author: SPEER, Justice.

text:
    RAYNES et al. v. GERMANY et al.
    No. 14131.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 1, 1940.
    Rehearing Denied Nov. 29, 1940.

      ' House & House, Albert S. Reagan, and Ellis P. House, all of Dallas, for appellants.
    Mark McMahon, of Fort Worth, Angus G. Wynne, of Longview, and Prentice Wilson, of Dallas, for appellees.
   SPEER, Justice.

Mrs. Adah Melton Raynes and husband, C. R. Raynes, as plaintiffs, instituted this suit in the district court of Gregg County, Texas, against E. B. Germany and several others, in form of a bill of review, filed May 14th, 1936, to set aside and vacate judgments theretofore entered in that court designated as causes Nos. 7850, 1911-B and 4218-B, praying that they be permitted to file their cross-actions and defenses in said causes and have a trial thereof on the merits of said pleadings.

Plaintiffs filed amended pleadings from time to time, and on June 12th, 1939, filed their third amended original petition, upon which, with a second supplemental petition and a trial amendment, the case was tried. In said third amended original petition, plaintiffs prayed as in their original petition, and in addition thereto asked to reform or cancel a certain written contract shown to have been made between plaintiff Mrs. Raynes (prior to her marriage) and defendant E. B. Germany, on January 29th, 1931, which instrument purported to be a contract obligating Mrs. Raynes (then Mrs. Melton, a feme sole) to execute an oil and gas lease on 21 acres of land in Gregg County, when the title, was acceptable to Germany, in consideration that Germany would furnish plaintiff about $500 with which to make payment for purchase money on the land, under a contract be- ■ tween plaintiff and one Elbert Hoyt. The instrument purports to have attached to it a form of lease to be executed, apparently the usual and customary kind, wherein lessee would receive certain privileges of prospecting for and producing oil and gas and to deliver to the lessor one-eighth of the oil production.

The background of the controversy involved here seems to. be substantially as follows: prior to April, 1931, Mrs. Melton, then a feme sole, but now Mrs. Raynes, the plaintiff, had a negro maid, the wife of Elbert Hoyt; these colored people contracted with Albert Albright, iri 1928, to purchase 21 acres of land for $5'50, payable $50 in cash, the same amount a few months later and the remainder in annual instal-ments. ■ Albright was to make a deed to the Hoyts when the purchase money was paid. Hoyt defaulted in his payments and Al-bright was threatening to dispossess them and repossess the. land. The Hoyts appealed to Mrs. Melton to aid them in saving their land. She desired to do so, but being without the necessary funds to make payment to Albright, discussed the matter with defendant Germany, who was at that time buying and. selling oil and gas leases and doing some development. Germany was interested; he agreed to furnish the money to make the necessary payments, conditioned that title to the land should be fixed in Hoyt and he could have a lease on it. Hoyt agreed to give Mrs. Melton the mineral rights if she would save the surface right for him. On April 29th, 1931, the Hoyts and Mrs. Melton entered into a contract to that effect.

On the same day, but subsequent to the contract between the Hoyts and Mrs. Melton, last above mentioned, Mrs. Melton and Germany entered into a written contract to the effect that Germany was to satisfy himself with title and would furnish the money with which to pay the Albright debt, and that when this was done, Mrs. Melton would execute to Germany a mineral lease, prescribed by a printed form attached to the contract and would further convey to Germany a three-fourths interest in the royalty. We need not further refer to the conveyance of the three-fourths interest in the royalty, reserved in the proposed lease, for the reason subsequent dealing disposed of that interest and it is not involved in this suit.

At this point it is proper to say, plaintiffs (appellants here) contend that subsequent to the Hoyt-Melton contract and previous to the Melton-Germany written agreement, Mrs. Melton and E. B. Germany had an oral agreement to the effect that Germany would furnish the money’ to pay the Albright debt, when satisfied with Hoyt’s title; would prosecute, at his own expense, all litigation necessary to.enforce the Albright-Hoyt contract of sale, and was to receive a lease for oil and gas from whomsoever held the title at that time, by which Mrs. Melton should have, in addition to the usual and customary one-eighth royalty, an overriding one-eighth of eight-eighths royalty. That when Germany presented Mrs. Melton with the written contract on the night of April.29th, 1931, he represented to her that it contained substantially and effectively the terms of their oral agreement, and told her there was no necessity for her to read it, and that upon Germany’s said representations she signed and acknowledged the contract. That the instrument did not contain a provision for her to have the overriding royalty interest orally agreed upon, and that but for the false and fraudulent statements and con-cealments of E. B. Germany, in the manner he prepared the instrument and representations that it contained their oral agreement, she would not have executed same. This lawsuit hinges upon these contentions of plaintiffs. They seek to have said written agreement reformed so as to coincide with the oral agreement by which Mrs. Melton was to have the one-eighth overriding royalty interest in the eight-eighths lease to Germany and associates.

A suit in trespass to try title and alternatively to enforce the contract of sale from Albright to Hoyt was instituted May 21st, 1931, in the district court of Gregg county, styled Hoyt v. Albright, No. 7850. On November 20th, 1931, Adah M. Raynes (formerly Mrs. Melton, having recently been married), joined by her (then) husband, C. R. Raynes, intervened in said cause No. 7850, by a petition filed by T. B. Stinchcomb, “attorney for intervener”. In this petition plaintiffs set out the substance of the contract between the Hoyts and one of the plaintiffs (then Mrs. Melton), alleging that she was entitled to one-half of the mineral rights in said land, subject to an oil and gas lease thereon to Cranfill-Germany. She alleged that she stood ready, able and willing to carry out her agreement with Hoyt to make payment to Albright for the purchase money and made tender into the registry of the court. On January 16th, 1932, an amended petition was filed for the Hoyts, especially praying for a specific performance of the contract by Albright to convey the land to Hoyt. The nature of Albright’s answers is not material to this appeal.

Judgment in cause No. 7850 was entered on January 20th, 1932, containing recitations of the appearance of all the parties, naming them. That part referring to Mrs. Raynes reads: “The intervener, Mrs. Knowles Melton Raynes, appeared in person and by counsel and announced ready for trial.”

By the judgment Elbert Hoyt was awarded title to the land against the named defendants, John and Albert Albright and James S. Smith. The latter was shown to have been made a party defendant because of some kind of claim asserted, which we do not consider important here.

Referable to Mrs. Raynes’ plea in intervention, the judgment awarded to her as against the plaintiff Hoyt an undivided one-half interest in all of the oil, gas and minerals in, under and upon the lands in controversy, “subject to the outstanding oil and gas lease to E. B. Germany.”

The defendants Albright and Smith appealed, and the Court of Civil Appeals for the Sixth District of Texarkana affirmed the judgment of the trial court (Albright v. Hoyt, 57 S.W.2d 342), and the Supreme Court refused a writ of error.

After the judgment in cause No. 7850 was entered, vesting title to the land in Hoyt and the one-half interest in the mineral rights in Mrs. Raynes, subject to an oil and gas lease to Germany, Hoyt and wife, on February 25th, 1932, made, executed and delivered to E. B. Germany a regulation oil and gas lease on the 21 acres, in which Germany promised to pay Hoyt a royalty, in this language: “To deliver to the credit of lessors, free of cost, in the pipe line to which lessee may connect his wells, the equal one-eighth part of- all oil produced and saved from the leased premises.”

On the same day, to-wit, February 25th, 1932, Hoyt and wife executed and delivered to Mrs. Knowles Melton Raynes their mineral deed to an undivided one-half interest in the mineral rights in the land, and it provides that the conveyance is made subject to the terms of the mineral lease to E. B. Germany.

The record reflects that in May, 1934, in cause No. 1911-B, Gregg County district court, Germany and his associates instituted a suit against a large number of defendants, including plaintiff Mrs. Raynes, and her husband C. R. Raynes, to clear title to the land in the name of the plaintiffs in that suit. That Mrs. Raynes was cited by publication, notwithstanding plaintiffs knew full well that she resided in Dallas, Texas, and upon that process plaintiffs took judgment against her, divesting her of any claim she may have in the mineral rights in the land. That she had no knowledge of the pending suit until after judgment was entered and it was too late to have rights adjudicated. That she made no answer or other appearance in said cause. Thereafter she instituted her suit in hill of review to have the judgment in cause No. 1911-B set aside and one entered in lieu thereof establishing her rights to the one-eighth of eight-eighths overriding royalty interest, in conformity with the alleged oral agreement with Germany. This action was in the district court of Gregg County and is No. 4218-B. Judgment was entered on March 24th, 1936, in said cause No. 4218-B, reciting that Mrs. Raynes and her husband appeared and announced ready for trial. The order further provided in effect that Mrs. Raynes and husband had entered into and agreed upon a judgment to be entered. The court approved the agreed judgment and ordered it entered. This judgment denied any recovery to Raynes and wife and quieted title in Germany and other opposing parties.

