author: GRISSOM, Justice.

text:
    ALLEY v. TEXAS ELECTRIC SERVICE CO.
    No. 1953.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 24, 1939.

      Kirby, King & Overshiner, of Abilene, for appellant.
    Mays & Perkins, of Swe.etwater, for appellee.
   GRISSOM, Justice.

Mrs. Louise Alley, widow of Frank Alley, deceased, for herself and for the benefit of Mrs. Lora Allen, mother of deceased, brought this suit against Texas Electric Service Company for damages caused by the death of Frank Alley, which, plaintiff alleged, resulted from defendant’s negligence. Plaintiff alleged that defendant’s high line ran across a pasture rented by the Alleys; “that the high line was strung along the poles * * *; that the poles were about thirty feet high, and carried a large ‘ground wire’ which was attached to the pole near the cross arms carrying the copper, or transmission, wires, which copper wires were then and there transmitting and carrying a large voltage of electricity; that the ground wire, after being affixed to the pole, was carried down the pole to the ground and into the ground to the butt end of the pole; that the ground wire originally was held by two-inch metal staples driven into the pole and over said wire at intervals of about twenty-four to thirty six inches.” Plaintiff alleged defendant was carrying electric current on its high line in excess of 10,000 volts on January 30, 1936, at the place in question; that such voltage was highly dangerous to a man if permitted to come in contact with him; that the high line and- ground wire were uninsulated; that in the exercise of ordinary care both would have been insulated; that while Frank Alley was lawfully on said land ana premises rented by him and “while strolling along the fence next to a public highway, and on the inside of said fence, and under defendant’s said high line, he * * * came in contact with the ground wire attached to, or which had been attached to, one of the poles of defendant; and as a result of such contact received a charge of electricity emanating from defendant’s said high line, which said charge caused his instant death.” Negligence was alleged in permitting the electric current to escape from the high line into said ground wire; in allowing the ground wire to remain highly charged with escaping current from defendant’s high line; -in failing to have the high line properly insulated so as to prevent the escape of current from the same when coming in contact with other objects, and particularly with said ground wire; in failing to have the ground wire insulated; in failing to reasonably inspect the condition of its high line and ground wire, in order to ascertain whether or not the ground wire had become disengaged from the pole and in contact with the high line.

In the alternative, plaintiff alleged that the high line and ground wire and the flow of electricity through them were under the control of defendant; that plaintiff did not know in what manner her husband met his death “and has no way of proving how it did happen *' * * but says that it was brought about through some negligence of the defendant. * * * in the handling of verv high and dangerous voltage of electricity along its high line * * * and in some manner negligently permitting the ground wire, attached to one of its poles, or which had been attached to one of its poles, to become charged with such an amount of electricity emanating from the high line * * * as when coming in contact with the said Frank Alley, to bring about his instant death. That the defendant herein is in a better position to know how the death of Frank Alley * * * came about and what caused it, than is the plaintiff. Plaintiff would further show to the court that in the handling of electricity from point to point through high transmission lines, as was being done in this case, by the defendant, when the proper degree of care is used by those operating such agencies, death does not ordinarily follow the contact of a human being with a ground wire attached to its poles, as in this instance; that the cause of the death of Frank Alley, plaintiff’s husband, was proximately brought about by the negligence of this defendant in some manner to plaintiff unknown.”

Defendant answered by general demurrer, special exceptions, general denial, plea of two years’ statute of limitations, and specially that deceased, just prior to his death, was attempting to remove the ground wire, which was securely attached to defendant’s pole, and that in so doing he caused the ground wire to come in such close proximity to the transmission line as to cause the electricity to pass from the transmission line to the ground wire in such amount as to cause his death. That the wire and pole were the property of defendant; that deceased in attempting to remove the same was doing so without the knowledge or consent of defendant. That deceased was guilty of negligence in so attempting to remove said ground wire from said pole which was the sole proximate cause of his death, and if not the sole proximate cause, that such negligence was a proximately contributing cause thereof.

At the close of plaintiff’s evidence, the court discharged the jury and rendered judgment for defendant. Plaintiff has appealed.

Plaintiff assigns as error the action of the court in “sustaining defendant’s motion to instruct a verdict in favor of the defendant” and in rendering judgment against plaintiff and in favor of defendant. Plaintiff’s proposition is stated as follows:

“Where the undisputed evidence showed that the decedent met his death while on premises where he had a right to be, and was killed by a charge of electricity from defendant’s high line, received through a ground wire, uninsulated and disengaged from the pole where it had been fastened and lying upon his body; and that the high line and ground wire were in the exclusive care, custody and control of the defendant; in the absence of any explanation from the defendant as to the cause of the death, the evidence was sufficient to warrant the inference that his death was caused by the negligence of the defendant.”

The following is, in substance, all the evidence pertinent to the questions to be hereinafter discussed:

Mr. Adams, an undertaker to whom the body of deceased was taken immediately after his death, testified he was of the opinion deceased died from burns.

Plaintiff testified that defendant’s high line was situated just inside the fence of the Alley pasture; that the pasture was surrounded by a wire fence; that Raymond Moore and his wife (plaintiff and Mrs. Moore having been reared together) spent the night of January 29, 1936, with the Alleys; that about 2:30 in the afternoon of January 30, 1936, Mrs. Alley and Mrs. Moore went to Roscoe, leaving their husbands at the Alley home; that Mrs. Alley next saw her husband at the undertakers between 3:30 and 4:00 o’clock that afternoon.

W. E. and B. M. Cooper were about a half mile from the Alley home at the time Mr. Alley was injured. The sun was shining but there was snow on the ground and it was slick and muddy. About 2:30 o’clock they heard a noise; almost immediately afterwards they saw Raymond Moore rush from the Alley pasture near the post where deceased was found, waving his arms, calling, and coming toward the Coopers. The Coopers got in a car and went to meet Moore. They stopped at defendant’s electric light pole No. 22-2, a short distance from the Alley home and inside the Alley pasture. The Coopers and Moore got out of the car and went under the fence. The bottom wire of the fence was broken about four or five steps from pole 22-2. They found Mr. Alley lying on his back nine or ten feet, southwest of said pole, and about the same distance from the pasture fence. Most of his clothing was burned off. A wire was laying on him, up his body from his feet. The wire was 25 to 30 feet long. One end of the wire was in the deceased’s left hand, or on his hand, and the other end was on the fence. One of. the Coopers broke some brush off a bush between Alley’s body and the electric light pole and raked the wire off him. They did not know whether there was electricity in the wire. Mr. Cooper did not get any shock. Deceased had a hammer in his right hand. B. M. Cooper testified “I don’t know where that wire came from, and I don’t know where it went to.” According to the Coopers, Raymond Moore just said “He was killed.” The Coopers asked him several questions “but he never did tell us.”

J. J. McBride went to the electric light pole about 5:00 o’clock p. m. on the date of the accident. He testified the ground wire was not then on the pole, except a little piece sticking out of the ground; that he looked for the ground wire but did not find it; that the small piece of the wire protruding from the ground was “rough like it had been burned, sort of rough around the edge * * * no evidence of hammer marks or anything being prized against the pole.” At the time of the trial there was a ground wire on the pole, the top piece of which was attached to the short piece of ground wire attached to the pole and extending about 7 inches above the ground, which short piece was observed there immediately after Alley’s injury.

Mr. Zetzman testified he passed the Alley home about 12:30 on the day Alley was killed. He saw two men mending the fence. “They were working on the fence, the way it looked. * * * both of them stopped and it seemed like one of them was mending the fence, taking up the wire, and then they just started walking west and then stopped and picked up the bottom wire of the barbed wire fence, just raised it up and throwed it down again and started on walking again * * *.” The men he saw working on the fence were about 200 to 250 yards west o'f the Alley house and one had a hammer in his hand.

J. C. Barkley testified that in January, 1938, about two years after the death of Frank Alley, he found a piece of wire four to six inches from the electric light pole No. 22-2 and gave it to plaintiff’s counsel. This wire was the one exhibited to the jury.

Mr. Bradshaw, a civil engineer, testified the poles were 30 feet high; 10 to 11, inches in diameter, with 3 electric wires at the ■top of the poles, that the ground wire on pole 22-2 is now spliced at the ground, “the ground wire goes up the pole to just below the bracket or standard on the upper insulator, and looped around the top and stapled down on the outside of the pole.” The ground wires on the poles were fastened by two inch staples 24 to 30 inches apart. He examined the piece of the wire found by Barkley in 1938 and testified “one end looks like it has been burned off.” He further testified that the ground wire protruding about 7 inches above the surface of the ground appeared to have been burned. “The purpose of that ground wire is or was to arrest lightening, to keep it from running down the line and grounding it. I did not notice any of the ground wires on these poles insulated in any way. The high lines were not insulated in any way. If no electricity has been permitted to enter that ground wire it would not be dangerous to anybody touching it; it is only in the event electricity is permitted to escape into it that it becomes dangerous. They are capable of being insulated to protect people coming in contact with them. Ground wires, in the proper construction, are very seldom insulated in the country; in towns and in areas around where people come in contact with the poles they use a wooden mold to keep anybody from coming in contact with them. This piece of copper wire is insulated, that black stuff on there is to keep the electricity from coming in contact with other wires or from hurting a person that might take hold of it or come in contact with it. * * *

“If electricity is not permitted to escape into a ground wire it is not dangerous to anybody; it is perfectly safe, but if electricity is permitted to escape into it it becomes dangerous. It is just like a lightening rod on the side of a. house, you can hold it all day, but if lightening should strike it it will kill you.

