author: NORVELL, Justice.

text:
    CARSON v. AMBERSON.
    No. 10908.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 19, 1941.
    Rehearing Denied March 19, 1941.

      Geo. M. Mayer and M. J. Arnold, both of San Antonio, for appellant.
    Kemp, Lewright, Dyer, Wilson & Sor-rell, of Corpus Christi, for appellee.
   NORVELL, Justice.

This is the appeal of John Carson, administrator of the estate of Paul Carson, deceased, from a judgment that he take nothing as against Joe Amberson, doing business as Union Bus Lines.

On the night of October 30, 1938, Paul Carson, also known as Paul Karan-zulis, received injuries which resulted in his death. Appellant contended that the deceased and one Bill Pappas, while returning from Kerrville to San Antonio, Texas, stopped upon the side of what is locally referred to as the Fredericksburg road for the purpose of repairing a tire upon the automobile in which they had been riding; that while so engaged, Carson was struck by a bus owned and operated by appellee. Appellant, as administrator, sued for damages for. physical pain and mental anguish suffered by Paul Carson prior to his death, on November 2, 1938, and for medical and burial expenses incurred. Appellant also brought the suit for the benefit of Christ Karanzulis, the father of the deceased, alleging that the father had been damaged in being deprived of the reasonable expectations of financial support from his deceased son. Appellant’s cause of action was founded upon negligence, but the jury’s findings were to the effect that the driver of appellee’s bus was not guilty of a negligent act which proximately caused Paul Carson’s death, and that the deceased was guilty of negligence which contributed to his injuries and resultant death.

Appellant presents six propositions of law in support of his prayer for a reversal of the trial court’s judgment. The sixth proposition presents the contention,' in effect, that as a matter of law, Paul Carson’s death was proximately caused by the negligence of appellee’s servants, and that, as a matter of law, the deceased was not guilty of contributory negligence. We hold that the evidence raised fact issues for the jury in regard to the several questions of negligence involved, and accordingly overrule appellant’s sixth proposition.

By the remaining five propositions, appellant contends that this case must be reversed because of an improper argument made by appellee’s counsel.

The bill of exceptions on this point contains the entire argument made by counsel but does not show that any objections were made to the argument at the time it was made. The objections or exceptions urged here were first set forth in the court below in a motion for new trial. This motion was overruled by the trial court.

The general rule is that “a case will not be reversed on account of improper argument before a jury unless objection is' interposed at the time the argument is made.” An exception to the general rule, however, applies when “the argument complained of is so plainly prejudicial that an instruction by the court to the jury not to consider the same would in all probability be of no avail.” City of Pampa v. Todd, Tex.Com.App., 59 S.W.2d 114, 116; Basanez v. Union Bus Lines, Tex.Civ.App., 132 S.W.2d 432.

In determining the question of whether or not improper argument constitutes reversible error in the absence of a timely objection thereto, we are to consider the argument in the same light as if proper objection had been made and the trial court had admonished the jury not to consider the same. Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946; Williams v. Rodocker, Tex.Civ.App., 84 S.W.2d 556. If, when viewed in this light, it does not clearly appear that no injury could have resulted from the argument, the judgment must be reversed. Humphreys v. Roberson, 125 Tex. 558, 83 S.W.2d 311.

Bearing the above rules in mind, we examine the specific complaint of appellant addressed-to the argument complained of. We shall not attempt to discuss in de-. tail all the remarks complained of by appellant, for the reason that those not mentioned in the opinion were either permissible upon the record, or were beyond peradventure of such a nature that all prejudice resulting therefrom could have been removed by an admonition of the trial court.

Appellant’s propositions, in effect, present two main contentions :

1. That the attacks made upon the credibility of appellant’s witnesses, particularly Bill Pappas, were not justified by the evidence and were highly inflammatory and prejudicial.

2. That the argument of counsel constituted an appeal to racial prejudice.

In the trial below, appellee took the position that although the bus had struck an open door of the automobile involved, the deceased, Paul Carson, had not been hit by appellee’s bus. An issue involving this theory advanced by appellee was submitted to the jury and answered in the negative, contrary to appellee’s contention. However, the trial court’s holding, evidenced by the submission of the issue, was that the evidence was sufficient to support an affirmative as well as a negative finding thereon, and we agree with that holding. A fact issue was involved, and certainly counsel was entitled to argue his theory to the jury. It further appeared, according to appellee’s witnesses, that the behavior of Pappas immediately after the collision was somewhat unusual to say the least. Appellant suggests that Pappas was suffering from a brain concussion, a permissible theory under appellant’s evidence. Counsel for appellee, in arguing his theory of the case that deceased had not been injured by appellee’s bus, commented upon the conduct of Pappas immediately after the collision, and, in order to explain the injuries sustained by the deceased, suggested that some act of Pappas may have been responsible therefor. This was not reversible error. In presenting a legitimate theory of a case, “the fact that remarks of counsel are harsh [will] not authorize or justify a reversal of the -case. The court may not restrict counsel in argument to any certain view of the facts, or the deductions to be drawn therefrom.” Jackson v. Jackson, Tex.Civ.App., 35 S.W.2d 830, 835. And, further, counsel “ought not to be trammeled in his comments upon the evi- ■ dence and facts appearing in the case, or upon the character and conduct of the witnesses produced against his client.” Corn v. Crosby County Cattle Co., Tex.Com.App., 25 S.W.2d 290, 293.

We next consider the second contention; namely, that the argument was calculated to arouse racial prejudice. It is, of course, well settled that an argument appealing to race, religious, or sectional prejudice is highly improper and the Texas appellate courts have not hesitated to reverse cases in which such arguments were employed. Moss v. Sanger, 75 Tex. 321, 12 S.W. 619; San Antonio Traction Co. v. Lambkin, Tex.Civ.App., 99 S.W. 574; Trachtenberg v. Castillo, Tex.Civ.App., 257 S.W. 657; Hewitt v. Buchanan, Tex.Civ. App., 4 S.W.2d 169; Morgan v. Maunders, 37 S.W.2d 791; Basanez v. Union Bus Lines, supra.

It appears from the record that the deceased was born in Greece; that the appellant administrator was also born in Greece, though both were naturalized American citizens, residing in Bexar County; that the father of the deceased, Christ Karanzulis, was living in Greece; further, that Bill Pappas, appellant’s principal witness, was born in Greece and was not an American citizen. Several witnesses were placed upon the stand by appellant to testify to his deceased brother’s reputation, and these witnesses were of Greek racial or national origin. It further appeared that there were a number of Greeks living in Bexar County; that the majority of them, including the deceased, the appellant and the witnesses here involved, were members of the Greek Orthodox Church and members of a Greek fraternal organization.

Counsel for appellee consumed approximately an hour and thirty minutes in making his argument to the jury. (The argument is set out in thirty-one closely typewritten pages in the transcript.)

After having spoken for approximately twenty-four minutes, counsel stated that there was “something fishy about this Greek lawsuit; there is just something wrong with it.”

About twenty-four minutes later, counsel, in commenting upon the credibility of ap-pellee’s witnesses, commented upon the fact that such witnesses and the deceased were apparently all members of the Greek Orthodox Church, and “all members of the (Greek) fraternity in San Antonio.”

About thirty-nine minutes after the above-mentioned occurrence, and toward the end of the argument, counsel argued that appellee’s witnesses had told “the absolute truth”; that the evidence of appellant’s witnesses was a “cock and bull story"; a “fabrication to try and milk some money from a fellow citizen here in Bexar County.” Counsel further inquired, “where are these United States of America coming to, Gentlemen of the Jury, if men are permitted to come into the court room with that type of evidence here and attempt to recover damages in a lawsuit?”

