the decree rendered in A-2232 provided that the foreclosure ordered should be subject to the right and easement of J. C. Penney Company (plaintiff here). No such restriction is "to be found in the judgment in B-9472. Presented is a rather unusual situation of two courts, created by the same sovereignty, each awarding relief of different quality between identical parties. No. B-9472, by express provision, left open for future determination the relation of the Whitten-burg mortgage lien and that of the First National Bank of McAllen. Cause No. A-2232 adjudicated this relationship. It recites the decree in B-9472, but it likewise forecloses the lien, part of the subject matter of B-9472. We think the only basis for the process ordered and the subsequent execution thereof was the foreclosure decree in A-2232.

Defendants here elected to rely on the judgment in cause No. A-2232. They sought the reopening of the question as to the rights of the J. C. Penney Company. If this be not strictly correct, at least they failed to appeal from the decree awarding rights to said Penney Company. All the matters adjudicated in No. A-2232 were in the jurisdiction of the court rendering same, save, perhaps, the limitation of the issuance of process in cause No. B-9472.

The effect or construction of the judgment in No. A-2232 is the real gist of the controversy. It is clear that reserved from the foreclosure therein decreed is the easement provided for in the portion of the decree we have heretofore set out. It does not purport to give to defendants here any right as to said wall further than may be inferred from designating same as a party wall. Extinguishment of the right of reimbursement under the contract creating the easement, which the judgment recognizes and vindicates, is not expressly decreed. At the time of the rendition the right of the owner of Lot 6 to look to the owner of Lot S for reimbursement was, at best, but an inchoate equity. Such was the condition at the time of the sale. Whether defendants ever sought to avail themselves of the option given in the agreement was in their control. Lot S passed to defendants burdened with an easement; Lot 6 was likewise burdened with an easement as to Lot S. It would seem just and equitable that Lot 5 should bear the burden conditioned on its easement in Lot 6, as well as enjoy the benefits. Jones v. Monroe, supra.

In our opinion the judgment in cause No. A-2232 did not extinguish the right of reimbursement which plaintiff had as the owner of Lot 6. It is immaterial as to whether such judgment established that right. The mere fact that the wall in question was a party wall, erected and maintained at the expense of one of the adjoining owners, in the absence of contract to the contrary, gives rise to the right of contribution upon use.

The trial court found in substance that on March 1, 1937, the appealing defendants commenced the construction of a building occupying Lots 4 and S, and further found, in constructing said buildings, the said defendants made use of the lower half and the footing of plaintiff’s south wall in the following particulars:

“1. In closing the entire north end of defendants’ building.
“2. In supporting the pilasters upon which the weight of defendants’ building rests, and a part of the weight of the floor of said building.
“3. In bonding the pilasters, beams and footings of the north end of defendants’ building to the wall and footings of plaintiff’s south wall, thereby tying said structure to said wall of plaintiff.
“4. In serving as a support for the valleys along the north edge of the roof of defendants’ building, which valleys are fastened to the plaintiff’s south wall and to the roof of defendants’ building.
“5. In supporting and carrying electrical conduits, lines, switches and appliances, and wash-rack equipment, water pipes, battery charging equipment, and display and storage shelves and racks for automobile lubricants.”

This finding is vigorously assailed by defendants as being unsupported by the evidence. It is contended that no such use of the wall in question was made by defendants as would give rise to the right of contribution by them for the cost of the wall.

It would seem to be clear that the use of the wall in a manner giving rise to the right of contribution might-be provided for by contract between the parties. The general rule is that before this right arises there must be a use of the wall as a party wall. Mere incidental and involuntary use is not such use as gives rise to the right of contribution. Nolan v. Mendere, 77 Tex. 565, 14 S.W. 167, 19 Am.St.Rep. 801; 113 A.L.R., page 471.

