author: JACKSON, Chief Justice.

text:
    WEBB v. CHICAGO, R. I. & G. RY. CO. et al.
    No. 5094.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 2, 1940.
    Rehearing Denied Jan. 29, 1940.
    H. H. Cooper and E. O. Northcutt, both of Amarillo, for appellant.
    Stone & Stone, of Amarillo, Tatum & Tatum, of Dalhart,. Harold C. Heiss and Horn, Weisell, McLaughlin. & Lybarger, all of Cleveland, Ohio, and Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellees.
   JACKSON, Chief Justice.

This suit was instituted by the appellant, J. S. Webb, in the District Court of Potter County, Texas, against the Chicago, Rock Island & Gulf Railway Company, their receivers and trustees, hereinafter called the railroads, and Albert E. McCanless, Edward G. Bertrand, William B. Foltz, Louis T. Williams and Ralph Hill, hereinafter called the individual appellees.

The purpose of the suit by appellant was to have adjudged to him and a decree to enforce certain alleged seniority rights in the' Amarillo Seniority District of the C. R. I. & G. Ry. Co., which, he asserts, includes the new railroad — the American Canadian River Line — hereinafter called the A. C. R. Line, and have the railroads enjoined from transferring to said Amarillo Seniority District employees from the West El Paso Seniority District or any other division of the Rock Island Lines and from granting to them seniority over appellant and that such railroads be compelled to remove any such employees now working upon said Amarillo Division whose seniority is not equal to that of appellant or others working or entitled to work-on said Division "and to restrain any employee from the West El Paso Seniority District or other divisions, including the individual appellees, from working on the A. C. R. Line so long as appellant and others are available whose seniority entitles them to work on such line and that the injunction be made perpetual.

There is no finding of fact by the court on file but as we shall set out in the opinion the material facts on which the determination of the legal questions presented depend, we deem it only necessary to make a brief statement of the pleadings which contain fifty-eight pages.

Appellant contended that he was entitled to the relief sought by virtue of an agreement dated August IS, 1926, which will later appear herein but which we here designate as the McMullen agreement; also because of the usages and customs of the railroads relative to the construction of a new line; but if mistaken as to his rights to recover upon such grounds then he says he is and was a locomotive fireman and a locomotive engineer and claims seniority by virtue of a contract made between the C. R.T. & G. Ry. Co. and the Brotherhood of Locomotive Firemen and Enginemen of which he is a member and the Brotherhood of Locomotive Engineers; that by virtue of the terms of the last contract the railroad was obligated and bound to recognize the seniority of employees engaged on the A. C. R. Line which has always been a part of the Amarillo Seniority District of the C. R. I. & G. Ry. Co.

The railroads presented pleas in abatement in which it is stated that appellant is a member of the Brotherhood of Locomotive Firemen and Enginemen, a railroad organization with a constitution, laws, rules and regulations and officers who possess authority to represent the members of the organization when disputes arise between such members or such members and the organization, or between the railroads and such organization or the members thereof; that the constitution of the organization, among other things, provides for grievance committees and other tribunals which have been created by the Brotherhood to adjust differences and establish and interpret rules of seniority; that each member agrees to abide by the constitution and laws and interpretations and decisions of such committees and tribunals when against him unless an appeal is prosecuted from such decision to- the appellate tribunal of last resort, all of which, together with the procedure therefor, is set out in detail and each member when he joins the organization is inhibited from resorting to the civil courts of the country until the grievance alleged is finally determined by the appellate tribunal having final jurisdiction of the complaint. The railroads also alleged that on May 1, 1925, a schedule of rules and rates for firemen and enginemen were adopted and which are still in effect and disclose that the rights of any engineer or fireman are to be determined by the regularly constituted committees of his organization ; that appellant failed to comply with the provisions, of such contract and have his alleged grievances so decided, and article 23, section E of such schedule, says: “No consideration will be given to grievances not presented in writing within thirty days of the occurrence.” The railroads also contend that appellant failed to join in his suit some parties indispensable to the litigation.

The individual appellees filed their pleas in abatement urging misjoinder of causes of action in that some of them were members of the Brotherhood of Locomotive Engineers and others were members of the Brotherhood of Locomotive Firemen and Enginemen. They also presented a plea of misjoinder of indispensable parties for the reason that other members of the Brotherhoods not parties would be affected by the decision in this case. They pleaded the failure of appellant either as an individual or through the Brotherhoods to exhaust the remedies available to him in the constitution, laws and regulations of such Brotherhoods for the determination of the seniority rights he urges in this suit. These appellees further assert that appellant as a member of the public, independent of his relationship to such Brotherhoods, is not authorized to maintain this suit.

To the pleas in abatement the appellant filed a supplemental pleading stating that since the Brotherhoods are not parties the constitution and laws thereof are immaterial; that he is not bound by the constitution of the Brotherhood of Locomotive Engineers because not a member thereof and that the Brotherhood of Locomotive Firemen and Enginemen of which he is a member had obtained a final decision from the general grievance committee in his behalf from which there is no appeal and appellant was thereby, together with other employees so situated, entitled to enforce his seniority rights in the courts.

On a hearing had on December 22, 1938, at a regular term of the District Court of Potter County the pleas in abatement urged by the railroads and the pleas of the individual appellees were sustained, the appellant refused to amend and his suit was dismissed, from which judgment this appeal is prosecuted.

The appellant admitted in oral argument before the court that if he had not obtained a decision from the tribunal of last resort finally concluding the controversy that the pleas of abatement should be sustained by the court; however, his position is that the record shows without dispute that the general grievance committee of the Brotherhood of Locomotive Firemen and Enginemen is the highest appellate authority on the question of his seniority and said committee had determined that the members' of the local lodge at Amarillo, which we shall hereafter designate as Lodge No. 325, was entitled to perform 100% of the work on the A. C. R. Line by virtue of their seniority rights. He bases this contention on the language in a section of the constitution which creates the authority and jurisdiction of the general grievance committee of such Brotherhood. The provisions of the constitution and laws of the Brotherhood of .Locomotive Firemen and Enginemen herein quoted are from the constitution and laws dated 1938 but are also contained in all the preceding constitutions and laws covering the time involved in this controversy. Subdivisions (a) and (b) of section 8, article 14, found on page 193 of the 1938 constitution, read as follows:

“Sec. 8 (a) General grievance committees shall have authority to make and interpret agreements with representatives of railway companies concerning rates of wages, rules respecting seniority rights, adjustments of grievances and other matters necessary in the interest of the members they represent. When the general grievance committee is not in session, the general chairman has authority to interpret the ■schedule.
“(b) General grievance committees shall have authority on their respective lines to regulate mileage in accordance with the policies of the organization for all employes in the class, or classes, of service over which they have jurisdiction. They shall also have complete jurisdiction over all matters of seniority and assignment to runs.”

The appellees contend that the decision of the general grievance committee is.'not final and rely on other ■ provisions of the same constitution to show that the right of appeal exists.

Determination of appellant’s contention as to the final jurisdiction of the grievance committee should be approached and considered in connection with the following provisions of the constitution. Under the title “Appeals” article 18, page 258, et seq., and the subdivision designated “From Decisions on Grievances” are the following provisions :

“Sec. 4. (a) A member may appeal from a decision by the local grievance committee or its chairman, to his lodge. * * *
“(b) A member may appeal * * * from the decisions of his lodge to the chairman of the general grievance committee. ******
“(d) A member may appeal from the decision of the chairman of the general grievance committee to the executive committee or to the general grievance committee, and may appeal from decisions of the executive committee or general grievance committee to the International President. * * *
“(e) A member may, appeal from the decision of the International President to the Board of Directors. In making his appeal to the Board of Directors, the member shall notify the International President of his appeal. * * *
“(f) All appeals from decision on grievance shall be made in the order mentioned within ninety (90) days from date each decision 'is made effective. Appeals not made within ninety (90) days after' decision is in effect will not be entertained unless it is clearly shown that the cause of such delay was no fault of the member making the appeal.
“(g) A member may appeal to the Board of Directors from joint decision of the International President and one or more of the chief executives of the other train service organizations, unless such decision involves interpretation of law.
“(h) A lodge may appeal from a decision of a chairman of a general grievance committee, the executive committee, general grievance committee or the International President, in the manner above provided for appeals by a member.
“(i) Whenever the decision of the International President under ■ this section involves an interpretation of the laws of the organization it shall be final unless reversed by a Convention.”

Under the subdivision “Other Appeals” of the same article, section S, is the following :

“(a) A member considering he has not received just treatment by action of a lodge, general grievance committee or legislative board, on any matter not covered in other sections of this article, may appeal to the International President. * * *
“(c) An appeal may be taken from any decision of the International President to the Board of Directors on any matter properly submitted, except a decision involving an interpretation of law of the organization which shall be final unless reversed by a Convention.”

Under the same article, section 7(a), is the following provision: “No member or subordinate lodge of the Brotherhood shall resort to the civil courts to correct or redress any alleged grievance or wrong, or to secure any alleged rights from or against any member, subordinate lodge or the organization, until such member or lodge shall first have exhausted all remedy by appeal, provided by the laws of the Brotherhood for the settlement and disposition of any such rights, grievances or wrongs.”

The record discloses that the Rock Island Lines, for years prior to 1926, so far as-necessary to a consideration of this controversy, consisted of the Chicago, Rock Island and Pacific Railway Company, a foreign corporation situated entirely outside of the State of Texas, and the Chicago, Rock Island and Gulf Railway Company, a domestic corporation located entirely within this State.

