author: DUNKLIN, Chief Justice. ■

text:
    MORING v. WOLF & KLAR, Inc.
    No. 14145.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 13, 1940.
    Rehearing Denied Jan. 31, 1941.
    L. J. Wardlaw, of Fort Worth, for appellant.
    E. L. Gilbert and Ben Gilbert, both of Fort Worth, for appellee.
   DUNKLIN, Chief Justice. ■

This suit was instituted by Mrs. Ann Moring against Wolf & Klar, Inc., a, corporation, doing business in the City of Fort Worth, to recover title and possession of: “Ladies Swiss platinum and diamond wrist watch, with round dial, w.atch itself is not round, but has little wings on each side, with approximately 60 small cut diamonds around the dial and in the wings, of a value of $150.00. Platinum bracelet with approximately 40 small cut diamonds, same as in the watch, of a value of $100.00,” upon allegations that defendant is in the unlawful possession of the jewelry, and had acquired possession thereof without her knowledge or consent, and is now asserting an unlawful claim of title thereto. That she was married to J. C. Moring, but had permanently separated from him, and he had refused to join with her in the suit. Further, that the wrist watch was owned by her before her marriage and the bracelet was a gift to her by her husband during their marriage relation. Plaintiff’s petition concluded with a prayer for such further relief, general and special, to which she may be entitled.

Defendant answered by a general demurrer and general denial; with a special answer in which it was alleged that on January- 11, 1937, and on October 16, 1937, plaintiff’s husband, with her knowledge and consent, pledged the jewelry to the defendant, who accepted the same in full reliance upon plaintiff’s silence and acquiescence in the transaction; that her husband is now insolvent; by reason of all which plaintiff is estopped now to claim title to the jewelry.

By cross-action defendant alleged that on December 5, 1938, plaintiff’s said husband borrowed from the defendant the sum of $100, and as security therefor executed a pledge agreement No. 28745, according to the terms of which he agreed to pay said loan with interest thereon at the rate of ten per cent per annum from date until paid, and as security therefor he pledged the jewelry described in plaintiff’s petition, the reasonable cash market value of which is $250; with further allegations that plaintiff is claiming some right, title or interest in the jewelry which is inferior to the defendant’s lien. Defendant then prayed for personal judgment against J. C. Moring for the. sum of $100, with interest thereon at the rate of ten per cent per annum, and for foreclosure of lien on the jewelry to secure the same, as against plaintiff and husband, J. C. Moring.

In answer to that pleading plaintiff filed a general demurrer and general denial.

The case was tried to the court without a jury and judgment was rendered denying plaintiff, Mrs. Ann Moring, recovery of title to the jewelry and awarding to the defendant, Wolf & Klar, Inc., personal judgment for $111.25, with interest at six per cent against J. C. Moring, husband of plaintiff, with foreclosure of the pledge agreement and lien as it existed on December 5, 1938, against the jewelry in controversy. With recital of findings by the court, “that on December 5, 1938, with the knowledge, consent and acquiescence of his wife, Mrs. Ann Moring, J. C. Moring borrowed of Wolf & Klar, Inc., the sum of $100, and as evidence of said loan and as security therefor, executed in its favor a note and their pledge agreement No. 28745. That for the purpose of collateralizing said loan, with the knowledge, consent and acquiescence of his wife, J. C. Moring delivered to Wolf & Klar, Inc., the personal property which she had turned over to him, which is hereinafter described.” Then follows the same description of the jewelry in controversy as appears in plaintiff’s petition. There was a further recital that J. C. Moring, though duly served with citation, had made default; also, “that the material allegations contained in the second amended answer and cross-action of Wolf & Klar, Inc., are true and correct.”

Plaintiff, Mrs. Ann Moring, duly excepted to the judgment and gave notice of appeal to this court.

The finding of the court that the act of J. C. Moring in pledging the two articles of jewelry sued for by plaintiff, Mrs. Ann Moring, was with her consent is amply supported by the evidence; nor has appellant challenged that finding of fact; but by assignments of error here presented she insists that the pledge agreement No. 28745, which was made the sole basis of defendant’s cross-action, was void and unenforceable, because at the time of that transaction defendant was pursuing the business of a pawnbroker, as defined by Art. 6146, Vernon’s Texas Annotated Civil Statutes, and had entered into that pledge agreement without complying with the requirements of Arts. 6148 and 6149 of the pawnbroker statutes, appearing in Title 107, Rev.Civ.St., reading:

“Art. 6148. Register. Each pawnbroker shall keep a well bound book, to be kept open for inspection in which he shall register all his transactions as a broker at the time the same occurs. Such register shall show—
“1. An accurate description of the article pawned.
“2. From whom received.
“3. The time and the amount for which the article is pawned; its probable value and the rate of interest agreed upon. * * * »
“Art. 6149. Pawn ticket. The broker shall give to the party pledging a ticket corresponding to the entry on the book of registry.”

But plaintiff did not allege that defendant was engaged in the business of pawnbroker and that the pledge was in violation of the statutory requirements, by an alternative pleading as a ground for recovery of title in the event she should fail to sustain her allegation that the pledge was without her knowledge and consent, which was the only ground on which she sought a recovery of title to the jewelry in question. Nor did it appear from any of defendant’s pleadings that the loan in question was a pawnbroker’s loan. However, the pledge agreement No. 28745 was not introduced in evidence; and while J. C. Moring testified he pledged the articles for the loan, and Gilden, defendant’s agent in charge of defendant’s business, also testified to the same effect, neither of those witnesses even, attempted to state the contents of said pledge agreement. Clearly that testimony was incompetent to establish the pledge agreement which was in writing, and made the basis of the cross-action. 17 Tex.Jur., § 353, p. 793, and decisions there cited.

Indeed, the record shows that ten days after the judgment was rendered, defendant filed a. motion to set aside the judgment and grant a new trial for the sole purpose of permitting it to introduce in evidence that pledge agreement, which, through oversight, had not been introduced on the trial. Attached to the- motion was a copy of the pledge agreement in writing, signed by J. C. Moring and defendant, and setting out in full the contract of loan made to J. C. Moring and the pledge of the wrist watch sued for by plaintiff, but not covering the bracelet. The court sustained plaintiff’s demurrer to that motion; and defendant has not challenged that ruling.

Many authorities are cited by appellant to support her contention that the pledge agreement was void, for the reasons noted above, and authorities are cited by appellee to support the contrary view.

We deem it unnecessary to determine the merits of those opposing contentions, because in the absence of proof of the pledge agreement, which was in writing, there was no sufficient basis for the judgment sustaining the defendant’s cross-action. 25 Tex.Jur. pp. 480 to 483, inclusive. And by reason of that error in rendering judgment in favor of defendant, foreclosing the alleged pledge lien on the two articles of jewelry in question, as against plaintiff, Mrs. Moring, the judgment rendered is reversed in its entirety, and the cause is remanded for further proceedings, in accord with the rules of law applicable thereto, since the interests of the plaintiff and defendant in the jewelry are so interrelated as to require such.

Reversed and remanded.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    MOORE et al. v. MOORE.
    No. 3780.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 14, 1941.
    Rehearing Denied Jan. 22, 1941.
    Sam D. Snodgrass, of Temple, for appellants.
    Laurel M. Dunn, of Abilene, and Henry Taylor, of Temple, for appellee.
   O’QUINN, Justice.

On July 31, 1903, the fraternal society commonly known as the Woodmen of the World, and hereinafter referred to as such, issued to William W. Moore its life insurance policy No. 88089-Texas in the sum of $2,000. His wife, Laura S. Moore, was named in the policy as beneficiary.

Thereafter, on March 22, 1906, at request of insured, a new certificate or policy of insurance was issued to William W. Moore in said sum naming Henry M. Moore, brother of insured, as beneficiary.

On December 12, 1907, at request of William W. Moore, insured, a new certificate or policy was issued to William W. Moore in said sum naming Maronie Arthur Moore, son of insured, and Henry M. Moore, brother of insured, as beneficiaries. In the meantime Mrs. Laura S. Moore, wife of William W. Moore, had died.

Thereafter, on August 13, 1910, at the request of insured, a new certificate or policy of insurance was issued to William W. Moore in said sum. of $2,000, and bearing the original number 88089-Texas, naming Maronie Arthur Moore, son, Mabel Moore, wife, and Henry M. Moore, brother, as beneficiaries.

On October 3, 1928, at the request of William W. Moore, the insured, a new certificate or policy of insurance was issued to insured in the said sum and of same number, which designated Mabel Alice Moore as beneficiary.

None of these identical certificates are involved herein, but are mentioned to show the various changes or mutations of the insurance directly involved.

On December 4, 1935, at the request of insured, William W. Moore, a new certificate or policy of insurance was issued to William W. Moore, in the same sum and bearing the original number, 88089-Texas, naming Maronie A. Moore, son, as beneficiary. (Mrs. Mabel Alice Moore, wife of insured, had died on January 14, 1932.)

Subsequently, on September 6, 1938, insured, William W. Moore, made written application to the insurer, W. O. W., for an exchange of certificate 88089-Texas for a new type of Level Benefit certificate in the sum of $1,194. In said application for exchange, he, for himself and his beneficiaries, and for anyone claiming any right in, through or on account of said certificate 88089-Texas, released the Woodmen of the World Life Insurance Society from any and all liability, and executed a waiver of the old certificate 88089-Texas, and as a condition precedent to the approval of his application for such exchange he waived all rights and benefits which he or his beneficiaries might have theretofore acquired, or might then have under said certificate 88089-Texas, and cancelled same. On July 20, 1939, the W. O. W. Society issued to him, in consideration of his application for such exchange beneficiary certificate 1^16-62212-B in the amount of $1,194, designating Arthur Hewitt, Henry M. Moore, Scarborough & Ely, and Sam D. Snodgrass as beneficiaries. (Said beneficiaries were to receive, respectively: Arthur Hewitt, $250 for burial expenses; Henry M. Moore, brother to insured, one-half of the balance after Hewitt received $250; and the remaining balance was to be divided between Scarborough & Ely, a law firm, on the one hand, and Sam D. Snodgrass, a lawyer, on the other.)

