author: SMITH, Chief Justice.

text:
    WILSON v. WEST.
    No. 10845.
    Court of Civil Appeals of Texas. San Antonio.
    March 19, 1941.
    Rehearing Denied April 16, 1941.
    L. J. Wardlaw, of Fort Worth, and Bog-gess & Lowrey, of Del Rio, for appellant.
    Jones & Jones, of Del Rio, Davidson- & Smith, pf Ozona, R. G. Hughes and D. B. Hardeman, both of San Angelo, and A. Morales, Jr., of Del Rio, for appellee.
   SMITH, Chief Justice.

Appellant, Wilson, and appellee, West,, will be referred to as plaintiff and defendant, respectively, as in the court below.

Plaintiff brought the suit in the form of an action in trespass to try title to recover a strip of land out of the east side of Surveys 119, 120, 121½ and 122, in certain grants in Val Verde County. From an adverse judgment, based on a directed verdict for West, Wilson has appealed.

Prior to the trial, the attorneys for the respective parties entered into written stipulation of facts concerning the title to certain lands which embraced the strip in dispute. Those stipulations were put in evidence without objection. In addition, plaintiff himself testified at great length in support of his claim of title, by limitation, and also offered in evidence a certificate of the Commissioner of the General Land Office of the State, from the records of his office, which, if given effect, would have let in plaintiff’s claim of limitation title, under the ten-year statute, if otherwise established by proof of appropriate possession. The trial judge excluded this certificate on the objection that the facts recited therein were in partial conflict with the agreed stipulations, which they were. At the conclusion of the evidence, the trial judge directed a verdict for defendant, as stated.

Defendant has presented his appeal upon two briefed assignments of error. It is first contended that the court erred in excluding the certificate of the Commissioner of the General Land Office, which included recitations that the east one-half of Survey 119, and Surveys 120 and 122, were “bought and fully paid for on the application of El-sey Smith, filed in the General Land Office on the 9th of June, 1906, under the laws regulating the Sale of Public Free School Land.” This recitation of fact was in conflict with the stipulation of facts agreed to by the parties and already in evidence without objection, that those three surveys were patented by the State in November, 1929, and “that all of said * * * tracts of land * * * were, prior to the date of the patents thereto, common school lands belonging to the Common School Fund of the State of Texas.” The certificate was rejected because of that conceded conflict. Obviously, it was not admissible unless and until the contrary stipulation was nullified by consent or order of court. Plaintiff did not claim surprise at this denouement, or seek relief from the stipulation. The trial judge therefore had no alternative in that situation but to exclude the certificate, as he did'. Plaintiffs first assignment of error and the proposition thereunder must be overruled.

We copy plaintiff’s second assignment of error, as set out in his brief: “An instructed verdict against the plaintiff in favor of defendant was given because of an agreement that had been made between the respective attorneys for the parties, •which was introduced in evidence. The amended motion for new trial sets forth certain grounds and reasons why plaintiff should have been relieved from that agreement and a new trial granted so that upon another trial the plaintiff would have been freed from the agreement The court abused his discretion in not granting the new trial for the reasons and upon the grounds set forth, and this abuse of discretion is assigned as error. (Fourth ground of amended motion for new trial, Tr. 11-27.)”

By reference to the transcript, we find that the fourth ground of plaintiff’s amended motion for new trial is eighteen pages long and includes a full statement of the evidence, both parol and documentary, taken upon the hearing of the amended motion. But plaintiff is restricted to the assignment of error copied into his brief, which is obviously too general and indefinite to constitute an assignment of error under the statutes and rules. Nevertheless, we have very carefully examined the whole record and have reached the firm conclusion that the trial judge did not abuse his discretion in refusing to grant a new trial in order to afford an opportunity to plaintiff to move for relief from the agreements made in his behalf by his counsel and given effect upon the trial of the case. It is not deemed necessary to set out in this opinion the agreement of which plaintiff now complains. It ought to be sufficient to say that plaintiff concedes that the stipulations in that agreement, when analyzed, constituted admissions of fact which, when given effect, entitled defendant to judgment for the land for which plaintiff brought and prosecuted the suit.

The stipulations were deliberately entered into in a written agreement of counsel made nearly two years before this trial. Counsel for plaintiff retained a copy of the agreement, with unhampered access thereto all the while and through two trials of the cause to which it related; they sought no relief from the agreement after fully realizing, before announcing ready and entering into the final trial, its disastrous effect upon their client’s case; they made no objection to and asked for no relief from its then fully known deadly effects when it was finally put in evidence by their adversaries; and they continued to acquiesce, by silence and with full knowledge, until long after it was given effect in an adverse judgment. Plaintiff complained of the agreement, and sought relief therefrom for the first time in his amended motion for new trial, filed December T3, 1939, final judgment having been rendered on November 27th.

In the hearing of his motion for new trial plaintiff alleged, and he and his counsel testified, that he had not authorized his counsel to make said agreement. But the fact remains, nevertheless, that plaintiff himself was present throughout the trial and testified thereat in great detail; he heard the stipulations read and discussed and their true import repeatedly stated; he saw his and adverse counsel trace on a' wall map the field notes and boundaries which embraced the strip within defendant’s lands, showing them to belong to defendant, and in fact then learned about the agreement and its effect on his case, but did not complain or ask his counsel or the court for relief therefrom. '

The only question remaining, then, is, Will an appellate court in the face of such record overturn the deliberate judgmeht of a fair and impartial and courageous trial judge, arrived at in the exercise of a sound discretion, with a first-hand view of the entire transaction and parties and witnesses ?

We must decline to hold that the trial judge abused his discretion in failing to interfere and upon his own motion reject the stipulation of facts to which counsel for both parties agreed and none objected, and from which the prejudiced party sought no relief, when introduced by the other, or until long after final judgment had been rendered giving it effect.

If plaintiff had asked to be relieved of the agreement when he first learned of its effect upon his case, or even at any time before verdict and final judgment, the trial judge would have been authorized, if not required, to grant it, and his refusal would have been subject to review on appeal. S Tex.Jur. p. 4S4; 39 Tex.Jur. p. 309; Hancock v. Winans, 20 Tex. 320; Botts v. Martin, 44 Tex. 91; McClure v. Sheek’s Heirs, 68 Tex. 426, 4 S.W. 552; Paschall v. Penry, 82 Tex. 673, 18 S.W. 154; Porter v. Holt, 73 Tex. 447, 11 S.W. 494; Chinn v. Taylor, 64 Tex. 385; Cullers v. Platt, 81 Tex. 258, 16 S.W. 1003; Kreis v. Kreis, Tex.Civ.App., 57 S.W.2d 1107; McMillan v. McMillan, Tex.Civ.App., 72 S.W.2d 611.

But plaintiff, with full knowledge, made no such request, sought no such relief, and the trial judge was thereby forced to direct a verdict for defendant, and, plaintiff still acquiescing, to render judgment in accordance with that verdict.

The judgment is affirmed.


source: Caselaw Access Project

author: CODY, Justice..

license: Public Domain

text:
    TIPTON v. HOTEL AND RESTAURANT EMPLOYEES INTERNATIONAL ALLIANCE, LOCAL NO. 808, et al.
    No. 11225.
    Court of Civil Appeals of Texas. Galveston.
    March 13, 1941.

      Bernard A. Golding, of Houston, for appellant.
    Combs & Dixie, of Houston (W. A. Combs, of Houston, of counsel), for appel-lees.
   CODY, Justice..

This is an appeal from an order refusing plaintiff a temporary injunction against the picketing by appellees of plaintiff’s place of business in the City of Houston, and has been advanced for hearing by this Court under R.S.Article 4662. It is hardly necessary to cite authority to the effect that the facts will here be reviewed for the sole purpose of determining whether or not they support the court’s exercise of discretion, and not as to sufficiency to support a final judgment. See San Angelo v. Amalgamated Meat Cutters, etc., Tex.Civ.App., 139 S.W.2d 843.

Appellant’s petition alleged that he owns and is operating a restaurant in Houston, and had been doing so for some two weeks prior to the filing of his petition. Also, it alleged that he has employed three waitresses, two dishwashers, and a night took, and himself working in his cafe; that his employees have been employed by him for a substantial length of time, and that no labor dispute of any kind now exists or has ever existed between him and his employees as to working conditions, hours of employment, wages, or labor unions, and that his employees are entirely satisfied with all conditions of their employment. That about noon on December 14, 1940, certain agents representing Hotel and Restaurant Employees International Alliance, Local No. 808, of Houston (hereinafter called appellee), demanded that appellant sign a contract with appellee, thereby making his cafe a “closed shop”. That appellant refused to execute the contract, and that thereupon, notwithstanding all of appellant’s employees wished to continue working for him, appellee immediately caused a picket line to be established at his cafe, and continues to maintain same. That the pickets continuously carry in front of appellant’s cafe placards reading: “This cafe unfair to Culinary Workers, Local No. 808, Affiliated with A.F. of L.” That this causes the public and appellant’s customers to believe that he is in a dispute with his employees, which is not trae. That this is a boycott and has caused great damage to appellant’s business, will continue so to do, etc. The petition, which is duly verified, also alleges a conspiracy in restraint of trade and a violation of the anti-trust laws. The prayer includes a request for a temporary injunction.