We have concluded that the record does not support appellant’s contention that this case must be reversed upon the ground that the argument of counsel was an appeal to racial prejudice. It may be conceded that certain practical difficulties are presented in jury trials of cases involving the foreign born, on one hand, and the native born, on the other, so much so that in certain cases juries de medietate linguae were allowed by the early English statutes. Under our system it is neither permissible nor practicable to make use of such juries, and the burden of preventing a prejudice from influencing a verdict necessarily rests primarily with the jury, and it is presumed that a jury will heed the admonitions of the trial judge in this regard. Davis v. Hill, Tex.Com.App., 298 S.W. 526. We wish here to point out that the prejudice, if any, resulting in injury to appellant arising out of the fact that he and the beneficiary for whom he sued were of Greek nativity, was not injected into the ■case by counsel’s argument, but existed by reason of the source of the evidence upon which appellant necessarily had to rely in •order to establish his pleaded cause of action. Fidelity Union Casualty Company v. Koonce, Tex.Civ.App., 51 S.W.2d 777. If the remark concerning the “Greek lawsuit” be considered improper, the prejudice resulting from the remark, alone, could have •clearly been removed by an admonition of the trial court.

As it is permissible for counsel to comment upon the possible bias of witnesses, we do not believe a case for reversal is presented by counsel’s comment upon the facts brought out in evidence, and properly in the record, that appellant, the deceased and the witnesses for appellant belonged to the same religious and fratér-nal groups.

The reference to taking money from a “fellow citizen in Bexar County,” construed in its proper context, does not seem to attempt a distinction between persons of foreign birth and citizens of Bexar County. It rather appears that counsel was denouncing appellant and his witnesses for attempting to take money from their fellow citizen of Bexar County, the appellee.

We realize, of course, that the impression of an argument received at the time of its delivery in the forum of the trial court may differ from that received by reading the cold record, and, for that reason, we must necessarily attach importance to the trial judge’s action in overruling the motion for new trial. On the whole, upon the record presented here, we can not say that the somewhat extravagant and rather disconnected statements of counsel in his argument constituted an appeal to racial pre j udice.

We are further of the opinion that any prejudicial effect resulting from any part of counsel’s argument could have been clearly removed by an admonition or instruction of the trial court. It is therefore our duty to affirm the judgment appealed from. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054. It is accordingly so ordered.

Affirmed.


source: Caselaw Access Project

author: STOKES, Justice.

license: Public Domain

text:
    TRADERS & GENERAL INS. CO. v. WOOD et al.
    No. 5265.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 24, 1941.
    Rehearing Denied March 17, 1941.

      Lightfoot, Robertson & Gano, of Fort Worth, for appellant.
    L. D. Ratliff, Jr., and O. B. Ratliff, both of Spur, for appellees.
   STOKES, Justice.

The controversy involved in this suit originated in a joint claim for compensation under the Workmen’s Compensation Act, Art. 8306, et seq., R.C.S., 1925, filed with the Industrial Accident Board by ap-pellee, Minnie L. Wood, against R. W. McKinney and L. L. Massey for compensation for the death of her son, Charles Adolphus Wood. The American Agency Lloyds was the' compensation insurance carrier for R. W. McKinney, and appellant, Traders & General Insurance Company, carried the compensation insurance for L. L. Massey. The Industrial Accident Board exonerated appellant from any liability but awarded compensation to ap-pellee of $9.60 per week for 360 weeks against American Agency Lloyds. The American Agency Lloyds duly filed its notice of dissatisfaction with the award, and on March 4, 1939, filed Cause No. 791 in the district court of Kent County in which it prayed that the award be set aside and held for naught. On March 8, 1939, ap-pellee filed Cause No. 792 in the district court of Kent County against American Agency Lloyds and Traders & General Insurance Company, as joint defendants, in which shé alleged that her deceased son, Charles Adolphus Wood, was the employee of either R. W. McKinney or L. L. Massey, and that one or the other of the insurance carriers was liable to her for compensation as provided by the Workmen’s Compensation Act, and prayed for judgment against the defendant shown by the testimony upon the trial to be liable therefor.

Appellant filed a plea in abatement involving questions not necessary here to mention and after the dilatory questions were disposed of the court ordered the two cases consolidated; directed that the parties replead, and upon the new pleadings the consolidated case was tried before the court and a jury on March 11, 1940. The case was submitted to the jury upon special issues and in answer thereto the jury found that on September 21, 1938, Charles Adolphus Wood sustained personal injuries in a truck collision in Kent County which resulted in his death; that at the time of receiving his injuries he was an employee of L. L. Massey and that the injuries were received in the course of his employment. They further found that Charles Adolphus Wood was not an employee of R. W. McKinney, and that he did not receive the injuries in the due course of any employment with R. W. McKinney. They found that appellee was the sole and exclusive beneficiary of Charles Adolphus Wood and that manifest hardship and injustice would result if the compensation should not be paid in a lump sum.

Based upon the verdict of the jury the court rendered judgment in favor of ap-pellee against appellant, Traders & General Insurance Company, for the sum of $2,333.76, to be paid in a lump sum, and that appellee recover nothing against American Agency Lloyds.

Appellant duly presented its motion for a new trial, which was overruled by the court, and it duly excepted, gave notice of appeal, and has perfected an appeal to this court. A large number of assignments of error and propositions of law are presented and urged by appellant, but in our opinion the case is controlled by one issue which involves the question of whether or not Charles Adolphus Wood was the employee of appellant’s insured, L. L. Massey, at the time he received the injuries which resulted in his death.

No objection was made by appellee to the judgment entered by the court denying her a recovery against American Agency Lloyds and no appeal has been prosecuted therefrom by her. We are not concerned, therefore, with the question of whether or not appellee was entitled to a judgment against American Agency Lloyds.

As we have stated, the jury found that, at the time he received the injuries which caused his death, Charles Adolphus Wood was an employee of L. L. Massey and that his injuries were sustained while he was in the course of his employment with Massey. If there is any evidence shown by the record to support the jury’s findings in these respects, the judgment must be affirmed; otherwise, it cannot be permitted to stand. It becomes necessary, therefore, to review and analyze the testimony.

Art. 8309, Sec. 1, of the statute defines an employee as meaning every person in the service of another under any contract of hire, expressed or implied, oral or written. It is held by our courts that in order to be an employee the relation of master and servant must exist in the sense that one .party has the right of ultimate control over the other. Security Union Ins. Co. v. McLeod, Tex.Com.App., 36 S.W.2d 449. In order to recover against appellant, it was necessary, therefore, for ap-pellee to show that such relationship existed between her deceased son and L. L. Massey whose compensation insurance was carried by appellant. The record shows that R. W. McKinney had procured from the Texas Highway Department a contract for the construction of a road between Spur and Jayton lying principally in Kent County. It is not shown that Massey was a party to this contract nor that he had anything whatever to do with the construction of the road in so far as that contract was concerned. Massey had for a number of years been engaged in the business of furnishing trucks to contractors for road construction and had formerly owned a number of them. In order properly to prosecute the • construction work it was necessary that McKinney have a large number of trucks to convey the base material, which was composed of caliche, from the caliche pit to the places on the road where it was needed. In order to procure these trucks McKinney entered into a contract with Massey which provided that Massey, as lessor, would rent or lease to McKinney trucks and trailers for the purpose of hauling the base material and water as covered by the contract between McKinney and the State Highway Department. The compensation to be paid to Massey for the lease of the trucks was $1 per hour for each hour a truck or trailer was so used. The lease contract was in writing and it provided that the lessee, McKinney, should pay the drivers of the trucks 400 per hour for each hour a truck was so used. It was further provided in the contract that if Massey should be unable to furnish sufficient trucks and trailers and water tanks owned by him to supply the requirements of the agreement, he should hire the necessary trucks, trailers and water tanks and should be responsible for maintaining, repairing or operating them, except for the wages of the drivers, the same as if the trucks, trailers and water tanks were owned by him. The contract further provided that the lessee should be the employer of the drivers of the trucks leased but that Massey should, as agent of the lessee, attend to the hiring of such drivers as may be necessary for McKinney to comply with his contract with the Highway Department. It was further provided that Massey should act as the agent of McKinney in the supervision and use of the trucks, but that McKinney should have complete control of the time, place and method of hauling covered by the lease agreement.

