author: McCLENDON, Chief Justice.

text:
    TEXAS PUBLIC SERVICE CO. v. MIRELES.
    No. 8970.
    Court of Civil Appeals of Texas. Austin.
    Feb. 19, 1941.
    Rehearing Denied March 26, 1941.
    White, Taylor & Gardner, of Austin, for appellant.
    Bryan Blalock and W. R. Smith, Jr., both of Austin, for appellee.
   McCLENDON, Chief Justice.

This is a gas explosion case. The plaintiff (appellee) conducted a small business establishment in a rented building on East Sixth Street in the City of Austin, in the back room of which he and his wife lived. The defendant (appellant) was a public service corporation supplying natural gas to the inhabitants of Austin through its mains laid in the public streets. The damages sought were the value of various articles of merchandise and other personal property destroyed by a fire claimed to have resulted from a gas explosion. The trial to a jury upon special issues resulted in a verdict and judgment for plaintiff for $1,-000.

Appellant’s brief of 101 printed p^ges contains eight propositions which present in varied form but three contentions, which may be substantially stated as follows:

1. The evidence does not support the finding that the fire was the result of a gas explosion.

2. There was no evidence of negligence on the part of appellant.

3. Misconduct of the jury in considering attorney’s fees in arriving at the amount of damages awarded constituted reversible error.

Appellee has filed objections to consideration of appellant’s brief. These we have overruled for the reason that we believe the above three contentions are sufficiently raised to warrant our consideration.

The first two contentions challenge the sufficiency of the evidence only as a matter of law, and the pertinent evidence is to some extent interrelated. We will therefore state the evidence thereon without attempt at complete segregation and from ap-pellee’s viewpoint.

The building in question was a one story frame store building about 12 feet wide and 38 feet long. It fronted south, the front wall being flush with the property line and the floor flush with the sidewalk. There were two rooms. The one in front, the store, was about 12 by 24 feet. The rear room was about 12 by 12 feet. There was a double door in front, a door between the two rooms and a door and window at the back. There were no other openings. The building-was very old, in bad repair, and there were cracks in the floor and some on the sides. It was papered, but the papering was in bad repair. The fire occurred about one o’clock p. m., August 15, 1938. Appel-lee had been a tenant in the building about a year. He paid $6 per month rent. The building was owned by a Mrs. Von K. The floor was approximately 18 inches above the ground at the back which was open below the floor. Immediately to the west was a barber shop, also a frame building, the east wall of which was about one foot west of the west wall of the building. The record does not disclose who owned this barber shop building. Immediately to the east was a brick building. Appel-lee had been a tenant in the building about a year before the fire. He had never used gas. There was a single 3/4 inch service pipe designed to supply gas both to appellee’s store and the barber shop. This service pipe connected with the gas main in Sixth Street, passed under the sidewalk, thence into appellee’s store through the wall (apparently the east wail), thence through the floor and west under the floor .o-f the front of the building to the barber shop which was then using gas. There was a meter loop in the building ana a meter in the barber shop. As to when or by whom this service pipe was laid, under what arrangement or circumstances or why the particular arrangement of serving two separate buildings with a single service pipe was adopted the record is completely silent. Appellee and his wife, as stated, had their living quarters in the back room of the building. They did their cooking on a small keroacne oil stove which had a supply tank holding ½ gallon of oil. They had just finished their noon meal when the fire occurred and were both sitting in the front room, he mending a watch and she sewing. He described the occurrence as follows:

■'When I got my dinner you know and me and my wife went to the front you know and set down, and in a little while I heard the building shake like that, and the radio was there and fell, and I went out in front, out the front door and a little picture on the wall fell, and there was a flash of fire and I run out and it burned my hair too.”

There was some corroboration of his testimony regarding the violence of the explosion, and some negative testimony tending to the contrary. The city fire department seems to have very promptly responded to a fire alarm and put out the fire. The damage to the building consisted in burning the wall papering, and some charring of portions of the walls and flooring.

The next morning after the fire the city gas inspector made a test of the service pipe by subjecting it to a pressure of 15 pounds. The inspector had died prior to the trial and the only evidence of the result of this test was from two employees of appellant. They each testified that the pressure gauge dropped about two pounds in twenty minutes. Under the city’s regulations neither new construction nor a “repair job” could be approved if the pressure test showed a loss of as much as one-fourth of a pound in fifteen minutes under fifteen pounds pressure. Another test of the service pipe was made the same day by a master licensed gas fitter of several years’ experience, who testified he made three separate tests of the service pipe. Each test was made under 15 pounds pressure and in less than four minutes the pressure gauge dropped to zero: Each of the three tests resulted the same: To quote his testimony, “I pumped it up two different times and it fell, and then I pumped it up the third time and waited and every joint on it leaked.”

“Q. Every joint? A. Yes, sir, joints and fittings.”

Employees of appellant testified that the main supplying the service pipe was in the low pressure area of the city and the gas pressure carried at that season was about four ounces. It was shown that natural gas (that in use) is lighter than air and therefore rises when not confined, that it is odorless, but that appellant used an odor agent that made it very offensive, and that it will explode when the air is impregnated to the extent of 5% by volume. There was testimony that with this amount of gas one could not endure the odor. Appellee testified that he did not know the smell of gas but “all the time in the early morning when I go up to the front I smell something bad you know.” He further testified that at the time of the fire the front door and partition door were open but the back door and window were closed. Shortly after the fire the supply tank or container of the oil stove was found back of tne building. The end was blown off. Also a partially melted aluminum coffee pot was found which had been on the stove at the time of the fire. The stove was not located.

It is the theory of appellant that the evidence excludes the hypothesis of a gas explosion upon four grounds: 1. The amount of leakage testified to by the gas fitter was insufficient to permit enough gas to escape from the service pipe with only four ounces of pressure to cause an explosion.

2. The condition of the building and openings at the time would not admit of accumulation of a sufficient amount of gas to cause an explosion.

3. Appellee and his wife could not have remained in the store on account of the odor if the air had been sufficiently impregnated to cause an explosion.

4. The evidence showed that it was an explosion of the oil stove and not a gas explosion that caused the fire.

Upon the first two of these grounds the expert testimony is in hopeless conflict. Other than employees of appellant two experts testified, Dr. Schoch of the chemistry department of the State University, and Mr. Boon, a chemical engineer of recognized and admitted technical education, experience and ability. Dr. Schoch’s testimony supported each of these grounds. It is not necessary to detail it. Mr. Boon, on the other hand, testified that the amount of leakage shown by the gas fitter’s tests would under a four-ounce gas pressure permit sufficient gas to escape to cause the explosion. Upon the second point, he testified that accumulation in sufficient quantities to cause an explosion would depend upon the condition of the building at the time with reference to openings. In answer to hpyo-thetical questions embodying conditions as testified to by appellee both with reference to the condition of the building at the time and the character and violence of the explosion, he gave it as his opinion that the explosion was from natural gas. As is usually the case when experts are interrogated hypothetically, the testimony upon this issue is quite voluminous, the questions long and involved. We do not think it would serve any useful purpose to detail it here. The above we believe is a fair statement of Mr. Boon’s testimony based upon factors which the evidence will support. This evidence we believe sufficient to support the judgment as against each of the first two grounds. The questions thus presented are purely factual, and within the province of the jury to resolve.

As to the third ground, we think it only necessary to say that the explosion, from whatever cause, manifestly was in the back room, the flames therefrom bursting through the partition door. The gas accumulation must have been begun at the ceiling of the back room and gradually extended downward until contact was made with the flame in the stove. This is the only theory upon which a gas explosion hypothesis can be supported. Any considerable amount of gas accumulation in the store compartment, which was open both at the front and the rear, is extremely improbable. We cannot say, therefore, as a matter of law that the percentage of odor in the store room atmosphere was such that appellee and his wife could not have remained there.

As to the fourth ground, appellant relies upon the evidence that the top of the supply .tank was blown off and the aluminum pot was partially melted and testimony of the city fire marshal, who examined the prem^ ises shortly after the fire with a view of determining its cause, to the effect that the greatest fire damage was in the portion of the back room where the stove had been; from which fact he drew the conclusion that the fire originated at that point. However persuasive this evidence may seem it is not conclusive in that it does not exclude the theory that the gas explosion brought about the other conditions: that is the explosion of the stove tank and consequent greater heat and fire damage in the region of the stove.

For these reasons we overrule appellant’s first contention that the evidence does not support the finding that the fire was caused by a gas explosion.

Appellant’s second contention, that there was no evidence of negligence on its part, is based upon the proposition that the evidence conclusively shows that the supply pipe was on private property, was not under the control of appellant, and there was no duty on its part to keep it in repair or inspect it in the absence of notice of a leaky or otherwise defective condition, of which notice, it is asserted, there was none established. The general rule involved in this contention is now well settled. It is thus stated with supporting authorities in Community Natural Gas Co. v. Lane, Tex.Civ.App., 97 S.W.2d 703, 706: “Where the escape is from pipes on the premises of a consumer, the rule generally accepted by the authorities is that, absent any obligation imposed by contract, regulation, custom, or franchise * * * ⅛ gas company which does not install pipes in the consumer’s building and has no control over them is not responsible for their condition, maintenance, or defective installation, nor for injuries caused by gas escaping from a leak therein, of which it has no knowledge.’ 90 A.L.R. 1088, note.”

We cite this case merely for the principle it announces in this quotation. The facts there were not analogous to the facts here; and while the judgment of this court in that case was reversed by the Supreme Court (133 Tex. 128, 123 S.W.2d 639), the principle above announced was given full recognition.

The facts of the instant case which'we regard as controlling under this contention, are these: As already stated, the service pipe was designed to serve two separate buildings, the store and the barber shop: The tenant of the store never used gas. When, by whom, or for whose convenience this arrangement was made is not shown by any evidence. The only testimony in the record which might in any way be regarded as having any bearing whatever on this subject is that of the witness Weiser, a chemical engineer in appellant’s employ. In answer to a question by appellant’s counsel as to who owns “the service pipes in any building,” he replied, “I believe the property owner does. The property owner does, that is my understanding.