The defendants, inclusive of the one here designated as appellee, answered at length. The answer joins issue on appellant’s allegations that there was no labor dispute between appellant and his employees. The answer also alleged, among other things, that appellee tendered appellant a written contract, which he declined to sign but which he agreed to be bound by and the terms of which he agreed to keep. That appellant, however, discharged one of his cooks who was a member of the union, and replaced him with a negro dishwasher —not a member of the union — and also took down the union card which advertised the cafe as a “union” cafe, and otherwise refused to comply with union regulations as he had agreed to do. That the waitresses, there being four of them, all of whom had been working at the cafe for months (appellant having bought the restaurant only some ten days before this, and all of whom belonged to the union, protested appellant’s conduct and went on the picket line which is now maintained, and said picket line is now also maintained against appellant’s refusal in good faith to negotiate a written contract with the union. The answer also alleged that the picketing was peaceful, and that defendants were merely exercising their right of free speech, etc.

It is not in dispute, we believe, that appellant, at the time he bought this cafe business, took over the employment of those who were then working there. Thes.e employees consisted of two cooks, two dishwashers, and four waitresses. All, except the dishwashers, were members of the union, and the dishwashers are not eligible for membership.

There is no finding of facts filed by the trial court. We do not know therefore just what he considered as the factual basis for his refusal to issue a temporary injunction against the picketing. The evidence, however, is sufficient to support his discretion in so refusing. There was some evidence to the effect that the employees were dissatisfied with working conditions, that the waitresses, who are white, were dissatisfied with the authority and supervision which was exercised over them by the negro cook who was not a member of the union and who had been elevated by appellant from the position of dishwasher. The evidence further shows that the waitresses began the picketing. But the refusal of appellant to sign the contract which was tendered by the union under the facts of this case clearly brings it within our holding in the San Angelo case, supra. Appellant had agreed to abide by the terms of the written contract. This, according to appellee’s version, he failed and refused to do. Then demand was made upon him to sign the written contract. His refusal was sufficient under the San Angelo case to justify the resort by his employees to striking and to picketing his place of business.

Appellant complains that the pickets patrolling his place of business are not his employees. It seems that the picketing was begun by the waitresses but that it is now continued by men who are members of the union who at no time had ever worked for appellant. Appellant’s employees, being on a strike against him, had the unquestioned right to picket his place of business in person. We know of no rule or principle of law which would deny these women the right to picket 'by representatives or proxy. R.S.Article 5153, which provides that any member qf a trade union may induce or attempt to induce by peaceful and lawful means any person to accept any particular employment or to enter or refuse to enter or relinquish any employment in which such person may be engaged, but that such member shall not have the right to invade the premises of another without the consent of the owner, does not limit the right of such member to picket to exercising same in person. A law-abiding agent is a “lawful means” within the purview of the statute.

We are unable to say that the record in this case discloses that the learned trial court in any way exceeded his judicial discretion in refusing to issue a temporary writ of injunction.

Judgment was entered refusing such temporary injunction, and appellant gave'notice of appeal on January 13, 1941. On January 20, 1941, appellant filed a request in writing for the court to malee findings of fact and conclusions of law. Appellant complains that the court did not comply with his request. There is nothing in the record to show that this request was called to the attention of the court. Error cannot be predicated upon the failure of the court to act upon such a request unless the record affirmatively discloses that after such a request was called to the attention of the court he failed to act on it. R.S. Article 2247, as amended in 1931, Vernon’s Ann. Civ. St. art. 2247. Cain v. Cain, Tex.Civ.App., 134 S.W.2d 506; Ross v. Odom, Tex.Civ.App., 88 S.W.2d 1053.

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

Affirmed.


author: O’QUINN, Justice.

text:
    GRAY v. PORT ARTHUR CITY LINES, Inc.
    No. 3829.
    Court of Civil Appeals of Texas. Beaumont.
    March 14, 1941.
    Rehearing Denied April 9, 1941.

      John T. Lindsey, of Port Arthur, for appellant.
    Chas. S. Pipkin, of Beaumont, for appel-lee.
   O’QUINN, Justice.

Appellant brought' this suit in the 60th district court of Jefferson County, Texas, for himself, and in behalf of his wife, Ola Gray, against appellee, to recover damages alleged to have been sustained by his wife, by and through the negligence of appellee, resulting in a judgment denying appellant any recovery.. From that judgment he brings this appeal.

At the outset we are faced with a motion duly filed to dismiss the appeal. The appeal was attempted by affidavit in lieu of an appeal bond. The term of the court at which the case was tried could, and in fact did, continue more than eight weeks. The motion for a new trial was overruled on July 10, 1940 but not entered of record until July 12, 1940; the affidavit was filed August 2, 1940. This was more than 20 days after the motion for a new trial was overruled. The Civil District Courts of Jefferson County operate under Article 2092, R.S.192S, Vernon’s Ann.Civ.St. art. 2092. This article provides that appeal bonds shall be filed within 30 days after the order appealed from is rendered. It is silent with respect to the time in which an affidavit in lieu of a cost bond must be filed. Under Article 2093, Vernon’s Ann.Civ.St. art. 2093, which also relates to and governs trials and trial procedure in Jefferson County, the affidavit in lieu of bond must be filed within 20 days as allowed by Article 2253, Vernon’s Ann.Civ.St. art. 2253. As the affidavit was not filed within 20 days after the motion for a new trial was overruled, it was too late and did not confer jurisdiction on this court to entertain the appeal. Moore v. Wutke, Tex.Civ.App., 145 S.W.2d 224, writ refused. The motion to dismiss is sustained, and the appeal dismissed.

On Motion for Rehearing.

On a former day of this term of court, we dismissed this appeal because the affidavit in lieu of appeal bond was not filed within twenty days after appellant’s motion for a new trial was overruled, as required by Article 2253, R.S.1925. In -his motion for rehearing, appellant says his motion for new trial was overruled on July 12, 1940, and that he filed his affidavit in lieu of appeal bond on August 2, 1940, and insists that this was within the required time, twenty days. It is obvious that appellant arrives at this conclusion by excluding both the day the motion for a new trial was overruled and the day that the affidavit in lieu of bond was filed. This he could not do. In judicial proceedings the general rule is that where any matter of practice or procedure is required by statute to be done within a certain number of days from or after a preceding event, the first day is excluded in computing sttch period of time and the last day of time given for performance of the thing to be done is counted. 62 C.J. (Time) §§ 39, 40, pages 992, 993. This is the law in Texas. Aetna Life Ins. Co. v. Wimberly, 102 Tex. 46, 112 S.W. 1038, 1039, 23 L.R.A.,N.S., 759, 132 Am.St.Rep. 852. Here according to appellant’s contention the motion for new trial was overruled on July 12, 1940— that left 19 days in July; the affidavit in lieu of bond was filed on August 2, 1940. Nineteen days in July and two in August make 21 days, one day too late under the statute requiring the appeal bond, or affidavit in lieu of bond to be filed within twenty days after the motion for new trial was overruled. The motion for rehearing is denied.


author: HALE, Justice.

text:
    WHITE v. WHITE et al.
    No. 2297.
    Court of Civil Appeals of Texas. Waco.
    Feb. 20, 1941.
    Rehearing Denied April 17, 1941.

      J. S.. Simkins and Taylor & McWilliams, all of Corsicana, for appellant.
    Richard & A. P. Mays, of Corsicana, for appellees.
   HALE, Justice.

M. M. White, joined by six of his brothers and sisters, instituted this suit in the county court of Navarro county on September 28, 1938, against their brother, S. E. White, individually and as independent executor of the estate of Rachel E. White for the purpose of contesting the validity of the will of their deceased mother theretofore duly admitted to probate. The defendant answered with a plea in abatement, asserting that the matters attempted to be litigated had been finally concluded by reason of prior proceedings had between the same parties in a partition suit in the district court of Navarro County, and, subject thereto, with a general denial. The county court overruled the plea in abatement, but upon a trial on the merits, rendered judgment denying the relief sought by appellees and confirmed its prior order admitting the will to probate. The case was appealed to the district court, where the plea in abatement was again presented and overruled, and upon a trial on the merits the jury found that the deceased did not possess testamentary capacity to execute the will, and furthermore, that the execution thereof was procured by undue influence practiced by appellant. Thereupon the district court rendered judgment can-celling the will and the prior orders of the county court admitting the same to pro-hate, and hence this appeal.

No question is here raised concerning the trial of -the case on its merits. The statement of facts contains only the evidence which was adduced upon the hearing of the plea in abatement and the single assignment of error urged by -appellant presents for our determination the sole question as to whether the plea was properly overruled. Appellant insists that all matters sought to be determined in this suit were known to appellees during the pendency of the partition suit in the district court, that the parties and the subject matter of both suits were the same, and that if all the issues sought to be determined in this suit were not adjudicated in the partition suit, then such issues could have been so adjudicated, and by reason thereof the final judgment of the district court in the partition suit renders the issues tendered in this case res ad judicata.

Upon the hearing of the plea in abatement, the prior proceedings in the probate court, as well as the pleadings and judgment in the partition suit, were introduced in evidence. From such pleadings and judgment it appears that on June 2, 1937, appellees instituted suit in the district court of Navarro county against S. E. White for the partition of 169 acres of land, alleging that each of the parties was the owner of an undivided l/8th interest in said land. On June 11, 1937, appellant filed application in the county court for the probate of his mother’s will, and on June 28, 1937, such will was admitted to probate. By the terms of the will all property of the deceased was bequeathed to appellant, who was appointed independent executor without bond. After the will had been admitted to probate, appellant, in his individual capacity, filed his first amended answer in the partition suit, denying that the appel-lees owned any interest in the land in question and alleging that said land constituted the separate property of his mother and that he had acquired title to said land by virtue of being the sole beneficiary under his mother’s will, which had been duly admitted to probate.