“If lightening should strike one of the wires carrying electricity, the purpose of the ground wire is to ground it down into the ground and kill it; it might kill itself at the top of the ground, but that is not often done. Lightening can do anything and does do all sorts of things; you can’t control it; it will split a pole all to pieces, and it will tear the ground wires loose from the poles. I recently saw about a mile of poles that wasn’t grounded a'nd it split some of them,' broke some of them in two; every pole was damaged in some way.
“The top insulator is about six feet from the cross arm. The ground wire runs up that pole to just below the upper insulator. ⅜ ⅝ ⅝
“If this ground wire should become loosened and was hanging out there by itself and it should come in contact with these wires charged with electricity it would be very dangerous. It would not be dangerous unless somebody touched it. If it was just hanging up there it would just hang there like a kite string, but the minute it comes in contact with the ground it becomes dangerous, and would probably produce death to anybody that touched it. The only way that I could see that would cause the wire to burn off the way I saw the condition there; if there happened to be a flaw in the wire or if that ground was wet there and maybe lightening hit the messenger wire or static wire at the top and come down through there (indicating on plat) it might fuse right at the top of the ground, maybe snow, ice, or something of that kind, or water. In my opinion that would be the only thing that could do it. If it was disconnected at the top, the ground wire was disconnected at the top, there still wouldn’t be any danger unless it somewhere came in contact with the high line. * * *
“The purpose of a ground wire on an electrical transmission line is to protect the particular pole from lightening and the line, too, and to ground the lightening if it does strike the pole.”

O. S. Hockaday, an electrical engineer, employed by defendant, testified, among other things, as follows:

“On January 30, 1936, the Texas Electric Service Company was operating an electric high line bet-ween Sweetwater and points west, through Sweetwater and Colorado. The voltage of that line is about sixty-five thousand, that is what we consider one wire to another; one of those conductors to the ground would be about 35000 voltage. Yes, if a person came in contact with it it would kill him; it was sufficient that if a person came in contact with that voltage it would kill him. A person standing on the ground would be perfectly safe if it was in proper condition, and all construction is made in accordance with the American - Safety Code. If a metal wire should come in contact with one of those high lines carrying the .amount of electricity that I stated, and a person should walk up and take hold of it, if that wire was disconnected from the ground it would undoubtedly kill him.

“There has been a great deal of research in the last ten or fifteen years and those ground wires are put on the poles for the purpose of protecting the system, particularly from lightening, and their protection to the line by protecting the pole itself, from being split in the event the pole is struck by lightening. When they are properly maintained on those poles they are harmless, and if a person should touch one of them it wouldn’t kill him.

“Q. It is only when they get charged with electricity that it is dangerous, those ground wires, that is true? A. You are getting into a technical point there.
“Q. I say they would have to be charged with electricity? A. As long as the lower end is connected they are not particularly dangerous to a person even though they do carry electricity.
“Q. In other words, you say if they were properly connected down at the ground and a connection was made with the high line up at the top it wouldn’t be dangerous to anybody to walk rtp and take hold of them ? A. Not particularly; you are getting into another technical problem.
“When current goes through a wire and some other object such as a person touching it, parallel with it, the current may divide. Ordinarily a person might receive a slight shock in the event the electricity comes down the wire, but it wouldn’t necessarily be fatal.
“In the event, if for any reason, that ground wire should be jerked loose from the pole, and with one end of it contacting the high line, one of those high lines carrying that voltage of electricity, and a person should come up and catch hold of it, it would be dangerous, and it would very likely kill him.
“I went out to pole 22 — 2 on the morning following January 30, 1936. I made a very diligent examination of the pole and everything around there. I made a very careful survey of everything around the pole and on the ground and there were no pieces of wire laying on the ground within a radius, I will say, of forty or fifty feet of the pole. There was a piece of the ground wire' coming out of the ground and extending up a distance of about 7 inches along the pole when I was there that morning. I hardly see how either one of those pieces of wire (indicating) could be a piece of the ground wire that I saw there coming up out of the ground, because the same wire is still there in service. * * *
“I am familiar with the construction of those high line poles, along adjacent to pole 22 — 2. On January 30, 1936, they all carried ground wires. At the time I was there on January 31, there was no ground wire on pole 22 — 2 except the short length that went into the ground; the ground wire above that had disappeared.”

Raymond Moore did not testify. His failure to do so is not in any way accounted for. No evidence was introduced by defendant.

By its counter propositions defendant contends, in substance, that the res ipsa loquitur rule does not apply (1) unless the evidence shows, among other things, that the instrument causing the injury was not meddled with by the injured party; (2) where the evidence fails to negative the reasonable probability that the injury complained of resulted from some cause other than negligence of defendant; (3) that the rule has no application unless the circumstances surrounding the injury render it more probable that the injury was due to negligence of defendant than otherwise; (4) that under said rule a plaintiff will not be permitted to recover where it is merely presumed that a condition existed from which negligence and proximate cause may be presumed or inferred, but plaintiff is required to prove the facts from which negligence and proximate cause may reasonably be inferred.

Assuming that the evidence shows, or is sufficient to justify a finding, that deceased was killed by a charge of electricity coming from defendant’s high line, still the evidence fails to show what caused the charge of electricity to come from the high line and in contact with deceased, and fails to show a defective condition of defendant’s ground wire at the time deceased came on the scene on the day he was killed, does not show that the high line and ground wire were not meddled with by deceased or others (except by a showing that there were no hammer or “prized” marks on pole 22 — 2), and otherwise failed to show the conditions and circumstances existing at the time of injury, despite the fact that the only known witness who evidently knew what happened refused to disclose the facts to the witnesses who appeared at the scene very soon after the accident, did not testify, and his failure to testify was not accounted for, although he apparently was a friend of the deceased and the plaintiff.

Mere proof of an injury, in the absence of proof of the manner in which it was received, and the circumstances attending the occurrence thereof, is insufficient to warrant an inference of negligence on the part of a defendant, and to invoke the res ipsa loquitur doctrine.

In Texas & Pacific Coal Co. v. Kowsikowsiki, 103 Tex. 173, 125 S.W. 3, 4, where an employee was killed by the derailment of a car, Justice Williams said:

' “The derailment of the car, unexplained, is a fact which by its very nature may be admitted to suggest something amiss, 'a want of proper precaution somewhere. But what was the cause of the derailment? Until we can answer that question, we think it must be admitted that it is not shown by the evidence that the particular thing which caused this injury was in the exclusive management of the defendant. If everything that could reasonably be assigned as the cause of the derailment had: been wholly under the control of servants-of defendant other than the deceased himself, it might be inferred that the cause, whatever it was, consisted in some negligent act or omission of theirs. But we have a track, with its switches, and a motor car, defects in, or negligent management of, any of which might have brought about that which happened. The deceased himself had a hand in the management of the switches, and also in controlling the movements of the car, in so far as it depended on the giving of signals. Negligence is not to be imputed either to him or -to the defendant’s other servants without proof; and a state of facts in which the cause of the accident cannot be found does not warrant a conclusion that one, rather than the other, produced it. We cannot presume in favor of one and against the other. Evidence must be brought by a plaintiff, having the burden of proof, sufficient to-justify an inference of negligence on the part of the defendant, and none such can be drawn from an occurrence which, while indicating negligence somewhere, is as consistent' with the hypothesis that it was his own, or that of one in whose right he sues, as that it was that of the other party.
“Again it is said that the defendant was in a position to clear away all these doubts. This consideration has force where a plaintiff has proved a state of facts which, while not free from question, is yet sufficient, in the absence of explanation, to give rise to an inference of negligenec on the part of defendant. But it has no application where the facts shown are equally consistent, as they are in this case, with all these hypotheses, viz., that the injury was caused (1) by the negligence of deceased, or (2) by that of defendant, or (3) by that of both deceased and defendant. 6 Thompson on Neg. § 7698 and cases cited. The defendant certainly is not called upon to account for the conduct of the deceased.”

In McCray v. G., H. & S. A. Ry. Co., 89 Tex. 168, 34 S.W. 95, 96, our Supreme Court held that proof of the accident and injury alone were not sufficient to authorize a recovery, but that proof of the circumstances attending the injury may, without direct evidence, be sufficient to establish the fact of negligence. Judge Brown, in the opinion in said case, quoted from the opinion in Texas & N. O. Ry. Co. v. Crowder, 63 Tex. 502, as follows: “‘The burden of proof resting on a plaintiff upon the issues of negligence of the defendant and his own exercise of due care requires that he should show the facts surrounding and leading to the accident, and if from these, when shown, a jury may reasonably infer negligence in the defendant contributing to the injury, and the exercise of due care by the plaintiff, then he is entitled to a verdict; but, if he does not show how the accident occurred by which he was injured, by showing his own relation to it, and the other surrounding facts, some or all of which may appear from the character of the accident itself, then he has not gone with his evidence as far as the law requires him to go to authorize a recovery.’ ”

In Texas & N. O. Ry. Co. v. Crowder, 63 Tex. 502, Justice Stayton also said:

“As this case is presented, to assume that there is sufficient evidence to establish that the injury was caused by the negligence of the appellant, we would have to rely solely upon the fact that the part of •the track where the deceased was found may not have been in good order, when, if this be admitted, it is but a fact which may not in the slightest degree have caused the injury. That may have resulted solely from some negligent act of the deceased. What he was doing or attempting to do does not appear. Whether he went on the track in the discharge of his duties without knowledge of the defective condition of the track, or attempted to perform, some act not prudent while the train was in motion, or fell from the train through want of due care, the evidence does,not show.
“Many cases exist in which it has been held that evidence fully as strong as that found in the record is insufficient.”

In St. Louis, S. F. & T. Ry. Co. v. Cason, 59 Tex.Civ.App. 323, 129 S.W. 394, 398, Judge Speer stated the rule as follows : “The logical rule undoubtedly is that, unless the circumstances surrounding the injury render it more probable that the injury was due to the negligence of the defendant than otherwise, the act speaks nothing within itself and affords no just inference against the defendant, and the doctrine or res ipsa loquitur has no application to the case.”

