author: WALTHALL, Justice.

text:
    TRADERS & GENERAL INS. CO. v. LOCKWOOD.
    No. 3904.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 23, 1940.
    Rehearing Denied March 14, 1940.

      Benbow, Saunders & Holliday, of Dallas (Henry D. Akin, of Dallas, of counsel, on motion for rehearing; Will R. Saunders, of Dallas, of counsel), for plaintiff in error.
    J. B. Cotten and John J. Watts, both o-f Crane, for defendant in error.
   WALTHALL, Justice.

This is a case under the Workmen’s Compensation Law (Vernon’s Ann.Civ.St. art. 8306 et seq.).

We adopt the statement of the nature and result of the suit as found in plaintiff in error’s brief.

This’suit was originally instituted in the District Court of Ector County, Texas, by the defendant in error, George W. Lockwood, against the plaintiff in error, Traders & General Insurance Company, seeking to set aside an award of the Industrial Accident Board, and to collect compensation insurance on account of certain personal injuries alleged to have been received by the said George W. Lockwood on or about the 1st day of December, A.D. 1937, while in the employ of Sidwell & Meyers Drilling Company in Ector County, Texas.

The defendant in error thereafter filed his first amended original petition upon which he went to trial in the District Court of Ector County, Texas, during the course of which trial the evidence developed that the injury, if any, sustained by the defendant in error was sustained in Crane County, Texas; whereupon, the District Court of Ector County, Texas, ordered said cause transferred to the District Court of Crane County, Texas. There-afterj the Clerk of the District Court of Ector County, Texas, forwarded to the clerk of the District Court of Crane County, Texas, a certified copy of the “order transferring case to Crane County” in cause No. 1488, styled George Lockwood, plaintiff, v. Traders & General Insurance Company, -defendant, together with all the court papers in said cause and said cause was thereupon docketed upon the docket of the District Court of Crane County, Texas, and numbered 541 on the docket thereof.

The defendant in error went to trial upon his first amended original petition, and as a basis -for his cause of action in said first amended original petition alleged that on or about December 1, 1937, he was an employee of Sidwell & Meyers Drilling Company working in Ector County, Texas, in the capacity of “a tool dresser”; that he worked with said Sidwell & Meyers Drilling Company in such capacity until the date of the infliction of the injuries herein sued upon.

The defendant in error further alleged that on or about December 1, 1937, while putting aqua-jell on the drilling line above the clamps, the drilling line slipped and struck plaintiff, knocking him down and rendering him unconscious, as a result of which he sustained severe and permanent injury to his entire body, with special injury to his head, face, eyes, neck and spinal column; and that he sustained a fracture of the left malar bone extending from just below the eyes to the tip of his nose; that his maxillary sinuses were fractured, resulting in infection to the left maxillary sinus; that the injury to plaintiff's head resulted in concussion and compression to the' brain and in dizziness, vibration, swimming and ringing in his head and in constant, chronic headaches, and inability to think consecutively, rendering him extremely nervous and causing him to have impaired and blurred vision, all of which resulted in the plaintiff’s total disability to perform work, beginning on the said first day of December, 1937, and continuing down to the date of the trial, which said total incapacity was permanent, or at least was permanent to the extent that he was rendered physically unable to so perform the duties and tasks of a workman as to enable him to obtain and retain employment; that said injuries were sustained by the defendant in error while he was engaged in doing and performing the work for which he was employed and that such injuries had to do with and originated in the course of the business, trade or occupation of the said Sidwell & Meyers Drilling Company, and were sustained while defendant in error was engaged in and about the furtherance of the affairs, business and undertaking of the said employer in Ector County, Texas.

The defendant in error further alleged that his employer, Sidwell & Meyers Drilling Company, had actual knowledge of the occurrence of the accident, and the resultant injuries to the defendant in error, at the time they were sustained, and that within thirty days thereafter said defendant in error notified plaintiff in error of the receipt of his alleged injuries.

Defendant in error further alleged that within six months after the receipt of said injuries, he filed his claim with the Industrial Accident Board; that, thereafter, the Industrial Accident Board made and entered its final ruling and decision on said claim, from which decision the defendant in error filed notice of his unwillingness to abide by said decision and of his intention to appeal therefrom.

Defendant in error further alleged the usual and necessary allegations with reference to, the computation of his compensation. /

Defendant in error further alleged that he had made repeated demands upon the plaintiff in error to pay his compensation, but that despite his demands, the plaintiff in error had failed and refused, and still fails and refuses to pay the same or any part thereof, as a result of which he was forced to contract with, and did in fact contract and agree to employ J. B. Cotten of Crane, Texas, to represent him in the capacity óf an attorney, for which said defendant in error agreed to pay the said J. B. Cotten thirty-three and one-third per cent of any amount recovered by him.

Defendant in error prayed that upon a final hearing he have judgment against the plaintiff in error for total and permanent disability and for compensation at the rate of $20 per week for a period of 401 weeks from and after December 1, 1937; that one-third of such recovery be decreed to J. B. Cotten,for costs and for general and special relief.

Plaintiff in error answered by filing a plea to the jurisdiction of the court, the same being filed at the time this cause was called for trial in the District Court of Crane County, Texas, on December IS, 1938, which said plea to the jurisdiction and motion to dismiss so filed by the plaintiff in error was overruled by the District Court of Crane County, Texas, on the 15th day of December, A.D. 1938.

The plaintiff in error further filed its first amended original answef in said cause, upon which it went to trial after the court had overruled its general demurrer and special exceptions No. 4 and 5 as contained in defendant’s first amended original answer.

' The case was tried to a jury, and, at the conclusion' of the testimony, plaintiff in error made a motion for an instructed verdict, which' was refused by the court, and the case was submitted' to the jury.

. The jury answered the special issues in favor of the defendant in error and upon said answers, the court rendered judgment in favor of the defendant in error, George W. Lockwood, and against plaintiff in error, Traders & General Insurance Company, for the sum of $6,825.60, with interest thereon at the rate of six per cent per annum until paid, and for costs of suit.

Thereafter, plaintiff in error filed its motion for a new trial. The trial court overruled said motion of the plaintiff in error for á' new trial and plaintiff in' error excepted and gave, notice of appeal, and perfected its appeal'by writ of error bond on March 24, 1939.

Plaintiff in error will be referred to as defendant, and defendant in error will - be referred to as plaintiff, as in the briefs of the parties.

Opinion.

This case was originally filed and went to trial in the District' Court of Ector County, Texas, on plaintiff’s first amended original petition, which petition alleged that the injuries plaintiff sustained and of which he complained occurred in Ector County, Texas. When it was shown on the trial that plaintiff’s injuries, if any, were received in Crane County, the Ector County District Court thereupon immediately ordered the case transferred to Crane County under Article 8307a, Vernon’s Ann.Civ.St. Neither before nor after the case was transferred to Crane County was plaintiff’s petition changed, altered, modified or amended, but plaintiff went to trial in Crane County upon the same petition as he went to trial in Ector County, the petition alleging that plaintiff’s injuries occurred in Ector County. The uncontro-verted proof shows that the injuries occurred in Crane County.

The Crane County District Court accepted and retained jurisdiction, heard the evidence and tried the case and rendered judgment thereon. The court overruled defendant’s plea to the jurisdiction, and defendant excepted.

Defendant under its first proposition submits that the action of the trial court,, in retaining and rendering judgment under the facts substantially as above, was fundamental error, and cites us to Casualty Reciprocal Exchange v. Alessandro, Tex.Civ.App., 34 S.W.2d 636; Hendrick v. Blount-Decker Lumber Co., Tex.Civ.App., 200 S.W. 172, and other cases stating the welbsettled principle of law that a judgment must have pleadings to support it.

The suit being strictly under the Workmen’s Compensation Act, the petition, for venue and for jurisdiction, must be brought in the county in which the injury occurred. The latter portion of Article 8307a provides that, in the event such suit is brought in any county other than the county where the injury occurred, the court in which the suit is filed shall, upon ascertaining that it does not have jurisdiction to render judgment upon the merits, “transfer the case to the proper Court in the county where the injury occurred. Provided, however, that notice of said transfer shall be given to the parties and said suit when filed in - the court to which the transfer is made, shall be considered for all purposes, the same as if originally filed in said court.” The record shows that the court, by its order, made such transfer, and the Crane County District Court, having jurisdiction of the suit on its merits, accepted and retained jurisdiction. The statute requires only that the parties have notice of the transfer. The statute does not prescribe the character of the notice to be given nor the form of the order of the transfer. No suggestion is made that sufficient notice was not given, nor that the order of transfer was not sufficient to give the court jurisdiction. The statute does not-prescribe that on the transfer either party-should replead the facts on the merits, and no suggestion is made that the facts on the merits are not sufficiently pleaded, only that plaintiffs petition retained the statement that the injury occurred in Ector County. The record shows that defendant was present at the trial in Ector County, pleaded to the jurisdiction of the court, and made proof that the injury to plaintiff, if any, occurred in Crane County. A variance, to be objectionable or fatal, should be such as to mislead or cause surprise. Defendant claims neither, but suggests that the variance in the pleading and the proof might be confusing to the jury trying the case.

