author: SMITH, Chief Justice.

text:
    MACIAS v. MACIAS.
    No. 10865.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 5, 1941.
    Rehearing Denied March 5, 1941.
    E. P. Lipscomb, of San Antonio, for appellant.
    Frank Alvarado, of San Antonio, for ap-pellee.
   SMITH, Chief Justice.

Luz Macias brought this action in trespass to try title against Augustin Macias to recover title and possession of two city lots in San Antonio. Upon a trial before the court without a jury, judgment was rendered denying any recovery to Luz Macias, who has appealed. She will be referred to as plaintiff and Augustin Macias as defendant, as in the court below.

The case is well stated in the findings and conclusions of the learned trial judge, as follows :

“Findings of Fact.
“1. On the 17th day of March, 1924, defendant Augustin Macias entered into a contract to purchase Lots 4 and 5, in Bile. 8, C. B. 4047, in the Kenwood Addition to the City of San Antonio, Bexar County, Texas, with one Evaristo Espinoza and wife, Ce-saría Sanchez Espinoza, whereby defendant Augustin Macias promised to pay $180.00 as the purchase price of said land.
“2. Due to the fact that Augustin Macias did not know how to read or write, he entered into said contract through his agent and son, Cayetano Macias.
“3. Defendant, Augustin Macias, paid for said land the full sum of $180.00 with his own money. Cayetano Macias did not pay the purchase money for said land nor any part thereof.
“4. On the 30th day of December, 1924, a warranty deed to said land was executed by Evaristo Espinoza and wife, Cesaría Sanchez Espinoza, to Cayetano Macias.
“5. Said deed was made in Cayetano Macias’ name, due to the reason that Au-gustin Macias did not know how to read or write, and that all the business of said Augustin Macias was being carried on by his son and agent, Cayetano Macias.
“6. Defendant Augustin Macias took possession of said land 'on the 17th day of March, 1924, and retained the same peacefully and uninterruptedly until the date of the filing of the Plaintiff’s Original Petition herein, same being the 9th day of September, 1939.
“7. During the time defendant has been in possession of said land, he has erected a number of permanent improvements on said property; namely, a house, and has inclosed the same with a substantial fence, and has kept said house and improvements in constant repair.
“8. Defendant Augustin Macias, has managed and controlled said property continuously from the 17th day of March, 1924, up to the time of the filing of Plaintiff’s Original Petition herein, same being on the 9th day of September, 1939. During said time defendant Augustin Macias has attended to the renting of said property, and has collected all the revenues therefrom, and has paid all the State, County, City, and School taxes, as they have become due from year to year up to the year of 1940.
“9. Cayetano Macias, son and agent of the defendant Augustin Macias, was married to the plaintiff Luz Macias on the 20th day of July, 1924. They lived together as husband and wife until the 15th day of January, 1928, after which time they never lived together again. Cayetano Macias died on the 18th day of May, 1933.
“Conclusions of Law.
“1. Under the contract of purchase the defendant, Augustin Macias, was obligated and legally bound to pay the full purchase money for Lots 4 and 5, in Blk. 8, in C. B. 4047, in the Kenwood Addition to the City of San Antonio, Bexar County, Texas.
“2. The warranty deed from Evaristo Espinoza and wife, Cesaría Sanchez Espinoza to Cayetano Macias, conveyed a naked legal title to said Cayetano Macias. The equitable and beneficial title to said property was in Augustin Macias, and a trust resulted in favor of the true owner, Augustin Macias. Cayetano Macias had no interest in said property aside from being the holder of the naked legal title. His wife, Luz Macias, did not acquire any interest through her said husband in said land.”

Plaintiff does not challenge either of the specific findings of the trial judge, which we now adopt as the findings of this Court.

Plaintiff’s only assignment of error is as follows:

“The undisputed record in this case showing that plaintiff’s deceased husband was the record owner of the property involved in this suit, at the time of his death, acquired during the married life of plaintiff and deceased, and plaintiff and decedent never having been divorced, plaintiff, as his surviving widow, is entitled to the whole of said property, because her deceased husband was the owner’ of the property at the time of his death, there were no children born of said marriage, and it is elementary that a voluntary payment of the purchase price by the defendant, plaintiff’s father-in-law, would not give rise to a resulting trust in favor of such father-in-law; and there could be no title by limitation in favor of such father-in-law, defendant herein, because he took possession under a deed and contract conveying the property to his deceased son, the title of defendant, if any, being subservient to the paramount title of his deceased son, and there being no evidence that defendant ever repudiated the title of his deceased son; decedent having gone to the State insane asylum less than ten years prior to the filing of this suit, and having died at such State insane asylum less than seven years prior to the filing of this suit.”

The primary and vital difficulties of plaintiff’s contentions are that they rest upon assumptions which are refuted by the record and by the unchallenged findings of the trial judge.

The record and the trial court’s findings establish the ideal resulting trust, to wit, where property is bought in the name of one person, but wholly with funds furnished by another, or, as better stated by Judge Wheeler in an early case: “It is well settled, that, where one buys land with the money of another and takes the deed in his own name, a trust results in favor of the person whose money was employed in making the purchase. The latter is the equitable owner of the land; and the purchaser is a mere trustee and holds for the benefit of him who paid the purchase money.” McCoy’s Heirs v. Crawford, 9 Tex. 353, 357.

A more modern statement of the rule, supported by ample authority, is made in 42 Tex.Jur. p. 638: “While a court of law looks only to legal ownership according to the deeds evidencing title from the common source, equity keeps its eye on the consideration that passed and protects tKe party who furnished it. In other words, the beneficial estate follows the consideration and attaches to the person from whom it came. Where only part of the purchase money was contributed by the person whose name does not appear in the deed, his ownership extends to the proportion that his contribution bears to' the total price.”

The judgment is affirmed.


source: Caselaw Access Project

author: HALE, Justice.

license: Public Domain

text:
    CARADINE v. WACO YELLOW CAB & TRANSFER CO.
    No. 2272.
    Court of Civil Appeals of Texas. Waco.
    Jan. 30, 1941.
    Rehearing Denied March 6, 1941.
    J. W. Spivey and F. A. Craven, both of Waco, for plaintiff in error.
    Stansell Bryan, of Waco, for defendant in error.
   HALE, Justice.

Plaintiff in error, Mai Caradine, sued defendant in error, Waco Yellow Cab & Transfer Company in the Justice Court for the sum of $132, claimed to be due-him on account of labor performed, and for $20 attorney’s fees. Plaintiff recovered judgment in the Justice Court for $62.50, from which judgment defendant appealed to the County Court, where the case was tried before the court without a jury and resulted in a judgment in favor of defendant, and from which plaintiff has sued out writ of error to this court.

The transcript of the proceedings in the trial court does not show the pleadings of the parties, or any findings of fact or conclusions of law, or request therefor, or any motion for new trial. Only three assignments of error are contained in plaintiff in error’s brief, viz: (1) The court erred in not rendering judgment for plaintiff for the sum of $94, on account of salary earned from June 19, 1937, to December 11, 1937; (2) the court erred in not rendering judgment for plaintiff for the sum of $40, on account of salary earned from December 12, 1937, to April 30, 1938; and (3) the court erred in not rendering judgment in favor of plaintiff for' $20, attorney’s fees sued for.

Under the state of the record, we must presume that the trial court, in a proper exercise of ’the judicial powers vested in it, resolved every issuable fact in the case against the contentions of the plaintiff and in support of the .judgment rendered. Therefore, if, under any reasonable theory of pleadings, there was any issue of fact tendered by the evidence which was necessary and essential to support the recovery sought or that would constitute a defense to the cause of action which might have been alleged, it would be our .duty to overrule the assignments urged and to affirm the judgment of the trial court.

We have carefully examined the statement of facts, from which it -appears that the plaintiff-and four agents or employees of the defendant testified in the- case. There was evidence to the effect that plaintiff was on and prior to June 19, 1937, in the employ of defendant under a verbal contract of hire, by the terms of which plaintiff was receiving a salary of $12 per week; that on June 19, 1937, defendant prepared and submitted to its employees a written proposal as follows:

“Being faced with a shortage in the available cash with which to pay salaries and expenses, we have decided- rather than to cut salaries or commissions, we are going to offer you the alternative of accepting part of your salary in cash and part of it in payment of a share of stock in our company, Waco Yellow Cab & Transfer Company, a company incorporated under the laws of Texas. We would want to and do reserve the option to repurchase this stock at 100 cents on the dollar at any time the company finance will permit. We feel sure this condition we mention will not continue more than ninety days, at which time any employee who desires may receive all or as much of his current earnings as he desires.”

There was evidence that plaintiff accepted the written proposal aforesaid and from June 19th to September 19, 1937, the defendant paid to plaintiff each week the sum of $7 in cash and issued to plaintiff a receipt for $5 to apply on the purchase of company stock; that from September 20th down to December 11, 1937, weekly payments were made in cash to plaintiff of $10 per week and receipts issued each week for $2 to apply on the purchase of company stock; that thereafter plaintiff received $10 each week until the time he was discharged on April 30, 1938, without any receipts being issued to apply on the purchase of company stock. There was evidence sufficient to sustain a legal inference to the effect that the defendant had tendered to plaintiff a certificate of its stock in discharge of its obligation on the receipts which it had issued for the purchase of the company stock, and that the salary to be paid to plaintiff for his services from and after December 11, 1937, was to be only the sum of $10 per week.

