author: DIXON, Chief Justice.

text:
    Burnett ESTES, Appellant, v. CONTINENTAL BANK & TRUST CO., Appellee.
    No. 16975.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 20, 1967.
    Rehearing Denied Nov. 17, 1967.

      Sam Rodehaver, of Hooks & Wyrick, Dallas, for appellant.
    Frank L. Skillern, Jr., of Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
   DIXON, Chief Justice.

Burnett Estes has appealed from a summary judgment against him for $525,000 based on a contract of guaranty.

On October 5, 1964 Clarence H. Everett & Co., Inc. and Clarence H. Everett individually executed a promissory note in the amount of $500,000 to appellee Continental Bank & Trust Co. of Houston, Texas, said note being payable on demand, or if no demand, in 90 days from date and providing for reasonable attorneys’ fees.

The note was secured by collateral held by appellee Bank including three building construction contracts, a first lien note, a second lien note, corporation stock in Clarence H. Everett & Co., Inc. and other items which need not be described in detail.

On the same date, October 5, 1964, appellant Burnett Estes in connection with the above loan executed a guaranty contract whereby he did “guarantee to the Bank * * * the prompt payment at maturity of any and all indebtedness that is now, or at any time hereafter may become, owing to the Bank from the borrower” not to exceed $500,000. The agreement also provided for 10 per cent attorneys’ fees if placed in the hands of an attorney for collection, etc.

Unfortunately Clarence H. Everett & Co., Inc. became involved in financial difficulties. It was unable to complete performance of its three contracts for the construction of certain buildings. The surety on its performance bond had to complete construction of the buildings. Clarence H. Everett & Co., Inc. and Clarence H. Everett, individually, defaulted in payment of the $500,000 note. Suit was filed against them and appellant on the note and contract of guaranty.

On June 1, 1965 appellee filed a motion for partial summary judgment against Clarence H. Everett & Co., Inc. and Clarence H. Everett individually for a balance of $448,743.46 principal plus interest at 6½ per cent from January 9, 1965. This motion was sustained and partial summary judgment rendered by agreement against the two above named defendants.

On November 11, 1966 appellee Bank filed a motion for summary judgment against Burnett Estes. This motion was supported by the affidavit of a vice-president of the Bank, by the pleadings, by answers to requests for admissions and by answers to interrogatories. Hearing of this motion was set for November 23, 1966.

The above affidavit itemized the payments advanced to the borrowers pursuant to the terms of the note and also the payments made and credited to the borrowers. It also stated the status and disposition made of the collateral which had been left with appellee.

On November 21, 1966 appellee filed what may be regarded as a supplemental affidavit in support of its motion. Richards v. Allen, 402 S.W.2d 158 (Tex.Sup.1966). This affidavit amplified the statements in the first affidavit by including copies of a ledger sheet, bank deposit slips and cancel-led checks.

The court did not render judgment on November 23, 1966, the date of the hearing, but took the matter under advisement. On November 28, 1966 appellee’s motion was sustained and judgment rendered against appellant for the sum of $500,000 plus $25,000 attorneys’ fees.

Appellant’s first point on appeal is that the court erred in permitting appellee to file an affidavit in support of its motion for summary judgment after the date of the hearing without notice to him and without giving him an opportunity to controvert the affidavit.

The challenged affidavit was filed on November 28, 1966, the date final summary judgment was rendered following the hearing on November 23, 1966. There is no showing that appellant had knowledge of tlje filing of the affidavit or that he was given an opportunity to controvert it.

We think it was error to permit the filing of the affidavit and to render summary judgment on the same day without notice to appellant and without giving him an opportunity to file a controverting affidavit. However, the statements made in the affidavit, whether true or not, are immaterial to the outcome of this case either in the trial court or on appeal. The affidavit asserts that appellant’s attorney well knew that appellee was about to release part of the collateral and even agreed to the particular releases. As we shall point out in our consideration of appellant’s second point on appeal, the question of prior notice to appellant as to the handling of the collateral by appellee has no bearing on the outcome of the case in view of the terms of the contract of guaranty. Therefore the belated filing by appellee of the affidavit on November 28, 1966 must be considered harmless error. For that reason appellant’s first point on appeal is overruled.

In his second point appellant says “that fact issues were raised by the pleadings and Appellant’s controverting answers .to Motions for Summary Judgment, and various Affidavits, such facts being of a nature to remove the cause from the providence (sic) of the court, and requiring a fact finding body.”

The above point is too general and uncertain to require our consideration. Crutchfield v. Associates Investment Co., 376 S.W.2d 957 (Tex.Civ.App., Dallas 1964, writ ref’d).

However, we shall consider the above point since we gather from the statement and authorities under the point that appellant complains because appellee did not give notice to appellant before releasing or allowing withdrawal of some of the collateral held by appellee. There is no merit in appellant’s contention.

The contract executed between appellant and appellee is not a conditional guaranty. It does not merely guarantee “collection” of the note should the Bank first be unsuccessful in its efforts to effect collection from the borrowers themselves. It expressly guarantees “the prompt payment at maturity” of any and all indebtedness due by Clarence H. Everett & Co., Inc. to the Bank. It is an absolute guaranty. El Paso Bank & Trust Co. v. First State Bank, 202 S.W. 522 (Tex.Civ.App., El Paso 1918); 27 Tex.Jur.2d 283, 320. The distinction is not without significance in this case in regard to the rights of appellant and appellee.

The absolute nature of the guaranty is further shown by other express provisions:

“Whenever any indebtedness, or any renewal thereof hereunder, shall become due and remain unpaid, the Guarantors * * * will on demand * * * and without any notice having been given to the Guarantors previous to such demand, of the acceptance by the Bank of this guaranty, and without any notice having been given to the Guarantors previous to such demand, of the creating or incurring of such indebtedness, pay the amount due thereon to the Bank, * * * and it shall not be necessary for the Bank, in order to enforce such payment by the Guarantors, to first institute a suit, or exhaust its remedies against Borrower, or others liable on such indebtedness, or to enforce its rights against any security which shall have been given the Bank to secure such indebtedness.
“Notice to the Guarantors of the acceptance of this guaranty, and of the making, renewing or assigning of any indebtedness hereby guaranteed, is hereby expressly waived by the Guarantors. * * *
“The Bank, its successors and assigns, shall not be liable for failure to use diligence in the collection of any indebtness hereby guaranteed. * * *
“It is specially agreed that the liability of each of the Guarantors for the payment of each note, or other obligation secured hereby, shall be primary and not secondary, * * (Emphasis ours.)

Furthermore, we think appellant’s claim that he was entitled to notice before any of the collateral was released is negatived by the express terms of the contract. We quote from the instrument itself:

“If any, or all, of the indebtedness hereby guaranteed be secured, the Guarantors agree that the Bank may, from time to time, at its discretion, and with or without valuable consideration, allow substitution or withdrawal of collateral, or may release security; and should the Borrower execute in favor of said Bank any collateral agreement, the exercise by the Bank of any right conferred upon it in said agreement, shall be wholly discretionary with the Bank, and such exercise of, or failure to exercise, such right shall in no wise impair or diminish the obligations of the Guarantors hereunder.” (Emphasis ours.)

It will be observed that the provision above quoted gives the Bank the right with or without consideration to allow substitution or withdrawal of collateral, or release of security at the Bank’s discretion. The provision is in our opinion plain and unambiguous. It does not require notice to appellant either expressly or by implication, but by clear implication expresses a contrary intention. Appellant’s second point is overruled.

Appellant does not deny under oath appel-lee’s sworn statement of the amount paid to Clarence H. Everett & Co., Inc. or to Clarence H. Everett individually; nor does he deny under oath the truth of appellee’s sworn statement of payments received and credited on the borrower’s note.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    Raymond LETCHER, Appellant, v. Louise E. LETCHER, Appellee.
    No. 14605.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 11, 1967.

      Reid, Taylor & Murray, Jeff Davis, San Antonio, Sam Darden, Bandera, for appellant.
    Pat Maloney, San Antonio, for appel-lee.
   KLINGEMAN, Justice.

Action by Raymond Letcher, the appellant herein, against his wife, Louise E. Letcher, appellee herein, for divorce, partition and division of community property, and for an adjudication by the court that appellant is the owner of an undivided one-half interest in a certain 1451-acre tract of land, and that appellee is holding such one-half interest in trust for appellant. Appellee contested the suit for divorce, but asked the court to adjudge said 1451 acres to be her sole and separate property. The trial court held, as a matter of law, that said 1451-acre tract was the sole and separate property of appellee. Trial of the divorce matter was to a jury, who found that the appellee had not been guilty of excesses, cruel treatment, or outrages toward appellant of such a nature as to render their living together insupportable. Judgment was entered thereon denying the divorce and decreeing said 1451 acres to be the sole and separate property of appellee in fee simple absolute.