We have concluded that the action of the Crane County District Court in accepting and retaining jurisdiction and rendering judgment in the case was not fundamental error.

The Eastland Court of Civil Appeals in Indemnity Insurance Company of North America v. Sparra et al., Tex.Civ.App., 57 S.W.2d 892, 894, by a divided court opinion, passed upon practically the same question as here, and overruled defendants and entered judgment for plaintiff. The majority opinion referred to and applied what is referred to as the common sense rule stated in 49 C. J. page 864, paragraph 1274, as follows: “A plea, answer, or other pleading of defendant may aid the petition, declaration, or complaint, and supply, cure or remedy an omission, defect or infirmity therein, as by affirmatively alleging or admitting a material fact not alleged, or defectively alleged, by plaintiff.”

Under the above case we may look to the defendant’s plea to the jurisdiction to the effect that the injury to plaintiff occurred in Crane County as curing or supplying any defect or lack of statement to that effect, should it be thought that plaintiff’s petition was defective in not stating the county in . which the injury occurred. Georgia Casualty Co. v. Darnell et al., Tex.Civ.App., 243 S.W. 579, on motion for rehearing.

Defendant in its second proposition contends that because plaintiff’s petition alleged that the injury occurred in Ector County, it was error to admit plaintiff’s evidence that the injury occurred in Crane County, because of the variance. We have not found in the record that any objection was made to the admission of the evidence, nor does the record show that defendant made known to the court its surprise at the testimony, or that it was misled thereby. Southern Underwriters v. Wheeler, Tex.Civ.App., 108 S.W.2d 846, and cases there cited. To be fatal, a variance must be such as to surprise or mislead the party to be charged. Federal Surety Co. v. Ragle, Tex.Civ.App., 25 S.W.2d 898.

Special issue 24, as reported in the transcript, has been corrected so as to read as submitted to the jury. We omit any comment on the change as reported here.

Issues submitted to the jury to find upon a preponderance of the evidence properly place the burden of proof. Houston & T.C. Ry. Co. v. Stevenson, Tex.Com.App., 29 S.W.2d 995; Federal Surety Co. v. Smith, Tex.Com.App., 41 S.W.2d 210.

The trial court defined “partial incapacity,” as’used in the charge, “means, when applied to a person, that such a person lacks physical power in part only to perform the usual tasks of a workman.” We find no error in the definition.

The court instructed the jury that by the. term “permanent,” as used in the court’s charge, is meant “throughout the lifetime of the plaintiff, George W. Lockwood.”

Under Lloyds Casualty Co. of New York v. Grilliett, Tex.Civ.App., 64 S.W.2d 1005, writ refused, it seems unnecessary to define the term “permanent”; in any event, no-reversible error is shown.

The court submitted to the jury special issue No. 1, as follows: “Do you find from a preponderance of the evidence that the plaintiff, George W. Lockwood, sustained an accidental personal injury to his head, alleged in his petition, on or about December 1, 1937?”

In his petition plaintiff went largely into detail in alleging the facts constituting the injury he sustained to his head and its effects, and offered sufficient evidence to justify its submission to the jury. Objection is made to the submission of the issue that it delegates to the jury the right to' construe the petition and to take into consideration plaintiff’s pleading which was not in evidence. We think the reference to the petition confined the consideration of the jury to the identical facts alleged and upon which proof was offered. The jury had heard the petition read and the evidence offered, and evidently the argument of counsel on the application of the evidence to the facts at issue.

It may be the courts are not uniform m passing upon the question whether it was proper in the charge to refer the jury to the pleading to ascertain the injuries the jury were to consider. In Standard Accident Ins. Co. v. Cherry, Tex.Civ.App., 36 S.W.2d 807, the Texarkana Court refers to several cases as holding it improper to make such reference. The charge in the instant case did not refer the jury to the pleading from which the jury could ascertain what injuries they were to consider, but to find whether the plaintiff did sustain the accidental injury alleged.

We have carefully reviewed the cases referred to and others. We have not found the rule to be unqualifiedly established that it is reversible error in determining whether the plaintiff was injured as alleged to refer the jury to the petition. In Farmers’ & Mechanics’ National Bank v. Marshall, Tex.Civ.App., 4 S.W.2d 165, 167, the charge given was: “Do you find from the evidence that the plaintiff was injured as alleged in plaintiff’s petition on the occasion in question?” The objections made were, the charge was on the weight of the evidence, and was leading and suggestive. The court overruled the objections and affirmed the case. It would not be proper to refer the jury to the pleadings of a party to ascertain the matters of fact to be decided, or where some of the matters pleaded are not supported by evidence. Hewitt v. Buchanan, Tex.Civ.App., 4 S.W.2d 169, and similar cases. Where the fact of the injuries as to a definite specific part of the body, as the head, is alleged, and the injuries as alleged each has sufficient proof to justify its submission to the jury, it is not reversible error, we think, to indicate to the jury the injuries to be considered by a reference to the pleading. National Indemnity Underwriters v. Blevins, Tex.Civ.App., 129 S.W.2d 734; Texas Employers Ins. Ass’n v. Hamor, Tex.Civ.App., 97 S.W.2d 1041.

The court submitted to the jury: “How many weeks, if any, do you find from a preponderance of the evidence that the total incapacity, if any, of the plaintiff, George W. Lockwood, continued, if it did, or will continue, if it will, from the date of the injury, if any, was sustained?”

Defendant objected to its submission on the ground of its being multifarious and duplicitous, but defendant did not prepare and submit to the court a specially requested issue submitting its defensive issue of temporary total incapacity. In his counter proposition plaintiff submits that the objection is waived. We think the objection is waived. Traders & General Insurance Co. v. Herndon, Tex.Civ.App., 95 S.W.2d 540; Traders & General Insurance Co. v. Snow, Tex.Civ.App., 114 S.W.2d 682.

Points not discussed have been considered and are overruled.

We have found no reversible error and the case is affirmed.


source: Caselaw Access Project

author: DUNKLIN, Chief Justice.

license: Public Domain

text:
    TEXAS POWER & LIGHT CO. v. CASEY.
    No. 14024.
    Court of Civil Anpeals of Texas. Fort Worth.
    Feb. 23, 1940.
    Rehearing Denied March 29, 1940.

      Burford, Ryburn, Hincks & Charlton, of Dallas, and Fred H. Minor, of Denton, for .appellant.
    Geo. M. Hopkins, of Denton, for appel-lee.
   DUNKLIN, Chief Justice.

On May 22nd, 1924, the Texas Power & Light Company, for a consideration of $70 paid, acquired from J. M. Swisher and wife, the owners, a deed conveying to it an easement or right-of-way for an electric transmission and distributing line, consisting of variable numbers of wires, and all necessary or desirable appurtenances (including towers or poles made of wood, metal or ■other materials, telephone and telegraph wire, props and guys), at or near the location and along the general course now located and staked out by the said company ■over, across and upon the following described lands located in Denton County, Texas, to-wit:

“Being a description of the Texas Power and Light Company’s Norwood-Denton-Bowie Transmission Line as now surveyed and located across the land of J. M. Swisher in the H. H. Swisher survey, Denton County, Texas.
“Beginning at survey station 1288 plus 23, same being a point in center line of a fence running east and west between the property' of J. M. Swisher and a road; said point being 25 feet west of J. M. Swisher’s southeast corner; thence north 48 degrees 45 minutes west 427 feet to survey station 1292 plus 50; thence north 49 degrees 30 minutes west 3060 feet to survey station 1323 plus 10 to a line dividing the property of J. M. Swisher and a road.
“Together with the right of ingress and egress over my (our) adjacent lands to or from said right-of-way for the purpose of constructing, reconstructing, inspecting, patrolling, hanging new wires on, maintaining and removing said line and appurtenances; the right to relocate along the same general direction of said lines; the right to remove from said lands all trees and parts thereof, or other obstructions, which endanger or may interfere with the efficiency of said line or its appurtenances; and the right of exercising all other rights hereby granted.”