The Brotherhood of Locomotive Firemen and Enginemen had a local or subordinate lodge at Dalhart, which we shall hereafter call Lodge No. 105. The line from Tucumcari, New Mexico, to Liberal, Kansas, was known as the West El Paso Seniority District. The Brotherhood also maintained a local or subordinate lodge át Amarillo, which we shall designate as Lodge No. 325, and the line from Tucum-cari, New Mexico, to Sayre, Oklahoma, was known as the Amarillo Seniority Dis- ' trict. The members of Lodge No. 105 made no claim to seniority rights in the Amarillo Seniority District and the members of Lodge No.. 325 made no claim to seniority in the West El Paso Seniority District.

On August 15, 1926, what we have designated as the McMullen agreement, and upon which appellant primarily relies, readq as follows:

“No. 2790. Memo of Agreement
“Amarillo, Texas, Aug. 15, 1926.
“We, the representatives of. the Brotherhood of Locomotive Engineers, Brotherhood of Locomotive Firemen and Engine-men, Order of Railway Conductors, and the Brotherhood of Railway Trainmen, in conference with H. E. McMullen, Asst. Supt. Amarillo Division who states that he has the authority and is the authorized representative of the Rock Island Railway Company, to advise the Local Committee of Adjustments of the above mentioned organizations that, Amarillo Division Crews will be used to construct the new line Amarillo to Liberal exclusively, regardless of which end of the line the work is done from.
“It is also understood that in case of any construction being started out of any other point on this line, that such construction work, will be manned with Amarillo Division Train and Engine crews.
“By agreeing to the above, when the line is completed, if the Train and Engine men of the Amarillo Division decide that the Dalhart Train and Engine men are entitled to any representation due consideration will be given by the Amarillo Division Train and Enginemen to the West El Paso Division Train and Engine men. This with the understanding that Amarillo is to be the Home Terminal for the Amarillo Liberal Line.
“B. of L. F. & E. J. H. Devine
“B. of L. E.' Edgar Nichols
“B. of R. T. J. W. Vaught
“O. R. C. L. Roy Dee ”

Shortly after this instrument was .signed, construction was begun on the A. C. R. Line which connects with the C. R. I. & G. Ry. Co. at Amarillo and connects with the C. R. I. & P. Ry. Co. at Liberal, Kansas. The railroad employees from Amarillo, most if not all of whom were members' of Lodge No. 325, constructed 124 miles of A. C. R. Line from Amarillo toward Liberal and the railroad employees from Dal-hart, most if not all of whom belonged to Lodge No. 105, constructed 24 miles of the line from Liberal, Kansas, toward Amarillo. The A.' C. R. Line extending from Amarillo, Texas, to Liberal, Kansas, and the line from Liberal to Tucumcari, New Mexico, thence from Tucumcari to Amarillo constitutes a triangle.

We herewith insert a plat that will assist in understanding the location of the towns and railroad lines involved.

During the period of the construction of the A. C. R. Line, or shortly thereafter, there was built a railroad from Dalhart to Morse, a town situated on the A. C. R. Line, but the seniority rights on the last named line are only incidentally involved in this suit.

Soon after work began on the A. C. R. Line differences arose between the members of Lodge No. 105 and Lodge No. 325 relative to the seniority rights of the employees in the West El Paso Seniority District and the Amarillo Seniority District, and when operation of the line began these differences grew into a stormy and bitter dispute which has apparently accumulated momentum and become more vitriolic ás the years pass.

Negotiations between the members of Lodge No. 105 and Lodge No. 325 were carried on by correspondence, conferences of special committees appointed by each of the lodges, by joint meetings between the two lodges which the railways through its proper representatives sometimes attended, all of such negotiations intended to compose the differences of the members of the respective lodges, but no agreement and no compromise or settlement of the differences ever resulted.

After approximately four years of such unsatisfactory negotiations, on June 19, 1930, Lodge No. 105 addressed to H. J. Palmer, the chairman of the general grievance committee an appeal from a decision of a lower tribunal of the order in which' what we have designated as the McMullen agreement was attacked and the material complaints and contentions upon which appellant relies in this suit, were presented in great detail relative to the manner of operating the A. C. R. Line and the seniority rights of the members of the respective seniority districts.

On July 20th, thereafter, Lodge No. 325 answered this appeal, urged the validity of the McMullen agreement and fully presented, in effect, the claims asserted by appellant in this suit. On August 30, 1930, H. J. Palmer, the Chairman of the Executive Committee, which constitutes a part of the grievance committee, rendered a decision reciting that the men of the Amarillo Seniority District based their claim largely on the contract made August 15, 1926, herein designated the McMullen agreement, and the claims of the West El Paso Seniority District were based largely on the interpretation of article 14, section 16 of the constitution of the Brotherhood of Locomotive Firemen and Enginemen, and this conclusion was announced by Mr. Palmer: “On and after the 15th day of September, 1930 the line known as the ACR Line between Amarillo and Liberal * * * will be operated with firemen from the West El Paso District and firemen from the Amarillo District on a 50-50 basis.”

The members of Lodge No. 105 were dissatisfied with this decision and sought the exclusive right to operate the A. C. R. Line and prosecuted an appeal to the International President of the Brotherhood of Locomotive Firemen and Engine-men. The members of Lodge No. 325 were likewise dissatisfied with the decision and also prosecuted an appeal to the International President of the Brotherhood. On July 24, 1931, the International President, Mr. Robertson, in a lengthy decision, remanded the matter to the executive committee of the general grievance committee for further consideration. On March 17, 1937, this delay not being explained, the full general grievance committee handed down the decision upon which appellant relies, awarding the A. C. R. Line to the Amarillo employees 100% and awarding to the members of . Lodge No. 105 100% of the work on the line from Dalhart to Morse. From this decision Lodge No. 105 prosecuted a second appeal to Mr. Robertson, the International President of the Brotherhood. Lodge No. 325 received and acknowledged notice that an appeal had been prosecuted but did not contend as appellant does here that the decision of the general grievance committee was final though they were furnished a complete copy of the proceedings of the appeal on May 20, 1937. On September 1, -1938, the International President of the Brotherhood rendered a written decision and modified the 1937 decision of the general grievance committee and held that the work should be on a fifty-fifty basis and affirmed the ruling formerly made by Mr. Palmer. Subsequently, the members of Lodge No. 325 voted to prosecute an appeal to the Board of Directors. The appeal was filed by the chairman of said lodge but the record shows without contradiction that such appeal was never perfected, hence, the holding of the International President is still in full force and effect and the work by the railroad is distributed on a fifty-fifty basis between the members of the respective lodges in accordance therewith. We believe that the facts recited in the light of the provisions of the constitution of the Brotherhood of Locomotive Firemen and Enginemen is conclusive against appellant’s contention that the jurisdiction of the general grievance committee was final and conclusive.

The appellant testified that he was a member of the Brotherhood of Locomotive Firemen and Enginemen but was not a member of the Brotherhood of Locomotive Engineers; that he was at this time working as a firéman but had taken the examination and been promoted to the position of and had served something like two months as a railroad engineer. The appellant does not appear to seriously contend that he is authorized to recover because of any procedure had by the Brotherhood of Locomotive Engineers and the constitution and by-laws of that organization prescribe the rights of the members of said lodge, the committees and tribunals thereof that have original, appellate and final jurisdiction to determine grievances. The constitution and by-laws adopted in 1936, page 107, contains the same provision relative to jurisdiction of seniority as is found in the preceding constitution and by-laws and reads as follows: “Sec. 35. (a) When a question of jurisdiction of territory or seniority arises between the members themselves or two or more Divisions that cannot be amicably adjusted by such Divisions, the question shall, with all the facts in the premises, be referred to the General Committee of Adjustment who shall rule on the matter and such ruling shall stand as a law, subject to appeal as per Section 28 of the Standing Rules.”

Section 28, referred to in section 35, found on page 103, is as follows: (a) An appeal may be taken from the decision of the General Committee of Adjustment or General Chairman, to the members on the system, if schedule matter, to the system affected, if made within ninety (90) days from date of such decision, and a majority vote of all votes cast of members on the system affected, shall be final; this vote to be taken in the same manner as in the election of Division Officers. Such appeal may be taken by any member in good standing who may feel himself aggrieved, by making full statement of his case, accompanied by a statement of the General Committee of Adjustment, signed by the General Chairman and Secretary, and it shall be the duty of the proper Officers of the Division to place the seal upon it, and transmit it to the Divisions on the system affected and the Division must take the vote within thirty (30) days from receipt of notice of appeal.”

Without stating in detail the facts relative to the procedure had in the Brotherhood of Locomotive Engineers to establish the seniority of the engineers at Dalhart and those at Amarillo, we think it sufficient to say that no final decision was ever rendered by the tribunal of last resort in such Brotherhood. The members of the Brotherhood of Locomotive Engineers are not permitted to resort to civil courts until they have exhausted all remedies .provided for in their order.

We are of the opinion that the language under subdivision (b), article 14, supra, that “They (referring to the general grievance committee) shall also have complete jurisdiction over all matters of seniority,” gives the committee the authority to determine every issue necessary-to make their decision res judicata as to the rights of the parties respecting the subject matter involved and concludes the parties until the decision is reversed or set aside by a tribunal having appellate jurisdiction over the committee and their decision. Cleveland et al. v. Ward, Judge et al., 116 Tex. 1, 285 S.W. 1063. “Complete jurisdiction” is not equivalent to “exclusive jurisdiction” and the constitution obviously contemplates the right of appeal from the decision of such committee and such decision may be reviewed, modified, reversed or affirmed.