Thereafter appellees filed amended pleadings in the partition suit, containing the same statutory allegations as in their original petition and alleging further that the 169 acres of land constituted the community estate of their father, J. M. White, and of their mother, Rachel E. White, and in the alternative, that said property was the separate estate of their father; that their father died in 1917 and their mother died on October 8, 1936, intestate; but they did not allege that no administration was pending on their mother’s estate and that no administration thereon was necessary. They also interposed general demurrer and special exceptions to the claims asserted in the partition suit by appellant, and, subject thereto, they alleged facts showing the invalidity of the purported will of their deceased mother theretofore admitted to probate.

Appellant excepted generally to the pleadings of appellees, and specially to the allegations attacking the validity of his mother’s will upon the ground that the district court did not have jurisdiction to pass upon the issues thereby raised.

The cause came on for trial on July 27, 1938, at which time the trial court sustained the special exceptions of appellant to the allegations of appellees attacking the validity of their mother’s will, but overruled all the other demurrers and exceptions of the respective parties. Upon the conclusion of the evidence the court peremptorily instructed the jury to return their verdict finding that the land involved in the suit was the community property of J. M. White and Rachel E. White, and that the appellees each owned an undivided l/16th interest and the appellant in his individual capacity owned an undivided 9/16ths interest in the land. The court rendered judgment in accordance with the verdict, and upon his finding that the property was not susceptible of a fair and equitable division, appointed a commissioner to sell the same and deposit the proceeds from such sale' into the registry of the court to be divided between the owners in the proportions therein decreed. There was no appeal from this judgment, but it appears that no sale of the property has been made by the commissioner.

It should be noted that the institution and prosecution of the suit from which this appeal arises is specifically authorized by the express provisions of Article 5534 of Vernon’s Ann.Civ.Statutes. Furthermore, under the Constitution and laws of this state, original jurisdiction to try the cause of action here asserted is vested exclusively in the county court. Therefore, if the judgment in the partition suit which was originally instituted in the district court could, operate under any circumstances as a bar to the prosecution of this suit, then we would be confronted with the anomalous situation of either investing the district court with original jurisdiction not conferred upon it by law or of denying to a litigant the right to try a cause of .action expressly authorized by the statutes. It is thought that no such situation is contemplated in the law. Buchner v. Wait, Tex.Civ.App., 137 S.W. 383; Minor v. Hall, Tex.Civ.App., 225 S.W. 784.

While parties and their privies are not entitled to re-litigate matters which have been previously adjudicated by a court of competent jurisdiction, we do not believe the doctrine of res adjudicata has any application to the facts of this case. Certainly, the validity of the will of the deceased was not adjudicated in the partition suit and if any attempt had been made to adjudicate such issue in said cause, the same would have been a nullity because the district court did not have original jurisdiction to determine such issue. Matters which are expressly and properly excluded under the prior proceedings are not,res adjudicata in subsequent proceedings even between the same parties. American Freehold Land Mortgage Co. v. Macdonell, 93 Tex. 398, 55 S.W. 737; Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 66 L.R.A. 745, 107 Am.St.Rep. 596; Freeman on Judgments, 5th Ed., § 675, p. 1424, and § 631, p. 1332. And matters which could not be passed on in the former suit are not res ad judicata under the judgment. Teal v. Terrell, 48 Tex. 491; Seitz v. McKenzie, 4 Tex.Civ.App. 81, 22 S.W. 104; Freeman on Judgments, • 5th Ed., § 638, p. 1343, and § 699, p. 1479.

If Mrs. White died intestate within four years prior to the time of trial in the partition suit, as alleged by appel-lees in their pleadings there, then in the absence of any allegation .to the effect that no administration was pending on her estate and that none was necessary, the trial court had no jurisdiction to award to ap-pellees any interest in the land in question which they might have inherited as heirs at law of their deceased mother. Richardson v. Vaughn, 86 Tex. 93, 23 S.W. 640; Laas v. Seidel, 95 Tex. 442, 67 S.W. 1015; Youngs v. Youngs, Tex.Com.App., 26 S.W.2d 191; Cyphers v. Birdwell, Tex.Civ.App., 32 S.W.2d 937. On the other hand, if Mrs. White died testate, leaving a will which was admitted to probate on June 28, 1937, bequeathing her property to appellant, as alleged by him in his pleadings, then the validity of such bequest could properly be contested by appellees at any time within four years after the will had been admitted to probate, provided they instituted a suit in the county court for such purpose within that time. Article 5534, Vernon’s Ann. Civ. Stats.; Franks v. Chapman, 61 Tex. 576. And it affirmatively appeared on the face of the pleadings of the parties that unless the land in question constituted the separate property of J. M. White, there could be no partition thereof without an adjudication of the conflicting claims of title asserted by the parties as heirs at law and devisees under the will of Rachel E. White, respectively. Therefore, when it was developed without dispute in the evidence, as we must assume by reason of the trial court’s peremptory instruction, that the land in controversy was the community property of J. M. White and Rachel E. White, and that the will of Rachel E. White had been admitted to probate on June 28, 1937, the trial court, under the existing circumstances, could have properly refused, on his own motion, to proceed further in the partition suit until there was a final determination in a court of competent jurisdiction of the conflicting claims which the parties were attempting to assert.

After careful consideration, we have decided that it is not necessary or proper for us to express any opinion at this time as to the validity of the judgment in the partition suit or as to the legal effect of such judgment on the rights of the parties thereto, except in so far as the same relates directly to the sole question presented for our determination on this appeal.

Without further discussion, we hold that the trial court did not err in overruling the appellant’s plea in abatement under the facts disclosed by the record in this cause and consequently the judgment appealed from is affirmed.


author: MURRAY, Justice.

text:
    CITY OF BROWNSVILLE v. WEST et al.
    No. 10921.
    Court of Civil Appeals of Texas. San Antonio.
    March 19, 1941.

      Ralph A. Dunkelberg, of Brownsville, for appellant.
    West & Hightower and H. L. Faulk, all of Brownsville, for appellees.
   MURRAY, Justice.

This suit was instituted by Wm. S. West and Margaret West Goodrich, joined by her husband, E.' K. Goodrich, Jr., aghinst the City of Brownsville, a municipal corporation, and the Brownsville Land and Improvement Company, a private corporation, seeking in a trespass to try title suit the recovery of 4.1 acres of land lying and being situated within the city limits of Brownsville, Cameron County, Texas.

The common source o.f title was the Brownsville Land and Improvement Company. The plaintiffs contended that they had acquired this land by warranty deed from the common source, and the City of Brownsville contended that the common source had dedicated this land, along with other land to the public and to the City of Brownsvillé for park purposes. ' The City of Brownsville had constructed an electric power highline across the land and prayed in the alternative that, in the event it was found not to be the owner of the land, it be permitted to condemn an easement across the land for the purpose of this highline. The plaintiffs prayed in the alternative that, in the event they were found not to be the owners of the land, they have judgment over and against the Brownsville Land and Improvement Company upon its warranty in the deed conveying the land to plaintiffs. The trial was to the court without the intervention of the jury and resulted in judgment for the plaintiffs for title and possession of the 4.1 acres of land, with the exception that the City of Brownsville was permitted to take and condemn an easement across the land for the purpose of electric wire highline, the City to pay the sum of $300 for this easement. From this judgment the City of Brownsville has prosecuted this appeal.

The City of Brownsville contends that the Brownsville Land and Improvement Company dedicated the land herein involved, together with other land, to the public for use as a park, when it filed a certain map and plat in the County Clerk’s Office of Cameron County, on December 21, 1908. On the plat the land involved herein, together with other land, was marked “Proposed Park” and “Lake Eba-no.” The following is a substantial reproduction of a part of the plat showing the areas marked “Proposed Park” and “Lake Ebano”:

The plat also had the following statement written upon it:

“State of Texas
“County of Cameron
“Know All Men By These Presents, that the Brownsville Land and Improvement Company, a corporation organized and existing under and by virtue of the laws of State of Texas, does hereby declare that it is the owner in fee simple of all the lands shown on the foregoing plat and that- the said Brownsville Land and Improvement Company by. authority of its board of directors have caused all of said land described and designated in attached certificate of Survey to be surveyed, subdivided and platted as shown by the foregoing- and here to attached map and plat, and that all streets, roads and alleys as shown on the plat are dedicated as streets, roads and alleys only to the public forever, but special reservation is hereby made on, along, through, over, beneath the streets, alleys, avenues and roadways, so herein dedicated and abutting acre tracts, for the purpose of constructing and operating telephone, telegraph or electric light poles and lines, electric, gasoline or steam railroads and street cars, sewers and gas pipes, canals, ditches and their appurtenances for irrigation or drainage purposes.
“In witness thereof the board of directors of the Brownsville Land and Improvement Company have caused these presents to be signed by its president and attested by its Secretary.
“Witness our hands this 21st day of December, 1908.
“Attest:
“Frank W. Kibbe A. C. Brokaw
“Secretary President”

After the making and recording of the above map and plat the Brownsville Land and Improvement Company sold lots to various persons with reference to this plat. These deeds were accepted by the grantee and placed on record in the County Clerk’s Office of Cameron County, but there is no other evidence that such grantees were led to believe that the land involved had been dedicated for park purposes, nor is there any evidence that such grantees would be injured or inconvenienced if the parcel of land marked “Proposed Park” was not established as a public park.