The record shows that Massey did not own any trucks when this lease agreement was made and it was necessary, therefore, for him to lease or hire the necessary trucks from other parties. He arranged with the owners of some of these trucks to drive one of the trucks owned by them and procure drivers for others that were satisfactory to Massey. To quote or even analyze in detail the testimony of the witnesses who testified concerning the manner and method used in the operation of the trucks would extend this opinion to unreasonable lengths. Suffice it to say that a number of the witnesses testified that Massey gave them instructions concerning the manner in which the trucks should be operated and others made general statements to the effect that Massey was on the construction job a number of times and instructed them about the matter of operating the trucks. Some of the truck drivers who so testified did not attempt to detail the instructions given to them by Massey, but Massey, himself, and some of the other witnesses testified that Massey instructed all of the drivers, after they had begun work on the construction job, to be careful with the trucks and not to drive fast. None of the witnesses testified, however, that Massey gave any instructions other than these precautionary warnings concerning the matter of speed and the care with which the trucks should be handled and' operated. The record shows that C. A. Dittmore was a son-in-law of Massey and had been connected with Massey in various contracts concerning road construction for many years; that Dittmore had formerly owned some forty or more trucks which he leased to road construction contractors for the same purpose for which Massey leased the trucks to McKinney in this instance; that Dittmore was familiar with road construction, and the manner and method by which trucks hauling road material should be operated, and it is undisputed that Dittmore was employed by McKinney as truck foreman on the work here involved; that McKinney paid his salary and that he did not draw any salary or wages from Massey for his work as such. Dittmore testified also that one Joe Shawver was superintendent on the construction job for McKinney and that Shawver was Dittmore’s immediate superior, but that neither Shawver nor McKinney had anything to do with the trucks except through him. There is no testimony in the record by any witness to the effect that Massey gave any instructions concerning the trucks or had anything whatever to do with them after he leased the trucks, hired the drivers, and placed them on the construction job for McKinney except those of a precautionary nature concerning the speed and care in their operation. Massey testified that he went by the construction job about once a month to collect the lease money due him bj McKinney for the trucks and some of the other witnesses testified that Massey was on the job or “came by the job” about every two weeks. In the matter of directing the manner in which the trucks should be loaded with the caliche at the pit and conveying it to the places in the road where it was needed, the manner in which it should be unloaded and the places on the road where it should be unloaded were all directed by Dittmore and other employees of R. W. McKinney. It is not shown, or even intimated by the testimony that Massey was a partner or otherwise connected with McKinney or that he was in any sense responsible for any of the obligations assumed under the contract of construction which McKinney made with the Highway Department. We find no conflict in the testimony concerning the matter of who exercised the power of control in directing the ends sought to be accomplished by the trucks and drivers and the means and details of their accomplishment. The employees of McKinney directed what should be done and how it should be done. It is not a case of Massey’s being an independent contractor, obligated to furnish to McKinney on the road construction job certain materials and receiving pay therefor in proportion to the amount so furnished, but he is shown to be only the lessor to McKinney of the trucks which McKinney needed in order to haul the base material to the places on the road where it was needed. The mere fact that Massey cautioned the drivers of the trucks to be careful with them and not to drive at a high rate of speed is of no significance in respect to the matter of exercising power or control over the truck drivers or directing the means by which it was sought to accomplish the purposes contemplated in the road construction contract which McKinney had made with the Highway Department. ■ It is quite reasonable to assume that Massey, having hired the trucks from other parties, felt responsible for their safety and, for that reason, he cautioned the drivers to be careful with them and not to drive at a high rate of speed. That would not indicate, however, that he was assuming any responsibility in so far as moving the road material was concerned, nor that he had any right or authority to do so.

We do not find anything in all of the testimony that would warrant the conclusion that, in loading the caliche on the trucks, removing it from the caliche pits or beds to the places on the highway where it was needed, and in unloading it at such places, was directed, supervised or in any manner controlled by Massey or anyone authorized by him to do so. No witness testified that Massey had any authority to assume such power and, as we interpret the testimony, no conflict is revealed between the witnesses on this point. As we have already said, the witnesses who ap-pellee contends gave testimony to the effect that Massey did exercise such power and control only made the general statement that he instructed them and gave them directions. The only witnesses who attempted to explain such instructions testified that the instructions given by Massey pertained to the speed and manner in which the trucks should be handled.

Many definitions of the relationship of master and servant as applied to the compensation .statutes have been given by our courts and they all converge into the accurate definition approved by the Commission of Appeals in Shannon v. Western Indemnity Co., 257 S.W. 522, 523. In that case Judge German quoted Street on Personal Injuries as follows: “No better test can be applied than to say that the relation of master and servant exists where the master retains or exercises the power of control in directing, not merely the end sought to be accomplished by the employment of another, but as well the means and details of its accomplishment; ‘not only what shall be done, but how it shall be done.’ ”

This general conception of the meaning of our statute is acquiesced in by both parties to this appeal and we are of the opinion that the record in this case wholly fails to reveal any basis in the testimony for the finding of the jury to the effect that Charles Adolphus Wood was the employee of L. L. Massey when he received the injuries which resulted in his death. Southern Surety Co. v. Shoemake, Tex.Com.App., 24 S.W.2d 7; Security Union Ins. Co. v. McLeod, Tex.Com.App., 36 S.W.2d 449; Manning v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 67 S.W.2d 389; Tanneberger v. Massey, Tex.Civ.App., 124 S.W.2d 949; Hartford Accident & Indemnity Co. v. Addison, 5 Cir., 93 F.2d 627; Ellis v. Associated Industries Ins. Corp., 5 Cir., 24 F.2d 809; Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480.

It was shown by the testimony that Charles Adolphus Wood, together with some of the other truck drivers employed on the Kent County job, were not only employed by Massey for the work in Kent County, but that immediately prior to engaging in the work on the Kent County job, under the directions of Massey, they operated the trucks for him at other places, one at Tehuacana and another at Ralls, both of which were far removed from the Kent County job and that they were instructed by Massey to leave those places and go to the Kent County construction job and work there. It was further shown in this connection that C. A. Dittmore had been in charge of other work as the agent or superintendent of' Massey and appellee contends with much force that, since it is not shown by the testimony that Charles Adolphus Wood knew anything about the lease contract between McKinney and Massey, or any arrangement between them to the effect that in employing the drivers, Massey was acting as agent of McKinney, Massey could not escape liability as a master in so far as Wood was concerned nor transfer the same to McKinney by entering into a contract with McKinney containing terms and provisions that, in employing the truck drivers, Massey was acting only as the agent of McKinney. As an abstract proposition of law, it must be conceded that appellee is correct in this assertion. Traders & General Ins. Co. v. Jaques, Tex.Civ.App., 131 S.W.2d 133. The record shows, however, that Wood worked on the construction job as truck driver for some three months; that all of the truck drivers were paid .twice each week by checks of R. W. McKinney. The checks were signed by McKinney and delivered to the truck drivers by McKinney’s employee. As we have already said, it was also shown that Massey was not present except about once every two weeks when he went by to collect the lease money owing to him by McKinney for the use of his trucks. On these occasions he gave no instructions concerning the work, as far as the testimony shows, other than to caution some of the drivers about the speed and care they should observe in handling the trucks. The man in charge of the caliche pit and rock crusher located there was an employee of McKinney. Dittmore, while he had theretofore been connected with Massey, was, on this job, the truck foreman for McKinney and all of the other employees who had anything to do with directing the work of loading, removing and placing the caliche on the road and delivering McKinney’s checks to the truck drivers for their wages were employees of McKinney and, as far as the record shows, none of them except Dittmore had ever worked for Massey. It was not shown that, as a matter of fact, Wood did not know he was an employee of, and working for, McKinney nor that he did not, as a matter of fact, agree to or acquiesce therein. This phase of the matter is revealed only by the circumstances testified to by the witnesses. While it is true that the circumstance of McKinney’s paying Wood’s salary and Wood accepting his salary in the form of checks from, and signed by, McKinney is not conclusive on the question of Wood’s knowledge as to the identity of his employer, yet it is a strong circumstance to be considered along with others of like import and we think it is particularly significant in' this case because of the frequency with which Wood’s wages were thus paid. The further circumstance that all of .the work engaged in by Wood during the entire period was directed and controlled by employees of McKinney, and the fact that Massey exercised no control whatever over the work in which the truck drivers were engaged, must be taken into consideration. In the absence of evidence to the contrary, all of these circumstances taken together impel the conclusion that Wood knew he was not working for Massey at the time he was injured and establish at least an implied consent on his part which made him, as a matter of law, the employee of R. W. McKinney. Tenneberger v. Massey, supra, 124 S.W.2d 949.