The instant suit being No. 9944-B in the district court of Gregg County, Texas, is for the purpose of establishing the existence of the oral agreement between Mrs. Raynes (then Mrs. Melton) and E. B. Germany, whereby the former was to have an overriding one-eighth royalty interest of eight-eighths in Germany’s mineral lease; to reform the written contract between those parties to conform to the oral agreement and to set aside, review and reform all of said previous judgments in causes Nos. 7850, 1911-B and 4218-B, entered in the district court of Gregg County; and to recover of E. B. Germany and his associates the said overriding royalty interest.

The record before us is a voluminous one; it contains 350 pages of transcript and 1150 pages of the testimony. We have found it difficult to make a statement of the case which would prove satisfactory to the litigants or to the bench and bar if it should be considered applicable to future litigation. We have only attempted to relate matters which we consider necessary for a disposition of the appeal as presented to us.

The present case was tried to a jury. Special issues submitted and the answers returned made up a verdict to this effect:

(1)Adah Melton Raynes had no oral agreement with E. B. Germany on January 29th, 1931, under which she was to receive, under the Hoyt tract of land, one-half of the one-eighth royalty and in addition thereto a full one-eighth of eight-eighths overriding royalty interest.

(2) When W. L. Pickens (one of the defendants) purchased an undivided one-fourth interest in the mineral lease of Cran-fi.ll & Germany, he did not know that Mrs. Raynes then claimed to be the owner of an overriding royalty therein of one-eighth of eight-eighths of said mineral lease.

(3) T. B. Stinchcomb was authorized by Mrs. Raynes to appear and represent her in cause No. 7850, then pending in the district court of Gregg County, Texas.

(4) Mrs. Raynes authorized the firm of Stinchcomb, Kenley & Sharp to appear for her in cause No. 4218-B, styled Raynes et al. v. Germany et al., in the district court of Gregg County, Texas.

(5) Mrs. Raynes agreed to the entry of the judgment that was entered in cause No. 4218-B.

(6) Mrs. Raynes and husband used due diligence to have set aside the judgment entered in cause No. 4218-B.

Upon the verdict, the court entered judgment that plaintiffs, Mr. and Mrs. Raynes, take nothing by their suit and that the defendants, having filed a cross-action against plaintiffs for title, same was in all things sustained and judgment entered in their favor thereon for a recovery of 'title and possession of the lands in controversy; the land was described by metes and bounds as set out in the several pleadings.

Plaintiffs’ motion for new trial was overruled and appeal perfected to the Court of Civil Appeals for the Sixth District. By an equalization order of the Supreme Court, the appeal is before us for consideration.

Plaintiffs present thirty-three points termed by them, “Alleged errors upon which this appeal is predicated”. The briefs of plaintiffs are challenged by defendants, they contending that we cannot consider plaintiffs’ briefs because they do not comply with rules provided by our Supreme Court, in that no assignments of error are contained therein, and for the further reason, the “Alleged errors” in lieu of assignments of error are not such as to meet the requirements of Rule 24 for Courts of Civil Appeals, and Article 1844 Vernon’s Ann.Texas Civil Statutes. A construction of the rule and article mentioned has resulted in much discussion by our courts. Both the statute and the rule require that appellant “may embody in his brief in the appellate court all assignments of error distinctly specifying the grounds on which he relies.” When alleged errors are not distinctly specified, they are to be considered waived.

We have spent much time in an effort to fully understand from appellants’ brief the specific things complained of by their “Alleged Errors”. Perhaps this is not the fault of plaintiffs’ counsel. We find assigned errors enumerated in the brief, which are in length from a half page to as high as seven long pages of single-spaced typewritten matter. Meticulous efforts have been made by counsel to include in what they designate as assigned errors much argument, extensive quotations from the pleadings and what purports to be facts, as well as reasons believed by them, why their contentions should be sustained. We do not think the means employed are within the strict letter or even spirit of the statutory provisions, for the reason, here the errors complained of are made indistinct rather than “distinct”, as provided by the statute and rules of the Supreme Court. We expressed our views on this point in Worth Finance Co. v. Charlie Hillard Motor Co., 131 S.W.2d 416. While we are not to be understood as giving our approval to the method employed in this case, yet for the earnest insistence of counsel upon their theory of the case, and with a view to getting at the rights of the respective parties, we are considering the brief in its entirety. Gavin v. Webb, Tex. Civ.App., 99 S.W.2d 372, Ib., 128 Tex. 625, 101 S.W.2d 217.

In their brief, plaintiffs’ counsel, with commendable frankness, say: “The real, vital and controlling issue was, and is: did Germany make the oral agreement with Mrs. Raynes (then Mrs. Melton) for the one-eighth override as she alleged in her pleadings and testified to on the witness stand? This issue was affirmed by her and categorically denied by defendants, and upon that issue her right to recover must be finally determined.”

Counsel for defendants have, in the main, accepted the challenge, subject to their cross-assignments of error, which complain because the trial court overruled their plea in bar. The plea consisted of the several judgments hereinabove referred to, Mrs. Raynes’ testimony given in one of the other numbered causes, in which she .made no claim for the overriding royalty here sued for, thereby estopping herself from making the contention here urged, the statute of frauds (Article 3995 R.C.S.) and the several statutes of limitations.

In the view we take of this appeal we deem it unnecessary to discuss the cross-assignments and the action of the court in overruling the plea in bar. The record indicates that the court took under advisement the plea, hearing the evidence thereon, along with the case on its merits, and at the conclusion of taking testimony, overruled it, and submitted the controverted issues to the jury.

The voluminous pleadings of defendants embraced a general denial, and, without waiving, but insisting upon their plea in bar and subject thereto, pleaded as a special answer to plaintiffs’ action, all matters contained in the dilatory plea.

The admittedly all-important and controlling fact issue of whether or not there was an oral agreement between Mrs. Raynes and Mr. Germany at the 'incipiency of their negotiations, that she should, in addition to the one-half of one-eighth royalty, have an additional overriding royalty of one-eighth of eight-eighths in the mineral lease, was submitted to the jury for determination. That question was decided against plaintiffs. In her testimony she affirmed that such agreement was had; defendant Germany as positively denied it all. The testimony presented a fact issue for the jury. Neither the trial court nor this court has the authority to substitute its own opinion upon .such fact issues, for that of the jury, when properly submitted to 'it. Oats v. Dublin Nat. Bank, 127 Tex. 2, 90 S.W.2d 824; Choate v. San Antonio & A. P. Ry. Co., 91 Tex. 406, 44 S.W. 69; Post v. State, 106 Tex. 500, 171 S.W. 707; Sproles Motor Freight Lines v. Juge, Tex. Civ.App., 123 S.W.2d 919, writ dismissed, correct judgment; Century Indemnity Co. v. Carnes, Tex.Civ.App., 138 S.W.2d 555, writ dismissed, correct judgment; McCarty v. Hogan, Tex.Civ.App., 121 S.W. 2d 499, writ dismissed, correct judgment; Alagood v. Coca Cola Bottling Co., Tex. Civ.App., 135 S.W.2d 1056, writ dismissed, correct judgment; 41 Tex.Jur., sect. 378, p. 1246.

Plaintiffs’ counsel confess that the rule above announced is correct, but, they say, the alleged errors assigned by them brought about the answer of the jury to the all-important issue in the case. They charge that the trial court should have sustained their special exceptions to parts of the answer of defendants; the first being based upon the charge that the answer was a conclusion of the pleader; that part quoted in the assignment was a conclusion, but it was preceded by a recitation of the facts upon which it was based, which would overcome an objection to it upon the ground urged. 33 Tex.Jur., sect. 19, p. 432.

Second and third assignments complain because the court refused to sustain plaintiffs’ special exceptions to defendants’ answer, wherein they pleaded the judgments in causes Nos. 7850 and 1911-B in bar and in estoppel of plaintiffs’ right of recovery It is contended by plaintiffs .that the pleading should have been stricken upon their exceptions because the judgments were disclosed to be void. We think the contention is not supported by the record.

Plaintiffs seriously contend that the trial court erred in permitting defendant Germany’s counsel to prove by him while testifying, that he was chairman of the State Democratic Executive Committee, was a member of the official board of his church, had been Mayor of Highland Park, a member of the Advisory Board of Methodist Hospital and many other minor positions, including school trustee and a member of the Board of Directors of the Y.M.C.A. This assignment is based upon the theory that said testimony was immaterial to any issue in the case and was highly prejudicial to plaintiffs’ rights; that it was an improper manner in which to bolster Germany’s testimony, and had the effect of causing the jury to give it more credence than that of Mrs. Raynes, when their conflicting statements were to be passed upon.