The insured, William W. Moore, died November 5, 1939. Certificates 88089-Texas, and L-1662212-B are involved in this suit. Maronie Arthur Moore, son (and only child) of insured, claimed as beneficiary under policy 88089-Texas, and appellants, Arthur Hewitt, Henry M. Moore, brother of insured, and Scarborough & Ely, and Sam D. Snodgrass claimed as beneficiaries under policy L-1662212-B. This suit was filed by the Woodmen of the World Life Insurance Society in the nature of an inter-pleader suit, impleading the various claimants to said fund, and admitting its liability under the one or the other of said policies of insurance, in the sum of $1,190.71, and alleged its willingness to pay said sum to such claimant or claimants as the court determined to be lawfully entitled to receive same, and by permission of the court paid said sum into court to await the orders of the court, and by judgment was discharged from further liability.

It was pleaded by the W. O. W. Society and admitted by the defendant claimants that by reason of a change in the premium rates to be paid on policies, increasing the rates, and which increased rates had not been paid on either of them, that there was a lien against policy L-1662212-B in favor of the insurer in the sum of $56.11, which should be deducted from the face of the policy, and that there was a credit of $52.82 caused by savings and gains which should be added to the sum of said policy, making the total amount of $1,190.71 net death benefit under the policy. If, however, policy L-1662212-B be not valid, but that payment should be under policy 88089-Texas, then the amount payable would be $1,169. In any event, the W. O. W. Society admitted liability in the sum of $1,190.71, and by permission of the court paid said amount into the coffers of the court.

Appellee, Maronie A. Moore, claims by virtue of being beneficiary under policy 88089-Texas, insisting that policy L-1662212-B, under which appellants claim, was invalid and was never of legal existence because at the time William W. Moore applied for the exchange of policies under which application policy L-1662212-B was issued he was of unsound mind, not capable of understanding the nature and effect of his acts, but acted under the compulsion and persuasion of appellant Henry M. Moore, brother of insured; that William W. Moore was old, and for a long period of time had been feeble in body and mind, and incapable of directing or accepting the policy under which appellants claim for and instead of that under which he, appellee, claimed for in that he was not capable of understanding the nature and effect of his acts, and denied that insured, if in fact he did undertake to make such change of policies, realized or knew the effect of the acts by him done in making such exchange, but was wholly incapable of so doing. All these allegations were denied by appellants, other than that William W. Moore freely, voluntarily and actually applied for and secured the exchange of the policies, -receiving policy L-1662212-B as his insurance policy which named appellants as beneficiaries. There were many allegations and counter allegations made by the parties, but as the capacity of the insured to act in the premises is the controlling issue, we do not make any further statement of the matters plead.

At the close of the evidence, appellants moved for an instructed verdict in their favor which was refused. The case was then tried to a jury upon special issues upon their answers to which judgment was entered in favor of appellee.

Special issue No. 1 was: “Do you find from a preponderance of the evidence that the mark of deceased, William W. Moore, appearing on the request for change of beneficiaries, of date November 12th, 1938, and introduced in evidence before you herein, was made thereon by J. E. Francis while the deceased, William W. Moore held the pen, if any, then being used by said Francis? Answer yes or no.” The jury answered: “Yes.”

Appellants’ first proposition asserts that the jury’s answer to this issue was without sufficient support in the evidence- — that the evidence did no more than raise “a surmise or suspicion that the deceased, William W. Moore, was a person of unsound mind on November 12, 1938, at the time he signed the written request for change of beneficiaries in his life insurance-certificate, if it did that,” and hence it was. error for the court to refuse their request for an instructed verdict. The proposition is without merit. The undisputed evidence showed that William W. Moore was in bed, could not hold the pen with which he was to-affix his signature to the application for a change of beneficiaries in the policy, which was wholly written by a third party, and that one J. E. Francis held the pen and guided same in insured making his mark thereto for a signature. That he was in. his sixty-eighth year and for years had been in very poor health, was extremely weak in body and feeble in mind, hardly able to speak. There was ample support in the evidence raising the issue of unsoundness in mind of insured.

Special issue No. 2 submitted to the jury read: “Do you find from a preponderance of the evidence when the deceased, William W. Moore, executed the request for change of beneficiaries (if he did) of date November 12th, 1938, and introduced in evidence before you herein, he was of unsound mind, as that phrase has been defined to you above? Answer Yes or No.” The jury answered: “Yes.”

Appellants’ second proposition challenges this finding as “without support in the evidence,” wherefore the trial. court erred in refusing their motion for an instructed verdict and in overruling their motion for a new trial on said ground. This proposition is overruled. We shall not undertake to set' out or quote from the record the evidence which supports the jury’s finding, but will say that there is ample evidence supporting the jury’s finding.

There are several other propositions urging error, but as our above holding disposes of the'appeal, they become immaterial, and are overruled without discussion.

The judgment should be affirmed, and it is so ordered.

Affirmed.


author: COMBS, Justice.

text:
    CONNER et al. v. ANGELINA COUNTY LUMBER CO.
    No. 3588.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 6, 1940.
    Rehearing Denied Jan. 22, 1941.
    C. S. Williams, Collins, Pate, Hatchell & Garrison, and J. J. Collins, all of Lufkin, and C. E. Smith, of Woodville, for appellants.
    J. E. Wheat, of Woodville, and K. W. Denman, of Lufkin, for appellee.
   COMBS, Justice.

Appellants, who were plaintiffs in the court below, are the widow and minor children of Willie Conner, who was killed on November 9, 1937, in a collision between his automobile and a truck driven by one J. B. Rushing. They brought this suit for damages against appellee, Angelina County Lumber Company as defendant, on the theory that Rushing, driver of the truck, was the employee of said company, and engaged in its business at the time of the accident. By pleading and proof appellee contended that Rushing was not its employee, but was the employee of one C. C. Burkett, an independent contractor. At the conclusion of the evidence, the trial court granted defendant’s motion for an instructed verdict in its favor and entered judgment denying plaintiffs any recovery, and this appeal is from that judgment

It is not questioned that the evidence raised issues of negligence against Rushing, driver of the truck, proximately causing the death of Conner. The controlling question to be decided here is whether or not the competent evidence as a whole also raised an issue for the jury that Rushing was an employee of the defendant Company. While the record does not reflect affirmatively the ground upon which the court instructed the verdict, it is evident that the court was of the opinion that the evidence did not raise the issue that Rushing was the employee of the defendant.

The evidence shows that the truck in question was one of several owned by C. C. Burkett, a log-hauling contractor. Burkett had been hauling logs for the defendant for some time under a verbal contract. It appears without dispute that under that contract Burkett was to haul the logs from the woods to the railroad for shipment to defendant’s mill, for which he was to receive a stipulated price per thousand feet. For some time prior to the accident, his trucks, including the one driven by Rushing, had been hauling logs at Emilee in Tyler County. On the morning of the day of the accident, defendant’s foreman requested Bur-kett to move his logging equipment from Emilee to Acol camp, some twenty miles north, and haul some logs located in the woods about one and one-half miles from that place. Burkett went out to the woods, looked at the logs, and agreed to take the contract. He then instructed his truck drivers to move their equipment to the Acol camp location, and Rushing was on his way from Emilee to Acol, driving Burkett’s truck, when the accident occurred. There seems to be no dispute of the evidence offered by the defendant that Burkett, under his contract with defendant, was under contract to haul the logs from the woods and deliver them on the railroad siding at Acol for a stipulated price per thousand feet, using his own equipment and methods, subject to the control of the defendant only as to the end to be accomplished. As against that showing the plaintiffs offered evidence, also without dispute, of facts and circumstances which they contend raised the issue that Rushing was in fact the employee of the defendant. Briefly summarized, these facts were: (1) The defendant, Angelina County Lumber Company, paid the truck driver Rushing his wages direct. It paid to him his wages for driving the truck on the day the accident occurred. (2) The defendant deducted the social security payment from Rushing’s wages. (3) It carried compensation insurance covering Rushing and the other employees of Burkett employed on the hauling job. The injury sustained by Rushing in the accident in question was reported to the defendant which reported it to the insurance company, and the company paid to Rushing compensation for his disability. (4) The defendant carried Rushing on its books as an employee and so reported him to the .insurance company. In rebuttal of the implications of these facts .and as an explanation of them, the defendant proved that under its contract with Burkett it agreed to pay his employees, to take care of their social security payments making deductions therefor from their wages, and to carry compensation insurance covering them. Deductions for moneys expended by the defendant under this arrangement were made from the amount earned by Burkett under his contract when making settlement with him. It was further shown that the defendant carried Burkett’s employees on its payroll and certified them to the insurance company as its employees in order to cover them with compensation insurance under its contract with the insurance company. By testimony of an agent of the insurance company, and by the introduction of letters exchanged between the insurance company and the defendant at the time the coverage was arranged for, it was shown that Rushing, as well as other employees of Burkett, was carried as an employee of the defendant by agreement between the insurance company and the defendant for the reason that the insurance company was of the opinion that the State Insurance Commission would not approve the contract if it were made to appear that the policy issued to the defendant was intended to cover Burkett’s employees.

Opinion.

As we have indicated above, the controlling question here is: Did the plaintiff under all the evidence, pertinent parts of which are summarized above, raise an issue of fact to go to the jury that Rushing the truck driver was the employee of the defendant, Angelina County Lumber Company?