In Galveston, H. & S. A. Ry. Co. v. Landeros, Tex.Civ.App., 264 S.W. 524, 527, Judge Graves said: “The net effect of this testimony, when boiled down, is that an injury to the man’s eye occurred under the general circumstances the two witnesses tell about, but, by all the authorities, proof of that fact alone, whether under the application of the rule of evidence designed by the phrase ‘the thing itself speaks,’ or otherwise, affords no evidence whatever of either negligence or responsibility for it; while direct proof is not necessary, there must at least be enough shown, in addition to the injury itself, to reasonably establish or justify the inference of a causal connection between it and some violated duty on the part of the one sought to be held.”

In Bonner v. Texas Co., 5 Cir., 89 F.2d 291, 294, the court said: “Since it does not appear what caused the explosion, one can only guess whether it was due to something that Bonner did or omitted, or to something not within his duty or control. Nor can it be said on the evidence whether the cause lay in the general conditions for which Texaco Can Company was responsible or in something suddenly done by the .Texas Company. When there is no direct evidence, and the proven circumstances are consistent with either of two theories, and there is nothing to show that one rather than the other is correct, neither is proven. If the plaintiff’s right must rest on only one of them, recovery cannot be had. * * Res ipsa loquitur does not help, for that doctrine applies only when the instrumen-talities causing injury are shown to have been wholly in the care of defendant, and not to have been meddled with by the person injured or outsiders.”

In United States v. Porter Bros. & Biffle, S Cir., 95 F.2d 694, 698, the court said:

“The doctrine of res ipsa loquitur is restricted in its application to cases where the defendant had exclusive control of the thing which caused the injury, the party injured was without fault, and the injury was such as in the ordinary course of things would not have occurred if the one having such control had used proper care. In the absence of an explanation in such cases, the court may presume that the injury arose from the defendant’s want of care, but the presumption does not reasonably follow unless all other conclusions are fairly excluded.”

In Paris & G. N. Ry. Co. v. Robinson, 53 Tex.Civ.App. 12, 114 S.W. 658, 662, the court said: “* * * the judgment should not be permitted to stand. For the record fails utterly to show how deceased got from the train and to his death. He may have jumped from the window or fallen from the platform. He may have been thrown by some one from a window or the platform. The doctrine of res ipsa loquitur does not apply. That doctrine has no application ‘unless the thing causing the accident is under the control of the defendant or his servants, and the accident is of a kind which does not ordinarily occur if due care has been exercised.’ 6 Thompson on Negligence, § 7635. Here the testimony fails to show what caused the accident. Until this primary fact was shown, an inference of negligence from it, of course, could not be drawn. It devolved on appel-lees, by evidence competent for the purpose, to show negligence on appellant’s part. No such evidence is in the record before us. It was contende'd in the argument that an inference of the existence of facts showing negligence might be drawn from the failure of appellant to show by its conductor and trainmen the knowledge, if any, possessed by them of the occurrence. But this, we think, could not be done. Until facts showing prima facie a liability on its part had been proven, appellant was not called upon to offer evidence at all.”

In Davis v. Castile, Tex.Com.App., 257 S.W. 870, 872, Judge German said:

“Again, where the evidence shows that the accident may have happened as the result of one of two or more causes, and it is not more reasonably probable that it was due to the negligence of the defendant than to any other cause, the rule of res ipsa loquitur does not apply. Patton v. Ry. Co, 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361. St. Louis, S. F. & T. Railway Co. v. Cason, 59 Tex.Civ.App. 323, 129 S.W. 394. Texas & P. Coal Co. v. Kowsikowsiki, supra.
“The Supreme Court of Wisconsin has recently stated this principle in this language :
“ ‘The jury could have done no more than guess as to whether the accident was the result of careless and negligent operation of the car or of the blowout. Verdicts cannot rest upon guess or conjecture. It is the duty of the plaintiff to prove negligence affirmatively; and, while the inferences allowed by the rule or doctrine of res ipsa loquitur constitute such proof, it is only where the circumstances leave no room for a different presumption that the maxim applies. When it .is shown that the accident might have happened as the result of one of two causes, the reason for the rule fails, and cannot be invoked.’ Klein v. Beeten, 169 Wis. 385, 172 N.W. 736, 5 A.L.R. 1237.”

We are of the opinion that the court did not err in rendering judgment for defendant. The cause of the accident is not shown. “ * * * a state of facts in which the cause of the accident cannot be found does not warrant a conclusion that one, rather than the other, produced it.” The facts shown “are equally consistent * * ⅜ with all these hypotheses, viz, that the injury was caused (1) by the negligence of deceased, or (2) by that of the defendant, or (3) by that of both deceased and defendant. * * * The defendant certainly is not called upon to account for the conduct of the deceased.” Texas & P. Coal Co. v. Kowsikowsiki, 103 Tex. 173, 175, 125 S.W. 3, 4. Plaintiff has not shown the facts surrounding and leading to the accident; having failed to show how the accident by which Alley was injured occurred, and having failed to show Alley’s relation to or connection with it, and having failed to show the condition of defendant’s property at the time deceased arrived on the scene, plaintiff’s evidence was insufficient to authorize a judgment against the defendant.

The evidence may be sufficient to justify a finding that deceased was killed by a charge of electricity emanating from defendant’s high line. The evidence wholly fails to show what caused the electricity to come from defendant’s high ling thirty feet in the air and in contact with deceased. Plaintiff’s expert witness testified: “I examined the poles, I found the nature of the construction of the high line on the Duncan property (rented by Alley) to be good construction.” The ground wires, which were buried in the ground the same depth as the poles, went up the poles to just below the bracket or standard on the upper insulator, and were looped around the top and stapled down on the outside of the poles. The ground wires were simply lightening rods about as big around as an ordinary pencil. The ground wires apparently were securely fastened to sound poles by approximately two inch staples about 24 to 30 inches apart. The ground wires and high lines were not insulated. Plaintiff’s expert witness testified: “Ground wires, in the proper construction, "are very seldom insulated in the country * * *. The top insulator is about six feet from the cross' arm. The ground wire runs up that pole to just below the upper insulator.” There is nó evidence that the ground wire on pole 22 — 2 was ever constructed or maintained differently than the way it was after it had been replaced subsequent to Alley’s death. There is no evidence that the ground wire had been dislodged from the pole at the top • and forced in contact with, or close proximity to, defendant’s high line, prior to the time deceased came on the scene. There is no evidence that the ground wire near the ground, or along the side of the pole, was loose from the pole and hanging there when deceased came to that place. From the evidence adduced the questions of how the accident occurred and what part deceased played in producing it, if any, if it had been submitted to a jury would have been purely matters for conjecture and. speculation by the jury. There was evidence that lightening could tear the ground wire loose from the pole. There was no evidence of lightening in that vicinity at any time. It would seem necessary to support plaintiff’s theory and proposition to presume that at the time plaintiff came upon the scene of the accident the ground wire on pole 22 — 2 was detached from the pole, and at the top had come in contact with defendant’s high line, and then from such (or similar) presumed facts infer that such presumed condition was the result of defendant’s negligence. This cannot be done. The facts from which negligence may be inferred must be proved and cannot be themselves, presumed. Smith v. Pennsylvania Ry. Co., 2 Cir., 239 F. 103; Davis v. Castile, Tex. Com.App., 257 S.W. 870; Patton v. Public Service R. Co., 3 Cir., 227 F. 810; Chicago, R. I. & G. Ry. Co. v. Rhone, Tex.Civ.App., 105 S.W.2d 707; Missouri Pac. Ry. Co. v. Porter, 73 Tex. 304, 11 S.W. 324; Johnson v. Texas & P. Ry. Co., Tex.Civ.App., 117 S.W.2d 864; Community Natural Gas Co. v. Henley, Tex.Com.App., 24 S.W.2d 10.

The witnesses who saw the wire on the deceased’s body and brushed it off and who say that one end was on, or in,, his hand and the other end across the wire fence, do not attempt to say that it was defendant’s ground wire, or that said wire was charged with electricity. From their testimony it may as reasonably be inferred that said wire was a piece of the fence, or some wire taken there by deceased, as to presume or infer it was defendant’s ground wire. The testimony of all of plaintiff’s witnesses who testified relative thereto show that the wire, which immediately after the accident was found running from deceased’s hand to the fence, was removed from the premises soon after the accident. Yet plaintiff produced on the trial a ground wire found by Barkley, four to six inches from pole 22 — 2, two years after Alley’s death. But, assuming that the evidence is sufficient to sustain a finding that it was defendant’s ground wire that was found on defendant and running from his hand to the fence, we think the evidence still is insufficient to authorize a recovery.

The cause of the accident is not shown. 45 C.J. 1200; Texas & P. Ry. Co. v. Kowsikowsiki, 102 Tex. 173, 125 S.W. 3; Paris & G. N. Ry. Co. v. Robinson, 53 Tex.Civ.App. 12, 114 S.W. 658; Galveston, H. & S. A. Ry. Co. v. Landeros, Tex.Civ.App.,. 264 S.W. 524. The circumstances surrounding the injury and defendant’s connection and relation thereto are not shown. 45 C.J. 1200; Texas & N. O. Ry. Co. v. Crowder, 63 Tex. 502, 504. It is not shown that the high line or ground wire was not tampered or meddled with by deceased or others. Johnson v. T. & P. Ry. Co., Tex.Civ.App., 117 S.W.2d 864; Bonner v. Texas Co., 5 Cir., 89 F.2d 291; Blanton v. Great A. & P. Tea Co., 5 Cir., 61 F.2d 427; United States v. Porter Bros. & Biffle, 5 Cir., 95 F.2d 694, 698. The condition of defendant’s property when Alley came on the scene is not shown. In other words, the facts surrounding and leading to the accident from which a jury might reasonably infer negligence in the defendant, are not shown. The meager facts shown are as consistent with the hypotheses that the injury was caused by the negligence of the deceased as the negligence of the defendant. Davis v. Castile, Tex.Com.App., 257 S.W. 870; 30 Tex.Jur. 805. A verdict based on such evidence could only be based upon conjecture and speculation. Houston, E. & W. T. Ry. Co. v. McHowell, Tex.Civ.App., 278 S.W. 258, 261; Mauk v. Texas Pipe Line Co., Tex.Civ.App., 93 S.W.2d 820. Furthermore, here it is apparent there was an eye witness to the unfortunate accident who could testify as to what happened, thus obviating the necessity of reliance upon the res ipsa loquitur doctrine. A plaintiff must produce all available evidence before he is permitted to rely upon that doctrine. 45 C.J. 1200.