In Grand International Brotherhood of' Locomotive Engineers et al. v. Marshall et al., Tex.Civ.App., 119 S.W.2d 908, 910, writ refused, it is held:

“It is undisputed that the plaintiffs are members of and subscribers to the constitution and by-laws of said brotherhood and that whatever seniority rights they enjoy emanate from said brotherhood and are secured to them exclusively by virtue of their membership therein and not by virtue of any contract between them and any of the various railway companies mentioned. The various railway employees here involved, by joining the brotherhood and accepting the benefits thereof, thereby subjected themselves to all reasonable rules and regulations of the brotherhood as to matters within the jurisdiction thereof,, and are bound by its decisions therein so long as such decisions are in accordance with the rules thereof, and not otherwise illegal.
“It is a generally accepted rule in this as well as in all other states of the union that one who joins a beneficial association, such as is here under consideration, assents to and accepts the law of the order and impliedly binds himself to abide by its decisions in the determination of disputes arising within the society, and where provision is made in its constitution or bylaws for review within the society of the rulings and judgments of its officers of inferior lodges, such remedies must be exhausted before relief may be sought in a court. 5 Tex.Jur. 142; 6 Tex.Jur. 430; 5 C.J. 1364; 7 C.J. 112; Screwmen’s Benev. Ass’n. v. Benson, 76 Tex. 552, 13 S.W. 379; Sawtell v. Feser, Tex.Civ.App., 235 S.W. 960; Grand Lodge Colored K. P. v. Sanford, Tex.Civ.App., 289 S.W. 456; Fraser v. Buck, Tex.Civ.App., 234 S.W. 679; Crislei v. Crum, 115 Neb. 375, 213 N. W. 366; Henry v. Twichell, 286 Mass. 106, 189 N.E. 593.”

This holding is approved in Brotherhood of Railroad Trainmen et al. v. Price et al., Tex.Civ.App., 126 S.W.2d 74, writ refused.

What we have said disposes of appellant’s contention that he was entitled to maintain this suit to establish his seniority rights by virtue of a contract made between the Brotherhoods and the railroads in 1925, since he neither alleges nor proves that either he or the brotherhoods ever sought to have adjusted or determined any grievance he was entitled to assert under such contract.

The testimony is entirely insufficient to establish usage or custom of the railway company as alleged by the appellant. The evidence shows but one specific instance of the C. R. I. & G. Ry. Co. ever extending to the parties who constructed a new line the primary right to operate it.

In 42 Tex.Jur. 863, para. 28, it is said: “A usage or custom may be shown by general reputation, but not by proof of specific instances or its recognition unless they are sufficiently numerous to indicate a regular course of business.”

See, also, Brousard v. South Texas Rice Co., Tex.Civ.App., 120 S.W. 587, affirmed in 103 Tex. 535, 131 S.W. 412.

In view of appellant’s admission and the facts disclosed by this record we deem it unnecessary to discuss the pleas of non-joinder and misjoinder of parties. Gordon et al. v. Hawkins, Tex.Civ.App., 66 S.W. 2d 432; Brotherhood of Railroad Trainmen et al. v. Price et al., Tex.Civ.App., 108 S.W.2d 239.

It is undisputed that the five individual appellees are among the employees that hold seniority rights in the West El Paso Seniority District; that Hill, Bertrand and McCanless are members of the Brotherhood of Locomotive Firemen and Engineers; Williams is a member of the Brotherhood of Locomotive Engineers; and Foltz is a member of both organizations. Neither Lodge No. 105 nor Lodge No. 325 are parties to the suit.

The judgment is affirmed.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    SHEFFIELD et al. v. BURCH.
    No. 3594.
    Oouj't of Civil Appeals of Texas. Beaumont.
    Jan. 10, 1940.
    Rehearing Denied Jan. 24, 1940.
    A. R. Rucks and Robert M. Lyles, both of Angleton,- for appellants.
    Gilbert T. Adams, of Beaumont, for appellee.
   WALKER, Chief Justice.

Appellee, Tom Burch, instituted this suit in the district court of Hardin county against Elbert Jeans and George W. Sheffield, Jr., and appellants, A. R. Rucks and H. E. Middleton, praying for judgment against them for the sum of $3,255 as the reasonable rental value of a drilling rig. For cause of action, he alleged that the defendants owned an oil lease on a certain tract of land in Hardin county, and as partners used his rig in drilling the well. On trial to the court without a jury, judgment was rendered in favor of appellee against the four defendants, jointly and severally, for the sum of $333. On his prayer, appellee was also awarded a writ of possession to recover the custody of the rig. Only A. R. Rucks and H. E. Middleton have prosecuted their appeal from the judgment.

The undisputed evidence is that Jeans and Sheffield were partners in drilling the well, and as partners used the rig and were liable for its rental value. The sole point-made by appellants is that the evidence was insufficient to raise against them the issue of partnership with Jeans and Sheffield in drilling the well. The evidence may be briefly summarized as follows: As lessee, Sheffield took' the lease from F. J. DeMeritt on the 19th day of September, 1938, acquiring under his lease a %ths interest in the minerals. By the terms of the lease, on the penalty of forfeiture, he was obligated to begin drilling operations within 60 days from the date of his lease. Being without sufficient funds to drill the well, Sheffield undertook to finance his operations by selling undivided interests in his leasehold estate, and in certain personal property owned by him, in his drilling operations. On the 22nd day of September, 1938, Sheffield executed to appellant Rucks the following assignment of an undivided interest in the leasehold estate:

“Assignment of Oil and Gas Lease
“Whereas, on the 19th day of September, 1938, a certain oil and gas mining lease was made and entered into by and between F. J. DeMeritt, Trustee, of Houston, Harris County, Texas, Lessor, and Geo. W. Sheffield, Jr., of Angleton, Brazoria County, Texas, Lessee, covering the following described land in the County of Hardin and State of Texas, to-wit:
“Five acres of land, being the east one-half (½) of the Wash Brown ten acre tract out of the Stephen Jackson 1000 acres of land in Hardin County, Texas, in what is known as the Sour Lake Oil Field, it being the intention to include all land owned or claimed by Lessor in said Wash Brown ten acre tract.
“Said lease being recorded in the office of the County Clerk in and for said County in Book - page -, and to which reference is hereby made.
“Whereas, the said lease and all rights thereunder or incident thereto are now owned by Geo. W. Sheffield, Jr.
“Now, therefore, for and in consideration of .One Dollar (and other good and valuable considerations), the receipt of which is hereby acknowledged, the undersigned, the present owner of said lease and all rights thereunder or incident thereto, does hereby bargain, sell, transfer, assign and convey all rights, title and interest of the original lessee and present owner in and to said lease and rights thereunder in so far as it covers an undivided one-twelfth ½2 interest in the above described lease, together with all personal property used or obtained in connection therewith to A. R. Rucks and his heirs, successors and assigns.
“And for tire same consideration, the undersigned for himself and his heirs, successors ' and representatives, does covenant with the said assignee, his heirs, successors or assigns, that he is the lawful owner of the said lease and rights and interests thereunder and of the personal property thereon or used in connection therewith; that the undersigned has good right and authority to sell and convey the same, and that said rights, interests and property are free and clear from all liens and incum-brances, and that all rentals and royalties due and payable thereunder have been duly paid; and that the undersigned will warrant and defend the same against the lawful claims and demands of all persons whomsoever.
“In witness whereof, the undersigned owner and assignor has signed and seal this instrument this 22nd day of September, 1938.”

A second assignment, identical in its' terms with the Rucks assignment, was made to appellant Middleton. Mr. Sheffield testified:

“Q. Do you or Jeans have the money now that Mr. Rucks paid you and Mr. Middleton paid you? A. No, sir; I do not
“Q. You sold that interest and used the money to finance that well? A. I sold that interest and used the money to finance the operations, and in whatever way I saw fit.
“Q. That was your purpose in selling that interest? A. Partially. * * *
“Q. What was the nature of the conversation you had with Mr. Rucks at the time he purchased this interest from you? A. I told him I was going to drill a well at Sour Lake, and I had finances of my own, but not enough to drill the well. I wanted to sell an interest in the lease to complete the financing of the drilling of the well.
“Q. And he agreed to purchase? A. Yes, sir.
“Q. And you got the money and put it in the well? A. I used it in that connection.
“Q. And substantially the same conversation with Mr. Middleton? A. Yes, sir.
“Q. And you took that in compliance with your agreement and put it in the well ? A. I wouldn’t say that. I was under no-obligation.
“Q. They knew why you were selling the interest ? A. I told them I needed money to help finance the drilling of a well.”

Mr. Elbert Jeans testified:

“Q. I believe you were the manager in charge out here on this well; is that right? A. Yes, sir.-
“Q. I will ask you if Mr. A. R. Rucks and Mr. H. E. Middleton, or either of them was ever out on this lease during its operations? A. Mr. Rucks — I think Mr. Middleton was once. I am not sure about that.
“Q. How long did Mr. Middleton stay? A. If he came, it was one afternoon, and he just came to town. I am not sure about that.
“Q. They just left the management ■ up to you, and didn’t come out; is that right? A. Yes, sir.”

On authority of Wagner Supply Co. v. Bateman, 118 Tex. 498, 18 S.W.2d 1052, the evidence raised against appellants the issue of partnership. So, the judgment of the lower court should be in all things affirmed, and is accordingly so ordered.

Affirmed.


text:
    HUGHES et al. v. GUNTER.
    No. 3581.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 5, 1940.
    Rehearing Denied Jan. 17, 1940.