The question of whether in a given situation the relation of one person to another is that of master and servant, or whether it is one of independent con-tractorship, generally depends upon various circumstances. An interesting discussion of this matter is contained in Restatement of the Law of Agency, § 220, p. 483. The facts are hardly the same in any two cases. And the many reported decisions on the subject stress a variety of factors bearing upon the character of the relationship. But this variety of factors discussed in the decisions relates to the evidence or circumstances tending to establish the relationship. The fundamental principle of law by which the evidence is to be tested in a given case in determining whether or not the relationship of master and servant exists, is, we think, well established by the decisions of the courts of this state. One of the leading cases on the subject is Shannon v. Western Indemnity Company, Tex.Com.App., 257 S.W. 522, 523. In that case Judge German, speaking for the Commission of Appeals, quoted from 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 doné, but how it shall be done.’ ”

See, also, Smith Bros. v. O’Bryan, 127 Tex. 439, 94 S.W.2d 145, at page 148, opinion adopted by the Supreme Court. In that case Judge German stated: “In our opinion, the simplest and perhaps the most accurate definition, abstractly speaking, of an independent contractor, is that suggested by the annotator in ‘General discussion of the nature of the relationship of employer and independent contractor’ in 19 A.L.R. pp. 226 to 275, and is as follows : ‘An independent contractor is a person employed to perform work on the terms that he is to be free from the control of the employer as respects the manner in which the details of the work are to be executed.’ ”

It will be seen that the fundamental test to be applied is the right of control as to the details of the work to be performed. We think it cannot be questioned that under the contract proved in the present case, the defendant, Angelina County Lumber Company, had no right of control over Rushing in the performance of the details of the work covered by its contract with Burkett. Therefore, control of Rushing and other employees engaged on the job rested with Burkett, unless the circumstances referred to above, that the defendant carried Rushing on its records as an employee, carried compensation insurance for him, etc., raised an issue that the defendant had the right to exercise control over Rushing in the performance of his work as a truck driver.

We think these circumstances, had they stood alone and unexplained, would have raised an issue and supported a finding that Rushing was the employee of the defendant. Certainly the plaintiffs were not required to go any further in order to establish their case, prima facie. But these circumstances did not stand alone and unexplained. It is apparent we think, from the summary given above, that the defendant offered evidence which fully explained these circumstances in a manner showing that they were not inconsistent with the contract which it had proved and under which Rushing was the employee of Bur-kett. The defendant’s evidence on these points is clear. It is not contradictory of the evidence offered by the plaintiffs in support of their case, but is consistent with it. It merely tends to add to and fully explain the circumstances proved by the plaintiffs, and thus to present the whole picture. Upon the evidence as a whole, as we construe it, the defendant had no right of control over Burkett or his employees as to the methods and details of the work which he was to do in the performance of his logging contract for the defendant.

The trial court did not err in admitting the letters and copies of letters exchanged between the defendant and the insurance company with reference to the covering of Burkett’s employees by defendant’s policy of compensation insurance. These letters were res gestae of the contract between the defendant and the insurance company, and were properly admitted in response to and in explanation of the proof made by the plaintiffs to the effect that Rushing was carried on the books of the defendant company as an employee and also covered by the defendant’s policy of compensation insurance.

In conclusion we will refer to a question which has given us considerable concern, which is: Should the defendant be held, as a matter of public policy, to be estopped from denying that Rushing was its employee, by reason of the fact that it acted in collusion with the insurance company to evade a regulation of the Insurance Commission in carrying Rushing upon its records as its employee and certifying him as such, for the purpose of insurance? Certainly such collusive conduct to evade a State regulation should receive no sanction from the courts. But we have reached the conclusion that no principle of estoppel is involved here. No matter of the insurance contract nor any rights growing out of it are involved in this suit. This suit is merely a tort action, and the contract between the defendant and the insurance company could in nowise affect the rights of plaintiffs in this case. They have no privity of interest in that contract. Here, it was necessary for the plaintiffs, to discharge their burden of establishing that Rushing was in fact an employee of the defendant.

It follows from what we have said that the judgment of the trial court should be affirmed and it is so ordered.

Affirmed.


text:
    MARYLAND CASUALTY CO. v. ROMERO.
    No. 3751.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 2, 1941.
    Rehearing Denied Jan. 8, 1941.
    Smith, Smith & Boyd, of Beaumont, for appellant.
    Shivers & Keith, of Port Arthur, for ap-pellee.
   O’QUINN, Justice.

This is a workmens compensation case. The Texaco Can Company was the employer, Alcie Romero the employee, and Maryland Casualty Company the compensation insurance carrier. On October 4, 1938, while engaged in the course of his employment as an employee of the Texaco Can Company, appellee received an injury for which he claimed compensation. He duly filed his claim before the Industrial Accident Board. On September 26, 1939, the Board made its final ruling and award, and appellee duly gave notice that he would not abide said award, and duly filed this suit in the district court of Jefferson County, Texas, to set aside said award and to recover compensation as for total and permanent incapacity.

At the close of the evidence, appellant moved for an instructed verdict, which was refused. The case was then tried to a jury upon special issues which were answered favorable to appellee, and judgment rendered for appellee for compensation for 401 weeks for total and permanent incapacity at the rate of $13.80 per week, beginning on October 4, 1938, with a credit for 44 payments at said rate made theretofore by appellant. Motion for a new trial was overruled and the case is before us for review.

Appellant’s first proposition complains that the court erred in granting ap-pellee judgment non obstante veredicto of certain answers of the jury relative to the average weekly wage rate. Under the record the action of the court was justified. However, issue of wage rate found by the jury was immaterial for the reason that appellant had recognized that appellee was entitled to compensation at the rate of $13.80 by voluntarily paying to him 44 weeks of compensation at that rate, and so the rate at which appellee was entitled, to recover, if at all, was thus admitted by the act of appellant. Fidelity & Casualty Co. v. Branton, Tex.Civ.App., 70 S.W.2d 780; Industrial Indemnity Exchange v. Ratcliff, Tex.Civ.App., 138 S.W.2d 613, 619. However, the jury found that the average weekly wage rate of appellee was $23, sixty per cent of which is $13.80, the rate paid by appellant prior to suit. We think the undisputed facts support the rate as paid by appellant and found in the judgment. The proposition is overruled.

Appellant’s second proposition complains that the court erred in refusing “to submit appellant’s timely requested special issues, submitting to the jury appellant’s theory of defense that such prior injuries, or their effects, did cause or contribute to appellee’s claimed condition of incapacity.” In its answer appellant interposed a general denial that appellee had suffered an injury on October 4, 1938, from which total and permanent disability to labor resulted, and on the trial produced evidence that appel-lee, some fifteen years prior to the injury for which appellee was claiming compensation, had received an injury to one of his feet which it insists might have contributed to his present disability, and prepared and presented to the court a special issue inquiring whether such prior injury contributed to appellee’s present incapacity, if any, which was refused by the court. The evidence showed that in 1932 appellee (working for the same employer as when he received the instant injury) received an injury to one of his feet causing him to lose 49 days from work. He has continuously worked for the same employer ever since and no loss of time occurred from injury or sickness. We have carefully searched the record and do not find any evidence raising the issue that any part of his present disability was caused or produced or contributed to by the prior injury to his foot. There being no evidence raising the issue, the court did not err in refusing to submit same. Scott v. G. W. Waldrop & Co., Tex.Civ.App., 8 S.W.2d 552, writ refused; Houston Textile Mills v. Montgomery, Tex.Civ.App., 83 S.W.2d 754, writ refused.

What we have said disposes of appellant’s third, fourth and fifth propositions.

The sixth proposition urges that the finding of the jury, in answer to special issue No. 4, that appellee suffered total incapacity as a result of the injury received by him, was so contrary to the evidence as to be manifestly wrong, and so was the result of passion or prejudice on the part of the jury, and should be set aside. We have carefully considered the whole record, and think the verdict has support and does not indicate passion or prejudice. No good purpose could be served by quoting the evidence, and we simply say that it is sufficient to support the verdict.

Special issue No. 4 submitted to the jury read: “Do you find from a preponderance of the evidence that such incapacity, if any you have found, resulting from the injuries, if any, received on October 4, 1938, was total?” Appellant objected to this issue that it was duplicitous and assumed that appellee was incapacitated to labor by reason of the injury, and was upon the weight of the evidence.

The issue was not duplicitous, nor did it assume the fact of incapacity, nor was it upon the weight of the evidence. The proposition is overruled.

What we have said disposes of appellant’s proposition No. Eleven.

Special issue No. 6, submitted to the jury, read:

“Do you find from a preponderance of the evidence that the incapacity, if any, is not only temporary?
“If your answer is in the affirmative, the form of your answer should be ‘it is not only temporary’; otherwise it should he ‘no.’ ”

The jury answered: “It is not only temporary.”

Appellant objected to this issue (a) that it did not affirmatively submit the question of temporary incapacity for the finding of the jury; (b) that it was not an unconditional submission of temporary incapacity; (c) that it did not submit “the diverse theories of both plaintiff and defendant, which can be done by eliminating therefrom the .words ‘not only’ ”; that the charge accompanying the issue as to how to answer was error; and that the issue did not affirmatively submit the question of temporary incapacity from the defendant’s standpoint. This is urged by appellant in its eighth proposition. None of the objections are well taken. The issue affirmatively and unconditionally submitted the question of temporary incapacity. Wright v. Traders & Gen. Ins. Co., 132 Tex. 172, 123 S.W.2d 314, 317, Sth par. The words “not only” did not cause the issue to be a negative rather than an affirmative submission, nor did the accompanying instruction as to what form the answer should be militate against the affirmative nature of the submission or cause a prejudicial answer.