On May 14, 1926, Brownsville Land and Improvement Company conveyed a parcel of land to William S. West, described by metes and bounds, and being a part of the land shown on the plat as “Proposed Park” and “Lake Ebano.” Also, on June 23, 1927, the same grantor conveyed to the some grantee a tract of land, described by metes and bounds, containing 3.3 acres, and being also a part of that land shown on the plat as “Proposed Park” and “Lake Ebano.” William S. West paid a valuable consideration for these parcels of land, and conveyed parts of the land acquired by him to other persons, retaining for himself 4.1 acres. He later conveyed these 4.1 acres to his daughter, Margaret West Goodrich. When the plat was placed of record the land shown thereon was not in the city limits of the City of Brownsville, but twenty-three years later, to-wit, in the year 1931, the City of Brownsville extended its city limits so as to include the land shown by said plat. The City of Brownsville has never taken possession of the land shown on the plat as “Proposed Park” and “Lake Ebano,” and has never done anything in the way of developing said land into a park, neither has there been any user of the same by the public as a park. The only act of possession ever committed by the City of Brownsville was the building of the electric power line across said land, in the year 1935, which is, of course, not in keeping with the use of same as a park.

The question here presented is whether or not the above facts are sufficient to show that the Brownsville Land and Improvement Company, by the making and recording of the map or plat above described, intended to and did dedicate the land marked “Proposed Park” and “Lake Ebano” to the City of Brownsville and to the public for public park purposes.

The rule is that a dedication is in the nature of a donation of one’s land to the public for a public use without consideration, and therefore is never presumed but must be manifested either by a declaration or act which evinces the clearest intention on the part of the dedicator to presently set aside and appropriate a certain part of his land for a public use. Corpus Juris Vol. 18, p. 52, announces the rule as follows:

“Irrespective of how the dedication is claimed to be made, in order to constitute a valid dedication there must be an intention on the part of the owner to devote his property to the public use, and the intention must be clearly and unequivocally manifested, whether the dedication is claimed by acts in pais or by solemn conveyance of record.”

In Wilson v. Lakeview Land Company, 143 Ala. 291, 39 So. 303, it is stated:

“To constitute a dedication, either express or implied, there must be an intention to dedicate on the owner’s part
“A dedication, being a voluntary donation, is not presumed; but the clearest intention to make a dedication must be shown by the party alleging it.”

We have concluded that the plat made and recorded by the Brownsville Land and Improvement Company does not show a clear and unequivocal present intention on its part to dedicate to the pub-lie, for the purposes of a park, the parcel of land marked upon the plat “Proposed Park” and “Ebano Lake.” In the first place, there is a statement on the plat expressly dedicating all streets, roads and alleys shown on the plot, but no mention is made of the “Proposed Park.” It would seem that the rule “expressio unius est exclusio alterius” should be here applied. The fact that the streets, roads and alleys are expressly dedicated, would exclude the idea that the “Proposed Parks” were also dedicated. In the second place, the words “Proposed Park” w.ere used, instead of just the word “Park.” This indicates that the intention to dedicate a park was prospective rather than present. In Galveston, H. & S. A. Ry. Co. v. City of Eagle Pass, 260 S.W. 841, Judge German, in sneaking for the Commission of Appeals, stated that the showing of a street upon a plat by dotted lines, rather than black lines, indicated a prospective intention to dedicate such streets.

Furthermore, it is not clear from the map just what land is to be used for the proposed park. There are a number of white lines drawn around the words “Proposed Park” and “Lake Ebano.” These lines are described by one of the parties as concentric lines and by another party as polycentric lines, but regardless of what may be the proper nomenclature they are confusing as to just where the proposed park is to be located, and as to just where “Lake Ebano” is located. There is parol testimony that these white lines have nothing to do with the boundaries of the proposed park, but are only intended to indicate a depressed area. If this be true, then we are still left in doubt as to whether the park was to cover the depressed area or all the land west of Ebano Boulevard, and as to how much of this land is to be used fqr a park and how much for a lake, and, further, whether only the park is dedicated or whether both the park and the lake are dedicated.

All of this indefiniteness supports the idea that the intention to establish a park was prospective only.

The fact that while this plat had been on record more than thirty years and no one had ever attempted in any way to use this land as a park, and the further fact that the land was conveyed by the Company, by metes and bounds, to individuals, indicate that both the Brownsville Land and Improvement Company, the City of Brownsville, the County of Cameron, and the public generally, all considered that no park had actually been dedicated but only that a prospective intention to dedicate a park had been expressed. Galveston, H. & S. A. Ry. Co. v. City of Eagle Pass, Tex.Com.App., 260 S.W. 841; Hanford v. City of Seattle, 92 Wash. 257, 158 P. 987, Ann.Cas.1917B, 195; Town of Hooker v. Morris, 92 Okl. 194, 218 P. 869; Sanders v. Village of Riverside, 7 Cir., 118 F. 720.

The City of Brownsville having alleged the dedication and relied upon it to defeat the' regular chain of title held by plaintiffs, the burden of proof was iipon it to establish by clear and convincing evidence that the dedication had actually been made prior to the time the land was deeded to Wm. S. West. The evidence is not clear that the land had been actually dedicated, and we cannot say that the trial judge’s finding that there had been no-dedication is contrary to the evidence.

The above holding renders it unnecessary for us to discuss the other questions presented. The judgment is affirmed.


author: NORVELL, Justice.

text:
    TOWNSEND et al. v. McDONALD et al.
    No. 11016.
    Court of Civil Appeals of Texas. San Antonio.
    March 19, 1941.
    Rehearing Denied April 16, 1941.

      Oxford & Oxford, of Edinburg, for appellants.
    Gerald C. Mann, George W. Barcus, Zollie C. Steakley, and Ocie Speer, all of Austin, and Hill, Greer & Franki, of Mission, for appellees.
   NORVELL, Justice.

This is an appeal from an order refusing a temporary- injunction. Appellants, Charles A. Townsend and others, sought to enjoin J. E. McDonald, State Commissioner of Agriculture, and others, including the Criminal District Attorneys of Bexar and Hidalgo Counties, from prosecuting plaintiffs and their customers for failure to have citrus fruits inspected as required by House Bill No. 623, Regular Session, 43rd Legislature (Article 118a, Vernon’s Ann.Civ.Sts., and Article 719b, Vernon’s Ann.Penal Code), and for violating rules promulgated by the Commissioner, as authorized by the aforesaid act.

Appellants, as growers and shippers of citrus fruits, challenge the constitutionality of the act involve^ and assert the invalidity of the rules and regulations promulgated by the Commissioner of Agriculture.

The general rule in Texas is that "prosecutions for violations of penal statutes and ordinances are not enjoinable, even though the ordinance or statute be void.” 24 Tex.Jur. 66, § 46. Appellants -.seek to predicate their suit upon an exception to the general rule, which is recognized in City of Austin v. Austin City Cemetery Ass’n, 87 Tex. 330, 28 S.W. 528, 47 Am.St.Rep. 114. They contend that the enforcement of the act in question and the rules and regulations thereunder interfere with their property rights and the issuance of a temporary injunction is necessary to prevent irreparable injury.

The hearing below was upon bill and answer, supplemented by. evidence, the greater part of which was in the form of a stipulation.

Appellees’ answer specially denied under oath that “they have instituted criminal proceedings, or are threatening to institute criminal proceedings against plaintiffs and their customers for the purpose of harassing them, or for the purpose of placing upon them a useless and expensive burden in the disposition of their fruit.”

The answer therefore placed the question of interference with the property rights of appellants in issue. The evidence showed that a complaint against appellant Charles A. Townsend was pending in Bexar County, Texas, in which he was charged with a violation of the act here involved; that a complaint against Jesse Black, one of appellants, had been filed and dismissed, and 'that three complaints under the act had been filed against persons not parties to this suit. It further appears that the Commissioner of Agriculture had announced that he would prosecute violations of the act and regulations thereunder. This was all the evidence pertinent to the issue raised by the pleadings as above stated. It seems obvious to us that this case is governed by the general rule above stated rather than the exception thereto.

It has also been held that in Texas the equity courts should act with the greatest caution in restraining prosecutions under penal statutes alleged to be invalid, prior to a declaration .of the invalidity of the act involved by the Court of Criminal Appeals. Lossing v. Hughes, Tex.Civ.App., 244 S.W. 556. Certainly this Court would not be authorized to reverse the judgment of the trial court and issue the temporary injunction prayed for because of the pen-dency of one criminal prosecution against one of the appellants, and the statement of intention or departmental policy made by the Commissioner of Agriculture. The trial court in our opinion not only did not abuse its discretion, but entered the only order which would have been authorized under the facts and circumstances of this case. The order appealed from is affirmed.


author: LESLIE, Chief Justice.

text:
    HARTFORD ACCIDENT & INDEMNITY CO. v. ETHRIDGE.
    No. 2120.
    Court of Civil Appeals of Texas. Eastland.
    March 14, 1941.
    Blanton & Blanton, of Abilene, for appellant.
    Scarborough, Yates & Scarborough, of Abilene, for appellees.
   LESLIE, Chief Justice.

This is a workmen’s compensation case filed by appellee, D. E. Ethridge, against appellant, Hartford Accident and Indemnity Company. Coverage, jurisdictional facts and compensation rate were agreed upon by the parties.

The appeal is predicated on four assignments of error complaining in each instance of argument to the jury by appel-lee’s counsel.

Each alleged error was preserved and brought before this court in the following manner: The appellant had the court reporter to take down the argument of ap-pellee’s counsel and in the course of its delivery objections were made to certain phases of the argument. Thereafter the reporter transcribed his notes disclosing the argument, objections, etc. With such information the appellant raised the same points in its motion for a new trial. The court heard this motion and overruled the same. The true statement of facts is agreed to by the attorneys for the respective litigants, and it is also approved by the trial judge. Following such statement of facts and bound with it in the same volume is the transcribed speech of the appellee’s attorney signed by the official shorthand reporter. He certified that he was employed by defendant to report the jury speeches of appellee’s attorney and that the foregoing pages contained “a full, true and correct statement” of the same.