Dittmore testified, without dispute, that he had the power to discharge the drivers of the trucks at any time their services were not satisfactory. It was shown by the testimony that all of the truck drivers were listed on the payroll of McKinney and that each time their wages were paid to them they signed McKinney’s payroll. More-, over, it was shown, without dispute, that, during the period of time involved, Massey had only two men on his payroll and they were employees in his office at Austin; that none of the truck drivers on the Kent County job were reported to appellant by Massey as being his employees covered by appellant’s insurance policy and no premiums were paid by him to appellant for compensation insurance on them. It was not shown, nor even suggested, that Massey fraudulently or purposely concealed from Wood the fact that he was acting as the agent of McKinney in employing the truck drivers and we find no basis in the testimony for the findings of the jury to the effect that, at the time of his injury and death, Charles Adolphus Wood was actually the employee of L. L. Massey or that he was acting in the course of employment with Massey at the time of his injury and death. It is our opinion, furthermore, that the circumstances do not warrant the conclusion that Wood did not know he was working for McKinney nor that he did not agree to, or acquiesce in, such employment.

At the close of the testimony appellant presented and urged a motion for a peremptory instruction directing the jury to return a verdict in its favor which was refused by the court. In our opinion the motion was well taken and in overruling it the court below committed error for which the judgment must be reversed. The record indicates that the case was fully developed and it is not conceived that any benefit could be derived from another trial. The judgment of the court below will, therefore, be reversed and judgment here rendered that appellee take nothing by her suit against appellant and that appellant go hence without day and recover its costs.

On Motion for Rehearing.

In a motion for rehearing appellee contends that we erred in holding that L. L. Massey could, under the law, transfer his employees, including Charles Adolphus Wood, to R. L. McKinney without the knowledge, consent or acquiescence of such employees. She bases the contention upon the assertion that the truck drivers were employed by, and working for, Massey at Tehuacana and Ralls under a contract of hire with him and that, while so employed, he transferred them to the road construction work of McKinney in Kent County. She asserts that, if they were working on the Kent County job for McKinney it was without their knowledge, consent or acquiescence, without which Massey had no legal right to transfer their employment. In support of her contention, she cites us to the case of Chicago, R. I. & G. R. Co. v. Trout, Tex.Civ.App., 224 S.W. 472.

Such is not the effect of our holding in the original opinion. The facts in the instant case are by no means the same as those revealed by the opinion 'in the Trout case. There, the Chicago, Rock Island & Gulf Railway Company contended that the injured employee was, at the time of his injury, employed by the Tucumcari & Memphis Railway Company and that the latter company was his master. The facts showed that the contract of employment was between the Chicago, Rock Island & Gulf Railway Company and the plaintiff, whereas in the instant case it is undisputed that Massey, acting as agent for McKinney under a contract to that effect, employed Charles Adolphus Wood to work for McKinney on the Kent County road job. Appellee insists that Wood did not know Massey was acting as agent for McKinney in making the contract of employment but, as stated in our original opinion, there is no testimony in the record to that effeci. It is only inferred by appellee from the fact that some of the other truck drivers testified that they did not know they were working for McKinney but thought they were working for Massey.

Moreover, the testimony in the instant case does not warrant the inference that the employees were transferred from the employment of Massey to that of McKinney as were the employees involved in the Trout case. The original contract of employment was made by Massey, acting as agent for McKinney. According to that contract the employees were to engage in ■the construction work on the road in Kent County which McKinney had contracted with the State Highway Department to construct. After the contract of employment was made, it developed that the Kent County job was not ready for them and would not be for some time. Massey then put them to work on the Tehuacana and Ralls jobs until McKinney was ready to begin work on the road construction job. When McKinney was prepared to begin the work in Kent County, Massey directed them to go to-that county and begin the work he had originally employed them to perform for McKinney. Thus it will be seen that instead of transferring their employment to McKinney after having them engaged on the Tehuacana and Ralls jobs, the truck drivers were sent to Kent County to perform the services which they had originally been employed to perform. The work which Massey gave them at Tehua-cana and Ralls, according to the testimony, only occupied the short space of time during which McKinney was making his preparations to begin work in Kent County. The circumstances under which the employees worked at the different locations are entirely different from those under which the employees worked for the railway company in the Trout case and do not warrant the conclusion that they were transferred without their knowledge or consent in the manner in which the opinion in the cited case reveals the employees of the railway company were transferred from the work in Texas to that being prosecuted by the Tucumcari & Memphis Railway Company in the State of New Mexico.

The motion will be overruled.


author: SMITH, Chief Justice.

text:
    SANCHEZ v. DERTEANO et al.
    No. 10912.
    Court of Civil Appeals of Texas. San Antonio.
    March 5, 1941.
    Kazen & Kazen, of Laredo, for appellant.
    Mann & Mann and Tom C. Mann, all of Laredo, for appellees.
   SMITH, Chief Justice.

Maria Bertani Derteano and Herlinda Bertani brought this action in trespass to try title against Lola Sanchez to recover the east one-half of Block 770, comprising lots 1 through 6, in the Western Division of the City of Laredo. A jury trial resulted in verdict and judgment for the named plaintiffs, and Lola Sanchez has appealed.

Appellees claim under trustee’s deed, after foreclosure of a deed of trust lien to secure the debt of Wilmer Threadgill. Appellant claims under the ten-year statute of limitation. Vernon’s Ann.Civ.St. art. 5510.

On April 7, T928, appellant purchased lot No. 3, in Block 770, from the said Wilmer Threadgill, paying $700 in cash therefor and receiving ThreadgilFs general warranty deed thereto. Appellant took possession of lot 3 under that deed and claims in this suit that she also at the same time took and thereafter maintained adverse possession of the remaining lots, 1, 2, 4, 5 and 6, comprising, with lot 3, the entire east one-half of block 770.

But, at that time, the east one-half of block 770 (embracing said lot 3) was encumbered by duly recorded deed of trust lien to secure, in part, Threadgill’s note to A. Bertani, appellees’ ancestor and predecessor in title, for $5,000. This lien- covered numerous other properties in addition to block 770. The note was executed on April 29, 1927, to mature April 29, 1929. From time to time thereafter the loan was duly extended, and the note and deed of trust renewed, until finally the lien was foreclosed and block 770 (including lot 3) was sold by trustee under power conferred in the deed of trust, and was bought in by Bertani, appellees’ predecessor. No question is made of the validity' of said debt or .lien, or the extensions and renewals thereof, or of the regularity of the ensuing sale and conveyance to Bertani by the trustee, or of appellees’ succession to Bertani’s title, by inheritance.

So, it was upon this title that appellees brought this suit to 'recover the east one-half of block 770 (including lot 3) from appellant, who was in possession of lot 3 as grantee of mortgagor Threadgill, and in alleged adverse possession of the entire east one-half of the block.

Wilmer Threadgill is the obvious common source. Appellees claim all the six lots involved under the trustee’s deed made to them by virtue of the deed of trust executed by Threadgill in April, 1927, and renewals thereof. Appellant claims lot 3 by virtue of possession into which she entered under the later conveyance from Threadgill, and she claims lots 1, 2, 4, 5 and 6, comprising the remainder of the east one-half of block 770, by virtue of adverse possession begun at the time of her entry on lot 3, under Threadgill’s deed. In her supplemental brief appellant declares she does not claim under that deed, but asserts title solely by limitation through adverse possession. But, as will be hereafter seen, she cannot by disclaimer of record title escape the legal effect of the conceded fact that her entry upon lot 3 was subject to the existing recorded lien and the rights of the mortgagee thereunder, of all of which she had at least constructive notice.

The case was submitted to a jury upon a single special issue inquiring in the usual form if appellant had held possession of lots 1, 2, 4, 5 and 6 (omitting reference to lot 3) for ten years prior to this suit. The jury answered the question in the negative, and as that finding is not assailed by briefed assignment of error here, the issue is conclusively foreclosed against appellant, and settles the appeal as far as it concerns lots 1, 2, 4, 5 and 6.

The question of adverse possession of lot 3 was not submitted to the jury, presumably on the theory that since appellant entered into and held possession of that lot subject to the known prior, existing and continuing lien thereon, her possession could not be deemed adverse to the .lienholder for the purpose of establishing title by limitation; whereas, appellant’s claim upon the remaining five lots was not burdened with that handicap.