Appellant asserts: (a) that there is no evidence to support the jury’s finding; (b) that there is insufficient evidence; (c) that the judgment rendered by the court based on the finding of the jury is contrary to the overwhelming preponderance of the evidence and is manifestly wrong and unjust; and (d) that the judgment of the court based upon the finding of the jury is not substantiated by any evidence and is contrary to law and equity.

In order to justify the granting of a divorce in this State the evidence must be full and satisfactory. Art. 4632, Vernon’s Ann.Civ.St.; Gentry v. Gentry, 394 S.W.2d 544 (Tex.Civ.App.Corpus Christi 1965, no writ); Resendez v. Resendez, 282 S.W.2d 318 (Tex.Civ.App.—San Antonio 1955, no writ); Howell v. Howell, 206 S.W.2d 616 (Tex.Civ.App.—Galveston 1947), certified question answered, 147 Tex. 14, 210 S.W.2d 978 (1948); Kreiter v. Kreiter, 137 S.W.2d 184 (Tex.Civ.App.—Galveston 1940, no writ) ; Hickman v. Hickman, 20 S.W.2d 1073 (Tex.Civ.App.—Waco 1929, no writ).

We have carefully examined all of the testimony in the record. Both appellant and appellee are over seventy years old and had been married for more than forty years at the time suit for divorce was instituted. Appellant testified that appellee constantly nagged and fussed at him, and this made him nervous and affected his health; that appellee did not properly feed him or take care of his clothes; that she made him sleep in a small bedroom by himself; that for many years she had refused sexual relations with him; and he contended that his wife’s refusal to reconvey to him an undivided one-half interest in the 1451-acre tract of land constituted cruelty. Appellee’s testimony directly contradicted appellant’s testimony. She testified that she did not nag or fuss at her husband; that she always provided him with food and took care of his clothes; that his staying in the single bedroom was by his own choice; and that she never refused him to her bed. Appellant’s complaints as to some alleged acts of cruelty are supported by disinterested witnesses, but appellee’s testimony is also corroborated by a number of disinterested witnesses.

The jury and the trial court had the opportunity to observe the manner, demeanor and deportment of the witnesses, at the trial, and it was their function, and not ours, to determine the credibility of the witnesses and the weight to be given their testimony. Mortensen v. Mortensen, 186 S.W.2d 297 (Tex.Civ.App.—San Antonio 1945, no writ); 3 Speer, Law of Marital Rights in Texas § 908, pp. 363-364; 20 Tex.Jur.2d, Divorce and Separation, § 189 (1960).

Where a divorce has been refused by a trial court, the judgment should not be reversed unless it clearly appears from-all of the testimony in the record that the trial court plainly erred in refusing the divorce. Hunter v. Hunter, 321 S.W.2d 92 (Tex.Civ.App.—El Paso 1959, no writ); Winters v. Winters, 282 S.W.2d 749 (Tex.Civ.App.—Amarillo 1955, no writ); Caldwell v. Caldwell, 176 S.W.2d 758 (Tex.Civ.App.—Amarillo 1943, no writ); Kreiter v. Kreiter, supra; Buckner v. Buckner, 27 S.W.2d 311 (Tex.Civ.App.—Beaumont 1930, no writ); 20 Tex.Jur.2d, Divorce and Separation, § 188 (1960); Speer, Marital Rights in Texas § 908, p. 363, (4th ed. 1961).

The findings of the jury and the-court’s judgment thereon denying the divorce are sufficiently supported by the evidence. Appellant’s points of error Nos. 24, 25, 26 and 27 are overruled.

Appellant complains of the trial court’s-action: in failing to acknowledge the jury’s-communication that they could not arrive at a verdict; in instructing the jury to refer to the charge of the court in answer to their question, when said charge in itself did not have anything within it which would answer the jury’s question; in failing to instruct the jury in accordance with Rules 286 and 287, Texas Rules of Civil Procedure, as requested by appellant; in withholding certain exhibits from the jury when they retired to consider their verdict, and from supplying such exhibits to the jury when such fact was called to the court’s attention.

It appears from the record that, after the jury retired to consider its verdict, the jury returned into court a note as follows : “Dates when Raymond Letcher asked for divorce, and also date when Raymond Letcher asked Louise Letcher for deed to be transferred back to him.” The trial court answered such note with a written note to this effect: “You will be guided by the charge as given to you by the court.” Appellant thereafter moved the court for additional instructions under Rules 286 and 287, to the effect that if the jury disagrees as to the statement of any witness, the jury may, upon applying to the court, have read to them from the court reporter’s notes that part of such witness’ testimony in dispute. The trial court did not deny such request, but signed a note giving such instructions as requested by appellant, and called the jury back in and told them that he understood they had been unable to reach a verdict, whereupon the foreman answered that they had reached a verdict, which said verdict was received by the court and the jury dismissed. It does not appear from the record that appellant made any objection to the receiving of the verdict.

Appellant asserts that some of the exhibits were not sent to the jury at the time the jury retired, and that appellant requested that all such exhibits be given to the jury, which was refused by the court. The exhibits complained of are stated to be portions of appellee’s exhibits, although there is nothing in the record with regard to the exclusion of such exhibits, except in a motion made by appellant after the jury was dismissed. The record does not disclose that appellant made any request with regard to such exhibits prior to the time the jury’s verdict was received, that the jury requested such exhibits, or that the court refused to send such exhibits to the jury.

We do not believe the record before us shows any error of the trial court with regard to the requested instructions or the exhibits. Appellant has failed to establish that the matter complained of actually resulted in his prejudice or constituted reversible error. Texas Employers’ Insurance Ass’n v. Dennis, 372 S.W.2d 559, 563 (Tex.Civ.App.—Fort Worth 1963, writ ref’d n. r. e.); Greeson v. Texas & Pacific Ry. Co., 310 S.W.2d 615, 619 (Tex.Civ.App.—El Paso 1958, writ ref. n. r. e.); J. H. Robinson Truck Lines v. Ragan, 204 S.W.2d 662 (Tex.Civ.App.—Galveston 1947, writ ref’d n. r. e.). The error, if any, complained of by appellant did not amount to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case. The error, if any, was harmless. Rules 434 and 503, T.R.C.P.; City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860 (1952); Fairchild, Harmless Error, Appellate Procedure in Texas, § 17.6.

Appellant also asserts that the trial court erred: in depriving him of the right of trial by jury; in directing the course of the trial, and in proceeding in such a manner as to lead the jury into thinking there was no legal or moral merit in appellant’s cause of action; in submitting an issue of condonation as a result of appellee’s trial amendment, the filing of which was objected to by appellant; in failing to set and hear appellant’s amended motion for new trial; in refusing to submit his “Requested Issue No. 6,” thereby failing to grant appellant any compensation or interest in the 1451 acres of land as a result of improvements made by him and his separate property expended to improve the property; in entering a judgment allowing a person to profit as a result of fraud and bad faith practiced by one upon another; and in allowing reference to be made to the jury that title to the property was not an issue in the case. We do not find any merit in these points of error and they are overruled.

Appellant’s point of error No. 23 is: “The trial court erred in determining title to real property in a divorce action when the divorce was denied by the jury.” In this connection, see Speer, Marital Rights in Texas, § 835, p. 175, and 20 Tex.Jur.2d, Divorce and Separation, § 203, wherein it is stated that the power of a court to determine the property rights of the parties is contingent upon the granting of a divorce. A careful study of the cases cited in support of this statement reveals most of such cases were suits for divorce and for partition of community property in connection therewith, and the court held that when the divorce was denied, the court was without power to adjudicate the community property rights of the parties. The other cited cases are not analogous to the case on appeal. In the case before us, both appellant and appellee asked for an adjudication of the title status of the 1451 acres. Appellant in his pleading, in addition to seeking a divorce asks for an adjudication that he is the owner of an undivided one-half interest in the property, and also alleges that under the deeds wherein appellant and appellee were conveyed the 1451-acre tract each acquired an undivided one-half interest therein as their separate property, and asked the court to find that appellant is the owner of an undivided one-half interest in such property, and that ap-pellee is holding such one-half interest in trust for appellant. Appellee, while contesting the divorce, alleged that the 1451 acres is her separate property and asked the court for an adjudication to that effect. In addition, appellee filed a counterclaim and cross-action in such suit for determination of her rights, status, or other legal gelation under the deed dated October 10, 1927, from Raymond Letcher, conveying the 1451-acre tract to Louise E. Letcher, and asked that the property be decreed and declared to be her sole and separate property. Appellant, in his answer to such cross-action, says that he should be awarded a judgment declaring he has an undivided one-half interest in such property as his sole and separate property and estate.