      Orgain, Carroll & Bell and John G. Tucker, all of Beaumont, and Turner, Rodgers, Winn & Sellers.. M. B. Solomon, and Will R. Wilson, Jr., all of Dallas, for appellants.
    Chas. S. Pipkin, of Beaumont, and Gun-ter & Watson, of Port Arthur, for ap-pellee.
   WALKER, Chief Justice.

This was an action by A. A. Gunter, appellee, against J. E. Hughes and the Peaslee-Gaulbert Corporation, appellants, for damages for libel, before us on appeal from the judgment of the lower court overruling appellants’ pleas of privilege to be sued in Dallas county. No point is made against the sufficiency of ap-pellee’s petition and his controverting affidavit.

On trial in the lower court, appellee offered proof only (a) on the nature of hist cause of action, and (b) on the county of his residence when his alleged cause of action arose, and when he filed his original petition. He offered no proof (c) in support of his alleged cause of action for libel. On authority of A. H. Belo Corporation v. Blanton, Tex.Sup., 129 S.W. 2d 619, and Blanton v. Garrett, Tex.Sup., 129 S.W.2d 623, he concedes error, and prays that the judgment of the lower court be reversed and that the cause be remanded for a new trial. Appellants pray that on remand the cause be transferred to Dallas county. Their proposition is that since appellee had an opportunity to introduce his proof and failed to avail himself of that right, and by his objections prevented appellants from introducing proof on the material allegations of his petition, he lost his right to try the case in Jefferson county. The case was tried on the theory, accepted as the law by the trial court, that appellee sustained his venue by the proof offered. We are satisfied that appellee tried his case in good faith and failed to introduce the necessary proof only through a misunderstanding of the law, and that for the same reason he objected to the evidence appellants proposed to offer. It is provided by Art. 1856, R.C.S.1925, that on reversal the cause of action shall be remanded “when it is necessary that some matter of fact be ascertained.” Under this article the cause should be remanded to the lower court for further proceedings; it should not be transferred to Dallas county under this order of remand.

Reversed and remanded.


author: SPEER, Justice.

text:
    AMERICAN INDEMNITY CO. v. PADGETT.
    No. 14015.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 26, 1940.

      Cantey, Hanger, McMahon, McKnight & Johnson and Byron Scarborough, all of Fort Worth, for appellant.
    Culbertson & Morgan and M. Ward Bailey, all of Fort Worth, for appellee.
   SPEER, Justice.

This suit was instituted by appellee, David Oscar Padgett, Jr., against appellant, American Indemnity Company, a corporation, to recover on a guardian’s general bond.

On September 30th, 1930, D. O. Pad-gett, Sr., was appointed, by the Probate Court of Tarrant County, as guardian of the person and estate of appellee, then a minor. The guardian executed his general bond, in the sum of $7,000, but on his application, the Court, on January 30th, 1931, reduced the bond to $1,000. Appellant became surety on that bond.

In March, 1931, the guardian of appel-lee joined with others in a suit for partition of a landed estate in Parker County, in which his ward had an interest. By a judgment entered in the District Court of Parker County, it was determined that ap-pellee owned and was entitled to an undivided one-fourth interest in about 400 acres of land in said County, inherited by him from his grandfather, J. H. Johnson, then deceased. The judgment further provided that the land was not susceptible to an equitable partition in kind, and found that it was necessary to sell the property and divide the proceeds arising therefrom. A receiver was appointed, with instructions to sell the land, making the usual and customary provisions for reports to and orders by the court.

A brief summary of the subsequent proceedings is that the receiver sold the land and received certain cash .payments and accepted notes secured by vendor’s lien for deferred payments. The guardian received for his ward, growing out of the partition suit, over $700 in cash and a vendor’s lien note for $2,313.96, dated May 12th, 1932, due two years after date, bearing interest at six per cent per annum, payable to D. O. Padgett, Sr., guardian of the estate of D. O. Padgett, Jr.

The guardian was adjudged insane on March 10th, 1937, was insolvent and was not made a party defendant in this suit. Appellee reached his majority in December, 1937, and in 1939, filed his bill of review in the Probate Court of Tarrant County, to set aside the former order of that Court reducing the general bond of the guardian from $7,000 to $1,000. That relief was denied by an order of the Court entered on February 20th, 1939. In the judgment, it is recited that under the pleadings of the parties, the Court found and declared that the guardian had received for his ward (appellee) from the estate of J. H. Johnson, deceased (appellee’s grandfather) $3,665.44, and had accounted to the court for $1,016.69; that said guardian had failed and refused to account for $2,648.75 of said funds so received by him. The general bond for $1,000, upon which the guardian was principal and the appellant was surety, was effective at all times after its execution until and including the trial date of this case.

The Probate Court of Tarrant County exercised no control or jurisdiction in said estate relating to the partition suit in Parker County by the guardian and others, wherein the estate of J. H. Johnson, deceased, was partitioned and from which the guardian received the interest of his ward. In this connection, the trial court, in his fact findings, says: “That the said guardian (D. O. Padgett, • Sr.) did not make any application to the Probate Court of Tarrant County for an order authorizing a sale of the ward’s interest in the property in Parker .County, Texas, no order was entered approving such sale, no sale bond was required or given in connection with said sale, no application was made by the guardian in connection with the ward’s estate for permission to file or participate in said partition suit, no order entered thereon seeking ratification of said partition sale and no order entered approving or confirming any partition, and that there has been no guardian’s deed executed for and on behalf of the estate of said ward and no authorization from the Probate Court of Tarrant County to make 1 such a deed, and that the Probate Court / of Tarrant County, Texas, exercised no jurisdiction whatsoever over the sale of the ward’s interest in and to the land in Parker County, Texas.”

The cause was tried to the Court without the intervention of a jury. Judgment was entered in favor of appellee for $1,000 against appellant on the general bond of the guardian; hence this appeal by the surety on the bond.

The appellant seeks a reversal of the judgment upon five propositions, and the assignments of error to which they relate. The first three of these propositions assert error by the trial court in entering judgment against appellant, as surety on the guardian’s general bond, when all the facts show, (a) that the funds which came into the hands of the guardian resulted from a sale of the ward’s interest in lands in Parker County, Texas, (b) the funds for which the guardian failed to account were indisputably those arising from that sale, and (c) no application to the Probate Court was made for the guardian to participate in a partition suit, no order therefor was made, no application was made to the Probate Court for the guardian to sell the interest of the ward in the land, no authority was given, no report of sale was made, no confirmation thereof and no sale bond was required of the guardian to make such a sale. It is therefore contended that there was no liability for the accounting of said funds as against the general bond and appellant as surety thereon, for funds arising from the sale.

In its brief, appellant treats this transaction as one in which a guardian has sold the land of his ward, in which event he is required by statute to execute a sale bond, as provided by Article 4216. It is further contended that the general bond, upon which appellant was liable, was given in obedience to the requirements of Article 4141, R.C.S., which, in part, provides: “The bond of the guardian of the estate of a ward shall be in an amount equal to double the estimated value of the personal property belonging to such estate, plus a reasonable amount to be fixed at the discretion of the county judge, to cover rents, revenues and income derived from the renting or use of real estate belonging to such estate. * * * conditioned that such guardian will faithfully discharge the duties of guardian of the estate of such ward according to law. * * * ”

This article further provides that the County Judge shall from time to time inquire into the sufficiency of the bond, and if found inadequate, shall require the guardian to execute another, providing ample security for the performance of his duties as guardian.

We think appellant’s premise is wrong. This was not a sale of real estate by a guardian, as contemplated by the several provisions of the statute. It is well settled by the decisions of our courts that under the provisions of our statutes, as they existed when this transaction took place, that the sureties on a general bond of the guardian are not responsible for the accounting of funds acquired by a guardian from a sale of real estate belonging to- his ward. Perhaps the leading case on that point is American Indemnity Co. v. Noble, Tex.Com.App., 235 S.W. 867. The rule there announced has since been followed several times by other courts in the State.

In the instant case, the Probate Court of Tarrant County did not assume to exercise any jurisdiction in the matter of acquiring by the guardian the estate of his ward in the land in Parker County. In fact, it is not made to appear from the record before us that the ward had any interest in his grandfather’s estate in that county at the time the probate court set and approved the guardian’s general bond, upon which appellant was surety. This interest or estate of the ward did not accrue until the death of his grandfather, J. H. Johnson. The record does not reveal when this occurred.

It was one of the general duties of the guardian to take into his possession all of the estate of his ward. He was obligated by the terms of his general bond to faithfully discharge his duties as such guardian. By the provisions of Article 4164, R.C.S., the guardian is entitled to the possession and management of all the property of his ward. By Article 4168, R.C.S., he is required to use due diligence to recover possession of all property to which the ward has a title or claim.

On March 17th, 1931, the guardian of ap-pellee joined with others in a suit in the District Court of Parker County for partition of about 400 acres of land, in which it was claimed that appellee (the ward) had an interest. This action, as we construe it, was in keeping with the guardian’s general duty to get into his possession property “to which his ward had a title or claim.” Under and by virtue of the judgment entered in that cause on April 10th, 1931, the guardian recovered and took into his possession, not land representing the interest of his ward, but more than $3,000 consisting of cash and a vendor’s lien note for $2,313.96. Of course, what he received for his ward was personal property. The judgment of the District Court of Parker County shows that the ward was entitled to an undivided one-fourth interest in the land, but' that it could not be equitably set apart in kind to the guardian for his ward; that a necessity existed for a receiver to be appointed by the court with instructions to sell the land and divide the proceeds between the joint owners in the proportions their respective interests were found by the court to exist.