The judgment is affirmed.


source: Caselaw Access Project

author: MONTEITH, Chief Justice.

license: Public Domain

text:
    GULF, C. & S. F. RY. CO. v. SKLAR.
    No. 10891.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 23, 1939.
    Rehearing Denied Dee. 21, 1939.

      Peareson & Peareson, of Richmond, and Terry, Cavin & Mills and Rupert R. Harkrider, all of Galveston, for appellant.
    Helene G. Daily and Alexander T. Sid-man, both of Houston, for appellee.
   MONTEITH, Chief Justice.

This is an appeal in an action brought by appelleé, Louis Sklar, against appellant, Gulf, Colorado & Santa Fe Railway Company, for damages to a shipment of cattle over appellant’s line from Hitchcock, Texas, to Bowring, Oklahoma.

Appellee alleged that on April 3, 1936, he delivered to appellant 34 head of stock in sound condition for shipment from Hitchcock, Texas, to Bowring, Oklahoma; that during such shipment they were in the exclusive control of defendant’s employes and wholly out of plaintiff’s possession; that defendant delivered only 21 head of cattle to consignee at Bowring, Oklahoma; that of the 21 head delivered 2 died and the remaining 19 head were delivered in a damaged condition; that the death and injuries of said cattle were due to the negligence of the defendant and its connecting carriers in failing to exercise proper and ordinary care incumbent upon it, but that the peculiar acts or omissions of such negligence were peculiarly within the knowledge of the defendant and unknown to plaintiff and that he could not state them with greater certainty.

Appellant answered by general demurrer, general denial, and special exceptions. It specially alleged that immediately prior to shipment the cattle were dipped by some one other than appellant in an ar-senical solution while the cattle were overheated, tired, and excited by improper driving and handling; that as a result the cattle were poisoned in some manner unknown to defendant, and that the death and injury to said cattle were the result of said poisoning and the inherent propensities, character and vices of the cattle. Appellant alleged that said cattle were transported in cars which were in proper condition, including proper bedding; that appellee accepted the cars in which they were shipped and that he is thereby es-topped to recover any damages for injuries which resulted from the condition of said car or its bedding. Appellant also pled the two year statute of limitation.

The case was tried before a jury, who, in answer to special issues submitted, found that defendant failed to properly bed the cars; that it handled the cattle in an unnecessarily rough manner; that it discovered at Gainesville, Texas, that the cattle required the services of a veterinary and that it failed to obtain such services for them. In each instance the acts alleged were found to constitute negligence and such negligence was found to be a proximate cause of the injuries and death of the cattle. The jury also found that the cattle were in good condition when loaded and that the 15 head that died were reasonably worth $35 per head at Bowring, Oklahoma; that the difference between the 19 head delivered in good condition and in the condition in which they were delivered was $15 per head. The jury found that the cattle did not suffer from arsenical poison, and that the inherent vices, propensities, and characteristics of the cattle did not proximately cause the death or injuries suffered. Based on the above findings, judgment was rendered in favor of plaintiff and against ■ defendant in the sum of $937.98.

The record shows that appellee, through his employee, Dick Koy, purchased the 34 head of Brahma type cattle in question from one Fred Benson; that they were driven from the Benson pasture at Hulen Park to the railroad pens at Hitchcock, Texas, a distance of between 4 and 5 miles, leaving Hulen Park at about 9 o’clock in the morning on April 3d and arriving at Hitchcock at about 3 o’clock in the afternoon. On arrival at the railroad pens the cattle were branded, their horns were tipped, and they were dipped in an arsenical solution under the -supervision of a Government inspector. The dipping of the cattle was completed at about 5 o’clock, after which they were left in the pens until about 9 o’clock that night, when they were loaded into a cattle car furnished by appellant. The cattle showed no unusual signs of being tired or excited when they arrived at the railroad pens at Hitchcock.

The car in which the cattle were first loaded left Hitchcock at 9 o’clock P. M. on April 3d; it arrived at Bellville on April 4th, and was there unloaded and the cattle placed in another car. It arrived at Gainesville on the morning of April Sth. Here the cattle were unloaded but reloaded on the following morning in the same car. The car arrived at Bow-ring, Oklahoma, on the afternoon of April 7th.

The car in which the cattle were loaded was bedded with sand by appellant prior to its arrival at Hitchcock. Certain witnesses testified that the bedding was not over an inch and a half in thickness, while others testified that it was more than three inches in depth. There is no testimony by witnesses of appellee as to the condition of the car loaded at Bellville, though appellant’s witnesses testified that the car was properly bedded. There is testimony that a bedding of sand is put in the bottom of cattle cars to prevent them from getting wet and to keep the cattle from slipping down. Cattle were down in both cars at various points between Hitchcock and Bowring.

The cattle reached Gainesville on the morning of April 5th. Three head were dead on its arrival and five were down. The agent of appellant did not call a veterinarian to treat said cattle until the following morning, at which time six more of the cattle were found to be dead. Appellant introduced testimony to the effect that the injuries and death of said cattle were due to arsenical poisoning.

The cattle in question were shipped under what is known as a “Uniform LiveStock” contract. It is uncontroverted that no caretaker accompanied the shipment.

It is now the established law of this state that where a caretaker does not accompany a shipment of cattle, delivery to the carrier and redelivery by the carrier to the shipper at destination in. an injured condition raises a presumption of negligence by the carrier which it must disprove. Gulf, C. & S. F. Ry. Co. v. Taylor, Tex.Civ.App., 101 S.W.2d 642; Pecos & N. T. Ry. Co. v. Brooks, Tex.Civ.App., 145 S.W. 649; Gulf, C. & S. F. Ry. Co. v. King, Tex.Civ.App., 174 S.W. 960; Galveston, H. & S. A. Ry. Co. v. Neville, Tex.Civ.App., 272 S.W. 597.

This rule is followed in 8 Texas Jurisprudence, page 553, section 386, which reads: “Where it is shown that live stock were delivered to the carrier in good condition, that the shipper or his agent did not accompany them under a contract to care for them during transit, and that they ar-' rived at destination dead or in injured condition, negligence is ordinarily presumed to the extent that the shipper is said to have made out a prima facie case. The burden of proof is then upon the carrier to overcome this presumption by proof that death or injury resulted from independent causes or acts for which it was in no way responsible.”

Further, it has been definitely established in this state that the carrier must furnish to the shipper. cars suitable for the purpose intended, and that if the cars furnished can only be made reasonably suitable and safe by bedding them with sand, it is the carrier’s duty to provide that bedding. Kansas City, M. & O. Ry. Co. v. Weatherby, Tex.Civ.App., 203 S.W. 793; Mexico N. W. Ry. Co. v. Williams, Tex.Com.App., 229 S.W. 476. It is held that if the carrier undertakes to bed the cars, whether bound to do so or not, it must exercise at least ordinary care to see that the bedding is properly done, Texas & Pac. Ry. Co. v. Thorp, Tex.Civ.App., 198 S.W. 335; Houston & T. C. Ry. Co. v. Mayes, 44 Tex.Civ.App. 31, 97 S.W. 318, and that the carrier is liable for damages resulting from his own negligence in failing to properly bed the cars; 8 Tex. Jur. page 465, sec. 314; Gulf C. & S. F. Ry. Co. v. Cunningham, 51 Tex.Civ.App. 368, 113 S.W. 767; 13 Corpus Juris Secun-dum Carriers, p. 100, § 54.

In the instant case appellee pled and the jury found, on evidence which is deemed to be sufficient, that the cattle were delivered to the carrier in good shipping condition and in apparently good health. The evidence is uncontroverted that when the cattle were redelivered to consignee at destination a number of said cattle were dead and others injured.

No representative of the shipper accompanied the cattle in transit. The shipper was, therefore, without means of knowing or proving the manner or condition in and under which the cattle were transported. Under the above authorities the burden of proving these facts rested upon the carrier and upon its failure to meet this burden, appellant cannot complain because judgment was rendered in favor of appellee.

While the carrier pled the affirmative defense that the injury and death among the cattle was due to arsenical poisoning .caused by dipping, and to the inherent propensities, character and vices of the •cattle, and pled specially that the cattle were transported in cars which were in proper condition, including proper bedding, the jury found in answer to issues submitted that the injuries and death of said cattle were not due either to arsenical poisoning or inherent vices or propensities of the cattle; and they further found that appellant was negligent in failing to properly bed said cars; that it handled said cattle in an unnecessarily 'rough manner, and that it failed to obtain medical services for them at Gainesville;. that such failure in each instance was negligence, and that such negligence was a proximate cause of the damages complained of.

Under the above facts the only question to be determined by this court is whether there was sufficient evidence to support the jury’s findings on said issues. We conclude that, while this court might not have answered all of said questions as the jury did, there was enough evidence under each issue to support the jury’s findings.

Appellant contends that the court committed reversible error in not sustaining its special exception, to the effect that no specific acts of negligence were alleged by appellee. We cannot sustain this contention.