Without attempting to set forth in further detail the evidence in the case, we are of the opinion that the same was amply sufficient to tender issues of fact determinative of liability and to sustain the implied findings of the trial court in support of its judgment denying to the plaintiff any recovery herein. Therefore, each of the assignments of error presented is overruled and the judgment of the trial court is affirmed.


author: BROWN, Justice.

text:
    HELMERICH-PAYNE, Inc., v. DEBUS.
    No. 14165.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 24, 1941.
    Rehearing Denied Feb. 28, 1941.
    Kilgore & Rogers and Ray Bland, all of Wichita Falls, for appellant.
    John Davenport and W. W. Ballard, both of Wichita Falls, for appellee.
   BROWN, Justice.

Appellee Debus was plaintiff below and appellant Helmerich-Payne, Inc., was the defendant.

Plaintiff sued the defendant'on the theory that its employees, without his knowledge or consent, in June, 1939, went into his pasture, consisting of 200 acres of grazing land, and tore down several panels of the four strand, wire fence that was built between his land and a pasture lying south of him, operated by a neighbor named Chamberlain, and having left the line fence down, certain of his livestock escaped through the gap and were lost.

The cause being tried to a jury, a special issue verdict was returned, in which the jury found: (1) That defendant’s employees failed to replace the south fence of plaintiff’s pasture, after they had unloaded the defendant’s pipe, (2) that plaintiff had stock in his pasture, (3) that some of plaintiff’s stock escaped from the pasture at the time of, or immediately after, defendant took the fence down, (4) that the stock escaped at the place where the fence was taken down, (5) that they would not have escaped if defendant’s employees had not taken the fence down, (6) that plaintiff failed to recover all of the stock that escaped, and (7) that the reasonable market value of such stock was $535.

The defendant requested a peremptory instruction in its favor, which the trial court refused to give.

Judgment was entered for plaintiff on the verdict for the amount found, and defendant has appealed.

Plaintiff, by his allegations, has brought suit on the theory that, if and when his cattle were allowed to escape through his south fence, they would range into open territory where they could stray as they pleased and be lost, but the undisputed facts disclose that, when his stock go through his south fence, they only go into the pasture operated by his neighbor, Chamberlain, who pastures cattle on the land south of plaintiff’s pasture.

On direct examination, the plaintiff testified that you go out of his pasture at the place where he alleges the fence was torn down into “Chamber’s pasture” (meaning 'Chamberlain’s) ; that he investigated to see whether or not his cattle were in Chamberlain’s pasture, that Chamberlain told him, “he drove up two head of cattle, and two mares, and two mules and a jack”, and he was asked: “State whether or not they have ever been found.” He answered: “No, sir, they’ve never been found.”

In detailing what stock got out of his pasture, plaintiff said: “Three yearlings and a heifer and four head of cattle, whiteface, one muley face,” and as to mules and horses : “Two mules and one mare.”

It appears from the evidence that plaintiff had had the pasture leased for about one year before his alleged cause of action arose.

When asked, on cross-examination, how many times his neighbors had told him his stock was out of his pasture, before the time he claims they escaped through the torn down place, he said Chamberlain had told him they were in his pasture three or four times.

When asked: “How many times has Charlie Ford come and told you your stuff was up at his house?” the plaintiff answered: “They weren’t at his house, they were on the highway.” The interrogating continues:

“Q. Charlie Ford never did tell you before this happened that your stuff was out and at his house?” Plaintiff answered: “Charlie Ford didn’t tell me, Frank Ford did.”
“Q. Haven’t you gone to Charlie Ford’s house when he had got your stuff back out of the highway before this took place?” Plaintiff answered: “Yes.”

The plaintiff testified that, prior to the occasion which brings about the instant suit he and Chamberlain took down a part of this south fence, so that his cattle and Chamberlain’s could drift back and forth in the two pastures to get water in Chamberlain’s and better grazing in his, but testified that the fence had been put back prior to the time he claims he lost his stock.

Charlie Ford, one of plaintiff’s neighbors, and a disinterested witness, testified that he was familiar with the fence around the Debus pasture and that “it was in bad shape” in June, 1939; that Debus’s stock had gotten out of the Debus pasture over on the north side and had come down the public road to Ford’s place and came into Ford’s field; that this had happened three or four or five times before the occasion plaintiff complains about, and that at one time plaintiff’s stock stayed in Ford’s field about two weeks; that this occurred in April or May, 1939.

Merle Chamberlain, another neighbor and disinterested witness, who operates the pasture south of the plaintiff’s pasture, testified that the fence between him and plaintiff is an old fence and “not much good”; that plaintiff’s cattle'have gotten out of plaintiff’s pasture and into witness’s on several occasions; that “at odd times they get in there and I run them back in his pasture.” This witness testified that his south fence “is bad”. He testified that he lost no cattle on the occasion in question.

The plaintiff testified that he talked to defendant’s employees, who had charge of the truck, while they were in his pasture; that he found cattle tracks at the place where the fence was torn down and that he hired a man to repair the fence the next day.

In the state of this record, it appears to us that the trial court should have given a peremptory instruction for the defendant.

Neither a verdict nor a judgment may stand when supported by slight testimony, the probative force of which is so weak that it only raises a mere surmise or suspicion of the existence of the fact that is sought to be established. Harris v. M.K.T. Ry. Co., Tex.Civ.App., 283 S.W. 895; Koenig v. Marti et al., Tex.Civ.App., 103 S.W.2d 1023, and cases cited in both opinions.

The testimony of the neighbors, Ford and Chamberlain, who are not shown to be interested witnesses, is strongly corroborated by the plaintiff, and this indisputably proves that plaintiff’s stock had theretofore escaped from his pasture on several occasions and that this was done by going through the fences which enclose the pasture.

According to plaintiff’s testimony, he found the defendant’s truck in his pasture at the time when the fence had been torn down for the truck to pass through his south fence, which separates his land from Chamberlain’s, and his cattle, if they had escaped at that time, had gone into Chamberlain’s pasture. He could not testify, for obvious reasons, that the tracks he saw at the broken spot were those of the cattle that he never recovered.

He did not build the fence back then, but waited until the next day to do so, neither did he testify that he immediately went over the whole of Chamberlain’s pasture to find the stock that had gone through the gap. According to the proof, his stock had gotten into Chamberlain’s pasture on several occasions, and he showed no concern for the possibility of their becoming lost.

We do not think that the testimony of Ford and Chamberlain can be disregarded, but we think it establishes the fact that the plaintiff’s cattle could have escaped from his pasture as easily through the fences where the defendant’s employees had not touched them as through the gap that was made for defendant’s truck, either before plaintiff found the gap or after he did so and left it in that condition until the next day. Koenig v. Marti et al., Tex.Civ.App., 103 S.W.2d 1023, writ dismissed, Freudenstein et al. v. Valley State Bank et al., Tex.Civ.App., 68 S.W.2d 567, writ' refused; Tucker Oil Co. v. Matthews, Tex.Civ.App., 119 S. W.2d 606.

The jury was, by the evidence adduced, left to a mere surmise or forced to take inference upon inference, before they could say that plaintiff’s stock were lost because of the gap that was made in the fence by defendant’s employees.

The trial court should have set the verdict aside and should have granted a new trial, when he failed to peremptorily instruct the jury for the defendant.

There may not be “an insurmountable obstacle to plaintiff’s right of recovery”, and we feel it our duty to reverse the judgment of the trial court and to remand the cause.

On Motion for Rehearing.

We have carefully reviewed appellee’s motion for a rehearing and see no reason why we should change our conclusions in this case.

Appellee testified that he went to the gap made in his south fence at a time which was very shortly after the defendant’s employees made the gap.

He said that the cattle escaping through that gap would go into Chamberlain’s pasture, which joins him on the south. He said that Chamberlain told him he drove up certain livestock belonging to appellee, and ap-pellee described them as: “2 head of cattle, 2 mares, 2 mules and 1 jack.” He then testified positively that he never recovered any of these animals. But appellee did not sue for the loss of the jack and only claims that he lost 1 mare.

For the purpose of showing that some of his cattle went from his pasture through the said break in the fence and into Chamberlain’s pasture, appellee testified that he saw the animals’ tracks; that these were tracks of “mules, horses, colts, cattle and cows.”

But appellee did not sue for the loss of any colt, or colts.

Appellee’s testimony shows that he did not attempt to locate his stock in Chamberlain’s pasture, after he discovered the fence was down and he saw the tracks, and it further shows that he made no effort to mend the fence until the next day.

In the light of his testimony, no jury could possibly say that the stock that were lost were those that went through the gap before appellee went there, or that they were stock that went through the gap after appellee left the place and before he mended the fence the next day.

Furthermore, no jury could say, in the light of the evidence, that the stock that were lost were lost solely because defendant’s employees made a gap in the fence that leads from appellee’s pasture to Chamberlain’s.

The testimony showed that appellee’s stock had been getting out of his pasture at other points on his fence line, and it showed that, on the occasion complained about, Chamberlain, into whose pasture ap-pellee says his stock went, lost no stock.

Mr. Justice Leddy, speaking for the Commission of Appeals, in Austin, Com’r, v. Neiman et al., 14 S.W.2d 794, 796, said: “In determining whether there is any evidence to sustain a finding, we must confine ourselves ‘within the field of evidence to the utmost bounds of reason which rational men of common sense might know without passing beyond the line between the field of probability and the field of conjecture.’ 23 C.J. p. 53, § 1795; Hollenback v. Stone & Webster Eng. Corp., 46 Mont. 559, 129 P. 1058; Lehane v. Butte Elec. Co., 37 Mont. 564, 97 P. 1038; Mickuczauski v. Plelmholz Mitten Co., 148 Wis. 153, 134 N.W. 369.”