When it is necessary for the protection of property rights, either spouse may sue the other. Trimble v. Farmer, 157 Tex. 533, 305 S.W.2d 157 (1957); Pride v. Pride, 318 S.W.2d 715, 722 (Tex.Civ.App.—Dallas 1958, no writ); Bettis v. Bettis, 83 S.W.2d 1076 (Tex.Civ.App.—El Paso 1935, no writ); 30 Tex.Jur.2d, Husband and Wife, § 168 (1962).

We feel that the cases cited under Footnote 1 are not controlling in the case before us, but rather that the holding in Borton v. Borton, 190 S.W. 192 (Tex.Civ.App.—Galveston 1916, writ ref’d), is applicable. This case is similar to the case before us. Borton was a suit by a wife for divorce, partition of community property, and for the quieting of title in the wife of three tracts of land alleged to be her separate property. The husband contested such suit by general denial, and specially denied that the three tracts of land were the separate property of his wife. He alleged that such property was acquired with community earnings and was the community property of husband and wife; that plaintiff (wife) was claiming the land under a certain deed from defendant (husband) to plaintiff conveying to her said land, but that in fact said instrument was signed when he was threatened with a fictitious and unfounded litigation, which was never instituted; that he executed said deed without the knowledge of plaintiff for his own protection against said threatened suit; that there was never any delivery of the deed and it was without consideration and void. The jury found that none of the causes alleged by plaintiff for divorce existed, but that the defendant did make manual delivery to the plaintiff of the deed in question. Upon such findings of the jury, the trial court entered judgment denying the divorce and partition of the community property, but rendered judgment in favor of plaintiff adjudging her to be the owner of the land in question as her separate property. On appeal, the husband contended that the court was without authority and jurisdiction to determine the rights of the wife in the land claimed by her as her separate property after the jury found that no grounds existed which entitled the wife to a divorce. The appellate court overruled such contention and affirmed the judgment of the trial court.

Appellant’s Point of Error No. 23 is overruled. Appellant’s other points pertain to the court’s holdings and judgment in connection with the title to the 1451-acre tract.

It is the opinion of this Court that, under the authorities hereinafter discussed, the judgment of the trial court adjudging said 1451 acres to be the sole and separate property of appellee is correct and should be affirmed.

The deed from Raymond Letcher to Louise Letcher, dated October 10, 1927, recites a consideration of $10.00 and other valuable consideration to Raymond Letcher paid by Louise Letcher “out of her own property and estate,” and conveys unto the said Louise Letcher “to her sole and separate use and benefit,” all of his “undivided right, title and interest” in and to the 1451-acre tract in question. It appears from the record that in the year 1924 Raymond Letcher was sued by a man named Williams in connection with an accident, and in connection therewith an answer was filed on behalf of Raymond Letcher. Said suit was ultimately dismissed in the year 1933 for want of prosecution. Appellant in some of his pleadings alleges he made the conveyance in an effort to defeat any creditor which might arise in the event a judgment was taken against him, and for the purpose of attempting to hide his separate property, and in his last amended petition appellant alleged said conveyance was made “for the purpose and with the intention of defeating any possible judgment creditors which might arise against RAYMOND LETCHER.” Appellant testified that he conveyed the property to his wife because he had been sued, that he did it because he thought that Williams might get a judgment against him, and that he was afraid that Williams might take the land from him. Appellant contends that he and his wife had an agreement and understanding that she would later reconvey to him his interest in the property, and that in the year 1965, approximately 38 years later, he asked his wife to divide such property equally between them, but that she refused. The testimony shows that appellant had the 1927 deed prepared, and that his wife did not accompany him in connection with the preparation of such deed.

The judgment of the trial court is sustainable on two separate and independent grounds:

(1) As a matter of law, the appellant is precluded from showing any agreement, understanding, or intention contrary to the unequivocal language in the deed.

The Supreme Court has had before it a number of cases involving conveyances by a husband to his wife wherein property was conveyed to the wife as her sole and separate property. One of the most frequently cited cases is the early case of Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825 (1900), where the Court held that where a husband conveyed property to his wife by a deed which recited that the consideration was paid out of her separate property and for her sole use and benefit, such recitals showed a clear intention on his part to convey the land therein described to her as her separate property, and parol evidence was not admissible to show that such was not his intention. The Court stated that such recitals were contractual recitals, the legal effect being to show the character of the right created by the deed, and that the parties thereto are estopped from denying it, and that the husband could not defeat the deed as a conveyance of the property to his wife as her separate property by denying such recital, since the effect of such denial would be to render the deed wholly ineffective.

In McKivett v. McKivett, 123 Tex. 298, 70 S.W.2d 694 (1934), community realty was conveyed by husband to wife as separate property by deeds which recited a contractual consideration. After the death of the husband his heirs sought to recover an undivided one-half interest in such property upon the theory that the deeds were executed pursuant to a prior agreement between the husband and wife that she would hold the title in trust for the community. The Court stated: “The evidence offered in this case is of such character as to render the deed ineffective. It would prove that the beneficial title did not rest in the wife for her separate use, as the deed declared, but that it remained in the community. Such evidence would contradict the very statements in the deeds which the court held in Kahn v. Kahn to belong to that class of particular and contractual recitals which the parties may not deny. The deeds in express terms declare the particular purpose or use for which the property is conveyed ; that is, that it shall belong separately to the wife. Parol evidence should not be admitted to prove that it was conveyed for a different purpose or use.”

See also 34 Texas L.Rev., Parol Evidence and Texas Deeds, at pages 363-364, and the cases of Kidd v. Young, 144 Tex. 322, 190 S.W.2d 65 (1945); Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777 (1952); Loeb v. Wilhite, 224 S.W.2d 343 (Tex.Civ.App.—Dallas 1949, writ ref’d n.r.e.); Small v. Brooks, 163 S.W.2d 236, 238-239 (Tex.Civ.App.—Austin 1942, writ ref’d w. o. m.). A good discussion of these types of cases is found in Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184 (1955), wherein the Supreme Court said of the Kahn case: “It is apparent that the decision rests, not upon a recital of contractual consideration, but upon the fact that the instrument stipulated, in effect, that the beneficial ownership of the property was conveyed to the wife for her separate use.”

There is no proof of fraud, accident or mistake in regard to the recitals in such deed. Appellant plead that such deed was executed for the purpose and intention of defeating any possible judgment creditor which might arise against him, and testified that the reason he conveyed such property to his wife was because he had been sued, and that he was afraid that the person suing him might get a judgment against him and take his land from him. Such testimony and pleading establish the absence of any mistake or accident and do not show any fraud on the part of appellee but rather with regard to the rights of a possible judgment creditor at the time that a suit was pending against appellant.

(2) Appellant is precluded from recovery because, under the evidence and the pleadings, such conveyance was made for the purpose and with the intention of defeating any possible judgment creditors which might arise against appellant.

Sound public policy should require that a fraudulent grantor who conveyed his property before contracting debts for the purpose of shielding it from liability to future creditors, when the purpose of such deed, as between the parties was not to divest the grantor of beneficial interest, should not receive the aid of the courts against his grantee. Lott v. Kaiser, 61 Tex. 665 (1884). As between the parties to a fraudulent transaction, the transfer designed to defraud creditors passes title to the property, and the grantor may thereafter assert no right, title or interest in the property. Relief will be denied a grantor who seeks to set aside a deed on the grounds it was executed to defraud his creditors, for courts leave parties to a fraudulent transaction in the position they have placed themselves. 26 Tex.Jur.2d § 101 (1961). Where a person conveys land by a deed absolute on its face and without consideration, in fraud of his creditors, though with an understanding that the land is only to be held in trust, neither he nor his heirs can enforce the trust against the grantee or a purchaser from the grantee. Scarborough v. Blount, 154 S.W. 312 (Tex.Civ.App.—Galveston 1913, no writ). See also Messer v. Ziegler, 282 S.W. 620 (Tex.Civ.App.— Fort Worth 1926, no writ).

This Court in Dellerman v. Mangold, Tex.Civ.App., 271 S.W.2d 720, (1954, writ ref’d), stated: “For Dellerman to set aside his deed to Mrs. Mangold he must prove that it was executed and recorded to defraud his creditors, but when he does that he loses his case under'the law. The Supreme Court has closed the door to grantors who shield their property from the just claims of creditors and later seek to recover from their grantee in whom was placed the apparent title. Lott v. Kaiser, 61 Tex. 665, 670. If everything happened that Deller-man claims, he has no enforceable right. ‘This is so for reasons of public policy, to discourage fraudulent transactions. The courts leave the parties in the position in which they have placed themselves. Davis v. Sittig, 65 Tex. 497.’ ”

All of appellant’s points of error are overruled. The judgment of the trial court is affirmed.