There is no doubt in our minds that the District Court of Parker County had jurisdiction of the parties and the subject matter, when it entered the judgment of partition. This record does not disclose that the guardian sought a sale of his ward’s interest in the land by asking the court to decree such a sale; even if he had the action would have been nonetheless one of partition. Our District Courts from. the date of their creation have possessed equitable powers, independent of a statutory provision, to effectuate a partition of land by ordering it spld and a division of the proceeds, when the court is convinced that the rights of the parties demand it. The fact that one interest in the land is owned by a minor does not defeat the jurisdiction of the court to partition, nor to administer equitable rules of procedure in consummating that end. Moore v. Blagge, 91 Tex. 151, 38 S.W. 979, 41 S.W. 465; Laird et al. v. Gulf Production Co., Tex.Civ.App., 64 S.W.2d 1080, writ dismissed.

The testimony shows that the vendor’s lien note taken by the guardian in the transaction was paid in full by the son of the maker of the note. The judgment of the Probate Court in the bill of review proceeding shows that the guardian had not accounted to the court for $2,648.75 of the funds received from the Parker County suit. The ward testified that he had received no part of it since becoming of age.

One of the duties enjoined upon the guardian by the conditions of’his general bond was to faithfully discharge his duties. That duty embraced reducing the property of the ward to his possession. When once in his possession, it was likewise a part of his general duty as such guardian to account-for it.

In Sargent v. Wallis, 67 Tex. 483 at page 487, 3 S.W. 721, it was said: “The bond of the guardian bound him, not only to account for and pay over such money or other effects of his ward as came into his hands, but also to faithfully discharge the duties of guardian of the estate of his ward according to law.”

We have found no case in which the courts of this State have had the precise question before them that now confronts us, nor have we one such cited in the briefs before us. We are cited by ap-pellee to Hooks v. Evans et al., 68 Iowa 52, 25 N.W. 925, the reasoning in which we think is sound and applicable to the point before us. The opinion reveals that the statutes of that state provide very much as do those of this state in guardianship matters. There, as in this state, a general bond is required of a guardian. The conditions of that bond in Iowa is that the “guardian ‘shall, from time to time, whenever thereunto required by law, render and pay unto said minors all moneys, goods, chattels, title papers, and effects which may come into the hands or possession of such guardian’ ”. It is also provided by statute in that state that the “guardian when about to sell real estate shall give a special bond as security for the proceeds of the sale, as a condition precedent to his right to sell.” In the cited case, a suit was instituted by a ward against her guardian and his sureties on his general guardian’s bond for proceeds of a sale of real estate by a referee in a partition suit. .In drawing the distinction between the liability of sureties on a sale bond, and the sureties on the general bond, the court said: “When, however, real estate of the ward is sold, not at a guardian’s sale, but at a referee’s sale, made in proceedings for a partition, the case is different. There is no provision of statute that ’a special bond shall be given, and the sureties cannot be allowed to say that they had reason to suppose that there would be. Their liability, therefore, must be determined solely by the terms of their contract.”

It was urged there by the sureties, as is done in the instant case, that the provisions of the statute only required the guardian to make a general bond in double the amount of personal property on hand, plus a reasonable amount to cover rents and revenues arising from real estate; that a personal estate not then in existence, such as the one there in controversy could not be contemplated by the parties to the contract and that the court should not construe the bond as security for such new property. Court further said: “But we cannot think that the intention was that the ward should be without security for such property. * * * This property having come into the hands of the guardian as the ward’s personal estate, but not as the proceeds of a guardian’s sale of real estate for which a special provision is made, we think we must treat it like other personal estate of the ward, and regard the bond in question as security for it.”

In the instant case, we think it is clear that the funds coming into the hands of the guardian as a result of the receiver’s sale of the land in Parker County, constituted additional personal property belonging to the ward, for the accounting of which the general bond was security, to the same extent as if it had been on hand when the bond was executed. Our statutes which provide for the giving of the general bond, do not expressly nor impliedly limit the liability of the signers of the bond to property then on hand or that may arise from rents and revenues from real estate. As has been seen, if the guardian should thereafter seek to sell real estate belonging to his ward, he was required to make a sales bond to secure the proceeds arising therefrom, and the makers of the general bond had a right to anticipate that this would be done; but the funds involved in this suit, coming into the guardian’s hands, did not arise from that source. The general bond in this case is grossly inadequate in amount, but such as it is, must be held to secure the faithful performance of the guardian to the trust imposed upon him by law, to the extent of the amount contracted for.

We have reached the conclusion and so hold that, it was within the general duties of the guardian to recover possession of his ward’s estate, consisting of the interest in the land in Parker County; that it being an undivided interest, he could and should institute a proper suit to reduce it to possession and segregate it from the joint interests of others, if it was to the best interest of his ward; the District Court of Parker County had jurisdiction of the parties and subject matter in the partition suit, without order or leave from the Probate Court of Tarrant County; that the District Court could, upon a determination that the land was not capable of an equitable partition, order it sold by a receiver and the proceeds arising therefrom be divided among the owners as their respective interests may appear; that when the guardian received in cash and notes the proportionate amount to which his ward was entitled, he and his sureties on his general bond became -responsible for the accounting therefor, as a performance of the faithful discharge of his duties as guardian. The contentions of appellant to the contrary, raised by its propositions one to three, are overruled.

Appellant’s fourth and fifth propositions raise the questions of the sufficiency of the pleadings of appellee to support the judgment rendered and vice versa the variance between the pleadings and proof offered. As we construe the petition upon which this case was tried, it is one against appellant as surety on the guardian’s general bond, for a failure of the guardian to faithfully discharge his duties as guardian, according to law; in that the guardian received personal property in cash and a vendor’s lien note, all amounting to more than $3,600, belonging to the estate of the- ward; that he collected the note, reducing it to cash, and thereafter failed and refused to account for approximately $2,600 of it.

The uncontradicted proof shows that the cash was received by the guardian from the receiver appointed by the District Court of Parker County to sell the land; that he also received the. vendor’s lien note 'from the purchaser of the land, representing the unpaid balance for which the receiver sold the ward’s interest; that the son of the maker of the note paid it in full to the guardian. It further appears from the judgment of the Probate Court in which the guardianship proceedings were pending, entered on February 20th, 1939, that the guardian had not accounted to the court for $2,648.75 of the funds received by him, and that the guardian had not invested any part of that sum for the use and benefit of his ward - under orders of the court, and further that the- guardian had made no final account and had refused to do so, and that the guardian had failed and refused to account to the ward for said funds. The ward, the appellee here, more than twenty-one years of áge when this suit was instituted, testified that his guardian had not accounted to him for any part of said fund. The trial court found from the facts before him, in findings of fact and conclusions of law, requested by appellant, at paragraph five, as follows: “That the said D. O. Padgett, Sr. (the guardian) did not account to or pay to the said David Oscar Padgett, Jr. (the ward) all or any part of the sum of $2,6-1-8.75, which the said Probate Court found that the said D. O. Padgett, Sr. was in default.”

While the witness, J. J. Miles, was on the stand testifying as a witness, appellee had him identify the canceled checks issued by him to D. O. Padgett, by which the witness claimed he paid the vendor’s lien note. The checks were put in evidence as exhibits. Each of those checks recites: “Pay to D. O. Padgett or order” so much, stating the amount. The checks were indorsed by D. O. Padgett. It is contended by appellant that because the checks were not payable to “D. O. Padgett, Sr., Guardian”, or in some way to indicate that they were payable to him in his fiduciary capacity, they did not constitute proof of payment to the guardian as such. The witness who made payment by executing the several checks testified that they were delivered by him to D. O. Padgett, Sr.; that he saw that person indorse the checks; that when he had paid the whole note, it was delivered to him, with notation thereon that it was paid in full.

The judgment of the Probate Court, in which it was determined that the guardian had defaulted in the sum of $2,648.75, was well within the jurisdiction of that court. It being regular upon its face, was binding on all parties, including the guardian and the sureties on his bond. In this action by the ward on the bond, the judgment of the Probate Court was not subject to attack nor revision collaterally. Appellant was a party defendant in the bill of review action in the County Court, in which judgment the default was determined. That judgment was admissible in evidence in the instant case. 21 Tex.Jur., page 404, sect. 128, and cases there cited; also same text, page 411, sect. 132. In Whitfield v. Burrell, 54 Tex.Civ.App. 567, 118 S.W. 153, writ refused, it was held that the sureties on the bond need not be made parties to the probate proceeding's, but that the judgment of that court was binding upon them and required no additional evidence of their liability to support a judgment against them in a suit on the bond. We see no deficiency in the pleadings of ap-pellee and no lack of proof to support the judgment thereunder.

The judgment rendered by the trial court was for only $1,000, which was the extent of the liability assumed by the appellant. We see no error in the action of the trial court, for which the judgment should be disturbed. The propositions and the assignments of error to which they are germane are all overruled. The judgment should be affirmed. It is accordingly so ordered.


author: O’QUINN, Justice. WALKER, Chief Justice, and COMBS, Justice

text:
    CITY OF BEAUMONT v. WIGGINS et al.
    No. 3567.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 5, 1940.
    Rehearing Denied Jan. 17, 1940.
    Geo. E. Murphy, City Atty., and E. B. Votaw, Asst. City Atty., both of Beaumont, for appellant.
    Elton Cruse, of Beaumont, for appellees.
   O’QUINN, Justice.

Mrs. Frank Wiggins joined by her husband, Frank Wiggins, sued the City of Beaumont to recover damages resulting from alleged personal injuries suffered by Mrs. Wiggins on August 28, 1937, by reason of a fall which it was alleged was occasioned by a defect in the pavement in block 1100 of Elgie Street in said city. Plaintiffs, among other things, alleged that on the occasion in question, while crossing the street she stepped into a hole which caused her to fall, causing her serious injuries. The trial was to a jury upon special issues upon the answers to which judgment was rendered in favor of plaintiffs for $3,500. This appeal is from that judgment.

