author: CODY, Justice.

text:
    GUARANTY SECURITIES CORPORATION et al. v. MARSHALL.
    No. 10965.
    Court of Civil Appeals of Texas. Galveston.
    March 28, 1940.
    On Rehearing May 2, 1940.
    Rehearing Denied May 16, 1940.

      Sam W. Davis, Cole, Patterson & Cole, and Seymour Lieberman, all of Houston, for plaintiffs in error.
    Virgil Childress and Lawler, Wood & Childress, all of Houston, for defendant in error.
   CODY, Justice.

Defendant in error, A. B. Marshall, who will hereafter be called plaintiff, brought this suit to recover from plaintiffs in error, who will hereafter be called defendants, general and special damages for breach of the written contract hereinafter set forth..

It appears from the evidence that plaintiff, an oil-well driller, obtained an oil and-gas lease from the Eugene L. Bender Estate on certain land near Humble, in Harris County, Texas, on August 10, 1936. Such lease required that a well be commenced within 60 days, and thereafter the commencement of another well within 60 days of the completion or abandonment of the preceding well, until oil was discovered and four producing wells drilled in. On September 29, 1936, plaintiff assigned to defendants an undivided one-half interest in the lease in consideration of their collaboration in drilling a well on the lease to a depth of 2,400 feet. It was agreed that after the completion of the well if defendants did not wish to drill another they should re-assign to plaintiff not less than 10 days prior to the time the lease would expire for failure to commence a - second well. The first well was drilled to the agreed depth by November 22, 1936; though there was some showing of gas and oil, the well did not produce. Defendants elected to abandon the lease and drill no more wells.

Defendants owned a block of leases in Walker County, Texas, and wished to remove the derrick, which belonged to plaintiff, and the drilling rig, which had been assembled jointly by the parties, from the Bender lease to the leases in Walker County, and there use them. The parties therefore made the following written contract:

“Guaranty Securities Corporation,
“Houston, Texas
“November 24, 1936.
“Mr. A. B. Marshall,
“Humble, Texas.
“Dear Sir:
“We desire to move the drilling rig assembled jointly by yourself and us for the purpose of drilling a well at Humble, Texas, on the Bender Lease, different portions of this drilling rig belonging to you and ourselves, equipment as owned by each known, to Walker County, Texas, for the purpose of drilling a well on the designated lease that is known to ourselves, to a depth not exceeding 2500 feet.
“We agree to pay the entire expense of moving this equipment and drilling this well and, as a consideration for the loan of a portion of the equipment belonging to you, we agree to assign you an eighteen-acre lease in our block in Walker County.
“We also agree to employ you at a salary of $10.00 per day for twelve hours as a driller on said well. After completing this well, which we agree shall not exceed sixty days from date of this letter, we agree to move, providing you so elect, this equipment, jointly owned, back to the Bender lease at Humble, Texas, for the purpose of drilling a second well on said lease providing you, in turn, agree not to use the portion of equipment in this fig that belongs to us longer than a sixty-day period from time of 'delivery on said lease. We also agree to re-erect 96-foot derrick on Bender lease at Humble, Texas.
“This letter signed by us and accepted by you, shall constitute an agreement as above stated.
“Yours very truly,
“Guaranty Securities Corporation,
“By [s] A. U. Morrison, President
“[s] G. G. Zinn, Vice Pres.
“[s] R. E. Doty.
“Accepted:
“[s] A. B. Marshall.” •

The derrick and drilling rig were .duly moved to the leases in Walker County; and the well, which it was contemplated would be drilled there, was completed on December 10, 1936, and plaintiff duly requested the return of the derrick and rig to the Bender Lease. These were stacked and ready for hauling by December 22, 1936, but were not returned, and in their absence it seems undisputed that plaintiff was financially unable to begin the drilling of a well and prevent the lease terminating by its terms.

The proof made at the trial is indicated by the special issues, as answered by the jury:

“Special Issue No. 1. What do you find from a preponderance of the evidence was the reasonable rental value, if any, per day from January 23, 1937, to July 7, 1937, of that portion of the rig and drilling equipment owned by plaintiff and used by him in drilling the well on the Bender lease at Humble and the well in Walker County? * * * Answer: $12.50.”
“Special Issue No. 2. What do you find from a preponderance of the evidence was the reasonable rental value, if any, per day from July 7, 1937, to this date (date of trial) of the derrick and that portion of the rig and drilling equipment owned by plaintiff and used by him in drilling the well on the Bender lease at Humble and the well in Walker County and not taken by plaintiff on or about July 7, 1937? * * *• Answer: $4.00 per day.”
“Special Issue No. 3. Do you find from a preponderance of the evidence that the failure of the defendants to return the derrick and drilling equipment from Walker .County to the Bender lease and to re-erect the 96-foot derrick thereon was the proximate cause of the loss, if any, of the Bender lease by plaintiff, A. B. MaTshall? * * * Answer: Yes.”,
“Special Issue No. 4. What do you find from the preponderance of the evidence was the highest actual value to the plaintiff of the Bender lease at any time between such time as you may think was a reasonable time after the conclusion of the work in Walker County, and to the 15th of October, 1937, if any? * * * Answer: $3,600.00.”
The court entered judgment on the answers, as follows:
Item 1, (Special Issue No. 1) 164 days @ $12.50 per day. $2050.00
Item 2, (Special Issue No. 2) 477 days @ $4.00 p'er day. 1908.00
Item 3, (Special Issues 3 and 4) 3600.00
$7558.00

Defendants make no attack here on Item 1; but assail Item 2, for $1,908, and Item 3, for $3,600. We will first discuss Item 3.

The evidence to support the jury’s finding for Item 3 is, as we understand it, plaintiff’s opinion that the Bender lease, which he lost due to defendant’s failure to return the derrick and drilling rig (and his own poverty which prevented him from renting another), was of the actual value of $3,600. This he based upon the facts that there had been some showing of gas and oil in the first well theretofore drilled by the parties on the Bender lease, and abandoned, and upon his knowledge of the. geological structure, and upon the further fact that he believed oil would be produced if the first well were deepened, and it had cost $3,600 to drill a well down to the depth of the first well. We now turn to plaintiff’s brief that his theory may be expounded in the language of his counsel: “The cost of the well drilled by plaintiff and defendants on the Bender lease certainly was a relevant factor in determining the actual or intrinsic value of the lease. Proof of actual or intrinsic value of property ‘may be shown by the value of its uses, its particular fitness for such uses, and its adaptability for any other uses or purposes, and the reasonable value thereof; and, generally, a witness may give his opinion of the value of such property based on such uses and the value thereof, when it has been shown that he had some knowledge of such uses beyond that of the jurors.’ Lower Colorado River Authority v. Hughes, Austin, Tex.Civ.App., 122 S.W.2d 222, 223, quoted with approval by this Honorable Court in Foley Bros. Dry Goods Co. v. Settegast, 133 S.W.2d 228, 232, 233. The undisputed evidence in this case shows that the well on the Bender lease encountered oil sands near the bottom of the hole and that gas rose in the casing and made a few ‘heads’. Plaintiff testified he wanted to go back into that well and drill it deeper because he thought the lease would produce oil. The presence of a well 2600 feet deep, which could be used to explore a lower depth, certainly gave the lease a greater value; and obviously the cost of that well was a proper factor to be considered by the jury, along with the undisputed physical facts, as a determinant of actual value.”

We find ourselves unable to agree with plaintiff’s application of the principle applied in Lower Colorado River Authority v. Hughes, supra, and by us in the recent case of Foley Bros. v. Settegast, supra, writ of error refused, that the actual value of property may be shown by the value of its uses, its particular fitness for such uses, its adaptability for any other uses, etc. Of course, if the mere exploration for minerals were an end in itself, and their discovery a matter of indifference and of no value in comparison with exploring therefor, the principle might here apply. But in order for an oil well to have actual and intrinsic .value, as distinguished from market value — and it is of actual and intrinsic value that plaintiff is speaking — it must have some production value. In order for the first well, which had been drilled to a depth of 2,400 feet at a cost of $3,600, to have an actual value to an oil operator of $3,600, he must earn out of production from such well (i.e., out of the working interest) not merely $3,600, but enough more to pay whatever the additional cost of drilling deeper to discover oil would come to. Of course, we don’t wish to be understood as intimating that in order to establish the actual value of an oil interest it would be necessary for one to go out and drill a property in order to determine its value. But it clearly appears from plaintiff’s quoted exposition, that it is his theory that so long as he in good faith believed that he might strike oil at a lower depth, and desired to use the well in order to try, the fact that it was down to a depth of 2,-400 feet, and afforded him á chance to begin going deeper at that point — i.e., was fitted or adapted to his desire to start at a depth of 2,400 feet- — in and of itself warranted him in concluding that the lease with the dry hole on it, which it had cost $3,600 to produce, was worth $3,600 to him, and in authorizing the jury to accept his opinion. Obviously it could not be worth $3,600 unless it earned the operator the cost of drilling the well 2,400 feet. In other words, even if it be conceded that the operator was entitled to the first 2,400 feet (as being the owner pf the hole) the well would have to produce, out of the working interest,' oil of the value of $3,600. And for a discussion of the type of evidence by which values of oil interests are to be established, see Texas P. Coal & Oil Co. v. Barker, 117 Tex. 418, 6 S.W.2d 1031, 60 A.L.R. 936.