In the recent case of Gulf, C. & S. F. Ry. Co. v. Taylor, Tex.Civ.App., 101 S.W.2d 642; appellee therein also sought recovery of damages based on the common" liability of the common carriers, alleging that he delivered his cattle to the initial carrier at the point of origin in good condition, and that they were redelivered by the carrier at destination with a portion of said cattle dead and others injured. The court, in passing on the exact question raised by appellant here, said:

“Nowhere in its answer did appellant plead that the cattle were in charge of a caretaker, nor seek to place the burden upon appellee to show specific acts of negligence for that reason. Nor did its contract undertake to do so. In addition to pleading negligence generally, appellee also alleged that he was unable to state specifically the acts of negligence alleged, but that same were well known to appellant, its servants and agents.

“The general rules are now well settled that, where' a caretaker does not accompany a shipment of cattle, delivery to the carrier in good condition and redelivery by the carrier to the shipper at destination in an injured condition raises a presumption of negligence by the carrier which it must disprove.”

In the instant case no caretaker accompanied the shipment of cattle.

Appellant further assigns error' in the action of the court in submitting to the jury the issue of defendant’s negligence in failing to properly bed the cars in which the cattle were shipped, and in refusing to submit defendant’s specially requested issue No. 4 as to whether ap-pellee knew of the condition of the bedding in said car before it left Hitchcock, on the ground that it had alleged and the evidence showed that appellee and his agents “knew of the condition of said bedding prior to the loading of said cattle, and that therefore he was precluded from recovering damages caused thereby.”

There are no allegations in appellant’s pleadings that appellee knew of the bedding of said car, nor are there allegations to the effect that appellee had knowledge of the condition of said bedding through the instrumentality of his agents.

Appellant pled, in connection with the transportation of said cattle, “that it transported or caused same to be transported in cars which were then in proper condition, including proper bedding”, and “that the plaintiff accepted the car in which said cattle were loaded at Hitchcock in its then condition, and if any injury to said cattle occurred by reason of the condition of said car or the bedding thereof, which is not admitted but denied, the plaintiff, under the conditions of said contract, is estopped thereby to recover any damages for injuries which resulted from any condition of said car.”

The contract referred to in the above quoted portion of defendant’s pleadings is a “Uniform Live-Stock” contract under which the cattle were shipped.' An éx-amination of this instrument discloses that it contains no provision' that the shipper by accepting the car estops himself from recovering damages resulting from its improper bedding.

The jury found the appellant guilty of negligence in failing to properly bed said car and that such negligence was a proximate cause of the injuries and death of said cattle.

In support of its contention that, since appellee and/or his agent, Dick Koy, knew of or had an opportunity to discover the condition of the bedding in said car, and that by reason of said fact he is chargeable with knowledge of the ' condition thereof and is estopped to claim damages by reason of its insufficiency, appellant cites the following cases: Kansas City, M. & O. Ry. Co. of Texas v. Moore, Tex.Civ.App., 11 S.W.2d 335; Kansas City, M. & O. Ry. Co. v. Weatherby, Tex.Civ.App., 203 S.W. 793, and Texas Central Ry. Co. v. O’Laughlin, Tex.Civ.App., 72 S.W. 610.

From an analysis of the facts in the three cases above referred to, we find that in each case the issue as to plaintiff’s knowledge as to the condition of the cars in which the cattle were shipped was raised by both the pleadings and the evidence. They hold that, being aware of the extent and condition of the bedding of the cars, and said issue having been raised by both pleadings and evidence, the appellees were estopped from claiming damages by reason thereof.

In the instant case, in the absence of either pleading or evidence in the record that either appellee or his acknowledged agent, Dick Koy, had actual knowledge of the condition or extent of the bedding in said car, and in the absence of a finding, or the request for the submission of an issue as to whether the parties who did testify in reference to the condition of said bedding were the agents of appellee, appellant having pled that the bedding in the car in which the cattle were shipped was in proper condition, we think that the court was justified in submitting the issue as to defendant’s negligence in failing to properly bed said car, and in refusing to submit appellant’s specially requested issue No. 4 as to whether appellee knew of the condition of said bedding.

We cannot sustain appellant’s contention that the court erred in refusing to submit its requested issue No. 5, as to whether plaintiff had opportunity to ascertain the condition of the bedding of the car in which the cattle were loaded before it left Hitchcock, and in refusing to submit its requested issue No. 5a, as to whether an ordinarily prudent person' would have examined the condition of the car at Hitchcock prior to its being loaded.'

While it has been held that where a shipper’s knowledge of the condition and extent of the bedding in a car is raised by the pleadings and evidence and it is shown that he accepted or acquiesced in the same when the cars were loaded, the carrier would not be liable for injuries'resulting to the cattle by reason of the improper bedding, we know of no rule which makes it the duty of a shipper of livestock, in the’ absence of an express contract to do so, to inspect the bedding of cars prior to shipment.

Further, while the record shows that both appellee and his acknowledged agent, Dick Koy, were present when said cattle were being loaded, there is neither pleading nor proof that either had actual knowledge of the condition or extent of the bedding of said car. The jury found, in answer to issues submitted, that appellant was negligent in failing to properly bed said car and that such negligence was a proximate cause of the injuries and death of the cattle.

Under the above facts, we think that the court’s action in refusing to submit appellant’s requested issues No.s. 5 and 5a should be sustained.

Other assignments are presented by appellant in its brief. We think, however, that our disposition of what we consider to be the controlling assignments in the case above discussed render the remaining assignments immaterial, and that the judgment of the trial court should be in all things affirmed.

Affirmed.


author: HIGGINS, Justice.

text:
    FLETCHER v. OLIVAS.
    No. 3909.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 23, 1939.
    Rehearing Denied Dec. 21, 1939.
    C. W. Croom, of Houston, for appellant.
    Fryer & Milstead and W. Joe Bryan, all of El Paso, for appellee.
   HIGGINS, Justice.

This is a suit by Jose Olivas against Bob Fletcher to recover $105 and an attorney’s fee of $20. Upon trial without a jury Oli-vas recovered judgment for $105.

Olivas was employed in the construction of a public work financed by grant from the Urjited ■ States. Lee Moor Contracting Company was the contractor constructing the work. Time checks were issued daily to Olivas by said Company. Weekly pay checks were issued to him by said Company, which were endorsed by Olivas and delivered to Fletcher, who cashed same and accounted to Olivas for much less than the amount of the pay checks. Olivas is an illiterate Mexican and evidently quite ignorant. He was induced to endorse and deliver the checks to Fletcher upon the latter’s false statement to him that the checks had to be endorsed and returned to the Government because he (Olivas) was not a citizen of the United States. The money was not returned to the Government.

Viewed in its aspect most favorable to Olivas, the evidence supports the view the facts are as briefly stated above.

We regard the evidence as showing that Fletcher obtained the endorsement and delivery of the pay checks to him through the false and fraudulent statements indicated. In our opinion it shows a cause of action in favor of Olivas based upon fraud, and judgment was properly rendered for the money collected upon the pay checks by Fletcher and withheld from Olivas.

Chief Justice PRICE did not participate in the disposition of this appeal.

Affirmed.


author: GALLAGHER, Chief Justice.

text:
    PANCAKE v. KANSAS CITY LIFE INS. CO.
    No. 2165.
    Court of Civil Appeals of Texas. Waco.
    Dec. 7, 1939.

      J. D. Brown, Jr., of Gatesville, and Geo. W. Barcus, of Austin, for appellant.
    Hamilton, Lipscomb, Wood & Swift, of Dallas, for appellee.
   GALLAGHER, Chief Justice.

This appeal is prosecuted from an order of the court dissolving a temporary injunction. The motion to dissolve was heard on the sworn pleadings of the parties without the introduction of evidence. There was little, if any, conflict in the allegations made by the respective parties in their said pleadings, which showed the facts hereinafter recited.

J. R. Pancake, a party plaintiff in the court below, on and prior ■ to August 4, 1936, owned a tract of land in Coryell county, Texas, which tract was encumbered with a lien to secure an indebtedness of approximately $10,000 owed by him to ap-pellee, Kansas City Life Insurance Company. Said Life Insurance Company, on that day, in the district court of Coryell county, recovered judgment against said J. R. Pancake for its debt and for foreclosure of its lien on said tract of land. An order for the issuance of proper process to enforce said judgment and lien was incorporated therein. An order of sale was, issued on said judgment, and, according to the allegations of said Life Insurance Company, through inadvertence and mistake, said land was, on October 6, 1936, sold thereunder to N. Foote. Said Life Insurance Company, on October 16, 1936, filed suit in the federal district court at Waco asking that said sale be set aside. The statutory lis pendens notice was filed the same day. On March 22, 1937, said court entered an order setting said sale aside. An appeal was prosecuted from said order but the same was afterwards affirmed. The date of such affirmance is not shown. Sometime thereafter an order of sale on the original judgment in favor of the Life Insurance Company against J. R. Pancake was duly issued, but before a sale thereunder could be made, J. R. Pancake filed in the federal district court a petition under the statutes relating to bankruptcy for extension and compromise of his indebtedness. A hearing thereon was had and an order entered by said court authorizing the Life Insurance Company to proceed with the collection of its judgment. Another order of sale was issued and said land sold to the Life Insurance Company. It was not placed in possession thereof because of the pendency of negotiations between the Life Insurance Company and J. R. Pancake for the lease of said land. Said negotiations failed and the Life Insurance Company sued out a writ of possession, the execution of which was, on the 19th day of October, 1938, restrained by the issuance of the temporary injunction here under consideration.