      . Carter v. Carter, Tex.Civ.App., 336 S.W.2d 466, no writ: Pelham v. Sanders, Tex.Civ.App., 290 S.W.2d 684, no writ; Christie v. Tipps, Tex.Civ.App., 279 S.W.2d 142, no writ; Brown v. Brown, Tex.Civ.App., 191 S.W.2d 814, no writ; Russell v. Russell, Tex.Civ.App., 79 S.W.2d 639, writ dism.; Harkness v. Harkness, Tex.Civ.App., 1 S.W.2d 399, no writ; Kelly v. Gross, Tex.Civ.App., 293 S.W. 325, no writ; Ledbetter v. Ledbetter, Tex.Civ.App., 229 S.W. 576, no writ; Givens v. Givens, Tex.Civ.App., 195 S.W. 877, no writ; Burns v. Burns, 59 Tex.Civ.App. 549, 126 S.W. 333, no writ.


author: BATEMAN, Justice.

text:
    J. F. PIGG et al., Appellants, v. INTERNATIONAL HOSPITALS, INC., et al., Appellees.
    No. 16976.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 20, 1967.
    Rehearing Denied Nov. 17, 1967.

      Wm. Andress, Jr., Andress, Woodgate & Condos, Dallas, for appellants.
    Philip I. Palmer, Sr., of Palmer, Green, Palmer & Burke, Dallas, for appellees.
   BATEMAN, Justice.

The principal questions here presented concern the asserted liability of appellees to appellants under certain alleged employment contracts. International Hospitals, Inc. (herein called Hospitals) brought the suit against appellants for an injunction and for damages. The injunction was granted and, since it is not complained of here, will not be noticed further. The appellants J. F. Pigg and Gertrude Flanagan filed a cross-action against Hospitals and its sole stockholder, Richard L. Mackay. Mrs. Flanagan claimed the balance of unpaid salary alleged to be due under a written contract between her and Hospitals, and Pigg claimed a 10 per cent interest in the stock of Hospitals and, in the alternative, the reasonable value of services rendered by him and for a reasonable attorney’s fee.

There was evidence to support Pigg’s claim that he had been employed by Mackay in connection with the purchase and equipping of the hospital and that Mackay orally promised Pigg a 10 per cent interest in the hospital and also $1,000 per month for his services and expenses.

Mrs. Flanagan’s contract was in writing and provided for her employment by Hospitals for one year at a specified salary and that her dismissal “prior to one year shall be cause for the full payment” for her services for the entire year. She worked only a few months, for which her salary was paid, and was then discharged by Mackay. The contract was signed for the corporation by Pigg as its secretary, although there was no evidence that he was ever elected to that office by the board of directors, or that he was specifically authorized to sign the contract on behalf of the corporation. There was evidence to the effect that Mackay knew of the contract and was present when it was signed, although this was denied by Mackay.

Material jury findings were: (3) Mac-kay agreed that Pigg was to receive $1,000 a month for his services until such time as the hospital opened; (4) Pigg received such $1,000 a month; (5) on or about June 6, 1963 appellants withheld possession of the premises without authority, but (6) the corporation suffered no damages by reason thereof; (8) on or about June 6, 1963 appellants had certain locks of the hospital changed without Mackay’s authority! (9) from which the corporation suffered damages (10) of $105; (11) Pigg did not have actual or (12) apparent authority to enter' into the employment contract with Mrs. Flanagan; (13) Mac-kay did not know about that contract before June 2, 1963; (14) Mackay did promise Pigg a 10 per cent interest in Hospitals; (15) the reasonable value of Pigg’s services in connection with the negotiation and development of the hospital was $9,000; and (17) a reasonable fee for services rendered Pigg by his attorneys was $15,000.

The trial court, on motion of appellees, disregarded the answers of the jury to Special Issues Nos. 15 and 17, and rendered judgment as follows: in favor of Hospitals against the appellants jointly and severally for $105; decreeing that Pigg is the owner of, and that he recover from Mackay, 10 per cent of the total outstanding capital stock of Hospitals; and that appellants take nothing further by their cross-action.

Appellants’ first three points of error challenge the denial of Mrs. Flanagan’s claim on the grounds that (1) . since ap-pellees themselves' introduced her contract into evidence without limitation Mrs. Flanagan became entitled to judgment thereon as a matter of law; (2) in the absence of a sworn denial of Pigg’s authority to execute the Flanagan contract on behalf of the hospital she was entitled to judgment as a matter of law, and (3) that the court abused its discretion in permitting appellees, after close of the evidence, to file a trial amendment denying Pigg’s authority under oath. The appellant Flanagan argues that when counsel for Hospitals introduced in evidence the written contract she was relying upon, without limitation and without stating the purpose for which it was being introduced, it was binding on Hospitals and she became entitled as a matter of law to an instructed verdict and judgment for the full amount of the salary provided for therein.

The general rule relied on by Mrs. Flanagan is thus succinctly stated in 20 Am.Jur., Evidence, § 915, p. 771:

“Ordinarily, a party who introduces documentary evidence is not allowed to impeach or contradict it or to accept a part which is in his favor and repudiate another part which is opposed to his claim or defense. One introducing documentary proof bearing upon an issue vouches for its accuracy so far as that issue is concerned and is, as a general rule, bound by its recitals for all purposes.”

This rule is recognized by numerous Texas authorities.

However, there are certain well defined exceptions to the general rule. One of these is that a party who introduces a document in evidence is not precluded from impeaching it by evidence which goes to its validity. In Topletz v. Thompson, 342 S.W.2d 151 (Tex.Civ.App., Dallas 1960, no writ) the appellee sought to set aside a certain trustee’s deed,, and it was contended on appeal that since the appellee had offered the trustee’s deed in evidence without limitation he was bound by its recitals. After recognizing the general rule stated above, we held:

“Appellee is not bound by the recitations in the trustee’s deed though he offered it in evidence without limitations, since his pleadings presented a challenge to the validity of the deed on the grounds of fraud. Dupree v. Quinn, Tex.Civ.App., 290 S.W.2d 329; Universal Credit Co. v. Boling, Tex.Civ.App., 108 S.W.2d 836; Colgrove v. Falfurrias State Bank, Tex.Civ.App., 192 S.W. 580; Amer.Jur. 771.” (Italics ours.)

Other Texas cases recognizing exceptions to the general rule are: Jenkins v. Tanner, 166 S.W.2d 167 (Tex.Civ.App., Amarillo 1942, no writ); Ballard v. Aetna Casualty & Surety Co., 391 S.W.2d 510 (Tex.Civ.App., Corpus Christi 1965, writ ref’d n. r. e.); Hillman v. Hillman, 138 Tex. 111, 157 S.W.2d 143 (1941); Masterson v. Bouldin, 151 S.W.2d 301 (Tex.Civ.App., Eastland 1941, writ ref’d); Trice Production Co. v. Dutton Drilling Co., 333 S.W.2d 607 (Tex.Civ.App., Houston 1960, writ ref’d n. r. e.).

The case at bar was tried in December 1966. For more than three years prior thereto Hospitals had had on file a pleading specially denying that it ever entered into any contract in writing with Mrs. Flanagan for services rendered or to be rendered by her, or that it ever authorized any person or officer so to contract with her. Not only had it thus pled the lack of anyone’s authority to make such a contract on its behalf, but the entire record of testimony offered by Hospitals makes it obvious that it was unequivocally denying the validity of the contract because of Pigg’s lack of authority to execute it. There was ample evidence to support the jury findings that he had neither actual nor apparent authority to do so. Under these circumstances, we decline to hold that the corporation thus vouched for the validity of the very contract it was seeking to prove invalid. The case clearly comes within an exception to the general rule relied on by appellants.

It is true that the denial of Pigg’s authority was not verified by affidavit pursuant to Subdivision (h) of Rule 93, Texas Rules of Civil Procedure. However, the appellants went to trial with that pleading on file and did not, at any time prior to the close of the evidence, specifically point out, by motion, special exception or otherwise, that the pleading was defective because not verified. After the evidence was closed, counsel for appellants for the first time brought this defect to the court’s attention, shortly after which leave to file the trial amendment was granted. We hold that this was well within the meaning and intent of Rule 66, T.R.C.P., and that appellants waived the “defect, omission or fault” in the pleading, within the contemplation of Rule 90, T.R.C.P., and that the court did not commit reversible error in allowing the filing of the trial amendment. Wade v. Superior Ins. Co., 244 S.W.2d 893 (Tex.Civ.App., Eastland 1951, writ ref’d); Leon Farms Corp. v. Beeman, 240 S.W.2d 433, 436 (Tex.Civ.App., El Paso 1951, writ ref’d n. r. e.) ; Watson v. Texas Indemnity Ins. Co., 147 Tex. 40, 210 S.W.2d 989 (1948).

Accordingly, appellants’ first three points of error on appeal are overruled.