When appellant purchased lot 3 from Threadgill, with notice (even if only constructive) of the mortgagee’s existing lien thereon, she took no more than the legal title, with the mortgagor’s right of possession. When she assumed possession under that right so acquired, she acknowledged the mortgagee’s superior title, with the right of foreclosure of the existing lien. Her possession was not adverse to the mortgagee, any more than her grantor’s was, but was in acknowledged subservience to the mortgagee’s superior title. This being so, limitation under the ten-year statute could not begin to run in favor of appellant against the mortgagee so long as the latter’s acknowledged superior title was not lost by extinguishment of the mortgage lien. These rules are elemental.

Appellant contends, in this connection, that limitation began to run when the mortgagee’s right to foreclose the lien first matured; that is, at the maturity of the original obligation secured by the lien; that the mortgagee’s cause of action to foreclose the mortgage accrued at that date, and appellant’s possession, for the purpose of limitation, became adverse to the mortgagee upon the accrual of that cause of action; that the extension of the debt and renewal of the lien, being made by strangers to her, could not be given effect to impair the character of her adverse possession. We overrule these contentions. For obvious reasons, the mortgagor and mortgagee were not strangers to appellant, and when appellant purchased with knowledge of the existing lien she purchased with and in acknowledgment of the right of her grantor, the mortgagor, to timely renew the debt and procure extensions of the lien. Wilkinson v. First Nat. Bank, 118 Tex. 202, 13 S.W.2d 346; Stone v. Watt, Tex.Civ.App., 81 S.W.2d 552, writ refused; Texas Co. v. Tucker, Tex.Civ.App., 129 S.W.2d 762, writ refused. It is obvious, as 'a consequence, that so long as the mortgage lien was timely extended the mortgagee’s superior title and right to foreclose continued, and - appellant’s possession remained subservient to the mortgagee’s right.

We hold that under the case made appellant did not show title by limitation to lot 3, and the trial judge was not required to submit that issue to the jury. As to the remaining five lots the jury finding against appellant on the issue of limitation is not questioned by appropriate assignment of error, and nothing can be done about it here. Moreover, the evidence, which we have examined, justified the finding. We overrule appellant’s first and third propositions.

In her second proposition appellant complains of the refusal of the trial judge to submit the issue of improvements made in good faith by appellant on the premises involved. We overrule the proposition. There was no evidence upon which the jury could have found any damages for appellant in this matter.

In her fourth and last proposition appellant complains of the argument of adverse counsel. This proposition is not supported by any statement from the record of the offending argument, or bill of exception purporting to show the transaction. The proposition presents nothing for review and is overruled.

The judgment is affirmed.


author: PRICE, Chief Justice.

text:
    GILMER v. FERGUSON.
    No. 4082.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 30, 1941.
    Rehearing Denied Feb. 27, 1941.

      Morriss & Morriss, of San Antonio, for appellants.
    J. M. Goggin, Wyndham K. White, and Kemp, Nagle & Smith, all of El Paso, and Frank O. Ray, of Alpine, for appellee.
   PRICE, Chief Justice.

This is an appeal from an interlocutory order of the District Judge of Brewster County appointing a receiver for seven rent cottages situated in the City of Alpine in a suit wherein Nellie C. Ferguson, individually and as independent executrix of the estate of her husband, was plaintiff, and J. W. Gilmer and others were defendants.

In this opinion Mrs. Ferguson will be hereinafter designated as plaintiff, and J. W. Gilmer as defendant.

Plaintiff sought to set aside a certain trustee’s deed conveying the property in question to defendant and to recover such property. A receiver was sought as an ancillary remedy to the final relief. The trustee’s deed in question was alleged to have been executed and delivered by Milton Gilmer, as substitute trustee, to J. W. Gilmer in the foreclosure of the deed of trust securing a note of plaintiff to the Great Southern Life Insurance Company, upon which, at the time of the foreclosure sale, July 2, 1940, there was a balance of $1,797.46 due. A fraudulent sale and purchase were averred. The market value of the property was alleged to be $10,000, and the amount realized on the sale $1,910; that the purchase of the property for an inadequate price was brought about by a fraudulent and collusive agreement between the trustee, Milton Gilmer, who was the son of defendant, and the defendant. It is further alleged that defendant was insolvent and that unless a receiver was appointed to take over said property and manage the same and to collect the rents, plaintiff was in danger of losing the rents and the property in danger of being materially injured, portions thereof removed, and the property as a whole reduced in value by defendant’s use and management. The prayer of the petition was for a receiver to collect and preserve the rents, for the cancellation of the trustee’s deed, and the recovery of .the property by the plaintiff, and judgment for all rents collected by defendant from the time of his taking possession of said property to the time that same be restored to the plaintiff, and that plaintiff recover of the receiver'the amount of rents collected by such receiver.

Defendant’s answer was somewhat lengthy. Suffice it to say that it specially traversed all the material allegations in plaintiff’s petition, specially pleaded facts showing the regularity of the sale, and that same was in all respects fair and regular; insolvency was likewise denied, and it was specially pleaded that if plaintiff were entitled to recover, defendant was entitled to be reimbursed in the sum of $1,910, and averred that he owned property in his own name and right subject to execution of the reasonable value of fifty thousand dollars in excess of his debts.

In view of the fact that this is an appeal from an interlocutory order and the case stands for final trial on the merits, we shall, as far as possible, refrain from a discussion involving the merits on final trial.

The court, on motion of defendant, made findings of fact and conclusions of law. Same are comprehensive and complete and will conduce to a better understanding of the issues involved. Omitting the caption, they are as follows:

“Findings of Fact
“I find that on the 1st day of September, 1932, the plaintiff, Mrs. Nellie C. Ferguson, was the owner of the following described property situated in the City of Alpine, Brewster County, Texas, to-wit: Being a part of lots one (1), two (2), and three (3), Block One (1), Hancock Addition to the City of Alpine, in said county, and the west one-half (½) of Lots three (3), four (4), and five (5), Block Twenty (20), Original Townsite of Alpine, Texas, upon which are located seven residence cottages; that on said date she executed a deed of trust to W. S. Horne, as trustee for the use and benefit of the Great Southern Life Insurance Company, to secure a debt of $4,250.00.
“2. That on or about the 4th day of June, 1940, Milton Gilmer, of Alpine, Texas, was appointed substitute trustee.
“3. That on the 2nd day of July, 1940, the debt had been reduced to $1797.46.
“4. I -further find -that on July 2, 1940, the above described property was struck off at a trustee’s sale by Milton Gilmer, as substitute trustee, to his father, J. W. Gilmer, one of the defendants in this cause, for the sum of $1910.00.
“5. I further find that on July 2, 1940, the property had a reasonable rental value of $135.00 per month, and was then and had been for some time prior thereto, regularly rented for the aggregate sum of $135.00 per month.
“6. I further find that on July 2, 1940, the property had a market value of, and was reasonably worth the sum of $10,000.
“7. I further find that after the property was advertised for sale and prior to the date of sale, July 2, 1940, the plaintiff, Mrs. Nellie C. Ferguson, had reached an understanding with a representative of the Great Southern Life Insurance Company to reduce the principal debt to $1700.-00 and to renew and extend the same; that she was anticipating and waiting for the return of the representative with the necessary renewal papers on the sale date, July 2, 1940; that she received notice of such sale but gave the matter no attention, because of the arrangement made for the extension and renewal of her debt.
“8. I further find that Milton Gilmer, the substitute trustee, was advised that the debt would be renewed and extended if reduced to $1700.00, and to renew the same upon such terms if approached by the plaintiff, Mrs. Nellie C. Ferguson; that the trustee, Milton Gilmer, did not know of the agreement had with the representative of the company by Mrs. Ferguson, nor did Mrs. Ferguson approach him on the matter of renewal prior to the date of the sale.
“9. I further find that Milton Gilmer, the trustee, had instructions from the company to cause some ■ one to bid for it at the sale a sum not to exceed $1900.00; that he, immediately preceding the sale, requested Boss Miller, the janitor in the Court House building, to attend the sale and to bid on the property, but not in excess of $1900.00. Fie did not advise Boss Miller for whom he was to bid. There were no bidders at the sale other than Miller and J. W. Gilmer.
“10. Milton Gilmer, the trustee, had done abstract work over a period of years for the plaintiff, Mrs. Ferguson, and saw her more than once personally after the posting of notice of sale and prior to the day of sale, but never at any time advised her of the sale nor the hour when the same would take place; J. W. Gilmer, the trustee’s father, had been advised by the trustee, on-request, of the date and hour of sale and the maximum authorized to be bid for the company.
“11. I further find that the rents on the property are likely to be permitted to deteriorate and depreciate, and that likewise the property is of such character as to permit of easy alteration and change and depreciation and deterioration, and that the same should be retained and preserved in its present condition and available and subject to the present character of use and occupancy. '
■ “Conclusions of Law
“1. I conclude as a matter of law that the difference between the reasonable market value of the property on the date of sale and the price paid by the purchaser, is such as to constitute the price bid and paid inadequate.
“2. I further conclude that the facts are sufficient to sustain a finding of collusion and fraud and are, therefore, coupled with the inadequate price paid, sufficient to void the sale and authorize its cancellation and a restoration of the title to the plaintiff.
“3. I conclude further that the appointment of a receiver is advisable, if not necessary-, and authorized to maintain the status quo of the property and to avoid the danger of alteration, depreciation and deterioration during'the pendency of the suit and until such time as the cause may be tried on its merits.”