The findings of the trial court above set forth were upon conflicting evidence. We find that there is evidence to support such findings. It would unduly lengthen this opinion to set forth and discuss the plan and construction of the building erected by defendants and the relation that the wall in question bears to such structure. We think under the findings of fact and the evidence that defendants incorporated into their structure said wall as a part thereof. Such action on their part gave rise to the right to compensation to the plaintiff.

The judgment is affirmed.


author: NORVELL, Justice.

text:
    CULPEPPER v. LLOYDS AMERICA.
    No. 10717.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    Rehearing Denied May 8, 1940.

      Chas. J. Lieck and H. K. Stanfield, both of San Antonio, Texas, for appellant.
    Kemp, Lewright, Dyer, Wilson & Sor-rell, of Corpus Christi, for appellee.
   NORVELL, Justice.

This is a Workmen’s Compensation case, brought by appellant, Culpepper, against appellee, Lloyds America, as an appeal from the award of the Industrial Accident Board.

The case was tried to a jury and from an adverse judgment rendered upon the jury’s verdict Culpepper has appealed to this Court.

Appellant presents the contention that this case must be reversed because of the action of appellee’s counsel in attempting to develop the fact that Culpepper was convicted of a felony which did not involve moral turpitude, by means of cross-examination in the presence of the jury.

Appellee contends that “the proper rule which the courts of this State should follow is, * * * that a witness in a civil case may be impeached by a showing of his conviction of any felony, or his conviction of a misdemeanor involving moral turpitude.” It is further contended that the particular crime of which Culpepper was convicted did involve moral turpitude.

It appears that sometime during the trial, in the absence of the jury, Culpepper’s attorney stated to the trial' court that his client had been convicted under the Dean Act of the offense of unlawfully manufacturing intoxicating liquor, and contended that such conviction was inadmissible in evidence. Appellant thereupon requested the trial judge to then, and there instruct appellee’s counsel not to interrogate Cul-pepper concerning his conviction and incarceration in the penitentiary. Appellee’s counsel insisted that he be permitted" to develop the matter before the jury, asserting that such conviction was admissible in evidence. The trial court declined to give the requested instruction in advance, on the ground that he could not then anticipate what questions would be put to appellant by appellee’s counsel.

Thereafter, in the presence of the jury, and while appellant “was testifying he was asked the question as to how long he had been in the penitentiary and gave the answer ‘One year — I stayed in the penitentiary five months and twenty days,’ the question was asked and the answer given by the witness before counsel for plaintiff (appellant), made objection at the time,, and objection was made to such testimony immediately after the answer was given.” The jury was retired and “then for the first time (other than by statement of counsel), it was made to appear to the court by official records that the incarceration of Culpepper in the penitentiary had been for a Liquor Law violation and the court, upon such showing being made, being of the opinion that the same was not admissible, thereupon called in the jury and then (upon motion of appellant’s counsel) gave the jury the following instruction, viz:

“ ‘Gentlemen, the question that was asked the witness just before your retirement, and his answer thereto, in regard to confinement in the penitentiary, you will disregard for any purpose whatever. You will not consider it at all.’ ”

Under the view we take of the case, it is unnecessary for us to decide whether a “Liquor Law violation” involves moral turpitude, or whether evidence of conviction thereunder was admissible in this case. We do say, however, that the trial judge did not abuse his discretion, in the circumstances presented, by refusing to instruct appellee’s counsel, in advance, to refrain, in the course of the ensuing trial, from interrogating appellant concerning his previous conviction of a felony. 3 Tex.Jur. 1079; 41 Tex.Jur. 720; Missouri K. & T. Ry. v. Johnson, 95 Tex. 409, 67 S.W. 768.