Our discussion of Item 3, above, has proceeded on the assumption that defendants were liable to plaintiff for the value of the lease.' As we have found that there was no sufficient evidence to support the finding that the Bender lease was worth $3,600, it probably is not necessary to pass on whether the value of the lease was recoverable as special damages or not. Plaintiff contends that it is now well settled in Texas that when an oil and gas lease is lost by reason of a breach of contract the measure of the loser’s damages is the value of the leases and cites Matthewson v. Fluhman, Tex.Com.App., 41 S.W.2d 204; Capps v. Joiner, Tex.Civ.App., 69 S.W.2d 853; Gladys Belle Oil Co. v. Turner, Tex.Civ.App., 12 S.W.2d 847. Certainly where the contract is one to convey or assign an oil lease, as was true in the cited cases, the value that the oil lease has, in excess of what the assignee was to give therefor, fixes the damages. As was said by Judge Ryan in Matthewson v. Fluhman, supra [41 S.W.2d 207]: “We have reached the conclusion that the contract to lease the 20-acre tract to plaintiff in error [who had completely performed his part óf the contract] was enforceable, and that defendant in error, having himself placed it beyond his power to comply therewith, by conveying such lease to another, is liable for tli'e value of such lease at the time he repudiated the same, which the jury found to be $8,000.” As Fluhman had contracted to lease the 20-acre tract to Matthewson, and had received the consideration therefor, and breached his contract by leasing the property (which in equity belonged to Matthewson) to another, he damaged Matthewson to the extent of the value of the lease. But in the case before us the contract was to deliver a derrick and drilling rig upon the Bender lease, and permit it to be there used for. 60 days. By breaching the contract to so deliver such drilling rig and derrick, defendants deprived plaintiff merely of the rental value of a derrick and drilling rig — and the cost of transportation back from Walker County. It does not follow that because the measure of damages for the breach of a contract to a'ssign a mineral lease is the value of the lease, the measure of damages for the breach of a contract to furnish a drilling rig and derrick, and the lease is permitted to expire, that the value of the lease is the measure of damages. Defendants, however, seem to acquiesce in plaintiff’s theory that his poverty would entitle him to recover the value o-f the lease, so we do not rule on the point. We further note that the contract between plaintiff and defendants specified: “We agree to move * * * this equipment, jointly owned, back to the Bender lease, for the purpose of drilling a second well on said lease. * * * ” It therefore appears that 'it was not in contemplation of the contract that “this equipment, jointly owned”, should be used in the first well. If it was not in contemplation that “this equipment” should be used in the first well, we are unable to see how the theory of special damages can find support — for plaintiff would have to drill .another well with “this equipment” before he could use the bottom of the first well as a base of operations. We believe it was error for the court to award judgment for Item 3, in the sum of $3,600.

With reference to Item 2, supra, it seems not to be disputed that on July 7, 1937, plaintiff accepted possession of his portion of the equipment in Walker County, but removed only a portion of it, leaving, however, the balance of it in the possession of a watchman whom he paid to watch it, and whose possession was his possession. In this connection plaintiff says, quoting from his brief: “The .fact that plaintiff took possession of part of his property afforded defendants no excuse for failing to return the remainder” (citing authority). This is undoubtedly correct. But plaintiff had the right to take possession o'f his property in Walker County, if he desired. By doing so he would not waive his right for damages for defendants’ breach of their contract to re-deliver his property in Harris County. But he cannot recover damages from defendants for wrongfully withholding his property from his possession during the period that defendants assert, and which we understand plaintiff does not deny, that the undisputed evidence shows the property was within the dominion or possession of plaintiff in Walker County. We note from the pleadings that plaintiff sued for damages for failure of defendants to re-deliver his property in Harris County. We do not know what the proof showed on this issue, but unless he waived such damages he would now have been entitled to recover same, As the evidence affirmatively establishes that plaintiff took possession of his equipment on July 7, 1937, either personally or by his watchman, the finding of the jury with reference to Item .2, is without support in the evidence.

So much of the trial court’s judgment as awards plaintiff Item 1 damages in the sum of $2,050 is correct and should be affirmed; the court erred, however, in awarding Items 2 and 3 to plaintiff. The judgment of the trial court is therefore reformed so as to reduce the amount awarded to the sum of $2,050, as herein-above indicated, and as thus reformed, the judgment of the trial court is in all things affirmed.

Reformed and affirmed.

On Defendant in- Error’s Motion for Rehearing.

This case was submitted without oral argument. It was stated at the outset of defendants’ (plaintiffs in error’s) brief that plaintiff had accepted his portion of the equipment in Walker County on July 7, 1937, though he removed only a portion of it from the location at that time. It is too clear to require citation of authority that, if this were true, defendants would not be liable for wrongfully withholding possession of equipment from plaintiff after the time plaintiff had accepted possession thereof, though they might be liable for damages for breach of their obligation to deliver possession to plaintiff on the Bender Lease. Plaintiff (defendant in error) did not challenge this clear-cut and decisive statement, at least directly. We now find that plaintiff did not accept all of his equipment on July 7, 1937, because one Markle had removed a portion of such equipment from the location of the well in Walker County. Plaintiff did on that day, however, accept all of his equipment except the portion which had been removed by Markle. He filed a complaint against Markle in Walker County, accusing him of the theft of the portion of the equipment which he, plaintiff, had not removed on July 7, 1937. Thereafter, and before he brought this suit, plaintiff recovered all of the equipment which Markle had removed except three items and a portion of the derrick. By advice of counsel plaintiff kept such retaken 'portion of his equipment in Walker County as evidence in connection with the prosecution of Markle; that is, plaintiff held such retaken equipment in Walker County subject to his own orders and control. Plaintiff seems to have acquired possession of the equipment which Markle had removed in broken lots at different times. But, with the exception of the three items and portion of derrick aforesaid, he had taken possession of all of his equipment which had been removed by Markle, in Walker County, before the trial of this case. While it does not appear at what times plaintiff took possession of his various items of equipment after July 7, 1937, and before the trial of this cause, it is too clear to require citation of authority that he had no right to recover damages from defendants for the wrongful detention of the various items of his equipment from his possession for the period of time after the same had been retaken into his possession. It appears from plaintiff’s own testimony that all of his equipment, which had been rémoved by Markle, had been recovered into plaintiff’s possession prior to the trial, except three items and a portion of the derrick. It was therefore clearly error for the court below to render a judgment which had the effect of awarding plaintiff damages for the wrongful detention of equipment belonging to plaintiff for the time during which such equipment had been recovered into plaintiff’s possession.

It has now become clear to us that the trial court tried the branch of this case relating to item 2 on the wrong theory. The theory upon which the trial court apparently proceeded is that plaintiff had the right to have his equipment returned to the Bender Lease unless he waived such right; and that in order for defendants to take advantage of this waiver, they must plead and prove it. Undoubtedly the proof did show that plaintiff had the right to have his equipment returned to the Bender Lease. And the retaking of the possession of his equipment by plaintiff in Walker County does not necessarily show any waiver of damages for the breach of defendants’ obligation to return the same to the Bender Lease. However, plaintiff’s cause of action in regard to the branch of his case which we Have designated as item 2, is an action in the nature of detinue. And plaintiff cannot recover for the wrongful detention of his property during the time that he had taken repossession of it. How long a period of time this was with respect to each item does not appear. But the burden was on the plaintiff to plead and prove the time the various items were wrongfully detained, in order to recover damages for the wrongful detention.

As this branch of the case was tried on the wrong theory, and as plaintiff prevailed in the court below, and as the evidence shows that plaintiff is undoubtedly entitled to recover damages for the time that the various items of equipment were wrongfully detained from plaintiff’s possession, this branch of the case must be remanded for a new trial. Waldo v. Galveston, H. & S. A. R. Co., Tex.Com.App., 50 S.W.2d 274, 276.

Plaintiff strenuously contends that we erred in our former opinion, reducing the judgment of the trial court $3,600, on account of the branch of the case which we have designated as item 3. In the branch of his case which we have designated as item 3, plaintiff seeks to recover the actual value of the Bender Lease, which was lost because of the failure to comply with the drilling obligations. In order to show the actual value of the Bender Lease, as distinguished from market value — it being shown it had no market value — plaintiff’s testimony shows vaguely that such lease might have some amount and value of oil production. Indeed, to have actual value as an oil property, the lease must produce oil in paying quantities. But for evidentiary purposes it is not necessary to prove that oil would actually be produced from the lease in paying quantities — this could be done only by actually drilling, but the probable production in paying quantities must, at all events, be shown. Texas Pac. Coal & Oil Co. v. Barker et al., 117 Tex. 418, 6 S.W.2d 1031, 60 A.L.R. 936. “The amount and value of oil or gas production, obtained or obtainable through reasonable diligence, must be definitely alleged, and must be proven with reasonable certainty before damages may be allowed for breach of an express or implied covenant to continue the production of oil or gas, whether such damages result from failure to produce oil or gas or from loss of same by drainage,” said the Supreme Court. 117 Tex. at page 429, 6 S.W.2d at page 1034, 60 A.L.R. 936. As plaintiff is seeking to recover for the actual value of the Bender Lease, which is valuable, of course, only for oil purposes, it would be necessary for plaintiff, in showing its actual value, to definitely allege and prove with reasonable certainty the amount and value of oil or gas production that was obtainable from the Bender Lease through reasonable diligence. This, we believe, plaintiff has wholly failed to do in this case. He testified that its value-was at least $3,600.00 to him, because from the formation he believed oil could be produced, and he desired to drill deeper, and he could use the bottom of the hole which it had cost $3,600 to drill, as a starting point to drill deeper. Such testimony completely fails to prove with reasonable certainty the amount and value of oil or gas production that was obtainable from the Bender Lease. Plaintiff contends, however, that his testimony that the lease was worth at least the cost of drilling the hole did not militate against or destroy the other evidence which, as plaintiff contends, was independently sufficient to sustain the jury’s finding; and that plaintiff’s opinion of value based upon the cost of the well was a fact to be considered by the jury in weighing his opinion, based on the physical facts, that the lease was worth $3,600, because it would probably produce oil. As indicated, in order for plaintiff to show the actual value of the Bender Lease he must show its value for oil and gas production under the rule of the Barker case. But placing aside the rule in the Barker case, we do not believe that plain-, tiff’s testimony is to be construed as meaning that the Bender Lease would produce at least $3,600 to the operator in oil or gas. Nor did the jury so construe such testimony. It found (Special Issue No. 4), that the highest actual value to plaintiff of the Bender Lease, etc., was the sum of $3,600. It is clear that they understood plaintiff’s theory, and adopted it, that the lease was worth $3,600, because further exploration could be started at the bottom of the hole that had cost that much to drill, and that this element of value existed independent of whether oil was discovered or not. However that may be, we cannot cast aside the rule of the -Barker case. And plaintiff makes no contention, we believe, that he either definitely pled or proved with reasonable certainty the amount and value of oil or gas production obtainable from the Bender Lease through reasonable diligence. And as we have no doubt that the rule laid down in the Barker case is controlling, we decline to certify this point to the Supreme Court as being novel — as plaintiff has moved to have done.

