author: BLAIR, J.

text:
    MURPHY et al. v. JOHNSON et al.
    No. 7705.
    Court of Civil Appeals of Texas. Austin.
    Oct. 19, 1932.
    Rehearing Overruled Nov. 9, 1932.

      Edwin Mechem and T. B. Rapcoeh, both of Las Cruces, N. M., and Del W. Harrington, of El Paso, for appellants.
    Don Emery, of Amarillo, Walter L. Barnes, of Des Moines, Iowa, and T. L. Dyer, of Breclrenridge, for appellee Phillips petroleum Co.
    H. S. Garrett and H. R. Wilson, both of Fort Worth, for appellee Texas Co.
    Butts & Wright, of Cisco, for appellees Stanley, L. F., and S. F. Benekenstein, John M. and Albert Cotter Lewis, and Mary L. Easthope.
    Scott W. Key, of Eastland, for appellee Humble Oil & Refining Co.
    Wilkinson & Wilkinson, of Brownwood, for appellees W. S. Yolley and Lela Johnson.
   BLAIR, J.

The appellants, Eliza Murphy and Martha Nichols, each joined pro forma by her husband, sued appellees, W. S. Johnson, Yolley Johnson and wife, Lela Johnson, Stanley Benekenstein, F. L. Benekenstein, S. P. Benek-enstein, John M. Lewis, Albert Cotter Lewis, Mary L. Easthope, the Texas Company, a Texas corporation, the Texas Company, a Delaware corporation, Humble Oil & Refining Company, a Texas corporation, and Phillips Petroleum Company, an Oklahoma corporation, to recover an undivided one-half interest in two tracts of land, described in this appeal as tract No. 1 and tract No. 2. The petition contained three counts; the first being in the usual form of trespass to try title. The second count alleged:

That appellee, W. S. Johnson and his first wife, Esther Johnson, were the parents of appellants, Eliza Murphy and Martha Nichols. That during the marital relationship they accumulated certain community property, consisting, among other things, of live stock in Brown county, Tex.

That Esther Johnson died about the year 1879.

That, after her death as well as before, W. S. Johnson continued to handle such live stock and to pay for other stock with the proceeds of the former stock, and that he acquired title to tract No. 1 by the exchange of property belonging to and with the proceeds of the sale of a portion of the community estate of W. S. Johnson and his deceased wife, Esther Johnson, one-half of which belonged to appellants. That W. S. Johnson acquired the legal title to tract No. 1, known as the M. B. Nix 80-acre survey, in August, 1892, under the following facts;

That M. B. Nix had entered upon said land by virtue of the homestead laws of Texas, and thereafter his interest was assigned and transferred to J. W. Boliver. That prior to that time W. S. Johnson had taken up a preemption homestead of 160 acres, and was not eligible to acquire an additional pre-emption homestead. That W. S. Johnson negotiated with one I. H. Kinsey to purchase from Boli-ver the Nix survey, and turned over to Kinsey the sum of $20 and a sorrel horse, described by a certain brand, all of which was alleged to be community property of W. S. and Esther Johnson. That it was agreed that Boliver assign and transfer said Nix survey to Hugh Murphy, which was done, and that Hugh Murphy, after receiving the assignment and transfer from Boliver, entered upon the land and made final proof of occupancy and received the patent for said land; and thereafter, in accordance with the previous agreement, Hugh Murphy conveyed the land to W. S. Johnson, who had ever since held and used said land as his homestead until about January, 1928, when he moved from said land and became a resident of Concho county, Tex.

It was further alleged that, by virtue of these facts, a resulting trust was created in behalf of appellants, and that appellants were the beneficial or equitable owners of an undivided one-half interest in tract No. 1; that the land had never been partitioned, but had been occupied by the cotenant W. S. Johnson, and used by him continuously during the time above mentioned; and tbat appellants at no time prior to tbe month of April, 1930, had any notice or knowledge that the said W. S. Johnson, or any one claiming under him, was claiming the land adversely to appellants. The petition further alleged with respect to tract No. 1 that in January, Í926, appellees W. S. Johnson and his son by a second marriage, Volley Johnson, and the latter’s wife, Lela Johnson, undertook to execute an oil and gas lease to appellee Texas Company, the Texas corporation, on said land; and that, as a result of drilling for oil thereon, petroleum oil and gas have been extracted therefrom of the value of $250,000, and that no part of which has ever been received by appellants, to their damage in the sum of $125,000. Appellants also alleged that oil royalties, one-half of which belonged to them, had been wrongfully paid to appellees, W. S. Johnson, Volley Johnson, Lela Johnson, and others, and prayed for an accounting.against them and the two ap-pellees Texas Company corporations.

With respect to tract No. 2, and in addition to the facts alleged showing the relationship of appellee W. S. Johnson to appellants, they further alleged as follows:

“That about the year 1901 the defendant W. S. Johnson purchased from th'e State of Texas with money derived from the sale of the community estate of W. S. Johnson and Esther Johnson, fully described in paragraph 1, the tract of land described as Tract No. 2, and by reason thereof these plaintiffs were and are the owners of an undivided one-half interest in and to said tract of land. That the said W. S. Johnson after purchasing said land from the State of Texas, held the same for himself and for these plaintiffs and as a co-tenant' with these plaintiffs and that at all times held out and represented to these plaintiffs that their interest in said land was being held by him for them, and that he would at all times save and protect them in the enjoyment of same, and plaintiffs had no notice or knowledge that said land was being held by the said W. S. Johnson adversely to them until about the month of April 1930.”
“Plaintiffs further show to the court that on or about the 19th day of January, 1926, by an instrument of that date, the defendants, W. S. Johnson, Volley Johnson and wife, Lela Johnson, unlawfully attempted to sell and convey to the defendant Humble Oil & Refining Company, an oil and gas leasehold on Tract No. 2. That by virtue of said lease the said defendant still claims and holds said leasehold interest, and beginning about the year 1928 drilled wells for oil and gas upon said tract of land, and has extracted and produced from said land petroleum oil and gas, as the plaintiffs believe and here now allege of the value of $250,000.00, no part of which has ever been received by the plaintiffs, and withhold all of same from the plaintiffs, to their damage in the sum of $125,000.”

By the third count in their petition, appellants alleged that appellee W. S. Johnson, at each and all of the dates of the execution of the oil and gas lease contracts and of the conveyance of royalty interest in the oil and gas production from both tracts of said lands, was non compos mentis, and was so deficient in his mentality, and was so lacking in his discretion and ability to know and realize the consequences of his acts as to be totally and completely incapacitated mentally from transacting any business; and that by reason thereof said pretended leases and sales of royalty were and are void; and that, since the execution thereof, the said W. S. Johnson has never regained his mental capacity so as to be able to ratify the same; and they pray for cancellation of each and all of the gas leases and conveyances of royalty, and for general and special relief.

The other appellees named were alleged to be claiming some interest in and to the said two tracts of land and the mineral rights therein under some character of conveyance either from the appellees Johnson, the Texas Companies, or the Humble Oil & Refining Company; the'exact extent and nature of their interest was alleged not to be known to appellants.

Appellants nowhere allege that appellees oil companies had notice of their alleged claim in the two tracts of land by virtue of their alleged resulting trust.

As we interpret the petition and according to the briefs of appellants, their cause of action against the Texas Company for the recovery of an undivided one-half interest in tract No. 1 was based upon an alleged resulting trust, which arose because their father, W. S. Johnson, purchased said lands with community funds or property of himself and their deceased mother, Esther Johnson, one-.half of which was inherited by and belonged to appellants; that, while ~W. S. Johnson took the legal title to the lands in his own name, a resulting trust was under the facts and circumstances created in behalf of appellants with their father, W. S. Johnson, as trustee and with appellants as the cestui que trust; and that appellants were therefore entitled to recover against the Texas Company, a subsequent grantee of W. S. Johnson of an oil and gas leasehold estate, an undivided one-half interest in the lands and damages thereto in virtue of the premises alleged.

It is also apparent that the petition affirmatively alleged the specific facts under which W. S. Johnson acquired the legal title to tract No. 1 to be, in substance, that, after W. S. Johnson had already acquired from the state of Texas 160 acres of land, being all he was entitled to receive under the Pre-emption Homestead Laws, he nevertheless made an arrangement with another person to settle on tract No. 1 and.to acquire a pre-emption homestead therein and to obtain a patent from the state of Texas, and then deed the land to Johnson; that all of this was done in accordance with the agreement; and that Johnson paid such person to carry out the agreement with money or property, one-half of which belonged to appellants.

To this petition the Texas Company presented, and the trial court sustained, certain special exceptions to the effect that, since it affirmatively appeared from the facts alleged that appellants were attempting to found their cause of action upon acts which constituted a violation of the law and upon acts contrary to the spirit and Intendment of the law and inimical to public policy with regard to the Homestead Pre-emption Law of Texas, no resulting trust could spring from such acts in favor of appellants; and, upon their refusal to amend, the suit against the Texas Company was dismissed.

In construing article 14, § 6, of the Constitution, and the various statutes in aid thereof, relating to the right to acquire a pre-emption homestead, the courts have uniformly held that “the evident purpose and policy of our pre-emption laws is to induce immigration, afford homes to the actual settler, and thereby cause the settlement and improvement of the country. They were not intended, however, to give homes to those who already had them, of their own, in the state, and to permit these owners to acquire pre-emption titles through occupancy by tenants.” Gambrell v. Steele, 55 Tex. 582. See, also, Garrison v. Grant, 57 Tex. 602.

In Daughty v. Hall, 59 Tex. 518, it is held that one who had already acquired a homestead could not purchase the homestead right of another person who had settled on the land, because such transactions would permit one to obtain in 'an indirect manner additional lands under the Homestead Laws in violation of their express terms and purposes. And particularly do the courts hold that such acts would contravene the statutes (articles 3939, 3940, R. S. 1879, as brought forward in later revisions), which require that an applicant for a pre-emption homestead must make affidavit that he has been in actual possession for the period of time required by law, and “that he is without any homestead of his own.” Burleson v. Durham, 46 Tex. 152, 160 ; Turner v. Ferguson, 58 Tex. 6, 10; Busk v. Lowrie, 86 Tex. 128, 23 S. W. 983.