Article 2293 of the Revised Statutes, 1925, is applicable to this controversy. One of the questions involved is as to which section of that article is applicable. Defendant’s position is that section four thereof is the one applicable, which provides that a receiver may be appointed by a court of competent jurisdiction in all other cases where receivers have heretofore been appointed by the usages of a court of equity. Plaintiff’s position is that section one of said article applies, the clause of said section one invoked being, “In an action by a vendor to vacate a fraudulent purchase of property; * * * whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.”

In our opinion this is an action by a vendor to vacate an alleged fraudulent purchase of property. ■ If this be correct, two conditions under that article must be shown by the pleading and the proof: First, the right of plaintiff to the property involved is probable; second, that the property is in danger of being lost, removed or materially injured.

We shall first consider the case in the light of the second requisite.

Finding of fact number eleven by the trial court is as to this issue. This finding is excepted to by the defendant on the ground that same is unsupported by the evidence. We think it is clear that defendant was collecting the rents of the property and excluding plaintiff therefrom; further, that unless lis pendens notice were filed, it was in the power of defendant to convey same to an innocent purchaser and thus cause the loss of the property to plaintiff in the event she should prevail.

There is lacking from the statement of facts any evidence of probative force showing any change made or contemplated by defendant in the property; likewise, that the land or the structures thereon were being in any way abused or damaged.

If what we have said be correct, there are only two facts that would justify the appointment of a receiver: First, the possibility that the defendant might convey the property to an innocent purchaser; second, that defendant’s depriving the plaintiff of the rents and appropriating same to his own benefit constitutes material injury to the property.

Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217, is a case coming under Section 1 of Article 2293. It was there held it must be shown that the property or fund is in danger of being lost, removed or materially injured. There is no additional condition or requirement, as, for example, proof of insolvency of the defendant or that the plaintiff or other applicant for the appointment of the receiver has no other adequate remedy. Despite this holding, we cannot believe that the mere fact that the defendant might convey the property to an innocent purchaser would justify the appointment of a receiver. The simple filing of a lis pendens notice would obviate entirely this injury. See Haywood v. Scarborough, 41 Tex.Civ.App. 443, 92 S.W. 815. In the case where the language above quoted was used, no such question was before the court. We believe that by “remedy” in that case was meant such remedy as sequestration or less drastic equitable remedy, such as injunction.

If this case comes within the provision of Section 1 of the article as to receivers, it must be from the fact that defendant is collecting the rents and appropriating same to his own use. We believe that we are correct in stating that in the briefs of counsel there is no precedent cited where the mere collection and appropriation of rents by the defendant in a suit for the recovery of land was held to justify a receiver under Section 1 of Article 2293. In the case of Anderson & Kerr Drilling Company v. Bruhlmeyer, supra, the appropriation of a portion of the oil to which plaintiffs showed themselves probably entitled was held sufficient. However, the oil, until severed, was a part of the land itself. Its withdrawal presumptively injured the land, in that it decreased its value. It was in a sense the taking of part of the land itself.

In a consideration of this question care must be taken to distinguish between a receivership justified under Section 1 and a receivership justified under Section 4. This distinction, as we understand it, is that if Section 4 of the statute in question is applicable, then, the pleading and proof must negative solvency and the existence of other adequate remedy. A court of equity may, of course, in a proper case, appoint a receiver where the suit is for the title to land, and regardless of whether it is by a vendor to vacate a fraudulent purchase, or that it be between partners or others jointly owning or interested in any property or fund-. The function of the receiver may be to preserve the rents; but, to such a case, Section 4 of the article ordinarily applies. To justify a receivership under Section 1 it is necessary to show the property involved is in danger of being lost, removed or materially injured; if it be not shown, Section 1 does not apply. Where the suit is for the title to land, to justify the appointment 'of a receiver, the probable irreparable loss of the rents must appear, unless, of course, Section 1 applies.

In this case plaintiff alleges the insolvency of the defendant. Under oath this allegation is denied, and it is specially averred that defendant is possessed of property of the value of $50,000 in excess of all debts. There was no evidence as to the financial condition of the defendant. In such a case it would seem that a suit for the reasonable rental value of the property would afford ample remedy. Further, here it is admitted before plaintiff is entitled to the relief finally sought, she must account to defendant for $1,910.

Wé hold that in a suit to recover the title to land the mere appropriation of the rents therefrom, past or prospective, is not sufficient to constitute material injury to the land within the meaning of Section 1 of Article 2293. It follows, in our opinion, the trial court erred in appointing the receiver. Our disposition of this assignment renders it unnecessary to consider the assignment as to the evidence being insufficient to show that plaintiff’s interest in the property is probable, within the meaning of Section 1 of the article in question. We refrain from a discussion thereof for the reason that this case is to be later tried on the merits.

It is ordered that the judgment of the trial court be reversed and rendered.

SUTTON, J., did not sit.


author: SUTTON, Justice.

text:
    FELTON et al. v. DAVENPORT et al.
    No. 3996.
    Court of Civil Appeals of Texas, El Paso.
    Jan. 30, 1941.
    Rehearing Denied Peb. 20, 1941.

      Minor W. Pitts, Jr., of Corpus Christi, H. C. Vinson, of San Angelo, Ruth Felton and Chas. E. Rattan, both of Dallas, and T. H. Miller, of George West, for plaintiffs in error.
    W. S. Ethridge, of Bandera, and Tynan, Davis & Scherlen, of San Antonio, for defendants in error.
   SUTTON, Justice.

This cause is here for review on writ of error from the District Court of Live Oak County. The suit was brought and tried on the third amended original petition of James M. Davenport and George Davenport, individually and as executors and sole devisees of W. L. Davenport, to recover on certain vendor’s lien notes against D. W. Snyder, and to foreclose the vendor’s lien on certain lands described in their petition, situated in Live Oak County, against D. W. Snyder, A. J. Felton, the Great Southern Life Insurance Company, W. F. Felton, individually and as administrator of the estate of A. J. Felton, deceased, and Clifford Mays, administrator of the estate of A. J. Felton, deceased, L. E. Mounger, J. A. Mounger, J. B. Sneed, and Charles E. Rattan.

The parties will here be referred to as in the trial court.

The trial was before a jury, and, on the findings of the jury and determination of the law by the court, judgment was rendered for the plaintiffs on the notes against Snyder, ■ and a foreclosure decreed as against all of the other defendants named, except the Great Southern Life Insurance Company, who disclaimed. From that judgment the Feltons, Moungers and Charles E. Rattan, as plaintiffs in error, have prosecuted this appeal.

The pleadings are very lengthy and somewhat involved, but we will make a sufficient reference to them in the opinion for an understanding of them as applicable to the issues raised.

By deed duly recorded W. L. Davenport, J. M. ^Davenport, G. H. Davenport and Iona Davenport, conveyed to D. W. Snyder some three thousand acres of land in Live Oak County for a consideration of $28,200; $2,500 cash, one note for $5,000, one for $10,000, and one for $10,700, all dated of even date with the deed, May 31, 1928, and all due five years after date, payable to the order of W. L. Davenport, and containing the usual provisions found in such notes.