So much of the trial court’s judgment as awards plaintiff Item No. 1 damages in the sum of $2,050 is correct, and, as, on original hearing, is affirmed; the court erred, however, in awarding plaintiff judgment for damages in any sum on account of the loss of the Bender Lease, and in this respect the trial court’s judgment is reversed and here rendered for appellant. The cause, however, is remanded for a new trial on the issue of damages sustained by plaintiff for the wrongful detention of so much of plaintiff’s equipment not taken by him on July 7, 1937, or for the conversion of any part thereof, if any; and the trial court is instructed to try the issue of damages, if any, sustained by plaintiff by reason of defendants’ failure to redeliver any of plaintiff’s property on the Bender Lease, or at his home.

Defendant in error’s motion for rehearing granted; former judgment set aside; judgment of trial court affirmed in part, reversed and rendered in part and in part reversed and remanded.


source: Caselaw Access Project

author: SPEER, Justice.

license: Public Domain

text:
    AMERICAN SEED CO v. WILSON.
    No. 14063.
    Court of Civil Appeals of Texas. Fort Worth.
    March 29, 1940.
    Rehearing Denied May 10, 1940.
    Cantey, Hanger, McMahon, McKnight & Johnson and Carlisle Cravens, all of Fort Worth, for appellant.
    Donald & Donald, of Bowie, for appel-lee.
   SPEER, Justice.

This appeal involves venue, the plea of privilege and controverting affidavit, controlled by Articles 1995 and 2007, R.C.S., Vernon’s Ann.Civ.St. arts. 1995, 2007.

Plaintiff O. S. Wilson sued defendants American Seed Company, a corporation, and W. M. Branson in Montague County, for damages resulting from tlie breach of an alleged contract. American Seed Company, to which we shall refer as the’ Seed Co., was domiciled in Tarrant County, Branson resided in Montague County.

The Seed Co. timely filed its plea of privilege to be sued in Tarrant County. The plea was controverted in statutory form. By appropriate language the petition was made a part of the controverting affidavit. Other allegations were contained in the affidavit, setting out the facts relied upon by plaintiff to bring the action under exceptions 5, 23 and 29a of Article 1995, R.C.S., Vernon’s Ann.Civ.St. art. 1995, subds. 5, 23, 29a.

Under article 2007, R.C.S., the party seeking to maintain venue in a county other than the residence of defendant, when his privilege is claimed, must file the controverting plea within, the time prescribed “setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending.”

Exception 4 is to the effect that venue may be maintained of all defendants where either may be properly sued. No. 5 provides for venue in any county where a party has promised in writing to pay an obligation or to perform a contract. No. 23 relates to corporations domiciled in a county other than where the suit is instituted and gives jurisdiction over them to courts in counties where they maintain an agent, or “in which the cause of action, or a part thereof, arose * * No. 29a (Vernon’s Tex.Civ.St.) provides that whenever there are two or more defendants, suit may be maintained in any county against all necessary parties to the action in any county where either resides.

By different allegations plaintiff sought to plead a cause of action against both defendants seeking a recovery jointly and severally against them, (a) because Branson was the agent of the Seed Co., (b) because the cause of action or a part thereof arose in Montague County, and (c) because it was an action for damages for breach of a contract between plaintiff, on the one side, and defendants, on the other, and that the Seed Co. was a necessary party.

We find it unnecessary to pass upon each and all of the exceptions relied upon by plaintiff to maintain venue where the suit was filed and express no opinion upon the effect of the evidence relating to exceptions 5 and 23. We believe the nature of plaintiff’s action and the evidence offered were, sufficient under exceptions 4 and 29a to sustain the judgment entered by the court overruling the plea of privilege.

It seems to be now well settled that where more than one exception to the venue statute is relied upon and either is sustained by the pleadings and evidence, it is unnecessary to prove all. Lakeside Irrigation Co. v. Markham Irrigation Co., 116 Tex. 65, 285 S.W. 593; De Shong Motor Freight Lines v. North Texas Coach Co., Tex.Civ.App., 108 S.W.2d 766; Eppenauer v. Schrup, Tex.Civ.App., 121 S.W.2d 473; Central Motor Co. v. Roberson, Tex.Civ.App., 139 S.W.2d 287.

As reflected by his petition, plaintiff’s, cause of action was one to recover damages against Branson, a resident of Montague County, and the Seed Co., a corporation of Tarrant County, for a breach of a contract to furnish plaintiff with five pounds of watermelon seed of a certain variety for an agreed price paid by plaintiff to Branson. The seed were received and paid for by plaintiff in response to his alleged contract of purchase, and they were planted in due season. When time came for maturity of the melons it was discovered that the seed furnished by defendants were not Black Diamond watermelon seed at all, such as contracted for by plaintiff, but were pie-melon or some such variety, the fruits of which had no value whatevér. The foregoing is a brief summary of the nature of plaintiff’s cause of action, relating to the joint and several cause of action alleged as against both defendants.

The allegations of the petition and controverting affidavit in cases where the plea of privilege is filed may not be considered as evidence of the facts relied upon to sustain venue; but both the trial and appellate courts will look to plaintiff’s petition to determine the nature of his cause of action, solely as a question of law. 43 Tex.Jur., sect. 110, page 846, and sect. 111, page 849.

In such actions as this, where it is. made to appear that all parties defendant are jointly and severally liable, they are necessary parties and jurisdiction of the non-resident defendant is maintainable where another defendant resides. Art. 1995, R.C.S., sect. 29a; Cornell v. Alderdice, Tex.Civ.App., 97 S.W.2d 387.

The record before us contains evidence that plaintiff purchased the seed through defendant Branson; that he ordered Black Diamond watermelon seed; he paid the contract price for the quality of seed promised; he received and planted them and the crop produced was pie-melons, which had no value. (“Do men gather grapes of thorns, or figs of thistles?”) He alleged that defendant Seed Co. was a party to the contract of sale, setting out what purported to be the facts in connection therewith. In such circumstances, the Seed Co. was a necessary party defendant to the suit, and exception 29a is applicable.

Upon the trial, the Seed Co. introduced evidence tending to show that it was not liable to plaintiff; that it shipped the seed to Branson by Parcel Post C. O. D.; but these matters were not triable upon the venue issues; they go to the merits of plaintiff’s suit when those issues are involved; that evidence was not admissible upon the venue hearing and carried no probative force upon the issues before the court. The only question determinable by the trial court was one of venue; this issue was raised by the pleadings. A subsequent trial of the merits is a separate and distinct matter in this kind of a case, from that of venue. Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675, approved by Supreme Court. In cases based upon fraud, crime or trespass, false imprisonment and other exceptions to Art. 1995, R.C.S., a greater amount of evidence is required to show venue than in other exceptions, such as the one under consideration here. When such exceptions as those mentioned are relied upon, they become a part of the venue facts to be proved. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. In Highway Motor Freight Lines v. Slaughter, Tex.Civ.App., 84 S.W.2d 533, it was held (page 538) in cases of this character, that on the venue hearing neither issue going to the merits, nor mis-joinder nor the sufficiency of plaintiff’s petition aside from that involving venue, can be considered, but only those things which involve venue shall be determined. To the same effect are Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.2d 810; Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Vitopil v. Gray, Tex.Civ.App., 111 S.W.2d 1202; and Farrell v. Lawrence, Tex.Civ.App., 97 S.W.2d 391.

Plaintiff did not specifically state in his controverting affidavit that he relied upon exception 4 to Article 1995, R.C.S., nor does the statute (Article 2007) require that he plead the law, but only the facts relied upon to bring his action within one of the exceptions. There is no inhibition against a pleading which states the exception relied upon, and we think it well fof a plaintiff to state the one or more upon which he relies. It was held in Highway Motor Freight Lines v. Slaughter, supra, that a plaintiff having pleaded facts relied upon, even though classified by him as coming under the wrong exception, would entitle him to have the issue determined upon the one so pleaded and not confined to the numbered exception named by him.

The parties, in their briefs before us, have treated the case as if exception No. 4 was involved in the case, although that exception was not named in plaintiff’s controverting affidavit. We think that since the Seed Co. was shown by the pleadings to be a necessary party, exception No. 4 is essentially important on the question of the sufficiency of the testimony offered.