The transcribed argument thus appended to the statement of facts is in no way authenticated by the trial court, nor does any agreement of the respective attorneys cover or approve the same. The appellee objects to the consideration of these, alleged errors since the appellant has failed to bring forward the matters complained of in a formal bill of exceptions. Under the circumstances stated, the appel-lee insists there is nothing for this court to review. We sustain this contention because these propositions are based merely on a certificate prepared by the court reporter and have not been brought forward in a formal bill of exceptions as required by law.

In 3 Tex.Jur. p. 581, sec. 407, the rule invoked is stated in simple language as follows: “In the absence of a bill of exceptions, the appellate court will not pass upon the argument or remarks of counsel as constituting reversible error * * *. Allegations in a motion for a new trial or in affidavits supporting it, cannot take the place of a hill so as to authorize a review of such matters.”

For other authorities in point on the proposition see Chandler v. Wiemers, Tex.Civ.App., 4 S.W.2d 569, writ refused; Safeway Stores v. Rutherford, Tex.Civ. App., 101 S.W.2d 1055; Id., 130 Tex. 465, 111 SW.2d 688; Rothchild v. Turner, Tex.Civ.App., 138 S.W.2d 611; Dunning v. Yancy, Tex.Civ.App., 103 S.W.2d 221; Weyel v. Lower Colorado River Authority, Tex.Civ.App., 121 S.W.2d 1032; Southwest Investment Co. v. Partin, Tex.Civ.App., 83 S.W.2d 766, 767; American Nat. Ins. Co. v. Massengalc, Tex.Civ.App., 121 S.W.2d 1035; Whatley v. Davis, Tex.Civ.App., 116 S.W.2d 466; East Texas Oil Ref. Co. v. Simmons, Tex.Civ.App., 105 S.W.2d 507; Texas Emp. Ins. Ass’n v. Arnold, Tex.Civ.App., 105 S.W.2d 686. The trial court must in some way authenticate the proceedings or arguments complained of.

Since the above vice (in perpetuating the alleged error in the record) underlies each of the assignments or propositions briefed, it follows that none of them are entitled to consideration. The counter propositions are sustained.

However, after a careful reading of the record as presented, we are quite inclined to the view that, had the alleged points been properly presented, no reversible error would have been shown.

For the reasons assigned, the judgment of the trial court is affirmed.


text:
    WASSON v. COLLINGS et al.
    No. 2212.
    Court of Civil Appeals of Texas. Eastland.
    March 21, 1941.
    Thomas & Thomas, of Big Spring, for relator.
    Cecil C. Codings, of Big Spring, for respondents.
   LESLIE, Chief Justice.

This is an original mandamus proceeding in this court by A. L. Wasson, seeking to have this court issue a writ of mandamus requiring the Hon. Cecil C. Codings, District Judge of the 70th Judicial District of Texas (and others)', to set down for. trial and try cause No. 3807, styled A. L. Wasson v. J. S. Garlington et ux., on the docket of the District Court of Howard County, Texas. The application for mandamus is in substance the same as that reflected by this court’s opinion in Wasson v. Codings, 145 S.W.2d 915. It will, therefore, be unnecessary td further state in full the factual background of this proceeding. The relief sought on the former occasion was not granted chiefly for the reason that the allegations of the petition made it appear that the assets of J. S. Garlington and wife were then under the jurisdiction of the Federal Court and were being administered in a bankruptcy proceeding under the Frazier-Lemke Act, 11 U.S.C.A. § 203. After this court’s opinion in 145 S.W.2d 915, the plaintiff (below) A. L. Wasson was permitted to file in the trial court a First Amended Original Petition in said cause 3807. In that petition he alleged specifically that the Federal Court had theretofore “entered a final decree and judgment dismissing all the land described in said petition from * * * the control’ of the court administering (the same) under the Frazier-Lemke Act”, etc. A copy of that court’s order and’ decree was attached to the petition as Exhibit A.

The application for mandamus in the instant proceeding brings forward these matters and now presents them to this court. It is again alleged the court declined to try the cause, etc.

This application was set for submission March 13, 1941, and the respondents notified thereof. No answer or reply has been filed.

It is disclosed that the Garlingtons had theretofore instituted “cause No. 1864 in the matter of J. S. Garlington and wife, Farm Debtor in proceedings for composition and extension under section No. 75” (Lemke Act). It was from this proceeding that the subject matter of this litigation was relinquished. The order of the Federal Court, after setting out and finding that said Wasson held a first lien as security for a large amount of money against the land herein involved, decreed as follows :

“Sixth. That since September 1, 1937, Farm Debtor has done nothing to enhance the value of said land but has permitted the improvements thereon to deteriorate in value.
“Seventh. That there is no equity in said land above said indebtedness.
“Eighth. That it' would be burdensome to the estate for this court to administer said land.
“Ninth. That it would be beneficial to and for the best interest of this estate that said land be discharged from this proceeding and withdrawn from administration herein and that the same be abandoned to the holder of said indebtedness and that such holder be permitted to pursue his remedies outside the jurisdiction of this court.
“It is therefore ordered, adjudged and decreed by the court that the motion of A. L. Wasson that the land described as sections 20, 21, 22 and 23 in Block 25 of the H&TC Ry. Co. Survey in Howard County, Texas, and as security for his debts, he discharged from the administration of this court, and that the same be abandoned to him, and that he be permitted to foreclose his liens in the State Court or otherwise as provided for in his notes and deeds of trust, be and it is hereby in all things sustained and confirmed and said land is hereby discharged from the administration of this court, and abandoned to said creditor A. L. Wasson, and he is hereby permitted to foreclose his liens in the State Court or otherwise in accordance with his notes and deeds of trust and contracts with Farm Debtor outside the jurisdiction of this court.”

In Wasson’s prior application to this court for mandamus the above facts and circumstances were not disclosed, and evidently they had not been sufficiently disclosed to the District Judge of Howard County. With the evidence before him he was warranted in assuming that the land involved in this litigation and above described was among the Garlington assets then being administered under the jurisdiction of the bankruptcy court. Since it is now made to appear that the Federal Court has relinquished these assets for the reason above stated in its order, there appears to be no legal obstacle barring Was-son from an early trial and determination of the issues arising in said cause in accordance with law and “agreeable to the principles and usages of law.” Dallas Joint Stock Land Bank v. Phillips, 124 Tex. 106, 76 S.W.2d 1038; Bergholm v. Peoria Life Ins. Co., Tex.Civ.App., 63 S.W.2d 1064, 1065; Cox v. Hightower, 19 Tex.Civ.App. 536, 47 S.W. 1048.

Under the present status of relator’s pleadings and testimony, it is the opinion of this court that said Judge Collings should set said cause for trial and determination at a proper date during the April, 1941, term of the District Court of Howard County, Texas. If on receipt of notice of the entry of this order from the Clerk of this Court, the'PIon. Cecil C. Collings, District Judge, signifies his willingness to so set and determine the issues of said cause, the Clerk of this Court will refrain from issuing any writ of mandamus; otherwise, the same will issue as prayed for. It is so ordered.


author: MONTEITH, Chief Justice.

text:
    LIPSCOMB et al. v. HOUSTON ELECTRIC CO.
    No. 11143.
    Court of Civil Appeals of Texas. Galvestbn.
    March 27, 1941.

      Able & Stokes, Levert J. Able, and Troy T. Stokes, all of Houston, for appellants.
    J. C. Hutcheson, III, and Wm. R. Brown, both of Houston (Baker, Botts, Andrews & Wharton, of Houston,- of counsel), for appellee.
   MONTEITH, Chief Justice.

This action was originally brought by appellant, Julia Lipscomb, joined pro forma by her husband, Claude Lipscomb, to set aside a release and to recover damages for personal injuries alleged to have been sustained by her as the result of a fall while alighting from a street car owned and operated by appellee, Houston Electric Company. Later, by amended pleading, Claude Lipscomb was made a real party plaintiff to the suit.

The suit arose out of an accident which occurred in the City of Houston in the early morning of January 24, 1934. Appellants alleged that while a passenger on said street car Julia Lipscomb requested the motorman to allow her to alight at the nearest stop to the Farmer’s Market; that when he stopped the car and she attempted to alight she stepped from the car into a hole and fell, injuring herself. They alleged that appellee was guilty of negligence in not providing a safe place to disembark from said street . car and in stopping it in an unsafe place for Mrs. Lipscomb to alight, and that appellee, through its servants and employees, knew or. should have known that such place was unsafe for disembarking and that such negligence proximately caused the accident in question.

They alleged that shortly after said accident, in reliance on the false and fraudulent representations of appellee, its agents and physician, to the effect that Mrs. Lipscomb had recovered from her injuries, they had executed an instrument releasing appellee from all liability growing out of said accident.

Appellee answered by general demurrer, general denial and exceptions and a plea of contributory negligence in general terms. It specially pled the two and four years’ statutes of limitation, as a bar to appellant’s recovery.

At the close of appellant’s evidence, on motion of appellee, the court withdrew the case from the jury and rendered judgment that appellants take nothing by their suit, for the reason that appellants had failed to prove actionable negligence on the part of appellee.