Plaintiffs allege the first note had been paid, but that the remaining two were in default.

February 4, 1932, Snyder conveyed the lands to A. J. Felton, subject to the notes and the vendor’s lien.

The defendants L. E. and J. A. Mounger claimed an undivided one-half interest in the lands under the following contract:

“State of Texas,
“County of Live Oak.
“Whereas, the undersigned W. L. Davenport and L. E. Mounger heretofore made contract, for recovery of certain lands in Live Oak County in which it was agreed that Davenport should convey certain lands to said Mounger or his assigns, on which suit was to be instituted for the quieting of title to same and after the termination of such suit or suits the said Mounger was to reconvey to said Davenport one-half interest in said lands so recovered or to which title was quieted, and,
“Whereas it is now agreed that such suits should be brought in the name of W. L. Davenport, it is now agreed and the said W. L. Davenport hereby binds himself, his heirs and assigns, to convey to said Mounger, his heirs and assigns, one-half of any lands so recovered or title thereto quieted as set out in said agreement between Mounger and Davenport herein referred to.
“The consideration for said transfer being service rendered and to be rendered by said Mounger, his heirs or assigns, or his attorneys, in the institution and prosecution of said suits relating to said lands.
“(Signed) W. L. Davenport
“Witness:
“(Signed) J. B. Sneed
“(Signed) Roy C. Ledbetter.”
J. A. Mounger, a brother of L. E. Moun-ger, claimed the one-half interest as as-signee of L. E. Mounger by virtue of the ' following assignment:
“San Antonio, Texas,
“Jan. 2, 1928
“I, L. E. Mounger, for and in consideration of $1.00 and other good and valuable considerations, in hand paid, do here assign and transfer all my interest in Davenport ranch in Live Oak County, Texas, about IS miles West of George West, Texas, to J. A. Mounger being half interest in land held for me by W. L. Davenport and to be conveyed to me by him.
“(Signed) L. E. Mounger.”

Charles Rattan, attorney for the Moun-gers, claimed a one-fourth interest by virtue of an assignment from the Moungers to him in payment of his fee.

The suit to clear title, as mentioned in the contract between W. L. Davenport and L. E. Mounger, was brought and tried in the District Court of Live Oak County, Texas, and a judgment rendered in that cause on the 28th day of December, 1927. The purpose of the suit was to perfect title under the statutes of limitation to some two hundred tracts or lots of ten acres each, as subdivided by a Dr. Simmons, which lots had been sold by Dr. Simmons to many different owners. These small tracts were in the pasture of W. L. Davenport and occupied and used by him in connection with the operation of his ranch on other lands owned by him.

Snyder and the Feltons claimed payments and credits on the notes sued on by the plaintiffs other than those credits admitted by the plaintiffs. The questions arising on these matters were submitted to the jury and determined by the jury, as will hereinafter be noted.

The plaintiffs, by proper pleading, alleged that the contract claimed by L. E. Mounger had never been executed; that if it had, Mounger had never performed his part of it, and therefore had acquired no interest in the land; but if they were mistaken in that, then he had been paid various sums of money, as will be shown hereinafter in this opinion, in lieu .of any interest he might have been entitled to in the lands; that he was present and knew of the sale of the land by'W. L. Davenport and others to Snyder, and had never, prior to the filing of his answer in this suit, asserted any claim to an interest in the lands nor to the cash proceeds, nor the vendor’s lien notes.

It is rather difficult to understand and gather from the pleadings and the evidence the relations existing between the defendants in- this suit. Roy C. Ledbetter, the attorney who brought the suit to clear the title to the Live Oak County lands, and J. B. Sneed witnessed the contract between Davenport and Mounger. Snyder, to whom the Davenports conveyed the lands, is the father-in-law of Tom Poynor, who testified he furnished the money for the cash payment, and that Snyder took the land in trust for him. A. J. Felton, to whom Snyder conveyed, subject to the lien, was a lifelong friend of Poynor, according to Poyn- or’s testimony, and Poynor had dealt with him since he was sixteen years of age, and that Felton died in Poynor’s house, in a room Felton called his own. Poynor made all the subsequent payments after Felton took the deed. L. E. Mounger testified he was interested in the suit that he might sell the lands through Tom Poynor and Jack Felton to Snyder and others. Ledbetter testified he did not know the relations existing between the several interested parties. L. E. Mounger was on several occasions, as detailed in the testimony, delivering payments on the written authority W. L. Davenport gave him, hereinafter copied, to Davenport and by letter and conversation assured Davenport' and his attorneys they would be paid, using such expressions as “Well, the notes will be paid — , you don’t have to worry, they will be paid.” And again, “Well, that’s all right, they may be a little bit slow, but they will be paid, you men will get your money.” And on January 29, 1933, he wrote Mr. Davenport: “Dear Mr. Davenport:

“I am glad to report to you that I have closed the deal on the notes for $18,000 cash as agreed. It is only a matter of detail to finish the matter. Anything you may want to know, come to see me. With best wishes, I am,”

And again on July 30, 1933, he wrote Mr. W. S. Ethridge, attorney for Davenport, as follows:

“Yours recent date. I sent letter to proper parties & feel quite sure satisfactory payment will be made in near future. Re-Davenport Matter.”

It is apparent all these defendants worked together and had a common interest.

The title of the Feltons and Snyder is subject to the vendor’s lien retained to secure the unpaid purchase money and they cannot prevail here unless they establish some reversible error committed on the trial.

Felton’s first assignment of error is to the action of the court in admitting in evidence note No. 2, over objection, because it shows on its face that it had been endorsed and delivered to the First State Bank of Three Rivers, and that plaintiffs were not the owners thereof.

This assignment cannot be sustained. During the life of W. L. Davenport, the attorneys representing him, who were the attorneys for the plaintiffs here, got the note from the bank to sue on and brought this suit. The payments made on the note while in the possession of the bank were credited to W. L. Davenport. This is the uncontradicted testimony of the cashier of the bank. There are certain presumptions indulged in favor of commercial paper, such as when the plaintiff produces paper payable to him, he .is presumed to be the owner. The production in court of an instrument sued on is prima facie evidence of ownership, although it bears his endorsement. If nothing more than the endorsement appears, the presumption is that it was transferred for collection only. 6 Tex.Jur., par. 298, p. 983, and.cases there cited. The evidence here demonstrates that to be the purpose of the transfer to the Bank. Assignments two, four, five and nine and the propositions asserted thereunder by the Feltons depend upon the ownership of the notes, and are disposed of under the first proposition, and are overruled.

The Feltons further complain by assignment No. 3 and the propositions thereunder of the action of the court in overruling their special exception to a paragraph descriptive of note No. 3, wherein it is alleged to be substantially the same as note No. 2, and by assignment No. 10 and their propositions thereunder complain of the action of the court in overruling their motion to continue the case; and in assignment No. 11 and propositions thereunder complain of the action of the court in sustaining plaintiffs’ special exception to paragraph VI of their answer. The record fails to disclose any action of the court on these exceptions, or that they were called to the court’s attention, and, if well taken, were therefore waived, and cannot be availed of here. Epting v. Nees, Tex.Civ.App., 25 S.W.2d 717; Lerer v. Raines, Tex.Civ.App., 27 S.W.2d 621.

The motion to continue was addressed to the discretion of the court, and we think there was no error in overruling it.

Assignments five, six and seven and the propositions thereunder of the Feltons complain of the action of the court in submitting special issues one, two and three, because the evidence was uncontroverted thereon. These issues required the jury to find that certain payments made were made on notes two and three. The pleadings and the proof raised these issues of fact and they were properly submitted, and therefore no error committed.

The Moungers and Charles E. Rattan, who claims under the Moungers, assign as error the action of the court in overruling their motion for an instructed verdict, in submitting the several special issues to the jury, and in refusing their motion for judgment notwithstanding the verdict, and in several propositions challenge the action of the court in these matters complained of. They all relate to one proposition, however, that the undisputed evidence shows Mounger had his contract with W. L. Davenport, that he performed it, and was entitled to his interest in the lands; or, in the alternative, to one-half of the proceeds of the sale thereof.