What we have said disposes of appellant’s ninth, tenth and twelfth propositions.

We think that appellant’s thirteenth proposition is too general and indefinite. It complains that: “The record in this, a compensation case, reflecting that plaintiff’s pleading,of claimed accidental injury or injuries was that he suffered injury to certain portions of his back and that he suffered from a concussion of the brain and the evidence showing that the back injuries had healed or at least there was no such condition as respects his back as to warrant a recovery except for a limited period of time, and the evidence not having sufficiently shown a concussion of the brain, it was reversible error for the court to overrule defendant’s objections that the issues with respect to injury or injuries were not so confined and framed as to be in conformity with the pleadings and the evidence.” It points to no specific error. It does not definitely point to any portion of the court’s charge, or to any issue submitted not in “conformity” with the pleadings and the evidence. The proposition is asserted to be germane to seven assignments of error. These assignments cover 25 pages of legal length paper typewritten, and relate to various objections to the court’s charge pointing to the first five special issues inquiring as to several distinct and separate matters. The proposition is without force.

No reversible error appearing, the judgment is affirmed.


author: CODY, Justice.

text:
    SOUTH TEXAS LIFE INS. CO. v. DANHAUS et al.
    No. 11103.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 16, 1941.

      C. C. Jopling, of LaGrange, for appellant.
    W. Odis. Tomachefsky and Richard Spinn, both of Brenham, for appellees.
   CODY, Justice.

This is an appeal from an order overruling defendant’s plea of privilege. The sole ground urged by appellant, defendant below, for reversal of the court’s judgment overruling its plea of privilege.to be sued in Fayette County, its domicile, is that the plea of privilege and the controverting affidavit were not disposed of at the term of court at which they were filed as- required by Article 2013, Vernon’s Annotated Texas Civil Statutes, and that the business of the court would have permitted of their determination at said term of court.

The judgment of the court was rendered on March 8, 1940, and contains the following findings of fact, of which no complaint is here made: “That defendant’s plea of privilege was filed herein on the 24th day of August, 1939, and plaintiff’s controverting plea thereto filed herein on the 30 day of August, 1939, and on the second day of the first term thereafter, to-wit, on September 5, 1939, a hearing was set by this court on said plea of privilege and controverting plea for September 26, 1939, which notation was made a part of said controverting plea; that notice on such hearing to be held on the 26th day of September, 1939, was duly issued by the District Clerk of this Court on the 6th day of September, 1939, and service of said notice had upon C. C. Jopling, Attorney or record for defendant, on September 7, 1939, and said return showing such filed in this court on September 11, 1939, that on the 26th day of September, 1939, the date set for the hearing, neither defendant nor its counsel appearing, a hearing was had and upon proof by plaintiff in support of said controverting plea, judgment was rendered by this court on said 26th day- of September, 1939, overruling defendant’s plea of privilege; that on September 27, 1939, defendant by and through its President L. J. Sulak, filed in this court a motion to set aside such judgment overruling said plea of privilege and upon request of said L. J. Sulak this court set said motion down for hearing on October 6, 1939, said date being a date agreeable to L. J. Sulak who informed this court that his attorney was out of the State and could be back at that date, and which date was under all the circumstances the earliest date same could have been set down for a hearing in order to accommodate defendant’s counsel and being the earliest date that the business of the court would permit a hearing on such motion; upon the 6th day of October, 1939, a hearing was had upon said motion of defendant and judgment rendered by this court setting aside the former judgment rendered on September 26, 1939, 'overruling said plea of privilege, and at that time it appearing to the court that since the September Term, 1939, of this court expired on October 13th, 1939, that there would not be sufficient time remaining in said term of court for service to be perfected for the time required by law of a hearing on the plea of privilege and controverting plea thereto, there being less than ten days left in said term, and the business of the court being such that the term could not be extended, this court did postpone and continue the hearing on said plea of privilege and controverting plea to the next succeeding term, to-wit: on March 8, 1940. That since a judgment of this court was rendered on September 26, 1939, overruling said plea of privilege, and a motion filed on September 27, 1939, by defendant to set aside such judgment overruling said plea of privilege, and a hearing set thereon at the earliest-possible date in accordance with the wish of L. J. Sulak, President of the defendant company, who acted for and in behalf of the defendant and the attorney representing said defendant, and that the business of this court would permit, said date being October 6, 1939, at which date a hearing was duly had, and judgment rendered setting aside the former judgment of September 26, 1939, overruling said plea of privilege, and the term ending on October 13, 1939, plaintiff is not guilty under all the facts of negligence in failing to secure a disposal of said plea of privilege and controverting plea at said September Term, A. D. 1939, of this court, and that as a matter of justice same was continued until the next term of this court, being the March Term, A. D. 1940, and set for hearing on March 8, 1940.”

From the foregoing statement of facts it is certainly clear that appellees were not guilty of negligence in having the hearing on their controverting plea set for September 26, 1939. We take it to be true that appellees could have learned before the precept to serve notice was served on appellant’s attorney that it was defective. And while the service of notice of appel-lees’ controverting plea on appellant’s attorney of record in the manner it was served may have been legally insufficient to be legally binding on appellant, yet the fact that appellant filed a motion on the day following September 26, 1939, to have the judgment of September 26 set aside, indicates that appellant actually knew that the hearing on the ■ controverting plea would be held on that date. There is no doubt that it was the duty of the court if it found that no proper notice of appellees’ controverting plea had been served on appellant, , in response to a motion of appellant filed at the same term of court the judgment sustaining appellees’ controverting pl^a was sustained, to set said judgment aside. Murphy v. Brown, 131 Tex. 121, 113 S.W.2d 1212. In setting aside a judgment obtained by one party litigant upon the motion filed by the other party at the same term at which the judgment was taken, the court will be constrained, upon the most elementary principle of justice, to provide that its action in setting aside its judgment shall not prejudice the rights of the parties upon atrial of the merits of the case. From the fact findings of the court it appears that appellant filed its motion to set aside the judgment of September 26, 1939, on September 27, 1939, at which time 17 days remained of the term. It further appears that, to suit the necessity of appellant, who .had the right to appear by the attorney of its choice, the hearing on the motion was set for October 6, at which time there remained but 7 days of the term. And it is appellant’s contention here, as we understand it, that the court, by granting its motion to set aside the judgment of September 26, at the late date to which appellant had set the hearing on said motion, not merely thereby prejudiced the rights of the parties to a hearing on the merits of appellees’ controverting plea, but also-thereby precluded any such trial, because there did not remain sufficient time in the term, after the judgment was vacated, to serve 10 days’ notice of the controverting plea on appellant and try the issue made by the controverting plea. We decline to sustain this contention. The cases cited by appellant are all cases where plaintiffs through their neglect had failed to have their controverting plea acted on at the term of court at which it was filed. Here appellees were diligent in setting their plea down for hearing, having it acted on, and obtaining a judgment thereon during the term at which it was filed.

It is clear to us that when a party succeeds in having a judgment which has been taken against him set aside, he cannot make claim, as a matter of right, to any more favorable position, as against his adversary, than the merits of his case entitle him to. While there is no case in this State directly in point her.e, the case of Goad Motor Co. v. Yantis, Tex.Civ.App., 296 S.W. 990, is one in which a plaintiff seasonably interposed his controverting affidavit and the trial court set the matter down for hearing and sustained plaintiff’s controverting plea, but without giving the proper notice of the hearing to defendant. And in said case, defendant on appeal contended, as appellant does here, that the court below lost jurisdiction of the defendant, and had no power to enter any other order than one transferring the cause to the county of defendant’s residence, and that the Court of Civil Appeals should therefore enter such order. The court held: “We do not so understand the law. The matter stands as if no hearing had been had in the court below, and it is the duty of this court to reverse the order appealed from and remand the cause upon the plea of privilege, in order that it may be set and heard upon proper notice to appellant.” It is obvious that the trial court in this case did, when it found that no proper notice had been given appellant, just what the Court of Civil Appeals did when it found that no proper notice had been served on appellant of the controverting affidavit in the cited case. In fact, it did exactly what this court would have been bound to do had the trial court refused to grant appellant’s motion to set aside the judgment of September 26, and appellant had appealed from such refusal to set aside the judgment of September 26.

There being no error, the judgment of the trial court ought to be affirmed, and it is so ordered.

Affirmed.


author: BROWN, Justice.

text:
    GILLILAND v. KIMBROUGH.
    No. 14154.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 13, 1940.
    Rehearing Denied Jan. 24, 1941.
    W. S. Moore, of Gainesville, for appellant.
    Fred H. Minor and Geo. M. Hopkins, both of Denton, for appellee.
   BROWN, Justice.

Appellant Gilliland was plaintiff below and the parties will be referred to here as they appeared in the trial court.

The plaintiff brought suit against defendant Kimbrough for the purpose of procuring a judgment establishing an oil and gas leasehold right and title in and to a certain tract of 512 acres of land owned by defendant and in the alternative for damages because of the failure of the defendant to deliver the oil and gas lease upon such lands.

Plaintiff’s allegations are, in substance, that on or about July 22nd, 1939, he entered into a written contract with defendant, whereby defendant agreed to lease to plaintiff said lands in consideration that plaintiff would commence the actual drilling of a well for oil or gas upon some part of said lands within 60 days from July 22nd, 1939, and drill same to a depth of 1,000 feet within 60 days from the commencement of such drilling, and when same had been drilled to a depth of 1,000 feet, if the plaintiff at that time had machinery upon the ground capable of drilling said well to a depth of 2,500 feet, said oil and gas lease covering the lands of the defendant would be delivered to plaintiff. He further alleged that he did not commence the drilling of the well in the time provided for by the contract, but that before the time expired the defendant, in writing, extended the time to commence such drilling for a period of 10 days from September 20th, 1939, but that he did not commence such drilling within the extended period, but before such time expired, on September 27th, 1939, defendant agreed in writing to again extend such time until October 7th, 1939; that plaintiff was not able to commence such drilling as had been provided for within the time alleged, but that before the expiration of the last extended period, on the Sth day of October, 1939, plaintiff procured from defendant another extension of time, to-wit: until November 20th, 1939, and such extension was agreed upon by defendant orally.