“Q. The company may put it in, but no matter who puts it in, it belongs to the prop- ■ erty owner? A. Yes, sir, that is my understanding.”

His cross-examination on this point clearly shows that his testimony was based upon his general understanding and that he had no personal knowledge of the actual facts. We quote:

“Q. About the owner of the service pipes; service pipes as you understand them are the pipes installed on the place from the meter into the property which is being serviced with gas, isn’t that right? A. Yes, sir, from the meter.
“Q. Now then, the pipe, a service pipe up to the meter necessarily belongs to the Company doesn’t it? A. That depends on whether or not it is on the property owner’s lot, if it is on the property owner’s lot why then I believe it belongs to the property owner.
“Q. Do you mean to tell the jury that the defendant company does not own a single piece of pipe running under other people’s property servicing gas to users? A. Up to the property line, I mean.
“Q. I see, do you mean to tell the jury Mr. Weiser that the defendant does not own one inch of supply pipe supplying gas to meters that are not under or over the property belonging to some of the property? A. Not that I know of.
“Q. You do not know all about the defendant’s pipe lines do you? A. No, sir, not all of them.
“Q. And you are one of the chemical engineers of the defendant ? A. I -am not in that line of work.
“Q. What kind of work are you in, I want to get that straight so I will not have to take up more time? A. Gas measurement.”

Hall, gas superintendent of appellant, and Thomas, assistant to Hall in the service department, arid in the employ of appellant for twelve years, were both placed on the stand by appellant, but neither was interrogated on this point.

Carmona, who occupied the barber shop, testified in substance: He moved into the barber shop in 1933 at which time appellant put the meter in; “they never came back to fix. anything except one time,” this occasion he placed in 1935. “I called them because I smelled gas, then a negro who worked for the Gas Company came and fixed the light, and put a mantel on it * * * thereafter, I don’t know exactly how long it was, because I did not write it down when I talked again to the Gas Company, and a plumber came and tested the pipe to see if there was any gas leakage, but the smell was then just the same.”

“Q. Now with reference to that fire, state whether or not you detected the odor of gas in your building in the morning when you would open the door immediately prior to the time of the fire? A. Yes, sir, because I carried the key to my place and am the first one who opens the door, and every morning when the door is opened I 'smell the gas.”

We have examined a great many texts and cases on the subject, but have found no situation which presents a complete analogy to the case at bar. The West Virginia case of Groff v. Charleston-Dunbar Natural Gas Company, 110 W.Va. 54, 156 S.E. 881, announces the rule that the mere ownership of the pipe line is not controlling, and where the gas company exclusively uses a line, not its own, to transport its gas to consumers it is charged with the duty of maintenance and reasonable inspection. In Fakes & Co. v. Fort Worth Gas Co., Tex.Civ.App., 280 S.W. 234, 235, Chief Justice Conner, writing for the Fort Worth Court, held: “We think there can be no doubt but that the evidence given tended to show that the explosion and resultant damage was caused by an explosion of gas that had leaked from the gas lines of the gas company in the street or from the line in the basement of the Turner & Dingee building, and that company certainly owed the duty of at least exercising due care to inspect and keep its gas lines through which it furnished gas to the meter in the back end of the building in such repair as to prevent leakage and danger of explosion. We therefore conclude that the plaintiff was entitled to go to the jury on the issues of negligence presented in its pleadings, and that the court erred in giving the peremptory instruction.” (Italics our.s.)

In the Lane case, 133 Tex. 128, 123 S.W.2d 639, 643, the Supreme Court quotes with approval the following general rule -as to the duty of a gas company from 29 A.L.R. 1250: “A gas company, since it is dealing with a highly dangerous substance, is bound to use a degree of tare commensurate with the danger of its gas escaping and causing injury or damage to the person or property of others. In the absence of contributory negligence, recovery may be had against a gas company for failure to use such care.”

The above evidence, coupled with the fact that appellant made no effort to show, by its records or otherwise, the reasons why or circumstances under which the particular arrangement of piping was made, nor the facts incident to the trouble Reported to it in 1935, was sufficient, we think, to take the case to the jury upon the issue of its negligence.

Upon the hearing on the issue of misconduct, nine of the jurors testified. The other three were subpoenaed, but did not appear. These nine were questioned very minutely upon the subject by counsel for both parties. The transcript of their testimony covers 38 typed pages. It is. necessary, we think, only to give its general-effect in broad outline. One juror testified unequivocally that attorney’s fees were not mentioned in the jury room. Two testified with equal positiveness that if mentioned they did not hear it. Another testified that if mentioned it was so casual he did not remember it. The remaining five remembered that some mention was made of attorney’s fees, by whom no one remembered. While their testimony varied as to exactly what was said upon the subject, all agreed that the matter was very casually mentioned and was not considered in arriving-at the verdict. There was very little discussion of the amount of the verdict, and' the recollection of the jurors generally was hazy on this subject. One seemed to recall that one juryman wanted to award $400,. while another was in favor of $2,000. Every juror testified he was not in any degree influenced by the mention of attorney’s fees.

No contention is made that the verdict ⅛. excessive. We have made a careful examination of the record in this regard, from-which the following appears : The suit was filed February 4, 1939, and tried June 14, 1939. In his original petition appellee itemized the various articles destroyed by the fire, giving the value of each. The total amounted to $2,451.50. His testimony followed the allegations of the petition with-slight variation; the total according to his. evidence being $2,270.35 or $181.15 less-than claimed in the petition.

Mr. Von K., whose wife owned the building, was called as a witness by appellant. He testified that he was a certified public-accountant and could tell at a glance what kind of a stock of merchandise one had. He had been by the place a number of times, and looked in at the front door. In answer to a question by appellee’s counsel whether-he had ever been inside the store before the fire, he said: “No, sir, I can’t say that I' was; I went by there a number of times, on various times and could see what he had. in there and it was all junk. In my line of business I have to check up on invoices and stores of all kinds of goods and I can tell you at a glance whether a man has old junk or has a good stock, and I did not have to check up on this to find that out, I could tell at a glance what he had.”

He was called to the scene just after the fire and had a talk with appellee, which he detailed as follows: “I asked him if he carried any insurance and he said he did not, and I said’why don’t you carry a hundred dollars worth of insurance and he said nobody had asked him to, and I asked him aren’t you of age, you ought to know that yourself and carry a little insurance, and then I asked him how much stuff he had in his store and he said he just had a few hundred dollars worth of stuff just old secondhand stuff, old clothes and shoes and second-hand watches.” Further: “It was just a lot of old junk, I don’t know what all; second-hand shoes, old dresses, hats and shoes, and he had a couple of old radios there; he had no idea of what the value was; . just old things like that, tools and jewelry, and whatever it was he had to repair watches and old things with, I imagine.”

He further testified that he employed a truck at his own expense to haul off all the debris, and in this connection:

“I did not let him remain. I told him to get off the place, that I did not want him on the place. When I found out that he had a stove in the place, I said if I had known that you had a stove back there in the store, I would have kicked you out, that I did not rent the place as a residence. I did not want him on the place at all and I told him to get out and get out right away; I did not- want him there at all.”
“The place belonged to my wife and she sent the yard-man down there.to collect the rents; I did not pay any attention to that, it was her place, and I did not go into the back end of the house at all; just in front where he had his old junk, and I did not know he was living in the back end, if I had he would have been out.”

The above presents, we believe, a fair picture of what the record shows transpired in the jury room. From it we think it clear that the jury did not take seriously the testimony of Mr. Von K. in estimating the value of the property. Had it done so, the amount must have been fixed at far less than $1,000, even with a liberal allowance for attorney’s fees. This is readily explainable, without in any way reflecting upon his integrity. His means of any accurate knowledge of what was in the store was extremely slight. Another important circumstance is his manifest hostility toward appellee as soon as he learned that appellee and his wife had their living quarters and did their cooking in the rear room. On the other hand, the jury were not willing to take appellee’s estimates at full value. These they discounted a little over fifty per cent.

There has been much written in this state upon the_subject of misconduct of jurors in considering attorney’s fees in arriving at the amount of their verdict. Chief Justice Brown, in Houston & T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S.W. 606, states the rule thus: “If the evidence taken by the trial judge left it reasonably doubtful as to the effect the statement had upon the amount of the verdict of the jury, we would feel inclined to exercise our authority and set it aside; but the judge who tried the case seems to have acted promptly and fairly in the investigation, and we know that he could form safer conclusions from examining the jurors than this court can from the record. There is much in looking at the man who testifies.”

This language is peculiarly apt in the present case. The judge heard the witnesses who testified upon the subject of value and likewise heard the testimony of the jurors. It is a fair inference therefrom, in fact it appears to be a substantially conclusive one,, that whatever the mention made of attorney’s fees it was very casual, and was not considered in arriving at the verdict, which was amply supported by the evidence and is not and could not be successfully attacked on the ground of being-excessive. We do not believe the record before us “leaves it reasonably doubtful as to • the effect the statement had upon the amount of the verdict of the jury,” and therefore there was no abuse of discretion on the part of the trial judge in overruling the motion for new trial. We do not believe any of the adjudicated cases, when considered in the light of the facts presented, militates against this conclusion. A somewhat analogous situation was presented in El Paso Electric Co. v. Barker, Tex.Civ.App., 116 S.W.2d 433, 437, reversed on other grounds, 134 Tex. 496, 137 S.W. 2d 17, wherein it was said:

“It is but natural that extraneous matters will subject themselves into a general discussion relative to the matters at issue, but unless the discussion is of a character that might possibly affect the verdict in some respect complained of upon appeal, an appellate court would not be justified in putting parties and the public to the expense of another trial. Appellant does not claim that the amount awa’rded was excessive or that in that particular the judgment was unjust. * * * There can be no reasonable doubt that the result insofar as appellant complains of it was unaffected by the mention of attorneys’ fees.”