The controlling questions presented herein are: (1) Whether there is any evidence in the record which, when considered by itself, would, if accepted by the jury as true, have raised an issue of fact which would have supported a judgment in favor of appellants; and (2) whether appellants’ cause of action growing out of said accident was extinguished by the release executed by appellants.

It is the established law in this state that when a litigant requests the court to peremptorily instruct a verdict in his behalf he admits as true all the evidence supporting the contentions of the adverse party. Lawson v. Hutcherson, Tex.Civ.App., 138 S.W.2d 131; Owen v. Al Parker Securities Co. et al., Tex.Civ.App., 296 S.W. 620, affirmed by Tex.Com. App. in 1 S.W.2d 271.

Further, it is held to be reversible error for the court to direct a verdict where, disregarding all adverse evidence and giving credit to all evidence favorable to plaintiff which might have been drawn from the facts proven, a jury might have found in favor of the plaintiff: Coca Cola Bottling Co. v. Dickson, Tex.Civ.App., 115 S.W.2d 1223; Dendy v. Cockerham et al., Tex.Civ.App., 82 S.W.2d 756.

The law is, however, equally well established in' this state that the mere fact of an accident resulting in injury or death does not raise a presumption of negligence on the part of the person causing the injury, and that the plaintiff has the burden of establishing his case and of proving not only the negligence of defendant relied on as a ground of recovery by clear and direct testimony, but he must prove that such negligence was the cause of the injury complained of. It is held that, even if negligence is established, it will not be presumed or inferred that such negligence was the cause of the injury. Kelley et al. v. Burlington-R. I. Ry. Co., Tex.Civ.App., 100 S.W.2d 164, writ refused; Texas & N. O. Ry. Co. v. Crowder, 63 Tex. 502; Galveston, H. & S. A. Ry. Co. v. Easton, Tex.Civ.App., 257 S.W. 924; 52 C.J. pp. 705, 706.

In the instant case, Mrs. Lipscomb was the only witness to testify as to how the accident.in question took place. She testified as follows:

“Q. Did you proceed to get off? A. Yes, I stepped in a hole and fell.
“Q. Did you step in a hole after you got off the street car? A. Yes, sir.
“Q. You say you fell, tell the jury how you did fall. A. As I alighted from the car I fell on my face and bruised my knee cap. * * *
“Q. You say you fell just as you stepped off the car? A. I stepped in a hole when I got off the car.
“Q. Did you make any steps after you got off the car? A. No, sir.”

Although appellants alleged that appel-lee was negligent in not providing Mrs. Lipscomb a safe place to alight from such street car and in stopping the car in an unsafe place, the only proof offered as to said alleged acts of negligence, as shown from above quoted testimony of Mrs. Lipscomb, was that in alighting from said street car she stepped into a hole and fell. There is no proof in the record as to the size and depth of the hole into which she is alleged to have stepped, as to how long the hole had been in the street, whether it was of sufficient size to have been visible to the motorman, or whether he had knowledge of or opportunity to learn of its existence. Further, there is no proof in the record that the motorman stopped his car at an unusual place, or that he did anything except to comply with her request to allow her to alight at the nearest stop to the Farmer’s Market.

The above facts go no further than to show an unexplained accident in which Mrs. Lipscomb sustained an injury. Since the existence of facts which would show actionable negligence on the part of appel-lee cannot be presumed, the action of the trial court in discharging the jury and rendering judgment in favor of appellee must be sustained.

Appellee’s contention that appellants’ cause of action was extinguished by the release executed by them must also be sustained.

Appellants alleged that they were induced to execute the release in -question by reason of false and fraudulent representations made to them by Dr. Allan Collette, who was alleged to be an agent and employee of appellee.

No sufficient authority authorizing Dr. Collette to bind appellee by the statements he is alleged to have made to appellants is shown in the record.

Dr. Collette testified that he was not employed by appellee; that he did not recall who called him to see Mrs. Lipscomb, but that after he had seen her and had learned that appellee was involved in said accident, he had called the Houston Electric Company and asked if he should go ahead and treat her; that he was informed by the representative of the company that he could go ahead if he wished; that the payment of his bill would not be guaranteed, but that it would be protected if possible. After the execution of said release his bill was paid by appellee, as part of the consideration of said release.

Mrs. Lipscomb testified that she only signed the release because of the representations of Dr. Collette that she was all right.

It seems to be the settled law in this state that, in order, to avoid the effect of a release on the ground of misrepresentations or fraud on the part of physicians, the releasor must show that the physician was employed by the releasee, since otherwise the latter would not be responsible for their representations and advice. 48 A.L.R. 1462, 1510; 53 Corpus Juris, p. 1225. Our Texas courts have gone even further in holding that where it is sought to set aside a release for personal injuries on the ground of fraudulent representations by the releasee’s physician, it must appear that the representations were made by a physician who was authorized to settle the claim (Chicago, R. I. & G. R. Co. v. Taylor, Tex.Civ.App., 203 S.W. 90; Gulf, C. & S. F. Ry. Co. v. Huyett, 99 Tex. 630, 92 S.W. 454, 5 L.R.A., N.S., 669), or that they were fraudulently used by the releasee or his agent taking advantage of the claimant’s confidence in the physician’s judgment to effect a settlement disadvantageous to the injured person. Cowan v. El Paso Elec. R. Co., Tex. Com.App., 271 S.W. 79; Gulf, C. & S. F. Ry. Co. v. Huyett, 49 Tex.Civ.App. 395, 108 S.W. 502, error refused; Great American Indemnity Co. v. Blakey, Tex.Civ.App., 107 S.W.2d 1002; 36 T.J. 183, § 115.

Applying these principles to the facts in the instant case, it is apparent that Dr. Collette was not only not an employee of appellee, but he is not shown to have had authority to effect a settlement with appellants, and there is no evidence that the representations made by him to appellants were not made in good faith as an expression of his opinion.

It follows from the above conclusions that the judgment of the trial court must be in all things affirmed.

Affirmed.


text:
    JORDAN et al. v. BROWN et al.
    No. 2268.
    Court of Civil Appeals of Texas. Waco.
    March 6, 1941.
    Rehearing Denied April 17, 1941.

      Fitzpatrick & Dunnam and Tom P. Scott, all of Waco, for appellants.
    Hamilton, Lipscomb, Wood & Swift, of Dallas, for appellees.
   HALE, Justice.

Appellants, as heirs of Martha Brown, deceased, sued Homer T. Brown in the district court of McLennan County on certain purchase-money notes and for a foreclosure of their lien upon 144 acres of land. They joined appellee Connecticut General Life Insurance Company (herein called the insurance company) as a defendant, alleging that its claim to the land was inferi- or to theirs and that they were entitled to foreclosure against it. Homer Brown did not answer, but the insurance company appeared and fully plead its interest in -the land which it claimed was superior to the lien of appellants. The case was tried by the court without a jury and upon the conclusion of the evidence, judgment was rendered : In favor of appellants against Homer T. Brown for the sum of $8,905.45, with foreclosure of their lien, subject to the superior lien and title of the insurance company ; in favor of the insurance company establishing its indebtedness of $8,263.80 as a superior lien to that of appellants, with a foreclosure of the same, subject to an equity of redemption in appellants; vesting in appellants a right to redeem the land and to become subrogated to the claims of the insurance company by paying off the indebtedness due to the latter within ninety days from the date of the judgment; and providing that if appellants failed to exercise their equity of redemption by paying-off the indebtedness due to the insurance company within ninety days, then the judgment in favor of the insurance company as against appellants for the title and possession of the land should become final. By appropriate assignments, the appellants contend that their lien was and is' superior to any right, title or interest which the insurance company might have in and to the land in controversy.

It appears that on September 13, 1925 Martha Brown, joined by several of, her children who are appellants here, conveyed the land in dispute to her son, Homer Brown, in consideration of $2,000 cash, two notes for $2,250 each, due Jan. 1, 1936 and 1937, respectively, and one note for $5,500 due Jan. 21, 1926, each note being payable to the order of Martha Brown and each providing for interest at the rate of 7% per annum. It was recited in the deed of conveyance that the $5,500 note was secured by a superior lien and the $2,250 notes were secured by inferior liens. Martha Brown then sold and transferred the $5,500 note and lien to Dallas Trust & Savings Bank (herein called the bank) and she also expressly subordinated her lien securing the remaining two notes for $2,250 each, to the superior lien of the bank. Thereafter on December 5, 1925, the bank duly renewed and extended the balance of its indebtedness and lien with Homer Brown, as evidenced by five renewal notes and a deed of trust of that date, so that such indebtedness should become payable in accordance with the terms of four notes for $250 each, due on Jan. 1, 1928, 1929, 1930, and 1931, respectively, and one note for $4,000 to become due on Jan. 1, 1936. Each of the renewal notes provided for interest until maturity at the rate of 5½% per annum and thereafter until paid at the rate of 10%, each containing the usual accelerating maturity clause. Simultaneously with the execution and delivery of the renewal notes and deed of trust next above set forth, Homer Brown executed and delivered ten additional interest notes payable to the bank, each due on January 1st, one for $53.61 in the year 1927, one for $50 in 1928, one for $47.50 in 1929, one for $45 in 1930, one for $42.50 in 1931, and five for $40 each, due in 1932 to 1936, inclusive, which notes were secured by an additional second lien deed of trust. On February 19, 1926, the bank sold and transferred the five first mortgage notes and lien to the insurance company and at the same time it also endorsed and delivered to the insurance company the original $5,500 vendor’s lien note.