He further pleaded that with' the consent of defendant he took possession of the lands and dug and constructed a slush pit to be used in the commencement of the drilling of the well, and further alleged, that in order to procure part of the funds for the drilling of the well, it was agreed that plaintiff, with the assistance of the defendant, should sell part of the oil and gas lease to such persons as would buy same and that he found various prospective purchasers, some of whom are named by him. He then alleged that by reason of the time and efforts and money expended by him in good faith, the defendant is es-topped to deny the binding effect of the extensions of time made by him.

The defendant leveled a general demurrer to plaintiff's petition, and a special exception urging that the plaintiff’s petition shows that he is attempting to enforce a contract in violation of the statute of frauds.

The trial court sustained the general demurrer and such special exceptions and, plaintiff declining to amend, judgment was entered dismissing the suit. From this judgment plaintiff appeals.

In the beginning we desire to say that we are of opinion that the special exception referred to is no more than a general demurrer specifically calling the trial court’s attention to the fact that the cause of action as pleaded violates the statute of frauds, Art. 3995, R.C.S. In the case of Beaton v. Continental Southland Savings & Loan Ass’n et al., Tex.Civ.App., 101 S.W.2d 905, 908, writ dismissed, a situation was presented that is similar to the one before us and the court expressed our views, in the opinion, by saying: “This, though in the form of a special exception, is in effect a general demurrer and states the grounds on which the formal general demurrer was sustained, and presents, concretely, the issues of this appeal.”

Plaintiff’s petition having shown upon its face that the statute of frauds is a good defense thereto, it is vulnerable when attacked by a general demurrer. Such authorities as Stovall v. Gardner, 100 Tex. 25, 94 S.W. 218; Ickert v. Minor et al., Tex.Civ.App., 22 S.W.2d 741; International Harvester Co. v. Campbell, 43 Tex.Civ.App., 421, 96 S.W. 93; Adams v. Hughes, Tex.Civ.App., 140 S.W. 1163, writ refused, and Vol. 20, Tex.Jur. page 351, support our views. In this case the plaintiff endeavors to recover upon an oral agreement made subsequent to the execution of the written contract, and of necessity, such oral agreement sets forth a material modification of the written contract.

This contract shows on its face that time is of the very essense of the contract, and we do not believe that the time for performance of such a written contract can be extended orally, as is attempted in the case before us. Our conclusions are not in conflict with Hamlett v. Coates, Tex.Civ.App., 182 S.W. 1144; Sizemore v. Bowling’s Adm’r, Ky., 115 S.W. 737; Hammons v. Clwer, 59 Tex.Civ.App. 610, 127 S.W. 889; Bullis v. Presidio, etc., Mining Co., 75 Tex. 540, 12 S.W. 397; Baker v. Robertson et al., Tex.Civ.App., 163 S.W. 326; or with the principles announced in Vol. 20 Tex.Jur., at pages 301 and 344, cited by appellant.

Plaintiff may not rely upon any such oral modification. Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624, 118 A.L.R. 1505 (Com. of Appeals, opinion adopted by Sup.Ct.); Gulf Production Co. et al. v. Continental Oil Co., et al., Tex.Sup., 132 S.W.2d 553.

The demurrer is good against the plaintiff’s alternative plea.

Under a discussion of our statute of frauds, in Vol. 20 Texas Jurisprudence, page 329, the following quotation from Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116, 15 A.L.R. 216, is found: “From an early time it has been the rule of this court, steadily adhered to, that to relieve a parol sale of land from the operation of the statute of frauds, three things were necessary: 1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced. Payment of the consideration, though it be a payment in full, is not sufficient. * * * Nor is possession of the premises by the vendee. * * * Each of these three elements is indispensable, and they must all exist.”

The following recent cases reiterate the established rule: Ward v. Etier, 113 Tex. 83, 251 S.W. 1028; American Nat’l. Ins. Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161; Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624, 118 A.L.R. 1505 (Com. of Appeals, opinion adopted by Sup.Ct.).

In the case of Woods et al. v. Bost et al., Tex.Civ.App., 26 S.W.2d 299, writ dismissed, it is held that the building of a derrick and bunk houses, digging a slush pit and placing tools on the ground, did not constitute the commencement of a well as a matter of law, while in the instant suit appellant alleges only that he dug a slush pit.

Finding no error, the judgment of the trial court is affirmed.


author: MONTEITH, Chief Justice.

text:
    SOUTHERN UNION LIFE & CASUALTY CO. v. McKINNEY.
    No. 11085.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 9, 1941.
    Rehearing Denied Jan. 30, 1941.
    Gammage, Gammage & Bauer, of Houston, for appellant.
    J. W. Mercer, of Houston, for appellee.
   MONTEITH, Chief Justice.

This action was originally brought by ap-pellee, Joe McKinney, in the justice court of Harris County, to recover benefits under the terms of an accident insurance policy issued by appellant, Southern Union Life and Casualty Company. On appeal to County Court at Law No. 2 of Harris County, judgment was rendered in favor of appellee in conformity with the verdict of a jury on special issues.

The case was submitted to the jury on a charge consisting of twenty-three special issues, the first seven of which were submitted by appellee and the remaining sixteen by appellant. Before reading the charge to the jury, the court submitted copies thereof to counsel for both parties with the instruction that “they go back to their offices and prepare objections and exceptions thereto” with the understanding that such objections might be filed at a later date, no time limit being specified, and that they would be considered by the court as overruled as of that date. Judgment was rendered on February 2, 1940, the day before the expiration of the term of court at which the case was tried. On March 12, 1940, thirty-nine days after the entry of said judgment, appellant filed it.s objections and exceptions to the court’s charge. '

Counsel for appellant states in its brief that before the charge was read to the jury, he had orally pointed out to the court that said charge, as written, was duplicitous, repetitious and confusing; that it was a comment on the weight of the evidence and that he had specifically objected and excepted to certain of said special issues on the ground that they were duplicitous.

Counsel for appellee asserts in his brief that counsel for appellant did not except to the court’s charge or file any objections thereto before said charge was read to the jury.

In his order overruling appellant’s objections and exceptions to the court’s charge filed on March 12, 1940, the court stated that before said issues were submitted to the jury, in order to expedite proceedings, he had told counsel for both plaintiff and defendant to go back to their offices and prepare objections and exceptions to the charge and that they could be filed at a later date and considered as overruled as 'of the date of the trial. That on March 12, 1940, after the court’s term had ended on February 3, 1940, and more than 30 days thereafter, the appellant had presented its objections and exceptions to the court’s charge.

The controlling question presented in this appeal is whether, under the record presented, the objections and exceptions to said charge filed by appellant on March 12, 1940, were orally presented to the court at the trial and before said charge was read to the jury.

Article 218S, Vernon’s Annotated Texas Civil Statutes, expressly provides that all. objections to the court’s charge must be timely made and presented to the court before the charge is read to the jury and that all objections not so made and presented: shall be considered as having been waived..

While our courts have uniformly held that, under said Article 2185, all objections and exceptions to the court’s-charge are deemed to have been waived if they have not been presented to the trial court before the charge was read to the jury, our Supreme Court has expressly-held that under said article such objections may be made either orally or in writing- and that, when made orally, exceptions to the court’s action in overruling them may be preserved by a bill of exception, duly approved by the trial court. Rodgers v. Fleming et al., Tex.Com.App., 3 S.W.2d 77; 3 Tex.Jur., page 582, Section 408.

It follows that, under said article, the trial court is not permitted to grant to-counsel the privilege of preparing and-filing-objections and exceptions at a later date that have not been presented to the court on the trial of the case and prior to the reading of the charge to the jury. If for this reason objections are not presented to> the trial court prior to the reading of the-charge to the jury, they are deemed tO' have been waived.

In the instant case counsel for ap-pellee insists that no objections to the-charge were presented by counsel for appellant prior to the reading of the charge to the jury. The court, in his order overruling said objections, stated that he had instructed counsel to go back to their offices and prepare objections to said charge and file them later. Outside of certain formal recitations in the court’s statement which appear to have been embodied therein in conformity with the court’s understanding with counsel that said objections might be filed later and considered as overruled as of the date of the trial, there is no> affirmative showing in the record by the court, or otherwise, from which we may infer that said objections and exceptions were orally presented to the court prior to the submission of the charge to the jury. Under the record, this court must therefore assume, in favor of the judgment rendered, that said objections were either not urged orally prior to the submission of said charge, as claimed by appellant, or that the oral objections, if any were presented, did not so clearly present the objectionable features of said charge as to call the court’s attention thereto and thereby enable him to make the necessary corrections in the charge. Southern Underwriters et al. v. Boswell, Tex.Civ.App., 141 S.W.2d 442.

Since the judgment of the trial court could have been rendered on either of above theories, it is the duty of this court to sustain said judgment. Gribble v. Call, Tex.Civ.App., 123 S.W.2d 711; Liebman v. Buell Lumber & Mfg. Co., Tex.Civ.App., 67 S.W.2d 1043; First National Bank v. Burson, Tex.Civ.App., 63 S.W.2d 309; City of Amarillo v. Loden, Tex.Civ.App., 22 S.W.2d 969.