The trial court’s judgment is affirmed.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    RICHMOND et al. v. CHAMPAGNE’S BAKERY.
    No. 3806.
    Court of Civil Appeals of Texas. Beaumont.
    March 20, 21, 1941.
    Rehearing Denied April 2, 1941.
    See, also, Tex.Civ.App., 118 S.W.2d 493.
    Elton Cruse, of Beaumont, for appellants.
    Dan P. Johnston and Barnes & Barnes, all of Dallas, for appellee.
   WALKER, Chief Justice.

Appellee has moved to dismiss this appeal on the ground that appellants did not timely file their affidavit in lieu of appeal bond. We give the judgment overruling the amended motion for new trial:

“Jake Richmond et al. v. Champagne’s Bakery.
“In the District Court of Jefferson County, Texas.
“Nunc pro Tunc Order Overruling Plaintiffs’ First Amended Original Motion for a New Trial
“This the 16th day of August, 1940, it appearing to the court that on May 24, 1940, this court overruled plaintiffs’ first amended original motion for a new trial, but that through inadvertence no written order has heretofore been entered thereon, this order is now entered nunc pro tunc, as of May 24, 1940;
“On May 24, 1940, came on to be heard plaintiffs’ first amended original motion for a new trial in the above cause and it appearing to the court that a final judgment was entered in this cause December 20, 1939; that plaintiffs’ original motion for a new trial herein was filed December. 29, 1939, and that thereafter on January 18, 1940, an order was entered herein granting plaintiffs leave to file an amended motion for a new trial, and further that on January 18, 1940, there was filed herein plaintiffs’ said first amended original motion for a new trial; that on February 14, 1940, an order was entered herein by the court approving the written agreement of the parties herein extending the time for the pre'senting (including the taking of all other action thereon) of plaintiffs’ first amended original motion for a new trial. up to and including March 23, 1940; that a similar order was entered herein March 21, 1940, extending such time up to May-11, 1940, and finally that a similar order was entered herein extending such time until June 1, 1940, said last order being entered herein May 10, 1940; and plaintiffs’ first amended original motion for a new trial having been presented, as aforesaid, on May 24, 1940, after due consideration the court being of the opinion that said amended motion should be overruled, it is, therefore, this the 24th day of May, 1940, ordered, adjudged and decreed by the court that the said amended motion of plaintiffs for a new trial herein be and the same is hereby overruled; to which action and ruling of the court the plaintiffs then and there in open court duly excepted and in open court gave notice of appeal to the Court of Civil Appeals for the Ninth Supreme Judicial District of Texas, sitting at Beaumont, Texas, and plaintiffs are allowed the full time allowed by law within which to prepare and file the statement of facts and bills of exception herein, said time dating from May 24, 1940, the date, as aforesaid, when the court actually overruled said amended motion for a new trial herein.”

Appellee’s motion is controlled by the following provisions of Section 28, Article 2092, Vernon’s Texas Civil Statutes: “All motions and amended motions for new trials must be presented within thirty (30) days after the original motion or amended motion is filed and must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by written agreement of the parties in the case, the decision of the motion is postponed to a later date.”

From the court’s judgment overruling the amended motion for new trial, it appears that the amended motion for new trial was postponed three times on the written agreement of the parties; the first order of postponement was entered on the 14th of February, 1940, extending the time for the presentation to March 23, 1940; the second order was entered March 21, 1940, extending the time of presentation to May 11, 1940; the third order was entered May 10, 1940, extending the time of presentation to June 1, 1940. On authority of these postponements of the presentation, the court received the presentation of the motion on May 24, 1940, and overruled it on that date. It thus appears that the amend-' ed motion for a new trial was not presented within thirty days after it was filed as provided by statute. In Independent Life Ins. Co. of America v. Work, 124 Tex. 281, 77 S.W.2d 1036, 1040, our Supreme Court ruled that the provisions of Subdivision 28, Article 2092, regulating the filing of motions for new trial, their presentation, and decision are mandatory; it was also ruled that the parties by agreement could postpone the decision of the motion beyond the forty-five days provided by statute, but could not, by written agreement or otherwise, postpone the presentation of the motion beyond the thirty days provided by statute. On this point Judge Greenwood, writing the opinion in the Work case, discussing the controlling statute, said: “It is argued, and correctly, that the agreement referred to in the last clause of amended subdivision 28 is one for decision instead of for presentment of the motion.” (Italics ours.) The facts of the Work case did not invoke that construction of the statute ; Judge Greenwood made the following statement of the facts: “In the case now before us, the amended motion for new trial was presented on May 7, 1932, within the statutory limit of 30 days from the date of its filing and within the time specified by the written agreement of the parties. It was not determined until 54 days after its presentation nor until 77 days after its filing.”

Judge Smedley, writing for the Supreme Court, construing the pertinent provisions of Section 28, Article 2092, in Highland Farms Corporation et al. v. Fidelity Trust Co. of Houston et al., 125 Tex. 474, 82 S.W.2d 627, 629, said: “It merely gives the parties the right to agree that the decision may be postponed to a later date." (Italics ours.) But the facts in that case did not invoke a construction of the statute, on the right of the parties tc- postpone the presentation of the motion for new trial; the point at issue was the attempted agreement of the parties to postpone the decision of the motion.

We feel that we are bound by the construction given by our Supreme Court to the pertinent provisions of Section 28, Article 2092, and hold that the parties were without power to extend the presentation of the amended motion for a new trial beyond the statutory period of thirty days after it was filed. Therefore, appellee’,'? motion to dismiss the appeal is sustained.

However, since the point at issue in the case at bar was not before the Supreme Court in the cases cited above, and since on our independent construction of the pertinent provisions of Section 28, Article 2092, the power to extend the decision of the motion also governs its presentation, we make the following disposition of this appeal on its merits; we do this so that, should our Supreme Court decide it was not bound by the obiter statements in the decided cases, it might have before it our conclusion on all issues presented by the appeal'.

This appeal was prosecuted from the judgment entered on the instructed verdict in favor of appellee. The nature of the case is fully stated in our opinion on the former appeal, which was also from an instructed verdict in favor of appellee. Richmond v. Champagne’s Bakery, Tex.Civ.App., 118 S.W.2d 493. The verdict on this appeal, as on the former appeal, was instructed in favor of appellee on the trial court’s conclusion that the evidence did not raise the issues for the jury, that U. C. Champagne was the owner of the truck in the collision, that the driver of the truck was his agent, and that the driver was operating the truck in the course of his employment ; admittedly, the evidence supported appellants on all other issues. On the following statement, taken from appellants’ brief," it is our conclusion that the court erred in its construction of the evidence (Q. & A. reduced to narrative) :

(1) Mr. J. Austin Barnes, attorney for appellee, testified: “I do not represent Champagne Bakery; I represent Mr. U. C. Champagne; I mean by that, the Champagne Bakery is just a trade name.”

(2) J. D. Stephenson, witness for appellants, testified: “I saw the automobile accident, some three years or so ago, in which Mr. Richmond was involved. Well, it is very common there, if you are walking on the edge of the road, you have got to get out of the way of an automobile; and Mr. Champagne’s bread truck was coming, and I stepped over a little closer to the ditch and got off the road and let him pass. After this Champagne truck passed me, it went on down and struck this Ford down at the intersection of the street and avenue. I saw Mr. Richmond’s Ford just before the Champagne truck passed me. I knew the driver of the bakery truck, I knew him just by meeting him with bread in the grocery store where I traded—met him there and on the street. We always salute one another when we pass. I bought Mr. Champagne’s bread as long as he made it, but I was never in his bakery shop. This truck that ran into Mr. Richmond’s car had on it ‘Champagne’—something about Champagne’s bread or something; it had Mr. Champagne’s name on it.”

(3) Appellant Richmond testified:

“Q. Mr. Richmond, do you recall the occasion of this collision with the Champagne Bakery truck? A. Yes, sir.
“Q. About what time of day did that happen? A. Well, it was just along about seven or seven thirty in the morning; between seven thirty and eight; something like that. * * *
“Q. And the Champagne Bakery truck, which way was it going? A. Supposed to be going west on Augusta Avenue.
“Q. Just tell the jury in your own words what happened as your Ford approached that intersection ? A. * * * the bakery truck sideswiped our car as we swang to the right a little bit; the cab of the truck hit the rear end of the Ford; just lifted all the top off of it, caved the side in and broke all the glasses. * * *
“Q. About how fast did you say this Champagne Bakery truck was going when you saw it? A. Between 40 and 45 miles an hour.”

(4) Mrs. E. H. Zingleman testified that she was driving the Richmond automobile at the time of the collision: “I had just stopped at the intersection of 9th and Augusta, and I had shifted into second gear, and as I was just entering the intersection I saw a bread truck coming, and I turned to the right and as I did, well, he hit the ■back of the car. I think I can estimate the speed of this bakery truck; the bread truck was going somewhere around 40 miles an hour to the best of my knowledge; the bakery truck tore up all the left side of the car.”

(5) As indicated above by the questions asked the witnesses, and also by the questions asked generally of the witnesses, counsel for both appellee and appellants developed their testimony on the theory that it was the Champagne Bakery truck which was involved in the collision. Appellee made no objection to the questions propounded by appellants; the nature of the questions is' indicated by the statement made above, assuming that the truck in question was the Champagne Bakery truck.