We have reached the conclusion that, since appellants’ petition affirmatively alleged that their father acquired the legal title to tract No. 1, patented as state homestead land, by having another person occupy it for him contrary to and in violation of the Homestead Laws, and by contracting for the perjury of such person with design to thwart and inimical with the public policy of the state in the Homestead Laws, and since the petition further affirmatively alleged that the resulting trust sought to be established in said land had its foundation in such illegal and fraudulent acts, no such trust was created; because of the well-settled rule that “no resulting trust can spring from an act contrary to public policy or statute.” The rule is founded upon honesty and fair dealing, and courts of equity do not permit the parties to such transactions to reap any benefit therefrom. Nor do the courts permit' the children of a father guilty of such acts and transactions to disclose the shame of their ancestor, although the children did not participate in the illegal or fraudulent acts and had no knowledge of them. In the case of Eastham v. Round-tree, 56 Tex. 110, where a father in failing circumstances, with a view to secreting his property from creditors, purchased certain land, taking the title in the name of a third person with his consent, and on the trust that he would hold a one-half interest as an advancement for the child of purchaser, it was held that, the. title having vested in the third party, a court of equity would not divest it to enforce the trust, either at the suit of the father or at the suit of the child, though the child did not participate in the fraud and had no knowledge of it. The reason for the rule that the deed would have to stand as between the father and the trustee was, “not only because the statute makes such illegal acts binding between the parties, but for the further reason that the courts would not interfere to relieve a party from his own fraud”; and the reason for the rule as between the child and the trustee was held to be as follows:

“If one-half of the purchase money was paid by the father under such circumstances as made such investment for the benefit of the intervenor fraudulent as to his creditors, then it is certainly true that all the claim she has is based upon a transaction illegal, because made to hinder, delay and defraud creditors, and from which no resulting trust can spring in her favor, although she may not have participated in the fraud and may not have had any knowledge thereof; for in such case she appears as the intended donee of her father, through a transaction forbidden by law.
“To permit a man’s children to recover property which he had fraudulently placed in the. name of another for the purpose of placing it beyond the reach of his creditors, upon the ground that it was intended for their benefit, would be to contravene a well-settled public policy, and to offer a premium to dishonesty. It is a universal rule that no one can claim a right through the fraud of himself or another. Ex turpi causa non oritur actio. No resulting trust can spring from an act contrary to public policy or a statute. Perry on Trusts, 131; 1 Leading Oases in Equity, 320, 343.”

In Rogers v. Blackshear, 60 Tex. Civ. App. 576, 128 S. W. 938, where plaintiff, who attempted to obtain a patent to state homestead land by having another person to occupy it for him contrary to law, sought to establish an equitable interest in the land against the patentee of the fraudulent agreement, and against purchasers from him with notice of such prior sale to plaintiff, it was held that the court would not enforce plaintiff’s equitable interest, because of the alleged attempt to obtain the patent contrary to law; the court simply leaving all the parties where their unlawful acts placed them. So all the decisions run, that “no resulting trust could be raised through an act forbidden by law,” and “that to raise such trust the transaction must be honest.” Murphy v. Hubert, 16 Pa. (4 Harris) 50, 56; Anderson v. Carkins, 135 U. S. 483, 10 S. Ct. 905, 34 L. Ed. 272; Sell v. West, 125 Mo. 621, 28 S. W. 969, 46 Am. St. Rep. 508; Robinson v. Jones, 31 Neb. 20, 47 N. W. 480, where it is held that one party could not enter upon land under the pre-emption laws for the use and benefit or in trust for another, because the law intended it “for the exclusive use and benefit of the pre-eanptor.”

The sustaining of these special exceptions struck out of the petition the entire basis of appellants’ cause of action against the Texas ■Company for the recovery of any interest in tract No. 1; and, since the appellants did not or could not amend, the trial court correctly dismissed the cause. Likewise, and for the same reasons, the trial court sustained these special exceptions as to the suits of appellants against all appellees claiming any right, .title, or interest in tract No. 1, either as assignees or transferees of the Texas Company, or of appellees Johnson of royalty interests. The exceptions were also correctly sustained as to appellants’ suit against their father, as trustee, to establish the alleged resulting trust; because to permit them to recover against their father in that capacity would permit them to recover the benefits of transactions forbidden by law and fair dealing, and would permit them to disclose the shame of their ancestor in that regard, which, even if true, as stated in the Texas Company’s •brief, “it were better that they walk backward, with averted gaze, and hide the shame.”

Other special exceptions of the Texas Company were correctly sustained by the trial court. They were also adopted, presented, and sustained as to appellants’ suit against appellee Humble Oil & Refining Company for the recovery of an undivided one-half interest in tract No. 2, containing 82 acres of land. Since these exceptions were applicable on principle and the facts alleged to both suits alike, and in order to avoid a repetition of the discussion of them, we pass to a consideration of them in connection with the latter suit.

Briefly, the petition sought a recovery of an undivided one-half interest in tract No. 2 as against appellee Humble Oil & Refining Company upon the theory that, since appellants’ father acquired the legal title thereto in 1901, with funds or property of the community estate of himself and deceased wife, one-half of which belonged to appellants, a resulting trust was thereby created in the land, which interest the father had continually recognized until April, 1930, when appellants first learned of his adverse claim. In addition, appellants alleged the mental incapacity of their father to execute the oil and gas lease to ap-pellee Humble Oil & Refining Company in 1926, and continuously thereafter to ratify same. The petition did not allege notice to any of the appellees of appellants’ alleged resulting trust.

To this petition the appellee Humble Oil & Refining Company addressed, and the trial court sustained, a special exception to the effect that, since the petition specifically alleged the legal title to be in their father, and that this appellee purchased the oil and gas leasehold estate from him, it was necessary, in order to establish a resulting trust against appellee as such purchaser of the oil and gas lease, to both allege and prove that it had notice of the alleged equitable claim of the resulting trust; and especially so in view of the special exception directing attention to the matter.

Appellants plead only an equitable interest in the lands, specifically pleading how such interest arose. In so doing they also affirmatively pleaded that the legal title was taken in the name of their father and had continuously remained in his name; and that, as owner of the legal title he had conveyed the oil and gas leasehold estate to appellee. In view of these specific pleadings, it was the further duty of appellants to both plead and prove notice of their resulting trust claim to appellee; because, having pleaded the legal title in appellee, it was incumbent upon appellants to plead and prove such facts as would defeat appellee’s legal title, which was alleged to be of record.

In 3 Pom. Eq. Juris. (4th Ed.) § 1043, the general rule is stated to be that while the interest of the cestui que trust in a resulting trust “is valid, and may be enforced not only against the trustee, but against his heirs, devisees, personal representatives, and all others who derive title from him as volunteers or purchasers with notice; but, being a purely equitable interest, it is cut off and destroyed as against all bona fide purchasers or mortgagees from the trustee for a valuable consideration and without notice.”

In the application of this rule we think our courts, as well as courts of other jurisdictions, have uniformly held in effect that, where one seeks to establish an equitable or beneficial interest or resulting trust in lands, and alleges the legal record title to be in a third person, not connected with the trust, a court of equity will dismiss the bill or suit on proper exception to the pleadings for not affirmatively alleging that such third person had notice of the equitable interest or trust, or had notice of sufficient facts or circumstances as would put him on inquiry as to such equitable interest or trust. Hennessy v. Blair, 107 Tex. 39, 173 S. W. S71, Ann. Cas. 19180, 474; Cole v. Thompson (C. C.) 169 F. 729; Arrowood v. Blount (Tex. Sup.) 41 S.W.(2d) 412; Wimberly v. Pabst, 55 Tex. 587; Leonard v. Benfford Lbr. Co., 110 Tex. 83, 216 S. W. 382; Simpson v. Chapman, 45 Tex. 560; Durst v. Daugherty, 81 Tex. 650, 17 S. W. 388; Brown v. Henderson (Tex. Civ. App.) 31 S. W. 315; Bogart v. Moody, 35 Tex. Civ. App. 1, 79 S. W. 633; Elliott v. Wallace (Tex. Civ. App.) 42 S.W. (2d) 1058; Lyster v. Leighton, 36 Tex. Civ. App. 62, 81 S. W. 1033; Mangum v. White, 16 Tex. Civ. App. 254, 41 S. W. 80; Patty v. Middleton, 82 Tex. 586, 17 S. W. 909; Laffare v. Knight (Tex. Civ. App.) 101 S. W. 1034; Fordtran v. Perry (Tex. Civ. App.) 60 S. W. 1000, 1002 ; 39 Cyc. 618, 619 and 620; Wethered’s Adm’r v. Boon, 17 Tex. 143, 146; Hill v. Moore, 62 Tex. 610; Teagarden v. R. B. Godley Lbr. Co., 105 Tex. 616, 154 S. W. 973; Duckworth v. Collie (Tex. Civ. App.) 235 S. W. 924; Sperry v. Moody (Tex. Civ. App.) 269 S. W. 272; Herrington v. Ayres (Tex. Civ. App.) 16 S.W.(2d) 886; Le Blanc v. Jackson (Tex. Civ. App.) 161 S. W. 60; 39 Cyc. 1778, note 79, and page 1648, note 15.

It is stated in their brief that “appellants do not allege that appellees had notice of their interest in the land. Bona fide purchaser is defensive matter and must be plead and proved^” This is the general rule where a person is seeking to establish his legal title;' but the rule is not applicable in this case where appellants specifically alleged the legal title to be vested in appellees; and that they were seeking to engraft on such legal title only an equitable or superior beneficial title in themselves. Having thus alleged the legal title to be vested in appellees, the petition disclosed on its face that appellants had no cause of action against appellees, absent further averment that appellees had notice of their equitable interest or trust; or had notice of such facts or circumstances as would put them upon inquiry as to such equitable interest or trust. Such is the rule announced in the last above cited authorities.

All of the appellees presented, and the trial court sustained, special exceptions to the effect that it appeared from the allegations of appellants’ petition that, if they ever had any cause of action, the same was based upon and wholly founded upon certain alleged equitable rights and claims, of which appellees oil companies and their transferees or assignees were not alleged to have had any notice, the same accrued as to tract No. 1 more than thirty-five years, and as to tract No. 2 more than 30 years prior to the institution of this suit by appellants; and that such claim or demand or cause of action became and was stale, and appellants were precluded by their own unconscionable delay, neglect, and laches from asserting same. We are clear in the view that these exceptions were correctly sustained as to appellees oil companies and their transferees or assignees.