The judgment of the trial court will therefore be in all things affirmed.

Affirmed


author: BLAIR, Justice.

text:
    IMPERIAL UNDERWRITERS v. DILLARD.
    No. 8981.
    Court of Civil Appeals of Texas. Austin.
    Dec. 31, 1940.
    Rehearing Denied Jan. 15, 1941.

      Will R. Saunders, of Dallas, Simpson, Dorenfield & Fullingim, of Amarillo, and McCartney, McCartney & Johnson, of Brownwood (Claude Williams, of Dallas, of counsel), for plaintiff in error.
    Gib Callaway, of Brownwood, and Grindstaff, Zellers & Hutcheson, of Weath-erford, for defendant in error.
   BLAIR, Justice.

This case arose under the Workmen’s Compensation Laws, Vernon’s Ann.Civ.St. art. 8306 et seq., John Dillard, called appel-lee herein, was the employee; Brown Brothers, a partnership engaged in operating trucks as a contract carrier, was the employer; and Imperial Underwriters, herein referred to as appellant, was the insurer. This suit was to cancel a compromise settlement of appellee’s claim for $35, and to set aside the order of the Industrial Accident Board approving it. Appellee alleged that at the time he signed the settlement agreement he did not know what he was doing and was not mentally competent at the time to • transact business. Upon the jury’s answers to special issues, finding in substance that appellee did not know or understand that he -was settling his claim for compensation, and that he was so mentally incapacitated that he did not know or understand the nature or effect of the release which he signed, judgment was rendered cancelling and setting aside the compromise settlement and the order of the Board approving it; hence this-appeal.

Seventeen propositions are presented by appellant which assert that the trial court erred in the following matters

1. In the manner of placing the burden of proof.

2. In permitting improper argument of counsel for appellee.

3. In so framing a special issue as to charge upon the weight of the evidence or to assume facts.

4.In failing to set aside the findings of the jury to several special issues because unsupported by or contrary to the great preponderance and overwhelming weight of the evidence.

The preliminary charge or instruction of the court reads as follows:

“This cause is submitted to you upon special issues, or questions, your answers to which will constitute your verdict herein. You will answer each and all issues submitted from the preponderance of the evidence admitted before you, and your foreman will sign each answer made. You will not discuss or consider any matter or fact not in evidence before you, nor will you discuss or consider the legal effect or result of any answer, but determine solely what you find and believe the facts to be from the preponderance of the evidence.
“ ‘Preponderance of the evidence’ means the greater weight of credible evidence.”

Each special issue was prefaced with the phrase, “do you find from the preponderance of the evidence,” and the jury was instructed to answer each issue “Yes” or “No” as it might find from the evidence. Each issue was so framed as to place the burden of proof on appellee to show the 'affirmative where an affirmative answer was required to establish his allegation, and to show the negative where a negative answer was required to establish ap-pellee’s allegation or claim.

Appellant contends that this manner of placing the burden of proof was confusing, conflicting, misleading, and that the jury would unconsciously place the burden of proof upon it to establish the negative of the issues submitted; and the case of Gulf States Utilities Co. v. Moore, 129 Tex. 604, 106 S.W.2d 256, is cited as being “a typical white horse” case. We do not so regard it, because the special issues therein submitted were not prefaced with, “Do you find from the preponderance of the evidence,” and the general charge instructed the jury to answer all special issues from a preponderance of the evidence, which was defined to mean “the greater weight of the credible testimony before you.” The general charge in the instant case specifically instructed the jury to answer “each issue” from a preponderance of the evidence, defined preponderance, and then each issue was prefaced with the phrase, “do you find from the preponderance of the evidence,” and each issue was so framed as to place the burden of proof on appellee to show the affirmative of the issue where an affirmative answer was required to establish his allegation, and to show the negative of the issue where a negative answer was called for to establish appellee’s allegation or claim. An entirely similar case is that of Seinsheimer v. Burkhart, Tex.Civ.App., 93 S.W.2d 1231, wherein the Court of Civil Appeals overruled similar contentions to those made by appellee here; and in reviewing the case (132 Tex. 336, 122 S.W.2d 1063, 1065) the Supreme Court, speaking through its Commission, stated that, “We * * * approve the holding of the Court of Civil Appeals on the question of burden of proof.”

One of appellee’s attorneys made the following statements to the jury:

“I want to discuss with you a few minutes the issues submitted to you -by -the court. It will be my purpose and object to undertake to assist you in understanding what the issues are as submitted to you, and so far as I may be able to do so some of the evidence- bearing upon these issues, and I will undertake to discuss with you and explain to you the theory of the plaintiff in this case, and the reason why we feel that you should answer these questions or issues submitted to you by the court in a certain way.”
“It is the theory of the plaintiff in this case that these issues should be answered, all of them yes except the last two, and that those two should be answered no.”

These statements were objected to as being tantamount to telling the jury the effect that their answers would have upon the judgment to be rendered. We do not sustain this contention.

The effect of the argument was that from the evidence it was the theory of ap-pellee (plaintiff) that certain issues should be answered “Yes” and others “No.” No reference was made as to what judgment should or would be rendered on the jury’s answers. Argument of counsel would be worthless unless he could discuss the evidence from his client’s viewpoint, and the rule is settled that “for counsel to request the jury to answer certain issues ‘Yes’ and other issues ‘No’ is not objectionable.” 41 Tex.Jur. 1203, § 341, and cases there cited.

Counsel for appellee made the following statements to the jury:

“I believe I know enough about human nature, and I believe you do too, to know that those boys would not have walked out and called the nurses if that boy was not having a fit. That would have been ridiculous, but possibly the nurses were busy, or for some other reason—or maybe the insurance man had been around there or given them chewing gum of for some other good reason, they did not go immediately, and he was over the fit when they got there.”
“The nurses say we were down on the second floor and we heard a noise or disturbance on the third floor, and the first young lady says, when I heard that noise I went up and looked around in all of the rooms and finally I went • into Dillard’s room and found him laying on the floor in his night gown, and I spoke to him, and did you notice that it took me an hour to get her to admit it. That was the best coached witness, and the most anxious to serve the side she was sticking up for that I ever saw on the witness stand—.”

Appellant objected upon the grounds that there was. no evidence on which the statements could be based and that same were improper and prejudicial. As to the first statement, counsel, upon the objection being made, stated, “I did not say that they did,” and to the second objection counsel went over several questions he had asked several of the nurses, and their reluctance to answer them. The court made no ruling on these objections and no motion was made to instruct the jury to disregard them.

We do not regard the argument as of such inflammatory nature that an instruction to the jury would not have prevented any injury, if such argument was improper. St. Louis, S. F. & T. R. Co. v. Green, Tex.Com.App., 37 S.W.2d 123.

Counsel for appellee made the following statement to the jury:

“Major talked about his sympathy, and gave us all these eulogies to mothers and to doctors. That is fine. But if he wants to put a little of it in practice let him practice it in this case. Why don’t he pay something - here to this unfortunate boy that he admits- is probably totally and permanently disabled and with three lawyers here to protect his company, trying to hide behind a smoke screen of three lawyers—
“Mr. Simpson: We object and except to that argument just made.
"Mr. Zellers: I am just replying to him.
“Mr. Simpson: Trying to hide behind a smoke screen with three lawyers—
“Mr. Zellers: If that smoke screen is prejudicial take it out.
“The Court: Gentlemen of the jury, you will not consider that argument.”

We regard the court’s instruction to the jury to disregard the argument as effective, and overrule the contention of appellant that it was of such harmful nature that it could not be cured by the instruction. Texas & P. R. Co. v. Gillette, Tex.Civ.App., 100 S.W.2d 170; Collin County Motor Co. v. Howard, Tex.Civ.App., 121 S.W.2d 460.

The court submitted to the jury an issue to determine whether at the time appellee signed the release of his claim he “was so mentally incapacitated that he did not know and understand the nature and effect of the' instrument he was signing.” Appellant objected to the issue as being upon the weight of the evidence and as assuming the existence of mental incapacity. We do not so regard the issue. Ap-pellee alleged that he was so mentally incapacitated at the time he executed the release that he did not know or understand the nature of the instrument. It seems to be appellant’s contention that two issues -should have been submitted, first, whether appellee was suffering any mental incapacity; and, second, whether such mental incapacity was of such degree as to render him unable to know or understand the nature of the instrument he was executing. The issue submitted simply required the jury to determine mental incapacity in relation to the act of executing the release, which was the ultimate issue involved under the pleadings and evidence.

The remaining questions relate to the contentions of appellant that the jury’s answers to the various special issues and the judgment based thereon are not supported by or are contrary to the great weight and preponderance of the evidence. The evidence relating to the issues involved was conflicting and the jury’s findings were supported by sufficient evidence.

Briefly, it was the case of appellee that the compromise agreement and the release of appellee’s claim were made and executed at a time when he was suffering from injuries which rendered him so mentally incapacitated that he did not know or understand what he was doing. The evidence showed that he was thrown from a truck which overturned on the highway, falling on his head and causing injuries to the 4th cervical vertebra and to the left traverse process of the 7th vertebra. A few hours after the accident he was seized with a convulsion or fit; that the following day and night he had numerous fits, and while in a hospital at Rising Star he had eighteen fits one night. He stayed in that hospital about a week and sedatives were given him which helped his condition. The day following his return home, he was sent to the hospital at Brownwood, where he stayed another week; and his brother testified that he had fits while there, and he was given sedatives the day before he made the compromise agreement, and he left the hospital the day he made the agreement and was paid the $35. At home that night he was seized again with fits, and while there an agent of appellant secured his signature to the release, which was five days after the compromise agreement and after he had been paid the $35. He was then sent back to the hospital for a week, and on two occasions was heard to fall out of bed, and was found lying on the floor by the nurses. He testified that he had some recollection of signing some sort of paper, but did not know what it was; that he had no recollection of many things that transpired during the 22 days after his injury. Afterwards, he was examined by a physician whom his brothers selected, who took a history of the case and a written laboratory report and X-ray pictures, and made a thorough physical examination of appellee, and from which he was of the opinion that the fits or convulsions, which continued to the date of the trial although they were less frequent because of medicines and diet given, were the result of the injuries to his vertebra. He further testified that one so suffering might sign the papers and have no recollection of doing so; and that from the history of appellee, his X-ray pictures, the laboratory report, and his examination of appellee, he was of the opinion that he was mentally unsound, and that it was entirely possible for him to have executed the instrument without knowing what he was doing, and without any recollection of having done so. He further testified that appellee was suffering of petit mal or grand mal, which meant epilepsy, which in his opinion was caused by the injuries to his vertebra.