In the court’s charge defining “new and independent cause”, as a part of said definition, this language was used: “unless the intervening cause is thus both new and independent, sufficient of itself to- stand as the cause of the injury breaking the causal connection, the original wrong-doer is not relieved from legal responsibility for his wrong or negligence.” It is insisted that this portion of the definition was a general charge and “caused the jury to be impressed with the effect of its answers to all issues involving proximate cause,” which required a reversal of the judgment. The term objected to was used by the court in his definition of “proximate cause,” and the definition of “new and independent cause” was given in explanation of same, as required under Article 2189, R.S.1925. It was not subject to the objection presented. It was neither a general charge, nor did it tend to inform the jury of the effect of their answers to the issue of proximate cause.

The first special issue submitted was No. A-l, which inquired as to whether on August 28, 1937, there was a large and deep hole in the 1100 block on Elgie Street, which was answered “Yes.” Just before this issue was the charge: “You are instructed that the defendant is not an insurer of the safety of persons passing along the street, but is only obligated to keep said streets in a reasonably safe condition for the safety of persons passing thereover.” Later in the charge was submitted special issue No. D-3, as follows: “Do you find from a preponderance of the evidence that the street where Mrs. Wiggins received her fall and injury, if any, at the time of and just prior to said fall and injury, if any, was not reasonably safe for travel thereover by persons exercising ordinary care?” The jury answered, “Street was not reasonably safe.” The charge that the defendant was not an insurer of the safety of persons passing along the street, but was obligated only to keep the streets in a reasonably safe condition, was objected to by appellant on the grounds that it was a general charge and informed the jury of the effect of their answer for in that if they found that the street was in a reasonably safe condition they would know that Mrs. Wiggins could not recover. We are constrained to believe that the charge was a general charge. - It was not given in connection with any special issue or in explanation of any words or term used in the submission of any such issue. Appellee says that the charge was given because in a former trial of the case appellant excepted to the court’s charge because the instant charge was not given, and in order to avoid a similar exception, it was give.n and hence it should be considered as invited error if held to be error. We do not believe that it can be thus justified. What may have occurred at another and different trial was not here involved, and, toOj on further study counsel for appellant may have, and it appears did change his mind as to the correctness of the charge. It could have been eliminated upon the exception and appellant could not have consistently objected for it would have been done at his insistence. Being a general charge, it was error, and we are unable to say that it was harmless. Texas & N. O. R. Co. v. Crow, 132 Tex. 465, 123 S.W.2d 649. Humble Oil & Refining Co. v. McLean, Tex.Com. App., 280 S.W. 557; Stokes v. Snyder, Tex. Com.App., 55 S.W.2d 557.

A number of other assignments are presented but as the matters there complained need not occur upon another trial, we will not discuss them. However there is one we think should be considered for the benefit of the court and the parties. Special issue No. A was submitted, as follows:

Special Issue No. A. “From the preponderance of the evidence, what amount of money (if any) if paid now, do you find would reasonably compensate plaintiffs on account of the injuries (if any) to Mrs. Frank Wiggins proximately caused (if you have so found) by the negligence (if any) of the defendant relating to said hole?”

“Answer: By stating the amount (if any) in dollars and cents.”

“In estimating said damages (if any) you may take into consideration the nature of the injuries of the said Mrs. Frank Wiggins (if any) and whether said injuries, if any, are serious and permanent or otherwise, and assess such damages (if any) as you may believe from the preponderance of the evidence will reasonably compensate for such damages (if any) that the said Mrs. Frank Wiggins sustained on the occasion in question, taking into consideration as elements of damages (if any) mental suffering (if any), and physical suffering (if any-), and disability (if any) to. perform her household duties (if any) in the past, if there have been any damages in the past, and in the future, if you find that there will be any damages in the future, proximately caused by the said negligence (if any) of the said defendant.”

To this issue appellant timely objected in writing as follows: “Defendant further objects to special issue No. A of the court’s charge because the evidence raises the issue that a part of plaintiff’s physical and mental suffering, if any, were attributable to the menopause or to some kidney trouble or improper glasses or other physical disabilities causing severe headaches and pains, which had no connection with the accident and the court should instruct the jury in connection with special issue No. A not to consider nor allow anything for physical and mental suffering or disability to perform her household duties or loss of earning capacity either in the past or future because of so much of said above described physical condition, if any, that plaintiff, Mrs. Wiggins, had which was not an aggravation by the accident.”

When this objection was presented to the court he undertook to avoid the objection by further charging in connection with said issue No. A, the following: “In connection with Special Issue No. A the court further instructs you that as heretofore stated such damages, if any, are to be limited to those proximately caused by the negligence, if any, of the defendant and you are particularly instructed not to consider or allow any damages for any physical or mental suffering or disability to perform household duties unless same is proximately caused by the negligences, if any, of the defendant and then only to the extent or per cent if any that may be proximately caused by such negligences, if any.”

Mrs. Wiggins alleged in her petition, and testified as a witness, that she sustained an injury to her back and kidneys and also a severe nervous shock and had suffered from severe headaches as a result of her fall into the hole in the street. The defendant, City of Beaumont, offered evidence to the effect that Mrs. Wiggins, at and before the time of her fall, was suffering from the effects of menopause. Several doctors testified that a woman while going through the period of menopause was apt to be nervous, become incoherent at times, and-some of them would have to be sent to institutions, etc. Mrs. Wiggins testified that before the fall she was subject to frequent headaches, and that she had been advised to wear glasses for relief; that she was on the way to her daughter’s home at about four o’clock that morning to get some medicine to relieve a headache with which she was then suffering. Dr. Dunn, city health physician, testified that he examined Mrs. Wiggins and that in his opinion she was in the .menopause period. It is thus seen that an issue of fact was raised as to whether Mrs. Wiggins was in menopause and suffering the results accompanying same, and as to whether before the fall she was subject to severe headaches, and whether a part of her suffering was attributable to her prior physical condition.

In Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683, 685, Judge Hickman, speaking for the supreme court, said: “It has long been a settled -rule in this state that, where a plaintiff in a personal injury suit is suffering from an infirmity not caused by the accident which is the basis of the suit, and where the injuries flowing from the prior existing infirmity and those flowing from the negligence of the defendant are closely connected and intermingled to the extent that the jury might become confused and allow for improper elements of damages, the trial court should affirmatively charge the jury that plaintiff is entitled to recover only to the extent that his injuries were aggravated by the defendant’s negligence.” (citing authorities.)

We do not believe that the additional charge given after objection was made to the main charge, added to or clarified the charge as it was before. It simply reiterated what had already been given, that ⅛, that plaintiff was entitled to recover only the damages proximately caused by the defendant’s negligence. It did not affirma-. tively charge the jury that plaintiff was entitled to recover only to the extent that her injuries flowing from any prior infirmity, if any, were aggravated by the defendant’s negligence.

The judgment is reversed and the cause remanded for another trial.

WALKER, Chief Justice, and COMBS, Justice

(concurring).

The charge: “You are instructed that the defendant is not an insurer of the safety of persons passing along the sirai, but is only obligated to keep said streets in a reasonably safe condition for the safety of persons passing thereover,” was favorable to appellant, and, therefore, affords no ground for reversal. 3 Tex.Jur. 1269. The court is in agreement that the judgment of the lower court should be reversed and the cause remanded on the second error discussed by Mr. Justice O’QUINN.


author: MURRAY, Justice.

text:
    MULLINS v. ALBERTSON et al.
    No. 10654.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 17, 1940.
    Rehearing Denied Feb. 7, 19⅜0.
    Brown & Criss, of Harlingen, fo.r appellant.
    P. G. Greenwood, of Harlingen, for ap-pellees.
   MURRAY, Justice.

This cause in its various phases has been before this Court several times. See Tanberg v. Mullins, Tex.Civ.App., 46 S. W.2d 1119; Jeffus v. Mullins, Tex.Civ. App., 78 S.W.2d 1023.

The case at bar is- a suit by Linnie E. Mullins against G. M. Albertson and others for the purpose, among other things, of having an alleged abstract of judgment lien foreclosed against certain real property alleged to belong to G. M. Albertson.

The alleged abstract of judgment lien is one attempted to be created by recording the judgment rendered in this Court in Tanberg v. Mullins, 46 S.W.2d 1119, against the sureties on the supersedeas bond given by Tanberg and wife in said cause, such sureties’ names appearing in that record as G. W. Albertson and George Jeffers, while their true names, as signed to the supersedeas bond, were G. M. Albert-son and George Jeffus. An attempt was made in this Court by motion duly made to have these names corrected, but such relief was refused upon the ground that the court was bound by the record.

Thereafter suit was filed in the district court of Cameron County seeking judgment on the supersedeas bond against G. M. Albertson and George Jeffus, which relief was granted by the trial court, but upon appeal to this Court we held, in effect, that Mrs. Mullins having elected to have judgment rendered in this Court over and against the sureties on the super-sedeas bond, could not also have the common law remedy of a suit against such sureties in an independent suit. We also held that the mistake in the middle initial of Albertson was immaterial, in the following language: “It was unquestionably a valid judgment against G. M. Albertson under the settled rule of law that, when two or more names or initials are used preceding the surname to designate a person, the middle name or initial will be disregarded.” [78 S.W.2d 1024.]