Briefly, it appears from allegations of the petition that Esther Johnson, mother of appellants, died in 1879, from which it may be inferred that appellants became 21 years of age before 1900; and this suit was filed August 27, 1930; that their father, W. S. Johnson, purchased tract No. 1 in August, 1892, with funds or property, one-half of which belonged to appellants; that he purchased tract No. 2 in 1901, with funds or property, one-half of which belonged to appellants; that W. S'. Johnson took the legal title in his own name and used the land continuously after the respective purchase dates until January, 1928, as his homestead, when he abandoned it as such homestead; that W. S. Johnson and his son by a second marriage, Volley Johnson, and the latter’s wife, Lela Johnson, executed an oil and gas lease to appellee, the Texas Company, a Texas corporation, in January, 1926, on tract No. 1, and also executed an oil and gas lease to the Humble Oil & Refining Company, in January, 1926, on tract No. 2; that “said oil companies” drilled for and obtained large quantities of oil and gas from the lands, amounting to $§60,009 in value; and paid to appellees Johnson and other royalty owners one-eighth of such production, amounting to $100,000 in value; that at all times prior to April, 1930,'W. S. Johnson had recognized appellants’ interest in the land, and told them that he would “save and protect- their interest”; that, at the time W. S. Johnson executed the oil and gas leases in 1926, he was non compos mentis, and continued so to the date of suit.

The attempt of appellants to excuse their laches and negligent delay in bringing this suit; partly upon the allegations that their father was non compos mentis when he executed the oil and gas leases in January, 1926, and has remained so continuously until the filing of this suit in August, 1930, rather accentuated their laches and negligent delay in the premises. It is not alleged that appellees oil companies or their assignees knew of the mental incapacity of W. S. Johnson, or of the alleged resulting trust in the lands in favor of appellants; and it was therefore the duty of appellants to remove W. S. Johnson as trustee of the alleged resulting trust immediately upon the discovery of his alleged mental incapacity and his attempted sale of the trust property, which facts appellants alleged they knew more than four years prior to the filing of this suit. Appellants’ laches or delay was further distinctly marked or made prominent by their allegations that in 1928, two years before the institution of this suit, the “said oil companies” began prospecting the premises for oil and gas and produced large quantities of same and paid to other appellees holding legal title and assignments under the leases large sums of money. Equity will not permit appellants to sit hy and see these large expenditures for the development of the lands, and payments for the oil and gas produced, withholding at all times any notice of their alleged equitable interest in the lands. And especially should this he the rule as to the question of the mental incapacity of W. S. Johnson to execute the leases, because it is the settled law in Texas that the leases he executed while insane, or a non compos mentis, are not void, hut only voidable at the option or suit of appellants. Williams v. Sapieha, 94 Tex. 430, 61 S. W. 115; Vogel v. Zuercher (Tex. Civ. App.) 135 S. W. 737; Pearson v. Cox, 71 Tex. 246, 9 S. W. 124, 10 Am. St. Rep. 740; Porter v. Brooks (Tex. Civ. App.) 159 S. W. 192; Elston v. Jasper, 45 Tex. 409.

The rule hy which laches and negligent delay in bringing a suit is measured is largely determined by the exigencies of the situation of the parties and the nature and character of the property furnishing the subject-matter of the suit. It is a matter of common knowledge, which courts have universally recognized, that in dealing with oil and gas property it requires large expenditure of money to discover and reduce same to possession. Such property is also fugitive in its nature and subject'to drainage under the laws of gravity, and also to great fluctuation in its value. Or, as was said in the case of Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 592, 23 L. Ed. 328:

“The fluctuating character and value of this class of property is remarkably illustrated in the history of the production of mineral oil from wells. Property worth thousands today is worth nothing to-morrow; and that which would to-day sell for a thousand dollars as its fair value, may, by the natural changes of a week or the energy and courage of desperate enterprise, in the same time be made to yield that much every day. The injustice, therefore, is obvious, of permitting one holding the right to assert an ownership in such property to voluntarily await the event, and then decide, when the danger which is over has been at the risk of another, to come in and share the profit.
“While a. much longer time might be allowed to assert this right in regard to real estate whose value is' fixed, on which no outlay is made for improvement, and but little change in value, the class of property here considered, subject to the most rapid, frequent, and violent fluctuations in vaiue of any thing known as property, requires prompt action in all who hold an option, whether they ■will share its risks, or stand clear of them.1’

And, in the language of the courts, the principle of laches is applied with greater force when the matter relates to oil and gas property and to minerals—the substance of which is fugacious, and the diligence required is measured by months rather than years, each case depending on its own particular facts and circumstances. Patterson v. Hewitt, 195 U. S. 309, 25 S. Ct. 35, 49 L. Ed. 214; Atlantic Life Ins. Co. v. Rowland (C. C. A.) 22 F.(2d) 126; Dexter & Carpenter v. Houston (C. C. A.) 20 F.(2d) 647; Galliher v. Cadwell, 145 U. S. 368, 12 S. Ct. 873, 36 L. Ed. 738; General Electric Co. v. Yost Electric Mfg. Co. (D. C.) 208 F. 719; Henry et al. v. United States (C. C. A.) 46 E.(2d) 640; Minchew v. Morris (Tex. Civ. App.) 241 S. W. 215.

Appellants sat by and permitted the oil companies to expend large sums of money in developing and making the oil and gas property valuable; they therefore come clearly within the rule announced in the case of General Electric Co. v. Yost Electric Co., supra, to the effect that a comparatively short time may constitute laches when the conduct of the slothful is such as to induce others in good faith to expend money and take the risks of the enterprise.

Closely akin to the foregoing equitable rule is the rule that “as between two innocent persons one of whom must suffer the consequence of a breach of trust the one who made it possible by his act of confidence must bear the loss.” Eliason v. Wilborn, 281 U. S. 457, 50 S. Ct. 382, 383, 74 L. Ed. 962. Manifestly appellants occupy the position of the one who trusted most under the allegations pf their petition that they trusted their father for more than 30 years to hold the title to and deal with the land as his own, and in permitting others relying in good faith upon such legal title to expend large sums of money in developing and making valuable the property sued for.

We have reached the conclusion, however, that the special exceptions of laches and stale demand should not have been sustained as to appellants’ suit against W. S-. Johnson, Volley Johnson, and Lela Johnson, for the recovery of an undivided one-half interest in tract No. 2 under their alleged resulting trust theory.

The law is well settled that no limitation, laches, or stale demand will run in favor of a trustee against his beneficiary until the trust has been clearly and unequivocally repudiated, and notice of such repudiation is brought to the beneficiary or cestui que trust. Alexander v. Kennedy, 19 Tex. 488, 70 Am. Dec. 358; Burney v. Burney (Tex. Civ. App.) 261 S. W. 182, 185; Stiles v. Hawkins (Tex. Com. App.) 207 S. W. 89, and Pearce v. Dyess, 45 Tex. Civ. App. 406, 101 S. W. 549, 550, where the litigation to establish a resulting trust arose upon facts and circumstances very similar to the facts alleged in this case. That is, appellants alleged that, after the death of. their mother, their father continued to man-’ age and control the community estate, consist-tag of live stock which he sold from time to time and purchased other live stock with the proceeds; that he purchased tract No. 2 in 1901 with the proceeds or funds of the community estate, one-half of which 'belonged to appellants; that he continued to live on the property as his home until 1928, and that he at all times recognized appellants’ interest in the land; and that at all times told them that their interest in the land was being held toy him for them, and that he would at all times save and protect them in same; and that they had no notice of any adverse claim of their father until April, 1930, before they brought this suit in August, 1930. These facts show the fiduciary relation of W. S.'Johnson to appellants and his continued management of the community estate as a proper inducement for the continuation of that fiduciary relation; that their father used the land as his homestead until 1928; and that he at all times recognized and told them he would protect and save their interest in the land until April, 1930. Under very similar facts, a resulting trust was held not barred by laches after a period of 30 years toy this court in Pearce v. Dyess, supra, the court holding as follows: “We think the petition sufficiently alleged a resulting trust in the lands in favor of appellees. Where property is purchased and the conveyance of the legal title is taken in the name of one person, while the purchase price is paid by another person, a trust at once results in favor of the person who paid the price or whose funds were used in the payment thereof. Burns v. Ross, 71 Tex. 516, 9 S. W. 468; Eastham v. Roundtree, 56 Tex. 110, 112; Worst v. Sgitcovich [Tex. Civ. App.] 46 S. W. 72; Caldwell v. Bryan’s Ex’r, 20 Tex. Civ. App. 168, 49 S. W. 240; 2 Pom. Eq. Jur. § 1037. And the petition of appellees alleged facts showing a recognition of such trust by the trustee up to the date of his death, and by appellants thereafter up to a date the interval between which and the filing of this suit was too short to base any statutory period of limitation upon. It is well settled by authority that limitation, laches, or stale demand cannot toe urged against the enforcement of a resulting trust until such trust has been repudiated. Wilson v. Simpson, 80 Tex. 287, 16 S. W. 40; Oury v. Saunders, 77 Tex. 278, 13 S. W. 1030; Rucker v. Dailey, 66 Tex. 284, 1 S. W. 316.”

In view of our action reversing for trial, if desired, appellants’ suit ágainst the appellees Johnson for the recovery of an equitable interest in tract No. 2, the trial court will be required to adjust the equities between the parties, favoring the Humble Oil & Refining Company and its assignees to the extent of the amounts of oil and gas received toy them pri- or to notice of appellants’ claim of interest, and such other equities as may appear from the evidence, in accordance with the rule announced in Sparks v. Taylor, 99 Tex. 411, 90 S. W. 485, 6 D. R. A. (N. S.) 381; Pox v. Robbins (Tex. Civ. App.) 62 S. W. 815.

We do not sustain appellants’ contention that the effect of sustaining all of the ap-pellees’ special exceptions was merely to strip the pleadings of every material allegation in the second and third counts, leaving the formal action in trespass to try title contained in the first count unimpaired, and that the court erred in dismissing the suit without a trial of the formal action in. trespass to try title.