We find no error requiring a reversal of this case, and the judgment of the trial court is affirmed.


author: MURRAY, Justice. NORVELL, Justice. SMITH, Chief Justice.

text:
    McCOLLUM EXPLORATION CO. et al. v. REAUGH et al.
    No. 10748.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 25, 1940.
    Rehearing Denied Jan. 15, 1941.
    Strickland, Ewers & Wilkins and R. D. Cox, Jr., all of Mission, and Baker, Botts, Andrews & Wharton and Gaius G. Gannon, all of Houston, for appellants.
    B. D. Kimbrough, of McAllen, for ap-pellees.
   MURRAY, Justice.

This suit was instituted in the 92d District Court of Hidalgo County, Texas, by G. O. Reaugh, W. T. Reaugh, Isabelle R. Lambert, joined by her husband, G. I. Lambert, and Edith R. Cowgill, joined by her husband, I. M. Cowgill, as plaintiffs against McCollum Exploration Company, a private corporation, R. E. Harding, W. .A. Harding and M. P. Lackland, seeking to remove cloud from title to two tracts of land situated in Plidalgo County; one containing 42.33 and the other 5.04 acres of land. Plaintiffs also sought to recover special damages in the sum of $10,582.50 and exemplary damages in the sum of $10,-000.

The cause was submitted to a jury and • upon their answers to special issues judgment was rendered in favor of all the plaintiffs and against all of the defendants except M. P. Lackland, removing the cloud from the title and allowing actual damages in the sum of $10,582.50 and exemplary damages in the sum of $5,000, from which judgment the defendants have appealed.

The first question raised relates to the measure of damages applied in determining the amount of actual damages sustained by appellees as a result of the cloud cast upon their title to the 42.33-acre tract by appellants. Appellees were offered a cash consideration of $250 per acre, together with other valuable considerations, for an oil and gas lease upon the 42.33-acre tract, which they were unable to accept due to the fact that appellants had recorded a purported oil and gas lease on this tract signed by G. O. Reaugh and W. T. Reaugh and which appellants refused to release. Appellees recovered the full amount of this offer without deducting anything for the present value of such a lease.

This controversy arose in the following manner: Prior to any of the happenings herein involved, G. O. Reaugh and his wife were owners of the two tracts of land above referred to. Mrs. Reaugh died and her one-half interest was inherited by her three children, W. T. Reaugh, Isabelle R. Lambert and Edith R. Cowgill. McCollum Exploitation Company desired to secure a number of oil and gas leases in the vicinity of the Reaugh property. It employed R. E. Harding to secure these leases for it, with the understanding that the leases were to be taken in the name of R. E. Harding and by him assigned to McCollum Exploration Company, or to any one else that the company might designate. It was further understood that W. A. Harding was to do the actual work of assembling the block of leases. M. P. Lackland was a notary public in Hidalgo County and supposedly took the acknowledgments of G. O. Reaugh and W. T. Reaugh to the oil and gas lease herein challenged as being invalid.

W. A. Harding undertook to secure a lease upon the Reaugh tracts of land. After some negotiations a lease was prepared in which G. O. Reaugh and his three children, together with the husbands of the daughters, were named as lessors and R. E. Harding as lessee. The carbon copy of this lease was signed by G. O. Reaugh and W. T. Reaugh in the presence of M. P. Lackland, but, according to appellees’ contention, no acknowledgment was to be executed to the instrument until all named lessors had signed. The carbon copy was delivered to Harding and the ribbon copy retained by the Reaughs for the purpose of having the other lessors execute the same. The consideration for the lease was to be $5 per acre and other valuable rights. A check for the $5 per acre was delivered to the Reaughs at the time the carbon copy of the lease was delivered to Harding. The other lessors failed to execute the lease, so Lackland placed an acknowledgment on the carbon copy and it was recorded. The Reaughs demanded a release of this instrument, which was refused. They informed W. A. Harding that they had an opportunity to lease their property for a much larger consideration than Plarding was paying, but that they would not be able to do so unless they could secure a release of the. instrument he had placed of record. Nevertheless, Harding refused 'to execute any release.. The amount of the damage sustained by ap-pellees was not submitted to the jury, but apparently the trial court agreed with the contention of appellees that they had lost their opportunity to lease their land to one John Lynes for a cash consideration of $10,582.50 as a result of the failure of appellants to release the alleged invalid lease, and this was the amount of their damage, without reference to the present value of the lease. There was evidence that leases in the neighborhood of the Reaugh land were worth, at the time of the trial, from $400 to $600 per acre. Appellants complained because this phase of the matter was not submitted to the jury, so it becomes apparent that if the present value of the lease is to be taken into consideration in arriving at the amount of damage, there is error in the record.

The rule seems to be well established that in a suit of this nature a recovery can only be had for special damages as distinguished from general damages. Newell on Slander and Libel, § 229 ; 37 C.J. 134; 17 R.C.L., Title Libel and Slander, § 216; Burkett v. Griffith, 90 Cal. 532, 27 P. 527, 13 L.R.A. 707, 25 Am.St.Rep. 151.

The question to be decided is, What is the proper measure of the special damages ? Appellees contend that the measure of damages is the value of their bargain which they lost, and that the value of their bargain was the price offered for the lease without reference to the value such a lease might have at the time of the trial. Appellants contend that the proper measure of appellees’ special damages is the price offered for the lease by Lynes less the value of the lease at the time of the trial. The evidence strongly indicates that the lease had increased in value rather than decreased, and this being so it would seem that appellees were actually benefited rather than damaged by appellants’ refusal to execute the release.

There seems to be no case directly in point in this State. We are cited by ap-pellees to Thuss on Oil and Gas, 2d Ed., page 308, where it is stated: “A party refusing to execute a release (of a deed of trust actually discharged by payment of the debt secured) having notice that the owner of the land was endeavoring to market his lease, is made fully aware of' the consequences to follow a refusal to-release the lien. When it appeared the lease could have been executed in consideration of $1,500 such amount is reasonable as special damages for the injuries resulting from the unwarranted refusal to release the lien. Knox v. Farmers’, etc., Bank [Tex.Civ.App.] 7 S.W.2d 918 (Writ Refused).”

This statement is shown to be based upon Knox v. Farmers’, etc., Bank, Tex.Civ.App., 7 S.W.2d 918. A careful consideration of this case discloses that it was a case in which a general demurrer had been sustained to plaintiff’s petition. The petition is set out in full in the opinion, and when all inferences and intend-ments are given to the allegations of the petition it is alleged, in effect, that the lease there described had become worthless at the time of the trial. The question as to the proper measure of damages was not raised and the court was not called upon to pass upon this matter.

We are also cited to the case of Humble Oil & Refining Co. v. McLean, Tex.Civ.App., 268 S.W. 179, 187, where it is stated : “Appellee’s measure of damages was the loss of his bargain, and his bargain was $750 per acre and an overriding royalty of 3/28.”

This isolated statement when taken alone would seem to bear out appellees’ contention, but when the entire case is considered we find that in that case the lease at the time of the trial was worthless. This being true naturally the $750 per acre and the overriding royalty of three twenty-eighths would measure the damages sustained. We quote from page 182 of 268 S.W. as follows: “The wells that were being drilled on the 5th day of June, 1920, soon showed that appellee’s lease was, in fact, entirely without value as oil-producing property, and it, together with all the surrounding land, was ábandoned and not further developed.”

It occurs to us that whether special damages or general damages are to be determined, the proper method is such a measure as would compensate for the loss or prejudice suffered. In 13 Tex.Jur. p. 75, under title of damages, it is stated: “One who has suffered injury or damage is held to be entitled to recover as nearly as possible compensation for the loss or prejudice which he has suffered. The purpose of the law in awarding actual damages, is to remove the wrong that has been done, or to compensate for the injury inflicted, but not to impose a penalty; and the cardinal principle, and only inflexible rule in this respect is that the person injured shall receive a compensation which is commensurate with his loss or injury and no more. Any method of calculation which will afford to the injured party more than just and reasonable compensation cannot be considered the correct measure of recovery.”

Not finding any case directly in point we reason by analogy from similar cases. In 13 C.J.S., Carriers, § 229, 458, it is said: “Where * * * goods are contracted to be sold at a fixed price and to be delivered at a particular place, and the carrier undertakes the transportation thereof, with full notice that the goods are to be sold and forwarded seasonably, the consignor will be entitled to recover the difference between the contract price and the value of the goods when actually delivered, if by reason of unreasonable delay in transportation he loses the sale; under these circumstances, the undertaking is special and the loss and liability are special.”