Where the petition, as in this case, shows that a joint and several judgment is sought against a resident and a non-resident defendant in a single action, or against the resident defendant so intimately connected with the cause of action alleged against the non-resident that the two may be joined under the rule intended to avoid multiplicity of suits, and the non-resident claims his privilege, proof of plaintiff’s case against the resident defendant will support a judgment overruling the plea of privilege without proof of plaintiff’s right of recovery against the non-resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

A large part of the briefs of both parties have been devoted to a discussion of a construction of exception 23 to Article 1995, which pertains to venue as against corporations, involving agency and the place where the cause of action or a part thereof arose. We have purpósely avoided discussing this point, since the conclusions reached are founded upon exceptions 4 and 29a. The plaintiff’s ultimate right of recovery as against the Seed Co. will depend largely, we anticipate, upon the issues involved in the point pretermitted by us and they would be best left open for, a determination upon their merits.

As indicated above, we hold that under the pleadings of plaintiff and the evidence adduced, the plea of privilege was properly overruled. The judgment of the trial court is therefore affirmed.

On Motion for Rehearing.

American Seed Company has filed three motions in this case. They are, (1) for rehearing, (2) additional findings and a privilege to present oral argument on the motions, and (3) in the alternative to certify this cause to the Supreme Court.

In its motion for rehearing it is contended that we have held in the original opinion that it was unnecessary for plaintiff to offer evidence of a bona fide cause of action against Branson, the resident defendant, and in so holding we are in conflict with many cited cases holding to the contrary. It is further contended that our opinion discloses that we have held the petition and controverting affidavit which contain allegations of a cause of action based on fraud and implied warranty against the defendant Branson were sufficient without proof of such allegations.

We regret that we did not express ourselves in the original opinion in terms more understandable to the named defendant. However, we do not think the opinion susceptible to the construction given in the motion. We are familiar with the rule that evidence must be introduced by the party seeking to maintain venue, sufficient to overcome the prima facie right of a defendant to have the cause transferred under his plea of privilege. Furthermore, we stated in the opinion that the pleadings in such cases do not constitute evidence.

It will be observed that we held plaintiff’s petition was one seeking to recover damages against the named defendants for a breach of a contract to furnish a quantity of watermelon seed of a stipulated variety. We did not attempt in our opinion to quote the testimony offered in support of the allegations but sought to shorten the discussion by giving some of the matters proved.

The statement of facts from which we made the deductions discloses that plaintiff, who lives near Saint Jo, in Montague County, went to Branson’s place of business at Bowie, in the same county, and asked for the seed; he at the same time advised Branson that he expected to plant the seed and raise melons for the market. Branson did not have the seed in stock but said he would get them and send them to plaintiff. Branson looked through the Seed Company’s catalog and price • list, gave plaintiff the price to be paid and plaintiff paid for the seed at the time. Branson testified that he received the seed from the Seed Company C. O. D. Parcel Post, and without opening the package remailed it to plaintiff’s address at Saint Jo.

The evidence further shows that plaintiff planted the seed and cultivated the land with a view to raising Black Diamond melons for the market; that several prospective purchasers visited his place with a view to buying his melons when ready for market; that the anticipated crop pf melons never came but that a worthless fruit was produced instead. We construed this evidence to be sufficient to establish plaintiff’s prima facie case of liability against Branson for breach of his contract to furnish seed of a certain variety, and that by his pleadings, plaintiff alleged a cause of action against the Seed Company.

We declined to express an opinion on any point that would come before the court upon a trial on the merits. The authorities cited in the original opinion, we think, support the conclusions reached. See also First Nat’l. Bank v. Pierce, 123 Tex. 186, 69 S.W.2d 756, and Fenner & Beane v. Lincoln, Tex.Civ.App., 101 S.W.2d 305.

The motions before us go to great length in a discussion of liability of the Seed Company, based largely upon the theory that because the evidence revealed that the seed went to plaintiff in the sealed or closed package in which Branson had received them, there was no express or implied warranty of what they purported to be. What we have already said about the nature of the cause of action makes it unnecessary for us to pass upon what, if any, liability there is upon the part of either defendant, when the case is tried upon its merits.

We do not believe that we are in conflict with any decision cited by movant, nor do we believe that any good could be accomplished by an oral argument of the motion for rehearing. As we view the record, our former opinion properly disposes of the hearing that was had, and all motions are overruled.


author: BAUGH, Justice.

text:
    COMMERCIAL STANDARD INS. CO. v. SHANK.
    No. 8902.
    Court of Civil Appeals of Texas. Austin.
    April 24, 1940.
    Rehearing Denied May 15, 1940.

      Todd, Crowley & Thompson, of Fort Worth, for appellant.
    Callaway & Callaway, of Brownwood, for appellee.
   BAUGH, Justice.

This is a Workman’s Compensation case. J. G. Gorman was the employer, Shank the employee, and appellant the insurer. Shank received injuries to his right arm on August 27th and September 4, 1937, in the course of his employment, for which he was, on December 23, 1937, awarded compensation for eight weeks total, and ten weeks 20% partial incapacity, totaling $90. He did not appeal from this award, but declined to accept it, and on January 4, 1938, so advised the Industrial Accident Board.

Subsequently he induced the Board to reconsider his case, furnished additional evidence, the Board set aside its former award, and on June 6, 1938, made a new award on its finding of 8 weeks’ incapacity and 30% partial permanent incapacity. The insurer seasonably filed this suit to set aside the latter award. Trial was to a jury on special issues. They found that appellee’s injuries resulted in total incapacity for 60 days and thereafter in permanent partial incapacity to the extent of 50%. They also found, in answer to special issues, that Shank, the doctor who originally examined him and reported thereon, and the insurer, were all mistaken as to the nature and extent of Shank’s injuries, in the reports made to the Board on which it made its first award on December 23, 1937. Judgment, based upon these findings, was rendered in favor of appellee for $353.33 past due installments, and $4.50 per week for the 133 weeks remaining of the compensation period. The insurer has appealed.

No complaint is made as to the jury findings nor the amount of the judgment. Three contentions are presented on this appeal: (1) That the court should have defined the term “partial incapacity” as used in special issues 5, 6 and 7; (2) that he should have defined the term “mistaken” as used in special issues 8, 9 and 10; and (3) that the award of December 23, 1937, was a final award, not seasonably appealed from, and that therefore the Board had no jurisdiction to reopen it under the facts of the instant case, and make the new award of June 6, 1938.

We first consider the third above stated contention. This contention involves the application of Sec. 12d, Art. 8306, R.C.S.1925, as amended in 1931, Vernon’s Ann.Civ.St. art. 8306, § 12d. The amendment, however, does not affect the provisions of the 1925 statute so far as the matters here involved are concerned. This section of the Compensation Act, without quoting it in full here, authorizes the Industrial Accident Board to review and change its former award “at any time within the compensation period,” upon a “showing [of] a change of condition, mistake or fraud * * *.” It is clear to our minds that this language states three distinct grounds which will authorize such a review. The “change of condition” stated means a subsequent change of the physical condition of the employee from that which existed at the time the original award was made by the Board. Independence Indemnity Co. v. White, Tex.Com.App., 27 S.W.2d 529. While the employee alleged a change of condition as authorizing a review by the Board of its former award, this ground was not submitted to the jury as a fact issue, nor its submission requested. The only ground submitted as basis for the Board’s review of its former award was that of “mistake.” On this issue the jury found, upon sufficient evidence to sustain such finding, that appellee, the doctor who examined him, and the appellant, were all mistaken in the original presentation of his claim to the Board, as to the nature and extent of appellee’s injuries.

Nor do we agree with appellant that, as used in the statute, the term “mistake” relates only to an element of fact in the issue of fraud. The language used in Estes v. Hartford Acc. & Ind. Co., Tex.Civ.App., 46 S.W.2d 413, 417, related to the issue of fraud, the only grpund on which a compromise agreement, theretofore approved by the Board, was sought to be reopened and reviewed in that case. In any event, the holding in that case that the Board had authority to review and set aside, under proper showing, its former order approving a compromise settlement of a claim, has since been definitely overruled by the Supreme Court in Commercial Cas. Ins. Co. v. Hilton, 126 Tex. 497, 87 S.W.2d 1081, 1082.

If the term “mistake” used in the statute relates only to mistake as an. element of fraud, it would, in effect, be little less than surplusage. Fraud necessarily involves some element' of mistake. If the perpetrator knowingly misleads his victim by misrepresentation, such victim is necessarily mistaken as to the trué facts; otherwise no deceit would result. Or, if fraud result from innocent misrepresentation as to facts by either party, mistake as to the true facts necessarily results. In either event, mistake of one or the other party occurs. No limitation of the meaning of that term merely to the issue of fraud can therefore be attributed to the legislature.

On the other hand, it is clear, we think, that this term in the statute was intended to authorize a review by the Board of a mistake of fact as to the actual injuries received, whether made by the employee, the insurer, or the Board itself, irrespective of, or independent of, any issue of fraud. The purpose of the Compensation Act was to provide adequate compensation. for injured employees, within the limits fixed by the Act, commensurate with the incapacity caused by the actual injuries received. And it was the manifest purpose of Sec. 12d to authorize the Board, in administering the Act, and to effectuate its purpose, to correct mistakes made without fault of any party, and in the light of the true facts, whether fraud on the part of anyone is involved or not. Such a case is here presented.

We come now to the question of what is the “compensation period” within the meaning of the statute. The question has never been determined by the Supreme Court so far as we have been able to find. Appellant relies, in the main, on Browner v. Texas Ind. Ins. Co., Tex.Civ.App., 17 S.W.2d 850, writ refused, to sustain its contention that the “compensation period,” within which the Board is authorized to reopen and review its original award, is the period during which compensation is allowed in its first award.