On Mr. Barnes’ own testimony, appellee, U. C. Champagne, was operating the Champagne Bakery, quoting Mr. Barnes’ words, “the Champagne Bakery is just a trade name.” On Mr. Stephenson’s testimony, the driver of the truck had long been driving Mr. Champagne’s bakery truck; the driver was know to Mr. Stephenson personally, and as the driver of the truck. The truck had on it the name “Champagne,” and additional words indicating that it was Champagne’s Bakery. The hour of the collision indicated that the truck was delivering morning bread. Mrs. Beard’s Bakery v. Davis, Tex.Civ.App., 54 S.W.2d 1031; Globe Laundry Co. v. McLean, Tex.Civ.App., 19 S.W.2d 94; and the many cases cited by Shepard’s Southwestern Reporter Citations under these cases, clearly support the conclusion that the evidence as we have summarized it raised the issue that the bread truck in the collision belonged to appellee, Champagne, that the driver of the truck was his agent, and at the time of the collision was driving the truck in the course of his employment.

For the reasons stated above, the appeal is dismissed.


author: O’QUINN, Justice.

text:
    ARRENDELL et al. v. WELLS.
    No. 3812.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 25, 1941.
    Rehearing Denied March 5, 1941.
    Will R. Saunders, Claude Williams, and W. E. Johnson, all of Dallas, and Bill Daniel, of Liberty, for appellants.
    Campbell & Foreman, of Livingston, and P. C. Matthews, of Liberty, for appellee.
   O’QUINN, Justice.

Frank Wells, the son of appellee, Mrs. Anna Wells, was killed on the 14th day of September, 1938, in a collision on highway No. 35 in Liberty county, between a logging truck owned and operated by appellant Allen Arrendell, driven by his employee, C. A. Morrow, and a lumber truck owned and operated by Garrison Lumber Company, driven by its employee, C. W. Whitehead. At the time of the collision Frank Wells was riding in the lumber truck as a passenger. This suit was brought by appellee against appellants for the damages suffered by her in the death of her son. Answering special issues, the jury convicted appellants of certain acts of negligence plead against them, and acquitted Frank Wells of the acts of contributory negligence plead against him. The jury also found that the collision was not the result of an unavoidable accident, and assessed appellee’s damages at $7,-000. Judgment was for appellee against appellants for the damages assessed by the jury, together with the additional sum of $161.75, the agreed amount of the funeral and other expenses, from which appellants have prosecuted their appeal to this court.

As acts of negligence and proximate cause of the collision, the jury found that appellant Morrow, at the time of the collision, -was operating the logging truck: (a) on his left-hand side of the highway “when the highway was not clear and unobstructed for a distance of at least fifty yards ahead”; (b) that the truck was “being driven by him at a rate of speed in excess of 25 miles per hour at the time of the collision”; (c) that he attempted to turn the truck to the left on the intersecting road; (d) that he “failed to drive the truck to the right-hand side of the highway past the center of intersecting road before undertaking to .turn to the left on said road”; (e) that he was guilty of negligence in undertaking-“to turn the truck to his left on the intersecting road, without first ascertaining that there was sufficient space for such movement to be made in safety”; (f) that he “was guilty of negligence in operating the truck at a high, dangerous and reckless rate of speed at the time of the collision”; (g) that he was guilty of negligence in failing to keep a “proper lookout”; and (h) that he was guilty of negligence in failing “to give any visible signal of his intention to turn to the left immediately before undertaking to do so.” The jury further found that Whitehead, the driver of the lumber truck, “did not fail to keep a proper lookout for vehicles approaching”.; that he “was not driving the lumber truck at- an excessive rate of speed under all attending facts and circumstances”; that he “did not fail to keep a proper lookout for other vehicles on ' the highway”; and that he “did not have sufficient time to drive the lumber truck operated by him far enough to the left to have avoided the collision.” The jury further found that “Frank Wells did not fail to keep a proper lookout for other vehicles approaching on the highway”; that “the failure on the part of Frank Wells to warn Whitehead of the position of the truck driven by Morrow on the highway was not negligence on the part of Frank Wells.” Appellants have no assignments of error against these findings of the jury, on the ground that they were without support in the evidence or against ■ the overwhelming weight and preponderance of the evidence.

We overrule appellants’ proposition, as being without support in the evidence, that the court erred in refusing to submit their requested issues: (1) discovered peril as against the driver Whitehead “as the sole proximate cause of the collision”; (2) failure of Whitehead “to keep his truck under proper control, at and immediately prior to the time of the collision,” as “the sole proximate cause of the collision”; (3) the failure of Whitehead “to apply the brakes on his truck and bring the same to a stop before the collision,” as “the sole proximate cause of the collision”; (4) the act of Whitehead in continuing “to drive the lumber truck in the same way and manner after seeing and observing Morrow turn left on the highway,” as “the sole proximate cause of the collision.”

There was no evidence supporting appellants’ requested issues 4 and 5, “making inquiry as to whether or not at and immediately prior to the time of the collision, the defendant Morrow was acting under an emergency, defining such term, and also whether or not he acted as a person of ordinary care and prudence would have acted under the same or similar circumstances, after the emergency arose.”

The court made the following submission of unavoidable accident:

Special Issue No. 21 :•
“Do you find from a preponderance of the evidence that the collision of the truck, so driven by the said C. A. Morrow, with the truck in which Frank Wells was riding, on the occasion in question, was not the result' of an unavoidable accident?
“You will answer this question ‘It was not the result of an unavoidable accident,-’ or- ‘It was the result of an unavoidable accident.’ ”

The court’s submission of that issue has support in the following authorities: Sproles et al. v. Rosen et ux., 126 Tex. 51, 84 S.W.2d 1001; Sproles Motor Freight Lines et al. v. Juge, Tex.Civ.App., 123 S.W.2d 919. The definition of unavoidable accident submitted by the charge has support in the following authorities: Woodward et al. v. Murphy, Tex.Civ.App., 29 S.W.2d 828; Wichita Valley Ry. Co. v. Minor, Tex.Civ.App., 100 S.W.2d 1071, and cases therein cited; Sherwin-Williams Co. of Texas v. Delahoussaye, Tex.Civ.App., 124 S.W.2d 870. Appellants’ exceptions to the definition of unavoidable accident on the ground that the evidence raised the issue that the collision could have been proximately caused by the negligent acts of other persons than Morrow, the driver of the logging truck, and the de^ ceased is overruled, as without support in the evidence; there was no evidence convicting Whitehead of negligence as the sole proximate cause of the collision. The authorities cited above in support of the issue of unavoidable accident deny appellants’ proposition, “that said issue, when taken in connection with the instruction following the same, as to how to answer such issue, was confusing and misleading to the jury, and said issue as submitted contained a reasonable doubt of the clearness and understandableness of the issue by the jury, and the jury was not told clearly and understandably upon whom properly rested the burden of proof.”

In special issue No. 20, the court made the following submission of appellee’s measure of damages:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will fairly and reasonably compensate the plaintiff, Mrs. Anna Wells, for the damages, if any, sustained by her by reason of the death óf her son, Frank Wells?
“You will answer this question by stating the amount in dollars and cents, if any you find.
“In passing upon the foregoing issue, you are instructed that you may take into consideration the following elements of-damage and none other:
“(A) The reasonable present fair cash market value of the loss of service of a minor, Frank Wells, if any you find from a.preponderance of the evidence, Mrs. Anna-Wells will in all reasonable'probability sustain by reason of the death . of the said . Frank Wells on the occasion in question, from the date of his death to the time he would have reached the age of twenty-one years, and in this connection, you are instructed that by ‘loss of service’ of the minor is meant everything that could be valued in money, and would include the personal service, if any, rendered his mother in and about the home, as well as the money earnings, if any, of said minor. And in connection therewith, you are further instructed that under the law that plaintiff, Mrs. Anna Wells, was legally bound and obligated to support and maintain said minor during his minority, and she is only entitled to recover damages for the loss of the services of said minor, if any, until he would have reached the age of twenty-one years, less the reasonable cost of support and maintenance of said minor, during his minority.
“(B) The present cash market value of the loss, if any, of such monetary contributions, if any, as you find from a preponderance of the evidence, Frank Wells would, in all reasonable probability, have voluntarily made to plaintiff, Mrs. Anna Wells, after reaching the age of twenty-one years, had he lived.
“You are further instructed that you must not allow anything as damages for grief, loss of society, companionship or mental suffering of Mrs. Anna Wells by reason of the death of her son, Frank Wells.”

Appellants’ proposition against this charge is that the court erred “in failing to affirmatively instruct the jury in connection with Special Issue No. 20 relating to the amount of damages, that the damages must be a direct result of the negligence of the defendant, C. A. Morrow.” Appellee’s cause of action was for damages suffered by reason of the death of her son. The elements of damages submitted by the jury were a direct result of the negligence “of appellants” which proximately caused the death of her son. The nature of appellee’s cause of action distinguishes it from the cases cited by appellants in support of their proposition. Finck Cigar Co. v. Campbell, Tex.Civ.App., 114 S.W.2d 348, affirmed Commission of Appeals, 134 Tex. 250, 133 S.W.2d 759; Anderson v. Reichart, Tex.Civ.App., 116 S.W.2d 772, writ dismissed; Standard Paving Co. v. Pyle, Tex.Civ.App., 131 S.W.2d 200.

Appellants’ assignments--against the special issues submitting the , issue of “negligence per se” become immaterial in view of the findings of issues of common-law negligence and proximate cause.

We give special issue No. S:

“Do you find from a preponderance of the evidence that the operation of said truck by C. A. Morrow at the rate of speed in excess of twenty-five (25) miles per hour at the time of the collision between the truck so driven by C. A. Morrow and the one in which Frank Wells was riding, was a proximate cause of the collision of said vehicles ?
“You will answer this question ‘yes’ or ‘no.’ ”

The assignment against this issue is that it assumed “the existence of a controverted issue of fact” that Morrow “was operating the truck at a rate of speed in excess of twenty-five miles per hour at the time of the collision.” This assignment is overruled. Issue No. 4 submitted the rate of speed made the basis, of issue No. 5 : “Do you find from a preponderance of the evidence that C. A. Morrow was operating the truck so driven by him at a rate of speed in excess of twenty-five (25) miles per hour at the time of the collision between the truck driven by him and the one in which Frank Wells was riding?”