That deed was duly recorded in Records of Deeds of Denton County, where the land was located, on June 18th, 1924.

On March 11th, 1925, that company acquired from H. P. Swisher, for a consideration of $90 paid, another deed of conveyance of the same rights and easements over the same land, and in the same terms, and that deed was also dttly recorded in the Record of Deeds of Denton County, on April 22nd, 1925.

On February 16th, 1937, H. A. Perlstein executed a deed of conveyance to James E. Casey to a tract of 104.8 acres out of the IT. H. Swisher Survey in Denton County, which deed embodied a recital that the land conveyed was the same land that had been conveyed to H. A. Perlstein by H. P. Swisher and wife, by deed dated July 27th, 1931, recorded in the Deed Records of Den-ton County. The consideration recited in that deed to Casey was $100 cash and a note for $1,300, secured by a vendor’s lien, together with his assumption of a first lien note in favor of the Federal Land Bank of Houston for the sum of $1,970.21.

The land over which the Texas Power & Light Company acquired the right of easement above shown Js embraced within the field notes of that deed to Casey, who was charged with constructive notice of thosé easements and all rights acquired in connection therewith, and hence the title he acquired was burdened therewith.

Federal Highway No. 77 and State Highway No. 40 crossed plaintiff’s land in a northwesterly and southeasterly direction, leaving a tract of some 21 acres in a triangular shape, bordering on the southwesterly boundary line of State Highway No. 40. Defendant constructed its transmission line across the 21-acre tract along that side of Highway 40. Its transmission line consisted of three electric power wires, charged with a heavy voltage of electricity, running parallel with each other, spaced 9½ feet apart, supported by three H frames. For the purpose of avoiding interference with those wires, defendant cut and removed three forest trees growing on said 21-acre tract. The center of the trunk of the largest of those trees was 16 feet from the defendant’s middle transmission wire and 6½ feet from the nearest wire. The second largest tree was located 37 feet from the middle transmission wire and the smallest tree cut and removed was located 25 feet from that wire. Those trees were cut and removed after James E. Casey’s purchase of the 104.8-acre tract above shown.

This suit was instituted by James E. Casey against the Texas Power & Light Company for damages alleged to have resulted from cutting and removing those three trees, and from a judgment in his favor for $419.20, the defendant has appealed.

It was alleged in plaintiff’s petition that the three trees were beautiful shade trees, located on a hill, properly spaced, and made the hill on which they grew a desirable building site. There were other allegations that plaintiff had planned to build a residence on that side for his family, and also one opposite thereto on the north side of the highway, for occupancy of his mother-in-law and father-in-law. But allegations of all such intended uses of the property were stricken by the court, on special exceptions thereto, and they need not be noticed further. Then follow allegations to the effect that on February 1st, 1938, defendant, without plaintiff’s knowledge or consent, entered upon plaintiff’s land and cut and removed the three trees, the removal of each of which diminished the market value of his 104.8-acre tract in the sum of $500, aggregating $1,500 for the three, for which he sought a recovery as actual damages. He also sued for exemplary damages in the sum of $500, on allegations that the cutting of the trees was done negligently, wantonly, in disregard of plaintiff’s rights and without any necessity therefor.

In addition to a general denial, defendant pleaded specially that it had in good faith cut and removed the trees because necessary to avoid interference with its transmission electric wires, carrying high electric voltage, and had the lawful right so to do under the easements noted above, of unlimited duration, and subject to which plaintiff acquired title. And further, that when the trees were cut, they, with their branches and limbs, were growing in such close proximity to the wires as to interfere with the efficiency of the transmission lines and endanger the lives of persons and livestock by coming in contact with the electric wires. And further, that immediately before the time defendant acquired its easement rights, the reasonable market value of plaintiff’s tract of 104.8 acres of land was $30 per acre, and that its market value was the same immediately after defendant acquired such easement rights.

The truth of those special allegations was put in issue by plaintiff’s supplemental petition, in reply to the defendant’s answer, with a further plea in the nature of a waiver, and in connection therewith, a plea of limitation, growing out of facts hereinafter noticed.

Following are special issues, submitted to the jury, with their findings thereon:

“No. 1. What do you find from a preponderance of the evidence was the reasonable market value of the plaintiff’s lands immediately before the three trees were removed by the defendant? Answer giving amount in dollars and cents. Answer: $4192.00.
“No. 2. What do you find from a preponderance of the evidence was the reasonable market value of the plaintiff’s lands immediately after the three trees were removed by the defendant? Answer giving amount in dollars and cents. Answer: $3772.80.
“No. 3. Do you find from a preponderance of the evidence that the trees in question were reasonably calculated to endanger or interfere with the efficiency of the transmission lines ? Answer yes or no. Answer. No.”

It is well settled by the decisions of our Supreme Court that where one has an easement right over land such as the one possessed by defendant in this case, in order for the owner of title to the land to recover damages growing out of the use of such easement, he must show that the defendant was guilty of negligence in the manner in which it was used. Lone Star Gas Co. v. Hutton, Tex.Com.App., 58 S.W. 2d 19, and decisions there cited; Houston & E. Tex. Ry. Co. v. Adams, 58 Tex. 476; Gulf Pipe Line Co. v. Watson, Tex.Civ.App., 8 S.W.2d 957.

In plaintiff’s petition it was expressly alleged that defendant was guilty of negligence in cutting and removing the trees. And in reply thereto defendant, in addition to a general denial, specially pleaded that the removal of the trees was not a negligent act, but was reasonably necessary to the enjoyment of the easement rights it had theretofore acquired. But that issue of negligence was omitted from the issues which the court prepared and submitted to counsel for objections, after conclusion of the evidence and before argument to the jury, as required by Art. 2185, Rev.Civ.St. And since no objection was made thereto by plaintiff for omitting that issue, and no requested issue embodying it was tendered to the court by plaintiff, and a finding of such negligence being an essential element of plaintiff’s right of recovery, we believe the court erred in refusing defendant’s request for an instructed verdict in its favor on the whole case, presented before the court read the issues to the jury, as insisted by one assignment of error, in support of which the following, among many other, authorities are cited: Revised Civil Statutes, Arts. 2186 to 2190, both inclusive, Vernon’s Ann.Civ.St. arts. 2186-2190; 30 Tex.Jur., sect. 158, page 837; Dallas Hotel Co. v. Davison, Tex.Com.App., 23 S.W.2d 708; Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084; Groves v. National Loan & Investment Co., Tex.Civ.App., 102 S.W.2d 508. See, also, Wichita Falls & Oklahoma Ry. Co. v. Pepper, Tex.Sup., 135 S.W.2d 79.

Manifestly, plaintiff had the burden of proof to show that the trees did not endanger or-interfere with the efficiency of defendant’s electric transmission wires. But by Issue No. 3, the burden was imposed on the defendant to prove the affirmative of that issue, which was reversible error. Lone Star Gas Co. v. Hutton, Tex.Com.App., 58 S.W.2d 19, at page 21; 41 Tex. Jur., sect. 336, p. 1197; City of Dallas v. Firestone Tire & Rubber Co., Tex.Civ.App., 66 S.W.2d 729, error refused; Dallas Ry. & Terminal Co. v. Fuchs, Tex.Civ.App., 52 S.W.2d 685.

As noted above, plaintiff alleged that the-cutting of each of the three trees depreciated the market value of plaintiff’s tract in the sum of $500.00, with no allegation of necessity to fix the damages for cutting the three trees as a unit because of impracticability of assessing the same separately.

In view of that separation by plaintiff of damages resulting from the different trees which the evidence showed were of different sizes, and at different distances-from the nearest transmission wires, and the largest and most valuable being nearest, we conclude that there was further’ error in submitting, over defendant’s objection, the issue of damages from cutting all those trees as a unit, instead of separately.

Plaintiff testified that the market value of his land immediately before the trees were cut was $75 per acre, and immediately thereafter, $37.50 per acre. An assignment is presented to the court’s refusal to permit defendant, on cross-examination of plaintiff, to prove by him that the purchase price he had paid for the land on February 16th, 1937, was approximately $33 per acre. The testimony rejected was relevant to questions submitted in issues Nos. 1 and 2, and should have been admitted. This assignment is therefore sustained. 19 Tex.Jur., para. 151, p. 233, and cases there cited. Also 17 Tex.. Jur., sect. 164, p. 443.