The motion is overruled.


author: JACKSON, Chief Justice.

text:
    ALLIED STORE UTILITIES CO. v. HUNT, Judge, et al.
    No. 5347.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 27, 1941.

      Porter R. Underwood and Arthur Glover, both of Amarillo, for relators.
    M. Reynolds, of Shamrock, for respondents.
   JACKSON, Chief Justice.

This is an original proceeding in this court by the relator, Allied Store Utilities Company, a corporation, against the respondents, D. A. Hunt, County Judge of Wheeler County, and H. M. Burrow.

The relator seeks a writ of mandamus ordering the respondent, D. A. Hunt, to proceed to hear its motion to dissolve an ex parte temporary injunction alleged to be erroneously issued by said judge upon the application of respondent, H. M. Burrow, enjoining the relator and the sheriff of Wheeler County from executing an order of sale issued by the clerk of said county on a judgment for the sum of $411.44 with interest, cost and attorneys’ fees in Cause No. 1152 theretofore duly and legally obtained by the relator against the respondent H. M. Burrow in the County Court of Whee-ler County, Texas.

The respondents in a verified answer alleged that after the relator had obtained the default judgment in Cause No. 1152, H. M..Burrow on July 30, 1940, filed Cause No. 1165 in which he obtained a temporary injunction and sought to set aside such default judgment; that on August 23, 1940, with all parties present respondent D. A. Hunt heard and determined the motion of the relator to dissolve said temporary injunction and at such hearing vacated the default judgment and set Cause No. 1152 for trial on its merits at the next or October term of the County Court of Wheeler County; that at the October term, at the request of relator’s attorneys, the case was continued and is still pending on the docket of said court.

The respondents did not appear at the hearing in this court but relied on their answer and the record to defeat the application for the writ of mandamus.

The record discloses that the Allied Store Utilities Company as plaintiff instituted suit No. 1152 in the County Court of Wheeler County on December 20, 1939, against the defendant H. M. Burrow who was in default to recover a balance of $411.44 due the plaintiff by the defendant on an installment note with interest, cost and attorneys’ fees and to foreclose a chattel mortgage lien on personal property alleged to be of the value of $700 which was given as security for the payment of the debt. Citation was promptly issued and served on defendant Burrow but was. fatally defective because the clerk omitted from the citation the number of the suit. On January 22, 1940, an alias citation, regular and valid, was issued commanding the sheriff or any constable of Wheeler County to summon H. M. Burrow to be and appear at the next term of County Court in Wheeler County to be held at the court house thereof on the first Monday in April, 1940, which was the first day of the month, to answer plaintiff’s alleged cause of action. The alias citation was delivered to Elmo Boyles, constable of said county and duly served on defendant January 29, 1940. Thereafter, on April 12lh, the court rendered judgment reciting that defendant, though duly cited, had failed to appear or answer and wholly made default and that plaintiff’s claim was a liquidated demand and rendered judgment in his favor for the sum'of $411.44 with interest and attorneys’ fees and all cost of suit and for a foreclosure of the mortgage lien on the personal property described. The judgment directs that an order of sale shall issue to the sheriff or any constable of Wheeler County; that he seize and sell the property in satisfaction of the judgment according to the provisions of the statute. In July the clerk of the county court issued on the judgment a regular order of sale, delivered it to the sheriff, who, while attempting to ' levy on the property on which the mortgage was foreclosed, had served upon him a writ of temporary injunction applied for by H. M. Burrow and granted in chambers at an- ex parte hearing by D. A. Hunt, County Judge, on the allegations that the default judgment was void because the citation served upon him was fatally defective since the clerk omitted therefrom the number of the suit. As a meritorious defense he alleged the property for which the note and mortgage were given was worthless, pleaded a failure of consideration, and also asserted that he had a cross-action for damages against the Allied Store Utilities Company which he desired to prosecute against it.

On August 23, 1940, the Allied Store Utilities Company filed its motion to dissolve the temporary writ of injunction issued in Cause No. 1165; alleged proper service on H. M. Burrow by the alias citation; the validity of its judgment; denied the equities of the bill; but on the same day by agreement the hearing on the motion to dissolve was postponed and the case set on October 14, 1940, which was during the next term of court. The hearing was again postponed until the 16th when the Allied Store Utilities Company insisted on a hearing on its motion to dissolve but on the contention of H. M. Burrow the court denied such hearing and held that the motion to dissolve the temporary writ had been disposed of on August 23rd at the previous term of court and the default judgment set aside and Cause 1152 was still pending in his court for trial on the merits.

The relator by his verified application for the writ of mandamus, the record and the oral testimony offered before this court shows that no judgment was rendered or entered on the motion to dissolve the temporary injunction on August 23rd at the preceding term of court nor to set aside the default' judgment in Cause No. 1152, and we are of the opinion that the relator sustains his contention that no hearing was had on August 23rd but that the matter was postponed until the October term and set for October 16th by agreement on account of the attorney of respondents representing that he was interested in some friends who were seeking nominations at the primary election to be held on the next day,. August the 24th.

On October 29th after the court refused to hear the motion to dissolve the temporary injunction and which was after the July term of court and without a motion to enter a judgment nunc pro tunc, there is a purported judgment which recites that Cause No. 1165 was heard on August 23rd with all parties present and a decree rendered setting aside the default judgment in Cause No. 1152 and the case set for a hearing for the next or October term of the County Court of Wheeler County. The endorsement of the clerk shows that this judgment was not filed until October 29th during the October term.

It is obvious that the only basis for the temporary writ of injunction granted was the allegation in the petition therefor that service on H. M. Burrow in Cause No. 1152 was fatally defective since the clerk had omitted from the citation the number of said suit. There was and is no attack on the validity, the sufficiency or the service of the alias citation issued January 22nd, served on the 29th, upon which the judgment by default was rendered April 12, 1940. Since the record shows that there was no trial on August 23rd; that no judgment was rendered or entered at that time or at the July term of court; that the purported judgment in Cause No. 1165 filed on October 29, 1940, was at a subsequent term of the court; that no motion was made to have this judgment entered nunc pro tunc and no hearing has ever been had on relator’s motion to dissolve the temporary injunction, we are of the opinion that the writ of mandamus should be issued.

In Rouff et al. v. Boyd, District Judge, et al., Tex.Civ.App., 16 S.W.2d 403, it is held that courts can exercise their jurisdiction to hear and determine causes only at the time and place fixed by law and that the judge is not authorized to take a case under advisement and render judgment thereon at a subsequent term and the appellate court has authority to issue a mandamus to require the trial judge to set aside a judgment erroneously rendered at a subsequent term of court.

In Jones et al. v. Bass, 49 S.W.2d 723, the Commission of Appeals holds that an order granting a new trial after the expiration of the term at which the judgment was entered is wholly void.

See also Citizens State Bank of Frost v. Miller, County Judge, et al., Tex.Civ.App., 115 S.W.2d 1183; State et al. v. Ferguson, District Judge, et al., 133 Tex. 60, 125 S.W.2d 272.

The writ is granted, and respondent D. A. Hunt is commanded to proceed with the trial of the relator’s motion to dissolve the temporary injunction in due order and dispose thereof promptly and expeditiously.


text:
    HULTS v. FOWLER.
    No. 14068.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 31, 1941.
    Rehearing Denied March 7, 1941.
    Tuohy & Crager, of Fort Worth, for appellant.
    Arthur Haddaway, of Fort Worth, for appellee.
   BROWN, Justice.

At the request of the litigants, this cause was held on the submission table awaiting the decision of our Supreme Court in the case of Kadane v. Clark, 134 S.W.2d 448.

On October 2, 1940, the Supreme Court handed down its opinion and same is found in Vol. 143 S.W.2d 197. Motion for a rehearing has been overruled.

Appellee, in the instant case, sued appellant upon an oral contract, alleging that appellant agreed to pay him ten cents per acre for his services in obtaining for appellant oil and gas leases on certain lands in Kent County, Texas; that the leases were obtained by plaintiff and tendered to appellant but that appellant refused.to pay for same.

Appellant answered and specially defended on the ground that plaintiff cannot recover under the alleged contract because the plaintiff had not complied with The (Texas) Securities Act, Vernon’s Anno. Tex. Civil Statutes, Art. 600a, and had violated the provisions of Article 1083a, Vernon’s Anno. Criminal Statutes (Penal Code).

The cause was tried to a jury and among the issues submitted was this: “Do you find from a preponderance of the evidence that the plaintiff; Thomas Fowler, was a dealer in securities ?” The jury answered: “No”, and on this verdict, which, disposed of other issues not pertinent to this opinion, the trial court rendered judgment for the plaintiff and defendant has appealed.

The facts are undisputed. Appel-lee Fowler made no effort to comply with the statutes referred to and relied upon by appellant.

Under the broad and comprehensive opinion of the Supreme Court of Texas in Kadane v. Clark, 143 S.W.2d 197, appel-lee’s petition was vulnerable when tested by the general demurrer, and after the trial court heard the testimony and the admissions made by Fowler, an instructed verdict for the defendant should have been given.

We sustain the first assignment of error.

Appellee has requested that he be given the privilege of filing supplemental briefs, in aid of his original briefs, and we have granted such right.