We have concluded that no reversible error was committed in the matters complained of for several reasons: first, this suit was based upon a charge of fraud in statements made and fraudulent concealment of facts by Germany in the manner he procured the signature of Mrs. Raynes to the written agreement concerning their respective rights, on April 29th, 1931, upon which matter Mrs. Raynes had testified to in much detail, which tended to prove her allegations. Second, Mr. Germany was called to the stand by plaintiffs’ counsel for examination,' and was given a rather scathing “cross examination” as termed by plaintiffs’ counsel, in an effort to induce him to admit facts tending to prove the fraud alleged to have been perpetrated on Mrs. Raynes. The examination and colloquy between counsel waxed so warm that the court, as reflected by the record, declared a recess of court over night, “to give the lawyers a chance to cool off.” Third, previous to calling Mr. Germany to the stand, plaintiffs’ counsel had introduced as a witness Mrs. Raynes, and by way of introduction of her character and popularity, had proved by her that she was a choir leader for many years in one congregation, and pipe organist for a long time in another. Fourth, the testimony complained of came when defendants’ counsel took Mr. Germany over for an examination when plaintiffs had passed the witness. After the testimony as to political preferments had been given and the witness said he was a member of the Board of Stewards of the church and a Conference Lay Leader, counsel for plaintiffs interposed this statement: “Are we trying the question of membership in the church or a lawsuit? I am trying to indulge this without objecting; I don’t see how that could have any bearing on this lawsuit.” The court overruled the “objection”, to which counsel excepted. Many of the other matters set out in the assignment of error were introduced subsequently, without objection on the part of counsel. We do not think the “objection” urged at the time, in the absence of a motion to exclude what had previously been said by the witness without objection, and that part to which no objection was made, constitute a sufficient bill of exception to support the alleged error. To concede that the objection (if it be such) was sufficient, we think that in view of the whole record, no reversible error is shown. Article 2237 R.C.S., Vernon’s Ann.Civ.St. art. 2237.

Even to say that it was error for the court to permit the introduction of testimony, such as that complained of, and to go further and assume it influenced the jury in resolving the question of whether or not there was an oral agreement made against plaintiffs, these things would not be controlling in the judgment entered. In other words, to concede that but for the testimony complained of the jury would have said'in response to Special Issue No. 1 that there was an oral agreement by which Mrs. Melton should have the overr riding royalty, there w.ere other barriers between her and a judgment in this case which were not controlled by that issue. The judgment in cause No. 7850, in which Mrs. Raynes intervened to establish her rights, precluded her from recovering the overriding royalty interest. Her defense as against that phase of the judgment was that she did not authorize the intervention. By answer to Special Issue No. 4, the jury found against her contention on that point. Again, when plaintiffs filed suit in bill of review, cause No. 4218-B, to revise the judgment entered in cause No. 1911-B, an agreed judgment was entered that she take nothing by her action. Plaintiffs contended that the firm of Stinchcomb, Ken-ley & Sharp had no authority from her to have that judgment entered, and that she did not assent to what purported to be an agreed judgment that she take nothing. In response to Special Issues 6 and 7, the jury found to the contrary. None of these issues and answers could be said to have been influenced by the admission of the testimony concerning the positions of trust held by defendant Germany, about which complaint was made, and previously discussed by us. Any rights to an overriding interest that Mrs. Raynes may have been entitled to in virtue of an oral agreement between her and Germany, made in 1931, were foreclosed against her contention by the judgments entered in causes Nos. 7850 and 4218-B. It was therefore necessary, to entitle her to recover in this suit, to have those judgments set aside upon the' grounds alleged by her. Her failure to obtain this relief at the hands of the jury would preclude a recovery of the interest sued for, even if she had established that an oral agreement was made between her and Germany that she should have more than was awarded to her by the judgments. A somewhat analogous situation is here presented to that in Robertson et ux. v. Connecticut Gen. Life Ins. Co., Tex. Civ. App., 140 S.W.2d 936. That opinion was written in response to answers of certified questions to the Supreme Court. In that case the court announced the general rule to be that an errorless judgment would not be reversed and remanded to enable a party to better develop the case upon another trial; citing 3 Tex.Jur., p. 1143 (sect. 804); Harris v. Shafer, 86 Tex. 314, 23 S.W. 979, 24 S.W. 263; National Life Co. v. McKelvey, 131 Tex. 81, 113 S.W.2d 160.

There is yet another all-sufficient reason why the judgment in this case denying plaintiffs relief should not be reversed. To say nothing of the judgments before mentioned, which stood in their way, this action was based upon the alleged oral agreement between Mrs. Raynes and Germany, which agreement was purportedly reduced to writing, executed and acknowledged. Plaintiffs claimed that the execution and delivery of the written instrument was procured by the fraudulent concealment by Germany of the facts when Mrs. Raynes was induced to execute the contract. To entitle plaintiffs to recover, it was necessary for them to establish the controverted fact issue that the contract was procured by fraud, as alleged and testified to by Mrs. Raynes. This was not done. The court submitted no issue on the question of fraud, and none was requested by plaintiffs; they must be held to have waived that point in the case. Article 2190’ R.C.S., Vernon’s Ann.Civ.St. art. 2190; Gulf, C. & S. F.Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Alagood v. Coca Cola Bottling Co., Tex. Civ.App., 135 S.W.2d 1056, writ dismissed, correct judgment; City of Kirbyville v. Thackwell, Tex.Civ.App., 108 S.W.2d 226, writ dismissed, correct judgment; and authorities cited.

In connection with what we have said last above, plaintiffs submit here what they term their thirty-second alleged error. This assignment complains because the court declined to give in charge to the jury sixteen separate and distinct special issues, which they claim should have been submitted. Under the very liberal rule announced above, of considering what purport to be assignments of error, we are not ignoring this complaint because of its contents. Among the sixteen issues which plaintiffs contend in the assignment should have been submitted, number seven therein inquired whether or not Mrs. Raynes was induced to sign the written contract with Germany on April 29th, 1931, by reason of the representations of Germany. But the record does not disclose that plaintiffs requested the giving of any such charge, in such a manner as can now be considered by us. We have already said the trial court submitted no such issue in his main charge, nor did he in any manner attempt to do so. The first time the several questions contained in the assignment now before us appears in the record is in the motion for new trial. In fact, the objections and exceptions to the charge do not complain because the issue of fraud by Germany was not submitted. If such complaint had been made, absent a preparation of the issue and request to give it, it would not be sufficient to preserve' the point on appeal. We are supported in this statement by the authorities last above cited.

Other alleged errors are based upon the admission of testimony, over plaintiffs’ objection, wherein defendants Germany and Pickens testified that neither of them had any notice of or reason to believe, at the times inquired about, that Mrs. Raynes was asserting claim to the overriding royalty interest, which she is seeking in this suit to recover. Germany was relying upon the several judgments pleaded, along with the written contract between himself and Mrs. Raynes, denying the existence of an oral agreement to the contrary, and Pickens was claiming, as an innocent purchaser for value without notice, under a conveyance from Germany. We can see no error in the action of the court in admitting the testimony.

We have not attempted to discuss all the points raised in plaintiffs’ briefs, for to do so would extend this opinion to an unnecessary length. However, we have carefully studied them all, and they are overruled. Finding no reversible error in the record, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: WILLIAMS, Justice!

license: Public Domain

text:
    UNITED EAST & WEST OIL CO. v. DYER.
    No. 5666.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 7, 1940.
    Rehearing Denied Nov. 21, 1940.

      Hurst, Leak & Burke, of Longview, for appellant.
    Jones & Jones, of Marshall, and J. Edwin Smith, of Longview, for appellee.
   WILLIAMS, Justice!

United East & West Oil Company, a corporation, defendant below, appeals" from a judgment recovered by E. A. Dyer, plaintiff below, for personal injuries received in a gas explosion which occurred within a two-room house denominated by witnesses as a lease-house or bunk-house. Defendant in its operations of pumping oil from its wells and in heating the oil to separate the water therefrom, used gas for fuel, and for this purpose had constructed gas lines on its leasehold. This gas supply was furnished by the Hercules Gasoline Company, an independent concern.

In December 1936, plaintiff was employed by defendant as a pumper on a 24-hour duty of operating the pumping units, treating the oil, and doing other work incidental to this service. He immediately moved into this two-room house situated on the leasehold. At the same time he “hooked” on a gas line on the premises, which line ran within two feet of the house. Defendant “told” him to do this, and furnished a gas regulator, connections, and other material necessary to pipe gas into plaintiff’s stove in the house. Plaintiff made the installation and performed all the work necessary thereto. An odorizer to warn of the presence of escaping and unburned gas was furnished and installed by plaintiff and his son on above connection prior to the explosion. Defendant did not furnish the odorizer. Plaintiff continuously used the house for living quarters to the date of the explosion on November 21, 1937. During this period of time he paid a $10 monthly rental for the house, which was deducted from his wages each month.

The explosion occurred around 1 a. m. Plaintiff’s employment then required him to go on duty at midnight on a 12-hour shift. One Cherry handled the other shift. Plaintiff testified that he was awakened at 11:45 p. m. by Cherry whom he was to relieve; that Cherry had lighted an oil lamp and the gas stove in the kitchen before going off duty, and plaintiff knew this; that plaintiff left both lamp and stove burning when he went out upon the lease. He claims that he found the gas pressure so low that he had to adjust an engine and relight a fire under a heater on the lease; that the night was cold with a strong wind and he had returned to the house to change into heavier shoes before proceeding further, and as he sat down on the bed to do so the explosion occurred. This is plaintiff’s explanation of the explosion, and the only explanation given by any one. This is his reason given for being' in the house at the time of the explosion. No contention is made in any evidence that the pressure regulator was defective.