It is clear that the second and third counts specifically alleged the facts under which appellants claimed title to the land, showing the origin and steps by which they sought to recover an undivided one-half interest in the land under a theory of resulting trust.

In Gatewood v. Graves (Tex. Civ. App.) 241 S. W. 264, 265, it was held that, “where, in trespass to try title, plaintiff alleges generally his ownership of the land but proceeds to set out the facts constituting his title, he is limited to such^ facts in order to establish his title, and cannot rely on his formal plea of trespass to try title.”

In Snyder v. Nunn, 66 Tex. 255, 18 S. W. 340, 341, the court held that: “It is true that a general allegation of ownership in the plaintiff is sufficient in a petition for the recovery of land; but, if the plaintiff goes further, and sets up his title, and his allegations show that it is not a good one, a general demurrer to the petition should be sustained. Hughes v. Lane, 6 Tex. 289, 294.”

Such has been the uniform holdings of our courts. National Lumber & Creosoting Co. v. Maris (Tex. Civ. App.) 151 S. W. 325; Herndon v. Hayter (Tex. Civ. App.) 28 S.W.(2d) 885.

The judgment of the trial court will be affirmed in part, and in part reversed and remanded in accordance with this opinion.

Affirmed in part, and in part reversed and remanded.


source: Caselaw Access Project

author: PLY, C. J.

license: Public Domain

text:
    VITTITOE v. JUNKIN et al.
    No. 8878.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 19, 1932.
    Rehearing Denied Nov. 16, 1932.
    Graham, Graham & Graham, of Brownsville, for appellant.
    Criss & Brown, of Harlingen, for appel-lees.
   PLY, C. J.

This suit was instituted by J. K. Junkin against E. M. Lawson and Mary S. Vittitoe, a feme sole, to recover a debt in the sum of $10,696.36, and to foreclose a vendor’s lien on certain lots in the city of Brownsville. It was alleged that Lawson was insolvent and that his residence was unknown. It was alleged that Mrs. Loa E. Junkin was the wife of J.’ IC Junkin, and conveyed the lots for which the note was given to J. K. Junkin. The wife, although not instituting the suit, became the storm center around whom much of the case revolved, the husband assuming a rather minor and obscure part in the transaction. Appellant pleaded a conspiracy between appellees, the Junkins and Lawson, to defraud her of her property and introduced testimony tending to prove her allegations. Her defense was rejected and judgment rendered against her as prayed for in the petition.

The facts show that on an unfortunate day for appellant, while she was traveling along a highway in -county, an accident happened to her automobile, which had attached to it a California license plate. While waiting in the road, waiting, as did Mieawber, “for something to turn up,” very much of something did “turn up” in the person of E. M. Lawson, who was passing by in an automobile and stopped and offered his services. In assisting about the car his vigilant eye noted the California license plate and he turned the conversation in that direction. Appellant guilelessly confided to him that they had gone to California with the purpose of leaving the “Texas Valley” and had come back to settle her affairs in this state. She told Lawson that she owned 120 acres of land in the valley, which she desired to sell. She confided to him what she desired to obtain for the land, where she was stopping at the time, and other details of her private business. I-Ie eagerly devoured all the information and offered his services in the disposal of the property. Lawson followed up his meeting with appellant by ingratiating himself into her good graces until he managed to get her to trade her land for apartment property in Brownsville, and through circuitous dealings deprived her of the apartment. So appellant was left with nothing except possibly the automobile with a California label on it. Lawson, who had claimed to own a ranch of 4,000 acres in California, the land of the setting sun, where even 5 acres of land, or less, is dubbed a ranch — an imperial ranch — and also claimed possessions in Missouri and perhaps in other locations, disappeared when the day of reckoning had come, and like his possessions melted into thin air. He is not a party to this suit, and his deception and fraud are not material except in so far as appel-lees, and especially Mrs. Junkin has been shown a participant in the fraud.

Whatever amount Lawson obtained through the fraud practiced on appellant, he must have carried off with him, for he has no land or houses, and the picture is presented of the appellant deprived of a valuable tract of land in the rich valley of the Rio Grande, rich as the valley of the Nile, where the orange and the pomelo' and the lemon flourish and obtain a perfection unknown elsewhere in America, and nothing to show for it except a rooming or apartment house, on which there is a vendor’s lien to secure a debt of more than $16,000. That indebtedness is held by appellees, the Jun-kins, along with the yalley land.

It was charged that the Junkins had entered into a conspiracy with Lawson to defraud appellant out of her land by inducing her to trade it for the property in Brownsville, which was represented to be free of all indebtedness. Mrs. Junkin was the moving force in negotiations for an exchange of the 120 acres of land near San Benito for. the apartment house owned by her in Brownsville. She induced appellant to go with her to the apartment, as she said, to see about a stove, but on the way picked up Lawson, and she and Lawson, after reaching the apartment, proceeded to extol the desirableness of the property as an investment. She claimed that she always had no trouble to obtain tenants. The conversation was absorbed by appellant and she swallowed all the representations without question. She conveyed her land to Lawson in exchange for the apartment, ignorant of the fact that her land had been transferred to Mrs. Junkin and that a mortgage had been placed on it for $10,000, and that a note for $10,000 had been executed by Lawson secured by a vendor’s lien on the apartment. Mrs. Junkin was active in coming in contact with appellant. She developed a social interest in the Yittitoe family, and made a social call on them. Lawson invited appellant to take a soda water with him and Mrs. Junkin appeared on the scene and also imbibed. When the smoke cleared away, Mrs. Junkin had all the property and Miss Yittitoe had nothing. A lien was declared on the furniture which Mrs. Junkin had represented had been purchased and paid for by her. In the face of all the circumstances enumerated and others, the court instructed a verdict in favor of appellees. This we think was error, requiring a reversal of the judgment.

Those engaged in forming conspiracies against governments, or the rights of others, do not proclaim their purpose on the hilltops or the highways, but proceed in dax-k and devious ways to accomplish their unlawful designs. It is, therefore, always difficult to prove the existence of a conspiracy, and great latitude must be indulged to permit proof of every circumstance, however trivial when standing alone, tending to show a conspiracy.

The facts in this ease were ample to take the case to a jury. San Antonio Gas. Co. v. State, 22 Tex. Civ. App. 118, 54 S. W. 289, 292; American Rio Grande Land & Irr. Co. v. Barker (Tex. Civ. App.) 268 S. W. 506; Tex. Jur. vol. 9, § 21, p. 400, and authorities cited. The case first cited is in point, and we reiterate what was said therein as follows:

“Conspiracies, being in defiance of law, are conceived in secrecy, and executed in such a manner as to avoid detection and exposure; and proof of such unlawful enterprises must, in the very nature of things, be made by circumstances, and every circumstance which tends to <7ast light upon the transaction is legitimate and proper. ⅜ ⅜ *

“It is a well-settled rule of evidence that, when the testimony establishes a conspiracy, the acts and declarations of a co-conspirator made in furtherance of the common design, ■are admissible against all of the conspirators. ‘The principle on which the acts and declarations of other conspirators, and acts done at different times, are admitted in evidence against the person prosecuted, is that, by the act of conspiring together, the conspirators have jointly assumed to themselves as a body the attribute of individuality so far as regards the prosecution of the common design; thus rendering whatever is done or said in furtherance of that design a part of the res gestee, and therefore the act of all.’ 3 Greenl. Ev. § 94.”

The rule is clearly and forcefully stated by Judge Wheeler in Jernigan v. Wainer, 12 Tex. 189.

The court said: “When men enter into conspiracies, they are not likely to call in a witness. They resolve their schemes clandestinely and in secret. Their purpose is imposition and deception; and secrecy is necessary to its accomplishment. In such cases the injured party must necessarily have recourse to circumstantial evidence. Eor it is only by the inferences and deductions which men properly and naturally draw from the acts of others in such cases, that their intentions can be ascertained. They are not likely to proclaim them in the hearing of witnesses.”

The judgment is reversed and the cause remanded.


author: ELY, O. J.

text:
    TEXAS CO. v. SCHWARZ et al.
    No. 8896.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 26, 1932.

      E. B. & Howell Ward, of Corpus Christ!, and Wm. K. Hall, of Houston, for appellant.
    Hubbard, Dyer & Weaver, of Corpus Christi, for appellees.
   ELY, O. J.

This is an appeal from an order dismissing an application for a temporary injunction to restrain the prosecution of two suits pending in the justice’s court, and the institution of suits on sums for monthly rental on certain property. Appellees state that the two suits have been dismissed, and that the rental term has expired, and all rents, if any, have become due, and that the possibility of a multiplicity of suits has been destroyed, and that the questions involved in the appeal have become moot.

We uphold the motion and dismiss the appeal, but, in view of the fact that it was through the acts of appellees that the appeal became necessary and the further prosecution of the.appeal has been rendered unnecessary by appellees, the costs of the appeal will be assessed against appellees.

Dismissed at the cost of appellees.


author: BARCUS, J.

text:
    CLIETT v. KING.
    No. 1178.
    Court of Civil Appeals of Texas. Waco.
    Oct. 20, 1932.
    Rehearing Denied Nov. 17,1932.
    Bryan & Maxwell, of Waco, and Frazier & Averitte, of Hillsboro, for appellant.
    Garland Armstrong, of Dallas, and Geo. Clark and J. J. Campbell, both of Waco, for appellee.
   BARCUS, J.

This is the second appeal in this case. King v. Cliett (Tex. Civ. App.) 31 S.W.(2d) 350. The fa,ets are fully stated in the former opinion. Briefly restated, however, appellee alleged that in May, 1928, he and his wife conveyed to appellant a house and two lots in the city of West for a recited consideration of $1,550 cash paid and subject to certain indebtedness against the property; that in fact only $50 of the cash consideration was paid; and -that he was induced to and did accept from appellant a purported vendor’s lien note for $1,500 against certain property in Tarrant county which he alleged H. I-I. Thomas and Eric Chapman falsely represented to him was worth $1,500 and could be easily cashed for said amount. He alleged that I-I. H. Thomas, Eric Chapman, and appellant Cliett jointly conspired together for the purpose of obtaining said property without paying the consideration named in the deed, and in falsely representing the note to be worth $1,500 when they and each of them knew said representations were untrue. Appellant denied all of the allegations of appellee and by way of special answer alleged that in January, 1929, he made a settlement with appellee under the terms of which he paid him $100 and secured a written release from all liability. Appellee, by supplemental pleading, alleged that said agreement, which appellant claimed to-have, was obtained after this suit was filed and was procured from him by fraud and duress, in that after he (appellee) learned that said note was valueless and after he had lost the note appellant represented to him that since he had lost the worthless note he could not recover for its value and that if he did not accept the $100 he would not get anything, and appellee alleged that at said time he was in very bad health and his family was in financial distress and dependent upon charity and that appellant knew these facts and took advantage thereof. He offered to give appellant credit for the $100 paid at the time the release was executed.