By their fourth and fifth points of error appellants assert that since there was competent evidence to support the verdict, and a directed verdict for the appellees would not have been proper, the court erred in rendering judgment non obstante vere- dicto in favor of appellees. These points are without merit for the simple reason that no judgment non obstante veredicto was rendered in this case. Rule 301, T.R.C.P., authorizes the court to disregard any special issue jury finding that has no support in the evidence. It has been held repeatedly that a jury finding which is immaterial to the real issues in the case, even though supported by evidence, may likewise be disregarded. First American Life Ins. Co. v. Slaughter, 400 S.W.2d 590 (Tex.Civ.App., Houston 1966, writ ref’d n. r. e.); Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952); Owens v. State, 342 S.W.2d 183 (Tex.Civ.App., Fort Worth 1961, no writ).

The appellant Pigg says the trial court improperly disregarded the answers to Special Issues Nos. 15 and 17, wherein the jury found the reasonable value of his services at $9,000 and the value of his attorney’s services at $15,000. We do not agree with appellant. The first cause of action he asserted was upon Mackay’s alleged promise to him of a 10 per cent interest in the hospital, when organized and incorporated, for his services. He sought no attorney’s fee in connection with this cause of action. His second cause of action, for the reasonable value of his and his attorneys’ services, was asserted only in the alternative. It was proper for the court to submit issues on both causes of action unconditionally in order that a proper judgment might be rendered on the verdict regardless of what the jury might find with respect to the alleged contract for an interest in the hospital. Hodges on Special Issue Submission in Texas, p. 3; Montgomery v. Gay, 222 S.W.2d 922 (Tex.Civ.App., Fort Worth 1949, writ dism’d); Johnson Aircrafts, Inc. v. Eichholtz, 194 S.W.2d 815 (Tex.Civ.App., Fort Worth 1946, writ ref’d n. r. e.). The jury found in Pigg’s favor on his first cause of action and judgment was rendered in his favor accordingly. Having recovered the full amount sought in his suit on contract, he would not be entitled to recover either for his services or the attorney’s fee on his alternative cause of action on quantum meruit. Roby Industries, Inc. v. Maxwell Electronics Corp., 409 S.W.2d 559, 564 (Tex.Civ.App., Dallas 1966, writ ref’d n. r. e.). Therefore, the findings in question were immaterial and were properly disregarded. Appellants’ fourth and fifth points are accordingly overruled.

By his sixth point of error Pigg asserts that that part of the judgment which awarded him a 10 per cent interest in the hospital was “a nullity and should have been a personal judgment against Mackay for their value as found by the jury in the amount of $9,000.00.” This is based upon undisputed evidence, adduced at the trial, that during pendency of the suit Hospitals had ceased to operate and had been dissolved at a time when Mackay owned all of its stock. Pigg argues that Mackay, having made it impossible for the corporation to perform the judgment of the court, should be made to respond in money damages. He says we should render judgment in his favor against Mac-kay for the $9,000 found by the jury to be the value of Pigg’s services. We cannot do this. The only authority we have to render a judgment in an appealed case is to render the judgment which the trial court should have rendered. Rule 434, T.R.C.P. The trial court could not have rendered such a judgment because no such cause of action was ever asserted in the trial court. Therefore, the sixth point of error is overruled.

By their seventh and eighth points of error appellants complain of the rendition of judgment in favor of Hospitals against them jointly and severally for $105 because (7) there is no pleading and (8) no evidence to support this recovery. We sustain both points. Hospitals alleged that it had been damaged in the sum of $50,000 “by adverse publicity and advertising, by disruption of its organization, by delay of its time of opening for services to the general public.” There is no pleading of damage by reason of the changing of locks of the hospital; neither do we find any evidence of such damage.

The judgment of the trial court is reformed by deleting therefrom the recovery by International Hospitals, Inc. against the appellants J. F. Pigg and Gertrude Flanagan, jointly and severally, in the sum of $105, with interest thereon; and the judgment, as reformed, is affirmed. Costs are taxed against the appellants.

       Lock v. Morris, 287 S.W.2d 500 (Tex.Civ.App., Texarkana 1956, writ ref’d n. r. e.); Seifert v. Brown, 53 S.W.2d 117 (Tex.Civ.App., El Paso 1932, writ ref’d); Horwitz v. Jefferson County Traction Co., 188 S.W. 26 (Tex.Civ.App., Beaumont 1916 writ ref’d); Moser v. McLemore, 266 S.W.2d 253 (Tex.Civ.App., Amarillo 1953, no writ); Goss v. Phillips, 292 S.W.2d 700 (Tex.Civ.App.. Texarkana 1956, no writ); Freed v. Bozman, 304 S.W.2d 235 (Tex.Civ.App., Texarkana 1957, writ ref’d n. r. e.); Cotton Belt Gin & Mill Supply, Inc. v. Alltex Precision Co., 351 S.W.2d 369 (Tex.Civ.App., Texarkana 1961, no writ); Wade v. Southwestern Bell Telephone Co., 352 S.W.2d 460, 92 A.L.R. 2d 913 (Tex.Civ.App., Austin 1961, no writ).


author: McDonald, Chief Justice.

text:
    Robert OSWALD et al., Appellants, v. Mrs. Norma STATON, a Feme Sole, Appellee.
    No. 4599.
    Court of Civil Appeals of Texas. Waco.
    Oct. 19, 1967.
    Rehearing Denied Nov. 16, 1967.

      Haley, Winniford, Sessions & Bice, Fitzpatrick & Fitzpatrick, Waco, for appellants.
    John F. Sheehy, Waco, for appellee.
   OPINION

McDonald, Chief Justice.

This is an appeal by defendants Oswald from a judgment for plaintiff Staton in a trespass to try title suit.

Plaintiff, Mrs. Norma Staton, sued defendants Robert Oswald and the other' heirs of Joe Oswald, to recover title and possession of 25 acres of land in the J. A. Merrifield Survey in McLennan County. Defendants plead the 10 year statute of limitation. Trial was to a jury which, in answer to issues submitted, found:

1) Joe Oswald or the defendants (his heirs) have not held peaceable adverse possession of the land in controversy for any consecutive period of 10 years prior to May 18, 1962.
2) The fence of Tommy Walker as originally located on the ground, was west of the west boundary of the 25 acre tract in question.
3) Norma Staton and those under whom she claims were in possession of the 25 acre tract prior to the possession, if any, of defendants.
4) George Poage, after the 1863 deed to Poage conveying the 640 acre Mer-rifield Survey, moved onto said land with his family, and lived thereon for a number of years.
5) Joe Oswald and defendants did not have actual possession of the 25 acres prior to the possession of plaintiff and her predecessors.

The trial court entered judgment on the verdict for plaintiff for title and possession of the 25 acres in controversy.

Defendants appeal on 9 points, contending the trial court erred in not entering judgment for defendants because:

1) Plaintiff failed to prove a regular chain of title from sovereignty.
2) Plaintiff failed to prove prior possession.

To recover in trespass to try title, the plaintiff must recover upon the strength of his own title. This may be done viz: 1) proving a regular chain of conveyances from the sovereign; 2) by proving superior title out of common source; 3) by proving title by limitations; or 4) by proving prior possession. Land v. Turner, Tex., 377 S.W.2d 181, 5 A.L.R.3d 364.

In this case plaintiff attempted to prove a regular chain of conveyances from the sovereign; and prior possession. As noted, the jury found plaintiff and those under whom she claimed were in possession of the tract prior to possession, if any, of defendants, and that defendants did not have actual possession of the tract prior to plaintiff and her predecessors.

Defendants’ 1st contention is that plaintiff failed to prove a regular chain of conveyances from sovereignty.

Defendants assert a break in plaintiff’s chain of title from the heirs of J. Q. Merri-field to D. C. Freeman. Plaintiff introduced a patent to 640 acres to the heirs of J. Q. Merrifield in April, 1862, a survey of such 640 acres, and a deed from D. C. Freeman, dated October 6, 1863 to George Poage to such 640 acres. There is no conveyance from the heirs of Merrifield to Freeman. The record shows that since the patent to the heirs of Merrifield there is nothing in the records of McLennan County showing that any Merrifield heir ever asserted any title to the land in question, a period of some 105 years. The record shows a power of attorney from the Administrator of the Estate of J. Q. Merri-field to D. C. Freeman, which authorized him to locate and look after land belonging to the Merrifield Estate. Subsequently Freeman executed the deed to Poage.

Where there is a missing link in the chain of title many years prior to the time such issue is raised there is a presumption liberally indulged that a deed did exist covering the period. Magee v. Paul, 110 Tex. 470, 221 S.W. 254, 256; Ballingall v. Brown, Tex.Civ.App., (nre), 226 S.W.2d 165; Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859.