In his briefs, appellee asserts that he here relies upon the third counter proposition urged in his original brief and the seventh counter proposition found in his supplemental brief.

The first proposition relied upon urges that the evidence is undisputed that defendant agreed to pay plaintiff ten cents per acre for “getting the leases”, and that, therefore, plaintiff was contracting to negotiate a purchase for defendant, and that it is only sales, not purchases, that are condemned by the “Securities Act”.

The other proposition is: “The defendant’s plea of illegality, contained in his answer, is insufficient in law, and his proof also failed to establish illegality. The burden of proof of illegality, being entirely upon the defendant, not having been discharged, the plaintiff is entitled to recover for the agreed price of his services.”

We will discuss the last proposition first.

The plaintiff urged only a general demurrer to the. defendant’s answer, and we are of opinion that the answer is sufficient to raise the issue of the illegality of the contract, as measured by the said Texas Securities Act, when tested by the general demurrer.

In the instant case, appellee endeavors to show a distinction between the facts here and those found in the Kadane v. Clark case, supra, and the first proposition relied upon urges that the appellant agreed to pay appellee ten cents per acre for “getting the leases” for appellant; that in this case the appellee was simply employed by the appellant to negotiate for appellant purchases of oil and gas leases from owners of the land.

Mr. Justice Sharp, in disposing of the issues raised in the Kadane-Clark case, supra, quotes Section 30 of the Securities Act, Vernon’s Ann.P.C. art. 1083a. See 143 S.W.2d at pages 198, 199.

This act declares that: “Any dealer, agent, salesman, principal, officer, or employee, who shall, within this State, sell, offer for sale or delivery, solicit subscriptions to or orders for, dispose of, invite offers for, or who shall deal in any other manner in any security or securities, without being registered as in this Act provided, or who shall within this State, sell, offer for salé or delivery, solicit subscriptions to and orders for, dispose of, invite orders for, or who shall deal in any other manner in any security or securities issued after the effective date of this Act without having secured a permit as herein provided * * * shall be deemed guilty of a felony, etc.” Vernon’s Anno. Penal Code, Art. 1083a, Sect. 30.

In the light of the holding and interpretation given by our Supreme Court, we are unable to see how any “agent” of another, any “salesman” or any “solicitor”, it matters not by whom he is employed, can make a valid contract to “deal in any other manner in any security or securities”, as defined by. the act, without complying with the provisions of the act, unless he can come squarely within the exceptions provided for in the act.

We are of opinion that appellee’s contract with appellant must be measured by the terms of the Securities Act and, using such yardstick, it becomes our duty to reverse the judgment of the trial court and to here render judgment for appellant. It is so ordered.


author: RICE, Chief Justice.

text:
    PEACOCK et al. v. MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS.
    No. 2292.
    Court of Civil Appeals of Texas. Waco.
    Feb. 13, 1941.
    Rehearing Denied March 6, 1941.

      Walter L. Wray- and J. F. Rose, both of Hillsboro, for appellants.
    Ñaman, Howell & Boswell, of Waco, and Sam H. Allred, of Hillsboro, for appellee.
   RICE, Chief Justice.

This suit was instituted by appellants, Mrs. B. H. Peacock, et al., herein styled plaintiffs, against Missouri-Kansas-Texas Railroad Company, appellee, styled defendant herein, for damages to plaintiffs’ land and crops, allegedly caused by the act of defendant in diverting surface water from its natural course and in allowing Johnson grass to seed on its right-of-way. The jury, in answer to special issues, found for the defendant, and plaintiffs appealed.

Plaintiffs’ first assignment of error is that the trial court erred in refusing to grant their motion for new trial because the answer of the jury to special issue No. 6 was against the great weight and preponderance of the testimony and the admission of the defendant. Special issue No. 6 as submitted by the court is as follows: “Do you find from a preponderance of the evidence that the defendant company diverted water from the Arnold farm into and over plaintiffs’ farm ? ” to which the jury answered “No.”

The record before us supports plaintiffs’ contention that the answer of the jury to said issue was against the great weight and preponderance of the testimony. However, it is our opinion that this assignment of error should be overruled, because special issue No. 6 and the answer thereto were rendered immaterial by the jury’s answers to subsequent issues, all of which are unquestionably supported by the evidence.

In answer to special issues submitted to it, the jury found substantially as follows: The diversion of water, if any, from the Arnold farm to plaintiffs’ farm was -not the proximate cause of the damage to plaintiffs’ cotton -crop; such diversion of water, if any, was not the proximate cause of the damage to the top soil of plaintiffs’ land; the plaintiffs suffered no monetary damage to their cotton crop or to the top soil of their land by the diversion of water, if the same was diverted; the plaintiffs constructed levees upon their, land in such manner as to concentrate water and to cause the injury and damage complained of; the construction of such levees was negligence; and such negligence was a proximate cause of plaintiffs’ damage.

It is readily apparent that had the jury answered “Yes” to special issue No. 6, plaintiffs would not have been entitled to recover against the defendant, because of the findings of the jury hereinabove set out. We are of the opinion that the judgment of the court had ample support in the answers of the jury to the other special issues submitted to it, and that special issue No. 6 and the answer thereto should be disregarded. Brokaw v. Collett, Tex.Com. App., 1 S.W.2d 1090; Austin v. De George, Tex.Civ.App., 55 S.W.2d 585; Brown v. Dallas Gas Co., Tex.Civ.App., 42 S.W.2d 869; Commercial Casualty Ins. Co. v. Hamrick, 127 Tex. 403, 94 S.W.2d 421; Id., Tex.Civ.App., 60 S.W.2d 247; St. Louis Southwestern R. Co. v. Neely, Tex. Civ.App., 296 S.W. 948.

Plaintiffs’ assignments of error to the trial court’s failure to grant a new trial because of alleged misconduct of the jury are overruled. From a careful reading and consideration of the record before us, we are of the opinion that the trial court properly exercised his discretion- in denying plaintiffs’ motion for new trial. In support of their motion, plaintiffs placed upon the witness stand only one of the jurors. The testimony of this juror on direct examination was inconsistent with and contradictory of his testimony on cross-examination in respect to the material matters involved. The trial court, by his judgment overruling the motion for new trial, in effect held that the alleged misconduct did not occur. On such hearing, the trial court is accorded the same latitude in passing upon the credibility of the witnesses and of the weight to be given to their testimony as the jury had upon the trial of the original cause. If there be any inconsistencies or contradictions in the testimony of the witnesses upon the hearing of the motion for new trial, it rests within- the sound discretion of the trial court to harmonize and reconcile such conflicts so far as possible. A juror’s testimony upon such hearing may be so contradictory and inconsistent that the trial court, in passing upon the credibility of the witness, may be justified in disregarding his entire testimony. Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770, 771; Bradley v. Texas & P. R. Co., Tex.Com.App., 1 S.W.2d 861; Houston & T. C. R. Co. v. Gray, 105 Tex. 42, 143 S.W. 606.

The judgment of the trial court is affirmed.


author: MURRAY, Justice.

text:
    HORTON et al. v. SCHULTZ.
    No. 10902.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 19, 1941.
    Edward L. Dunlap, of Victoria, for appellants.
    W. L. Edwards and Eugene H. Houchins, both of Victoria, for appellee.
   MURRAY, Justice.

This suit was instituted by Herman Schultz against W. J. Horton and Hill E. Ratliff seeking to recover damages for injuries to his automobile alleged to have been caused by' defendants when a truck owned by defendants collided with plaintiff’s automobile upon a public highway.

The cause was submitted to a jury upon eighteen special issues and, in keeping with the answers of the jury, judgment was rendered in plaintiff’s favor in the sum of $575.

W. J. Horton and Hill E. Ratliff have prosecuted this appeal.

Appellants first contend that it ■was reversible error for the trial court to permit the witness August Dolejsi to testify as to the cost of repairs made upon ap-pellee’s automobile. This witness first testified that appellee’s automobile immediately before the collision was of the market value of $800, and immediately after the collision, of the value of $240 or $250. He was then permitted, over appellants’ objection, to testify that the repair bill on appellee’s automobile was $575, and that the charges were reasonable. In this we find no error. It is true that in this State the measure of damages in such cases is the difference in market value of the automobile just before and immediately after the collision, nevertheless, the reasonable cost of necessary repairs to the injured automobile should shed considerable light upon the question of this difference of market value. White v. Beaumont Imp. Co., Tex.Civ.App., 21 S.W.2d 559, 561; Union City Transfer Co. v. Texas & N. O. Ry. Co., Tex.Civ.App., 55 S.W.2d 637; Northern Texas Traction Co. v. Singer, Tex.Civ.App., 34 S.W.2d 920; Monzingo v. Jones, Tex.Civ.App., 34 S.W.2d 662; Luckel v. De Vor, Tex.Civ.App., 17 S.W.2d 1097; Texas Power & Light Co. v. Hale, Tex.Civ. App., 276 S.W. 746, reversed on other grounds Tex.Com.App., 283 S.W. 495.

Appellants next complain because special issue No. 17 was submitted to the jury. Said issue reads as follows:

“What do you find from a preponderance of the evidence was the difference between the reasonable market value of the automobile belonging to the plaintiff, Herman Schultz, immediately before and immediately after the collision in question?
“Answer this question in dollars and cents, if any, as you may find.”

There was evidence raising this issue and it was properly submitted to the jury, but even if the evidence was insufficient we cannot conceive how the mere submission of the issue to the jury could constitute reversible error. Art. 2190, Vernon’s Ann.Civ.St. provides in part: “A claim that the evidence was insufficient to warrant the submission of any issue may be complained of for the first time after verdict, regardless of whether the submission of such issue was requested by the complaining party.”