Plaintiff pleaded that he was engaged in the performance of his duties at the time of the explosion when he was in the house, and that the house had been furnished him by defendant in connection with his work there to be performed. He alleged that the gas furnished with the house fluctuated in pressure, at times was weak and played out; that the connection was not properly equipped with a malodorant device to warn plaintiff of the presence of escaping and unlighted gas; that each -rendered the premises unsafe and dangerous, and each such alleged negligence of defendant was a proximate cause of his injuries.

Defendant entered a general demurrer and denial. Defendant further alleged that plaintiff was drunk and had never gone on duty the night of the explosion; and that this alleged drunkenness with his alleged lighting of the stove was the sole proximate cause of the explosion. Defendant further pleaded that plaintiff had not sustained his injuries while in the performance of his employment; denied that it had furnished the house to plaintiff in connection with his employment, or that it was used in the performance of his duties as a pumper; and that if plaintiff returned to the house to change shoes, it was for his own personal comfort. It is further the contention of defendant in pleading, in evidence offered in support thereof and under propositions advanced on this appeal, that plaintiff was renting the house and using same for his living quarters to cook and sleep in, and the relationship of landlord and tenant existed between them as to the house. And under such relationship defendant was under no legal duty to furnish plaintiff, a tenant, a pressure regulator or odorizer for gas on the line piped into' the house by the tenant, which was connected to a pipe line supplied with gas from another company. Assumed risk, contributory negligence, or negligence of a fellow servant was not pleaded as a defense.

Evidence was offered that plaintiff was intoxicated through the afternoon and into the night and was drunk and unable to go and did not go on duty at the midnight shift. Cherry denied that he lighted the lamp or stove in the house. Plaintiff’s alleged drunken condition was sharply contested. The jury found that plaintiff “was not intoxicated at the time of the fire.” The evidence would have supported a finding either way, and this finding will not be disturbed.

Plaintiff in his testimony claims to have kept in the house light tools and equipment used by him; that from the house one could hear the sounds made by the pumping units and detect any irregularity; that in inclement weather he and another employee had used the house as a shelter and for warmth; that the only other shelter on the lease was the engine houses; that the engine houses were unsafe to remain in at night, in that it was dangerous to have fire around a well flowing and an engine running. Defendant offered no evidence to refute above claim of plaintiff that this house was so used by him for the purposes as detailed, or that the conditions of the premises were otherwise than as described. The evidence is silent as to whether or not defendant' agreed to furnish the house for above purpose or that defendant knew it was being so used as a shelter for this employee. In fact, the evidence gives no details of the original employment or rental, agreement, or of any subsequent modification, except the change to a 12-hour shift and an increase in wages.

In response to special issue No. 2, the jury found that plaintiff “at the time of the fire was acting in the course of his employment.” The jury was instructed, “By the term ‘acting in the .course of his employment’ is meant some action of the employee with or without the express authority of the employer, but which action is done in furtherance of the employer’s business, and for the accomplishment of one or more of the purposes for which the employee is employed.” Thus the jury’s finding supports plaintiff’s claim that at the time of the fire this house on defendant’s leasehold was then being use'd in furtherance of his master’s business. Instead of being in the house at the time to get a wrench to adjust machinery, he was there, as he claims, to change to heavier shoes preparatory to his further inspection and adjustment of machinery on the lease. Under this finding and the facts herein detailed, the house formed a part of the premises furnished by defendant to plaintiff in the operation of the leasehold. The fact that plaintiff paid a monthly rental and used it also as his living quarters would not deprive it of this characteristic.

The house being so used by plaintiff in the performance of his duties and in the furtherance of his master’s business, and being a part of the premises, the defendant (employer) owed plaintiff (employee) the elementary duty to exercise ordinary care to furnish him a reasonably safe place in which to work, or to not negligently render said house unsafe for him to use in carrying out his work. Texas & N. O. Ry. v. Bingle, 91 Tex. 287, 42 S.W. 971; Missouri, K. & T. Ry. v. Hannig, 91 Tex. 347, 43 S.W. 508; Houston & T. C. Ry. v. Long, Tex.Civ.App., 219 S.W. 212.

The jury found that defendant furnished the gas to the lease-house and the gas pressure was- of such nature that gas did at times temporarily cease to flow through the line in the lease-house, and this was negligence and a proximate cause of the injuries. The jury found that defendant “failed to have the odorizing device attached to the gas line going to the lease-house in such condition that the gas supplying the house at the time would have a distinctive odor,” and this was negligence, and a proximate cause of the injuries. It is upon above findings that plaintiff claims defendant negligently failed to provide him with a safe place to work, and upon this he predicates a right of recovery. The evidence amply supports the finding that the gas pressure fluctuated so that at times it temporarily ceased to flow and caused the pumps to stop and- the fire under the heating unit to go out. This condition of the gas pressure was well known to plaintiff, an experienced oil field worker for forty years. He knew that the fire in his stove had gone out a number of times because of this condition, He did not report the ■condition. Defendant’s other employee, Cherry, knew of the irregular flow of gas. Defendant’s superintendent visited the lease every day. Such irregular pressure existed during all the above period of time.

The evidence is not clear when the odorizer was attached to the line. There was no statutory requirement or Railroad Commission rule at the time which required the odorization of gas used in oil field operations. The evidence is silent whether the odorizer had or had not thrown off a distinctive odor to warn of escaping gas prior to the date of the explosion-. Plaintiff testified that he noticed no odor when he entered the house on that night, and neither did King who rescued plaintiff from the fire. Plaintiff’s son could detect no malodorant about the device the next morning. No contention is made that the Hercules Company billed or collected from plaintiff for the gas used by him. In the set-up, the Hercules Company furnished gas to defendant, and the gas was connected with the house. We are unprepared under all the facts and circumstances above detailed to hold as a matter of law that the defendant was not guilty of negligence in failing to provide plaintiff with a safe place to work. In Hunt v. Robinson, Tex.Civ.App., 55 S.W.2d 166, which is relied upon by defendant, the jury exonerated the defendant from negligence. Further, the negligence here is not grounded upon the construction of the gas line.

In his original petition, upon which plaintiff went to trial, he alleged that defendant had in its employ three or more men in the same class of employment at the time, and defendant was eligible to become a subscriber under the Workmen’s Compensation Act, Vernon’s Ann.Civ.St. art. 8306 et seq., but defendant was not a subscriber under such Act and carried no workmen’s compensation insurance upon plaintiff. A special exception would have reached such allegation. Pleading such facts in plaintiff’s original pleadings does not constitute fundamental error as urged by defendant. Sonken-Galamba Corp’n v. Hillman, Tex.Civ.App., 111 S.W.2d 853; Dial v. Wilke, Tex.Civ.App., 127 S.W.2d 379.

Defendant pleaded that it was at the timje of the explosion a subscriber under the Workmen’s Compensation Act and carried workmen’s compensation upon the plaintiff. Special issue No. 13 inquired of the jury if defendant had in force a policy of insurance under the Workmen’s Compensation Act covering plaintiff at the time. This was answered in the negative. Defendant asserts that this was submitting a question of law for determination of the jury, and presents a fundamental reversible error. Und,er the particular facts of this record, such issue did present a question of law. No exception was taken to its submission. It does not present a fundamental reversible error.

The other propositions advanced have been considered and are respectfhlly overruled.

The judgment is affirmed.


author: NORVELL, Justice. SMITH, Chief Justice

text:
    RODRIGUEZ v. HIGGINBOTHAM-BAILEY-LOGAN CO.
    No. 10729.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 2, 1940.
    Rehearing Denied Nov. 27, 1940.
    Dissenting Opinion Nov. 27, 1940.

      Gordon Griffin, of McAllen, for appellant.
    Read, Lowrance & Bates, of Dallas, and L. J. Polk, of Pharr, for appellee.
   NORVELL, Justice.

R. C. Rodriguez, a well-known traveling salesman, and Higginbotham-Bailey-Logan Company, a Dallas wholesale dry goods corporation, will be referred to as plaintiff and defendant, respectively, as in the trial court.

For twelve years prior to December, 1932, plaintiff was a traveling salesman in the Rio Grande Valley for Perkins Dry Goods Company. When that concern ceased business at the end of that period plaintiff was employed as general salesman in the same* territory by defendant. His pay consisted of certain commissions on sales made directly by him, as well as on sales made by certain other salesmen in his territory. He was allowed a drawing account of $75 every two weeks, which was charged to his commission earnings. At the end of each year the balance of his commissions was paid to him in a lump sum, which the parties called his “bonus.”

This arrangement continued satisfactorily until November 19, 1934, when plaintiff was injury in an automobile accident, and was confined to hospitals and in his home for two years, and never actively resumed his work.