Defendants assert that 5 other deeds in plaintiff’s chain of title are so defective as to he void under the Statute of Frauds, because the description in each instance depends upon a recited conveyance to William C. Williams which was not introduced into evidence, or upon recited lots in a nonexistent H. Hammond Survey. These deeds have been on record since 1874 — 1892, and each describes the property as “Lot No. 5 of the subdivision of H. Hammond’s 640 acre tract about 8 miles southwest of Waco, Beginning at the NW corner of Lot 2 — 20 acres sold to Wm. C. Williams out of same Survey on October 2, 1872, for the SW corner of this on the NE side of a white mound from which a Spanish Oak 4 in. dia. bears 349 W 8j4 varas * * * (there follow calls for course and distance) * * * .” The record reflects the H. Hammond’s Survey and the Merrifield Survey both begin at the Southwest corner of the Jacob Goss Survey; cover the same land; and the Hammond’s is sometimes referred to as the Merrifield. The witness Oran, a surveyor, testified he surveyed the land in question in 1953 and at that time located the corners of it; traced them on the ground; from the description of actual objects on the ground he was able to trace and locate the 25 acres that are here involved, as covered by the deeds. It is further in evidence that the surveyor Joe Goddard had surveyed the property.

If enough appears in the description of land in a deed so that a party familiar with the locality can identify the premises with reasonable certainty, the description is sufficient. Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247. And if there appears in the instrument enough to enable one, by pursuing an inquiry based on the information contained in the deed, to identify the particular property to the exclusion of others, the description will be held sufficient. Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380. We think the descriptions legally sufficient to describe the land.

Defendants further assert there is a break in the chain of title between Jones Connally and Mary E. Connally, because the judgment of partition of Jones Connally’s properties does not properly describe the property. If this be true, the 2nd partition judgment of the District Court of Falls County does describe the property adequately and vests title in Mrs. Rose Staton.

We think plaintiff proved a regular chain of title from sovereignty.

Defendants also contend that plaintiff failed to prove prior possession, and that there is no evidence, or insufficient evidence, to support the jury’s finding, and that any prior possession of George Poage was abandoned as to plaintiff. We overrule such contention.

George Poage, plaintiff’s predecessor in title, lived on the land and was in actual physical possession in 1863 and for several years thereafter. There is a chain of title from Poage into plaintiff’s husband’s grandfather, Jones Connally, who acquired the 25 acres by deeds in 1874 and 1892. When Jones Connally died, his wife, Mary Con-nally, received the 25 acres in a partition suit. Rose Staton deeded the 25 acres to Hiram Staton, her son, as a wedding present in 1946. Thereafter plaintiff acquired Hiram Staton’s title. The land is raw, vacant, open land, covered with brush. None of the Connally-Statons ever lived on the land, although they paid taxes on it; had it surveyed twice; built a tower on it; went hunting on it; cut posts and timber off the land from time to time; and leased it for oil and gas. Under the facts we think plaintiff had actual possession.

The defendants (Oswalds) have no deeds to the 25 acres; have never paid any taxes on the 25 acres; Joe Oswald purchased a 153 acre tract adjoining the 25 acres on 2 sides in 1929. This deed actually calls for adjoiner to the Connally tract some 6 separate times. Defendants did not list the 25 acres here involved in the inventory of the Joe Oswald Estate; and did not sue the Cement Company for dust over the 25 acres when they sued for dust over the 153 acres. Defendants did not live on the 153 acre tract, but ran a few cattle over the area which included their 153 acres and the 25 acres here in controversy. Under such facts, we think defendants did not have actual possession of the 25 acres.

As noted, George Poage, plaintiff’s predecessor in title, was in actual possession of the property. Plaintiff, under our view of the case, was likewise in actual possession, and was in any event in constructive possession, and her predecessors in title had been in such constructive possession since the time of Poage’s actual possession.

Defendants were not in actual possession and defendants’ claim to the 25 acres was as a naked occasional intruder or occasional trespasser.

In such situation the plaintiff retains her possession until such be ousted by actual possession in defendants, and then only to the extent of the land actually in occupation. Whitehead v. Foley, S.Ct., 28 Tex. 268, 289; Turner v. Moore, 81 Tex. 206, 16 S.W. 929, 930; Chittim v. Auld, Tex.Civ.App. (nre) 219 S.W.2d 702, 709.

In Whitehead, supra, the court said:

“The legal title thus drawing to the owner, per se, the seizin and possession, he retains them until disseized by the actual possession being taken and held by another.
“From this doctrine, that the owner is deemed to be in possession, though neither he nor any one under him is actually residing on or occupying the land, it results, that the owner is disseized or dispossessed by an adversary possessor only to the extent and within the limits of the possession taken and held adversely.
“ * * * .there is an important, obvious, and generally recognized distinction between possession taken by a mere naked disseizor or intruder, that is, one who enters without color title, and possession taken by a person under a colorable right. The possession of the former is confined to the land actually in occupation; that of the latter is construed to be co-extensive with the boundaries described in the deed or muniment of title under which he claims.”

And in Turner, supra, the court said:

“The land in controversy, * * * was sold in 1853 to Matthew C. Moore, the ancestor of plaintiffs, and he became admittedly the owner in fee thereof. Neither he nor the plaintiffs, at that time or subsequently, took pedal possession of the land, but in law his title drew to it the legal seisin and possession, and this possession he and his heirs will be held to have retained until ousted by an actual possession in another under a claim of right.”

As noted, we do not think defendants had any actual possession of the property. If they did, and if a fact issue as to prior possession existed, then it was resolved against defendants, upon ample evidence, by the jury. See Land v. Turner, supra.

All of defendants’ points and contentions are overruled.

Affirmed.

      . Freeman to Jones Connally (1874) Freeman to Crow & Jones (1873) Crow to Stanford (1886) Stanford to Stanford (1889) Stanford to Jones Connally (1892)

      . “ ⅜ * * thence N 60 E with line of Theet & Connally 706.6 varas to N E corner of the M. E. Connally tract; thence S 30 E with the Connally East line to the Connally Southeast corner for a corner of this; thence S 60 W with Connally South line to N E Corner of Cousins 10 acre tract in the South Line of the Connally tract."


author: BATEMAN, Justice. DIXON, Chief Justice.

text:
    FOREMOST DAIRIES, INC., Appellant, v. Raymond A. McCLUNG, Appellee.
    No. 16966.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 29, 1967.
    Rehearing Denied Nov. 17, 1967.

      John W. Copeland and Timothy E. Kelley, of Thompson, Knight, Simmons & Bullion, Dallas, for appellant.
    Charles D. Mayes and Ben Warder, Jr., of Carter, Gallagher, Jones & Magee, Robt. A. Wooldridge, of Burford, Ryburn & Ford, Dallas, for appellee.
   BATEMAN, Justice.

The appellee Raymond A. McClung recovered a judgment on a jury verdict against the appellant Foremost Dairies, Inc. for personal injuries received when his left leg was struck by a milk dolly operated by David Poovey, an employee of appellant. Poovey and appellee were engaged in delivering milk and other dairy products for their respective employers to various retail establishments. The judgment was based on a jury finding of failure on the part of Poovey to keep a proper lookout, which was a proximate cause of the collision.

In its first two points of error on appeal the appellant complains of the refusal of the court to submit to the jury a special issue on unavoidable accident. If the issue was raised by the evidence, appellant was entitled to have it submitted and this right cannot be lost or defeated by findings of negligence and proximate cause in response to other issues. In other words, even though such latter findings indirectly negative a finding of unavoidable accident, nevertheless the appellant was entitled to its submission if raised by the evidence. Blanton v. E. & L. Transport Co., 146 Tex. 377, 207 S.W.2d 368 (1948); Humble Pipe Line Co. v. Kincaid, 19 S.W.2d 144, 148 (Tex.Civ.App., San Antonio 1929, writ ref’d); Kuykendall v. Doose, 260 S.W.2d 435 (Tex.Civ.App., Amarillo 1953, writ ref’d n. r. e.). The right of a party to have unavoidable accident submitted “must not be determined from the viewpoint of conditions as they appear after the verdict is returned, but from the viewpoint of what the jury might have found if the issue had been submitted to them.” Dixie Motor Coach Corp. v. Galvan, 126 Tex. 109, 86 S.W.2d 633 (1935); Haynes v. Martinez, 260 S.W.2d 369 (Tex.Civ.App., Amarillo 1953, writ ref’d n. r. e.). It is therefore necessary to examine the evidence to determine whether the issue was raised.