Issue No. 5 was to be answered only if the jury had answered issue No. 4 “Yes.” This same construction of the issues denies appellants’ exceptions against special issues Nos. 11, 13, 17, and 19.

The verdict in favor of-appellee for $7,000 was not excessive. Appellee was a widow; her husband died in 1929. She liad two children older than Frank, one married and the other in the army. Frank lived with her; would have been twenty-one years the May after his death; he had been out of school eighteen months; he worked around the farm and- for truck farmers; he worked in the “tree army” for $30 a month — sent appellee $25 a month; for the three months Frank was out of the tree army, immediately prior to his death, he worked on a truck farm for Mr. Monroe —got a dollar and a half a day, which he brought home and gave to appellee; he always said he was not going to get married; he was obedient to appellee. Shortly before his death he made a visit to his uncle’s home at Goose Creek; when he returned, he left home again going to a job; he was going to give his money to appellee; he was going to fix up the place and send the younger children to school; he left home about 6:30 — “the next time I saw him he was dead”; he was a single man and had never been married. It would serve no useful purpose to quote additional testimony on this issue.

We have not reviewed the testimony on the controlling issues because the jury’s-findings on the fact issues submitted by the charge are not controverted, and the findings of the jury sufficiently explain the nature of the accident, and make it unnecessary to review the testimony as against appellants’ requested issues.

The judgment of the lower court should be affirmed, and it is accordingly so ordered.

Affirmed.


author: NORVELL, Justice.

text:
    SANTA ANA CITRUS GROVES, Inc., et al. v. FIRST NAT. BANK OF CHICAGO.
    No. 10906.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 19, 1941.
    Rehearing Denied April 2, 1941.

      R. M. Bounds and Roy Buckley, both of McAllen, for appellants.
    Oliver C. Aldrich and Felix L. McDonald, both of Edinburg, for appellee.
   NORVELL, Justice.

This is a “land fraud” case. The real property involved is a tract of approximately 1,900 acres situated on the Rio Grande in Hidalgo County, Texas. This property was conveyed by Clifford Guy Willard (who was acting as trustee for the First National Bank of Chicago) to Santa Ana Citrus Groves, Inc., by deed dated October 10, 1933. In this conveyance, the superior legal title and an expressed vendor’s lien were retained to secure the payment of four purchase money notes aggregating the sum of $32,500. These notes were also secured by a deed of trust executed by Santa Ana Citrus Groves, Inc., to Roy P. Conway, trustee. ' The purchase money notes, together with superior legal title to the property and the liens securing payment of said notes, were all assigned and transferred by Willard to the Chicago bank.

■On February 14, 1940, the notes being unpaid, the bank, as plaintiff, brought suit against the Santa Ana Citrus Groves, Inc., Santa Ana Groves Corporation, Dr. Mary A. Miller, Dr. Ann Rinehart, Helen King Maxwell, and certain other parties who filed disclaimers, asserting its superior legal title to the premises by way of an action of trespass to try title. The petition also contained an alternative count praying for judgment upon the notes and a foreclosure of the vendor’s lien.

The individual defendants above named pleaded that they had been induced tp place their money into a proposed corporation (Santa Ana Citrus Groves, Inc.) and through such corporation (after its formation) to purchase the lands involved by means of fraudulent representations made to them by the agents of the plaintiff bank. The individual and corporate defendants prayed for judgment over against the bank, and that the damages sustained be offset against the indebtedness represented by the notes held by plaintiff. After a trial to a jury, a peremptory instruction was given and judgment rendered for plaintiff upon its count in trespass to try title. The defendants (other than those who disclaimed in the court below) bring the case here. •

Appellants assert that the judgment rendered against Helen King Maxwell and Dr. Ann Rinehart should be reversed, as appellee failed to connect said parties with its pleaded common source of title, to-wit: Clifford Guy Willard. This contention must be overruled, as the pleadings of said appellants show that all claim of title which they may have possessed grew out of the transaction which resulted in the conveyance of property by Willard to Santa Ana Citrus Groves, Inc. As this was shown by the pleadings of said parties, it was unnecessary for appellee to introduce evidence connecting them with the common source of title. Moran v. Stanolind Oil & Gas Co., Tex.Civ.App., 127 S.W.2d 1012; Luckel v. Sessums, Tex.Civ.App., 71 S.W.2d 579.

Appellants assert that the case should have gone to the jury. In our opinion, the uncontradicted evidence shows that appellants are precluded from asserting any right they may have had to offset or abate the purchase money notes. This makes necessary an affirmance of the judgment of the court below for the following reasons :

Appellants pleaded that the property involved was represented to them as being suitable for subdivision into small tracts for homesites and citrus growing purposes; that such representations were false in that said lands were subject to periodical overflows by the Rio Grande. The appellee bank pleaded the two and four year statutes of limitations. Arts. 5526 and 5527, Vernon’s Ann.Civ. Statutes. It is well settled that in fraud actions “limitation begins to run from the time of the discovery of the fraud, or from the time it might have been discovered by the use of reasonable diligence.” Glenn v. Steele, Tex.Sup., 61 S.W.2d 810. The evidence shows conclusively that on or before June 12, 1935, appellants discovered that the property was subject to periodical overflows by the Rio Grande. It follows, therefore, that all causes of action which appellants may have had against the appellee by reason of the alleged fraud were barred either by the two or four year statutes of limitation prior to the time appellants’ petition was filed, except the right to an abatement of the unpaid purchase money notes "under the holdings of Mason v. Peterson, Tex.Com.App. (holding approved by the Supreme Court), 250 S.W. 142.

It appears that after the property involved had been conveyed to Santa Ana Citrus Groves, Inc., that corporation executed a deed of trust to secure an indebtedness due appellant Dr. Mary A. Miller. Upon default the property was sold at trustee’s sale to appellant Dr. Miller, who in turn conveyed the same to a second corporation known as Santa Ana Groves Corporation which was dominated and controlled by her.

On March 7, 1936, almost a year after appellants were in possession of facts charging them with knowledge of the alleged fraud complained of, Santa Ana Groves Corporation (the then record owner of the property), Dr. Mary A. Miller and First National Bank of Chicago entered into a written agreement which provided for an extension of the time of payment of the notes held by the Chicago bank under certain terms and conditions. It was recited that the time of payment of the notes had been previously extended by a prior agreement, dated April 5, 1934, and that said notes were secured by “a valid and subsisting lien on the premises.”

Dr. Miller and her corporation agreed to pay all accrued interest on the indebtedness at the rate of four per cent per annum from April 4, 1935, to December 1, 1935, and thereafter pay interest semi-annually at the same rate. They further agreed to pay all back taxes on the property, as well as all subsequent taxes when they became due. The bank agreed to extend the time of the payment of all of the notes for a period of eighteen months from December 31, 1935. The bank also obligated itself to a further extension of the times for payment of the notes, provided the corporation or Dr. Miller expended the sum of $7,500 in improving the property during the eighteen-month period. It was further agreed that the principal of the indebtedness could be discharged by a payment of $10,000 less than the face amount thereof if paid on or before the time specified in the agreement of extension, provided that the value of the property had not increased because of the discovery of oil thereon in the meantime.

This extension agreement also contained the following provisions:

“It is expressly agreed by the Parties hereto that all of the covenants and agreements in said principal notes and said Deed of Trust shall be and remain unchanged and in full force and effect during such extended period, except as hereby changed.
“It is expressly agreed and understood by the Parties hereto that in the event default is made in any of the provisions of this agreement, the rights of the parties hereto shall immediately revert to and be governed by all of the covenants 'and agreements in said principal notes and! said Deed of Trust contained.”

It is appellants’ contention that the paragraphs above quoted rendered the agreement “optional in nature”;. that as the corporation and Dr. Miller did not comply with the provisions thereof and as a consequence the bank asserted its rights under “all the covenants and agreements in said principal notes and said deed of trust contained,” the extension agreement was ineffective and should be disregarded for any purpose.

This view of the contract can not be sustained. The extension agreement was based upon a valid consideration. It was in no sense unilateral. Appellee’s rights asserted here are in conformity with the express terms of the extension agreement. The fact that Dr. Miller and her corporation failed to comply with the covenants which they obligated themselves to perform, in order to secure the maximum benefits accruing to them under the agreement, can not avoid the legal effect thereof, which was to affirm and acknowledge the legality and enforceability of the debt due to the Chicago bank.

From what has been said, it follows that the trial court properly instructed the jury to return a verdict for the appellee. Braxton v. Haney, Tex.Civ.App., 82 S.W.2d 984, writ refused, and authorities cited therein.

The judgment of the trial court is affirmed.


author: SPEER, Justice.

text:
    FLETCHER v. HUFFMAN.
    No. 14186.
    Court of Civil Appeals of Texas. Fort Worth.
    March 7, 1941.
    Charles Nordyke, of Stephenville, for appellant.
    Rawlings & Sayers and Nelson Scurlock, all of Fort Worth, for appellee.
   SPEER, Justice.

Dr. A. M. Huffman sued J. A. Fletcher and Clareisa Fletcher on two notes, one for $300, and a balance of $393.76 on another.

Allegations were made that the $393.76 was a balance due and unpaid on a series of notes made by J. A. Fletcher and Clarei-sa Fletcher, at a time when they, were husband and wife, to Farm Security Administration, a loaning agency of the U. S. Government, and will be referred to by us as FSA. That a first chattel mortgage lien was given to FSA on the personal property involved in this suit to secure the obligations given to that agency. That the $300 note was given by J. A. Fletcher and secured by a second chattel mortgage lien on the same property as that securing the FSA loan. That prior to instituting suit, Dr. Huffman, the plaintiff, purchased from FSA' the obligation held by that agency, and that because certain instalments thereon were due and unpaid, and under the accelerating clause therein he had declared the whole of the obligation due. Prayer was for judgment for principal, interest, attorneys’ fees due on both notes and a foreclosure of the chattel mortgage liens on the property.