And Art. 2211, Vernon’s Ann.Civ.St. further provides in part: “* * * and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence.”

A litigant, thus having an ample opportunity to attack any special finding of a jury which is not supported by the evidence, is not in a position to contend that his rights have been prejudiced by the mere submission of an issue to the jury.

There might be some questions so inflammatory or suggestive that the mere submission of them to the jury would constitute prejudicial error, but certainly the question herein complained of is neither inflammatory nor suggestive.

Appellants next complain of the failure of the court to define the term “reasonable market value.” We conclude that, under the record here presented, there was no error in failing to define this term.

The judgment is affirmed.


author: GRAVES, Justice.

text:
    GUTHRIE v. RUSS.
    No. 11134.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 13, 1941.
    Rehearing Denied March 6, 1941.

      W- H. Betts, of Plempstead, for appellants.
    Marvin Sprain, of Bellville, Richard Spinn, of Brenham, and C. D. Duncan and J. Lee Dittert, both of Bellville, for appel-lee.
   GRAVES, Justice.

The appeal herein sought to be prosecuted is based on this order of Hon. M. C. Jeffrey, as Presiding Judge of the District Court of Austin County, to-wit:

“No. 7299-7315
“In the Matter of the Estate of Kinch Russ, Deceased.
“In the District Court of Austin County, Texas.
“On this, the 11th day of May, 1940, there was presented to the Court a Motion for a ‘re-trial’ filed herein by the appellant J. H. Guthrie, as next friend for Vergia Louise Russ and Charles Ray Russ, on the 22nd day of March, 1940, and there was also presented the objections thereto urged by Mrs. Lulie Russ, the contestant in the above entitled and numbered cause in this Court, and appellee in such matter in the Court of Civil Appeals, and the Court is of the opinion:
“1. In this case judgment was rendered on the 12th day of January, 1940, and at that time notice of appeal was given from final judgment, and no motion for a new trial was filed within two days thereafter. And the appellant having filed his affidavit of inability to pay costs or give security therefor, in due time his appeal in forma pauperis was perfected to the Court of Civil Appeals for the First Supreme Judicial Distinct of 'Texas, sitting at- Galveston. The appellant by a motion for a Re-Trial filed herein on March 22nd, 1940, — some 65 or 70 days after giving notice of appeal from final judgment, and some 50 days after perfecting his appeal from final judgment, seeks a new trial in this Court because, as he alleged, he has been deprived of a statement of facts upon which to base the merits of his appeal in such Court of Civil Appeals. Wherefore, this Court feels that it is without jurisdiction to entertain such motion for a new trial inasmuch as the things therein complained of affect matters confided to, lodged in and affecting the jurisdiction of the Court of Civil Appeals for the First Supreme Judicial District of Texas, and that this Court is without authority to entertain such motion because thereof.
“2. But if the Court should be mistaken, and that it does have jurisdiction in the premises and the discretion to entertain such motion, in the exercise of such discretion it doth decline to consider the same, and in justification of such exercise of discretion the Court doth find;
“That the appellant J. H. Guthrie, as next friend, gave notice of appeal in this Court on the 12th day of January, 1940, and in due time on the 27th day of January, 1940, filed an affidavit of inability to pay costs or give security therefor, and he thereby complied with Article 2266 of the Revised Civil Statutes of Texas [Vernon’s Ann.Civ.St. art. 2266], but that he did not thereafter comply with Article 2278a, Revised Civil Statutes of Texas [Vernon’s Ann.Civ.St. art. 2278a], but had he complied with said Article 2278a, he never made demand upon or application to the official Court Reporter for a narrative form statement of facts, as contemplated by Article 2278a, as aforesaid.
“On the 4th day of March, 1940, the appellant, J. H. Guthrie, as next friend, did make application to and demand upon the official Court Reporter for a question and answer form statement of facts, but inasmuch as the same was an appeal in forma pauperis, and inasmuch as the appellant declined to give guarantee for the payment of the same when the same was to be delivered, the appellant was not entitled to a question and answer form of statement of facts.
“3. Although the appellant J. IT. Guthrie, as next friend, on the 22nd day of March, 1940, made oath thát he was unable to prepare a statement of facts in this cause and unable to prepare bills of exception, yet on the 29th day of April, 1940, he tendered to counsel for appellee, Mrs. -Lulie Russ, a statement of facts, in part, purporting to be all of the oral testimony introduced upon the trial of such cause. The appellant J. H. Guthrie, as next friend, by reason of laches, negligence and a lack of diligence has failed to procure a statement of facts in narrative form as provided by statute. That he has failed to comply with Article 1839 of the Revised Civil Statutes of Texas, and also Article 2246 [Vernon’s Ann.Civ.St. arts. 1839, 2246], and if this Court should prepare a statement of facts at this time, it could not be filed in this Court, nor could it be entertained by the Court of Civil Appeals for the First Supreme Judicial District of Texas in the matter of the appeal of the said J. H. Guthrie, as aforesaid. And the appellant has not complied with Article 2240, R.S.
“4. It appears that this cause as heard in January of 1940, was a trial de novo on certiorari in the exercise of the appellate jurisdiction of this Court, and that the docket entry as made upon such docket, from which the appeal is prosecuted, was made on the 12th day of January, 1940, denying probate of the instrument offered for probate as the last will and testament of Kinch Russ, deceased, and that said docket entry constituted a final judgment entered of record.
“5. That the judgment of said Court was further reduced to writing and signed by the trial Judge and filed with the Clerk on the 15th day of January, 1940, and the same was never changed except on the 17th day of January, 1940, E. D. Sorsby and H. D. Schwarz added to the record of such judgment their exception to such judgment and notice of appeal.
“6. That the judgment of this Court was recorded in the Civil Minutes of this Court at a date not before the 5th day of February, 1940, and at a date not later than the 18th day of February, A. D. 1940.
“Wherefore, having recited the reasons and justification for exercising of any discretion this Court may have to consider said motion, it is the order of this Court that the motion for ‘Re-Trial’ herein filed on the 22nd day of March, 1940, be, and the same is hereby, denied consideration.
“To such action and ruling of the Court the appellant J. H. Guthrie, as next friend, by and through his attorney of record, W. H. Betts, then and there excepted and gave notice of appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas, at Galveston, Texas.
“[s] M. C. Jeffrey,
“As presiding Judge of the District Court of Austin County, Texas.”

It is shown that the order was so entered in response to a motion made by the ap-pellee in the trial court,, on the 9th day of May, 1940, requesting that court not to overrule but to deny consideration of appellant’s motion therein called one for “A Re-Trial”, which was done, appellee’s answering motion being sustained.

The transcript containing the quoted order, together with other proceedings, including the affidavit in forma pauperis of J. H. Guthrie, which is described in the .order, was presented to this court for filing, and by it ordered filed, despite a motion of appellee opposing that action, on July 8, 1940.

On re-examination of such order permitting the filing of the transcript, it is concluded that it was an improvident one; this, for the reason that the quoted order of the court below, as its terms plainly imply, is not one overruling a long-belated motion of the appellant for a “Re-Trial” (that is one filed March 22 of 1940), “In the matter of the estate of Kinch Russ, deceased”, but was merely one denying consideration of such belated motion; hence- — - there being shown no abuse of a sound judicial discretion — no proper predicate for the prosecution of an appeal is left.

As the order itself recites, the final judgment “In the matter of Kinch Russ’ Estate”, to which it relates, had been rendered on January 12, 1940, from which Guthrie, as next friend, had duly perfected his appeal on the 27th day of January, 1940; whereas, such judgment had not been entered upon the minutes of the court until “a time not before the 5th day of February, 1940, and not after the 18th day of February, 1940”; so that, it became obligatory upon appellant under R.S. Article 1839 to file a transcript in that cause within 60 days, at least, from February 18, 1940, or, at the most, to file within 15 days thereafter, a motion showing good cause for delay; but the undisputed showing is that no transcript was ever herein tendered or filed, nor was any such motion seeking delay for filing one made, until the 8th day of July, 1940, when, as indicated, this court, by some inadvertence, permitted such transcript to be so belatedly filed here.

There is nothing; competently presented to this court in impeachment of the quoted order of the court below, from which it is sought to prosecute this appeal, hence it will be presumed to have validly exercised its discretion in refusing to consider the “re-trial” motion; R.S. Article 2232; Dittman v. Model Baking Co., Tex. Com.App., 271 S.W. 75.

Since it also appears that appellant failed to duly prosecute his appeal so perfected on January 27, 1940, from the trial court’s final judgment in cause No. 7299-7315, no sufficient excuse therefor being shown, and appellee neither having waived nor been estopped from taking advantage of the delay, the belated transcript will now be stricken from these files, and the appellant’s appeal herein will be dismissed. 3 Tex.Jur, par. 5-18, p. 723, and foot-note cited authorities.

It is so ordered.

Appeal dismissed.


text:
    DAVIS et al. v. TURNER et al.
    No. 11219.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 20, 1941.
    See, also, Tex.Civ.App., 145 S.W.2d 258.
    J. G. Howard and H. J. Nichols, both of Houston, for appellants.
    No brief was filed herein in behalf of ap-pellee, but J. Meek Hawkins, of Houston, appeared and presented oral argument in appellees’ behalf.
   GRAVES, Justice.