At the date of plaintiff’s injury defendant owed him accrued commissions amounting to $1,335.91, and after his injury defendant continued, as before, to remit to plaintiff every two weeks the amount of his drawing allowance, $75, until $1,050 had been paid him. This left a balance of $285, which was paid to plaintiff in one check, at his request.

Now plaintiff contends, and based this suit upon the contention, that shortly following his injury and resulting disability defendant agreed, through E. L. Blanchard, its sales manager, to continue to pay plaintiff the agreed commissions on all sales made by defendant in that territory during the period of plaintiff’s disability, just as if he had been all the while actively engaged in the field; that Blanchard was duly authorized to make the agreement; that defendant company had ratified the same, and was also estopped to deny its liability upon the contract. It is conceded that if this contention is correct, then plaintiff earned net commissions amounting to $273.04 in the year 1935, $1,173.43 in 1936', and $1,-495.05 in 1937, for all of which he sued.

The defendant under oath denied that Blanchard, the agent, was authorized to make the alleged agreement and by proper pleadings put in issue the questions of ratification and estoppel.

Trial was to a.jury which found that Blanchard had in fact made the alleged agreement with plaintiff.

The issues of Blanchard’s authority and the defendant’s alleged ratification of the agreement and the matter of estoppel were not submitted to the jury, and no request was made for the submission of these issues.

The trial court upon defendant’s motion rendered judgment non obstante veredicto, denying any recovery to plaintiff, Rodriguez, who has appealed.

By his assignments of error, plaintiff asserts that this case must be reversed as the trial court erred in its holdings upon the issues of the agent’s authority, ratification and estoppel. In connection with these assignments, we have examined the evidence and come to the conclusion that it was sufficient to support a finding that Blanchard was authorized to make the contract and also that the defendant company ratified the agreement.

There appears to be no evidence which would support plaintiff’s plea of estoppel.

The trial court’s holdings that there was no evidence of authority or ratification are not justified as the evidence as to these issues was conflicting in that a fact finding either way on both. issues would be supported by the evidence. As the determination of these issues presented a question of fact and not of law, a judgment non obstante veredicto can not be sustained as the case was not one in which it would, have been proper to give an instructed, verdict. This holding does not, however, necessitate a reversal of the judgment, for as said by Judge Critz in Hopper v. Tancil, Tex.Com.App., 3 S.W.2d 67, 71: “If the action of the trial court in withdrawing the case from the jury and entering judgment for Kleas was correct upon any theory, such judgment should be affirmed, whatever reason was assigned therefor, or whether any reason was assigned therefor. Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, 239 S.W. 185, and Associated Oil Co. v. Hart (Tex.Com.App.) 277 S.W. 1043.”

The holding of the trial court in this case that there was no evidence of authorization or ratification in the case necessarily embraces a finding that the evidence was insufficient to establish by a preponderance of the evidence that the agent was authorized to make the contract or that the company had ratified the agreement. Marshburn v. Stewart, 113 Tex. 507, 254 S. W. 942, 260 S.W. 565; Wallace v. Southern Cotton-Oil Co., 91 Tex. 18, 22, 40 S.W. 399.

We have therefore presented the question of the proper judgment to be entered upon the following findings: (1) (By the jury) the alleged agreement was entered into between Rodriguez and the agent, Blanchard; (2) (by the trial court) the agent, Blanchard, was not authorized to make the agreement; and (3) (by the trial court) the defendant company did not ratify the agreement. If it be conceded that, under the facts of this case, the trial court was authorized to make the two findings above set out, there is no doubt that a judgment that plaintiff take nothing was proper. Such a judgment would not be a judgment notwithstanding the verdict, but one in keeping with and based upon findings by the jury and by the trial court.

The question of whether or not we are authorized in considering the findings of the trial court above set out in determining the proper judgment to be rendered, calls for an examination of Articles 2190 and 2211, Vernon’s Ann. Civ. Statutes.

Article 2211 reads in part as follows: “The judgments of the Court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. * * * ”

The part of the article above quoted was adopted as part of the Acts of 1846. At that time and long thereafter, the general jury verdict was used in the trial of civil cases. A proper construction of the words “The judgments of the Court shall conform to * * * the verdict” when applied to a verdict of special issues is that by the term “verdict” as used in the statute is meant one or more findings upon special issues which are in themselves sufficient to support a judgment. In this case the jury’s answer to the special issue submitted is an incomplete verdict, in that it does not purport to cover the issues presented by plaintiff’s pleading, and contains no findings upon the issues of authority of the agent, or ratification by the defendant company which were pleaded by plaintiff and placed in issue by the denial of the defendant. We think it obvious that it was not the ministerial duty of the trial court to enter judgment for plaintiff upon this incomplete jury verdict, and it was not fundamental error (as suggested by plaintiff) for the trial court to refuse to do so. It seems obvious that a party can not demand a jury submission of only a part of his cause of action, presumedly that part upon which his evidence is strongest, and then insist that he have judgment.

Article 2190, supra (copied in the margin) , has been the subject of many opinions of the appellate courts of this State. In Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 85, Mr. Justice Sharp, speaking for the Supreme Court, reviews various prior opinions of that court dealing with the article and states certain rules which are applicable here, namely:

1. “Where the court fails to submit a separate or independent ground of recovery or defense, and there is no request to submit the issue or issues omitted, such issue or issues are waived, and no waiver can be imputed to the other party for such failure.”

2. Where the court submits one or more issues to the jury, but does not submit-other issues which are necessary to support a judgment based upon the ground of recovery or theory under which the submitted issues were given, and no request is made for such submission, the trial court is authorized to determine such unsubmitted issues from the evidence.

As we understand the Pepper case, it approves the following statement from Moore v. Pierson, 100 Tex. 113, 94 S.W. 1132, 1134: “The consequence must necessarily be that when the trial court has expressly submitted some issues and excluded others, and neither party has put in writing a request for the submission of those excluded, they must be regarded in the appellate court as having acquiesced in such action and consented for the trial judge to determine from the evidence the issue not submitted. It is only by a written request that the party puts on record his dissent from the action of the court and his insistence upon the right to have the jury, rather than the judge, decide the point at issue.”

The Pepper case does, however, on the authority of Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084, restrict the above rule as to the power of the trial court to determine issues not submitted, to those issues which do not constitute a separate ground of recovery or defense.

In applying the rules of the Pepper case to the case at bar, we hold that the un-submitted issues, that of the authority of the agent, and ratification of the agreement by the defendant company, were not issues constituting a separate or independent ground of recovery. These issues related to the one ground of recovery urged by plaintiff, i. e., the existence of a valid agreement between him and the defendant •company. This being true, the plaintiff by not requesting a submission of these issues, consented that these issues should be determined by the trial court.

Our position here is also supported by the case of Nixon v. Hirschi, 134 Tex. 415, 136 S.W.2d 583. In 18 Texas Law Review, this case is discussed by Preston Shirley, former Professor of Law at the University of Texas, and it is therein pointed out that the usual situation presented in the decisions is that in which a judgment has-been entered in favor of the party in whose favor the jury answered the submitted issue, nevertheless, “there is nothing in Article 2190 requiring 'that the omitted issue be found by. the trial court, or be presumed on appeal to have been found by the trial court, in favor of the party for whom the jury answers the submitted issue or issues.” 18 Tex.Law Review 452. See, also, Wilt v. Kellogg, 132 Tex. 345, 122 S.W.2d 1051.

We therefore hold that as the issue submitted was incomplete as a verdict upon which a judgment for plaintiff could be based under the pleading, the plaintiff by failing to request the submission of further issues, in effect, consented for the trial judge to determine all other fact issues raised by the evidence. As the'holding of the trial judge that there was no evidence supporting plaintiff's theories of authorization and ratification embraced findings upon the preponderance of the evidence adverse to plaintiff’s contentions upon such issues, the judgment appealed from will be affirmed.

SMITH, Chief Justice

(dissenting).

I regret that I cannot concur in the majority opinion, or in affirmance of the judgment. I will undertake to briefly state the reasons for my dissent.

The cause was submitted to a jury on one special issue, to-wit: “Do you find from a preponderance of the evidence that E. L. Blanchard in the McAllen hospital during the month of December, 1934, in substance and effect promised and agreed to and with the plaintiff Rodriguez that during such time as Rodriguez should be unable to return to active employment as salesman for Higginbotham-Bailey-Logan Company the said company would pay or credit to the said Rodriguez commissions on goods shipped by said company to customers in the territory served by said Rodriguez as salesman prior to his injury on the same basis on which commissions had been paid or credited to said Rodriguez on sales theretofore made in said territory prior to his injury ?”

The jury answered the question, “Yes.” No other issues were requested. In connection with the jury finding it was stipulated by the parties that if said agreement was binding upon defendant then plaintiff was entitled to recover an aggregate sum of $2,941.52.

Upon defendant’s motion the court rendered judgment non obstante veredicto, denying any recovery to plaintiff, Rodriguez.