The propriety of the proceeding in which appellant was asked, and volunteered an incriminating answer, concerning his conviction and servitude, must be tested by the record made at the time. Appellant was asked “as to how long he had been in 'the penitentiary,” and volunteered the answer, “one year — I stayed in the penitentiary five months and twenty days.” Appellant’s counsel made no objection to the question before it was answered. The record does not indicate, nor may we assume, that appellant answered before his counsel had time to object to the question; the record being silent the contrary will be assumed. The record simply shows the bald fact that upon inquiry from adverse counsel appellant voluntarily told the jury of his prison experience, whereupon, and not until then, his own counsel objected. The jury was thereupon retired. It was then disclosed to the trial judge, for the first time from official record, that the conviction was for a liquor law violation. The trial judge concluded that evidence of such conviction was inadmissible, and recalling the jury instructed them, in response to appellant’s motion, to disregard the question and answer “for any purpose whatever,” and “not consider it at all.” We are of the opinion that in view of this emphatic admonition from the trial judge in response to appellant’s belated objection and motion, coupled with the fact that the answer now complained of was an apparently deliberate and certainly voluntary emanation from appellant’s own mouth, the transaction does not present reversible error. 41 Tex.Jur. 905; Norwich Union Ind. Co. v. Wilson, Tex.Civ.App. 43 S.W.2d 473, Id., Tex.Com.App., 67 S.W.2d 225.

These conclusions narrow the inquiry to the contention of appellant that the mere asking of the question of appellant as to his conviction or servitude constituted such error that nothing that transpired could remedy it; that (in effect) the idea of a prison experience was thrust so deeply into the consciousness of the jury by this question that it rendered that jury unfit, or disqualified, to pass fairly upon appellant’s case. We are unable to adopt this contention, after much consideration of appellant’s able presentation of the point.

Cases involving the introduction of improper testimony under an erroneous ruling of the trial court are not in point. The members of this Court are not entirely satisfied that the question was improper, but assuming although not deciding that the question should not have been asked, it is well settled that ordinarily the mere propounding of an improper question does not necessitate the reversal of a judgment, for, “if cases were reversed because improper questions were propounded * * * but few judgments would' be affirmed.” Missouri Pac. Ry. Co. v. Mitchell, 72 Tex. 141, 10 S.W. 411, 413.

In the Mitchell case, supra, Chief Justice Stayton held that a case would not be reversed because of- the propounding of improper questions unless it appears that such “questions were propounded to witnesses, apparently to establish things that did not exist, and to which it was known the witness could not testify, or apparently to prove such things in a mode in which they could not be proved, with a view to make a false impression on the jury,” and “looking to the entire record there was reason to believe the jury had been influenced by such course” of conduct, which is characterized as being “reprehensible.” In other words, counsel must have been guilty of wilful misconduct and there must be reason to believe the jury was influenced thereby. See also 31 Tex.Jur. p. 27, § 24.

Applying the above rule to the facts of this case, we find the question was answered without objection; the jury was instructed to consider neither the question nor answer, and therefore the assigned error urged here is the action of the trial court in overruling the motion for new trial. This action carries with it the implied finding that appellee’s counsel was not guilty of “misconduct” and such finding is supported by the record. The assertion of an erroneous theory of law very seldom amounts to misconduct. Appellee’s contention in the trial court and on appeal concerning the admissibility of the conviction involved, and the method of proof sought to be employed is supported by the recommendation of eminent text book writers. McCormick and Ray, Texas Law of Evidence, pp. 400, 401. For the reasons stated, appellant’s contentions on this point are overruled.

The action of the trial court in overruling the motion for a new trial insofar as it related to the question concerning Culpepper’s incarceration in the penitentiary can also be sustained upon another theory.

As above pointed out, we hold that there was no deliberate insistence in asking improper questions disclosed by the record which would amount to “misconduct” of counsel calculated to prejudice appellant’s case or cause a mistrial.

It is true that certain cases have been reversed because of the propounding of an improper question, for example, a question indicating to the jury that some person or corporation, other than the defendant would ultimately bear the burden of an adverse judgment, and thus effecting an improper substitution of parties in the minds of the jurors.

The theory requiring a reversal in this class of cases is that certain information has been improperly suggested to the jury which disqualifies the members thereof from serving upon that particular case further. The means by which this suggestion is conveyed to the jury is to a certain extent immaterial as the important matter to be considered is that of jury disqualification, which may be the result of the receipt of improper information; undue influence operating outside the courtroom; or various other means and circumstances.