Appellant Pat Pancake and his father, the said J. R. Pancake, joined in the application for said injunction. Pat Pancake claimed that he, believing said Foote to be the owner of said land, rented the same from him for the years 1938 and 1939; that he had resided and raised crops thereon during the year 1938 and had a right to continue to cultivate and reside on said land during the year 1939. Pat Pancake was a minor son of J. R. Pancake. He alleged that the rental contract made by him with Foote was ratified and confirmed by his father, J. R. Pancake, and that either his said father or the said Foote, one or both, had the record title to said property. He did not allege the date of said rental contract nor that the same was in writing. The Life Insurance Company, in its motion to dissolve, assailed said rental contract on the ground that it was void under the statute of frauds, Vernon’s Ann. Civ. St. art. 3995, and also alleged that said Pat Pancake had at all times since the beginning of said original litigation, had actual and constructive knowledge of its rights in and to said premises.

The only ground for injunctive relief presented by J. R. Pancake was that he owned a tract of land adjoining the tract described in the judgment of foreclosure and the said writ of possession issued thereon, and that the Life Insurance Company and the sheriff in whose hands said writ of possession was placed for execution were wrongfully claiming that said adjoining tract owned by him was a part of the tract foreclosed upon and threatening to dispossess him of the same under said writ. No other claim was asserted by J. R. Pancake.

The hearing on the motion to dissolve said temporary injunction was held on the 5th day of December, 1938, and the court found that the same was improvidently granted in so far as it restrained the execution of the writ of possession as to the property described in the judgment of foreclosure,- and to that extent dissolved the same. Said injunction was continued in full force and effect as to the 50 acres of land which said J. R. Pancake claimed was not embraced within the description in the judgment of foreclosure and in the writ of possession which the Life Insurance Company was seeking to have executed.

Pat Pancake appealed from said order of dissolution. The court fixed a super-sedeas bond in the sum of $1,000, which was given. The court thereupon directed that the execution of the writ of possession as to the property described therein be stayed pending this appeal.

The allegations made by appellant Pat Pancake both in his, original and supplemental petitions are very vague. There is nothing to indicate that Foote was ever put in actual possession of the property by the sheriff. Within ten days after the sale to him the same was assailed by suit in the federal district court, which was more than a year .before the two -year rental term claimed by appellant began. Appellant made no attempt to relieve his rental contract with Foote of any implication that it was void under the statute of frauds, as contended by appellee; neither did he deny that he had actual knowledge of the litigation from its inception continuously until the date of the hearing herein.

The judgment rendered in a foreclosure suit is conclusive and binding not only on the parties to the action in which it was rendered, but also on all parties who are in privity with them in respect to the subject matter of the litigation, and in this connection, “privity” means mutual or successive relationship to the same rights of property, and all parties are privies to the judgment whose succession’ to rights of property therein adjudicated are affected or were derived through or under one or more parties to the action and accrued subsequent to the commencement of the suit. R.S. Art. 2219; Morrison v. Cloud, Tex.Civ.App., 13 S.W.2d 735, 736, 737, pars. 1 and 2, and authorities there cited; Latta v. Wiley, Tex.Civ.App., 92 S.W. 433, writ refused; Morris v. Morgan, 92 Tex. 92, 45 S.W. 1002; Rio Bravo Oil Co. v. Hebert, 130 Tex. 1, 106 S.W.2d 242, 246, pars. 5 and 6, and authorities there cited. Under the foregoing authorities, the Life Insurance Company’s judgment against J. R. Pancake and its writ of possession to enforce the same were valid and binding against appellant Pat Pancake.

The granting, refusing or dissolving of a temporary injunction is largely within the sound discretion of the trial court and will not be revised unless an abuse of discretion is apparent. Houston Electric Co. v. Mayor and City Council of City of Houston, Tex.Civ.App., 212 S.W. 198, par. 1; Dilworth v. Buchanan, Tex.Civ.App., 275 S.W. 177, par. 1; Sheppard v. Jacksboro Refining Co., Tex.Civ.App., 123 S.W.2d 497, 500, par. 7, and authorities there cited; City of Waco v. Grimes, Tex.Civ.App., 279 S.W. 312, par. 2. We can not say that the trial court, under the record here presented, abused his discretion in holding that the temporary writ was improvidently granted and in dissolving the same as to appellant. The judgment is therefore affirmed.


author: JACKSON, Chief Justice.

text:
    PANHANDLE CONST. CO. v. HEAD et al.
    No. 5064.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 16, 1939.
    Rehearing Denied Nov. 13, 1939.
    Robert A. Sowder, of Lubbock, for appellant.
    George W. Neill and R. L. Graves, both of Brownfield, for appellees.
   JACKSON, Chief Justice.

The record discloses that on December 4, 1922, W. J. Head, by a proper deed of conveyance, acquired the title to Lot 16 in Block No. 22 in the original town of Brownfield in Terry County, Texas. Mr. Head was a barber by trade and some time after the acquisition of this lot, time not shown, he had erected thereon a building suitable for and in which to conduct his tonsorial business. On March 27, 1930, subsequent to the erection of the building, the city of Brownfield, after having complied with the paving procedure, executed and delivered to the Panhandle Construe-' tion Company and its assigns a certificate of special assessment for the pro rata -cost of paving Lot No. 16, which had a frontage of twenty-five feet on Main Street.: The action of the officials of the city evidenced by the certificate created'a personal debt against Mr. Head for the cost and attempted to fix against the lot a lien to secure the payment of the debt.

The Panhandle Construction Company sold, transferred and delivered the assessment certificate to the Realty Trust Company for a valuable consideration.

Mr. Head made default in the payment of the indebtedness and the Realty Trust Company instituted suit, Cause No. 1617, in the District Court of Terry County to recover a judgment for the debt and for foreclosure of its alleged lien on the lot. On February 2, 1932, on the findings of a jury, the court rendered judgment against Mr. Head for the sum of $354.64 principal, interest and attorney’s fees but denied a foreclosure of the asserted paving lien “by reason of said property being now and at all times in dispute the business homestead of the defendant, W. J. Head”.

This judgment became final and the Realty Trust Company on March 12, 1932 caused an abstract thereof to be filed, recorded and indexed in Terry County, as the law requires, and on September 29, 1932 execution was issued on the judgment and returned “nothing found”. On the next day, September 30th, the Realty Trust Company for a valuable consideration re-transferred and re-assigned the judgment to the Panhandle Construction Company.

W. J. Head died November 26, 1933 and on May 11, 1937 the Panhandle Construction Company, the appellant herein, instituted this suit on the personal judgment obtained in Cause No. 1617 by the Realty Trust Company against the appellees, Lottie Head, Carrie Head Williams and her husband, Bud Williams, Layula Head Bonner and her husband, R. C. Bonner, Julia Head Patterson and her husband, Theron Patterson, Lester Lee Head, the widow and David Kent Plead and Jack Quiline Head, the minor children of Virgil, the deceased son of W. J. Head and Lottie Head.

• The appellant alleged that W. J. Head died intestate; that no administration was had on his estate and none was necessary; that Lottie Head was his surviving wife and the other named appellees constituted all the heirs of the deceased. It pleaded that by reason of the legal procedure, the paving- certificate, the judgment thereon in Cause No. 1617 and the proper record of the abstract thereof, appellant had a valid and subsisting lien against the entire lot, which it sought to foreclose, but if its lien did not include the entire lot, then it asked in the alternative that its lien be foreclosed on the one-half interest therein which descended to the heirs of W. J. Head as his interest in the community estate of himself and wife.

A guardian ad litem was appointed for the minors and they, together with all the other appellees, answered by a plea of res judicata, the basis of which was the decree in Cause No. 1617 that adjudged the premises involved to be the business homestead of the deceased and his surviving wife, and pleaded the premises was the business homestead of W. j! Head at the time of his death.

The case was submitted to the court without the intervention of a jury and the court decreed that the judgment in Cause No. 1617 did not constitute a lien on the lot and premises since the property was the business homestead of W. J. Head, deceased, when he died and adjudged that the abstract of judgment be cancelled and annulled, and appellant appealed.

The testimony shows that the wife had no separate property; that the deceased died leaving no property, either separate or community, except a residence homestead and the property involved in this suit; that no administration was had on the estate of the deceased and none was necessary; that he left surviving him all the appellees, including the wife, Lottie Head, and an unmarried daughter, Julia, later Mrs. Patterson, who continued to occupy the residence homestead as a family.

On February 2, 1932, in Cause No. 1617, the lot and improvements thereon were adjudged to be the business homestead of W. J. Head and his wife, and unless the property was abandoned as such homestead by W. J. Head between that time and the date of his death on November 26, 1933 his interest in such homestead passed to his children free from the lien asserted since it is not contended that the debt secured was for taxes, purchase money or improvements.

The law is apparently settled that “When the deceased leaves a surviving husband, or wife, or a surviving minor child, or children, or a surviving unmarried daughter, or daughters remaining with the family, no creditor of the estate of the deceased can as against any survivor, heir or devisee, appropriate any portion of the homestead property to the satisfaction of such debt, unless the debt be one that is secured by a valid lien on the homestead, as against the deceased.” Nunn’s Texas Homestead and Other Exemptions, page 264.

In L. T. Stanley Estate v. First Nat. Bank of Cooper, Tex.Civ.App., 24 S.W.2d 440, 442, writ refused, the court says: “It is the established rule in this state that, in virtue of the constitution and laws of this state, the homestead on the death of the owner descends and vests absolutely in the heirs if a constituent member of the family survives, and is not assets subject to the payment of the simple debts of the decedent.”

See, also, article 16, sections 50 and 52 of the Constitution of Texas, Vernon’s Ann.St.; article 3499, R.C.S.1925; L. A. Clift v. Kaufman & Runge, 60 Tex. 64; Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S.W. 485; Cameron v. Morris, 83 Tex. 14, 18 S.W. 422; Ward et al. v. Hinkle et al., 117 Tex. 566, 8 S.W.2d 641. This law is approved by Chief Justice Cureton in Johnson et al. v. Hampton, 117 Tex. 580, 8 S.W.2d 640, in the following language : “When Grant Collins died, his interest in the homestead passed to the children free of all debts and charges of every kind and character, except those specially permitted by the Constitution.”