The exact question here presented was. decided' against appellant’s contention in a very careful and well considered opinion by Judge Leslie in Employers’ Liability Assurance Corp. v. Best, Tex.Civ.App., 101 S.W.2d 891, writ dismissed. At first glance this case would appear to be in conflict with the Browner case; but a careful analysis clearly shows, we think, that it is not. While the Court of Civil Appeals in the Browner case in its original opinion did hold that the “compensation period” was referable to, and determined by, the period originally fixed by the Board as the period during which the injured employee was to be compensated for his particular injury; on motion for rehearing the court grounded its decision on the fact that the employee had failed in that case to show any “change of Condition” (that being the ground on which he sought a review of his case by the Board) occurring subsequent to the date on which the original award was made. While the Best' case definitely decides the contention made against the appellant; we think the appel-lee herein brought himslf within a correct interpretation of the holding even in the Browner -case. In the latter case the court states [17 S.W.2d 852]: “The term ‘compensation period,’ as used, was intended to refer to the period during which compensation shall be allowed by the board and fixed in its order for the particular injury. Such period is determined absolutely by the facts of the particular injury." (Italics ours.) “The facts of the particular injury” manifestly should mean the true facts of such injury, and not mistaken or incorrect facts upon which the Board made an erroneous original award. If the Board had been induced by fraud to fix -only a temporary period of compensation, when the employee had in fact been permanently incapacitated, and such temporary period had expired before the fraud were discovered; we think there can be no doubt but that under Sec. 12d of Art. 8306 the Board could, regardless of when such period originally fixed expired, review the former award, set it aside, and grant the injured employee the compensation to which the true facts would entitle him. For like reason, where the mistaken . facts presented to the Board warranted only temporary compensation; whereas, the true facts as to injury actually received, would warrant or require a much .longer period of compensation under the law, even under the rule announced in the Browner case, the “compensation period” should, in any event, be referable to the period during which the true facts would entitle the injured employee to be compensated.

The manifest purpose of Sec. 12d of Art. 8306 was to enable the Board to correct and revise its orders within the limits therein stated, where wrong or in adequate, without resort to the method of appeal to the courts prescribed in Sec. 5 of Art. 8307 of the statute. The Board itself found upon review of its original award, upon ample competent evidence to sustain its finding, that it was factually mistaken in its original finding and award of December 23, 1937, that appellee’s injury was not temporary but permanent; and the jury found likewise.

The injured employee declined to accept the award, so notified the Board even within the 18 weeks compensation allowed him, and then asked for a further hearing and reconsideration of his case. Due to his refusal to accept the compensation awarded him, none had been paid him prior to June 6, 1938, and no suit had been filed to set aside the original award. Consequently the Board still retained jurisdiction over his claim. Independence Indemnity Co. v. White, Tex.Com.App., 27 S.W.2d 529, 531; Miller’s Indemnity Underwriters v. Hayes, Tex.Com.App., 240 S.W. 904, 907.

We conclude therefore that the Board was clearly authorized and had jurisdiction, under the provisions of Sec. 12d of Art. 8306, to correct the “mistake” made in its original award; and that it acted, under the established facts of this case, “within the compensation period” designated in the statute in doing so.

In its . second contention appellant asserts error of the trial court in failing, upon request duly made, to define the term “mistaken” as used in special issues 8, 9 and 10 submitted to the jury. Special issue No. 8 reads as follows: “Do you find and believe from a preponderance of the evidence that at the time of submitting his claim to the Industrial Accident Board, and prior to the hearing of December 23rd, 1937, that W. E. Shank was mistaken as to the nature of the injuries, if any, to his arm, that is as to whether same were of a temporary or of a permanent character ?”

Special issues 9 and 10 sought the same findings relating to the doctor’s examination of Shank prior to December 23, 1937; and whether the appellant was similarly mistaken.

If the term used has a definite legal meaning, it should have been defined by the court. Art. 2189, R.C.S. Appellant cites in support of its contention that the term “mistake” does have a definite legal meaning, cases holding that the term “mutual mistake” has such meaning. These cases, however, involved the question of mutual mistake as a ground for reformation of a written instrument so as to make it speak the true agreement of the parties. No such question is here presented. In the instant case the issue before the Board, and before the jury, was whether the parties involved were in error, or were mistaken factually, as to the extent of Shank’s injury. And the issue as submitted further makes clear the fact inquired about. The term “mistaken” as so used, and as related to the subject matter to which it pertained, was clearly used in its commonly accepted meaning; and is so universally used and understood that any attempt to define it would but be abortive.

The other contention made is that the trial court erred in refusing, upon proper request, to define the term “Partial incapacity” as used in special issues 4, 5 and 6.

In special issue No. 3, the trial court submitted to the jury the question of whether appellee’s injury resulted in his total incapacity. The term “total incapacity” was properly defined. The jury found that he was totally incapacitated for a period of 60 days. No complaint is made either of the jury’s finding or of the 'definition of “total incapacity.” Following this, special issues 4, 5 and 6 inquired whether the period of total incapacity, if so found, was (a) followed by a period of partial incapacity ; (b) if so, how long would it continue ; and (c) what was the percentage thereof. The jury found partial permanent incapacity to the extent of 50%. The evidence was sufficient to sustain these findings and they are not questioned on that ground.

Sec. 10 of Art. 8306, R.C.S., prescribes the compensation for the employee “While the incapacity for work resulting from the injury is total * * *.” Sec. 11 prescribes compensation “While the incapacity for work resulting from the injury is partial * * *There can be no question but that the phrase “incapacity for work” was used in the same sense and has the same meaning in both of these sections; and that the court’s definition of “incapacity for work” in his definition of “total incapacity” would apply with equal reason and force to the issue of “partial incapacity.” United States Fidelity & Guaranty Co. v. Baker, Tex.Civ.App., 65 S.W.2d 344, 346. Undoubtedly the jury so understood it. The court, in the definition given, properly defined the term “total.” Thus the jury were properly instructed as to what was meant by the term “incapacity” and what was meant by the term “total.” Following the question as to total incapacity, they were then asked if such period of total incapacity was followed by a period of “partial” incapacity. Under these circumstances it is inconceivable that the jury could have concluded otherwise than that the same meaning of “incapacity for work” applied to both issues alike. The uncontroverted evidence showed that Shank’s injury would be permanent. That the jury was not misled by failure of the trial court to define the term “partial” is shown by their finding that he was 50% incapacitated. Where “incapacitated” and “total” have been properly defined, and a fact finding on that issue made; and - then the issue of partial incapacity submitted in which the term “incapacity”, already defined, has the same meaning, it seems to us that any attempt to then define “partial,” a word of definite meaning and universal comprehension, would add little if anything to the enlightenment of the jury.

But if it be conceded, under the holding in Texas Employers’ Ins. Ass’n v. Brock, Tex.Com.App., 36 S.W.2d 704, 706, that this phrase should have been defined by the court in the submission of issues 4, 5 and 6, we think the record in this case affirmatively shows that no injury to appellant resulted from such failure; and that the error, if conceded to be error, was harmless.

The judgment of the trial court is therefore affirmed.

Affirmed.


text:
    STATE v. CITY OF HOUSTON et al.
    No. 11068.
    Court of Civil Appeals of Texas. Galveston.
    April 25, 1940.
    Rehearing Denied May 16, 1940.

      Dan W. Jackson, Cr. Dist. Atty., and Marshall T. Anderson and Morris G. Rosen-thal, Assts. Cr. Dist. Atty., all of Houston (Tod R. Adams, of Houston, of counsel), for appellant.
    Sewall Myer, City Atty., and Will Sears, Asst. City Atty., both of Houston, for appel-lees.
   CODY, Justice.

This suit was brought by the State for itself and Harris County, acting by the Criminal District Attorney of Harris County, to collect taxes for the years 1933-1936 on certain property owned by the City of Houston. The case was tried largely upon stipulated facts. It was stipulated that the City of Houston purchased on March 19, 1928, a tract of land 207x98.5 feet for the sum of $26,000, with money derived from a bond fund voted by the electors of the City on April 13, 1925, which fund and the bonds issued thereunder are known as the “Roadways to Turning Basin Bond Fund and Bonds”; the tract was purchased for the purpose of opening Navigation Boulevard, a street in the City of Houston; the Roadways to Turning Basin Bonds to the extent of $728,000 are outstanding, and will not finally mature until 1957; the City, of course, annually levies a special tax to provide for the sinking fund to retire such bonds, and to pay the interest thereon; the northerly 69.6x98.5 feet of the aforesaid tract now forms a part of Navigation Boulevard, and no attempt is made to collect taxes thereon; the City of Houston, however, purchased the entire tract because it was a much better bargain to do so than just to buy the portion that was to be incorporated in the street; the City'is and has always been willing to dispose of its excess purchase at a fair price, but has never received a fair offer therefor; there were three houses upon said land at the time of the purchase, and two of them were removed from the portion of the land used in laying out Navigation Boulevard onto the remaining portion of the land, upon which taxes are sought to be collected in this suit; these houses have been kept rented, and the rents paid into the general fund.

The case was tried without a jury, and from an adverse judgment the State appeals.