M. Kelley, Van Collins and R. Davis, as appellants, complaining of Ben Turner, Olivia Turner, Julia Franklin, Ned Weathers, E. L. Flenoury, A. Joseph, C. A. Alexander, J. C. Connor, James Coleman, Ed Bedford, C- Butler, L. Freeman, Pink Waiters, Wayne Johnson, Walter Johnson, and J. Wartell, as appellees, pursuant to the provisions of R.S. Article 4662, challenge this order of temporary injunction, granted against them in appellees’ favor, to-wit: “This cause having come on for trial before the 113th District Court on December 19, 1940, upon temporary injunction, and the Court having heard evidence showing to the satisfaction of the Court that a real controversy exists and that it is advisable that the status quo of the property involved be maintained until the cause is tried on its merits, and it appearing that the cause on its merits has been placed on the jury docket of the District Court of Harris County, it is now, on this, the 21st day of December, 1940, ordered by this Court that the Mount Olive Baptist Church, subject to the controversy herein, be locked up pending trial and disposition of this cause on its merits, and that the keys under which said church is to be locked up shall be turned in to the clerk of this court to be held pending disposition of the cause, and all parties to this cause, plaintiffs and defendants, are hereby forbidden and enjoined from entering upon said property after it is locked; and the defendants herein are ordered to turn in to the clerk of this court all the records of the Mount Olive Church which are in their possession immediately. Plaintiffs are required to make bond in the sum of $10.00 conditioned as required by law.”

The appeal was advanced for hearing in this court, oral arguments were heard from both sides, and appellants duly filed their brief; but the appellees have not availed themselves of the permission given them on such hearing to file briefs in their own behalf.

As its recitations reflect, the appealed-from order was entered after the court had heard evidence from both sides; but the statement of facts brought here with the record shows that to have consisted of only a copy of the ballot used at the election of officers of the church on September 3, 1940, and the oral testimony of two witnesses, T. T. Bradford and Martin Kelley, both called in the first instance by the appellants.

The regularity and validity of that election constitutes the subject matter of the controversy between the parties that is involved in cause No. 269,194, styled Olivia Turner et al. v. R. Davis et al., pending in the court below, and out of which it entered this order.

Appellants challenge the order, as having exceeded the exercise of a sound judicial discretion upon the trial court’s part, in the circumstances existing, upon these three propositions of law, as supported by the respective authorities cited under each:

“First Proposition. Because the ballot used in the election complained of was attached to the petition as an exhibit, showing that those voting could have prevented the election of the persons named therein by voting ‘Against’ them, and said petition further containing the allegations that plaintiffs and others ‘Refused to vote’, and there being no' allegation that plaintiffs or anyone were not permitted to vote on said ballot, the petition was fatally defective as a basis for equitable relief, because it thus affirmatively appeared therefrom that plaintiffs had an adequate and effective remedy which they not only omitted, but actually refused to take advantage of, and the court therefore erred in overruling defendants’ general demurrer.” “Railroad Commission of Texas v. Inter City Forwarding Co., Tex.Civ.App., 57 S.W.2d 290; Johnson v. Ferguson, Tex.Civ.App., 55 S.W.2d 153, error dismissed; Booth v. Board of Education, Tex.Civ.App., 70 S.W.2d 350, error dismissed; Sneed v. Ellison, Tex. Civ.App., 116 S.W.2d 864, error dismissed; Smith v. State, Tex.Civ.App., 103 S.W.2d 805; Pearson v. Black, Tex.Civ.App., 106 S.W.2d 787; McCauley v. Northern Texas Traction Co., Tex.Civ.App., 21 S.W.2d 309; Pomeroy’s Equitable Jurisprudence Fourth Edition Vol. 1, section 363.”
“Second Proposition. The evidence introduced at the hearing failing to show the probable existence of a right to injunctive relief, the court abused its discretion in granting a temporary injunction.” “Sanitary Appliance Company v. French, Tex.Civ.App., 34 S.W.2d 673; Turner v. Parker, Tex.Civ.App., 14 S.W.2d 931; Sneed v. Ellison, Tex.Civ.App., 116 S.W.2d 864, error dismissed; Minton v. Leavell, Tex.Civ.App., 297 S.W. 615; 36 Tex.Jur., 860.”
“Third Proposition. The pleadings of neither the plaintiffs nor defendants containing a prayer for an order closing the church,- the court abused its discretion in ordering it locked up and enjoining the parties from entering upon the property,” Southwestern Sewer Company v. Morris, Tex.Civ.App., 26 S.W.2d 311; Fletcher v. King, Tex.Civ.App., 75 S.W.2d 980.

It is concluded that the order was an improvident one. In the first place, the “real controversy” the trial court so found to have existed is shown to have related, as indicated supra, solely to whether or not the purported election held on September 3 of 1940 for officers and other functionaries of the church had been a valid and binding one under its rules, practice, and polity ;■ hence a mere finding that the members of the church were at loggerheads over that, there being no property rights shown to have been involved between them at the same time, as is the situation indisputably shown by this record, would not justify this attempt at intervention by a court of equity, under the rule stated in 36 Tex.Jur., page 860, as follows: “Where property-rights are involved, the rules of procedure made by the church functionaries or by long-established customs and uses, not in conflict with some civil law on the subject, become matter for the consideration of civil courts. But if, to determine a property right, it becomes necessary to adjudge an ecclesiastical question, the courts will go only so far as is necessary to pass on the effect of church law on property rights.”

In other words, neither the pleadings nor proof upon this hearing disclose the involvement of any property right, nor do either show more than a schism in the membership of the church over its internal customs, regulations, rules, and practice in holding elections for the selection of its own officers and other functionaries.

In the second place, it is neither alleged nor shown that the September 3, 1940, election for such church officers had not been held in the customary manner of choosing such functionaries, nor that it was fraudulent or irregular; that situation also was fatal to the validity of the order at bar. Johnson v. Ferguson, supra.

In the third place, the witness Kelley in fact (for the appellees in that behalf) by his testimony negatives, in effect, the existence of anything irregular or not in conformity with the customs and regulations of the church in that regard in the conduct of the election, as so held; he admitting that even the form of the ballot used was the customary and usual one; that under the church’s rules the deacons recommended to the congregation a slate of officers, which it either accepted or rejected in whole or in part; that unless and until such recommended slate was rejected, no other nominations than those on such list would be received; that on September 3, 1940, at the election then held, 135 persons were present, to each of whom ballots were passed, only 52 of such being returned, or handed in; that no ballot which was returned was rejected. So that, under the cited authorities, both pleading and proof were insufficient to justify intervention of a secular court of equity.

It is true there was some testimony tending to indicate the existence of- a building-fund belonging to the church, but, even so, appellants were neither charged nor shown to have .tampered with or threatened to use it in any way.

Finally, with the record in the indicated state, it conclusively appears that there were no pleadings supporting the appealed-from order; all the appellees prayed for was that appellants be restrained from converting an alleged building fund, and from declaring the result as a valid one of the church election of September 3 of 1940; whereas, the court’s order, while granting neither of these forms of relief, did provide that the church itself be locked up and the keys thereto turned over to the clerk of the court, thereby depriving all litigants and other members of the church of a place to worship, pending a final trial of their major controversy on its merits; this plainly went beyond the pleadings. Southwestern Sewer Co. v. Morris, and Fletcher v. King, supra.

These conclusions require a reversal of the judgment, and a rendition of the cause for a temporary injunction; it will be so ordered.

Reversed and rendered.


author: CODY, Justice.

text:
    LEONARD et ux. v. SMITH.
    No. 11139.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 20, 1941.
    Croom & Croom and Sam G. Croom, all of Houston, for appellants.
    W. H. Betts, of Hempstead, for appellee.
   CODY, Justice.

This suit is an action brought by appellants to have a deed, absolute on its face, declared a mortgage, and further, to have the mortgage, except perhaps in so far as it was given to secure an advancement to pay taxes on the land in question, declared null and void as having been given on appellants’ homestead. The deed in question purported to be a conveyance by appellants of a tract of 37.8 acres of land in Waller County, Texas.

Besides interposing a general demurrer and a general denial, appellee answered specially that appellants had executed and delivered to him the deed to satisfy a preexisting indebtedness consisting of various loans and advancements made to them by appellee, which appellee pled with particularity as to the amounts, times and manner same were made and secured; and appellee also sued to recover title and possession of the 37.8 acres.

The case was tried without a jury, and judgment rendered against appellants, and for appellee that he recover title and possession. ’ The court duly filed findings of fact and conclusions of law. The findings of fact are quite lengthy, and as appellants do not question the sufficiency of the facts as found by the court to support the judgment, but challenge them in certain respects as being against the great weight and preponderance of the evidence, there is no occasion to set forth such findings except to show wherein they are challenged as being against the great weight of the evidence.

Appellee has filed no brief, and does not here oppose the contention of appellants that it was established by the great weight of the evidence that the deed in question was intended as a mortgage on, and not a conveyance of, the 37.8 acres of land, and that the deed was not given by appellants in satisfaction of their pre-exist-ing indebtedness to appellee. And appellants by exhaustive, not to say tedious quotations of evidence, inclusive of appellee’s own personal testimony, amply establish their assignment of error to the effect that there is insufficient evidence to establish the finding that the deed in question was intended as a conveyance of the land in question, and such finding is against the great weight and preponderance of the evidence. It is well settled that, “The Courts of Civil Appeals are given jurisdiction to set aside a judgment of the trial court on the facts, and these courts have exercised this jurisdiction, when, in their judgment the evidence, though sufficient as a matter of law to sustain the judgment, so manifestly preponderated against it as to require a new trial in the interest of justice. Jurisdiction in this regard is wholly distinct from that jurisdiction which both the Courts of Civil Appeals and the Supreme Court have to set aside a judgment where as a matter of law the evidence is not sufficient to support it.” Shaw v. Centerfield Oil Co., Tex.Civ.App. 10 S.W.2d 144, 146.