We do not believe that the mere asking of the question here involved was of such a nature as would result in the disqualification of the jury, but if we be mistaken in this, then it should be noted that in this case appellant did not move the court to discharge the jury and declare a mistrial, but requested an instruction from the court directing the jury to disregard the objectionable question and answer thereto. This relief, which was all appellant requested, was granted by the trial court, and the requested instruction given.

Had a motion for mistrial been timely made, the presumption is that the trial judge would have granted it, if, under the facts and circumstances of the case, he believed appellant had been prejudiced and could not safely proceed with the trial before the jury then impaneled. Harrison-Wright Co. v. Budd, Tex.Civ.App., 67 S.W.2d. 670.

In the case of Allala v. Tandy & Sons, Tex.Civ.App., 59 S.W.2d 205, 206, affirmed by Supreme Court, 127 Tex. 148, 92 S.W.2d 227, involving alleged jury disqualification, this Court said: “It is * * * the duty of * * * a party, if he has knowledge that the jury has been subjected to improper influences, to ask permission to withdraw his announcement of ready, that the jury be discharged and either a new jury impaneled or the case continued. He cannot sit silently by, observe improper conduct with reference to the jury, take his chances upon securing a favorable verdict from the jury, and, when the verdict is adverse, set up for the first time the misconduct that he had full knowledge of before the verdict was ever received by the court.”

That case is analogous to the situation presented here, and it seems that whenever a party knows of an occurrence having taken place which disqualifies the jury from further service, a motion for the discharge of that jury must be made or else the matter of disqualification is waived. Moore v. Norman, Tex.Civ.App., 137 S.W.2d 833; 4 C.J.S., p. 430, Appeal and Error, § 228 ; 3 Am.Jur. 25, § 246.

It is not apparent from the record at just what juncture of the trial the question complained of was propounded to and so thoroughly answered by appellant, but it is easy to surmise it occurred early in the trial when appellant, as the first witness, was first subjected to cross-examination. Be that as it may, however, when the incident occurred, it devolved upon appellant to determine his position and apprise the trial judge of his complaint and elect a remedy. If appellant deemed the incident harmful and his injury irreparable he should, have moved to discharge that jury as being disqualified to fairly try the case. If that were denied, appellant had the alternative of objecting to the evidence and moving to strike it. Here, however, appellant made no contention of irreparable injury, or motion for mistrial, and the trial judge did not abuse his discretion by failing to discharge the jury upon his own motion. Appellant was content to pursue his alternative remedy of exclusion of the testimony, and this was promptly granted by the trial judge. By this process appellant got everything he asked for, and we hold that the trial judge did not commit reversible error in failing to grant other relief not requested by the complaining party.

Appellant also complains of the offer of a certain photograph in evidence, containing two views of appellant. One of these views, or pictures, disclosed appellant’s penitentiary_ number. This view was excluded by the court and not seen by the jury. The other view, or picture, was properly received in evidence, and did not prejudice appellant in any way.

Complaint is also made of the jury argument of appellee’s counsel. It is the duty of an appellate court to consider the argument made in the light of all the facts and circumstances surrounding the trial of the case. The trial judge has by full and complete qualifications to the bills of exceptions given the facts and circumstances surrounding the arguments of counsel. It appears that this case was strenuously prosecuted and defended in the trial court. The appellee contended that the claim sued upon was false and fraudulent, and, iq argument, counsel roundly denounced appellant’s .actions. “The language of counsel was vigorous, of course, but at most it was but an inference drawn by counsel from the evidence as he construed it.” No, reversible error is presented. Gray v. Allen,, Tex.Civ.App., 269 S.W. 510, 512; Yellow Cab Co. v. Treadwell, Tex.Civ.App., 87 S.W.2d 276; Moore v. Parrish, Tex.Civ.App., 70 S.W.2d 315.