It is not contended that the City did not have the authority to buy the entire tract out of the special fund, even though only a portion of the tract was to be used for opening Navigation Boulevard. An owner of property frequently not only collects for the value of the property actually taken for roadway purposes, but also for damages to his remaining property, so that it may well constitute a better bargain for a City to acquire all of the tract, than merely a portion thereof, and pay damages to the owner on the balance. It must be taken, therefore, that the City purchased the tract here involved in order to preserve the “Roadways to Turning Basip Funds”. The judgment of the trial court holding that the property is not taxable is clearly sustainable if the property was not merely public property but is also held for a public purpose. The fact that the property was rented to-private persons, and was therefore closed to the public, does not necessarily determine that such property, is not held for a public purpose. Certainly the stipulated facts lead to the conclusion that so much of the property as was not bought to be devoted directly to the opening of the Boulevard was bought for the purpose of conserving the “Roadways to Turning Basin Funds”. If the property was bought and is being held' to preserve such fund, how can it be said' that it was not bought, and is not being held' for a public purpose ? Clearly the fact that the City is renting the property to private persons pending the interval before its sale cannot change the character of the City’s interest in the property. When the City does sell such property, it must necessarily apply the proceeds to “Roadways to Turning Basin Funds and Bonds”. And the present diversion of the rentals from such property into the general fund is clearly a misapplication. This case, we believe, is ruled by Sherman v. Williams, 84 Tex. 421, 19 S.W. 606, 31 Am.St.Rep. 66. The facts in that case were that a tax collector of the City of Sherman conveyed a tract of land to the City to satisfy the City’s claim against him for money collected by him to meet the City’s obligations on an outstanding bond issue. During the time the City held the property and before it could dispose of it, it rented the property to a private person, and credited the rentals to the current expense fund of the City. Williams, a judgment creditor of the City, caused an execution to be levied on such property. The court said:

“The property is not of such character as to be exempt from forced sale as property owned and held only for public purposes * * *. If the property is exempt, it is because it must be held to stand in the same position as would the money collected by the tax collector on a tax levied to meet the interest, and create a sinking fund with which to discharge the bonded indebtedness of the city at its maturity, the validity of which is not questioned. The city of Sherman is under incorporation under the general law, under which it had power to levy and cause to be collected the sum which the collector failed to pay over. That was required to be assessed and collected separately from the taxes assessed and collected for current municipal expenses. Rev.St. art. 437. When assessed and collected, this became a special fund, disbursable only for the purpose for which the fund was created, and any officer misappropriating such a fund is declared to be guilty of malfeasance in office, subject to removal, and thereafter incapacitated to hold any office in the municipality. [Rev.St.] art. 372.
“The constitution provides that ‘counties, cities, and towns are authorized, in such mode as may now or may hereafter be provided by law, to levy, assess, and collect the taxes necessary to pay the interest, and provide a sinking fund to satisfy any indebtedness heretofore legally made and undertaken; but all such taxes shall be assessed and collected separately from that levied, assessed, and collected for current expenses of municipal government, and shall, when levied, specify in the act of levying the purpose therefor, and such taxes may be paid in the coupons, bonds, or other indebtedness for the payment of which such tax may have been levied.’ Const. art. 11, § 6.
“This makes a tax collected under it a special fund, and in view of the limitations placed by the constitution bn municipal taxation, if such a fund by the act of the municipal authorities or otherwise could be directed and used for some other purposes, then constitutional restraints would become inoperative, and citizens subjected to taxation forbidden by the constitution. What cannot be done directly cannot be done indirectly.
“The statute makes the further provision that ‘all taxes levied, assessed, and collected for the purpose of paying the interest and principal of bonds heretofore issued by cities or towns to aid in the construction of railroads and other works of internal improvement shall be applied solely to the objects for which they were levied, under the direction of the comptroller, as follows: First, to the payment of assessing and collecting the same; second, to the payment of the annual interest of such bonds, and not less than two per cent, of the principal, and, if there be any excess on hand after making the above payments for the current year, it shall be used in the purchase and cancellation of said bonds.’ Rev.St. art. 4778.
“The taxes collected could not have been appropriated to the satisfaction of appel-lee’s claim, had they been paid over by the collector; and for the protection of the taxpayers, as well as creditors, it seems to us that the property in controversy should be. deemed a part of the fund, the misappropriation of which made it necessary for the city to acquire title to it.
‘ If a taxpayer had failed to pay the tax on account of which the money was collected, then on sale of his property, if no bid was made, it would have been struck off to the city, and a deed made to it under which the city would have had power to convey the property to a purchaser from it. [Rev.St.] art. 449. The money received on such a sale would go to the fund on account of which the tax was levied, and we see no reason why the proceeds of the sale of the property in controversy should not belong to the fund on account of which the taxes were paid over by the collector when collected, and the fact- that the municipal authorities may have misapplied the rents of the property cannot affect the question.”

The trial court’s judgment is clearly right if the property constitutes a part of the special fund; and it seems clear to us that such property is so; in any case, the stipulated facts support a finding by the trial court to that effect, and we will assume the court so found. This being so, it is neither taxable nor capable of being sold for taxes, and thus diverted. Of course, if taxes could be levied on it, it could be seized and sold for taxes.

The rule which appellant contends for, namely, that property held by a municipality in connection with property used for a public purpose but in excess of the amount required for such purpose, is not within the tax exemption provisions, does seem to apply in other jurisdictions. West Hartford v. Water Commissioners, 1877, 44 Conn. 360; Norwalk v. New Canaan, 1911, 85 Conn. 119, 81 A. 1027; Essex County v. Salem, 1891, 153 Mass. 141, 26 N.E. 431; Traverse City v. East Bay Tp., 1916, 190 Mich. 327, 157 N.W. 85; Perth Amboy v. Barker, 1906, 74 N.J.L. 127, 65 A. 201; Clark v. Sprague, 1906, 113 App.Div. 645, 99 N.Y.S. 304; Collector of Taxes of Milton v. City of Boston Supreme Judicial Court of Massachusetts, 278 Mass. 274, 180 N.E. 116, 81 A.L.R. 1515; Anoka County v. City of St. Paul, 194 Minn. 554, 261 N.W. 588, 99 A.L.R. 1137.

However that may be, we are bound by the Sherman v. Williams case, but even if we were not so bound we would adopt the rule there, applied, because it seems to us the necessary result of applying the provisions of our Constitution to the facts of this case. The judgment ought to be affirmed, and it so ordered.

Affirmed.


author: TIREY, Justice.

text:
    BETTIS v. WATKINS.
    No. 2232.
    Court of Civil Appeals of Texas. Waco.
    April 11, 1940.
    Rehearing Denied May 16, 1940.
    Fitzpatrick & Dunnam, of Waco, for appellant.
    Cecil R. Glass, of Marlin, for appellee.
   TIREY, Justice.

Plaintiff, Mrs. Maize Watkins, brought this suit in the district court of Falls county (it having special jurisdiction of county court matters) to recover the value of a mule killed in a collision with an automobile truck. The defendant, J. M. Bettis, a citizen of McLennan county, seasonably filed his plea of privilege. The trial court exercised his discretion to hear the plea of privilege in connection with the trial of the case on its merits, and on the verdict of the jury, he overruled the defendant’s plea of privilege and rendered judgment in favor of plaintiff against the defendant. The parties will be designated here as in the trial court. The judgment of the trial court in overruling the plea of privilege is assigned as error.

Plaintiff sought to hold venue in Falls county under subdivision 9 of Article 1995 of our Revised Statutes. The grounds of negligence alleged in her first amended original petition were substantially: (1) That the motor vehicle causing the injury and death of the mule was operated at a dangerous and reckless rate of speed in excess of twenty miles per hour, and was being operated upon the left-hand side of the road with respect to the direction in which it was traveling; (2) that the driver of the truck was operating the same on the left-hand side of the highway with respect to direction in which he was traveling and at a rate of speed in excess of twenty-five miles per hour; that said driver saw said mule upon said highway and failed to stop or turn said truck in order to avoid hitting it though he could have stopped the same .after discovering said mule with the means at hand had he attempted to do so or could liave turned same away from said mule in time to have avoided hitting it; that each -of the acts alleged aforesaid constituted gross negligence on the part of the driver, and were the proximate cause of the injuries to said mule. Plaintiff, in her amended controverting affidavit to the plea of privilege, attached the copy of her first amended original petition and marked the same Exhibit “A”, and made it a part of said controverting affidavit to the defendant’s plea of privilege. Special Issue No. 1 of the court’s main charge was: “Do you find from a preponderance of the evidence that immediately prior to and at the time of the collision the defendant’s truck was 'being driven at a dangerous and reckless rate of speed,” to which the jury answered in its verdict “No.” The jury further found in its verdict (a) that defendant’s truck at the time of the collision was being driven upon the left-hand side of the road with respect to the direction in which it was traveling; and further found (b) that the driving of defendant’s truck on the left-hand side of the road at the time of the collision was the proximate cause of the collision. The trial court did not submit to the jury the question as to whether the driving of the truck on the left-hand side of the road at the time in question was negligence.

Under the foregoing condition of the record, did the trial court err in overruling defendant’s plea of privilege? We think so. Article 801 of the Penal Code is, in part, as follows: “On all occasions the driver or operator of any vehicle upon any public highway shall travel upon the right hand side of such highway unless the road on the left hand side of such highway is clear and unobstructed for a distance of at least fifty yards ahead.” As we view the above statute, the defendant would not be guilty of negligence per se in driving on the left-hand side of the highway unless, at the time he was so doing, said highway was not clear and unobstructed for a distance of at least fifty yards ahead. Now, in the plaintiff’s amended controverting affidavit, the grounds of negligence alleged are the same as set out in her first amended original petition. Our Supreme Court says: “To deprive a defendant of the right of trial in the county of his domicile, the case filed against him must clearly come within one of the exceptions found in this statute, and the burden rests upon the plaintiff to allege and prove that the case comes within the exception.” See A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619, point page 621. The court did not submit to the jury the question as to whether or not the driving of the truck on the left-hand side of the road, with respect to the direction in which the truck was traveling, was negligence. It therefore appears to us that, under the verdict of the jury, there is no finding of an affirmative act of negligence against defendant’s agent that constitutes a “trespass” within the meaning of subdivision 9 of Article 1995, Revised Civil Statutes. Meredith v. McClendon, Chief Justice, 130 Tex. 527, 111 S.W.2d 1062, point page 1066. In Blanton v. Garrett, 133 Tex. 399, 129 S.W.2d 623, point page 625, the Supreme Court says: “Fact findings by the jury [are] controlling upon the trial court in passing upon the venue issues.” We therefore hold that under the decisions of our Supreme Court, plaintiff failed to carry her burden of proving her right to maintain venue in Falls county, and that the trial court erred in overruling defendant’s plea of privilege. The judgment of the trial court must therefore be reversed and remanded. See Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593, 594, pars. 3 and 4, and the opinion of this court in Jones Fine Bread Co. v. T. D. Smith, Tex.Civ.App., 136 S.W.2d 234. Appellant’s plea of privilege is therefore remanded to the trial court for another hearing.