In answer to special issues submitted, the jury found that appellant agreed to purchase the property from appellee; that he had failed to pay $1,400 of the agreed purchase price; that Thomas, Chapman, and appellant Cliett designedly obtained the property from appellee without paying the agreed consideration therefor; that Chapman and Thomas represented to appellee that the $1,-500 vendor’s lien note was of the value of $1,500 and could be cashed immediately; that said representations were made in furtherance of the mutually understood and concerted design of Thomas, Chapman and appellant Cliett to obtain title to appellee’s property without paying the agreed consideration therefor ; that appellee relied on said representations and accepted said $1,500 note in lieu of the $1,500 cash; that Chapman, Thomas, and appellant Cliett acted with malice in their negotiations with appellee; that appellee was entitled to $500 exemplary damages ; that the $1,500 vendor’s lien note was of no value; that the release signed by ap-pellee to appellant after the suit was instituted was procured by fraud on the part of appellant; that the $100 consideration paid by appellee to appellant at the time the release was signed was an inadequate consideration; that appellant procured said release to be signed in furtherance of the mutually understood and concerted design between Thomas, Chapman, and appellant Cliett to obtain the title to the property without paying the agreed consideration; that said release was obtained by appellant from ap-pellee under duress and by undue influence. Based upon said findings, the trial court entered judgment against appellant for $1,900.

The suit was originally instituted by ap-pellee against Thomas, Chapman, and appellant Cliett. Before the cause was tried the suit was dismissed by appellee as against Chapman and Thomas.

By his first seven propositions appellant complains of the action of the trial court in overruling certain exceptions which he leveled at appellee’s petition. We have carefully examined each of these and same are overruled.

By his propositions 8 to 18, inclusive, appellant complains of the action of the trial court in permitting appellee to testify relative to certain conversations he had with Ohapman and Thomas and conversations he had with appellant Cliett at the time he executed the release in January, 1929, and with reference to the testimony of the witnesses Mrs. Myrat and Mrs. Simmons relative to appellee’s physical and financial condition at the time said release was signed by appel-lee and delivered to appellant. Most of these questions were decided adversely to appellant in the former opinion. W$ have again carefully examined each of said propositions, and same are overruled.

By propositions 19 and 20 appellant coni tends that there was no evidence to support the finding of the jury that he (appellant) was guilty of any fraud, conspiracy, or bad faith in his dealings with appellee or in connection with said property. Without attempting to quote the testimony, we think! it is sufficient to support said findings.

By his proposition 21 appellant complains of the action of the trial court in refusing to require appellee to elect whether he would prosecute the suit for tort or for debt and foreclosure of his lien for the unpaid balance of the purchase price of said lots. We think this contention is without merit.

By his proposition 22 appellant contends that the trial court erroneously entered judgment for appellee for the $509 exemplary damages, on the theory that same were not recoverable under the evidence and that it amounted to a double award against him for damages in favor of appellee. We overrule this contention. Article 4004 of the Revised Statutes provides, in effect, that all persons guilty of fraud in land transactions, or who make false representations relative thereto or who derive any benefit therefrom, shall be jointly and severally liable to the person defrauded in actual damages, and in addition thereto, provides that all persons willfully making such false representations or knowingly taking advantage of said fraud, shall be liable in exemplary damages to the person defrauded in an amount not to exceed double the amount of actual damages. The record shows without controversy that appellant received whatever benefit was derived from the transaction in question. The evidence abundantly supported the allegation that Thomas and Ohapman made false and fraudulent representations relative to the value of the $1,500 vendor’s lien note which appellant gave appellee in lieu of the $1,500 cash. We think the evidence is sufficient to support the finding that appellant knew of said false and fraudulent representations so made by Thomas and Ohapman to appellee relative to said note and that he knowingly took advantage thereof.

By his remaining propositions numbered! 23 to 35, inclusive, appellant contends that the trial court erred in submitting each special issue to the jury, on the theory that there was no evidence to support any o.f them. On the former hearing we held there was sufficient evidence to require the trial; court to submit the cause to the jury. The facts are practically the same as then. We adhere to our former holding.

The legal questions involved -in this litigation were fully discussed in the former opinion and decided adversely to appellant’s contentions. The Supreme Court refused a writ of error. We deem it unnecessary to repeat what was said in said opinion.

All of appellant’s propositions and assignments are overruled.

The judgment of the trial court is affirmed.


author: SMITH, J.

text:
    CAFFARELLI et al. v. REASONOVER et al.
    No. 8889.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 26, 1932.
    Graham, Graham & Graham, of Brownsville, for appellants.
    A. B. Crane, of Raymondville, for appel-lees.
   SMITH, J.

One of the' appellees has confessed error, and the remaining appellees have filed no reply to appellants’ brief.

The appeal is from an order sustaining a plea in abatement to a suit to set aside a judgment previously rendered against appellants in the trial court. It was alleged as ground for setting aside the former judgment that counsel for all parties had an agreement, with the knowledge and approval of the trial judge, that the plaintiffs in that suit would not attempt to try the ease without first having it set for a day certain, and notice thereof given opposing counsel, who resided in another county. The case had been continued from time to time by plaintiffs, necessitating futile attendance at each term by out-of-county attorneys.- Such agreements are proper, and often made. It had the approval of the trial judge, should have been observed, and its breach entitled appellants to a new trial.

Appellants did not learn of -the rendition of judgment against them in the former > suit until after adjournment of the term, but did know of it in time to perfect and prosecute writ of error, if so minded. Appellants, however, forebore appeal, and chose to make a direct attack upon the judgment; but the trial judge sustained a plea in abatement thereto, upon the sole ground that appellants’ remedy lay in writ of error, and not otherwise.

We think the court erred in that ruling, upon that ground. The attack upon the judgment rested upon grounds not apparent of record, which could be shown only by testimony aliunde the record, and could not have been made apparent through writ of error. In such case appellants’ remedy lay not in appeal, which was inadequate, but only in a direct attack upon the judgment. Gutierrez v. Cuellar (Tex. Civ. App.) 236 S. W. 497; Senter v. Garland (Tex. Civ. App.) 298 S. W. 614; Cook v. Panhandle Ref. Co. (Tex. Civ. App.) 267 S. W. 1070; Lubbock Ind. School Dist. v. Abernathy (Tex. Civ. App.) 1 S.W.(2d) 426.

Other questions are raised, but as the error discussed requires reversal, this opinion need not be further prolonged.

• The judgment is reversed, and the cause remanded.


author: HICKMAN, C. J.

text:
    BURTON-LINGO CO. v. FEDERAL GLASS & PAINT CO.
    No. 1003.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 21, 1932.
    Rehearing Denied Nov. 18, 1932.

      Thomas R. Smith, of Colorado, Tex., for appellant.
    H. R. Bondies, of Sweetwater, for appel-lee.
   HICKMAN, C. J.

The appeal is from a judgment in favor of appellee against appellant on an itemized, verified account for goods, wares, and merchandise alleged to have been sold and delivered by appellee to appellant at the special instance and request of J. M. Pearson, who was alleged to have been duly authorized to bind appellant by his contract of purchase. The facts out of which the litigation grew are briefly as follows:

On July 25, 1929, a written contract was executed by and between D. S. Bodzin, the owner of a building in the city of Colorado, and appellant, Burton-Lingo Company, and J. M. Pearson, contractors, by the terms of which contract the contractors, for a stated consideration, obligated themselves to provide all the material and perform all the work mentioned in the specifications and shown on the drawings prepared by an architect for the store front to a building owned by Bodzin. This contract was fully performed by the contractors. Pearson superintended the work, and appellant financed it. Certain materials required for the completion of the contract were not carried in stock by appellant, and Pearson purchased them from appellee. This suit is for the purchase price of such materials. Appellee’s salesman testified: “After the goods wei’e delivered on the job, and before they were all installed, I went to Colorado for the purpose of seeing the manager of Burton-Lingo Company. I purposely went there to see him before they were installed. I wanted to know from him that they would be paid for before they went into the job. I knew when the goods were delivered and timed my visit accordingly. I called upon Mr. R. O. Pearson (appellant’s manager), and talked with him about the goods. I told him what J. M. Pearson had said about Burton-Lingo Company paying for them. We talked about my company delivering these goods and he knew about it. I-Ie knew they were going into the Bodzin job. I saw the goods on the job at that time. The result of our talk was that R. O. Pearson told me that Burton-Lingo Company would pay for the goods. I believe he said they would pay for them when they got the loan on the property.”

R. O. Pearson, appellant’s manager, gave the following testimony concerning the matter: “I don’t know when I first learhed that the Federal Glass & Paint Company was furnishing the plate glass and stuff on this Bod-zin job. We did not have that class of goods in our stock in Colorado and it had to be ordered from somewhere. I knew that it was being installed in the job as the work progressed. At the time I talked with Mr. Battle (appellee’s salesman), work on the job had not been finished. I do not remember whether all the glass had been installed at that time or not. Maybe some of it had not been installed. I knew it was coming from the Federal Glass & Paint Company. I refused to pay this bill because I understood it was ultra vires. By ultra vires I mean that my company could not contract with Mr. Bod-zin like it did.”

This witness further testified: “Burton-Lingo paid the labor bills on this job. You might say that they financed the job. Burton-Lingo Company got all the money that was paid by Bodzin on this job. J. M. Pearson did not get a cent. We furnished the material and paid the labor. J. M. Pearson did the work and was the contractor. I did not have but one conversation with Mr. Battle about the J. M. Pearson account. I did not tell him that Burton-Lingo Company would pay for it, I told him that we would see about it, or words to that effect.”