Early on the day in question appellee and Poovey were delivering their employers’ products to a large supermarket. They used two-wheel freight dollies upon which were stacked four or five cases of milk Each would leave a supply of his products displayed in the dairy case in the sales area of the supermarket and transport the remainder on the dollies into a storeroom located in the rear portion of the store, which was separated from the sales area by a pair of swinging doors. Appellee entered this storeroom by opening the swinging door on the left side, and testified that this door was still open when Poovey entered the storeroom with his dolly and the several crates of milk loaded thereon. Poovey testified that, according to his recollection, both swinging doors were closed and that he entered the storeroom by pushing the dolly through the doors, and that, the doors being closed, he did not see appellee behind them until it was too late to avoid the collision. There were no other witnesses to the occurrence. The only substantial dispute in the testimony of appellee and Poovey is as to whether the left hand swinging door was open when Poovey entered the storeroom with his dolly and struck appellee, or whether both doors were closed. There is no evidence that Poovey saw appellee inside the storeroom in sufficient time to avoid the collision, but there was evidence that he did not see him because the closed swinging doors obstructed his vision.

In our opinion this evidence was sufficient to raise the issue of unavoidable accident. Where the evidence presents a theory under which the accident might have been found to have happened from causes different from the alleged negligence of the parties the issue of unavoidable accident is presented. Orange & N. W. R. Co. v. Harris, 127 Tex. 13, 89 S.W.2d 973 (1936); Texas & P. Ry. Co. v. Edwards, 36 S.W.2d 477 (Tex.Com.App. 1931, holdings approved). In Vergauwen v. Parsons, 294 S.W.2d 863 (Tex.Civ.App., Waco 1956, no writ), it was held that where the evidence showed the existence of an obstacle, in that case a row of trees or hedges, that might obstruct the view of motorists approaching an intersection, the issue of unavoidable accident was raised. It was also held in that case that in examining the facts to determine whether unavoidable accident is involved the evidence must be construed in a light most favorable to submission of the issue. Kuykendall v. Doose, supra, is to the same effect.

Appellee argues that unavoidable accident is not present in any case where the accident complained of could have been prevented by either party by the use of means suggested by common prudence, citing Dallas Ry. & Terminal Co. v. Darden, 38 S.W.2d 777, 779 (Tex.Com.App. 1931, jdgmt. adopted) ; but in that case the court said:

“It is impossible to announce a fixed rule applicable to all cases by which it can be decided just when the issue of unavoidable accident is presented. In order to determine whether such issue is involved, the facts of each particular case must be examined with the view of ascertaining whether there is presented a theory under which the accident could have happened, notwithstanding all the parties to the transaction exercised the degree of care required by law.”

Application of that test disclosed that the issue was not raised by the evidence of that case, but by applying the same test in the case before us we conclude that the issue was raised.

Therefore, we sustain appellant’s first two points of error.

Appellant’s other points of error relate to procedural matters which probably will not occur on another trial, and we see no necessity for us to pass on them now.

The judgment appealed from is reversed and remanded for another trial.

Reversed and remanded.

ON MOTION FOR REHEARING

Rehearing denied.

DISSENTING OPINION

DIXON, Chief Justice.

I respectfully dissent. In our original opinion the only reason given for reversing the trial court’s judgment is the alleged error of the court in refusing to submit an issue on unavoidable accident. I am of the opinion that there is no evidence of unavoidable accident in this case.

On the occasion of the accident there were three milk route salesmen engaged in delivering milk to Minyard’s SuperMarket. Poovey knew that all three of them were on the premises. They were acquainted with each other. They follow the same general procedure in effecting their milk deliveries. Four or five cases are loaded onto a two-wheeled dolly at the bottom of which is a metal flange. In the center of the top of the dolly is one handle for use in propelling and manipulating the dolly. The dolly is loaded while standing in an upright position. After being loaded it is pulled back slightly until in a balanced position, then pushed forward on its two wheels.

In Minyard’s Super-Market there is a storeroom in the rear separated from the main store by two swinging doors which come together in the center of the doorway. Each of these doors opens both ways — to the front and to the rear. In the upper part of each door, as shown by pictures in evidence, are two windows. A swinging door, when fully opened, will catch to a lock strong enough to hold the door open until it is pulled away from the catch.

On the occasion in question Poovey, the employee of Foremost, with his dolly stacked five cases high, was on his way to the storeroom. He testified that he was in a hurry, as he usually was. Poovey three times testified that to the best of his recollection both doors were closed, though of this he was not quite certain. Possibly one of the doors had been opened by McClung who had preceded Poovey into the storeroom. McClung testified he had opened one door when he entered the storeroom. In any event Poovey did not stop, or slow down as he reached the swinging doors with his dolly, nor is there any evidence that he looked through either of the windows located in the top half of the doors. To open these doors he generally would “go through the middle, hit them both” with his dolly and would thus “just bump right through the middle”, “busting them open.” He testified that he was not going fast, but it is undisputed that after bursting through the doors he could not, or at least did not stop his dolly in time to avoid striking McClung, who was about four feet inside the storeroom. Poovey further testified that he could see over the top of the five cases of milk stacked on his dolly.

In Dallas Ry. & Term. Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952), overruling previous holdings, our Supreme Court stated, “Unavoidable accident should be defined as an event not proximately caused by the negligence of any party to it.”

The Supreme Court further stated:

“If it is the position of a defendant in any case that he is entitled to be absolved of liability because the event was caused by the negligence of a co-defendant or of a party to the event who is not a party to the suit, he may, and usually does, protect himself through pleadings, proof and findings that the negligence of such person was the sole proximate cause of the event.”

In commenting on the effect of the above holdings by our Supreme Court Professor Hodges, in his book “Hodges on Special Issue Submission in Texas,” at pages 50-58 says in substance that (1) unavoidable accident is to be used only to submit the theory that physical, non-human circumstances, and not the negligence of human beings, were the cause of the injuries ; (2) sole proximate cause is to be used to determine if the conduct of some person other than the particular defendant inquired about was the sole proximate cause of the injuries; (3) evidence that some specific physical condition or situation was the cause of the event claimed by plaintiff to have resulted in his injuries is necessary to justify the submission of an issue on unavoidable accident; (4) under some circumstances the issue should be submitted when the evidence, while not presenting a specific cause of the event in question other than the conduct of a person or persons, does tend to establish a situation in which some other unspecified cause might have existed, but then the test should be in terms of the probability of the existence of such other cause; (5) but such type of submission should not be extended to a case in which the possibility of the existence of some other cause is merely speculative.

Recent decisions seem to support the above viewpoint. In Taylor v. Gragg, 412 S.W.2d 937 (Tex.Civ.App., Houston 1967) submission of unavoidable accident was held to be proper because of evidence of a slick street and because the center of the street was higher than the curb line. In Shaw v. Null, 397 S.W.2d 523 (Tex. Civ.App., Fort Worth 1965, writ ref’d n.r.e.) submission of issue was held to be proper because a three-year-old child was in the path of a car — the child, because of tender age, was not such a person as could be charged with negligence; in Leatherwood Drilling Co. v. TXL Oil Corp., 379 S.W.2d 693, 698 (TexCiv.App., Dallas 1964, writ ref’d' n.r.e.) the circumstances were that the pressure in an oil well built up to bursting point, though valves and casing were open; also the packing in the “Christmas tree” was defective — all without negligence on the part of anybody connected with resulting fire.

In Hernandez v. Heldenfels, 374 S.W.2d 196, 201 (Tex.Sup.1964) it was urged that an issue of unavoidable accident should have been submitted because there was evidence from which a jury could infer that the plaintiff’s injuries resulted from the noise of machinery and overhead fans. But the Supreme Court rejected the contention ■ because defendants were familiar with the noisy condition of the plant. In this case Poovey was fully familiar with the conditions existing on the premises, including the swinging doors. See also Harrison v. King, 296 S.W.2d 344, 347 (Tex.Civ.App., San Antonio 1956, writ ref’d n.r.e.).

In other cases it has been held that there was no evidence of physical facts or circumstances which required the submission of an issue on unavoidable accident. Among them are Miles-Sierra Co. v. Castillo, 398 S.W.2d 948, 953 (Tex.Civ.App., San Antonio 1966, writ ref’d n.r.e.); Meinen v. Mercer, 390 S.W.2d 36, 40 (Tex.Civ.App., Corpus Christi 1965, writ ref’d n.r.e.); Continental Oil Co. v. Lindley, 382 S.W.2d 296, 304 (Tex.Civ.App., Houston 1964, writ ref’d n.r.e.). In the Meinen case, above cited, it was held that the defendant was guilty of negligence as a matter of law, therefore it was not necessary to submit unavoidable accident, though there was evidence of a slick street.

In our main opinion we cited Vergauwen v. Parsons, 294 S.W.2d 863 (Tex.Civ.App., Waco 1956, no writ) where there was evidence that a row of trees or hedges might obstruct the view of motorists approaching an intersection. Since the case has no writ history we cannot know whether our Supreme Court would have approved or disapproved the holding or the decision in the case. But in any event the Vergauwen case may easily be distinguished from the case now before us.