In Gulf, C. & S. F. Ry. Co. v. Coulter, Tex.Civ.App., 139 S.W. 16, 20, it is said: “Assuming that Coulter had a contract with Eby for the sale of the goods, that he had given sufficient notice to the plaintiff in error’s agents at Ft. Worth at the time of the shipment to charge the plaintiff in error with liability for such special damages as might result from the loss of his contract with Eby, and assuming, further, that the goods arrived at their destination in a damaged condition due to' the fault of the carrier, and that by reason of that fact the sale to Eby was lost, the measure of the defendant in error’s damages would be the injury he sustained by reason of the loss of that contract of sale. In other words, his damages would be the difference between the value of his goods in their damaged condition at the time they reached Philadelphia and the value of his contract with Eby. Deming v. Railway Co., 48 N.H. 455, 2 Am.Rep. 267; St. Louis, I. M. Ry. Co. v. Mudford, 48 Ark. 502, 3 S.W. 814; 3 Hutch, on Carriers, § 1367.”

Applying the same general principles as above stated, the proper measure of damages in the case at bar would be the price offered by Lynes less the value of a a lease on the tract at the time of the trial. The fact that the cloud had not been removed from appellees’ land at the time of the trial would be one of the elements to be taken into consideration' in determining; the present value of the lease. We sustain appellants’ first, second and third propositions.

Counsel for appellees, in his opening argument, stated to the jury in effect that inasmuch as the McCollum Exploration Company was a corporation with capital stock valued at $500,000, it should be required to pay more exemplary damages than a person without wealth. Such an argument has been held to be improper argument and such error as would require a reversal of a case. Willis & Bros. v. McNeill, 57 Tex. 465; Texas Public Utilities Corporation v. Edwards, Tex.Civ.App., 99 S.W.2d 420.

Counsel for appellees contends that such argument was based on facts in the record and made in anticipation of an argument which he conceived was going to be made by counsel for appellants. The argument cannot be condoned for these reasons.

We will not attempt to discuss each proposition because many of the questions raised will not arise, in all probability, upon another trial. However, there is one other matter we wish to discuss, which relates to the permitting of Mesdames Cow-gill and Lambert to recover for the casting of a cloud or the slandering of the undivided two-sixths interest in the 42.33-acre tract owned by them. The alleged invalid lease contained the names of Mesdames Cowgill and Lambert, as lessors, but also disclosed that they had not signed or acknowledged the same. Appellants did not assert any claim whatever to the two-sixths undivided interest in the tract owned by Mesdames Cowgill and Lambert. It is true that Lynes would not lease the tract unless he could secure a lease on all interest, but this fact in itself is not sufficient to justify a recovery on the part of Mesdames Cowgill and Lambert for clouding the title to their two-sixths interest in the land, when in truth and in fact the title to their interest had not been .clouded.

The judgment is reversed and the cause remanded for ano&er trial.

NORVELL, Justice.

I concur in the 'order reversing this cause. The “value of the bargain’’ is not to be measured alone by the price offered by John Lynes to appellees for an oil and gas lease upon the property. The effect of a favorable judgment upon the cause of action pleaded by appellees would be to-' clear the seven-eighths mineral interest (and this is what Lynes offered to buy)' of the claims of appellants. If this seven-eighths mineral interest has any value at the time of the trial, it must be taken into consideration in arriving at the amount of damages. This interest was not shown to be worthless upon the trial and the presumption is that it has some value. I do-not agree with the majority holding that in arriving at the value of a seven-eighths, mineral interest, the fact that it is burdened by an outstanding “spurious” lease-should be considered. As above pointed out, the effect of a judgment, in the event appellees are successful, will be to remove the cloud cast on the title by said lease-'We should not anticipate that another appeal will be taken from a judgment which might be rendered in the future. It may be that in the event of such an occurrence appellants would have a further complaint, if such appeal resulted in damage to them-because of its effect in continuing the cloud upon appellants’ title. The question of the availability of such a remedy upon a set of hypothetical facts which may never have an actual existence is obviously not before us in this case.

I am further of the opinion that evidence of the value of oil and gas leasehold' estates upon lands in the • vicinity of the-property here involved is admissible upon the issue of value, provided of course such evidence is pertinent under the recognized rules of evidence.

SMITH, Chief Justice.

I concur in reversal. I think the true measure of appellees’ damages is the difference, if any, between the amount of the alleged bargain offered them and the market value, at the time of the trial, of an oil and gas lease on the land while burdened with the outstanding spurious lease.. As I understand the record, however, there was not sufficient evidence to support a finding of the present lease value of the land so burdened, or that it had no value in its present status. The true measure of damages,' therefore, was not established.

Incidentally, I do not think testimony of the lease value of lands in the same vicinity was admissible as tending to establish the measure of damages unless such nearby lands were shown to be burdened with an existing lease such as that'which clouded! appellees’ title.


text:
    SMITH et al. v. W. T. CARTER & BRO. et al.
    No. 3589.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 24, 1940.
    Rehearing Denied Oct. 9, 1940.
    Jos. W. Moore, of Houston, Clem Fain, Jr., of Livingston, and Bryan, Suhr, Bering & Bell, of Houston, for appellants.
    Baker, Botts, Andrews & Wharton, of Houston, and M. M. Feagin, of Livingston, for appellees.
   O’QUINN, Justice.

This is an appeal from an order of the Special Ninth District Court of Polk County, Texas, overruling pleas of privilege filed by appellants therein.

W. T. Carter & Brother, a co-partnership composed of individuals, some " of whom reside in Harris County, Texas, and others in Hayes County, Texas, and B. E. Quinn, who resides in Jefferson County, Texas, filed this suit in Polk County, Texas, against R. E. Smith, Chas. B. Gholson, Thos. M. Sessums, and Earl Short, all of whom reside in Harris County, Texas, and E. B. Sullivan, alleged to be a resident of Nueces County, Texas, but who, it appeared, was a resident of New Orleans, Louisiana, to recover certain land situated in Polk County, and damages for slander of title to said land.

Appellants Short, Gholson, Sessums, and Smith duly filed pleas of privilege to be sued in the county of their residence, Harris County, Texas.

Appellees duly filed their controverting affidavits incorporating their first amended original petition therein by reference, and adopting all the allegations in said petition, and alleged venue in Polk County under Section 14 of Article 199S, R.C.S. 1925, for in that: (a) the suit was for the recovery of land or damages thereto, which land was situated in Polk County; and (b) the suit was one for the recovery of damages to land located in Polk County, Texas; and (c) the suit was one fo'r trespass committed in Polk County, as permitted under Section 9, Article 1995.

Hearing on the pleas of privilege was set for and heard on June 1, 1939. On the hearing, in support of their right to maintain the suit in Polk County, appellees offered their first amended original petition, which had been incorporated by reference into the controverting affidavits, and an agreement by the parties that the land involved in the suit was situated in Polk County, Texas.

Appellants assign error against the judgment as being without sufficient support in the evidence, for in that appellees offered no evidence to support their controverting affidavits, hence the court erred in overruling the pleas of privilege.

The pleas of privilege being in proper form and sufficient in content, and properly verified, were prima facie proof of the facts therein stated, and entitled appellants to be sued in the county of their residence, Harris County, unless ap-pellees controverted such facts by affidavit and by evidence establishing the existence of the facts constituting the exception -to the general venue statute claimed. Cumming v. Chilson, Tex.Civ.App., 265 S.W. 1099. In other words, appellees, in order to sustain their right to maintain the suit in the county where it was brought must both plead and prove the facts conferring venue in that county. Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S.W. 550; Ottis Compton v. R. A. Elliott, 126 Tex. 232, 237, 88 S.W.2d 91; Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S.W.2d 495. Ap-pellees introduced their first amended original petition. This merely showed the nature of their suit. It was not evidence of the existence of any fact therein alleged. Texas Mut. Reserve Life Ins. Co. v. Ormand, Tex.Civ.App., 115 S.W.2d 776; World Company v. Dow, 116 Tex. 146, 287 S.W. 241.

As the case will be reversed and remanded for another trial, we think it proper to make the following suggestions: Appellees alleged that they were the owners in fee simple of the land involved and that appellants entered upon the land and committed certain depredations and' trespasses, and there was a prayer for judgment for the title and possession of the land but there was no allegation that appellants ousted appellees from the possession of the land. There being a controversy between the parties as to the nature of the suit, it being insisted by appellees that the suit is one in trespass to try title to the land and for damages to the land, and this contention being disputed by appellants, they contending that the suit is not one of trespass' to try title, but one for damages because of alleged slander of title, we suggest that ouster should be alleged. Appellees also alleged that appellants entered upon the land and cut down and destroyed a large number of valuable trees growing on the land, but did not allege either the number nor the value of said trees. We think this should be alleged. Appellees also alleged the cutting and destroying of corner trees and line trees belonging' to and identifying the true location of the land. No specific damages are alleged by these acts. This too should be specifically alleged.

We think it proper to state, as the case will have to be retried, that after careful consideration of the various items of damages alleged to have been caused by. appellants to the land in question, and without an extended discussion of the question, we have concluded that the damages asserted to have grown out of the alleged slander of appellees’ title to the land, will not sustain venue in Polk County for the reason that such damages do not constitute damages to the land within the meaning of Section 14 of Article 1995, Vernon Civil Statutes of 1925. Knight v. Houston & Texas Central Ry. Co., 93 Tex. 417, 55 S.W. 558; Ross v. Paine, Tex.Civ.App., 88 S.W.2d 736, writ dismissed.

The judgment is reversed and the cause remanded.


author: MURRAY, Justice.

text:
    SELIG CO. v. CITY OF PORT ISABEL.
    No. 10850.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1941.
    Clarence S. Bennett, of Brownsville, for appellant.
    H.L. Faulk, of Brownsville, for appel-lee.
   MURRAY, Justice.

In this case neither appellant nor appel-lee has filed briefs; it therefore becomes our duty to dismiss the appeal for want of prosecution, and it is so ordered.