The property was adjudicated to be the business homestead of W. J. Head and wife on February 2, 1932 and the burden was on appellant to prove that W. J. Head abandoned such homestead before his death on November 26, 1933.

The rules for determining whether the residence homestead or the business homestead has been abandoned are substantially the same though greater or less weight may be given to similar facts and circumstances in the one or the other, but the rules that the homestead laws must be liberally construed to effectuate their purpose and that once acquired the homestead right can be defeated only by showing abandonment apply equally in both instances.

The lot and house involved is the community property of Lottie Head and her deceased husband.

Mr. Head had tuberculosis and the health authorities refused to issue the health certificate required to • authorize him to operate a barber shop and for that reason, . though the building was erected for that purpose, he never operated a shop therein; however, but for the legal restriction he was physically able to have done so until about three years before he died. He had an office in the building where he transacted a real estate business, acted as a clerk of the Woodmen of the World and conducted a storage business, allowing people who desired such accommodation and would pay therefor to store their automobiles in the building and get them at their convenience. He continued to use the building in this manner until shortly before he went to the tubercular hospital for Woodmen situated at San Antonio, Texas in April, 1931, and a little while before leaving he rented the building to different tenants for short terms. He was advised before he left for the hospital by his physicians the nature of his malady and that he could not recover. He returned to his home before he died and while never confined to his bed all the .time, was never able to do any work but during the three years of his complete inability to labor before he died he frequently said that if he could get on his feet he would use the building to operate some business that the law did not prohibit on account of his health. 'He knew his condition was serious and doubted that he would ever recover but he hoped to the last that if he did. not recover he would improve in health to such an extent that he could engage in some business and intended to use the building in which to conduct such business when and if- his physical condition permitted. Had his health permitted he could have occupied the building, re-entered business as a real estate broker and conducted a storage business without the necessity of capital. Bowman v. Watson, 66 Tex. 295, 1 S.W. 273.

It is manifest that the deceased did not voluntarily abandon the property as his •business homestead. It is equally obvious that he ceased to occupy and conduct his ■business in the house for the reason that he was physically unable to do so.

The law apparently is that the owner of a business homestead who because of ill health ceases to conduct a business therein and rents such property to others temporarily does not subject the property to forced sale.

In Malone et al. v. Kornrumpf et ux., 84 Tex. 454, 19 S.W. 607, 608, the Supreme Court says: “The husband, Edward Korn-rumpf,' pursued his business calling in the -saloon building on the lot 22 until ill health compelled a cessation of his business. There was no voluntary abandonment of the use of the property as a place for the exercise of his business vocation, nor was there any attempt to embark in any other enterprise or pursuit which the exempt property was not adapted to. On the contrary, the proof is that his intention was to resume business as soon as his health would enable him to do so. There was no vague purpose on his part, at some indefinite time in ’ the future, to re-embark in his former business, dependent solely on his financial ability to .do so. Neither do the facts show 'an intention to permanently rent the property, thus bringing the case within the operation of the principal so clearly announced in Wynne v. Hudson [66 Tex. 1, 17 S.W. 110], supra.”

In Mealy et al. v. Lipp et al., 16 Tex. Civ.App. 163, 40 S.W. 824, 826, the court says: “There was no error in the court's holding that the property in controversy was the homestead of -Henry Lipp and his children. When a man, from sickness, leaves his home and goes to the house of a neighbor to be cared for, and dies there, his little daughter, from necessity, leaves the parental roof to earn by her own hands a living, and his little son is sent for shelter to the home of a relative, the homestead is not abandoned, and cannot, in Texas, be taken from the children. There is no error, as to appellants, in the judgment, and it is affirmed.”

See, also, Gulf Production Co. et al. v. Continental Oil Co. et al., Tex.Sup., 132 S.W.2d 553, by Chief Justice Cureton; Cooper v. Basham et al., Tex.Sup., 19 S.W. 704; Blaylock et al. v. Slocomb, Tex.Civ.App., 250 S.W. 218; Lewis et al. v. Pitts et al., Tex.Civ.App., 275 S.W. 473; Federal Petroleum Company v. Pittman, Tex.Civ.App., 65 S.W.2d 359; Houston Chronicle Publishing Co. v. Allen, Tex.Civ.App., 70 S.W.2d 482.

The court in his filed findings of fact found that the deceased was a victim of tuberculosis and from the time of the judgment in Cause No. 1617 was physically unable to use the property personally as a place of business but during all that time his hope and intention was when 'and if he regained his health to use the property as a business homestead in some line of business; that he acquired no other place, took up no other occupation except to engage in the real estate and storage business in the building for a while, after which the place was rented up to his death and, in effect, that there was no abandonment of the homestead.

Under this record and the authorities we do not feel warranted in holding that the decision of the court was without support in the testimony. The judgment is therefore affirmed.


author: FOLLEY, Justice.

text:
    AMERICAN NAT. BANK v. REED.
    No. 5079.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1939.
    Rehearing Denied Dee. 18, 1939.

      Adkins, Pipkin, Madden & Keffer and H. C. Pipkin, Jr., all of Amarillo, for appellant.
    W. F. Nix, of Amarillo, for appellee.
   FOLLEY, Justice.

The appellant, American National Bank, is a national banking corporation of Amarillo, Texas. The appellee, O. S. Reed, is •engaged in the produce, business in the same city and during the month of July, 1938 was a depositor of the appellant bank. •On July 18, 1938 Gray Garner, who is in the produce business at Memphis, Texas, delivered to the appellee about sixty cases -of eggs in Amarillo under an agreement previously made between these parties. •Garner’s daughter and another lady employed by Garner, at the request of ap-pellee, candled some thirty-five or forty cases of these eggs in the establishment •of the appellee at Amarillo on the day the •eggs were delivered. The remainder of the eggs were not candled which was at the request of the appellee because he had .already sold them to other buyers in Amarillo. From the eggs candled about five ■cases were found to be bad and were discarded from the lot. While such eggs were being candled an employee of the appellee was present in and about the room and, according to some of the testimony, assisted in the work. There was other •.testimony to the effect that the appellee himself was present a part of the time and exercised some supervision over the examination of the eggs during the candling process. At the conclusion of such process the appellee gave Garner a check for $279.89 for the eggs which had not been discarded. Such check was drawn on the appellant bank and payable to the order of Garner. There was evidence to the effect that on the next day and the day following the appellee discovered that some of the eggs for which he had given the check were in bad condition.

After the delivery of the eggs Garner returned to his home at Memphis and on the next day took the check to the First National Bank of Memphis and asked that such bank advance him the money on it. The vice president of the Memphis bank called the appellant bank by telephone and asked an employee of the latter bank if the check would be paid by it upon presentation. The employee of the Amarillo bank replied that such check would be paid. Thereupon the Memphis bank paid to Garner the face amount of the check in cash, less the amount of the telephone call. The check was forwarded through regular banking channels to the appellant for payment. On July 20, 1938, before the check reached the appellant bank the appellee instructed the appellant not to pay the check. Upon presentment of the check to the appellant such bank refused payment and stamped “Payment Stopped” on the face of the check. The check was thereupon returned to the Memphis bank unpaid. The vice president of - the Memphis bank again ' called the appellant by .telephone, reminded such bank of its previous assurance that the check would be paid upon presentment and insisted that the check be paid. Thereafter the Memphis bank, through its correspondent bank, again presented the check for payment. Upon this second presentment the appellant paid the check, charged the same against the account of the appellee and informed the latter of its action.

On July 25, 1938 the appellee filed this suit against the appellant in the County Court of Potter County, Texas, alleging that he had instructed the appellant not to pay the check but that notwithstanding such instruction the appellant had done so and had withdrawn from appellee’s balance the sum of $279.89, the amount of the check. The appellee answered setting up facts substantially as above stated, asked that Garner and the First National Bank of Memphis be impleaded and prayed for judgment over and against them for any recovery obtained against it by the appellee. By an amended answer in the nature of a cross-action, in which the appellant apparently abandoned any claims against Gray Garner and the First National Bank of Memphis, the appellant alleged that it had acquired by assignment from Garner whatever rights Garner held either under the check or the contract for the sale of the eggs; that the eggs involved in such contract were determined merchantable by test, made under the supervision and in the presence of the appellee; that such eggs were delivered to the ap-pellee upon the completion of the tests and were accepted by him as being sound and merchantable; that the appellee had sold some of the eggs and had received and retained value therefor; that if at a later time such eggs became unsound and unmerchantable such condition was occasioned through no fault of Garner but resulted entirely from the fact that such eggs were not handled by the appellee in such manner as was proper to preserve their merchantable condition; and asked that in the event it be held liable on the alleged wrongful payment of the check, that appellant have judgment against the appellee for the face amount of the check as an offset to any judgment rendered for the appellee. The appellee demurred to this cross-action plea of the appellant.

Trial was before a jury at the conclusion of which the court sustained the appel-lee’s demurrer to appellant’s cross-action, refused to allow the appellant to prove up its assignment from Garner and instructed a verdict for the appellee for the full amount of his claim. The court thereupon rendered judgment accordingly. The appellant reserved an exception to the court’s action in sustaining a general demurrer to its cross-action and to the exclusion of the evidence in regard to the assignment from Garner to the bank. From this judgment this appeal is brought.