Appellant assigns error because of the action of appellee’s counsel in stating in his argument to the jury that he had observed Culpepper scratching his hand, and that therefore he must have had some feeling in it. There was no evidence introduced in the trial of the case that counsel or any one else saw the appellant scratching his hand during the trial of the case. No objection was made to the trial court at the time the particular argurtient was made, and it is here contended that “no objection or instruction could have cured the harm injected by such argument.” In our opinion an instruction by the trial court that the argument was outside the record and should not be considered would have removed any damage resulting from the argument. As no objection was made to the argument in the trial court, appellant can not secure a reversal here. The ground of complaint has been waived. Ramirez v. Acker, Tex.Civ.App., 124 S.W.2d 905, affirmed by the Supreme Court, 138 S.W.2d 1054, decided by the Supreme Court, April 17, 1940, opinion by Sharp, J.

By further assignments, it is suggested that the judgment is inadequate under the undisputed facts, and that a number of the jury’s findings are contrary to the overwhelming preponderance of the evidence. In this connection, we have examined the judgment, verdict and the evidence contained in the statement of facts, and find that the judgment is in accordance with the verdict and that the evidence supports, the jury’s answers to the issues submitted.

What has been said leads to the conclusion that our original disposition of this case affirming the judgment of the trial court is correct. The original opinion will however be withdrawn and this opinion-substituted therefor.

Appellant’s motion for rehearing is overruled.


author: LOONEY, Justice.

text:
    BYRD v. CRAZY WATER CO.
    No. 12860.
    Court of Civil Appeals of Texas. Dallas.
    March 16, 1940.
    Rehearing Denied April 27, 1940.

      Clark & Rice and Russell V. Rogers, Jr., all of Dallas, for appellant.
    W. O. Gross, of Mineral Wells, and W. J. Rutledge, Jr., of Dallas, for appellee.
   LOONEY, Justice.

S. L. Byrd, appellant, sued Crazy Water 'Company, the appellee, for damages, alleging breach of a sales contract. The trial court sustained a general demurrer, dismissed the suit, from which Byrd appealed.

The judgment of the court below is sought to be sustained on two grounds, (1) that the contract sued upon was unenforceable, in that is violated the Anti-Trust Statutes of the State, Vernon’s Ann.Civ.St. art. 7426 et seq.; and (2) because, under a plain, unambiguous provision, it was terminable at any time by either party.

Appellant resided at, and operated from Los Angeles, Calif.; appellee had its domicile and principal place of business at Mineral Wells, Texas. On June 27, 1930, after a lengthy correspondence and personal interview, the parties entered into a sales contract, whereby appellee agreed to sell and deliver to appellant, in California, a commodity (or drug) known as “Crazy Crystals”, manufactured from water produced by wells at the City of Mineral Wells, at $7 per dozen one pound packages. The contract contained, among others, the following stipulations: “It being understood and agreed between both parties entering into this contract that the territory assigned to Party of the Second Part (appellant) by Party of the First Part is the Counties of San Luis Obispo, Kern, Santa Barbara, Ventura, San Bernardino, Los Angeles, Orange, Riverside, San Diego and Imperial”, located in the southern portion.of the State of California. Also the following (par. 5): “It is further understood and agreed by both Parties hereto that each and every order of every character whatsoever received by the said Party of the First Part for Crystals from any and every person in above described territory, shall be delivered by said First Party to the said Second Party to be by said Second Party ‘filled’ and for which said Second Party shall have and receive the same credit as if the order had been sent.direct by said Second Party to the First Party; or in other words, that each and every order received by the First Party from above described territory shall be filled by and through the said Second Party. Any Crystals' shipped into above territory by Party of the First Part through consent of Second Party, or through error, Party of the Second Part is to receive his commission on same. Duplicate invoices of all orders shipped to above territory are to be made and sent to the party of the Second Part.”