On July 19, 1933, the insurance company filed suit in the district court of Dallas County against Homer Brown and wife on the $4,000 renewal note, for taxes and for foreclosure of its lien, making the bank a party defendant. Homer Brown answered, setting up a claim of usury in the note sued upon. The insurance company then filed an amended petition bringing in an additional party defendant and added a count to its original petition wherein it sued in the alternative upon the original $5,500 note. Upon a trial of the case in the Dallas court, the insurance company elected to stand upon the original $5,500 note, and on November 13, 1934, it recovered judgment against Homer Brown on that note and for a foreclosure of its vendor’s lien against all of the parties to the suit. However, neither Martha Brown nor any of the appellants herein was a party to that suit. Pursuant to the order of sale duly issued, levied and returned, the land was properly sold on July 2, 1935 by the sheriff to the insurance company on its bid of $4,000, and the insurance company immediately went into possession of .the land and continued in possession of the same up to the time of the trial of this suit.

It is the contention of appellants, as we understand, that the $4,000 mortgage note upon which the insurance company sued under its first count in the district court of Dallas county was usurious; that the $5,500 vendor’s, lien note upon which it sued under its second count was barred by the four-year statute of limitation, Vernon’s Ann.Civ.St. art. 5520 et seq.; that by electing to stand upon the $5,500 note and by securing a judgment of foreclosure of its vendor’s lien, the insurance company is not now entitled to assert any claims in this suit under the $4,000 renewal note and deed of trust lien; and that, since appellants were not parties to the judgment rendered in the district court of Dallas county, they are not estopped from pleading in this suit the four-year statute of limitation as a bar to any right which the insurance company might ever have acquired under the $5,500 note or the prior judgment based thereon.

The claim of usury is predicated in part upon the fact that the deed of trust securing the payment of the $4,000 note provided that if any tax or assessment should be imposed within the State of Texas upon the notes therein described while such notes were the property of a nonresident of Texas, then the grantor would pay off and discharge such tax or assessment, and upon his failure to do so the holder of the indebtedness might, at its election, declare the entire amount thereof immediately due. These provisions rendered the contract potentially usurious in the absence of a saving clause. Kansas City Life Ins. Co. v. Duvall, 129 Tex. 287, 104 S.W.2d 11. However, we do not find any evidence whatsoever in the record showing or tending to show the prevailing standards of valuation fixed from year to year, or the prevailing rate or rates fixed from year to year, in relation to the tax which might have been levied against the note or notes in question, or that such tax or taxes when added to the interest contracted for would cause the amount exacted to exceed the legal rate of 10% upon the amount of such notes, and in the absence of such evidence, we cannot hold as a matter of law that the contract is ttsurious. Robertson v. Connecticut Gen. Life Ins. Co., 134 Tex. 588, 137 S.W.2d 760.

The claim of usury in the $4,000 note is based upon the further fact that the ten additional interest notes, in the total aggregate sum of $438.61, each contained an accelerating maturity clause .in certain contingencies. It is to be noted, however, that the second lien deed of trust securing the payment of the ten additional interest notes provided that in the event of default “then the whole sum of money hereby secured shall become due and payable at the election of the holder thereof.” The first lien deed of trust securing the $4,000 note also provided that in the event of default “the whole indebtedness and all sums secured by this mortgage, to-wit: the principal and interest then accrued on said bond, etc.” shall become due and payable at the election of the holder thereof. These provisions save the contracts from the taint of usury. Lincoln Nat. Life Ins. Co. v. Anderson, 124 Tex. 556, 80 S.W.2d 294; Bankers’ Life Ins. Co. v. Miller, Tex.Civ.App., 68 S.W.2d 574, writ denied; Walker v. Temple Trust Company, Tex. Civ.App., 60 S.W.2d 826; Aetna Life Ins. Co. v. Foster, Tex.Civ.App., 66 S.W.2d 428.

There was no claim of usury except as the same was founded upon the facts which we have discussed, and therefore we are of the opinion that no usury was shown in connection with any of the contracts involved in this suit or in the previous suit.

The next question presented is whether the action of the insurance company in the district court of Dallas county in electing to stand upon the original $5,500 note constituted an election of remedies as against appellants in this suit, so as to estop the insurance company from setting up in this case the $4,000 note and mortgage and demanding that appellants pay off its superior debt before ousting it from possession or foreclosing against it. We cannot say that it did. While it is generally true that the courts look with disfavor upon a party who attempts to assert inconsistent reme1 dies in the course of the same litigation as between the same parties, we do not believe the rule is necessarily applicable to the facts of this case. The rights asserted herein by appellants have accrued to them solely as the heirs of their deceased mother, Martha Brown, who, during her lifetime, expressly subordinated her lien to that of the insurance company and her heirs are bound thereby. Williams v. Tooke, Tex.Civ.App., 116 S.W.2d 1114. Appellants were not parties to the suit in the district court of Dallas county, their presence in that suit was not necessary, and their rights in the present suit were not adjudicated in that case. Pierson v. Pierson, Tex.Civ.App., 128 S.W.2d 108. Since appellants were not bound by the judgment that was rendered in the district court of Dallas county, we can find no valid reason why the insurance company must be held, as to them, to any election which it might have made in a suit to which they were in nowise parties. Pierce v. Moreman, 84 Tex. 596, 20 S.W. 821; Gardener v. Griffith, 93 Tex. 355, 55 S.W. 314; Milmo National Bank v. Rich, 16 Tex.Civ.App. 363, 40 S.W. 1032, 1033; Wier v. Yates, Tex.Civ.App., 237 S.W. 623.

And finally, it is urged by appellants that the insurance company was not a mortgagee lawfully in possession of the premises at the time of the trial of this case. We cannot sustain this contention. Ordinarily a judgment on an original note implies a release of any renewal note evidencing the same indebtedness as between the same parties, but in this case the insurance company did not attempt to assert any rights whatsoever as against Homer Brown. Furthermore, the trial court found specifically that the insurance company was a mortgagee in lawful possession of the land, which implies a finding that it was not the intention of the insurance company that the equitable title which it held under the deed of trust securing its $4,000 note should become merged into the legal title which it acquired under the judgment of foreclosure and sheriff's sale. We cannot say that such findings are wifhout sufficient support in the evidence. Hill v. Preston, 119 Tex. 522, 34 S.W.2d 780, 782, Id., Tex.Civ.App., 296 S.W. 925.

If the insurance company was a mortgagee lawfully in possession of the premises, as found by the trial court, we are of the opinion that the plea of limitation was not available to appellants as junior lienholders for the purpose of ousting the insurance company without first tendering to it the amount of its unpaid prior lien. Elliott v. C. C. Slaughter Co., Tex.Civ.App., 236 S.W. 1114; Caffarelli Bros. v. Pearce, Tex.Civ.App., 10 S.W.2d 594; Church v. Cocke, 120 Tex. 262, 37 S.W.2d 723; Connor Bros. v. Williams, 130 Tex. 572, 112 S.W.2d 709; City National Bank v. Moody, Tex.Civ.App., 115 S.W.2d 745. It is well settled that a mortgagee lawfully in possession has the right to retain such possession until his debt is paid. See Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329; and numerous cases there cited.

We have carefully examined all of the assignments of the appellants, but we find no error in the judgment of the trial court and consequently all assignments are overruled, and the judgment appealed from is in all things affirmed.


author: WALKER, Chief Justice.

text:
    PROVIDENT FIRE INS. CO. v. ASHY.
    No. 3820.
    Court of Civil Appeals of Texas. Beaumont.
    April 4, 1941.
    Rehearing Denied April 9, 1941.
    Bryan & Bryan, of Houston, for appellant.
    Manry & Cochran, of Livingston, for appellee.
   WALKER, Chief Justice.

This was a suit in district court of Polk county by appellee, J. W. Ashy, by next friend, W. J. Ashy, against appellant, Provident Fire Insurance Company, on a policy of fire insurance, $1,000 on stock of merchandise and $500 on fixtures, destroyed by fire in February, 1940. The nature of appellant’s answer is indicated by its propositions of error. On the verdict of the júry, answering special issues, judgment was for appellee for the principal amount of his policy, from which appellant has prosecuted its appeal to this court.

Appellant’s first point is that on the undisputed evidence appellee violated the iron safe clause of his policy in that he “failed to make, prepare, have and keep securely locked in a fire-proof safe at night, or in some secure place not exposed to a fire which would destroy the building containing the stock of goods insured a complete written record of the business conducted” and “failed to make, preserve and deliver over and make available, after the loss of a complete itemized inventory of stock on hand, for not only within twelve months prior to the date of the policy, but for the entire calendar year of the last preceding inventory.” We give the iron safe clause:

“The Assured will take a complete itemized inventory of stock on hand at least one in each calendar year, and within twelve months of the last preceding inventory, if such has been taken. Unless such inventory has been taken within twelve calendar months prior to the date of this Policy, and together with a set of books showing a complete record of business transacted since the taking of such inventory, is on hand at the date of the Policy, one shall be taken within thirty days after the date of this Policy or in each and either case, this entire policy shall be null and void.”