We think it is settled by the authorities of this State that the drawer óf an uncertified check can revoke his order to pay such check out of his funds in the drawee bank at any time before the bank’s acceptance of the check; and the bank is bound by such revocation and has no authority to pay the check after such no-ice. Hewitt v. First Nat. Bank of San Angelo, 113 Tex. 100, 252 S.W. 161. The fact that the appellant bank agreed orally over the telephone to pay the check upon presentment did not operate as an acceptance of the check since section 132 of article 5941, Vernon’s Annotated Civil Statutes, requires that the acceptance must be in writing and signed by the drawee. “A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.” Section 189 of article 5947, Vernon’s Annotated Civil Statutes. Therefore the payment by the appellant bank after the countermand was wrongful and rendered it liable to the appellee for the sum charged against the latter’s account. Hewitt v. First Nat. Bank of San Angelo, supra; Huffman v. Farmers’ Nat. Bank of Cross Plains et al., Tex.Civ.App., 10 S.W.2d 753.

Regardless of the bank’s liability to the appellee for its wrongful conduct in paying the check over appellee’s protest, it is our opinion that under the facts of this case the appellant should have been allowed such offsets against appellee’s claim as would have been available to Gray Garner in a suit between him and the appellee in the event the check had not been paid. By written agreement Garner transferred his contract for the sale of the eggs and all of his rights and claims arising under the contract or under the check given in the transaction. In this connection questions of fact were presented as to whether or not the appellee received all or a portion of the consideration for the check in question. It was admitted by the appellee that he sold some of the eggs and received value therefor. There was other testimony to the effect that all of the eggs for which the check was given were in a merchantable condition at the time they were delivered and that the appellee agreed to accept them as such, which, if true, would have presented an issue of estoppel in appellant’s favor. There was also evidence which might reasonably have been interpreted by the jury that the appellee did not properly care for the eggs after their receipt by hirr^'and that his lack of diligence in this respect caused them to spoil after he accepted them in good condition. All these matters were questions of fact which might have been resolved against the ap-pellee if the case had been submitted to the jury upon the issues presented by the pleadings and the testimony.

It appears to us that it would be highly unequitable under the facts of this case to allow the appellee full recovery upon the check when questions of fact were presented as to the receipt by the appellee of all or a portion of the consideration therefor, and then refuse to allow the appellant to recover for whatever equities existed in favor of Garner, especially since the appellant had obtained a written assignment of such rights. Such assignment, we think, brought forth the equitable doctrine of subrogation in appellant’s favor in order for equity to do justice between the parties. In Galbraith-Foxworth Lumber Co. v. Long et al., Tex.Civ.App., 5 S.W.2d 162, 167, writ refused, it is said: “A court of equity, when it becomes necessary to do exact justice between parties in a given transaction, may place one of these parties, to whom a legal right does not belong, in the position of a party to whom the legal right does belong. This mode, adopted for the purpose of doing justice, is termed ‘subrogation.’ ”

Again in Cason et al. v. Westfall et al., 83 Tex. 26, 18 S.W. 668, 669, 670, we find this general rule: “Subrogation may arise from the agreement of the parties, or by implication, in equity, to prevent fraud or injustice.”

It is therefore our opinion that the court erred in excluding the testimony of the appellant with reference to its assignment from Gamer and further erred in sustaining the demurrer to appellant’s cross-action. Texas State Bank & Trust Co. et al. v. St. John, Tex.Civ.App., 103 S.W.2d 1104, writ dismissed; Usher v. Tucker Company, 217 Mass. 441, 105 N.E. 360, L.R.A.1916F, 826. Having so held it follows that the court erred in instructing a verdict for the appellee and rendering judgment for him upon the check without submitting to the jury the claims and equities of the appellant by virtue of its cross-action.

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


author: MURRAY, Justice.

text:
    BAGNALL v. BAGNALL.
    No. 10627.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 29, 1939.
    Rehearing Denied Dec. 30, 1939.
    Sidney P. Chandler, of Corpus Christi, for plaintiff in error.

      I. M. Singer and C. O. Hamlin, both of Corpus Christi, for defendant in error.
   MURRAY, Justice.

Carolyn M. Bagnall sued her husband, W. W. Bagnall, for a divorce' which was granted, and concerning which action by the trial court no questions or objections are raised upon this appeal. However, the judgment goes further and makes a property settlement between the spouses and from this part of the judgment Carolyn M. Bagnall has prosecuted this appeal by means of a writ of error.

There is no statement of facts in the record. No findings of facts or conclusions of law were requested of the trial judge and none were made, except such as appear in the final judgment.

The trial court, after awarding each spouse certain properties as their respective separate property, awarded W. W. Bagnall a personal judgment against Carolyn M. Bagnall as a matter of accounting between the two in the sum of $1000.

Plaintiff in error, Cárolyn M. Bagnall, complains of the granting of a personal judgment against her, and assigns such action on the part of the trial court as error, because of an alleged want of pleading to support such a personal judgment.

Carolyn M. Bagnall, in her prayer contained in her first amended original petition upon which she went to trial, prayed, amo.ng other things, as follows: “And that she have an accounting of the amount due and owing to her by the defendant, and of the amount due and owing by her to the defendant.” W. W. Bagnall in his first amended original answer prayed as follows :

“Wherefore, this Defendant prays that the Plaintiff herein be held and compelled to render an accounting herein showing source and amounts of all monies and properties received since the marriage of Plaintiff and Defendant, and the disposition, if any, of any and all such monies and property.

“Defendant further prays the Court that in the event-a divorce be granted herein that community property of Plaintiff and Defendant be divided between Plaintiff and Defendant by decree and this Defendant be entitled to an undivided one-half (½) interest in all of said property. Defendant further prays that in the event Plaintiff be decreed to have a right to occupy the property situated in Nueces Bay Heights as a homestead that this Defendant have an equal right and that this Defendant have an equal portion of any revenue derived from the rent of said property.

“Defendant further • prays that Plaintiff recover no Attorney’s fees and that Defendant recover all costs of this proceeding and that Defendant have such other and further relief, both special and general, in law and in equity which he may be justly entitled to receive.”

It is clear that both the plaintiff and the defendant below were asking for an accounting concerning their property rights and the court, under the authority given it by'Art. 4638, Vernon’s Annotated Civil Statutes of Texas, coulcf use its discretion in making an equitable division- of the property and could properly have rendered the judgment here rendered. The pleading of both parties asking for an accounting would be sufficient to support such a decree. We cannot say that the court abused its discretion, in the absence of a statement of facts. Fain v. Fain, Tex.Civ.App., 6 S.W.2d 403; Preibisch v. Lay, Tex.Civ.App., 122 S.W.2d 670.

Plaintiff in error next complains that the trial court invoked the wrong method in determining the amount, if any, plaintiff in error was indebted to defendant in error. We overrule this contention. In the absence of a statement of facts or findings of facts, we must presume that the judgment was supported by the evidence and that the trial court rendered judgment for the correct amount as shown by the evidence. The findings made by the trial judge in the judgment do not show that the judgment was incorrect and, unless such findings do so show, this Court will presume that the judgment is for the correct amount. Longwell v. Longwell, 39 Tex.Civ.App. 612, 88 S.W. 416; Preibisch v. Lay, supra; Gardner v. Gardner Park Amusement Co., Tex.Civ.App., 119 S.W.2d 1064; Blanton v. Garrett, Tex.Civ.App., 124 S.W.2d 451; Universal Credit Co. v. Richey, Tex.Civ.App., 123 S.W.2d 963; Fitts v. Carpenter, Tex.Civ.App., 124 S.W.2d 420 ; 3 Tex.Jur. 1037.

Defendant in error contends, by cross-assignment of ‘ error, that the court erred in allowing plaintiff in error the sum of $250. as attorney’s feés. We overrule this contention. In the absence of a statement of facts or of findings of facts by the trial court we are unable to say that the trial judge erred in allowing the attorney’s fees.

The judgment is affirmed.


author: PER CURIAM.

text:
    SCOTT v. JACKSON et al.
    No. 5158.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 11, 1939.
    Dennis Reynolds, of Wheeler, and J. E Anderson, of Amarillo, for appellant.
    Clayton Heare, of Shamrock, for appel-lees.
   PER CURIAM.

This case was tried before the court, without the intervention of a jury, on the 18th of May, 1939. Judgment was rendered on that day and entered upon the minutes of the court the next day. Appellant duly excepted and gave notice of appeal but the transcript and statement of facts were not presented to the clerk of this court for filing until July 24, 1939, which was sixty-six days after the final judgment was entered. The case is now before us upon a motion of appellant in which he requests an order permitting the filing of the record as of July 24, 1939, when the same was tendered to the clerk. As grounds for the motion and to show good cause to have existed within the period of sixty days after the final judgment as provided by Art. 1839, R.C.S.192S, as amended by the acts of the 43rd Legislature, p. 142, c. 67, Vernon’s Ann.Civ.St. art. 1839, he alleges that, due to a situation arising late in the trial over which neither he nor his counsel had control, his counsel discontinued his participation in the trial and appellant thereafter acted as his own counsel. He alleges that he did not have occasion to see his attorney nor to interview him concerning appellate procedure from the date of the trial until ■on or about the 18th of July, 1939, when appellant learned that the transcript and statement of facts had not been perfected and filed in this court.

There are no allegations in the motion which indicate it wás not possible for appellant to see his counsel during this more than sixty day period from May 18th to July 18th and even if such were alleged it would not, in our opinion, show good cause for not filing the record as provided by the rules. His attorney had discontinued his connection with the case and appellant does not allege he depended upon his attorney to have the record prepared and filed. Appellant assumed to conduct the litigation himself, including the preparation of the record for appeal, and the mere fact that he was not familiar with the appellate procedure and did not have occasion to consult his former counsel concerning the same until after the expiration of the sixty day period in which the law requires the transcript to be filed in the appellate court falls far short of the diligence that is required in such matters and fails utterly to show the “good cause” required by the statute. The motion will therefore be overruled. Magee v. Magee, Tex.Civ.App., 272 S.W. 252; Westergreen v. Hobby, Tex.Civ.App., 49 S.W.2d 864.