Appellant is a domestic corporation. The purpose for which it was organized is set forth in its charter as follows: “Such corporation shall be formed for the purpose of buying and selling goods, wares and merchandise of any description at wholesale and retail.”

The principal defense to appellee’s suit relied upon by appellant was that its contract with Bodzin, upon which it claimed appel-lee’s suit was based, was ultra vires, null, and void. Many issues were submitted to the jury, and upon the answers to such issues judgment was rendered in favor of appellee. Appellant briefs its case upon twenty-six assignments of error, under which many questions of law are presented. Appellee by cross-assignment presents that its request for peremptory instruction should have been granted. We have concluded that this cross-assignment is well taken, and, for that reason, it becomes unnecessary to consider appellant’s assignments.

Assuming, without deciding, that the contract between appellant and Bodzin was ultra vires, it would constitute no defense to this action. Appellee’s suit is based, not upon the contract between appellant and Bod-zin, but upon an account for goods, wares, and merchandise alleged to have been sold by it to appellant. The purpose for which appellant was created, as above shown, was “buying and selling goods, wares and merchandise of any description,” and it would be no defense to a suit for the purchase price of goods, wares, and merchandise bought by appellant for it to set up that same were bought to be used in the performance of its ultra vires contract. McKinney v. Andrews, 41 Tex. 363; Kottwitz v. Alexander’s Representatives, 34 Tex. 689; Labbe v. Corbett, 69 Tex. 503, 6 S. W. 808; Reed v. Brewer, 90 Tex. 144, 37 S. W. 418.

The controlling question in this case, as we view it, is whether or not appellant was bound by the contract of J. M. Pearson. Were appellant an individual and not a corporation, there would be no question as to the relation between it and J. M. Pearson. Their contract made them joint adventurers, each having the authority to bind the other by contracts made in furtherance of their joint enterprise. Does the fact that appellant is a corporation affect its liability on the executed contract of Pearson of which it has received the benefits? This question is so clearly discussed by Justice Boyce in Millers’ Indemnity Underwriters v. Patten (Tex. Civ. App.) 238 S. W. 240, 245, that we prefer to adopt his language as our own, wherein he states: “It is the law that a corporation, unless its charter authorizes it to do so, may not enter into a partnership. * * * But, when the parties have entered into such relations, and done business as partners, the law regards the acts already performed practically in the same way as if there had been a real partnership, though they are not perhaps strictly speaking partners. Some of the authorities refer to them as ‘joint adventurers,’ and the liability arising from such relationship as that of persons engaged in a joint enterprise. * * * The rights of the parties engaged in such an enterprise and those dealing with them, as to past transactions, are settled on practically the same basis as if they had been partners. * * * For practical purposes it would make no particular difference whether the relation would have been that of a partner, strictly speaking, or joint operators of the plant.”

In the instant ease the purchase of the goods from appellee by J. M. Pearson was a past transaction, of which appellant received the benefits, and its liability to pay for these goods is just the same as if it had been a legal partner of J. M. Pearson. “Contracts for the purchase of goods used in carrying on a business conducted by joint adventurers, although made by one member only, render all of them liable for the contract price.” 33 ■C. J. p. 872, footnote 30 (d). The evidence -presented no issuable fact as to the relation between appellant and J. M. Pearson, for it is conclusively shown by their written contract with Bodzin. Neither was there an issuable fact as to the contract price of the goods sold by appellee to Pearson. A peremptory instruction in appellee’s favor would therefore have been authorized. The errors, if any, of the lower court, committed upon the trial of the ease, become harmless, since it rendered the only judgment which could have been rendered properly upon the pleadings and the evidence.

That judgment will therefore be affirmed.


author: WALKER, J.

text:
    TEXAS & N. O. R. CO. v. BASS.
    No. 2250.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 6, 1932.
    Arterbury & Coolidge, of Houston, for appellant.
    Adams & McAlister, of Nacogdoches, for appellee.
   WALKER, J.

This was an action by appellee, as plaintiff, against appellant, as defendant, for damages for wrongfully ejecting him from its train, and upon a trial to a jury resulted in judgment in appellee’s favor for the sum of $7,-714.50.

Under the allegations of his petition, on the 23d day of August, 1930, appellee purchased a ticket from appellant’s agent at Lufkin, entitling him to transportation over appellant’s line of railway from Lufkin to Shreveport; on authority of this ticket he boarded appellant’s train at Lufkin, and, after boarding the train, delivered his ticket to Shreveport to appellant’s conductor, who accepted it; notwithstanding the CQnductor had accepted the ticket from appellee, when the train reached Appleby in Nacogdoches county, about thirty miles from Lufkin, the conductor ordered him to leave the train, whereupon he informed the conductor that he had paid his fare and had delivered to 'him his ticket to Shreveport, yet the conductor persisted in his order and ‘⅛ order to avoid further abuse and personal contact with said conductor, and through fear of personal violence from said conductor, plaintiff proceeded to leave train and alight therefrom near the station at Ap-pleby, Texas.” Appellee pleaded further that the ground was rough at the station at Apple-by, where he was compelled to alight; that he was compelled to alight “in the darkness and without any assistance from the defendant, its servants or employees, and in stepping from the train’s steps, the defendant having failed to place the footstool or step customarily used in ' aiding passengers to alight from trains on the ground, plaintiff stepped off of the train and into a hole or depression or uneven portion of the ground and lost his balance and fell, striking a frog of the defendant’s line of railway, which frog consists of two iron rails of defendant’s railway running parallel with one another and immediately adjacent to one another, leaving only a small space between said rails, which is made of iron of a heavy character.” As a basis for recovery he alleged the following injuries; ‘‘That plaintiff’s back or hip struck said iron frog, seriously injuring his hip, leg, back and spine, wrenching and straining the joints therein and fracturing the bones of the hip and tearing and straining the ligaments and tendons and muscles of his back and hip, impairing the great sciatic nerve, resulting in a severe case of sciatica.”

He predicated his cause of action upon the following grounds of negligence:

“(a) Defendant, its agents, servants and employees, -was guilty of negligence in compelling plaintiff to leave the train at Apple-by, Texas, in violation of their contractual relations with him to transport and deliver him safely to Shreveport, La., which negligence was the direct and proximate cause of the injury, in that said injury would not have occurred had not defendant breached its contractual obligations with plaintiff to safely transport him to his destination.
“(b) Defendant was guilty of negligence in compelling plaintiff to leave the train at Ap-pleby, Texas, in the darkness without providing any light by which he could see and by which he could be aided and assisted in descending from the steps of the train safely to the ground, which negligence was the direct and proximate cause of the injury complained of.
“(c) Defendant was negligent, after compelling plaintiff to leave the train, in violation of its contractual relations with him in not providing for a footstool or step upon which plaintiff could step in descending from the train, which footstool would have enabled the plaintiff to safely alight from said train and which negligence was the direct and proximate cause of the injury.
“(d) Defendant was guilty of negligence in not furnishing a safe place upon which plaintiff could alight in descending from the steps of said train after he had been compelled to leave the same in violation of the contractual obligations on the part of defendant with plaintiff, in that the place where plaintiff was compelled to alight was rough and unlevel ground and in stepping from said train plaintiff stepped into a hole in the earth, resulting in the injury, which negligence was the direct and proximate cause of the injury.”

Answering special issues, the jury found (a) that appellee boarded appellant’s train at Lufkin with a ticket for Shreveport on August 24, 1930; (b) that appellee was ordered by the conductor to leave the train at Apple-by ; (c) that appellee left the train at Apple-by “in pursuance to said order of the conductor”; (d) that appellee received injuries in leaving the train at Appleby; *(e) “that the ordering of the plaintiff from the train at Ap-pleby by the conductor and his getting off the train was the proximate cause of the injury received by the plaintiff.”

Opinion.

We agree with the contention of appellant that its act, through its conductor, in ordering appellee to leave the train, was not in law the proximate cause of appellee’s injuries sued for. The facts were'undisputed that the train stopped at the usual and customary place at Appleby, one of its regular stations, and under all the facts, if appellee was injured in the manner contended for by him, his injuries were the result of the failure of appellant to provide a safe place for him to alight from the train. The negligence of appellant in this respect was pleaded by paragraphs (b), (c), and (d) of his petition, as copied above, but for some reason these acts of .negligence were not submitted to the jury. After testifying, in accordance with his allegations, that the conductor wrongfully ordered him to leave the train, and to avoid controversy he undertook to obey the. order, appellee testified further as follows, reducing the questions and answers in the statement of facts to a narrative statement: “I walked back down where the negro was, and he was standing, as well as I remember, just inside of the car door where I would go out, and I walked past him and turned to the right to get off down the step, and the negro stepped off behind me with the lantern, and as I stepped off down the steps to the bottom there was no light there, and it was dark, and as I stepped off I did not know how far it was, and thought it was just a small place there, and went something like ten inches, and it was two feet further than that, and that put me off my calculation where I was going to land, and when I did land I went in some kind of a depression or hole there on the cinders, and when I did land I jerked a kink or catch in my back there; and I started to get up, and I could not get up; and just about that time the negro stepped down on the ground and said ‘Oh, I am sorry you got hurt’; and I says ‘Yes, you ought to have put that stool down there and brought the lantern there’; and he said ‘Captain, I sure wish I had; X wish I had got that stool.’ ”

Plaintiff’s measure of damages was based entirely upon the injuries received by him as a result of his fall in alighting from the train. Under his testimony, had appellant performed its duty of providing a safe place for him to alight, appellee would not have fallen and would not have received the injuries sued for. From this statement of the facts it follows that, as a matter of law, the proximate cause of plaintiff’s injuries to his back and the other damages for .which he sued was not the order of the conductor, directing him to leave the train, but the negligence in failing to furnish him a safe place to alight from the train. If the conductor wrongfully ordered him to leave the train, of course appellee would have an action for wrongful ejectment, but that is not the cause of action sued for herein and upon which he recovered. The case of Texas & New Orleans Railroad Co. v. Rooks (Tex. Com. App.) 293 S. W. 554, is decisive in appellant’s favor on this proposition. The case of Fountain v. H. E. & W. T. Ry. Co. (Tex. Civ. App.) 298 S. W. 630, is interestingly in point in support of appellant’s proposition that the negligence found by the jury was not the proximate cause of appellee’s injuries.