The judgment was reversed and judgment there rendered that Mrs. Mullins take nothing by reason of her suit.

In the suit at bar the trial court sustained a plea in abatement and dismissed the suit, from which judgment of dismissal Linnie E. Mullins has prosecuted this appeal.

Appellant first contends that an abstract of judgment which names G. W. Albertson as a defendant creates a lien against land belonging to G. M. Albertson, when the identity of the parties is shown. We sustain this contention and adhere to our holding in Jeffus v. Mullins, 78 S.W.2d 1023, to the effect that the middle initial may be disregarded. Especially is this true where the identity of the parties is fully established.

The clerk in abstracting and indexing the judgment complied with every requirement of the statutes, Art. 5447, R.C.S. 1925; the only trouble being that G. M. Albertson was described in the judgment as G. W. Albertson, and it is clear from the record that G. M. Albertson and G. W. Albertson is one and the same person. In others words, Albertson is given the same initials in the abstract of judgment as he was given in the judgment and, therefore, the only question presented is the question of. the identity of the land owner and the defendant in the judgment.

It appears from this record that G. M. Albertson was the owner of the land involved herein, but for the very purpose of avoiding the judgment against him he had executed a deed to John Fedor and Fedor had executed a pretended mortgage on such land. Under these facts appellant was entitled to maintain this suit to foreclose her lien against this land and the trial court erred in sustaining a plea in abatement to the cause of action.

In view of another trial, we refrain from discussing the question as to whether or not the failure to include the names of all the defendants in the order of sale would render the sale thereunder void or voidable and whether or not G. M. Albertson has timely raised the question. Such matters cannot properly be raised by a plea in abatement but will no doubt be heard and determined when the cause is disposed of on the merits. We feel that the case is not fully developed upon these questions.

The judgment is reversed and the cause remanded.


text:
    SOUTHERN UNDERWRITERS v. BUXTON et al.
    No. 3585.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 11, 1940.

      Bill IJaniel, of Liberty, and Simpson, Dorenfiéld & Fullingham, and Benbow, Saunders & Holliday, all of Dallas, for plaintiff in error.
    Chap. B. Cain and Thos. A. Wheat, both of Liberty, for defendants in error.
   WALKER, Chief Justice.

This appeal was by writ of error, but the parties will be referred to as appellant and appellees. The action was by appellees, the surviving wife and children of Charles Wesley Buxton, for compensation for the death of the husband and father, under the provisions of our Workmen’s Compensation Act, Vernon’s Ann.Civ.St. art. 8306 et seq. The case was tried to a jury. On motion of appellees, filed after the return of the verdict, judgment was entered in their favor against appellant for compensation for 360 weeks at $18.17 per week.

The jury found that Charles Wesley Bux-ton had worked in the employment in which he was working at the time he was injured substantially the whole of the year immediately preceding the injury; this was a submission and finding in appellees’ favor of subdivision 1 of Sec. 1 of Art. 8309, defining “average weekly wages.” Subdivisions 2 and 3 of the definition of average weekly wages were also submitted to the jury, but alternatively; that is, the jury was instructed not to answer question No. 10, submitting subdivision 2, provided they had answered in the affirmative question No. 8 submitting subdivision 1, and, likewise, the jury was instructed not to answer special issue No. 12, submitting the third subdivision of the definition, in the event question No. 10 was answered in appellees’ favor. Thus, on the verdict of the .jury there was a finding that Charles Wesley Buxton worked in the employment in which he was working at the time of the injury, substantially the whole of the year immediately preceding his injury, and there was no jury finding, under the instructions of the court, that any employee of the same class as Charles Wesley Buxton performed the same or similar work being performed by Charles Wesley Buxton, during substantially the entire year before Charles Wesley Buxton was injured, nor was there any finding of an average weekly wage that “would be fair and just” to both appellant and appellees.

The trial court made the following findings and entered the following order on ap-pellees’ motion to enter judgment non ob-stante veredicto: “And it further appearing to the Court that plaintiffs on the 10th day of March, 1939, duly filed in this Cause a proper motion to disregard the jury’s said findings upon Special Issues Nos. 8 and 9 on the ground that there was no evidence to raise such issues or to sustain the findings of the jury thereon, that said defendant, The Southern Underwriters, through its attorney, waived the service of reasonable notice of such motion as provided by law, and that on the hearing of such motion both parties came by their attorneys, and having heard and considered such motion, the evidence' and the argument of counsel, and being of the opinion that there was no evidence to raise -such issues, that the jury’s findings in answer thereto have no support in the evidence and that such motion should be granted, and the jury’s said findings on Special Issues Nos. 8 and 9 should be disregarded, it is accordingly ordered that said motion be and it is hereby granted and the said jury’s findings to Special Issues Nos. 8 and 9 be, and they are hereby disregarded. And it further appearing to the Court that there is no evidence in the record that there was any employee of the same class as Charles Wesley Buxton who performed the same or similar work to that which Charles Wesley Buxton performed for Peoples Lumber and Supply Company on March 25, 1938, in Dayton, Texas, or vicinity, and there is no evidence to support such issue and no evidence to support a finding of the jury, and that uncontradicted and undisputed evidence establishes that there were no employees working substantially the entire year on March 25, 1938, in Dayton, Texas, or vicinity. And it further appearing to the Court that the only proper method from the evidence and the record for computing the average weekly wage of Charles Wesley Buxton would be under subdivision No. 3 of Article 8309, to-wit: said average weekly wage should be computed in any manner which' may seem just and fair to both parties, and the evidence uncontra-dicted and undisputed and of a nature to conclusively establish that Charles Wesley Buxton was earning a weekly wage and had a weekly income from the Peoples Lumber and Supply Company of $30.28 per week; that 60% thereof would be $18.17 per week. And the Court now finds this figure of $30.28 to be such a weekly wage as would be fair and just to both the plaintiffs and the defendant, The Southern Underwriters.”

The evidence on the issue of a fair and just weekly wage is summarized as follows by appellees in their brief: “The evidence was undisputed and uncontradict-ed to the effect that for substantially four years prior to the time that Charles Wesley Buxton received his accidental personal injury on the 25th day of March, 1938, he worked about two-thirds of the time and during the year immediately preceding the 25th day of March, 1938, the date of his accidental personal injury, which resulted in his death, he worked about seven months and during the prior part of that year he made not less than $175.00 every two weeks and at the time he received his accidental personal injuries and for a month or two prior to that time, he worked not less than 10 hours per day and very frequently did night work and made 50 cents per hour, which would make his average income run around $5.50 to $6.00 per day, which was the least wages that he ever did earn while in the employ of the Peoples- Lumber & Supply Company. All of the evidence upon the1 average weekly wage that has any bearing upon the question came from the plaintiffs’ witnesses.” Appellant’s principal point is that the trial court was without power to make an independent finding of a fair and just wage, under subdivision 3 of the definition of average weekly wage. Issues Nos. 8 and 10 were sent to the jury over appellant’s exceptions and objections that they were without support in the evidence. Notwithstanding these exceptions, the jury’s affirmative answer to No. 8 was received, and, as stated above, on the alternative submission issue No. 10 was not answered. By their motion to enter judgment non obstante veredicto, appellees conceded, and on their motion the trial court so found, that issues Nos. 8 and 10 were without support in the evidence. Issue No. 12, submitting a fair and just wage, did have support in the evidence, but, under the alternative submission, the jury was not permitted to return its finding thereon. It is clearly the law that the trial court cannot make an independent finding on a fact issue sent to the jury but not answered, unless the evidence on that issue is without dispute and subject to only one answer by the jury; that is, the answer to the issue must follow as a conclusion of law from the evidence. Southern Underwriters v. Drewyer, Tex.Civ.App., 125 S.W.2d 640, Note 18 Tex.Law Review 110. So, the court erred in making an independent finding on the issue of a just and fair wage unless his finding of $30.28 amounts to a legal conclusion from the undisputed evidence. Discussing in Maryland Casualty Co. v. Drummond, Tex.Civ.App., 114 S.W. 2d 356, 359, the issue of a fair and just wage, under subdivision 3 of the definition of average weekly wages, this court said: “The question is one which has given this court considerable trouble. The decisions of our courts have not laid down any specific rule or guide for determining just what facts may and what may not be considered in determining the just and fair wage rate contemplated by the statute.” It appears from our discussion of that case, and from the authorities cited, that in estimating a just and fair weekly wage the jury may take into consideration all facts and circumstances which “tend reasonably to establish the capacity of the claimant to earn in the same or similar employment to that in which he was engaged at the time of his injury.” It is clear from the authorities cited by us in. the Drummond case that a just and fair wage, under subdivision 3, is not a matter of mathematical calculation, but must be fixed by the jury on due consideration of all the facts and circumstances in the case which tend to establish the earning capacity of the claimant, or of the deceased.

The evidence raised the issue that the death of Charles Wesley Buxton resulted from a compensable injury.

The other points presented by appellant’s brief need not occur on another trial. '

For the error discussed, the judgment of the lower court is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: ALEXANDER, Justice.

text:
    PYRAMID LIFE INS. CO. OF TOPEKA, KAN., v. ELLIS COUNTY DRAINAGE DIST. NO. 1.
    No. 2219.
    Court of Civil Appeals of Texas. Waco.
    Jan. 18, 1940.
    Rehearing Denied Feb. 8, 1940.
    Howell & Jacobs, of Kansas City, Mo., and J. C. Lumpkins and Hancock & Hancock, all of Waxahachie, for appellant.
    J. L. Gammon and Jack B. Eastham, both of Waxahachie, for appellee.
   ALEXANDER, Justice.