There are many other errors assigned to the judgment of the trial court, including the question of necessary parties, but we are of the opinion that the other errors assigned will not arise upon another trial of the case, and, for that reason, refrain from discussing them.

The judgment of the trial court is reversed and remanded.


author: O’QUINN, Justice.

text:
    JOHNSON v. PERKINS et al.
    No. 3620.
    Court of Civil Appeals of Texas. Beaumont.
    March 21, 1940.
    Rehearing Denied May 1, 1940.

      S. A. McCall, of Conroe, for appellant.
    Geo. B. Darden, and J. W. Simpson, Jr., both of Conroe, for appellees.
   O’QUINN, Justice.

On April 22, 1936, appellee, Elvira Green Perkins, joined by her husband, Lewis Perkins, filed this suit in the district court of Montgomery County, Texas, against Oscar Johnson, appellant, to recover title to and possession of 57.1 acres of land, a part of the Neal Martin league survey in Montgomery County. The case was tried on ap-pellees’ first amended original petition in which appellees alleged that Mrs. Perkins was a niece of Thomas Johnson and his wife, Priscilla Johnson, and had lived with her said uncle and aunt since she was about two years old'; that her said uncle and aunt never had any children, and with the consent of her (Mrs. Perkins’) parents they took her to live with them as if she were their own child; that she lived with her said relatives all of her life until she was about nineteen years of age, when, with her foster parents’ consent, she married Lewis Perkins; that after her marriage she lived with or near by her said foster parents; that Thomas Johnson and his wife Priscilla Johnson owned and lived on the land in controversy; that Priscilla Johnson died April 13, 1932, and that some two weeks after her death her uncle, Thomas Johnson, told her that he wanted her to have the place and what he had and he would live with them, and for them to then take possession of the place and take care of him, and that he then and there gave the place to Mrs. Perkins in consideration of the services of her and her husband in taking care of him; that she and her husband' immediately took possession of the land and exercised care and control over same, farmed same, harvested the crops, built valuable and permanent improvements thereon -and performed all the duties incumbent upon them in caring for her said uncle, Thomas Johnson, and protecting and improving the premises; that Thomas Johnson went with them and lived with them the rest of his life, and was cared for by them; that Thomas Johnson died December 22, 1935;, that during the time he lived with appellees on various occasions he stated to numerous persons that he had given the land to his niece, Mrs. Perkins. On December 30, 1935, appellant, Oscar Johnson, a nephew of Thomas Johnson, deceased, filed for record in the Deed Records of Montgomery County, Texas, a purported deed from Thomas Johnson to himself to the land. This deed was dated December 4, 1933, and was signed by his (Thomas Johnson’s) mark, and acknowledged before B. J. Strode, Notary Public in and for Galveston County, Texas. It recited that it was executed in Galveston County, Texas, for the consideration of $50 cash and love and affection. It was not witnessed. Appellees attached a copy of this deed to their petition. Mrs. Perkins under oath attacked the deed as a forgery. Appellees prayed for judgment for the title and possession of the land, and that the purported deed from Thomas Johnson to Oscar Johnson be declared a forgery, and in all things held for naught, and that the cloud upon their title by reason of said deed be removed.

Appellant, defendant, answered by general demurrer, several special exceptions, among them, (a) that the transaction plead by appellees with Thomas Johnson (of a parol gift of the.land by Thomas Johnson to Mrs. Perkins) was in violation of the statute of frauds, Vernon’s Ann.Civ.St. art. 3995 et seq., and so not enforcible; and (b) that appellees’ petition “failed to show that the land involved in this suit was ever in possession of the plaintiffs or that they were ever put in peaceable possession” of the land; and further answered by general denial and plea of not guilty.

The case was tried to the court without a jury, and judgment rendered for ap-pellees for the title and possession of the land; that the deed from Thomas Johnson to appellant Oscar Johnson was a forgery, and removing the cloud upon the title of appellees cast by the forged deed. This appeal is from that judgment.

We overrule appellant’s assignment that the court erred in refusing to sustain his general demurrer to appellees’ first amended original petition. The petition was good as against a general demurrer.

There was no error in overruling appellant’s special exception asserting that appellant’s allegation of possession was not good because it did not directly allege that they moved upon and took actual possession of the property under the parol gift of the land to Mrs. Perkins by her uncle Thomas Johnson. The petition alleged that appellee “Immediately took possession of the land,” and alleged the use, control and acts of ownership exercised on and over the same, such as farming the land, harvesting the crops, building fences, cutting wood for use, and all such acts as were necessary for operating the land as a farm. Appellant insists that’ appellees should have alleged that they took possession by moving upon said land and residing thereon, that any other or different possession was not sufficient to obviate the statute of frauds. This contention is without force. Appellee, Mrs. Perkins, claims the land by virtue of a parol gift from her uncle, Thomas Johnson. It is well settled that for a parol sale or gift of land to be valid three things must occur: (a) payment of the consideration, in case of a sale; (b) possession by the purchaser or donee; and (c) the making of valuable and permanent improvements by the possessor. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216. The gift, followed by immediate possession, the making of valuable improvements, and the rendering of service by the donee were alleged. But appellant says that the actual occupancy — residing upon the land — was not alleged. It is not believed that such character of possession is required. In the case of a parol gift, as in the instant case, if the donee takes the land into possession by taking charge of the land, and the exercise of acts of ownership, such as using it, controlling and making of valuable improvements thereon, these acts constitute a compliance with the law, and the statute of frauds has no application — does not obstruct the passage of title to the donee. We are not cited to any case supporting appellant’s contention, nor have we been able to find such a decision. Under some circumstances, “possession” and “occupancy” are regarded as practically synonymous. Under other circumstances they are easily distinguishable. Actual occupation is not necessary to constitute possession. Nevin v. Louisville Trust Co., 258 Ky. 187, 79 S.W.2d 688. The term “possession” has been variously defined to indicate the holding or retaining of property in one’s power or control; and generally one has the possession of personal property when it is under his dominion and subject to his control. Physical occupancy and legal possession of property are not necessarily identical. Jones v. Bodkin, 44 P.2d 38, 172 Okl. 38. “Actual residence-on land is not necessary to establish or maintain ‘possession’ so as to be within protection of statute providing that owner shall be entitled to possession of property for one year from date of foreclosure-sale, but owner is in ‘possession’ when land is cultivated by his tenant.” McClure v. Federal Land Bank of Louisville, 213 Ind. 644, 14 N.E.2d 101.

Our holding has support in Zuercher v. Startz, 53 Tex.Civ.App. 442, 115 S.W. 1175. While the cited case was one in forcible entry and detainer, still the nature of the possession was involved. The party-claiming the right of possession did not reside on the premises, but had possession of the land, using and controlling it and' kept up -the fences enclosing the premises. The court in passing upon the question of whether it was necessary for the one claiming the right of possession to actually-occupy the premises held that such actual occupancy was not necessary.

In trespass to try title, in order to show adverse possession, it is not necessary for-the party alleging same to show actual occupancy of the land, Cantagrel v. Von Lupin, 58 Tex. 570, but that such adverse-possession may be shown by such continuous and uninterrupted cultivation, use and enjoyment of same as to be visible, notorious acts of ownership sufficient to give notice to the owner that the land is being-claimed by another. Hardy v. Bumpstead, Tex.Com.App., 41 S.W.2d 226, 76 A.L.R. 1488.

We overrule appellant’s contention that appellees failed to allege and' prove substantial improvements made by them on the land in question. Appellees-alleged valuable and permanent improvements, itemizing same with value thereof. While the improvements were not of a considerable value, they were substantial and of actual value, such as repairs to the dwelling house, recurbing water well,, placing new supporting blocks under house, reflooring crib, and repairing fence enclosing property annually, and using money derived from use of the premises for general upkeep of premises. We think the-pleading and proof sufficient. The court in his findings of fact so found. The rule as now settled appears to be that the donee’s improvements must be substantial,., but the courts hold that there is no minimum value as a matter of law. Davis v. Douglas, Tex.Com.App., 15 S.W.2d 232. (The holding of the Commission of Appeals was approved by the Supreme Court.) And see: Barrett v. Calloway, 66 S.W.2d 367.

Appellant’s contention that the court erred in permitting Lewis Perkins, husband of Elvira Perkins, to testify relative to Thomas Johnson giving the land to his wife because same was in violation of Article 3716, R.C.S. (dead man’s statute), is without merit. She was not claiming the land as an heir or legal representative of Thomas Johnson, but under a parol gift from him. Wootters v. Hale, 83 Tex. 563, 19 S.W. 134.