There is no merit in the contention of ap-pellee that the answer of the jury to question i(e) above is sufficient to support the judgment and distinguishes this case from the Rooks Case just cited. That the plaintiff got off the train as the result of the orders of the conductor was not the proximate cause of his injuries ; but, as just stated, the proximate cause of his injuries was the failure to provide a safe place for him to alight.

The argument of counsel for appellee in this case was reversible error. Under the. bills of exception it is shown that appellee brought a larger number of witnesses to court to testify as to his good reputation as a citizen and to his truthfulness and veracity. The court sustained objections to this testimony. The argument complained of, and to which the trial court overruled appellant’s exceptions, was as follows:

“Gentlemen of the jury: I know how it feels to be a long way from home and among strangers, and I know that if I was being tried away from home I would want my neighbors and those who have lived near me and who know me best to come and testify and tell the jury what kind of a man I am. We brought many of the plaintiff’s neighbors here to testify before this jury as to this plaintiff’s reputation in the community where he lives, but they refused to let them testify.”
“Gentlemen of the jury: The railroad company would have you believe that this plaintiff was never injured, and that his suit against the railroad company is a frameup. You recall that we have brought before you gentlemen old man Runnels, plaintiff’s neighbor, who knows the plaintiff and is familiar with the life he had lived ⅛ his community and who came down here and wanted to testify as to the kind of a man plaintiff is, but they refused to let him testify.”
“Gentlemen of the jury: We brought before you Brother Williams, a Baptist minister, who is this plaintiff’s preacher, and who knows the kind of life he lives in his community. Brother Williams was ready to testify, but they refused to allow him to tell what he knew about this plaintiff.”
“Gentlemen of the jury: The railroad company in this case would have you believe that this plaintiff has framed up a law suit, and that he was not injured on the occasion in question, yet we bring witness after witness here who are neighbors to this plaintiff, to testify as to his good reputation in the community where he lives.”

This argument was clearly reversible error under the holding of First Nat. Bank v. Harkrider (Tex. Civ. App.) 157 S. W. 290. Meeting appellant’s argument, appellee, in his written brief, says: “Had plaintiff’s attorney gone further and stated that each of these witnesses would have testified to a certain statement of facts, unquestionably it would have 'been reversible error.”

The last paragraph of the argument, as copied above, falls exactly within this proposition.

For the reasons stated the judgment is reversed and the cause remanded without discussion of appellant’s assignment that the verdict was excessive. The other assignment against the argument of counsel for appellee is overruled as not having any basis in the facts certified to by the bill of exception.

Reversed and remanded.


text:
    NEW AMSTERDAM CASUALTY CO. v. SCOTT.
    No. 1015.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 4, 1932.
    Touchstone, Wight, Gormley & Price and Robert B. Holland, all of Dallas, for appellant.
    Grisham, Patterson & Grisham, of East-land, for appellee.
   HICKMAN, C. J.

This suit arose under the Workmen’s Compensation Law (Vernon’s Ann. Civ. St. art. 8306 et seq.), and was filed by appellee in the court below to set aside an award of the Industrial Accident Board. Due notice of his intention not to abide by the award was given by appellee, and the suit was filed in the district court of the county where the injury occurred within the statutory time. Appellee alleged that, on June 16, 1928, while he was in the course of his employment as an employee of Arab Gasoline Corporation, a bolt dropped from a pulley about twelve feet above him, struck him on the back of his head, inflicting a wound sufficient to break the skin; that he was temporarily stunned by the blow, but within fifteen minutes returned to his work and continued from day to day to perform his work until on or about the 10th day of April, 1930; that during all of that period he experienced some pain and discomfort from the injury, and daily 'applied medicine prescribed by a physician to the injured part; that the wound refused to heal, and on or about March 1, 1930, he began to have fever each day and continued to do so as a result of said injury until on or about the 11th day of April, 1930, when he was forced and compelled to quit work, and was thereafter sent to a specialist in Dallas for an examination. On the 22d day of April, 1930, he was advised by the specialist that a cancer had developed on his head, “and plaintiff says that said cancer is incurable, and that, as a result of same, and as a direct and proximate result of the injury which he received in the course of his employment and in line of duty on the afternoon of June 16th, 1928, this plaintiff is totally and permanently disabled and incapacitated to do and perform labor, and that he has been totally and permanently incapacitated at all times subsequent to and inclusive of the 11th day of April, 1930.”

The case was submitted to a jury on special issues, and, upon the answers to such issues, judgment was rendered in favor of appellee against appellant for $6,439.19 in a lump sum for total permanent incapacity.

Special issue No. 5 of the court’s charge whs as follows: “Do you find, from a preponderance of the evidence, that the plaintiff had good cause for his failure, if any, to file claim for compensation with the Industrial Accident Board within six months after his injury, if any’”' To which the jury answered “Yes.”

To this issue, as submitted, the appellant timely presented, among others, the following objection and exception: “Defendant objects and excepts to special issue No. 5 and the submission thereof to the jury, for the reason that the said issue fails to confine the jury in its answer thereto, to consideration of those things pleaded by the plaintiff as good cause for his failure to file claim for compensation within six months after the date of his injury, if any.”

The claim was filed with the Industrial A'ccident Board on October 13, 1930, more than two years after the accident. The good cause pleaded by appellee for not sooner filing his claim was, in substance, that he did not believe that said injury would result in his incapacity in any degree until in April, 1930. Upon the trial he was permitted by ■the court, over the objection of appellant, to testify as to other matters of good cause, consisting of his belief, based upon statements made to him by his employer’s superintendent, that he had written, or would write, the board about it, and because of such representations, and relying upon the superintendent to do so, the appellee did not file any claim. Clearly the issue, as submitted, did not confine the jury, in its answer thereto, to a consideration of the facts pleaded by appellee as showing good cause for his failure to file a claim within six months, and the good cause found by the jury may have been one not pleaded at all. In this condition of the record it was error not to limit the jury in its answer to a consideration of those facts pleaded as constituting good cause. The jury should not have been left at liberty to find a good cause different from that pleaded. Texas Employers’ Ins. Ass’n v. Martin (Tex. Civ. App.) 296 S. W. 639.

The issue, as submitted, was subject to another objection which is urged here. By it the jury was called on to determine, not whether appellee had a good cause for his failure to file the claim at an earlier date than that upon which he actually filed it, but whether .he had good cause for his failure to file same within six months after his injury. More than two years elapsed between the date of the accident and the date of the filing of the claim. A good cause may have existed during the first six months after the accident, but that fact alone would not excuse the delay of more than two years. The issue should have inquired whether good cause existed for failure to file the claim at an earlier date than same was actually filed. Holloway v. Texas Indemnity Insurance Co. (Tex. Com. App.) 40 S.W.(2d) 75.

We doubt whether any one of appellant’s many objections to the court’s charge was sufficiently specific to present this question, but, since the case must be reversed on the ’assignment above discussed, we have expressed our views on this latter question for the guidance of the trial court upon a retrial of the case.

As we understand appellee’s position, he concedes error in the particulars above pointed out, but contends that no harm resulted to appellant therefrom, because the issue should not have been submitted to the jury in the first place. He now claims that the injury was not received on June 16, 1928, but that the date of the injury was “April 22nd, 1930, or April 13th, 1930, or in any event, April 12th, 1930.” The argument is therefore made that he did, in fact, file his claim within six months after the injury. This contention is .'based upon the theory that “accident” and “injury” are not synonymous terms under the Workmen’s Compensation Law, and that he suffered no injury so long •as he was able to pursue his labor in the usual and customary m'anner. His brief contains a very able and interesting argument on this theory, but we are not called upon to discuss same, for the reason that it is not the theory upon which the case was pleaded, tried, and submitted in the court below. No rule of appellate procedure is better established than that parties are restricted in the appellate courts to the theory on which the case was tried in the lower court. 3 Tex. Jur. § 111, p. 168 et seq. As is well said in Boatner v. Providence-Washington Ins. Co. (Tex. Com. App.) 241 S. W. 136, 140: “The law forbids the assumption of an attitude on appeal inconsistent to that taken at the trial.” The record in this case leaves no doubt as to the theory on which the case was tried below. The petition on which appellee went to trial contains this paragraph: “Plaintiff says that he did not make claim for compensation before the Industrial Accident Board within six months from the date of said injury, but that he had good cause and good reason for not doing so, which will hereinafter more fully appear.”

All of the petition is in harmony with that, allegation, and much of the evidence contained in the statement of facts was offered to establish the fact that good cause existed for not filing the claim within six months from June 16, 1928. In submitting the ease to the jury, the same theory was adopted. The first, issue was as follows: “Do you find, from a. preponderance of the evidence, that the plaintiff C. C. Scott sustained an injury on the-16th day of June, 1928, while he was working for the Arab Gasoline Corporation in the-course of his employment?” To which the jury answered “Yes.”

The second issue called upon the jury to-determine whether or not the plaintiff had been totally incapacitated to labor as a re--sult.of the injuries, if any, that he received on the 16th day of June, 1928. The third special issue inquired as to whether the injuries received by him on the, 16th day of June,. 1928, were permanent.

Appellant has not had its day in court on the issue of its liability for injuries received by appellee in April, 1930. It would be manifestly a violation of the well-established principle of appellate procedure above stated for this court to affirm the judgment of the lower court in this ease on the theory now advanced. 'By what has been stated we do not wish to be understood as holding that the theory relied upon by appellee in this court would have been a correct one if the case had been pleaded and tried on that theory below. We do not piass on that question.

Reversed and remanded.


author: JACKSON, J.

text:
    GORDON et ux. v. McINTOSH et ux.
    No. 3886.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 19, 1932.
    Rehearing Denied Nov. 16, 1932.
    Cook, Smith, Teed, Sturgeon & Wade, of •Rampa, for appellants.
    S. D. Stennis, W. M. Lewright, and John V. Osborne, all of Pampa, for appellees.
   JACKSON, J.

Dan McIntosh and wife, Mrs. Dan McIntosh, instituted this suit in the district court of Gray county, Tex., to recover damages for personal injuries to Mrs. McIntosh claimed to have been occasioned by the alleged negligence of Mrs. Gordon and her agents.