Appellee has submitted seventeen counter propositions in reply to all plaintiff’s assignments of error. The contention presented by several of them is to the effect that the easement under which the-trees were cut was void for lack of definite description of the right-of-way which it covered. The description of that right-of-way is definitely described in the deed to the easement, and therefore this contention is without merit.

Another contention is to the effect that since the evidence showed that more than ten years prior to the time the trees-were cut, defendant had elected to remove such trees as it deemed would interfere-with its transmission lines, such election precluded the right to cut additional trees later, and therefore the claim of such right asserted here was barred by the statute of limitation of both the four and ten year statutes of limitation.

We perceive no merit in that contention, because the easement was of unlimited duration and clearly contemplated the right to remove growing trees at any time they interfered with the proper maintenance of the transmission lines.

Other assignments of error to alleged improper argument to the jury -on the trial and improper conduct of the jury during their deliberations, will not be determined, since those questions may not arise on another trial. But for the errors noted, the judgment of the trial court is reversed and the cause is remanded. Ostrom v. Jackson, Tex.Civ.App., 127 S.W.2d 987, and decisions cited.

On Motion for Rehearing

Appellee stresses the contention urged in his briefs that the right-of-way for the easement claimed by the defendant over the land in question was too indefinite to warrant.defendant’s claim of right thereunder to remove the three trees in controversy, because in the deeds granting the easement, the course and width of the right-of-way were not specified. In the first place, plaintiff did not object to the admission of those deeds on that ground, or on any other ground. In the absence of any such designatioA in those deeds, the law as against the owners of the land who conveyed the easement, would carry the right in the defendant to select a right-of-way of such course and width as was reasonably necessary for the purpose of maintaining defendant’s transmission lines. And since testimony introduced by plaintiff himself showed conclusively that about the year 1925, after delivery of those deeds, the defendant selected and established its right-of-way across the land, and has maintained the same ever since, all without objection from the land owner, defendant’s right-of-way so selected was thereby established as conclusively as if its course and width had been expressly described in the deeds granting the easement.

Nor did plaintiff plead or offer testimony to show that defendant’s right-of-way at the place where the trees were growing was not reasonably necessary to the enjoyment of the easement; his sole complaint in his pleadings being that the trees were not near enough defendant's transmission wires to require cutting in order to avoid injury to persons or animals from electric shock, and therefore such cutting was done wrongfully and negligently.

Furthermore, in his supplemental petition, in reply to defendant’s answer, plaintiff alleged that more than ten years before the trees were cut, defendant’s right-of-way across the land was fixed and determined by its own selection thereof, and therefore its right to cut them was barred by the four and ten year statutes of limitation. And the facts so alleged in that pleading are asserted in several of appellee’s counter propositions presented here in support of those pleas of limitation.

All of which shows that the case was tried upon the theory that the trees in question were growing on the riglit-of-way lawfully acquired under and by virtue of the deeds noted in our original opinion.

The motion for rehearing is overruled.


author: SMITH, Chief Justice.

text:
    COMMERCIAL STANDARD INS. CO. v. MARTINEZ.
    No. 10834.
    Court of Civil Appeals of Texas. San Antonio.
    March 20, 1940.
    Johnson & Rogers, of San Antonio, for appellant.
    Raymond, Algee & Alvarado, of Laredo, and Chas. J. Lieck, of San Antonio, far appellee.
   SMITH, Chief Justice.

The parties appellant and appellee have filed a joint motion that the judgment appealed from in this cause be reformed in accordance with an agreement of the parties, and as so reformed the judgment be affirmed.

In connection with the motion the parties have filed their joint agreement, as stated, and in pursuance of that agreement the judgment of the district court in favor of appellee and against appellant, for the sum of $6,007.80, with interest thereon at the rate of 6% per annum from November 13, 1939, will be reformed so as to provide that appellee recover of appellant the sum only of $4,000, with interest as aforesaid, together with the costs of the litigation, and as so reformed said judgment will be affirmed.

Reformed and affirmed.


author: MURRAY, Justice.

text:
    WEST v. MORA et al.
    No. 10679.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 14, 1940.
    Rehearing Denied March 27, 1940.
    Robert A. Sone, of Corpus Christi, and James W. Paulk, of Alice, for plaintiff in error.
    Lon D. Herbert, of Alice, for defendants in error.
   MURRAY, Justice.

This suit was instituted by defendants in error, Luis Mora and Jacob Lopez, against plaintiff in error, H. E. West, seeking to recover, in a trespass to try title suit, certain tracts of land lying and being situated in Jim Wells County, Texas, and described as follows: Lots Nos. Six (6), Seven (7) and Eight (8), in Block Eight (8) of Section Five (5), out of G. R. Scott’s Re-Subdivision of a part of C.' S. Fowler’s Subdivision of the Benton Ranch, and containing 22.29 acres, more or less.

West answered by general demurrer, general denial, a plea of not guilty, and a cross-action claiming title to the land by virtue of adverse possession for more than ten years.

The trial was to the court, without the intervention of a jury, and resulted in judgment for Mora and Lopez against West for the title and possession of the 22.29’ acres of land sued for by defendants in error.

From this judgment West has prosecuted this appeal.

This case is very similar to the case of Lewis v. Dainwood, decided by this court on June 21, 1939, and reported in 130 S.W. 2d 456. The land there involved was a part of the Benton Ranch, as is the land here involved. There the plaintiffs were able to show prior possession of the land by William Benton to the possession claimed by the defendants, and a regular chain of title down to themselves from said William Benton. The plaintiffs in the case at bar were able to show a prior possession to that claimed by West, and a regular chain of title down to themselves from those holding such prior possession. Such prior possession, coupled with such regular chain of title, would support the judgment in favor of Mora and Lopez, unless West could show that he had held possession of the land under such circumstances and for such a length of time as to give him title to the land under the provisions of Art. 5510, R.C.S.1925.

The trial court made and filed his findings of fact and conclusions of law, the eighth finding of fact being as follows: “The court finds that the defendant did not have peaceable, open, notorious, exclusive, continuous, adverse and hostile possession of the land involved in this suit for as much as ten years preceding the filing of this lawsuit.”

The only question raised by plaintiff in error in his brief necessary to be considered, is whether or not there is evidence in this record to support this finding. Or, to state the matter a little differently, does the evidence show as a matter of law that West had held such possession of the land for more than ten years before the suit was filed?

The burden of establishing title by the ten years’ statute of limitation was upon West, who was asserting such title. There was no jury and the judge was the trier of the facts. Unless the evidence was conclusive he could properly find against West.

West claimed possession of the land from 1925 to the filing of the suit, in 1938. The evidence tends strongly to show that this possession was interrupted from 1929 to 1933, during which time West resided in and about the town of Alice and operated a business. It is true that he testified that during such time he kept a tenant in charge of the land, but he was an interested party and the court was not compelled to believe his testimony. It is further shown that plaintiff in error, H. E. West, and his father, B. F. West, both had possession of the land, and the witnesses who testified for plaintiff in error did not know whether the cattle they saw on the land belonged to the father, B. F. West, or the son, H. E. West. B. F. West, had filed, in another suit, a disclaimer of any interest in the land here involved. The evidence further shows that the fence around the land was sometimes down and at other times insufficient to turn stock. Under such evidence the trial court very properly held that H. E. West had failed to establish title under the ten-year statute of limitation (Art. 5510).

The judgment is affirmed.


author: PRICE, Chief Justice.

text:
    BOWER v. NELSON.
    No. 3912.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 23, 1940.
    Rehearing Denied March 21, 1940.

      Ditzler H. Jones, of Uvalde, for appellant.
    John W. Hill, of Rocksprings, for ap-pellee.
   PRICE, Chief Justice.

This action was instituted in the District Court of Edwards County by Mrs. H. G. Nelson, as plaintiff, against H. Bower, as. defendant. One count of plaintiff’s petition was in trespass to try title, seeking to recover title and possession of a tract of land in Edwards County containing 109 acres, being a part of the Solomon Page League and Labor; in the alternative, the cancellation of a purported deed of trust executed and delivered on the 7th day of February, 1931, by Alfred Nelson, the deceased "husband of plaintiff, to S. W. Stroud. This deed of trust purported to secure five notes of $300 each, and in the deed of trust recited to be part of the purchase money of the tract of land above described. The ■notes were payable to Stroud and signed ~by Nelson. It was alleged that the notes were not for purchase money; that at the time of the giving thereof the property was and had been the homestead of plaintiff and "her now deceased husband; that the property was the separate property of plaintiff, Raving been paid for with the separate funds of plaintiff; that the property in question had been deeded to Alfred Nelson •on March 16, 1926 by Stroud for a cash ■consideration of $2313, and that all of same was paid at that time, the separate funds of ■plaintiff being used to make such payment. “Various statutes of limitation were pleaded 'by plaintiff. The transfer of the deed of trust from Stroud to Bower was also •sought to be cancelled.