J. A. Fletcher filed no answer. Mrs. Clareisa Fletcher answered by general denial and by special pleas to the effect that her former husband, J. A. Fletcher, had abandoned her subsequent to the execution of the note and mortgage to FSA and pri- or to the making of the $300 note sued on; that she had gathered the growing crops and applied a part of the proceeds thereof to making certain payments on the FSA note, reducing it to the amount Huffman claims to have paid for it; that at the time she made the payments on the FSA note the maturity date thereof was extended by (t.o) her until 1941, and therefore the suit thereon was prematurely brought. That the $300 note was originally made by J. A. Fletcher to E. B. Hendricks, an attorney, for professional services rendered to her former husband, and transferred to Dr. Huffman without consideration, and that said Huffman had previously entered into a fraudulent scheme and conspiracy with said J. A. Fletcher to purchase both notes and the liens securing them, so that he, the said Huffman, could institute this suit and foreclose said liens and thus fraudulently deprive her, the said Clareisa Fletcher, of her community interest in the property. In addition to this answer, Clareisa Fletcher filed a cross-action against Dr. Huffman and her former husband, J. A. Fletcher, seeking actual and exemplary damages, because of a conspiracy maliciously entered into between the two, in which they schemed to have Huffman purchase the notes and mortgages from .the payees thereof, and to institute this suit and thus fraudulently deprive her of her interest in the community property described in the mortgage.

Plaintiff Huffman replied with a supplemental petition and answer to the cross-action, to the effect that J. A. Fletcher was his brother-in-law, was under criminal charges in Hood County and was in jail; that he needed legal representation and could not pay a cash fee, as was demanded by the attorney; that he, Huffman, agreed to endorse Fletcher’s note to the attorney, and that, if not paid at a given date, he would pay it himself; that the note was not paid when promised, and that he made payment and took it over from the payee; that the note was secured by a second lien on the personal property, subject to the first lien securing the FSA loan; that the FSA note had been placed in the hands of an attorney for collection and to protect his interest he purchased the FSA note and lien, and paid full value in cash for them. He denied any fraudulent or improper motive on his part in the acquisition of the notes and liens, and denied any fraudulent conspiracy with J. A. Fletcher to improperly procure possession of the property securing the two notes.

The case was tried to a jury on two special issues. The first inquired if J. A. Fletcher. had permanently abandoned his wife, Clareisa Fletcher, at the time he executed the $300 note, and the second inquired if Huffman knew that J. A. Fletcher had abandoned his wife when he endorsed the note to Hendricks (the attorney employed by Fletcher). Both questions were answered in the affirmative.

In the judgment entered, it was found by the court that the undisputed testimony showed that plaintiff (Huffman) was entitled to sue on the FSA note and to have a foreclosure of the chattel mortgage lien on the property securing it, and that under the uncontroverted evidence he was the owner of the $300 note and a second lien securing it; that he was entitled to judgment thereon, with a foreclosure of a lien on an undivided one-half interest in the personal property covered by the mortgage. There was a further finding that defendant, Clareisa Fletcher, had failed to sustain her charge in the cross-action, and she was denied relief. Judgment was entered for plaintiff against J. A. Fletcher for the amount due on the two notes, with a foreclosure of the chattel mortgage lien on all of the property as against both J. A. Fletcher and Clareisa Fletcher, but under the verdict of the jury on the issues submitted, the court gave Huffman a foreclosure of his lien securing the $300 note on an undivided one-haif interest in the property. From this judgment Mrs. Cla-reisa Fletcher has appealed.

' There are two propositions presented upon which a reversal of the trial court’s judgment is sought. The first is said to be “Germane to assignments of error 3, 4, 5 and 6,” and the second proposition is said in the brief to be germane to assignments of error 9 and 10. There are no assignments of error in the briefs and, of course, there are none in the record.

Out of a desire to give appellant the benefit of an appeal and a review of the proceedings had, we shall construe, if possible, the “propositions” presented as assignments of error, although it is very difficult to ascertain from them what acts of the court are complained of. By a careful reading ■of the arguments presented under each, we are assuming that an attempt was made to ■complain in the propositions of what we gather from the argument. In the first proposition we are given, in a foreword or preface, an elementary dissertation upon how many different ways frauds may be perpetrated and conspiracies consummated, and finally that when properly pleaded and when testimony is offered in support of them, the court should submit special issues to the jury from which to ascertain the facts.

We have carefully searched the record for testimony which could be construed as tending to support a fraudulent conspiracy between plaintiff and J. A. Fletcher, and have found none. The most that can be said is that Huffman and Fletcher were brothers-in-law and that Fletcher, at the time of all the transactions involved, was the estranged husband of Clareisa Fletcher, and that they were subsequently divorced. The court found that there was no evidence of fraud or conspiracy, and we think it’ is borne out by the record. In such circumstances there was no .issue on that point for submission.

We can see no legal impediment to the purchase by Dr. Huffman of the notes in question, and his consequent right of enforcement of their payment. It perhaps is true that suit for the debt and foreclosure of the lien were hurtful to Mrs. Fletcher, at the time, but no more so than would have been a similar proceeding by FSA as was being threatened by the U. S. District Attorney. There could be no actionable fraud charged to Dr. Huffman for doing what he had a legal right to do. There is no evidence that a fraudulent or wicked motive prompted his acts; but if it could be said that his motive was to injure Mrs. Fletcher by foreclosing the liens on the property, since he had the legal right to do so, the supposedly motivating cause would not render his conduct actionable. 1 Tex. Jur., sections 21, 22, page 629.

The second proposition is lengthy, but boiled down, we think it was intended to assert that since Mrs. Clareisa Fletcher had made certain payments on the FSA note and procured a promise from the holder to extend the maturity, Dr. Huffman (appellee) was not an innocent purchaser of the note and lien, but was chargeable with notice of all defenses to which the payor was entitled, and that it was error for the court to find that, as a matter of law, Huffman was entitled to sue on the note as he did.

The testimony indisputably shows that Mrs. Fletcher had made payments on the note, but that not all past due instalments had been paid; that the loaning agency had placed the note in the hands of the U. S. District Attorney for collection when Dr. Huffman paid it to prevent the foreclosure of the lien on the property upon which he had a second lien; that he had had correspondence with FSA about the debt and lien, in an effort to preserve his own rights therein, and had no information whatever of any agreement or promise to extend the time of maturity. The record does not indicate that any written instrument was executed by the holder of ,the note and lien, extending maturity to any definite period for, a valuable consideration. Mrs. Fletcher testified on this point that when she made a payment on the note in the summer of 1939, there was another coming due in December following, but that Mr. Drake, the District Supervisor for FSA at Granbury, told her that “he would run me<on for another year.”

It is obvious from this record that Mrs. Fletcher had applied the proceeds of parts of the crop to payment of past due instalments on the FSA debt, but did not pay all, and that there was another instalment of $138 due on December 1st, 1939, upon which only $49.82 had been paid when Dr. Huffman acquired the note on January 13th, 1940. The note contained an accelerating maturity clause to be exercised at the option of the holder. Admitting that the District Supervisor for FSA told Mrs. Fletcher that he would run her for another year, assuming that this meant he would not insist upon prompt payment of the later instalments and assuming that he had authority to bind the Governmental Agency, it does not follow that the date of maturity of other instalments was extended to a definite period of time and does not disclose any consideration for an extension of maturity for any time. It is not contended that there was any promise to pay interest in consideration of the extension of time, nor to do anything that the maker was not already obligated to do. 6 Tex.Jur., section 186, page 826, et seq.

Giving the most liberal construction possible to the matters apparently complained of by appellant, and construing the evidence in its most favorable light in her favor, no error is presented by this record. We think the trial court properly disposed of the controversy, and-the judgment should be affirmed. It is our order that this be done.


author: COMBS, Justice.

text:
    BARKER et al. v. GRAHAM et al.
    No. 3678.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 20, 1941.
    Rehearing Denied March 19, 1941.
    H. A. Watts and Jack T. Life, both of Athens, for appellants.
    Bishop & Parsons, of Athens, for appel-lees.
   COMBS, Justice.

This suit was filed b.y appellees as an action in trespass to try title in the district court of Henderson County to recover title and possession of 115 acres of land. Appellants, who were defendants in the suit, filed a plea to the jurisdiction seeking to abate the suit on the ground 'that administration was pending on the estate of Marion Barker, deceased, under whom both plaintiffs and defendants claimed title. The plea was overruled and a trial on the merits resulted in an instructed verdict in favor of the plaintiffs, appellees here. We have concluded that the only question necessary for us to decide in disposing of this appeal is the correctness of the judgment of the trial court overruling appellants’ plea to the jurisdiction.

Briefly stated, the facts necessary to the decision of that question are as follows; Marion Barker died intestate July 17, 1937, leaving as a part of his estate the land here involved. On July 31, 1937, C. H. Coleman was appointed temporary administrator of the estate by the County Court of Henderson County, the order providing in the usual form that unless such appointment should be contested at the next regular term after service of citation “same shall be made permanent provided the court is of the opinion that a permanent administrator is necessary,” said proceeding being numbered 2023 on the docket of the county court. Coleman duly qualified as temporary administrator and citation was issued and served. So far as shown by the record, no further action was had in the probate court in that proceeding. On December 28, 1938, Julia Burrell filed application in the county court of Henderson County to be appointed permanent administratrix of the estate of Marion Barker, deceased. Citation was duly issued and served and by order entered on the 9th day of January, 1939, permanent administration was granted and Julia Burrell was appointed permanent administratrix. Thereafter she qualified by filing bond, etc. That proceeding was numbered 2077. Some further proceedings were had in that cause, including the filing of an inventory, and appraisement and list of claims. There has been no order terminating that administration. In connection with the trial of appellants’ plea to the jurisdiction in this case, the parties stipulated:

“It is agreed that the record title from the sovereignty of the soil is in Marion Barker, and plaintiffs and defendants claim the property as héirs of Marion Barker.”