Appellees alleged that Mrs. Gordon had a lease on a certain building situated at No. 106 South Cuyler street, in the city of Pampa, in which she was conducting a ladies store. That the front of the building was arranged with a show window on either side, leaving an aisle about ten feet in length, which extended from the sidewalk to the door through which customers entered the store. That this aisle was paved or floored with tile and when wet was slippery and dangerous to walk on; that it was the duty of Mrs. Gordon to keep said aisle in a dry condition so as to protect those who had occasion to enter the store from slipping and falling. That about May 6, 1930, Mrs. McIntosh started into the store to purchase some goods and while walking along said aisle, on account of the wet and slippery condition thereof, slipped and fell and sustained the personal injuries for which she seeks damages. Appellees charge that Mrs. Gordon was negligent in leaving the tiled floor of the aisle wet and slippery, in failing to cover the tile with sawdust or sweeping compound to prevent persons from slipping thereon, and in failing, to maintain the floor of the aisle in a reasonably safe condition for use by the public and Mrs. McIntosh, and that such negligence was the proximate cause of her injuries, which she sets out in detail, and prays for judgment for $4,000 for such injuries and $1,000 expenses for hospital and doctors’ bills.

The appellants answered by general demurrer, numerous so-called special exceptions, general and special denials, admit that Mrs. Gordon had the building leased and was conducting therein a mercantile business, alleged the contributory negligence of Mrs. McIntosh, that her injuries, if any, were not caused by the condition of the tiled floor, but were due to injuries caused by her diseased and disordered condition. That if the floor of the aisle was wet and slippery from any substance placed thereon, neither Mrs. Gordon nor her agents were responsible therefor and had no knowledge thereof, and such wet or slippery condition was produced by some substance placed thereon for which they were not liable.

It is not necessary that we set out separately the special issues submitted to the jury by the court. It is sufficient to state that the jury answered that Mrs. McIntosh fell on account of the slippery condition of the tile on the floor of the aisle; that this condition was known to Mrs. Gordon and her agents and was due to their negligence; that Mrs. McIntosh was not guilty of contributory negligence and that her injuries were not due to her diseased physical condition; that she was entitled to recover for her personal injuries the sum of $4,000, and the sum of $925 incurred for hospital and doctors’ bills.

In conformity to these findings, the court decreed that Mrs. McIntosh take nothing against August A. Gordon and have and recover of and from Mrs. Gordon the sum of $4,925, with interest and costs, from which judgment Mrs. Gordon, joined by her husband, prosecutes this appeal.

The appellants challenge as error the action of the trial court in failing to direct a verdict in their behalf because the evidence' was insufficient to warrant the court in submitting to the jury whether the floor of the aisle was wet and slippery, whether the appellants knew of such condition and had known it for a sufficient length of time to have remedied such condition, and insufficient to support the findings of the jury on such issues.

We shall refrain from stating the testimony revealed by the record, and while these issues were controverted, the evidence, considered in the most favorable light to appellee, was, in our opinion, sufficient to authorize the submission of such issues to the jury and to support their findings thereon. •

The appellants present as error the action of the trial court in rendering judgment in favor of appellee because the court failed to submit to the jury an issue as to whether the fall of appellee in the aisle was the proximate cause of her injuries.

The court did not submit such issue, and it was not requested. There is no finding by the jury that Mrs. McIntosh was suffering from any physical injuries, but under the evidence it may be conceded that this issue was not controverted.

She had alleged that the injuries from which she was suffering resulted from her slipping and falling on the floor of the aisle leading from the sidewalk to the door of the store. The appellants alleged in their answer that if Mrs. McIntosh was in an injured condition, such injuries were not caused by her fall in the aisle, but were due to her disordered physical condition produced by a disease from which she was suffering at the time she fell or that such condition caused her to faint and fall.

The evidence was sharply controverted as to whether the injuries from which Mrs. McIntosh was suffering were the result of her slipping and falling in the aisle, or were due to her physical condition brought about by sickness and an operation that she had theretofore undergone.

The jury found that Mrs. McIntosh was ■not physically diseased prior to the fall, but there was no issue submitted to the jury requesting them to determine whether the negligence of the appellants was the proximate cause of the injuries of Mrs. McIntosh, or whether her slipping and falling on the floor of the aisle were the proximate cause of such injuries.

The case was tried before a jury, and the proximate cause of the injuries of the ap-pellee was an issue of fact made both by the pleadings and the testimony, and the burden was upon her to prove such issue and secure a finding of the Jury thereon in her behalf.

Judge Sharp, for the Commission of Appeals, in International-Great Northern R. Co. v. Casey, 46 S.W.(2d) 669, 671, says: “The decisions of this state hold that, when a jury is demanded to try the facts, litigants are entitled to have every essential and independent issue submitted to the jury for a finding thereon. The finding of the jury that the railroad company was negligent, as above described, without also finding that such negligence was the proximate cause of the damages sustained by plaintiff, would not support a judgment based thereon. If the owner relied upon the negligence of the operatives of the train in approaching the crossing, in failing to ring the bell and blow the whistle, for a recovery, it was essential that there should have been submitted to the jury an issue that the negligence of the operatives of the train in approaching said crossing was the proximate cause of the damages sustained by him. This record does not show that the defendant in any way waived this issue. The settled doctrine in this state is that proximate cause is a question of fact for the jury. It can only become a question of law when the facts and circumstances are such but that one reasonable conclusion can be drawn therefrom. The law places the burden upon the plaintiff to allege and prove that he was entitled to a judgment against the railroad company, and, if the pleadings and evidence raise certain issues, it was the duty of the trial court to submit the essential issues to the jury for a finding thereon. If the court failed to submit such issues, it was the duty of plaintiff to request their submission. If plaintiff failed to do this, he has not met the burden placed upon him by law. If it was not done, the law presumes that he waived it, and, unless it is a matter that is incidental .or supplemental to the ultimate issues, then the trial court would not be justified in finding this essential fact without having an answer to the jury first made on the issues submitted. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084; Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S. W. 902; Bulin v. Smith (Tex. Com. App.) 1 S.W.(2d) 591; Dallas Hotel Co. v. Davison (Tex. Com. App.) 23 S.W.(2d) 708; Montrief & Montrief v. Ft. Worth Gas Co. (Tex. Com. App.) 4 S.W.(2d) 964; Federal Surety Co. v. Smith (Tex. Com. App.) 41 S.W.(2d) 210. This contention is sustained.”

This holding is approved by the Supreme Court; hence this assignment is sustained.

The appellants urge as error the action of the court in assuming in special issues Nos. 1 and 5 the existence of certain controverted facts.

Special issue No. 1 reads as follows: “Do you find from a preponderance of the evidence that the defendants herein, their agents, servants or employees, left the entrance way to the defendant’s store in a wet condition on May 5, T930, at the time plaintiff, Mrs. Dan McIntosh, attempted to enter said store?”

Special issue No. 5 is in this language: “Do you find from a preponderance of the evidence that the negligence of the defendants in leaving the area way to the store in a wet condition on May 5, 1930, at the time the plaintiff Mrs. McIntosh attempted to enter said store, if the same wag left in such condition, was a proximate cause of the plaintiff, Mrs. Dan McIntosh, slipping and 'falling, if she did so slip and fall?”

The appellees contend that these issues are not subject to the objection that they were on the weight of the evidence and assume the existence of controverted facts, because the jury had answered issue 1A that the aisle of the entrance way was left in a wet condition, and issue No. 3 that such wet condition was negligence, and the court had advised the jury that unless they answered 1A that the aisle was left in a wet condition, and No. 3 that such wet condition was negligence, not to pass on issues 1 and 5.

The fact that the court submitted in issue 1A whether the floor was left in a wet condition, and in issue No. 3 whether the leaving of the floor in such wet condition was negligence, did not, in our opinion, correct the errors complained of, because he, in effect, in issue No. 1 advised the jury that the aisle of the floor was in a wet condition and in issue No. 5 that such wet condition constituted negligence.

“True, the court, in his first issue, submitted for the determination of the jury whether or not appellant was guilty of negligence in opening and leaving open the switch, but appellee’s right to recover for the injuries received by the derailment of the motorcar, in which he was riding, depended on appellant’s negligence in opening and leaving open said switch. This was an issue of fact which appellant was entitled to have determined by the jury, without any intimation, suggestion, or assumption from the court as to the existence of suoh act of negligence. C., R. I. & G. R. Co. v. Hammond (Tex. Civ. App.) 286 S. W. 483; Freeman v. G., H. & S. A. R. Co. (Tex. Com. App.) 285 S. W. 607; Turner et al. v. Dinwiddie et al. (Tex. Civ. App.) 276 S. W. 444; T. & P. Coal Co. v. Sherbley (Tex. Civ. App.) 212 S. W. 758, 761.” Chicago, R. I. & G. Ry. Co. v. Bernnard (Tex. Civ. App.) 290 S. W. 292, 295.

See, also, City of Amarillo v. Rust (Tex. Civ. App.) 45 S.W.(2d) 285; Gulf, C. & S. F. R. Co. v. Houston (Tex. Civ. App.) 45 S.W. (2d) 771; Monzingo v. Jones (Tex. Civ. App.) 34 S.W.(2d) 662.

Whether the tiled floor in the aisle was wet, and whether, if wet, it was due to the negligence of the appellants, were both controverted issues, and the testimony was such that a finding of the jury in favor of appellants on such issues, if properly submitted, would have been warranted. There is no question but what, these issues, as submitted, assumed the existence of controverted facts and were on the weight of the evidence and in our opinion constitute reversible error.

The appellants also complain that the court placed too great a burden on them in submitting to the jury whether they maintained the aisle in a safe condition.

This contention is correct, as the appellants were not required to keep the aisle or entrance way to the store in an absolutely safe condition for the plaintiff and the public, but were required to exercise ordinary care to keep it in a reasonably safe condition.

What we have said is sufficient to dispose of the assignments urging as erroneous other special issues contained in the court’s charge, and in view of our disposition of this appeal we deem it unnecessary to discuss the assignments attacking the pleading of appellees, because if such assignments present errors, they can readily be corrected by an amendment.

The judgment is reversed, and the cause remanded.