On the issue of “iron safe clause,” the jury found the following facts: (a) After the fire, appellee delivered to appellant “all of the written records of the business which had been regularly kept and made,” by him in connection with his business prior, to the fire; (b) On the night of the fire, appellee had in a fireproof safe “all of the written records, books and inventories” of his business, regularly made and kept by him prior to the fire, showing a complete record of the business transacted by him during' the current calendar year up to the date of the fire, and the preceding calendar year; (c) Prior to the date of the fire, appellee kept a record of his credit sales and of the family withdrawals from the stock of merchandise; (d) Appel-lee delivered to appellant “all of the written records of the business which had been regularly kept and made” by him in connection with his business prior to the fire; (e) After the fire, appellee delivered to appellant “all of the written books, records and inventories taken and kept” by him i'n the regular course of business reflecting the business transacted by him for the calendar year prior to the date of the fire. We give the evidence on these issues. W. J. Ashy testified (questions and answers reduced to narrative) :

“The paper you exhibit me is the original inventory of the fixtures; this instrument is the original copy of the inventory I took at that time. The total amount of the fixtures in the building destroyed by fire on the 15th of February is $1,040.00. I took that inventory on the first of January. * * * I took an inventory of the hardware. This paper is the inventory of the hardware; it shows the separate items of the hardware. I took that inventory on January First. The value of the hardware was $280.51. I have other inventories of the dry goods. This instrument you hand me is an inventory of the dry goods; the original inventory. I took stock on January 4, 1940, took an inventory on January 4, 1940.”

The inventories, as copied into the statement of facts, listed a detailed statement of the various items of merchandise, together with its value. The inventory gave a full and detailed statement of all merchandise in the building on January 1, 1940, forty-five days before the fire. Ap-pellee also introduced a record of his daily sales from January 1, 1940, through February 13, 1940, at which time the building and contents were destroyed by fire. The inventory of the merchandise showed a cash market value of $2,113.52. From the date of the inventory to the date of the fire, appellee offered in evidence books showing gross sales of $972.85. Appellant was not entitled to an instructed verdict, nor did the court err in overruling its motion for verdict non obstante veredicto, on the issues raised by its pleadings on the “iron safe clause.” Westchester Fire Ins. Co. v. Brantley, Tex.Civ.App., 73 S.W.2d 961; 24 Texas Jur., page 1000; Fidelity Union Fire Ins. Co. v. Barnes, Tex.Civ.App., 293 S.W. 279; Home Ins. Co. v. Flewellen Produce, Tex.Com.App., 247 S. W. 833.

Appellant’s second point is that, on the undisputed evidence, appellee failed to furnish “proof of loss” within ninety-one days after the fire. On this issue the jury found the following facts: (a) Appellant, “by the act of its agents, servants, and employees” lead appellee to believe that he had done all that was necessary to do in order to comply with its requirements for filing proof of loss; this issue was plead by appellee; (b) Within 91 days after the date of the fire, appellee filed a 'sworn proof of loss in substantially the form required by the express terms of the policy contract sued on. We give the evidence on these issues: Appellee filed with appellant, under examination a few days after the fire, a sworn statement into which was incorporated a complete inventory taken within the time provided by the terms of the policy, and a complete statement of the sales and reduction of stock made from the date of the inventory to the date of the fire, with copies of the invoices subsequent to the inventories and before the fire. From this inventory appellant was able to determine the amount and value of the merchandise on hand at the time of the fire.

Immediately after the fire, W. J. Ashy informed Mr. Gordon Reily, the insurance agent who wrote the policy, of the loss, and asked his advice as to what steps should be taken or proof made in order to comply' with the requirements of the policy to establish the extent of the loss. A few days after the fire, Mr. Fones, an adjuster acting for appellant, called on Mr. Ashy, ‘ and Mr. Ashy again expressed to him his desire to cooperate in furnishing all the proof necessary. Mr. W. J. Ashy testified :

“Q. After he came did anybody else come to see you about it ? A. The banker told me he got a telephone call Friday, and he said the insurance man is coming to see you Tuesday; and on Tuesday three men and a woman come, and this man was along there and he said — I am going to try you. 1
“Q. Was Mr. Fones there? A. Yes, Fones was along, but this man had a big statement with him and he said read that; and the banker was busy and I told him to wait until he come; and he come and read the matter up and he said that is the law, go ahead; and that man swore me and put me on the stand and asked me about two and one-half or three hours more questions.
“Q. I understood you tó say something about the Gentlemen sitting down — about him going to try you? A. Yes, sir; this man right here (pointing finger).
“Q. The Gentleman you referred to is Mr. Bryan, of the firm of Brj^an & Bryan, representing the insurance company in this case? A. Yes, sir; and he had a stenographer.
“Q. Did he take down what you said at that time? A. Absolutely.
“Q. And at that time what was done in regard to giving them the benefit of the inventories and such invoices and other matters you had on your books? A., Yes, sir; he said he would like to get the policy and everything else, and I gave it to'him and he take it to Houston with them.
“Q. You gave him a policy and a bunch of other instruments and he took them to Houston? A. Yes, sir.
“Q. You mean these inventories? A. Yes, sir.
“Q. Did you give them to him at that time? A. Yes, sir; he asked me and I let him have them.”

Mr. Gordon Reily testified:

“Q. If you will, Mr. Reily, tell us such facts as you can that might give this Jury an idea as to whether or not Mr. Ashy appeared to be willing to do whatever Mr. Fones wanted him to do in regard to producing books and records; just tell us what you saw and what conversation took place in your presence as near as you can? A. He was very anxious .to produce any and all records. * * * I know at times— you remember, Mr. Bryan, when they asked him about some more papers and he would jump up and run all over the country and we couldn’t keep him in the bank. My opinion would be that he was digging up everything he could find; and some things he thought he had he couldn’t find,
“Q. During the various conversations you had with Mr. Ashy in regard to the loss up there did you say anything to Mr. Ashy or did anyone else in your presence that you recall, say anything to him in detail about what was necessary for him to do, or whether or not it would be necessary to do anything in addition to what he had done? A. No, the first trip Mr. Fones made Mr. Ashy asked him, have you got everything you need, and he said yes, I have everything I think we will need. I will have to make my report to the Company, which is the general course and way an adjuster handles his business. And I looked in the next day or. two for the check to come back.
“Q. At the time Mr. Fones and you had the conversation did Mr. Fones examine the hooks of the Company and such data as Mr. Ashy had and they made that might determine the amount of loss, etc? A. Yes, we added up his sales slip and figured around there to see about how much merchandise he had.
“Q. Mr. Reily, do you remember whether or not either you or Mr. Fon^ told Mr. Ashy it wouldn’t be necessary for him to do anything else until he was notified further? A. Well, he told me, talking to us. together, he said that was all that could be done at the present time. I asked him if there was anything we could do to expedite the payment of this thing and he said we had done all we could do. He said I will just have to make my report to the Company. * * *
“Q. As a matter of fact you know that is in the policy where the assured has ninety days in which to file a sworn proof of loss ? You know what that policy says, he had ninety-one days to file a proof of loss. Why didn't you have Mr. Ashy file a Proof of loss? A. If you will refer to one of my letters you will see where I stated that I thought he had. Mr. Fones left the impression with me that everything had been done that needed to be done. * * *
“Q. Did he (Fones) state to you that it would be necessary for Mr. Ashy to do anything in addition to what had been done in order to collect this fire insurance policy. A. I assumed he assured me everything was done that could be done.
“Q. Was that the time Mr. Williford Ashy or someone presented the books and accounts and invoices and inventories and sales books of the Fair Store or Ashy Store? A. The same time.”

On the following authorities, the court did not err in refusing to instruct a verdict in appellant’s favor on the issue for the failure to furnish proof of loss: Chicago F. & M. Ins. Co. v. Herring, Tex.Civ.App., 54 S.W.2d 236; Occidental Fire Ins. Co. v. Fort Worth Grain & Elevator Co., Tex.Civ.App., 294 S.W. 953, writ refused; London & Lancashire Ins. Co. v. Higgins et al., Tex. Civ.App., 68 S.W.2d 1056; National Standard Fire Ins. Co. v. Hubbard, Tex.Civ.App., 31 S.W.2d 859; Federal Surety Co. v. Smith, Tex.Com.App., 41 S.W.2d 210; Franklin Fire Ins. Co. v. Britt, Tex.Civ.App., 254 S.W. 215; Firemen’s Fund Ins. Co. v. Galloway, Tex.Civ.App., 281 S.W. 283.

Appellant’s third point is that, on the undisputed evidence, appellee was not the sole and unconditional owner of the insured property. This contention is denied. On this issue, the jury found that the property insured “was owned unconditionally and solely” by appellee. The jury also found that Gordon Reily was appellant’s agent who issued the insurance policy, and that at the time he issued the policy he knew that it was owned by appellee. On this point W. J. Ashy, the father of appel-lee, J. W. Ashy, testified: “The business actually belonged to my boy. I bought it for him. I operated the business for him continuously from the day I bought it up until it was destroyed by fire. During that period of time the business was owned by J. W. Ashy; by my boy, J. W. Ashy. I told Mr. Reily about my boy, J. W. Ashy, I told him his age. I told him his age before he wrote the policy.”

Mr. Gordon Reily testified: “At the time I wrote this policy I knew J. W. Ashy; I knew he was a minor son of W. J. (Williford) Ashy. When I wrote the policy I knew that it belonged to J. W. Ashy; that he owned the business or the property insured by the terms of that policy. I also understood that Williford Ashy was the manager of the business.”

Without quoting from the charge, it is our conclusion, on the issue of burden of proof, that it is in substantial compliance with the instructions given in Federal Surety Co. v. Smith, Tex.Com.App., 41 S. W. 2d 210.

Appellant’s last proposition is that appellee’s petition did not deny that the loss came “within any of the exception and exclusion clauses contained in the policy.” This proposition is overruled. Ap-pellee alleged that the property covered by the policy was “destroyed by fire, and that said fire, and the resultant loss, were not caused by any act of plaintiff, nor was said fire and the resultant loss caused by any act or circumstances described in the aforesaid insurance policy, which would avoid the liability of defendant for the damage done.”

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

Affirmed.