Defendant moved for a directed verdict in its favor at the close of plaintiff’s evidence, and again at the close of defendant’s evidence, but the trial judge overruled both motions, and submitted the case on the quoted special issue, thereby holding throughout the trial and until after verdict, that the case was one for the jury.

Defendant’s motion for judgment non ob-stante veredicto was based upon the grounds that “a directed verdict in favor of this defendant was the only proper verdict that should have been rendered and the court erred in refusing to direct such verdict when timely requested to direct such verdict at the close of the evidence by the plaintiff and again at the end of the evidence of both parties,” and for the further “reason that the answer of the jury to such issue has no support in the evidence; and for the further reason that the answer of the jury to the question submitted to it by the court can have no legal effect on the proper determination of the lawsuit and should not have been submitted.”

Plaintiff filed a full motion for new trial, properly challenging, the rulings of the court upon defendant’s motion for judgment non obstante veredicto, and attacking the resulting judgment.

Defendant challenges plaintiff’s right in this court to complain of the judgment, upon the ground that plaintiff did not elicit or request a jury finding that the agent, Blanchard, had authority to bind defendant upon the contract established by the sole jury finding. In support of this contention defendant propounds the proposition that the issue of authority was “an essential issue to be found in favor of plaintiff, before any recovery could be had” by him, and that in the absence of a jury finding thereon in this jury case the trial judge was “without power to find such issue in appellant’s favor,” and, therefore, that the court properly rendered judgment for defendant. In my opinion there is no merit in these contentions.

The only authority given a trial judge to render judgment non obstante veredicto is that provided by statute, and it must be exercised in strict observance of that provision, since it is in derogation of the constitutional right of trial by jury. The language of the statute is that “the Court may render judgment non obstante veredicto if a directed verdict would have been proper.” (Italics mine.) Art. 2211, R.S.1925, as amended by the Act of 1931, 42d Leg. p. 119, Ch. 77, sec. 1, Vernon’s Ann.Civ.St. art. 2211.

A trial judge may direct a verdict in a jury case only “whenever there is no evidence to support a material issue, whenever the jury can come to no other correct conclusion, whenever the evidence is all on one side and sufficient to support such verdict, or whenever theré is only a pure question of law.” 41 Tex.Jur. p. 935, sec. 166. I have carefully examined the record and have reached the conclusion that it does not bring this case within either of the classes in which a directed verdict is proper.

Plaintiff pleaded a lawful contract, made by an agent clothed with actual or apparent or implied authority to bind defendant, while acting within the scope of his employment. He pleaded that, whether the agent was authorized or not, defendant had ratified his acts in making the contract, and, having materially profited by plaintiff’s performance thereunder, waived its right and was estopped to deny its binding effect. It cannot be contended that plaintiff did not adduce material evidence to support his pleadings in the matters mentioned.

The question recurs, then, to the propriety of the judgment rendered in the face of and notwithstanding the verdict. The alleged contract constituted the very foundation of plaintiff’s cause of action, and the question of whether the contract was actually made constituted the ultimate issue of the case, in connection with the amount of damages, which was stipulated by the parties. The jury found, upon sufficient evidence, that the contract was made by the -admitted general sales manager or agent of defendant, and this finding with the stipulation for damages, made a case for plaintiff, and prohibited judgment for defendant. The remaining issues, of the authority of the agent, ratification, waiver, estoppel and the like, were subsidiary to the basic issue, and while the trial jttdge had authority to find upon those issues so as to support a judgment in favor of plaintiff based upon the jury finding and stipulation (Wichita Falls & O. Ry. v. Pepper, 134 Tex. 360, 135 S.W.2d 79), surely he was without authority to find, and it will not be presumed that he did find, upon those subsidiary issues so as to authorize a judgment for defendant based upon no jury finding in its behalf upon the basic issue, and in the face of and notwithstanding an affirmative finding thereon in favor of the plaintiff, u,pon conflicting evidence. Williams v. Ins. Ass’n., Tex.Civ.App., 135 S.W.2d 262.

On the other hand, defendant pleaded the defense of accord and satisfaction. The evidence was conflicting upon that issue, however, and therefore the trial judge had no authority to find, and we cannot presume that he did find, upon that basic issue so as to support the judgment for defendant under the evidence. It was the plain duty of the trial judge to submit that issue to the jury, but when he failed to perform that duty and submit the issue the burden shifted to defendant to request its submission. Defendant made no such request, however, and thereby waived his defense. Wichita Falls & O. Ry. v. Pepper, 134 Tex. 360, 135 S.W.2d 79.

Defendant also contends, in urging af-firmance, that the contract established by the'jury finding lacked mutuality and was without consideration, but we cannot say that these contentions are established by the record, as a matter of law. We can say, only, that the court erred in nullifying the finding of the jury, upon sufficient evidence, that the contract sued on was entered into by and between plaintiff and defendant’s general sales agent, and in rendering judgment for defendant upon all other issues in the face of conflicting evidence.

Summarizing, the case presented is this: Plaintiff’s cause of action was founded upon the allegation that defendant corporation employed plaintiff and agreed to pay him certain compensation for his services, and that under that agreement plaintiff earned and was entitled to recover certain sums. That was plaintiff’s case. Of course, there were subsidiary questions, such as the authority of defendant’s admitted agent to make the contract for defendant; ratification, waiver and estoppel. But the foundation of the case was the alleged (1) contract of employment and (2) the amount earned by plaintiff thereunder.

Now the jury found that (1) the contract was in fact made by defendant, through its general sales agent, and the parties stipulated (2) the amount earned by plaintiff under that agreement, if valid. Undoubtedly these two essential, and sufficient, facts entitled plaintiff to judgment for the amount stipulated (absent other inconsistent jury findings), and my position is that although the trial judge had the power to find upon the subsidiary issues so as to support judgment in conformity to the jury findings upon the basic issues, he was without authority to nullify those findings upon the basic issues and in direct contravention thereof render judgment for defendant upon his findings against plaintiff on the purely subsidiary issues, which were not submitted to the jury.

Assume, for the purpose of illustration, that the jury had found, specifically, in favor of plaintiff upon all the issues in the case except, for example, upon waiver, which was not submitted or requested, and the trial judge, concluding that the weight of the evidence was against plaintiff upon that remote subsidiary issue, had assumed to resolve it against plaintiff, and render judgment against him, notwithstanding the-jury verdict in his favor on the principal issue.

I do not think a trial judge is clothed with power to thus thwart the right of the citizen to a jury trial. The hypothesis is extreme, but it is different only in degree from the case made here, where the jury finding in favor of plaintiff upon the principal ground of recovery, and the stipulation of the amount of plaintiff’s damages, made a prima facie case entitling plaintiff to judgment. If in his discretion the trial judge could not render judgment for plaintiff in conformity to the verdict and stipulation, it was his duty to order a mistrial. I think the judgment should be reversed and the cause remanded.

       “Art. 2190. * * * Submission of issues
      “When the Court submits a case upon special issues, he shall submit all the issues made by the pleading and evidence. Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission has been requested in writing by the party complaining of the judgment. Upon appeal or Writ of Error, an issue not submitted and not requested is deemed as found by tbe Oourt in such manner as to support the judgment if there is evidence to sustain such finding. A claim that the evidence was insufficient to warrant the submission of any issue may be complained of for the first time after verdict, regardless of whether the submission of such issue was requested by the eom-plaining party.” As amended Acts 1931, 42nd Leg. p. 120, eh. 78, § 1.


author: DUNKLIN, Chief Justice,

text:
    MORRIS PLAN BANK OF FORT WORTH v. OGDEN et al.
    No. 14133.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 1, 1940.
    Rehearing Denied Nov. 29, 1940.

      McGown, McGown, Godfrey & Logan, B. E. Godfrey, and John M. Scott, all of Fort Worth, for appellant.
    Blalock, Blalock, Lohman & Blalock, of Marshall, Wilson, Ogden & Reichman, of Dallas, and Edward L. Peteet, of Marshall, for appellees.
   DUNKLIN, Chief Justice,

This suit was instituted m me district court of Harrison County by Robert Ogden, residing in Dallas County, against J. H. Wilson, sheriff of Harrison County, and the Morris Plan Bank of Fort Worth, a private corporation, with its principal place of business in Fort Worth, Tarrant County, hereinafter referred to as the Bank. The Bank filed its plea of privilege in statutory form to be sued in Tarrant County, and it has prosecuted this appeal from an order of court overruling that plea.