It is obvious, we' think, that the provisions just quoted created, or tended to create or carry out restrictions in trade or commerce within the meaning of our AntiTrust Statute, in that, appellee was forbidden to sell the commodity to another within the named counties of California, and appellant was forbidden to operate and sell the commodity outside the territory named,

Similar contracts uniformly have been condemned by our courts. See Fuqua et al. v. Pabst Brewing Co., 90 Tex. 298, 38 S.W. 29, 35 L.R.A. 241; American Brewing Ass’n v. Woods, Tex.Com.App., 215 S.W. 448; Watkins Co. v. McMullan, Tex.Civ.App., 6 S.W.2d 823; Henderson Tire & Rubber Co. v. Roberts, Tex.Com.App., 12 S.W.2d 154. The contract clearly contemplated that the commodity dealt with should be shipped from the State of Texas and delivered to the purchaser in the State of California. Being interstate commerce, the commodity was exempt from State regulation until delivered, but delivery being consummated, it became at once a part of the general mass of property subject to the laws of the State of California. However, in the absence of a showing to the contrary, the presumption will be indulged that the law on the subject is the same in California as in this State. (See Watkins Co. v. McMullan, supra, and authorities cited.) Be that as it may, the contract, being obnoxious to the statutes of this State, should not be enforced by our courts, even though it be conceded that it was enforceable in the State of California. (See Watkins Co. v. McMullan, supra, and authorities cited.) So, for the reason just discussed, we do not think the court erred in sustaining the general demurrer and in dismissing appellant’s suit.

But there is still another reason why, in our opinion, the court did not err. With reference to its duration, the contract (sec. 3) reads: “It is further agreed by and between the parties hereto that this contract is to run for a term indefinitely from the date hereof, and that the terms of this contract during said period shall not be changed except upon the written agreement of both parties hereto. * * * ” In an effort to void the effect of this provision, appellant alleged, “ * * * that if the Court be of the opinion that said memorandum does not clearly show the action of the parties in making a permanent contract for the remainder of the lives of the parties, that the provisions of said memorandum with respect to the duration of the contract are ambiguous and that such ambiguities as may exist therein can and should be explained by extrinsic written and parol testimony, and that the true intention of the parties at the time of the execution of said contract was that the contract be a permanent contract and continue in full force and effect during the lives of the parties.”

In the first place, we do not think the contract is ambiguous, as the language very explicitly states that it was to run indefinitely, that is, without a prescribed limit. In the absence of any restraining provision, either party had the right to terminate the contract at any time, and, furthermore, extrinsic evidence could not have been introduced to vary or contradict the plain, unambiguous terms employed.

Appellant also alleged that, prior to and at the time the contract was entered into, both parties understood it should continue throughout the “lives of the parties”, unless changed by mutual consent, but that, due to a mutual mistake, and/or the fraudulent action of appellee, the contract failed to express. the true agreement, therefore should be reformed. Appellant then alleged that, the mutual mistake, if any, arose by reason of the fact that neither he nor Mr. Woodall, general manager of appellee, who drew the contract, was an attorney, or skilled in the preparation of written instruments, nor did they have the benefit of legal' advice in drafting the contract, and furthermore that the language used was ambiguous and inept to express the real meaning and intention of the parties with respect to the duration of the contract.

In substance, these are the allegations upon which the contention is based that the provision of the contract, with reference to its life, was entered as the result of a mutual mistake, hence failed to express'the real intention of the parties, that is, that the contract should endure during the lives of the parties.

We do not think appellant’s allegations were sufficient to raise the issue of a mutual' mistake. The mistake alleged is predicated upon the idea that neither appellant nor the representative of appellee was an-attorney, nor did they have the benefit of the counsel and advice of an attorney in drafting the instrument. This contention necessarily is based upon the incorrect assumption that attorneys alone possess sufficient knowledge of language and draftsmanship to prepare such an instrument. We think the contract in good form and bears evidence of having been written by one possessing more than average knowledge and ability in regard to such matters; nor do we think the language employed either inept or ambiguous.

We have reached the conclusion that the court was justified in sustaining the general demurrer and dismissing the suit on either of the grounds heretofore discussed, therefore, affirm the judgment.

Affirmed.