As the evidence quoted by appellants amply sustains their stated assignment of error, and appellee has not undertaken to question same, no good purpose would be served by setting forth the evidence quoted by appellants beyond stating that it is made to appear even from appel-lee’s own. testimony that the indebtedness due him from appellants, the payment of which he claimed constituted consideration for the deed, was not in fact paid and was not so treated by him, but that the notes evidencing the greater part thereof were still unpaid, and were in the hands of appellee’s attorney. In Ruffier v. Womack, 30 Tex. 332, at page 342, the following statement of the rule here applicable is made, “But when the transaction grows out of a pre-exist-ing debt or loan of money, it must clearly appear that such debt is extinguished, or it will be held that the new arrangement is a mere change in the security. (Dougherty v. McColgan, 6 Gill & J. 275.)” It is further made to appear from appellee’s own testimony that he knew appellants, who were .elderly cortntry negroes, were living on said land at the time he loaned the money to them, and took the original deed of trust on said land to secure said debt.

From appellants’ pleading it is to be inferred that a small portion of the money loaned was advanced for the purpose of paying taxes on the land, whether this portion of the loan was made so. as to become secured by the “deed” we are unable to determine without, perhaps, going through the entire statement of facts. It further seems that, since taking the “deed” appel-lee has paid off eighty or ninety dollars of delinquent taxes. It may be that such payment was made by appellee not as a mere volunteer, and he may be able to show a right to be subrogated to the tax lien which he paid off.

Because of the assignment of error herein sustained, it is necessary that the judgment of the court below be reversed and the cause be remanded for a new trial. It will be so ordered.

Reversed and remanded.


author: NORVELL, Justice. "

text:
    UNITED EMPLOYERS CASUALTY CO. v. BARKER et al.
    No. 10833.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1941.
    Rehearing Granted in Part Feb. 19, 1941.

      Kemp, Lewright, Dyer, Wilson & Sorrell and J. Woodrow Hazlewood, all of Corpus Christi, for appellant.
    R. S. Crawford, of Crystal City, and O. Kennedy, of Beeville, for appellees.
   NORVELL, Justice. "

This is a workmen’s compensation case arising out of the following facts:

On October 11, 1938, a group of about eight trucks, loaded with oil field equipment, owned or controlled by J. I. Hailey, and under the supervision of Roscoe Hail-ey, arrived in Beeville, Texas. One- of the trucks was driven onto a vacant lot, and the others stopped in the street close by. Roscoe Hailey then went to see about parking these trucks upon the vacant lot, leaving the drivers under his supervision with the trucks awaiting orders. All the truck drivers, with the exception of Wick Burns, got under the trucks in order to get in the shade, as it was about 3 o’clock in the afternoon and the sun was shining brightly. Wick Burns remained in the cab of his truck which had been driven onto the vacant lot and went to sleep.’ After being absent some thirty or forty minutes, Roscoe Hailey returned and gave a signal to his truck drivers to start up. ’Wick Burns woke up, started his truck and ran over and killed James Delbert (Mike) Hall, another truck driver who had gone to sleep, lying between the trailer and truck which Burns was driving.

The controlling question 'involved is whether or not Hall’s death, under the circumstances above detailed, is compensable under the Texas Workmen’s Compensation Law, Article 8306 et seq., Vernon’s Tex. Ann.Civ.St.

The jury found that Hall, in the course of his employment with J. I. Hailey, sustained injuries which resulted in his death. The term “injuries sustained in the course-of his employment” was defined in the words of the statute as meaning injuries “having to do with 'and originating in the work, business, trade or profession of the employer received by an employé while engaged in or about the furtherance of the affairs or business of his employer.” Sec. 1, second subd. 4, Art. 8309.

The trial court refused to submit the following requested special issue: “Do you find from a preponderance of the evidence that in going to sleep upon the ground where he did, under the truck, James Delbert Hall did not thereby choose an unnecessarily dangerous place to do so, thereby increasing the risk of injury to himself beyond that reasonably contemplated by his contract of employment with J. I. Hailey?”

Based upon the finding above mentioned, together with a finding as to Hall’s average weekly wage, and one relating to a lump-sum award, the trial court entered judgment in favor of Mrs. G. H. Barker, the mother of deceased, for $3,234.13. The insurance carrier, United Employers Casualty Company, has appealed.

The rule in this State is that “an injury may be said to arise out of the employment when there is a causal connection between the conditions under which the work is required to be performed and the'' resulting injury.” Sharp, J., in Federal Surety Co. v. Ragle, Tex.Com.App., 40 S.W.2d 63, 64, quoting from Corpus Juris treatise on Workmen’s Compensation Acts, § 64, pp. 73, 74.

This is the rule or test of In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306, wherein it is also said that the causative danger “must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.” See, also, Cherry v. Magnolia Petroleum Company, Tex.Com.App., 45 S.W.2d 555; McClure v. Georgia Casualty Company, Tex. Com.App., 251 S.W. 800; 45 Tex.Jur. 460-464, §§ 73, 74.

These are the rules for the determination of causal relationship which are to be applied by us in determining whether or not the jury verdict has support in the evidence.

Appellant urges what may be called a further refinement of the rule, in accordance with its requested issue above set out. It is contended that this is a case in which the test followed in some jurisdictions should be applied, to wit: Did the accident result from a risk which might have been contemplated by a reasonable person when entering the employment, as incidental to it? Appellant has cited no Texas authority in which the above test has been applied, and we have been unable to find such a case. The authorities cited by appellant indicate that in certain cases, the courts' of Illinois and Massachusetts do apply the test or rule contended for by appellant here. See Weis Paper Mill Co. v. Industrial Commission, 293 Ill. 284, 127 N.E. 732; White Star Motor Coach Lines v. Industrial Commission, 336 Ill. 117, 168 N.E. 113; Landon v. Industrial Commission, 341 Ill. 51, 173 N.E. 49; Plurley’s Case, 240 Mass. 357, 134 N.E. 252; De Costa’s Case, 241 Mass. 303, 135 N.E. 135; Wither’s Case, 252 Mass. 415, 147 N.E. 831, 40 A.L.R. 1475; Eifler’s Case, 276 Mass. 1, 176 N.E. 529. It seems to us that some of these cases, particularly Eifler’s case, apply the rule in such a manner as to exclude a recovery for an injury to which the negligence of the employee contributed. Clearly, under the Texas Statute, an injury caused by the negligence of the employee is compensable so long as the causal connection between the employment and the injury remains. On the whole it seems that the application of the rule contended for by appellant to the facts of this case is more confusing than helpful and the trial court was therefore correct in rejecting appellant’s theory and submitting the case to the jury in accordance with the statutory definitions contained in Section 1, second subd. 4, Article 8309. Appellant’s assignments complaining of the trial court’s action in refusing to submit appellant’s special requested issues, as well as the assignments complaining of the manner in which the case was submitted to the jury, are overruled. 28 R.C.L. 798-802, §§ 90, 91, and authorities therein cited; Texas Employers’ Ins. Ass’n v. Owen, Tex.Com.App., 298 S.W. 542.

Applying the test of causal connection above set out, which has been approved by the Texas authorities, we hold that the evidence supported a finding that the injury suffered by Hall was causally connected with his employment and that the injury was one “having to do with and originating in the work, .trade or profession of the employer.” At the time of his death, Hall was awaiting the orders of his superior. The mere fact that he went to sleep does not bar a recovery on the part of the beneficiary under Section 8a of Article 8306. Malley v. Union Indemnity Co., Tex.Com.App., 12 S.W.2d 1002; Indemnity Ins. Co. v. Wright, Tex.Civ.App., 69 S.W.2d 438; Corrina v. De Barbieri, 247 N.Y. 357, 160 N.E. 397; Richards v. Indianapolis Abattoir Co., 92 Conn. 274, 102 A. 604. Nor do we think the fact that Hall went under the truck or trailer to avoid the sun constituted a departure from his employment. From the record in this case it does not appear that this action was unusual or unprecedented. As a matter of fact, it appears that all but one of the drivers left their cabs and waited in the shade of the trucks. It is true that Hall’s death was the culmination of a series of circumstances which combined in an unusual manner to bring about the accident, but Hall’s action alone, while it might have been negligent, was not such as constituted a turning apart from his employment, nor can it be regarded as breaking the causal relationship between his employment and the injury. Federal Surety Co. v. Ragle, supra; Texas Employers Ins. Ass’n. v. Cobb, Tex.Civ.App., 118 S.W.2d 375; 45 Tex.Jur. 466. The trial court properly overruled appellant’s motion for a peremptory instruction and motion for judgment non obstante veredicto.

We also overrule appellant’s assignments complaining of the award of a lump-sum recovery. This is a matter which largely rests in the discretion of the trial court, and an abuse of that discretion is not shown. Indemnity Company of North America v. Wright, Tex.Civ.App., 69 S.W. 2d 438; Georgia Casualty Co. v. Little, Tex.Civ.App., 281 S.W. 1092.