Defendant Bower answered by plea of ■not guilty, and sought to have the heirs of Alfred Nelson, deceased, made parties; by cross action impleaded S. W. Stroud, and sought judgment for his debt, together with a foreclosure of the deed of trust lien; .and set up that he was an innocent purchaser of the notes and deed of trust in due •course before maturity of the notes; that the notes were endorsed in blank by Stroud. Appellant sought judgment for the debt ■against Stroud, the establishment of the •debt as to plaintiff and the other heirs of Alfred Nelson, with foreclosure of the deed of trust.

All of the heirs at law of Alfred Nelson, •deceased, appeared in the proceeding and filed a disclaimer in favor of appellee, who •was their mother.

Citation was issued and served upon Stroud on the cross action of appellant, but answer was not filed by Stroud to the cross .action.

The trial was by the court and judgment was in favor of the plaintiff for the land, for the cancellation of the deed of trust and the transfer thereof, and that appellant recover of Stroud on the notes. All other relief sought by the cross action was denied. The judgment was by default against Stroud.

On motion of appellant the court made findings of fact and conclusions of law. These findings are very clear, covering all issues in the case and sustained throughout by the evidence. The conclusions of law, as filed, are sustained by the facts found.

Defendant Bower perfected an appeal from the judgment rendered and the case is here for review.

Plaintiff was the surviving widow of Alfred Nelson, deceased, who died intestate sometime in the year 1935. No administration was taken out on the estate of Nelson, as at the time of his death he was not seized of property subject thereto. The property in controversy was conveyed by S. W. Stroud to said Alfred Nelson by deed dated the 16th day of March, 1926, the deed reciting the payment of $2313, and acknowledging receipt thereof. The trial court found that the money used in the payment of the consideration therein recit.ed was from the separate estate of plaintiff and that the total consideration had been paid as recited.

On the 7th day of February, 1931, Alfred Nelson executed and delivered a deed of trust to W. A. Morris, as trustee for S. W. Stroud, purporting to convey the property to said Morris for the purpose of securing Stroud in the payment of five promissory notes in the sum of $300 each, signed on the date of the deed of trust by Nelson and payable to Stroud. It is recited in the deed of trust that the notes were given as part payment of the land in controversy, conveyed by deed as aforesaid by Stroud to Nelson on March 16, 1926, “and upon which said land a vendor’s lien is intended to be retained.” The above recitals were made in the instr,ument as to each of the notes. The deed from Stroud to Nelson of date March 16, 1926 was of record on the date of the execution of the above described deed of trust. On or about the 7th day of February, 1931, defendant Bower bought these notes before maturity from Stroud, paying therefor the sum of $1000. Stroud endorsed the notes in blank and at the same time executed and delivered the transfer of the deed of trust to Bower. Bower paid for the notes without any investigation as to whether or not same were secured by vendor’s lien, and in so doing relied solely on the recitals in the deed of trust.

Appellee from the date of the deed from Stroud to Nelson, March 16, 1926, to the date of the death of her husband in 1935, occupied the property as a homestead and from his death has continuously occupied same as such.

The only evidence that Nelson 'did not pay in cash for the land, as recited in the deed of March 16, 1926, is the recital in the subsequent deed of trust of February 7, 1931, in which appellee did not join.

The legal propositions governing the disposition of this case are few and simple. Article 16, Section SI, of the Constitution, Vernon’s Ann. St., defines “rural homestead.” The land here involved is indisputably such homestead. Section 50 of the same article of the Constitution provides for the exemption of such a homestead and the exceptions, and further provides that no mortgage, trust deed, etc., shall ever be valid except for the purchase money, etc.

The lien sought to be enforced is a deed of trust lien on a homestead. It was given subsequent to the time the property became such. Unless in truth and in fact it represented unpaid purchase money, it is invalid. The vendor’s lien asserted by appellant is an implied one; the deed negatived the existence of any other sort of lien. The evidence fails to show a contract for a vendor’s lien—other, of course, than the deed of trust itself.

In order that there be a vendor’s lien there must be a showing that part of the purchase money is unpaid. It would seem that one asserting such a lien has the burden of proving the facts necessary to establish same.

On March 16, 1926 appellant’s predecessor in title, in a deed in the chain of title under which appellant claims, made a declaration that the purchase money of the land had been paid in full. This declaration is entitled to considerable credit as to the truth of the facts recited. Martin v. Weyman, 26 Tex. 460; Russell v. Beckert, Tex.Civ.App., 195 S.W. 607; Luna v. Johnston, Tex.Civ.App., 11 S.W.2d 350.

The recitation in the deed of trust of February, 1931, is an admission and declaration by Alfred Nelson that the purchase money for the land in controversy had not been paid to the extent of $1500. It is true, a husband acting in good faith has very broad powers as to a valid encumbrance on the homestead. White v. Shepperd, 16 Tex. 163, 172; McDougal v. Bradford, 80 Tex. 568, 16 S.W. 619. However, to vest this authority in the husband, the homestead must be subject to a valid lien. After the homestead rights have attached the husband, acting alone, cannot create a lien against same.

Here the trial court has found on conflicting evidence that the consideration for the conveyance was paid in full on the execution of the deed to the homestead. This finding is amply supported by the evidence. Such finding must be the basis of the application of the law. Under the above cited provisions of the Constitution this deed of trust is and was at all times utterly void.

There is a contention in substance that appellee is estopped to set up the defense of homestead. It is true that her husband represented in the deed of trust in question that the notes evidenced a purchase money obligation. But, even though the homestead had been community property, the wife would have to have been guilty of active deceit or concealment before an estoppel would be effective as to her homestead rights. Her husband had no right to mortgage same; and by his conduct alone by estoppel cannot create a mortgage forbidden by the Constitution. Rhodes v. Jones, 26 Tex.Civ.App. 568, 64 S.W. 699.

The evidence totally fails to show any participation by appellee in the deed of trust. In fact it tends strongly to show that she knew nothing about it until a short time prior to the institution of this action by her.

Appellant asserts that in any event he was entitled to a judgment establishing his debt against the estate- of Alfred Nelson. It was agreed that there was no administration on the estate and, further, there was no necessity therefor. This agreement precludes a judgment against the estate. The heirs were parties to this suit, but it was not shown that they inherited any property. The homestead, even had same been community property, was not subject to debts. Hoefling v. Hoefling, 106 Tex. 350, 167 S.W. 210.

We deem the issues we have discussed basic and fundamental and controlling in this case. All other assignments Of error urged against the judgment have been carefully considered and same are hereby overruled.

The judgment is affirmed.


author: O’QUINN, Justice.

text:
    WILLIAMS et al. v. SOUTH TEXAS DEVELOPMENT CO. et al.
    No. 3602.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 21, 1940.
    Rehearing Denied March 27, 1940.
    Dick Young, Stevens & Stevens, and Eugene Bruce, all of Houston, for appellants.
    Pitts & Liles, of Conroe,' and R. E. Seagler, Vinson, Elkins, Weems & Francis, John C. Townes, Sewell, Taylor, Morris & Connally, R. C. Sewell, Fouts, Amer-man & Moore, A. E. Amerman, and Charles A. Perlits, Jr., all of Houston, for appellees.
   O’QUINN, Justice.