The Pyramid Life Insurance Company, as the owner and holder of five negotiable bonds and the interest coupons attached thereto, issued by the Ellis County Drainage District No. 1, brought this suit against said Drainage District to recover on interest coupons Nos. 10 to 17, inclusive, clipped from each of said bonds. The interest coupons were payable one each year from April 10, 1930, to 1937, inclusive. The suit was filed on December 24, 1937. A trial was had before the court without a jury. Judgment was entered for plaintiff for such of the coupons as matured within four years prior to the filing of the suit; but recovery was denied on the coupons that had been due more than four years at the time suit 'was filed, on the ground that the same were barred by limitation. The plaintiff has appealed.

Revised Statutes, art. 5527, provides, in part, as follows:

“There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

“1. Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing.”

In Texas the rule is that the cause of action on interest coupons attached to bonds accrues on the due date of the coupon without regard to the due date of the principal of the bond, and that limitation begins to run from that date. City of Galveston v. Loonie, 54 Tex. 517; Rockwall County v. Roberts County, 103 Tex. 406, 128 S.W. 369. See also 37 C.J. 848, sec. 208.

Appellant apparently concedes the correctness of the rule above announced but contends that it is inapplicable in this case because the levee improvement district, which was organized under the provisions of Articles 8097 to 8176 of the Revised Statutes, derives all of its funds from an ad valorem tax assessed' against the property within the district, and said bonds and the interest coupons attached thereto are payable only out of the special fund so raised, and it is contended that the cause of action for recovery on said coupons did not accrue until funds had accumulated in the treasury sufficient to pay such coupons. In this connection, appellant asserts that the defendant failed to show that it had ever had on hand sufficient funds to pay the coupons in question, and hence it is contended that same are not barred by limitation.

There is a line of authorities in which it is held in effect that where municipal obligations are payable out of a particular fund or in a particular manner, the statute of limitation does not begin to run until the particular fund has been provided. 37 C.J. 849, sec. 209; Board of County Commissioners of Oklahoma County v. Board of Finance of Methodist Episcopal Church, South, 10 Cir., 100 F.2d 766, and authorities there cited. An examination of such authorities, however, will disclose that such holding is generally based 'on the fact that the municipal obligation was not by its terms unconditionally due on a specified date, but the obligation to pay was made dependent on the happening of some future event. For instance, in City of New Orleans v. John G. Warner, 175 U.S. 120, 20 S. Ct. 44, 44 L.Ed. 96, the warrants were payable in the event there were funds in the treasury sufficient to pay same. In Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766, the coupons were payable as money came into the hands of the treasurer applicable thereto and in the order of their registration. Similar provisions limiting the due date of the obligations will be found in State ex rel. DeKalb v. Ferrell, 105 Mont. 218, 70 P.2d 290; Schoolfield v. School Dist. No. 1 in Custer County, 101 Colo. 56, 70 P.2d 353; Freehill v. Porter, 65 Cal. 603, 4 P. 646. Some of the cases cited by appellant do not make this distinction. See in this connection Board of Commissioners of Greer County v. Clarke & Courts, 12 Okl. 197, 70 P. 206; Barnes, Mayor v. Turner, 14 Okl. 284, 78 P. 108; City of Sulphur v. State ex rel. Lankford, Bank Com’r, 62 Okl. 312, 162 P. 744, 746; Denver-Greeley Valley Irrigation Dist. v. McNeil, 10 Cir., 80 F.2d 929; Board of County Commissioners of Oklahoma County, Oklahoma v. Board of Finance of Methodist Episcopal Church, South, 10 Cir., 100 F.2d 766. However, a careful analysis will disclose that the rule when originally adopted in those states where it prevails was based on some provision of the obligation limiting the maturity thereof to the happening of some future event. 37 C.J. 850, notes 42 and 43; School Dist. No. 5 v. First National Bank, 63 Kan. 668, 66 P. 630. For a general discussion of the cases see Little v. Emmett Irrigation Co., 45 Idaho 485, 263 P. 40, 56 A.L.R. 822. Of course, where there is some condition precedent to the maturity of the obligation, limitation does not begin to run until the named contingency happens and the cause of action has accrued. 28 Tex. Jur. 139. Our statutes authorize levee improvement districts to issue bonds not to exceed in amount one-fourth of the assessed value of all real property within the district. R.S. art. 8127. Article 8131 provides that such bonds “shall bear interest at not exceeding six per cent per annum, payable annually or semi-annually. Such bonds shall by their terms provide the time, places, manner and conditions of their payment, and the rate of interest thereon, as may be determined and ordered by the court.” Article 8136 provides that when the bonds have been issued “the Court shall annually levy and cause to be assessed and collected taxes upon all property within the district, whether real, personal or otherwise, and sufficient in amount to pay the interest on such bonds as it falls due, and to redeem such bonds at maturity. Such taxes when so collected shall be placed in the interest and sinking fund.” Article 8141 provides that “The taxes authorized hereunder shall be a lien upon all property assessed therefor.” By Article 8140 the tax assessor and collector is given the same powers in assessing and collecting the taxes of the levee district as is possessed in the collection of state and county taxes. Article 8144 specifically authorizes him to sell the assessed property in satisfaction of delinquent taxes. Article 8150 provides that the funds collected for the payment of interest and to provide a sinking fund shall be placed in a separate fund and paid out for that purpose only. The bonds here involved were issued in the manner authorized by the above statutes, and the coupons attached thereto were made payable unconditionally on April 10th of each year- as authorized by Revised Statutes, art. 8131. There is nothing in any of the statutes above referred to nor in the contract evidencing the obligation that limits the due date of the coupons to a time when funds had accumulated in the treasury sufficient to pay the same, nor is such due date otherwise limited in any respect.

It is apparent from what has been said that the several coupons became due on the respective dates provided for therein, at which time the cause of action accrued thereon, and that limitation began to run from such date.

The trial court therefore properly held that all coupons that were by their terms more than four years past due when the suit was filed were barred by limitation.

The judgment of the trial court is affirmed.


text:
    LOWERY v. LOWERY.
    No. 3583.
    Court of Civil Appeals of Texas. Beaumont
    Jan. 4, 1940.
    Rehearing Denied Jan. 17, 1940.
    Baker & DeLee, of Port Arthur, for appellant.
    J. R. McDougald and J. R. Beck, both of Beaumont, for appellee.
   WALKER, Chief Justice.

In the lower court Mrs. Velma Lillian Lowery, appellee, was decreed a divorce from her husband, Oscar Leslie Lowery, appellant, the custody of their minor son, John Leslie Lowery, the household effects belonging to the community, the title and possession of lot 12, block 513, Model Addition, City of Port Arthur, owned by the community, and one Chevrolet sedan. Appellant makes the following points against the judgment:

(a) Notwithstanding appellant had duly filed his answer, the case was called for trial and judgment entered as on default without a setting by the court of the case for trial. Appellee’s counter proposition is that appellant had not filed an answer to the merits of the case, but the answer filed was only in response to the “show cause” order on appellee’s prayer for temporary alimony. We agree with appellant that the answer was in effect an answer to the merits, and that under Sec. 18, Art. 2092, R.C.S. 1925, the case should have been set for trial and he should have been given ' notice of the setting. But this conclusion does not support appellant’s proposition of error. The judgment was rendered on the 8th day of March, 1939, the original motion for a new .trial was filed on the 9th day and the amended motion on the 28th day of March. In his motion for new trial, appellant failed to allege a meritorious defense. Speaking for the Austin Court of Civil Appeals in Sneed v. Sneed, 296 S.W. 643, 645, a divorce case, Chief Justice McClendon said: “Two elements are essential to the legal right to have set aside a judgment, which has been-rendered in the absence of a party or his counsel, namely, (1) legal excuse for failure to appear and defend; and (2) a meritorious defense. Lawther Grain Co. v. Winniford (Tex.Com.App.) 249 S.W. 195.”

(b) The second point is that the divorce was granted on appellee’s uncorroborated testimony. The law seems to be that corroboration is not required. 15 Tex. Jur. 552; McBee v. McBee, Tex.Civ.App., 247 S.W. 588; Wynn v. Wynn, Tex.Civ. App., 251 S.W. 349; McCullough v. McCullough;Tex.Civ.App., 20 S.W.2d 224; Id., 120 Tex. 209, 36 S.W.2d 459; Id., Tex.Civ. App., 39 S.W.2d 105; Cooksey v. Cooksey, Tex.Civ.App., 40 S.W.2d 947. But if corroboration were required, the record would support the judgment. Appellee’s testimony was clear and unequivocal on the,issues-of cruel treatment; she had lived for many years in her father’s home. Corroborating Rer testimony, the father testified that her statements were “generally” true. 15 Tex.. Jur- 554.

(c) We sustain the'point that the court erred in awarding appellee title to the lot in controversy. It was all the real estate owned by the community. While in divorce cases the court has power to partition the community estate, it does not have the -power to divest title to all the real estate out of one party and invest the title in the other party. Art. 4638, R.C.S.1925; Reasonover v. Reasonover, Tex.Civ.App., 59 S.W.2d 887.

- (d). Appellee’s pleadings did riot put in issue the title to the automobile;- it simply.was not mentioned in her petition;.' She testified that it was her separate property, given to her by her father, and on this testimony the. court-awarded .her the title. In this respect, the judgment is without support in the pleadings.

The judgment of the lower court awarding appellee the divorce, the custody of the minor son, and the title to the household effects of the community, is affirmed; in so. far as the judgment awarded appellee title to the lot in controversy and to the automobile,, it is reversed and remanded for a new trial.

Affirmed in part and in part reversed and remanded.