The record further shows that the only contest between the plaintiffs and the defendants is with reference to heirship. Ap-pellees in their brief so concede. In their fourth counter proposition they say: “The sole issue in this case (is) whether appel-lees as the grandchildren of Marion Barker, deceased, acquired title to the land * * * as his sole heirs, or whether appellants, as the brothers, sister, nieces and nephews acquired the title as his sole heirs.”

The latter contend that Marion Barker and the grandmother of appellees were never married and hence the grandchildren cannot inherit from the grandfather.

As we view the law, the only judgment this court can enter on this record is to reverse the judgment of the trial court and dismiss the suit. It is perfectly clear from the facts recited above that administration is pending on the estate of Marion Barker and that the only real issue to be determined is one of heirship. Such being the case, the trial court had no jurisdiction. Zamora v. Gonzalez, Tex.Civ.App., 128 S.W.2d 166, writ refused; O’Neil v. Norton, Tex.Com.App., 29 S.W.2d 1060, and authorities-cited; Baxter v. Crow, Tex.Civ. App., 133 S.W.2d 187.

In the O’Neil case, supra [29 S.W.2d 1061], Judge Sharp writing for the Commission of Appeals, opinion adopted by the Supreme Court, said: “It is a well-settled rule in this state that when an administration on the estate of a deceased person is pending in the county court or it is made to appear that a necessity for it exists, the district court only has appellate jurisdiction and has no original jurisdiction to decree a partition or distribution or settlement of (he estate among the heirs of decedent until the administration in the county court has been finally concluded.”

And in the very recent cáse of Zamora v. Gonzalez, supra [128 S.W.2d 168], a case in all essential respects the same as the one before us, Chief Justice Smith, of the San Antonio Court of Civil Appeals, said: “The rule is now well established in this State that heirs cannot, within the administration period, institute and maintain a suit to recover property belonging to an estate and descending to them, without alleging and proving that there is no administration upon the estate, and no necessity therefor. A petition in such case is subject'to general demurrer if it does not contain such allegations; and, especially is it subject to such demurrer where it affirmatively shows a pending administration upon necessity, as in this case.”

As pointed out by Judge Smith in that case, there are some exceptions to the general rule, but in the case before us, as in that case, the facts do not bring it within any -exception.

As against this proposition appel-lees contend that the record shows that no necessity existed for further administration at the time Julia Burrell was appointed permanent administratrix, and hence the proceeding was void. The contention is not tenable. The question of whether a necessity for administration existed was for the probate court to decide, and its judgment determining that there was cannot be collaterally attacked in this proceeding.

We reverse and dismiss this case with some reluctance for the reason that on the record the judgment entered on the merits is the one which in all probability will have to be entered on final trial. However, the rule invoked against the jurisdiction of the trial court in this case is a wholesome and necessary one. It is obviously intended to protect the jurisdiction of the probate court in the exercise of the' functions which the Constitution and laws of the state commit to it.

Judgment reversed and case dismissed.


text:
    STATE v. TEACHERS ANNUITY LIFE INS. CO. et al.
    No. 3773.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 6, 1941.
    Rehearing Denied March 5, 1941.
    Gerald C. Mann, Atty. Gen., and Wm. J. Fanning, Lloyd Armstrong, and Ocie Speer, Asst. Attys. Gen., for appellant.
    Spears, Conger, Baskin & Spears, J. Franklin Spears, and J. B. Lewright, all of San Antonio, for appellees.
   COMBS, Justice.

This suit involves the question of the right of the Attorney General of the State of Texas without the authority or the consent of the Board of Insurance Commissioners to institute and maintain a suit to declare void and to cancel the corporate charter of an insurance company organized under the statutes of this state.

The suit was instituted by the Attorney General in the name of the State of Texas in the District Court of Travis County in the nature of a quo warranto against individual defendants, C. M. Har-grove, C. H. Cavness, Dr. Floyd McCullar, Dr. W. A. King, Adrian Spears, Carroll J. Hester, A. J. Ritter, Jr., and Dr. M. J. Smith, purporting to act as officers, directors and stockholders of Teachers Annuity Life Insurance Company, and, in the alternative, against the Teachers Annuity Life Insurance Company, a corporation.

The first count of the petition charged that the. alleged charter under which the defendant, Teachers Annuity Life Insurance Company, purports to act is wholly void for the reason that its capital upon which the charter was secured did not consist of property permitted by the statute as payment for capital stock, such as money, bonds, bank stock, or obligations secured by first mortgages upon unencumbered real estate in this state, but on the contrary the capital stock of $100,000 was purportedly paid for by transferring to the corporation an equity in a lot and building in the City of San Antonio. In that connection it was alleged in substance that said property was acquired by the incor-porators for a consideration of $123,000 secured by an installment note in the sum secured by vendor’s lien on the property; that the capital stock was paid for entirely by transfer of said property to the purported corporation at a valuation of $275,-000, the corporation assuming payment of the $123,000 indebtedness against it, and that “by reason of the character of the property with which the capital stock was purportedly purchased and paid for * * the charter of said company is void”; that the capital stock was made up of 10,000 shares of the par value of $10 each; that C. M. Hargrove, one of the defendants, as owner or as trustee for a number of persons, has acquired a large amount of said stock which he is selling or offering for sale to various individuals and the public generally; that by reason of the fact that said stock is “fictitious and void” irreparable injury will result to purchasers of it. It was alleged that the application for charter showed on its face the manner of payment of the capital stock by transfer of the equity in the encumbered property, and that said application was approved by the then Attorney General of Texas at the time the purported charter was granted.

In the alternative it was alleged that, if the charter was not void, it was in any case voidable and should be forfeited. In that connection it was charged that the defendant, Teachers Annuity Life Insurance Company, is wholly insolvent; that no part of the $123,000 indebtedness which it, purported to assume against the property has been paid; that taxes in the sum of $3,000 have accrued against said property which indebtedness together with accrued interest on the original debt make the total indebtedness due against said property $132,000; that the cash market value of said property is only $55,000, leaving a net deficit of $77,-000, and hence there is no equity in the property; that the capital structure of the defendant company is impaired to the extent of 100% of the purported value of its stock with an excess net deficit of $77,000; that said company has no property or assets except the- purported equity in the property in question and is wholly insolvent.

Upon the grounds alleged, the Attorney General sought judgment declaring the charter of the defendant insurance company void or forfeiting it, and for an injunction restraining the individual defendants and the purported agents of the insurance company from conducting the business of life insurance and from transferring or encumbering the assets of the company and for a receivership to wind up its affairs, etc.

The appellees, who will hereinafter be referred to as defendants, challenged the right of the Attorney General to maintain the suit by filing a motion as provided by Art. 320, Vernon’s Ann.Civ.Stat, to require him to show his right to maintain the, suit. For the purpose of the hearing on the motion, it was agreed that the Attorney General has not been requested by the Board of Insurance Commissioners to bring said suit. But on the contrary, that on March 11, 1940, said Board held a hearing for the purpose of determining whether said Board would give its consent and authority to the Attorney General for the prosecution of the suit, and that after said hearing, the Board of Insurance Commissioners by unanimous action of its membership voted not to join the Attorney General in the prosecution of the suit.

The trial court sustained the motion of the defendants and dismissed the plaintiff’s suit.

Opinion.

We do not pass upon appellant’s first contention to the effect that the- charter in question was void and may therefore be collaterally attacked, or more exactly, ignored as being of no force and effect. We will proceed' at once to a consideration of the broader and more vital question of whether or not the Attorney General has the legal right to institute and maintain the suit in the name of the State to forfeit the charter for cause, without the consent of the Board of Insurance Commissioners.

The Constitution of the State of Texas, Art. IV, Sec. 22, Vernon’s Ann.St., prescribing the duties of the Attorney General provides among other things: “The Attorney General shall hold office for two years and until his successor- is duly qualified. He shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party, and shall especially inquire into the charter rights of all private corporations, and from time to time, in the name of the State, take such action in the courts as may be proper and necessáry to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by lav/. He shall, whenever sufficient cause exists, seek a judicial forfeiture of such charters, unless otherwise expressly directed by law, and give legal advice in writing to the Governor and other executive officers,-when requested by them, and perform such other duties as may be required by law. He shall reside at the seat of government during his continuance in office. He shall receive for his services an annual salary of Ten Thousand ($10,000.00) Dollars, and no more.” (Italics ours)

It will be noted that the Constitution makes it the duty of the Attorney General to seek judicial forfeiture of corporate charters “whenever sufficient cause exists.” The general authority so conferred is limited only by the added proviso “unless otherwise expressly directed by law.”

Counsel for the defendants contend that, in so far as insurance companies are concerned, the power of the Attorney General to institute and-maintain suits -for the forfeiture of charters has been limited by the statutes pertaining to insurance. In that connection it is pointed out that the business of insurance has been the object of more legislation than any other subject. And that complete regulatory power and control of insurance companies and the business of insurance in general has been vested in the Board of Insurance Commissioners. See Title, 78, art. 4679a et seq., Vernon’s Ann.Civ.Stat. With commendable diligence counsel have. brought forward in their brief every provision of the statute which they conceive to support their contention. A consideration of these statutory provisions serves to show that large powers of regulation and control of the business of insurance have been vested in the Board of Insurance Commissioners. But in our opinion they nowhere reveal an intent on the part of the Legislature to limit the specific powers conferred upon the Attorney General to seek judicial forfeiture of corporate charters. There is certainly no provision which “expressly” prescribes any such limitation.

In general the constitution makes it the duty of the Attorney General to seek forfeiture of charters “whenever sufficient cause exists.” To our minds this means that the Attorney General, whose duty it is to institute such suits, has the power to determine the existence of “sufficient cause.” We find nothing in the statutes pertaining to insurance which in our opinion “expressly” or by necessary implication evidences a legislative intent to delegate to the Board of Insurance Commissioners the ascertainment of the “sufficient cause” upon which the Attorney General is required to apt in instituting such suits.