Myrta Williams Williams, joined by her husband, J. V. Williams; Iduma Williams Heffernan, joined by her husband, J. E-Heffernan; Beatrice Williams Carlile, joined by her husband, R. G. Carlile; J. H.. Carlile and his wife, Carrie Carlile; I. A. Leach; Lawrence Lipper; and William F. Grimes, brought this suit against the South Texas Development Company, a corporation, chartered under the laws of the State of New York with a permit to do business in Texas, and having its-principal office in Houston, Texas, with Charles S. Atchison, its manager, residing in the City of Houston; the Strake Oil Corporation, a Texas corporation, with George W. Strake, its president, residing in the City of Houston; the Humble Oil & Refining Company, a Texas corporation, with R. L. Blaffer, its president, residing in the City of Houston, and R. C. Sewell, George W. Strake, T. M. Now-lin, Charles S. Atchison, Fred Williams, W. C. Gray and E. B. Sisk, all residents of Harris County, Texas; and C. B. Stewart, County Clerk of Montgomery County, Texas, and Hester Montgomery, Deputy County Clerk of Montgomery County, Texas, each residing at Conroe in Montgomery County, to recover from the defendants South Texas Development Company, Strake Oil Corporation, George Strake and the Humble Oil & Refining Company damages in the sum of $6,000,-000 as damages for the unlawful taking and wilful removal and conversion of oil from a tract of 160 acres of land known as the Charles L. Rogers tract out of the Theo. Slade Survey situated in Montgomery County, Texas, said sum being the manufactured value of the oil taken from said land; and in the alternative, if they (plaintiffs) were not entitled to recover for the manufactured value of the oil, then that they recover against said defendants the sum of $1,000,000 as the actual market value of the oil so taken by defendants. They further and specially prayed for judgment in the sum of $6,133,333.33 against all the defendants, jointly and severally, as damages, for the wrongful, unlawful, and fraudulent destruction and suppression of “Plaintiffs’ evidence of title, as set forth in paragraphs XIV and XV" of their petition.

Plaintiffs alleged that Charles L. Rogers, who was the owner in fee simple of the land, conveyed same to W. F. Williams by warranty deed on October 1, 1904, and which deed was duly recorded in Vol. 34, at page 640 of the D.eed Records of Montgomery County, Texas; that the page on which said deed was recorded had been surreptitiously and fraudulently removed from said volume of the deed records of said county, and that said Charles L. Rogers on November 9, 1933, duly executed to W.' F. Williams, his heirs and assigns, a deed in confirmation of the deed theretofore executed to said Williams, which confirmation deed was duly placed of record. They alleged that Myrta Williams Williams, Iduma Williams Heffernan and Beatrice Williams Car-lile were the sole surviving heirs of W. F. Williams, deceased, and his wife, Viola Fort Williams, also deceased; that plaintiff I. A. Leach was the surviving husband of Bessie Lee Williams, who died intestate and without issue; and that the other plaintiffs were persons who owned an interest in the land in controversy from the Reirs of W. F. Williams and his wife, Viola Fort Williams, both deceased.

The defendants Hester Montgomery, C. B. Stewart, E. B. Sisk, T. M. Now-lin, W. C. Gray and R. C. Sewell by counsel answered by general demurrer, and general denial. The other defendants, corporations and their named officers, answered fully.

At the conclusion of the evidence, it appearing to the court that all of the .plaintiffs, except J. H. Carlile and his wife, Carrie Carlile, who claimed as grantees of A. B. Carlile, had wholly abandoned their asserted cause of action and refused to further prosecute same, same was dismissed, and the cause as to J. H. Carlile and. his wife, Carrie Carlile, as plaintiffs was submitted to a jury upon special issues and upon their verdict judgment was rendered that said plaintiffs, J. H. Carlile and Carrie Car-lile, take nothing and that all of the defendants go hence without day. Motion for a new trial was overruled, and hence this appeal.

The title to the land, 160 acres out of the Theo. Slade Survey in Montgomery County, Texas, passed by regular conveyances from the sovereignty of the soil to J. R. Bondurant. On February 1, 1904, he was the owner of the land, and on that date, February 1, 1904, by warranty deed conveyed the land to Charles L. Rogers and A. J. Thurston, Rogers paying four-fifths, and Thurston paying one-fifth of the purchase money. For convenience the deed was taken in the name of Rogers. This deed was duly recorded. April 7, 1904, Rogers executed a declaration of trust evidencing Thurston’s one-fifth interest, and this declaration was duly recorded in the deed records of Montgomery County. Thereafter in a suit for partition styled Charles L. Rogers v. Cash et al., A. J. Thurston was awarded a tract of land out of the Theo. Slade Survey, including the 160 acres here in question. January 20, 1910, Thurston conveyed the land, with other tracts, to the South Texas Development Company. This deed was duly recorded.

The South Texas Development Company, since receiving its deed from Thurs-ton, has continously owned the fee simple title to the land. On October 21, 1929, the South Texas Development Company gave an oil, gas and mineral lease covering the land to George W. Strake, which was by mesne conveyances assigned to the Humble Oil & Refining Company.

Appellants base their claim on a regular warranty deed which they assert was executed by Charles L. Rogers to W. F. Williams on October 1, 1904, and which deed they allege was recorded in volume 34, at page 640 of the Deed Records of Montgomery County, Texas, but which record of said deed was on or about August 1, 1932, by some person cut out, and removed from said record and destroyed. They further alleged that on November 9, 1933, Charles L. Rogers, for the purpose of and in full ratification of the deed by him executed to W. F. Williams on October 1, 1904, in which he conveyed to Williams the land here involved, executed to W. F. Williams a deed conveying said land. This deed was recorded.

Defendants challenged the deed of October 1, 1904, denied its existence and by affidavit duly filed denounced it as a forgery. They also alleged that the deed of November 9, 1933, purporting to ratify and and confirm the alleged deed of October 1, 1904, was obtained from Charles L. Rogers by misrepresentations and fraud.

The court submitted to the jury special issue No. 1, which read: “Do you find from a preponderance of the evidence that Charles L. Rogers executed and delivered a deed dated October 1, 1904, to W. F. Williams conveying 160 acres described in Plaintiffs’ petition”? Answer “Yes”, or “No”. The jury answered “No.” On this answer judgment was rendered for defendants.

When appellants offered in evidence' the deed from Charles L. Rogers to W. F. Williams of date November 9, 1933, confirming and ratifying the alleged deed of date October 1, 1904, from said Rogers to said Williams, conveying the land in controversy, appellees objected to the admission of that part of the instrument reciting the reasons stated in the deed for the execution of said deed as improper and prejudicial and incompetent, being a recital of facts that the maker of the deed could not possibly .know, and not binding upon appellees, they being strangers to the instrument. These objections were sustained. This ruling is assigned as error.

The instrument denominated a deed of confirmation was regular in all respects, except the recitations as to why it was executed. These recitals are: “This is a deed of confirmation and is in conformation and ratification of that certain deed executed by me on the 1st day of October, A. D. 1904, and recorded 'October 20th. A. D. 1904, in Volume 34, P. 640, of the Deed Records of Montgomery County, Texas, conveying the above described property to the said W. F. Williams, of Montgomery County, Texas, and being necessary for the reason that the original deed has been partially destroyed and the page or pages of the Records of said Montgomery County, Texas, upon which the said deed was transcribed have been wholly taken from the said Record and lost, misplaced or destroyed”.

The question of the execution of the deed by Charles L. Rogers to W. F. Williams in 1904, conveying the land, was one of fact. It is contended by appellants that the recitals in the confirmation deed should have been admitted as a circumstance tending to prove that he did execute the 1904 deed. There is no bill of exceptions in the record to the action of the court in - sustaining the objections to the admission of the recitals-in the deed of the reasons for its execution. Appellants say that a bill of exception was not necessary because the exception otherwise appears of record and refer to Article 2237, R.S.1925, Vernon’s Ann.Civ.St. art. 2237. We have made careful search of the statement of facts and have failed to find where appellants excepted to the ruling of the court in. excluding the evidence offered. In other words, from an examination of the-whole record, transcript and statement of facts, we nowhere find such exception. Under this state of the record the assignment • can not be considered. First Nat. Bank v. Crocker, Tex.Civ.App., 80 S.W.2d 442. It appears from the record that the counsel for appellants who tried the case, when the admissibility of the evidence was under discussion before the' court, commented: “Your Honor, I concede that the majority of the cases and the law counsel has read is the law. The deed contains recitals I am quite sure Mr. Rogers couldn’t have possibly known, but which was carried to him by some one. I am sure, if he executed a deed in 1904, he couldn’t have known what volume and page it would have been in, or would have ever taken any personal interest in the land himself. Those declarations there, of course, are nothing.” Being of that opinion, that may explain the absence from the record of any exception to the court’s ruling. The attorney whp briefed the case for appellants was not the attorney that tried the case below.