Appellant’s contention that the question of whether Hall was married or not should have gone to the jury is not well taken. The testimony of appellee was that her son was unmarried. The rule requiring that “if the testimony bearing upon an issue comes from an interested party, the issue must be submitted to- the jury even though it be uncontradicted * * * does not apply where the nature of the testimony is such that it might readily be discredited if it were not true.” 17 Tex. Jur. 926, sec. 418; Luling Oil & Gas Co. v. Edwards, Tex.Civ.App., 32 S.W.2d 921. Appellee’s testimony stands uncontradicted in the record and, under the authorities above cited, the trial court did not err in refusing to submit the requested issue to the jury.

What has been said disposes of appellant’s assignments of error. The judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellant, in its motion for rehearing, points out an error in the computation of the amount of the judgment awarded by the trial court. We find that the amount of the judgment should be $3,044, rather than $3,234.13 as awarded by the trial court. The judgment of the trial court will, accordingly,'be reformed so as to allow ap-pellee Mrs. G. H. Barker a recovery of $3,044 with interest thereon from December 14, 1939, until paid at the rate of six per cent per annum. The judgment of the trial court, as thus modified and reformed, will be affirmed.

Costs áre adjudged against the appellant. The error in computing the amount of the judgment was probably due to an inadvertence and would have undoubtedly been corrected, had the matter been called to the attention of the trial court. Here the question of the proper amount of the judgment is raised for the first time by motion for rehearing in this Court. Under these circumstances, costs are properly taxed against appellant. Canales v. Clopton, Tex.Civ.App., 145 S.W.2d 933.

All matters raised by appellant’s motion for rehearing having been duly considered, said motion will be granted to the extent above indicated. In all other respects the same will be overruled.


author: TIREY, Justice.

text:
    PRUDENTIAL FIRE INS. CO. v. WILLIAMS.
    No. 2265.
    Court of Civil Appeals of Texas. Waco.
    Jan. 30, 1941.
    Rehearing Denied March 6, 1941.
    Wood, Morrow, Gresham & McCorquo-dale, John C. Williams, and Roland F. Johnson, all of Houston, for appellant.
    R. V. Armstrong, of Bryan, for ap-pellee.
   TIREY, Justice.

This is a suit on an insurance policy to recover a loss of $1,500, occasioned by fire to a linotype machine. It was tried by the court without a jury and plaintiff recovered the full amount sued for and defendant appealed.

The judgment of the trial court is assailed mainly on two grounds: (1) There was no policy of insurance issued by appellant in force at the time of the fire; (2) there was no evidence to show the amount of the loss. We will consider them in the above order, and the parties will be designated as in the trial court.

The plaintiff was in the printing business. In October, 1937, defendant, acting by and through its agent, duly authorized and licensed under the laws of the State of Texas, issued and delivered its policy of insurance to the plaintiff, covering the period of time from October IS, 1937, to October 15, 1938, against all loss or damage by fire to an amount not exceeding $1,500 to lino-type machines, including all parts and appurtenances belonging thereto. In April, 1938, plaintiff sold the linotype machine which was insured under the above policy and purchased a new machine and placed thereon additional equipment and accessories. The plaintiff immediately notified defendant’s agent of such sale and purchase and of the outstanding mortgage on the new machine so purchased by him. Defendant’s agent solicited insurance on the new machine and the plaintiff authorized defendant’s agent to write insurance in the sum of $2,782, that being the amount of the mortgage, and a policy was written for said amount by said agent, but the mortgagee was not willing to accept the policy written by defendant and plaintiff so notified defendant’s agent, and policy was not accepted. Plaintiff obtained insurance in another company to cover the amount of the mortgage and defendant’s agent had full knowledge thereof. Plaintiff claimed that he had an additional equity in the machine in the amount of $1,500, and that he requested defendant’s agent to keep in force the policy of $1,500 on the new machine and to renew the same upon its expiration date for an additional period of one year, in order that he might be fully covered, and the defendant’s agent agreed so to do. Said policy, among other things, provided: “This policy may by renewal be continued under the original stipulations, in consideration of premium for the renewed term, provided that any increase of hazard must be made known to this company at the time of renewal or this policy shall be void.” The fire occurred on November 9, 1938. Defendant’s agent had notice of the fire and loss and plaintiff duly filed proof of loss by instrument dated February 6, 1939. Plaintiff, without objection, testified to the following conversation had between plaintiff and defendant’s agent the next morning after the fire: “I asked Mr. Kraft why it wasn’t renewed and he told me he didn’t know why it was,' — just an oversight on his part; that was all he could figure out why it wasn’t renewed. I asked him if he didn’t know it was supposed to be renewed and he said yes, but it was just an oversight.” On November 21, 1938 (which was subsequent to the fire and loss) defendant’s agent wrote defendant, in part, as follows: “Your letter in answer to our regarding the policy that was not renewed covering on the above firm received. We gave the wrong policy renewal number. The correct policy is No. 3580, that should have been renewed. * * * Kraft Agency Prudential Ins. Co., on Linotype that should have been renewed, $1500.00.”

“The law is well settled in this state that an insurance company, through its duly authorized agent, may contract by parol for the renewal of a fire insurance policy; and, in the absence of an agreement to the contrary, the presumption is that the renewal is upon the same terms, conditions, and amount as provided in the original policy.” See St. Paul Fire & Marine Ins. Co. v. Stell, Tex.Civ.App., 20 S.W.2d 399, point 3, page 401, for collation of authorities. An “authorized agent, may contract by parol for the renewal of a policy, although it may be stipulated on the face of the instrument itself that this shall not be done.” Cohen v. Continental Fire Ins. Co., 67 Tex. 325, 3 S.W. 296, 297, 60 Am.Rep. 24. We think the record shows that Kraft was the duly authorized agent of the defendant, and as such agent he had the authority to issue and deliver fire insurance policies. The defendant’s agent, having knowledge of all of the facts, did issue another policy to cover the purchase money loaned (and did not cancel or take up the old policy), but the mortgage holder refused to accept said policy and defendant’s agent was therefore unable to make delivery of the same. With knowledge of the fact that insurance in the amount of $2,782 would be obtained by plaintiff in another company, defendant’s agent promised to continue the $1,500 policy in force and effect and orally agreed to renew the same at the expiration date. “Verbal consent by the agent, with knowledge that it will be acted upon, is a waiver of the requirement that the consent shall be expressed in writing upon the policy.” New Orleans Ins. Ass’n v. Griffin & Shook, 66 Tex. 232, 18 S.W. 505; Mechanics’ & Traders’ Ins. Co. v. Dalton, Tex.Civ.App., 189 S.W. 771, writ refused. Defendant’s agent failed to cancel the $1,500 policy and failed to make any refund or rebate for such cancellation. Moreover, the defendant’s agent, by his letter of November 21st, advised the defendant that the old policy should have been renewed. Furthermore, the plaintiff testified that on the morning after the fire defendant’s agent admitted that failure to renew the policy was an oversight on his part. We are therefore of the opinion that the evidence is ample to sustain the trial court’s finding that the $1,500 policy was renewed by parol agreement, and that the defendant cannot escape liability because of the oversight of its agent to do what he had agreed to do. See St. Paul Fire & Marine Ins. Co. v. Stell, supra; Mechanics’ & Traders’ Ins. Co. v. Dalton, Tex.Civ.App., 189 S.W. 771, writ refused.

The next question that arises is, Was the testimony sufficient to sustain the judgment of the court? We think so. Plaintiff’s allegations as to value were, substantially: (a) that the machine had no market value in the vicinity of the fire; (b) that the reasonable cash value of said machine to him just before the fire was the sum of $5,200, and the reasonable cash value to him after the fire was nothing, and that the machine was totally destroyed and was worthless to him; (c) in the alternative, that the reasonable cash market value of said machine immediately prior to the fire was $5,200 and after the fire was nothing. Defendant interposed general demurrer and general denial. It has been repeatedly held that: “The word ‘value,’ when applied without qualification to property of any description, necessarily means the price which it will command in the market. Value is defined as the amount of other commodities, commonly represented by money, for which a thing can be exchanged in open market.” Missouri, K. & T. Ry. Co. v. Crews, 54 Tex.Civ.App. 548, 120 S.W. 1110, 1111. Plaintiff testified that the reasonable cash market value of the machine immediately prior to the fire was above $5,000. The proof of loss which was prepared and sworn to by the plaintiff, and which was designated Exhibit B and introduced in evidence without objection, among other things, stated: “The machine and its appurtenances was totally destroyed by fire on November 9th, 1938 * * *; the cash value of the machine was $5200.00 complete.” Without objection, the following testimony was adduced: “Are the facts as contained in plaintiff’s Exhibit B, which you signed and swore to, true and correct ?” to which plaintiff answered “Yes”. The general rule as to the measure of'actual damages to personal property injured “is ordinarily the difference in the value of the article injured at the time and place, immediately before and immediately after the injury, with legal interest.” Chicago, R. I. & G. Ry. Co. v. Zumwalt, Tex.Com. App., 239 S.W. 912, point 1, page 915. We are of the opinion that the record is sufficient to meet the above test. The proof of loss specifically stated that the machine was totally destroyed by fire and that it had a cash value of $5,200. As we view the record, this was competent prima facie evidence of loss and value, Franklin Fire Ins. Co. of Philadelphia v. Orr, Tex.Civ.App., 36 S.W.2d 576, writ refused, and is sufficient to sustain the judgment, and the foregoing assignment must be overruled.

All other assignments presented by appellant have been considered and are overruled.

The judgment of the trial court is affirmed.