The facts alleged in plaintiff’s pleading as a basis for his suit and the relief sought, may be summarized as follows:

The Bank, as owner and holder of a personal judgment in its favor, rendered by the County Court at Law in Tarrant County against R. H. Ogden, H. J. Patton and Bernard Tinsley, caused an execution to be issued thereon, of date May 29th, 1939, directed to the sheriff or any constable of Harrison County. The Bank sent the writ to defendant J. H. Wilson, the sheriff who, at the Bank’s direction, wrongfully levied the same upon a tract of 218 acres of land situated in Harrison County, owned by plaintiff Robert Ogden, who. was not a party defendant in the County Court judgment, but an entire stranger thereto, and owed nothing therein. The land was levied on as the property of R. PI. Ogden, defendant in the suit. The levy was prompted by the unwarranted assumption that Robert Ogden, the owner of the land, was one and the same person as R. H. Ogden, one of the defendants named in the County Court judgment and the execution writ issued thereon. Plaintiff alleged, “that said levy as made, constitutes and is an unlawful invasion and trespass upon the rights and property of this plaintiff and has subjected him to great damage, embarrassments and indignities; that such wrongful levy and unlawful trespass has cast a cloud upon plaintiff’s title to said land and in addition thereto has disrupted, interfered with and prevented plaintiff from enjoying and realizing reasonable profits from the operation of a dairy, livestock farm and general farming enterprises, located upon such land, and has further caused plaintiff great loss in that plaintiff has been, and is, because of such wrongful levy and unlawful trespass as heretofore set out, prevented from harvesting, saving and acquiring certain crops and other products from said farm, that he would have otherwise harvested, saved, acquired and realized had such wrongful levy and unlawful trespass not been made, all of such wrongful levy and unlawful trespass, because of circumstances above set out, having damaged plaintiff to this date in the amount of $5,-000.00.”

According to allegations in the third paragraph of his petition, after plaintiff was informed of said illegal levy, he informed the Bank of his ownership of the land and requested a release of the levy, which request was denied, and which was wilful, intentional and wrongful and caused plaintiff to suffer injury and damages in the further sum of $5,000.

In the fourth paragraph of the same pleading, allegations were made that after levy of the execution the Bank caused to be published in the Marshall News Messenger, a newspaper published in Marshall, Harrison County, an advertisement under the heading, “Legal Notice, sheriff’s sale Real Estate”, that plaintiff’s said land would on a day fixed therein be sold at public vendue for cash, with the further statement that the land had been levied on as the property of R. H. Ogden, defendant in the execution; with further allegations that such publication was a slander of plaintiff’s title by the Bank, made with wilful and malicious intent on the part of the Bank; by reason of all which plaintiff has suffered great loss of credit and injury to his reputation as a business man, in the further sum of $5,000.

That petition concludes as follows: “Wherefore, premises considered, plaintiff prays that defendants and each of them, be cited to appear and answer herein, that upon final hearing hereof, he have judgment for damages as alleged, and for removal of the cloud upon the title to plaintiff’s land, for costs of suit, and for such other and further relief, special and general, in law and in equity, to which he may show himself justly entitled.”

The foregoing petition was filed July 18th, 1939. Theretofore, on. July 15th, 1939, plaintiff -had prepared a separate verified application for a temporary writ of injunction to restrain the sale of the land under the levy so made, as advertised, based on allegations of substantially the same facts as in the foregoing petition, with a further prayer that upon final hearing of that application the temporary writ of injunction be made final and permanent. That application was also filed on July 18th, 1939.

Upon the petition for injunction, the district judge endorsed his fiat directing the clerk of the court to issue the temporary writ of injunction prayed for and notice to the defendants to appear before him on July 22nd, 1939, and show cause why the temporary injunction should not be made perpetual and permanent.

Qn the day so appointed there was a further hearing, at which plaintiff appeared, but both defendants failed to appear. Upon that hearing the court made the following order:

“It is therefore ordered, adjudged and decreed that the defendant, The Morris Plan Bank of Fort Worth, and the defendant, J. H. Wilson and each of them, be and they are hereby permanently and perpetually enjoined from, and that each of them shall desist from, selling and/or causing to be sold and/or offering for sale the land described in plaintiff’s verified application for temporary injunction filed herein on July 18th, 1939, on the first day of August, 1939, or at any time and further from interfering with, molesting or harassing plaintiff’s possession, use and occupancy of said land in any manner.
“It is further ordered, adjudged and decreed by the court that plaintiff do have and recover of and from the defendants all costs in the behalf expended for all of which let writ of injunction and writ of execution issue.”

On August 25th, 1939, the defendant Bank filed its plea of privilege in statutory form to be sued in Tarrant County. Also a general demurrer and general denial to plaintiff’s petition.

On September 7th, 1939, plaintiff filed his duly verified controverting plea of privilege, reading:

“Plaintiff would further represent to the court that on the 18th day of July, 1939, he filed herein his petition, which petition is hereby referred to and adopted as a part of this controverting plea as though fully copied herein and plaintiff alleges that the allegations of such petition are true and correct.
“Said petition and allegation show and allege, and it is a fact, that the defendant, The Morris Plan Bank of Fort Worth, committed, within the meaning of Section 9 of Article 1995 of Vernon’s Annotated Civil Statutes, a trespass, in Harrison County, Texas, upon plaintiff’s lands and crops situated and growing in Harrison County, Texas.
“Plaintiff further says that this Court has venue of this cause and of the defendant, The Morris Plan Bank of Fort Worth, within the meaning and under the terms of Article 1995, R.C.S. 1925, and especially Sections 9 and 29a of said Article 1995, R.C.S. 1925 [Vernon’s Ann.Civ.St. art. 1995, subds. 9, 29a].”

On September 23rd, 1939, the plea of privilege and plaintiff’s controverting plea in answer thereto came on for hearing. At that hearing evidence was introduced, and at its conclusion judgment was rendered overruling the Bank’s plea of privilege, to which it excepted and gave notice of appeal, in accordance with statutory requirements.

The evidence introduced showed without dispute the following facts. The writ of execution was levied by D. F. Bedell, deputy sheriff, on May 29th, 1939, and not by defendant, Sheriff Wilson. It was only an office levy. Plaintiff was not disturbed, nor was his use and occupancy interfered with in any respect. Plaintiff was the owner of the 218-acre tract levied on as the property of R. H. Ogden, upon instruction from the Bank. He was not a party to that judgment and did not owe it. When plaintiff was informed of the levy he protested to the Bank that he was not the R. H. Ogden, defendant in the writ. Thereupon the Bank promised to investigate the matter and release the levy if the facts were as plaintiff represented. Thereafter, on July 12th, Mr. John M. Scott, the duly authorized attorney and agent of the Bank, wrote attorneys of record for plaintiff an offer to release the levy or do anything necessary to correct the mistake. He made the same offer to plaintiff himself. In the absence of any response to the offers, on July 22nd, 1939, as attorney in fact for the Bank, he filed in the Deed Records of Harrison County an instrument in writing, duly acknowledged, vacating and cancelling the levy of the writ on the land in controversy and disclaiming any interest in it by reason of the levy. On August 9th he, as such attorney, wrote a letter to -attorneys for plaintiff in the ■case and -offered on the part of the Bank to execute to plaintiff a quitclaim of any interest in the land under the levy, and made the same offer to plaintiff. Neither of those offers was accepted.

It is an established rule that upon the hearing of plaintiff’s controverted plea, in reply to a plea of privilege, the nature of plaintiff’s cause of action will be determined by the court as a matter of law, from allegations in the petition. 43 Tex.Jur., par. 110, p. 846, and decisions there cited.

As provided by Art. 2007, Rev.Civ.St., in his controverting plea plaintiff was required to allege the specific fact or facts relied on to fix venue in the court where the cause is pending. And upon a hearing he has the burden to sustain those allegations by competent evidence. 43 Tex.Jur. pp. 851 to 859.

Appellant insists that the controverting plea in this case did not measure up to that statutory requirement, and especially so since the allegations in plaintiff’s petition, adopted in the controverting plea, consisted solely of conclusions rather than allegations of facts, and that the court erred in admitting evidence, over defendants’ objections, in support of the controverting plea; citing Jarvis-Tull & Co. v. Williams, Tex.Civ.App., 114 S.W.2d 1218; H. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619; Paxton v. First State Bank of Tatum, Tex.Civ.App., 42 S.W.2d 837; Texlite, Inc. v. Pecos Mercantile Co., 128 Tex. 57, 96 S.W.2d 73.

In reply to that contention appellee cites Johnson v. Dallas Cooperage & Woodenware Co., 120 Tex. 27, 34 S.W.2d 845, 848, in which this was said: “The allegations of plaintiff’s petition may, by apt language, be incorporated into, and thus become a part of, the contesting plea, but in such event they can be considered only as a' predicate for the introduction of evidence, but cannot be considered evidence of- any 'fact necessary to maintain venue.”