The conclusion of the court, and the finding set out in the judgment that the deed from Thomas Johnson to Oscar Johnson, appellant, was a forgery, has ample support in the record. Appellee Elvira Perkins under oath attacked the deed as a forgery. Appellant did not offer any proof of its execution. While the deed recited a consideration of $50 cash and love and affection, appellant did not testify himself, nor offer evidence of any character to show its execution. On its face the deed purported to have been executed in Galveston County. It showed to have been acknowledged before one B. J. Strode, a Notary Public in and for Galveston County. Strode did not testify. The deed was dated December 4, 1933. It was not placed of record until December 30, 1935. Thomas Johnson was living with appellees on the date of the deed (his wife having died on April 13, 1932) and continued to live with them until his death on December 22, 1935, just eight days before the purported deed was filed for record, although the deed, if genuine, entitled appellant to possession of the land from the date of its execution, December 4, 1933, more than two years before it was offered for record. No evidence appears in the record to disclose the existence of the deed during that time. Why was it kept so close a secret, if it was in fact genuine. Much proof was offered to show that Thomas Johnson promiscuously stated to his neighbors, white and black, during that time and while he was living with appellees, that he had given the land to Elvira Perkins, and she and her husband were seen constantly on the property repairing the improvements, working the land, and exercising acts of ownership over same. The parties are all negroes. The deed from Thomas Johnson to Oscar Johnson was signed by Thomas Johnson’s mark, and was not witnessed.

Other assignments are presented, all of them have been considered, and none of them are believed to show reversible error, and are overruled.

The judgment is affirmed.


author: BROWN, Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. WOODS.
    No. 14079.
    Court of Civil Appeals of Texas. Fort Worth.
    April 19, 1940.
    Rehearing Denied May 17, 1940.

      Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for plaintiff in error.
    Greines & Greines, of Fort Worth, for defendant in error.
   BROWN, Justice.

This is a workmen’s compensation suit, in which the injured employee recovered for total and permanent incapacity and was awarded a lump sum verdict.

That is what he sought to recover by his pleadings. He had no alternative plea for temporary total incapacity, and none for partial incapacity, permanent or temporary. The insurance carrier pleaded only a general denial.

We give this preliminary statement of the pleadings because the troublesome question of conditional or unconditional submission of issues arises in the case.

The first four propositions complain, in effect, of the fact that the jury found that the fair and just wage in the instant suit was the amount that the employee was receiving at the time of the injury; and the insurance carrier bottoms its complaint upon the fact that neither the injured employee nor any other employee, engaged in like employment, had worked substantially the whole of the preceding year, at the particular work in which the employee was engaged.

This quotation from the second proposition seems to state the position taken in this case: “It was never intended by our Workmen’s Compensation laws to permit an injured employee to recover more compensation than he could have earned as wages had he not been injured, in fact, that law never intended that he should collect as compensation more than sixty per cent of the wages he could earn or receive prior to his injury.”

Both in the oral argument and in the brief the contention is made that this employee has been permitted to recover a sum bottomed upon a wage earned as if the employee could obtain work for a whole year, when the proof shows that he could only obtain work for a part of a year.

If we correctly understand the position taken by the insurance carrier, it is that, in a case like the one at bar, an excessive judgment has been rendered because the verdict and judgment are bottomed on what the jury has found to be a fair and just wage rate for this employee, instead of on what the employee could have actually earned per year.

We analyze the contentions as urging that, in such a case as this, where the employee has not been able to secure employment for substantially a whole year, and where no other employee, of like kind, has been so employed for substantially a year, the compensation should be computed on the loss of actual earnings.

We have thought that the loss of ability to earn was the prime issue in such cases. Need we cite any other' authority than Texas Employers Ins. Ass’n v. Clack, 132 S.W.2d 399, 401 (Tex.Com. of Appeals, opinion adopted by the Supreme Court), wherein it is said: “One of the underlying purposes of'our compensation statutes is to compensate an injured employee, not merely for loss of earnings, but for loss of earning capacity, at a wage rate based on his capacity to earn when employed on a full-time basis” ?

We are of opinion that any other construction of the Workmen’s Compensation Law, Art. 8309, R.C.S., Vernon’s Ann.Civ.St. art. 8309, would be unjust and unfair to the employees in whose behalf the law was enacted.

The fifth and sixth- propositions complain of the trial court permitting the witness Randle and the plaintiff Woods to testify to what these witnesses considered was a fair and just wage rate in this case.

The contention is that the questions propounded call for a conclusion of the witness on a question of law and for a conclusion of fact which was the ultimate issue for the jury.

We observe that the plaintiff Woods alone sought to introduce some proof on the issue of a fair and just wage .rate. The insurance carrier made no effort to introduce evidence on such issue.

The ultimate issue was submitted to the jury and determined by the jury.

There is evidence of some probative force to sustain the finding of the jury even if we disregard the questions and answers that afford the appellant its reasons for the objections tendered.

We do not believe that any error is shown, and we believe that the injured employee has met the situation in á manner that satisfies the holdings by us in Federal Underwriters Exchange v. Arnold, 127 S.W.2d 972, writ dismissed — correct judgment, and Traders & General Ins. Co. v. Crouch, 113 S.W.2d 650, writ dismissed. See, also, Federal Underwriters Exchange v. Stewart, Tex.Civ.App., 109 S.W.2d 1031, writ dismissed.

We see no error, requiring a reversal, in the manner in which the plaintiff and the witness Randle were interrogated, as shown by appellant’s brief.

We overrule assignments of error Nos. 1 to 6, inclusive.

The seventh and sixteenth assignments of error complain of the manner in which the trial court submitted the issue on temporary incapacity. The seventh asserts that the court erred in submitting thé issue of temporary incapacity conditioned upon a negative answer to the issue pertaining to total and permanent incapacity; and the sixteenth asserts that the trial court erred in overruling the defendant’s objections to the charge as disclosed in paragraph 15 of such written objections.

Bearing in mind the fact that the employee sought by his pleadings to recover only for total permanent disability, and that the insurance carrier answered only by a general denial, we do not find any error in the charge.

The court submitted, unconditionally, the issue of total disability, and then conditionally submitted the next issue (No. 5) on the question of the permanency of the disability, and the jury answered that it is permanent, and then charged as follows: “Q. If you have answered issue No. 5 ‘yes’, you will not answer issue No. 6; but if answered '‘No’, then answer: 6. Do you find from a preponderance of the' evidence that such total disability, if any you have found in answer to issue No. 4, is temporary ?”

The court submitted the issue of partial disability unconditionally and the jury found that there was none.

The burden of proof was placed upon the plaintiff on every issue submitted.

It is appellant’s contention that these issues should have been submitted unconditionally, on the theory that they are defensive issues, and that the burden of proof has therefore been placed wrongfully upon the defendant.

The cases relied upon by the appellant clearly hold that where the pleadings and evidence raise the issues of total incapacity and partial incapacity and the permanency thereof, or the temporary character thereof, these issues should all be submitted unconditionally; but where the pleadings and evidence do not raise such issues, a different situation is presented. Here the employee pleaded only total and permanent disability and introduced testimony in support of his claims. The insurance carrier pleaded a general denial and introduced testimony to show that the employee sustained no such injuries as those claimed.

Appellant cites us to Texas Indemnity Ins. Co. v. Perdue, Tex.Civ.App., 64 S.W.2d 386, 388, writ refused, but we find the following said in that case: “In a case that permits the defendant to prove an affirmative defense under a general denial and the testimony raises such affirmative defense, the defendant is entitled to an affirmative submission of the defense so raised, but, if the evidence offered tends only to negative the cause of action presented, the issue or issues on which such action depends should be submitted affirmatively as plaintiff has the burden of proof, but the negation of such issue should not be affirmatively submitted. Texas Employers’ Ins. Ass’n v. White (Tex.Civ.App.) 32 S.W.(2d) 955.”

A writ was refused in the cited case.

We believe that what was said in Zurich General Accident & Liability Ins. Co. v. Moss, Tex.Civ.App., 118 S.W.2d 410, 413, writ dismissed, is applicable here: “As we understand the pleading and evidence in this case, the issues conditionally submitted constitute grounds of recovery rather than grounds of defense, and this being true, failure of the court to submit them at all could be of no concern to the appellant.”

The propositions presented are not well taken, in our opinion.

The ninth and tenth propositions assert that the term “the whole of the immediately preceding year”, as used in the Workmen’s Compensation Statute, is a legal term and one having a legal meaning different from its ordinary or literal meaning and it was error for the trial court to permit the witness Randle and the plaintiff to testify that they did not know of any employees of the same class, as plaintiff who had worked substantially the whole of the year immediately preceding the date of plaintiff’s alleged injury.

We see no merit in this contention.

If appellant desired to ascertain from these witnesses how many days in each year workmen were employed who were doing the same character of work as that in which plaintiff was engaged, or desired to ascertain such fact from any other witness, it had the privilege of doing so,.and, if the testimony had shown that such workmen were engaged for a period of time that comes within the legal definition on which appellant relies, the matter could have been controlled by the trial court. But appellant made no effort to do this.

The court’s charge gave a definition of this term and no complaint is made of the charge in that respect, and the jury found, in answer to the court’s charge, that neither the plaintiff nor any other employee, of the same class, had worked for substantially the whole of the year immediately preceding plaintiff’s injury, and no objection is made to that charge, and there is evidence to support the verdict.

It has been difficult to review this case because there are ten propositions presented and no reference is made under each proposition to the assignment (or assignments) of error on which it is bottomed, and there are nineteen assignments of error found in the back of the brief (some of which are not presented) and no effort has been made to point out the portion of the motion for a new trial from which they are taken; and the motion contains only one hundred and seventeen (117) distinct paragraphs assigning error.

Again may we respectfully urge that the propositions be shown to be germane to certain assignments of error, and that the assignments of error be shown to be certain portions of the record. All this will take but little time for counsel in the preparation of the brief, and will be of great assistance to the reviewing court.

All assignments of error presented are overruled, and the judgment is affirmed.