Under the record in this case these propositions cannot be sustained. Under the terms of the contract L. E. Mounger’s right to an interest in the land was made dependent upon his performance of the obligations laid upon him by the terms of the contract.

One who claims under a contract has the burden to show his performance of it. To show the mere making of the contract is not sufficient. These propositions are too elementary to require the citation of authority.

On the performance of the contract L. E. Mounger testified that he did “some things in pursuance of the contract”; that he located the small tracts of land lying in the Davenport pasture; that he arranged to bring the suit; that he employed Roy C. Ledbetter to bring the suit and paid him his fee and all expenses. That, in substance, is his testimony with respect to his activities in the litigation to clear the title to the land, as detailed by him in his direct testimony. Mr. Ledbetter testified that he became connected with the suit through Poynor, Snyder and Sneed. He testified he was employed “in person by J. B. Sneed.” His testimony with respect to L. E. Mounger’s activities is as follows: “I am not sure that I know his exact connection in all of his relations. I do know, however, that he was active in behalf of the plaintiff in such suit, and had procured in some instances deeds and other instruments in curing the title; talked with me on several different occasions, was usually present at the time of the preparation of the case, which was being done in San Antonio and George West, and on more than one occasion I rode with him in his automobile from San Antonio to George West and back. Others interested on the plaintiffs’ side of the suit- were J. B. Sneed, of Dallas, D. W. Snyder, of San Antonio, Tom Poynor, of Fort Worth. I first heard of the matter through J. B. Sneed, and my work was most closely connected with him. I did see D. W. Snyder and L. E. Mounger often in connection with the prosecution of the suit, and saw Tom Poynor on more than one occasion. I do not know whose money paid the court cost, but usually any attorneys’ fees and any costs and expenses are advanced or paid through J. B. Sneed. As stated above, such expenses were advanced to me by J. B. Sneed, or he reimbursed me after the expenses were incurred.”

Of course, death has sealed the lips of W. L. Davenport, and the jury had only such facts and circumstances as were brought to them. We think the pleadings and the evidence sufficient to raise the issue. The court submitted this question in special issue number five, as follows: “Do you find from a preponderance of the evidence that L. E. Mounger performed the services, if any, provided for in said contract, if any, with W. L. Davenport? Answer ‘Yes’ or ‘No.’” The jury answered: “No.”

These defendants are, therefore, precluded on that issue.

As hereinbefore stated, the plaintiffs by proper pleading alleged that if the contract was made and performed, Mounger, nevertheless, was not entitled to recover, because he had accepted various sums of money in lieu of his interest in the lands. The court submitted this phase of the case in special issues six and seven, as follows:

6. “Do you find from a preponderance of the evidence that L. E. Mounger received from W. L. Davenport commissions, if any, for his services in connection with the sale of the land of W. L. Davenport, et al, to D. W. Snyder? Answer ‘Yes’ or ‘No.’” The answer was: “Yes.”

7. “Do you find from a preponderance of the evidence that the said L. E. Mounger accepted the commissions, if any, so paid to him by W. L. Davenport in full satisfaction of any interest said L. E. Mounger may have had in the land conveyed to Snyder by Davenport? Answer ‘Yes’ or ‘No.’” The answer was: “Yes.”

The findings of the jury were effective as against the claim of Moungérs and Rattan, if the evidence is sufficient to sustain the findings.

On June 14, 1928, following the conveyance of the*lands by the Davenports to Snyder, on May 31, 1928, L. E. Mounger delivered to W. L. Davenport a receipt for $1360.00, which recited: “Said amount being due and owing me on the sale of his lands in Live Oak County to D. W. Snyder.” On January 28, 1933, L. E. Mounger took the following authorization from W. L. Davenport:

“San Antonio, Texas,
“Jan. 28/1933.
“L. E. Mounger,
“San Antonio, Texas.
“Dear Sir:
“I will take $18,000.00 Dollars cash and pay you 5% five per cent commission on this amount or any amount above the $18,-000.00 for the $20,700.00 notes that I hold against the land in Live Oak County, signed by Tom Poynor, or others. This applies to place known as W. L. Davenport Place containing 3000 or more acres of land in Live Oak County, Texas.
“(Signed) W. L. Davenport.”

There is evidence that a similar authority had been previously given, and L. E. Moun-ger, on April 8, 1933, receipted W. L. Davenport for $300, which receipt recited:

“To apply on contract on reverse side of this paper. If balance of $17,700.00 is not paid by May 1st, 1933, it is understood and agreed said $300.00 is forfeited.”
“Witnesses:
“(Signed) Jack Felton
“(Signed) J. M. Davenport.”

L. E. Mounger likewise received another receipt for $1500 from W. L. Davenport dated April 29, 1933, which recited: “to apply on purchase price of $18,000.00 for notes held against property in Live Oak County, Texas. It being understood and agreed that you are to pay me or Jay Davenport $7000.00 Seven thousand dollars June 1st, 1933 and the balance of $18,000.00 less $300.00 and $1500.00 and the $7000.00 July 1st, 1933. This is an extension of an agreement- of Apl. 8th, 1933.”

Mounger received a check on the Three Rivers Bank for $300 May 11, 1933. Pie receipted W. L. Davenport for another $300 on January 29, 1933. He wrote W. L. Davenport as follows:

“Jan. 29/33
* *
“Dear Mr. Davenport:
“I am glad to report to you that I have closed the deal on the notes for $18,000 cash as agreed. It is only a matter of detail to finish the matter. Anything you may want to know, come to see me. With best wishes, I am,
“Your friend,”

July 30, 1933, he wrote W. S. Ethridge, attorney for W. L. Davenport, as follows:

“Dear Sir:
“Yours recent date. I sent letter to proper parties & feel quite sure satisfactory payment will be made in near future. Re- Davenport Matter.”

L. E. Mounger testified, as set out heretofore, that he was interested in the law suit in order to make the sale to Snyder, Felton, Poynor and others. He testified that he knew of the sale of the lands, the amount of the cash payment and the notes taken for the balance of the purchase price. He further testified, on cross-examination: “I remember that I had a draft there that I endorsed and turned it over to Mr. Poyn- or, and he turned it over to you (Judge Bracks), but I don’t remember the amount of the draft. The draft was to be applied as a credit on those vendor’s lien notes.”

Judge Bracks, one of the attorneys for plaintiffs, testified Mounger met him several times with the parties interested in the litigation, and at no time made any claim to the lands or the proceeds for himself or his brother, and quoted him as heretofore indicated. Judge Bracks related two or more other meetings and conversations, and he made no claims for himself or brother. These conversations occurred from 1933, when the first suit was filed during the lifetime of W. L. Davenport, down to December, 1937. Mounger was present and testified in the case, but never denied any of this. He does not say anywhere in any of his testimony that he ever asserted any claim against the Davenports at any time. James M. and George Davenport testified in this case that no claim or demand had at any time been made by either of the Moungers, and that their claim had never been heard of until the filing of their pleadings in this case. The original pleadings do not appear in the record, but the attorney for the Moungers testified that he prepared and filed an answer for L. E. Mounger on or about the 22nd day of December, 1937, and that he later discovered L. E. had assigned to J. A. Mounger, and he then amended and answered for the latter. J. A. Mounger did not testify in the case.

The long failure of the Moungers to make any claim to an interest in the land or the proceeds of the sale, coupled with the whole course of dealing, the documentary proof, and the statements made by L. E. Mounger and the acceptance by him of the various sums of money, in the absence of showing as to what services the money was paid to him for, are sufficient to support the jury findings. The pleadings and the proof raised the issues and the record fully justifies the findings of the jury and the conclusion that the Moungers, the Feltons and Poynor were more interested in the retention of the record title to take advantage of some future speculative value of the land than paying for it and thereby acquiring the full title to it for its then present value.

Mounger was an interested party and the jury were not compelled to believe him on any issue, but had the right to disregard his testimony and reach their conclusions from the other • facts and circumstances in the case. And well they might conclude he had some understanding and agreement with W. L. Davenport that he would sell the lands and take down cash rather than wait on a slow sale and still slower collections. All of his conduct is consistent with the finding.

We find no error, and the judgment is affirmed.