However, if there had been exception to the court’s exclusion of the recitals in the deed, we would still hold that the objection to the admission of the recitals was properly sustained. The recitals were as to a transaction between Rogers and Williams, and appellees not being parties to the transaction nor privies thereto, but strangers to the transaction, the recitals could not be binding upon them. Watkins v. Smith, 91 Tex. 589, 45 S.W. 560; Teagarden v. Patten, 48 Tex.Civ.App. 571, 107 S.W. 909, writ denied; Schriver v. Taylor, Tex.Civ.App., 143 S.W. 231, writ denied; Roberts v. Waddell, Tex.Civ.App., 94 S.W.2d 211; Wilder v. American Produce Co., Tex.Civ.App., 106 S.W.2d 1073; Simonds v. Stanolind Oil & Gas Co., Tex.Sup., 114 S.W.2d 226. Moreover, the recitals being made by a person out of court, not under oath, nor subject to cross-examination, and offered to prove the truth of the facts recited, was clearly hearsay, and so not competent and inadmissible. McCormick’s Texas Law of Evidence, p. 774, Section 614. The confirmation deed containing the recitals was dated November 9, 1933, and so was not an ancient instrument. Neither were the recitals the contents of the 1904 deed, which it purported to confirm, but were merely recitals as reasons for the execution of the deed itself.

The verdict of the jury in answer to special issue No. 1, that Charles L. Rogers did not execute a deed to W. F. Williams on October 1, 1904, conveying to him the 160 acres of land in controversy, has ample support in the record. Appellant alleged the execution of such deed and that it was recorded in Vol. 34 on page 640 of the Deed Records of Montgomery County, Texas, and that some person, for the purpose of destroying that record and defeating their title to the land, had cut out, removed and destroyed said page 640 of such record, and that the deed from Rogers to Williams was executed in confirmation of the deed, the .record of which had been destroyed. Appellees denied that any such deed ever existed and denounced it as a forgery. A. B. Carlile, son of appellants, and who conveyed to them his asserted interest in the property in controversy, witness for appellants, testified that T. M. Nowlin, W. F. Grimes, Lawrence Lipper, A. M. Waugh and himself manufactured a deed such as was alleged to have been executed by Charles L. Rogers to W. F. Williams on October 1, 1904, and recorded in Vol. 34, page 640 of the Deed Records of Montgomery County, with Rogers’ signature and an acknowledgment before an officer, and the signature of C. B. Stewart, Clerk of the County Court of Montgomery County, with certificate of the clerk as to its recordation, and that he and some of the others went to Galveston and had a copy of the Montgomery County seal and rubber certificate stamp made and said seal and stamp were used and placed on the forged 1904 deed to show the execution of said deed and that same was recorded in Vol. 34 on page 640. That a photostatic copy of the deed they forged was made to be used in inducing Charles L. Rogers to execute the confirmation deed. Charles L. Rogers by deposition testified that in the month of October, 1933, T. M. Now-lin of Houston, Texas, came to Men dota, Illinois, to see him about a tract of 160 acres of land out of the Slade survey in Montgomery County, Texas, that he, Rogers was supposed to have sold to one W. F. Williams; that he told Nowlin that he did not remember ever having sold any land to Williams, but that Now-lin presented to him what purported to be photostatic copies of a certified deed made by the County Clerk of Montgomery County, Texas, showing he had made such deed; although he did not remember selling any land to W. F. Williams that the documents showed to him by Nowlin, and Nowlin’s arguments were so convincing in the absence of any better information or record, he assumed that he had had some transaction of the kind with Williams, and the details had slipped his memory, and not wanting to prevent any one from receiving property that rightfully belonged to them, and relying upon the evidence produced by Nowlin, he gave him a confirmation deed in which he attempted to confirm what was represented to him to be a sale he had made in 1904. Further testifying, he said that he had never known W. F. Williams; that he did not sell W. F. Williams the land in the Slade survey or any land; that he did not execute the deed of which the photostatic copy purported to be a copy; that W. F. Grimes and A. C. Springfield also came to Mendota, Ill., to see him and urged him to execute the confirmation deed. While page 640 of volume 34 on which it was alleged by appellants that the deed of 1904 from Rogers to Williams was recorded, had been cut out and was gone, C. B. Stewart, County Clerk of Montgomery County, Texas, arid one of the defendants, testified by deposition that no such deed as alleged by appellants from Rogers to Williams conveying the land in controversy, was or had ever been recorded in volume 34 on page 640 of the Deed Records of Montgomery County, Texas; that the instrument recorded on page 640 was a continuation of another instrument begun on page 638 of volume 34. We make no further effort to state evidence tending to show that no such deed as that alleged by appellants from Rogers to Williams in 1904, was executed by Rogers or recorded in the Deed Records of Montgomery. There was much such evidence.

No error appearing, the judgment should be affirmed, and it so ordered.

Affirmed.


author: BROWN, Justice.

text:
    FLETCHER v. McFALL.
    No. 14045.
    Court of Civil Appeals of Texas. Fort Worth.
    March 8, 1940.
    Rehearing Denied April 5, 1940.
    J. Earle Kuntz and McDonald & Anderson, all of Wichita Falls, for appellant.
    John Davenport, of Wichita Falls, for appellee.
   BROWN, Justice.

Appellant Fletcher sued appellee McFall for personal injuries sustained by appellant, after night fall, when appellee’s automobile ran into appellant’s horse-drawn wagon, on a public highway in Wichita County, Texas.

Negligence of the appellee’s employee, who was driving the automobile, was alleged in several particulars, and the cause being tried to a jury, findings were made in favor of appellant that require the rendition of a judgment in his favor, unless there is some finding of contributory negligence on the part of appellant that would defeat a recovery by him.

We find the defense of contributory negligence pleaded, in substance, as follows: That plaintiff was driving his wagon on the highway, after dark, “without any kind or character of lights, either in front or behind said vehicle”; and “without having displayed a red or yellow light on the back of said wagon”;- and “without having any flares of any kind upon the back of said wagon”; and “without having any character of signal on his vehicle”; and “driving upon said-highway one-half hour after sundown without any light of any kind or character on the back of his wagon”; “and defendant says that by reason of the fact that plaintiff failed to comply with the law of the road by placing some kind of flare or signal upon the back of his wagon, the accident could not have been avoided, etc.”

It will be observed that there is no pleading to the effect that the plaintiff failed to equip his wagon “with adequate reflectors”, in compliance with what is known as the Law of the Road, Arts. 801 through 827d, Penal Code. This is the vital point in this case, as will be seen.

The statute upon which the defendant was relying is Section 9 of Article 827a, Penal Code, Vernon’s Ann. Penal Code of Texas. This article begins by making it applicable to all motor vehicles “other than any road roller, road machinery or farm tractor, having a width at any part in excess of seventy (70) inches”, and requires 'Such motor vehicles to carry two clearance lamps on the left side of such vehicle, etc., and further provides that such vehicles “may, in lieu of such clearance lights, be equipped with adequate reflectors conforming as to color and marginal location to the requirements for clearance lights” ; and describes what is deemed to be an adequate reflector, and requires the approval of “the Department” before such may be lawfully used, and then the statute provides:

“All vehicles not heretofore by law required to be equipped with specified lighted lamps shall carry one or more lighted lamps or lanterns displaying a white light visible under normal atmospheric conditions from a distance of not less than five hundred (500) feet to the front of such vehicle and displaying a red or yellow light visible under like conditions from a distance of not less than five hundred (500) feet to the rear of such vehicle, which light shall be kept lighted while the vehicle is upon a highway from one-half hour after sunset to one-half hour before sunrise.
“Provided, however, that vehicles drawn by animal power may in lieu of such lamps or lanterns be equipped with adequate reflectors.”

It is undisputed that appellant had no reflector on the rear of his wagon.

The cause being submitted to a jury on special issues, the jury found that appellee’s employee in charge of the automobile failed to keep a proper lookout; this was negligence and á proximate cause of plaintiff’s injury; that the automobile, at the time of the collision, was being operated at a time which was more than 30 minutes after sundown; that it was being operated without having adequate lights burning; that this was negligence and a proximate cause of plaintiff’s injuries; the damages awarded the plaintiff were $1,800, for injuries to his person.

Special Issue No. 13 was submitted as follows: “Do you find from a preponderance of the evidence that the failure of plaintiff to have a reflector on the back of his wagon proximately caused or proximately contributed to cause the collision, if any?” The jury answered: “Yes.”

It was stipulated and agreed on the trial that plaintiff’s doctor’s bill was $95, and his hospital bill was $97.50. No proof was required on these items.

Plaintiff below (and appellant here) moved for judgment notwithstanding the verdict, and requested the trial court to disregard the finding of the jury made in answer to issue No. 13, the trial court overruled such motion, and sustained the defendant’s motion for judgment on the verdict, and judgment was rendered that plaintiff take nothing. The plaintiff has appealed and asks that the judgment of the trial court be reversed and judgment here rendered for him. We believe his prayer should be granted.