The Board of Insurance Commissioners is an administrative body and the powers of regulation and control of insurance matters are administrative in character. The institution and prosecution of suits for forfeiture of corporate charters on the other hand is of a legal nature. In their brief, counsel for defendants in effect concede that the actual institution and prosecution of suits for the forfeiture of corporate charters devolve upon the Attorney General. But they contend that in so far as insurance companies are concerned he cannot perform the duty unless and until the Board -of Insurance Commissioners shall find, or at least join him in finding, that good cause exists therefor. No such intent to limit the constitutional powers of the Attorney General should be read into .the statute by mere 'implication. Especially is this true in view of the constitutional provision which lodges full power in the Attorney General in that regard, unless and until the legislature expressly provides otherwise.

The judgment of the trial court is reversed and the cause remanded for further proceedings.

Reversed and remanded.


author: ALEXANDER, Chief Justice.

text:
    MILLER v. GRAY.
    No. 7335.
    Supreme Court of Texas.
    March 26, 1941.
    Critz & Woodward, of Coleman, for plaintiff in error.
    W. H. Adkins and Sam McCollum, both of Brady, and E. M. Davis, of Brownwood, for defendant in error.
   ALEXANDER, Chief Justice.

Henry Miller leased a ranch, of approximately 3,000 acres, in McCulloch County, to B. C. Gray, for a period of one year, beginning 'October 16, 1934. The contract was in writing, and provided in part as follows : ■ “ * * * said Gray is to have a lease on said Miller farm and ranch up to Oct. 16, 1935. Said Gray is to deliver possession of said land and premises to said Miller on Oct. 16, 1935 in as good condition as when received by him, ordinary wear and tear excepted, * * Gray planted 156 acres of the land in cotton, and 135 acres in maize and hegari. The remainder was in pasture land. On account of the unusually wet season, Gray was unable to gather all of his crop prior to the expiration of the lease. After the expiration of the lease, Miller took possession of the ranch, turned his stock into the fields, and otherwise interrupted the gathering of the crop. After Gray’s death his widow sued Miller for damages for destruction of the crop. The jury found that it was contemplated between Miller and Gray, at the time they entered into the contract, that Gray would cultivate the farm land, and would have the right to gather the 1935 crop grown thereon, even though all of such crop could not reasonably be gathered by the termination of said lease on October 16, 1935. It was further found that Gray used reasonable diligence to gather the crop prior to the .termination of the lease, but was unable to do so, and that he was damaged in the sum of $355 by the conduct of Miller in turning his stock into the fields and in interfering with the gathering of the crop. Based upon .the verdict, the trial court rendered judgment for the plaintiff for the sum of $355. The Court of Civil Appeals affirmed the judgment. 108 S.W.2d 265.

The Court of Civil Appeals sustained Gray’s right to gather the crop after the termination of his lease under the common law doctrine of emblements, which doctrine permits a tenant under certain circumstances to enter upon the leased premises to cultivate, harvest, and remove his crops therefrom after the termination of the lease. We are of the opinion, however, that the doctrine of emblements has no application in this case, because the lease here under consideration was not one of uncertain duration. The doctrine of emblements is a humanitarian one, growing out of the necessities of the case and is intended to be applied in those cases where the lease is of uncertain duration, and manifest hardships, which could not be foreseen and provided against, would result from the unexpected termination of the lease but for the application of such doctrine. It has no application where the lease is definite as to the date of its termination. The doctrine was announced in Dinwiddie v. Jordan, Tex.Com.App., 228 S.W. 126, 127, as follows :

“The doctrine of emblements is the common-law right of tenant, whose lease of uncertain duration has been terminated without his fault and without previous knowledge upon his part, to enter upon the leased premises to cultivate, harvest, and remove the crops planted by him before the termination of the lease. Says the Supreme Court of Indiana:
“ ‘In order to entitle one claiming to be a tenant, or his legal representative, to emblements, the following facts must appear: (1) The existence of a tenancy of uncertain duration. (2) A termination of the tenancy by the act of God or by the act of the lessor. (3) That the crop was planted by the tenant, or some one claiming under him, during his right of occupancy.’ Miller v. Wohlford et al., 119 Ind. 305, 21 N.E. 894.”

Tiffany on Landlord and Tenant, 1910, p. 1631, § 251, announces the doctrine as follows: “It is a general rule that if one’s estate in land comes to an end at a time which he could not have previously ascertained, without his fault and without any action on his part to bring about such result, he is entitled to take the annual crops planted by him before the termination of the estate. This right is ordinarily referred to as the right or doctrine of ‘emble-ments,’ and is based upon the justice of assuring to the tenant compensation for his labor, and also upon the desirability of encouraging husbandry, as a matter of public policy.” See, also, 13 Tex.Jur. 17; 36 C.J. 105.

The lease in this case was of certain duration. The contract provided in no uncertain terms that the lease was to terminate and that the tenant was to surrender possession of the premises on October 16, 1935. Consequently the doctrine of emble-ments has no application.

In odr opinion, the case of Crow v. Ball, Tex.Civ.App., 99 S.W. 583, cited by the Court of Civil Appeals, is not in point. In that case the landlord entered upon the premises and converted the crops to his own use prior to the date of the termination of the lease.

The Court of Civil Appeals also held that evidence was admissible for the purpose of showing that, under the usage and custom prevailing in the community, the tenant was allowed additional time after the termination of his lease contract in which to gather his crops where the seasons had been such that he could not, with reasonable diligence, have gathered them prior to the termination of the contract. We call attention, however, to the fact that evidence of custom is admissible only to explain an ambiguous contract or to add to it an element not in contravention of ■ its terms; but such evidence is never admissible to contradict the plain unambiguous covenants and agreements expressed in the contract itself. 17 C.J. 508; 10 Tex. Jur. 295; Alexander v. Heidenheimer, Tex.Com.App., 221 S.W. 942; Malone v. Dawson, 117 Tex. 377, 5 S.W.2d 965, 60 A.L.R. 665. As heretofore stated, the contract in this instance was plain and unambiguous. It expressly provided that the lease should terminate and that the tenant should surrender possession of the premises on October 16, 1935. Since the parties had expressly provided when the contract should terminate and possession of the premises be surrendered, evidence of the prevailing custom in the community to the effect that the tenant should have the right to re-enter the premises and gather the crops after the termination of the lease was inadmissible. The jury finding that the parties contemplated at the time they entered into the contract that Gray would have the right to gather the remainder of his crop after the termination of his lease, was based entirely on their understanding of the prevailing custom in the community. There was no evidence whatever that the parties had any other understanding than that embodied in the written agreement.

The Court of Civil Appeals cites the case of Bowles v. Driver, Tex.Civ.App., 122 S.W. 440, in support of its holding on the issue of proof of local custom. In that case it was held that the trial court did not err in receiving proof of a local custom in permitting a tenant to gather the remnant of a cotton crop after January 1. There the tenant leased the land for part of the crop which he was to produce and gather from the land. If there was no express agreement as to when his lease would terminate, then the holding of that.court can be sustained on the theory that the contract contemplated that the tenant should produce and gather a crop, and under the local custom the tenant could be allowed a reasonable time, under suitable weather conditions, after maturity of the crops in which to gather same. The decision cannot be sustained if there was an express agreement as to when the lease was to end, for this would be permitting the variance of an express agreement by local custom.

Since, under the express provisions of the contract here under consideration, the defendant was entitled to possession of the premises on and after October 16, 1935, he was not liable in damages for turning his stock into the fields after the date in question in the exercise of his right of possession of the land.

The judgments of the trial court and of the Court of Civil Appeals are reversed, and judgment is here rendered that plaintiff take, nothing.


author: CRITZ, Justice.

text:
    ANDRUS et al. v. REMMERT et al.
    No. 7509.
    Supreme Court of Texas.
    March 19, 1941.
    For prior opinion see 146 S.W.2d 728, reversing judgment Tex.Civ.App., 120 S.W. 2d 272.
    Robert L. Sonfield, Miles Strickland, and W. P. Neblett, all of Houston, for appellants.
    Searcy & Hodde, of Brenham, for Rem-mert.
    C. D. Duncan, of Bellville, and K. W. Gilmore, of Houston, for Humble Oil Co.
   On Motion for Rehearing.

CRITZ, Justice.

This cause is before us on motion for rehearing filed herein by William R. Rem-mert and Humble Oil & Refining Company.

In our original opinion we reversed the judgments of the Court of Civil Appeals and district court, and remanded this cause to the district court with instructions to partition the land indicated upon the following plat outside of the land enclosed within the letters “E, F, G, H.”

A re-examination of this record discloses that we were in error in describing the land which ought to be partitioned. For the purposes of this opinion on rehearing we make the following plat:

As shown by our original opinion, a tract of land 160 ft. by 419 ft. was set apart as a cemetery. We held, however, that all of such tract, except that part enclosed within the letters “E, F, G, H” on the first plat, supra, had been abandoned as such, and adjudged that all of such original tract should be partitioned, except the part still used as a cemetery. On further investigation of this record we find that the land included within the letters “I, J, D, A,” as shown by the second map, supra, was not included in this suit as finally submitted in the district court. We also find that we made a slight mistake in our original plat as to the land actually occupied by the cemetery.

It is ordered that our original judgment herein be set aside and judgment be now entered as follows: The judgments of the Court of Civil Appeals and district court are both reversed, and this cause is remanded to the district court with instructions to partition the two tracts of land included within the letters-“B, F, E, I” and “G, C, J, H,” respectively. We leave the question as to how such partition shall be effected to be determined by the district court. To the extent above indicated the motion for rehearing filed herein by William R. Remmert and Humble Oil & Refining Company is granted; otherwise such motion is overruled.