Of like effect are Highway Motor Freight Lines v. Slaughter, Tex.Civ.App., 84 S.W.2d 533; Meadows & Co., Inc. v. Turner, Tex.Civ.App., 270 S.W. 899. See, also, 43 Tex.Jur. par. 89, p. 818, and decisions there noted

With respect to those two conflicting contentions, it is sufficient to say that we have reached the conclusion that plaintiff’s petition should be construed as a suit to remove cloud from title and for damages thereto, and that the controverting plea was sufficient to present that issue. By reason thereof, venue to remove cloud from title was fixed in Harrison County by the mandatory and exclusive provisions of Exception No. 14 of Art. 1995, Rev.St.; the issuance of the temporary writ of injunction to restrain the sale of the property under the execution being interlocutory and ancillary only to the suit to remove cloud. 43 Tex.Jur. par. 28, p. 743; par. 29, p. 744; par. 31, p. 747; and decisions there noted, including Uvalde Rock Asphalt Co. v. Asphalt Belt Ry. Co., Tex.Com.App., 267 S.W. 688; Bender v. Damon, 72 Tex. 92, 9 S.W. 747; Smith v. Abernathy, Tex.Civ.App., 6 S.W.2d 147; Rado Refining & Producing Co. v. Lucas, Tex.Civ.App., 93 S.W.2d 613; Guaranty Mortgage Co. v. Nowell, Tex.Civ.App., 72 S.W.2d 354; First National Bank of Electra v. Guyer, Tex.Civ.App., 40 S.W.2d 212.

Nor is plaintiff precluded from now invoking in his brief the exception in Sub. 14 of the statute, by predicating his controverting plea solely on Exceptions 9 and 29a, since he was not required to plead the particular exception applicable, evidenced by his petition showing the nature of the suit and the facts alleged in the controverting plea. American Seed Co. v. Wilson, Tex.Civ.App., 140 S.W.2d 269; Highway Motor Freight Lines v. Slaughter, Tex.Civ.App., 84 S.W.2d 533.

But in 43 Tex.Jur. par. 30, p. 746, this is said: “The term ‘damages to land’, as found in the statute, means ‘an injury to the possession or to the freehold or estate.’ ‘Land’,, in its ordinary legal sense, comprehends everything of a fixed and permanent nature and therefore embraces growing trees. And an action for the destruction of a dwelling house is one to recover damages to land, the ownership of the house and land on which it was situated being in the same person. Not within the contemplation of the term, however, are damages caused by the burning of grass on land, or by the temporary unfitness of the land for stock and grazing purposes. But the turf or sod is a part of the land and an injury to it is an injury to the land.”

The announcement is well supported by many decisions noted, such as Knight v. Houston & T. C. Ry. Co., 93 Tex. 417, 55 S.W. 558; Thomson v. Locke, 66 Tex. 383, 1 S.W. 112; Miller v. Rusk, 17 Tex. 170; Grogan-Cockran Lumber Co. v. Mc-Whorter, Tex.Civ.App., 15 S.W.2d 126, error refused.

In Traweek v. Martin Brown Co., 79 Tex. 460, 14 S.W. 564, 565, this was said: “A levy upon real estate, under our statutes, not being attended with any disturbance of the possession, use, or enjoyment of the premises by the owner, it follows that, as a general rule, such a levy can afford no ground for the recovery of actual damages.”

Of like effect were Howeth v. Mills, 19 Tex. 295, and Olivares v. Garcia, 127 Tex. 112, 91 S.W.2d 1059.

On the hearing of the plea of privilege the only evidence offered by plaintiff to prove cloud of title and damages to his land was proof of his title thereto, its location in Harrison County, wrongful levy of the execution, and the sheriff’s advertisement of sale. No evidence was offered to support his claim of the special damages alleged in his petition. Moreover, it is apparent from the face of that pleading that those special damages were not damages to the land recoverable under Exception 14 of the statute, and therefore no evidence to prove them could properly have been admitted, in any event.

It follows, therefore, that the venue of the suit was properly laid in Harrison County, for removal of cloud, and that proof of the facts necessary to show the wrongful levy was sufficient to support the controverting plea for that relief. But plaintiff failed to support his plea for damages to the land growing out of the levy by any competent evidence.

On July 18th, 1939, when his suit was filed, plaintiff had a good.cause of action to remove cloud from title, and jurisdiction of the court then attached for that purpose. On the hearing of the plea of privilege, plaintiff had the burden of proof to show thát his title was then clouded, as alleged in his plea, and his right to have the same removed by decree of court. But his right to that relief had then become moot, by defendant’s release of. the levy, and its determination by the court was no longer necessary. And plaintiff having failed to plead or prove any damages to the land, by reason of the wrongful levy, there was no longer any necessity for keeping the case on the docket of the district court of Harrison County. If that hearing had been a trial of the merits of plaintiff’s suit, manifestly judgment would have been rendered against him. But as venue was the only issue before the court, the plea of privilege should have been sustained.

In the case of McNeill v. Hubert, reported in 119 Tex. 18, 23 S.W.2d 331, 333, it was held by the Commission of Appeals that the dismissal by plaintiff of his suit against the defendant, pending an appeal by the latter from an order overruling his plea of privilege to remove the case to the county of his residence, had the effect to render moot defendant’s asserted right to have his plea of privilege sustained. And in disposing of that question, this was said in opinion by Justice Leddy: “As long as ap-pellee was in the attitude of prosecuting a suit against appellant in Tarrant county the question as to whether appellant was entitled to have such case tried in the county of his residence was one which he was privileged to have determined by the court, but, when such suit was abandoned, the question as to the proper forum for such a suit becomes purely 5m abstract one 'which an appellate court should decline to determine.”

However, in that case plaintiff took a nonsuit of his entire cause of action, .thus depriving the trial court, or any other court to which the case might be transferred, of further jurisdiction of it; while in the present case, plaintiff has not abandoned his suit, but is still insisting on a determination of its merits, and appellant is complaining of the refusal of the court to transfer the case to the district court of Tarrant County for trial on its merits; which distinguishes the two cases with respect to jurisdiction of the appellate court to determine the merits of an appeal from an order overruling a plea of privilege.

For the reasons stated, the judgment of the trial court overruling appellant’s plea of privilege is reversed and judgment is here rendered sustaining that plea. Accordingly, the case is remanded to the district court of Harrison County, with instructions to the trial judge to enter an order sustaining the plea of privilege and changing the venue of the case to the district court of Tarrant County, and directing the clerk of his court to make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of court, and send it, with the original papers in the cause, to the clerk of the district court of Tarrant County.

On Motion for Rehearing.

In their motion for rehearing, counsel for plaintiff earnestly insist that in the absence of any pleading By the defendant that the allegation in plaintiff's petition of cloud on his title by the unlawful levy of execution, was made for the fraudulent purpose of fixing venue of the suit in Harrison County, the trial court had no other alternative than to overrule the plea, and therefore there was no proper basis for our conclusion that plaintiff’s right to still maintain the suit in Harrison County had become moot; citing several decisions, including Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675; Highway Motor Freight Lines v. Slaughter, Tex.Civ.App., 84 S.W.2d 533; Dallas Joint Stock Land Bank v. Harrison, Tex.Civ.App., 131 S.W.2d 742; Vitopil v. Gray, Tex.Civ.App., 111 S.W.2d 1202; 43 Tex.Jur. par. 119, page 862.

As shown in plaintiff’s petition, which was expressly made a part of his controverting affidavit, in reply to the plea of privilege, the gravamen of his suit was to remove cloud from his title, with specific allegations that after the levy defendant had refused to release the levy of the execution upon plaintiff’s request therefor. Nor did plaintiff object to the evidence introduced by defendant, showing the release of the levy on the ground that defendant had not challenged the good faith of plaintiff’s allegations of an unlawful levy of the execution in Harrison County.

In further support of our conclusions that plaintiff’s right to maintain venue in Harrison County had become moot, a multitude of other decisions might be added, including those cited in support of this announcement in 3 Tex.Jur. par. 25, page 69:

“A case is said to be moot when the question to be determined is abstract, that is, one which does not rest upon existing facts or rights, as when the right that was involved in the action no longer exists or has abated on the death’ of the defendant. A similar condition has been held to arise when the owner has sold premises alleged to have been kept as a nuisance or when the subject matter of the litigation has been disposed of by legislation. And where the sole relief sought is the cancellation of a lease which already has been canceled, the case is clearly moot.
“An appellate court may receive extraneous proof to the effect that the issues involved in an' appeal have become moot. And it is well settled that if, pending review of a judgment of the lower court, an event intervenes which renders it impossible to grant effectual relief, the court will not proceed to review the case but will dismiss the proceeding.”

Among the decisions noted in support of that text is Richmond v. Hog Creek Oil Co., Tex.Com.App., 239 S.W. 904, 905 That was a suit to cancel an oil and ga-lease. After it reached the Supreme Court, the defendant in the case, against whom cancellation was sought, filed a duly verified suggestion that the lease had been cancelled during pendency of the appeal. In the opinion of the court, the surrender and cancellation of the lease was noted, following which this was said: “Therefore, in brief, we have here a suit where the sole relief sought is the cancellation of a lease which has already been canceled. The case is now clearly moot.” Citing decisions in support of that conclusion, including several by the Supreme Court. See, also, a multitude of decisions to the same effect noted in 1 Tex. Jur.Supplement (1937), pages 118 to 120, inclusive.

The decisions cited by plaintiff, noted above, did not involve the question now under discussion, and therefore they are distinguishable from those cited by us in support of the conclusions we have reached.

The motion for rehearing is overruled.