Appellee not having pleaded negligence on the part of the plaintiff in failing to have an adequate reflector on the rear of his wagon, such issue was not raised by the pleadings and even though plaintiff admitted that he had no reflector on the wagon, the submission of issue No. 13 was improper and the trial court should have disregarded the answer to it.

This is an established rule in Texas. But we think the answer should be disregarded for another reason.

What is the purpose of the “reflectors” that are provided for in the statute? These are devices constructed to catch the rays of light thrown by the headlights of vehicles approaching from behind so that they will cause the “reflector” to shine as if it were a light.

Of what use could a “reflector” be on the rear of any vehicle unless the one approaching from behind had adequate lights burning ? Obviously none.

The undisputed testimony shows that ap-pellee’s automobile was being driven after dark without any headlights, and, in answer to the issue propounded, the jury found that the car was being driven “without having adequate lights burning on same.”

We hold that, as a matter of law, the failure to have a reflector on the back of the wagon could not be a proximate cause of the collision, when there was no adequate headlight burning on appellee’s automobile. If the rear of appellant’s wagon had been plastered with reflectors, they would have been utterly useless in the absence of a light, or lights, to shine upon them.

No other issue of contributory negligence was submitted and none requested, and no objection was urged against the charge.

For the reasons stated, the judgment of the trial court is reversed and judgment is here rendered for appellant, in the sum of $1,992.50, and all costs.


author: ALEXANDER, Justice.

text:
    ROTHCHILD v. TURNER et al.
    No. 2261.
    Court of Civil Appeals of Texas. Waco.
    March 14, 1940.
    Rehearing Denied April 4, 1940.
    Lynn B. Griffith and Forrester Hancock, both of Waxahachie, and Willard McLaughlin and Leonard Gorin, both of Waco, for plaintiff in error.
    W. M. Tidwell, of'Ennis, for defendants in error.
   ALEXANDER, Justice.

The defendants in error have filed a motion to strike plaintiff in error’s brief and to affirm the judgment of the lower court because the brief was not filed within the time required by law. The judgment was entered in favor of the defendants in error against plaintiff in error on June 2, 1939, for the sum of $196.35. The cause was removed to this court by writ of error, the transcript being filed herein on the 20th of September, 1939. On the 11th of January, 1940, this court set the cause for submission for the 7th of March, 1940. Although the plaintiff in error was duly advised of the setting, he did not file his brief herein until March 5, 1940, which was not within the time provided by the statutes. R.S. art. 1846, as amended, Vernon’s Ann. Civ.St. art. 1846. No excuse has been given for the failure to file the briefs within the time required by law.

It is a very well established rule that a plaintiff in error’s unexcused failure to file briefs until after the time provided by law has expired requires the sustaining of a motion to strike the briefs and to affirm the judgment of the lower court. McGraw v. Broach, Tex.Civ.App., 46 S.W.2d 1056; Duncan v. Scott, Tex.Civ.App., 128 S.W.2d 136.

But if we were to consider plaintiff in error’s brief, the result would be the same. The only assignments of error and' propositions contained therein relate to alleged improper argument of counsel and the insufficiency of the evidence to support the verdict of the jury. There is no bill of exception in the record concerning the alleged improper argument of counsel, and consequently, that assignment cannot be considered. 3 Tex.Jur. 581; Chandler v. Weimers, Tex.Civ.App., 4 S.W.2d 569. There is no statement of the facts introduced in the lower court, and, therefore, under well established rules and for obvious reasons, we cannot determine whether the evidence was sufficient to sustain the verdict. 3 Tex.Jur. 540; Treadwell v. Borchers, Tex.Civ.App., 289 S.W. 75.

Plaintiff in error’s brief will be stricken from the record, and the judgment of the trial court is affirmed.


text:
    GORIN et al. v. MOSS et al.
    No. 14051.
    Court of Civil Appeals of Texas. Fort Worth.
    March 15, 1940.
    McDonald & Anderson, of Wichita Falls, for appellants.
    J. V. Patterson and C. T. Gettys, both of Decatur, and W. E. George, of Wichita Falls, for appellees.
   BROWN, Justice.

This is a suit in trespass to try title, brought on November 14th, 1938, by appel-lees, I. W. Moss and wife, against Edna Gorin and her husband, Claude Gorin. The cause was tried to the court and resulted in a judgment for the • plaintiffs, and defendants have appealed.

Edna Gorin is a daughter of Olan White, who bought the lands in controversy on February 1st, 1932, from J. M. Reed and others, who executed a proper deed thereto.

On March 22nd, 1934, Olan White conveyed the property to M. M. Spurrell, and Spurrell, on April 28th, 1934, conveyed same to A. W. Crofton, and Crofton conveyed same to W. E. George on April 2nd, 1937, and George conveyed same to W. A. Baker on April 5th, 1937, and Baker, on September 17th, 1937, conveyed same to the plaintiffs, I. W. Moss and wife, Birdie Krebs Moss.

In addition to the formal answer, the defendants alleged that Mrs. Edna Gorin was, on or about April 11th, 1932, a single woman, named Edna White, that she was a minor 15 years of age, and that, on such date, her father deeded the property to her, making her a gift of the lands; that she married Claude Gorin on or about October 5th, 1935, with whom she has lived ever since; that she has at all times claimed the lands as her separate estate; that she and her husband did not know of any adverse claim to the land being asserted by any person until in the month of October, 1938, when one of plaintiffs’ attorneys sought to. induce them to execute a quitclaim deed to the lands to Moss and wife, all of which they refused to do. That said counsel for plaintiffs exhibited an abstract of title covering the lands which purported to contain a deed executed by her to her father, conveying the lands to him, some time in the year 1934;, that when confronted with such purported deed she (Mrs. Gorin) promptly disaffirmed it and that she now disaffirms it, and that she never knowingly signed such an instrument and never legally acknowledged it, and that it purports to have been executed by her when she was only 17 years old. She alleged that such deed is void, and if not void, that it is voidable by her, and she “disavows and disaffirms said deed”; that it constitutes a cloud upon her title and she prays that the deed be cancelled and the cloud thus cast be removed. The defendants prayed that plaintiffs take nothing and that Mrs. Gorin recover judgment as prayed for.

The plaintiffs, in answer to such pleading, alleged that the deed from Olan White to his daughter Edna was one conveying the property to the daughter in trust, to be held by her in such capacity and to be recon-veyed to the father at his instance and request. The pleading further alleges that, if at the time Edna White reconveyed the lands to her father she was in fact a minor, she failed to disaffirm such deed within a reasonable time after she reached her majority, and after she became of legal age by marriage.

In answer to such replication by the plaintiffs, the defendants alleged that the deed was executed to White without any consideration moving to Edna White.

A very interesting question, raised by the facts, occurs to us: Olan White, grantee in the deed from his daughter, Edna, was not made a party to her cross-action, in which she seeks cancellation of such deed. He is living and is a resident citizen of the State of Texas.

If the rule in cases for rescission and cancellation which requires that all parties to a deed, contract or other writing, or interested in the contract, must be made either parties plaintiff or defendant is to be recognized; and if the reason for such rule is sound — the reason being that the decree operates in personam, rather than in rem, and the rights and interests of all persons growing out of or connected with the subject matter of the dispute must be adjudicated in one suit- — then we are confronted with the following probable and altogether possible situation: suppose the deed from Edna White (Gorin) to Olan White is cancelled in this proceeding, to which Olan White is not a party, and then a suit or suits on the several warranties be brought, and Olan White succeeds in the suit against him in showing that he had title to the lands and conveyed a good and merchantable fee-simple title to his grantee, we would have the ridiculous example of the deed being upheld in one suit and destroyed in another.

But be that as it may, the trial court heard all of the witnesses and weighed the testimony and concluded that the plaintiffs are entitled to recover against defendants. Neither the trial court, sitting in the absence of a jury, nor the jury, must of necessity accept the testimony of a party to the suit, and if the court or jury disbelieves the party, they have the right to disregard all, or any portion, of such party’s testimony and may look to other circumstances in arriving at a decision.

Moore v. Conway, Tex.Civ.App., 108 S.W.2d 954, in which scores of cases are cited, many of them Supreme Court decisions, clearly announces this rule.

The trial court could have rendered judgment for the plaintiffs on more than one theory, and after reading the entire statement of facts, we conclude that the judgment of the trial court should be affirmed.