In Vergauwen the motorist had no control over the trees or hedge which might have obscured her view. She was helpless to abolish or change them so that they might not obscure her view. In the instant case the opposite is true. Poovey could have controlled the swinging doors so that they ceased to be an obstruction to his view. But he did not do so. He neither stopped nor slowed down before “bumping” the doors or door open with his loaded dolly. He did not push either or both doors open with his hand, either part way or until one or both doors caught on the lock or catch, or otherwise attempt to see that the way was clear; nor is there any evidence that he tried to look through the windows in the top half of each door. He was in such a hurry that he preferred to “bump” his way through the doors rather than to take the trouble to open them gently, or otherwise to remove the obstruction to his view.

The other two cases cited in this connection in our main opinion are Orange & N. W. R. Co. v. Harris, 127 Tex. 13, 89 S.W.2d 973 (1936) and Texas & P. Ry. Co. v. Edwards, 36 S.W.2d 477 (Tex.Com.App.1931, holdings approved) — both decided prior to the pronouncements in the Bailey case. However, in both instances there were physical facts present which could not be controlled by the defendants and which therefore justified the submission of an issue on unavoidable accident. In the Orange and N. W. R. case it had been raining and the night was dark and cloudy. Moreover, there was a low-hanging arc light which the defendant testified blinded him. In the Texas & P. Ry. case cattle were not visible to the trainmen because of dust and sand on account of a severe sandstorm which was blowing at the time of the accident.

I would sustain appellee’s motion for rehearing and affirm the judgment of the trial court.


author: LANGDON, Justice.

text:
    Ike TAYLOR et al., Appellants, v. CITY OF FORT WORTH, Appellee.
    No. 16853.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 27, 1967.
    Rehearing Denied Dec. 1,1967.
    Simon & Simon, and Richard U. Simon and Harold D. Hammett, Fort Worth, for appellants.

      S. G. Johndroe, Jr., City Atty., Jerome H. Parker, Jr., John R. Thompson, Jr., Asst. City Attys., Fort Worth, for appellee.
   OPINION

LANGDON, Justice.

On August 4, 1966, the appellants filed suit seeking disannexation of territory which was annexed by the City of Fort Worth on February 18, 1963. The suit was based upon Article 970a, Sec. 10, subd. A, Vernon’s Ann.Civ.St., which provides in part as follows:

“From and after the effective date of this Act, any city annexing a particular area shall within three (3) years of the effective date of such annexation provide or cause to be provided such area with governmental and proprietary services, the standard and scope of which are substantially equivalent to the standard and scope of governmental and proprietary services furnished by such city in other areas of such city which have characteristics of topography, patterns of land utilization, and population density similar to that of the particular area annexed. * * * »

The statute further provides that in the event the city fails or refuses to provide such services within the time specified that the governing body of such city may be petitioned to disannex the particular area. Upon failure of the governing body of the city to disannex the statute provides for resort to the district court which, “shall enter an order disannexing” such particular annexed area upon a finding that such area is otherwise eligible for disannexation under the provisions of the section above quoted.

The last sentence of Sec. 10, subd. A provides as follows:

“Provided, however, that the right of disannexation provided for in this Section shall not be available to any particular annexed area which was lawfully within the city limits of a city at the time of the approval or sale of any general obligation bonds of the city if proceeds therefrom have been expended for capital improvements to serve such particular annexed area, so long as any such bonds are outstanding.”

The appellee, City of Fort Worth, filed its motion for summary judgment based upon its pleadings, affidavits of various city officials and exhibits. The motion was sustained.

We reverse and remand.

The City contends that during the time the area sought to be disannexed was lawfully within the city limits the City Council approved and sold General Obligation Bonds of the City in substantial amounts the proceeds of which have been expended for capital improvements (Village Creek Sewer Collector System) to serve such area. That such bonds were outstanding at the time this suit was brought and are still outstanding (issued for 25 year period) and in the hands of innocent purchasers for value.

That because of the approval and sale of the General Obligation Bonds the proceeds of which have been expended for capital improvements (Sewer Collector System) the appellants are not entitled to disannexation under the express provisions of the last sentence of Sec. 10, subd. A, of Art. 970a, which is above set forth.

The City also urged that it has and is providing governmental and proprietary services in the area sought to be disannexed which are substantially equivalent to such services as are furnished other areas of the City which have characteristics of topography, patterns of land utilization and population density similar to the area in question. The affidavits of the various officials of the City more or less “parrot” the language of the statute as to such services.

Other areas of the City comparable to or similar to the area in question are not identified nor are the services furnished such comparable areas described so as to permit any comparison of such services or areas.

As to the area in question the City contends it furnishes police and fire protection on a regular and effective basis and recently has completed a sanitary sewer collector main which system penetrates the area involved and that additional portions of the system are presently under construction. That such system was designed to serve the area sought to be disannexed. There is nothing in the record to show that it is serving the area or that it will serve the area and if so, when such service will be extended to such area. It is a matter of common knowledge that a sewer system without a water supply in conjunction therewith is totally ineffective. There is no showing that the area is being furnished water or that it will be. The sewer system above referred to also penetrates an area which the City of Fort Worth voluntarily disannexed. The same system now or soon will penetrate the City of Everman. There is some mention of an agreement between the Cities of Everman and Fort Worth regarding the sewer system. The terms of the agreement relating to the use of the system and its availability to the use of other areas is not reflected by the record.

In our opinion the pleadings and the affidavits of the plaintiffs raise an issue of fact as to whether or not the City is providing the area in question with governmental and proprietary services which meet the standard required by Article 970a, Sec. 10, subd. A, V.A.C.S., supra.

The affidavit of Ike Taylor, one of the appellants, states that the City of Fort Worth in the past 3 years has not furnished the area in question with any police protection on any regular basis and that the Cities of Everman and Forest Hills “have furnished such fire protection as we have had. The City of Fort Worth does not furnish this area with water, sewage or disposal services of any kind or nature. In short, the city of Fort Worth does not furnish the residents of the area with any city facilities of any kind or nature and has not in the past 3 years. The inter-city sewage drain to Everman is not for the citizens of this area, and we have been told that we could not use this drain. The only service the City of Fort Worth is providing for this area is a regularly scheduled notice of ad-valorem taxes due which is received about the first of October of each year.”

In a second affidavit Mr. Taylor states that he has made a particular point to observe the facilities being furnished by the City of Fort Worth, and then states “The City of Fort Worth does not furnish any fire protection out here. We have tried to get assistance from the Fire Department of the City of Fort Worth and have been unsuccessful and the City of Forest Hill and Kennedale has answered fire calls in this area, I have never seen a Police Patrol of the City of Fort Worth in this area. The City of Fort Worth does not furnish any water or sewer facilities. I have my own well and septic tank and all of my neighbors in this area have the same facilities.”

The City argues that it is immaterial whether or not the services required were furnished by it since it is uncontroverted that the City has expended the proceeds from the sale of General Obligation Bonds for the construction of capital improvements to serve the area in question. Therefore, under the provisions of the last sentence of Sec. 10, subd. A of Art. 970a, supra, the right of disannexing provided for in the Act is not available to the appellants.

In our opinion the appellants by their pleadings and affidavits have raised a question of fact as to whether or not the proceeds from the sale of the bonds referred to have been expended for capital improvements (the sewer system) to serve the area in question. The showing that proceeds from sale of bonds is being expended for a sewer system which penetrates the area involved is not sufficient to show as a matter of law that the sewer system is ‘to serve the area in question.”

The affidavit of appellant Ike Taylor states “The inter-city sewage drain to Everman is not for the citizens of this area, and we have been told that we could not use this drain.”

McDonald Texas Civil Practice, Vol. 4, § 17.26, p. 1380: “(I) On the whole case. A summary judgment disposing of the entire action is proper when, but only when, the trial court, on motion therefor, is satisfied that ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ It must, indeed, be ‘quite clear what the truth is.’ Stated otherwise, the problem for the court, on such a motion, is whether the evidence before him, if offered at the trial, would compel the submission of issues of fact to the jury; if not, a summary judgment is proper. His task is to ascertain whether any material factual issues are in dispute, not to try them if they exist.” The same text at page 1388 states: “(ii) Where a motion is supported by affidavits, depositions, admissions, or other extrinsic evidence, but such supporting data is insufficient to demonstrate the absence of disputed issues as to material facts, no counteraffidavits are necessary. The motion will be overruled on its merits.” See also authorities cited under each of the above quoted paragraphs.

“Summary judgment is possible in this state only by virtue of the provision of Rule 166-A. To entitle a party to a summary judgment, the provisions of this rule must be strictly complied with. Gulbenkian v. Penn, 1952, 151 Tex. 412, 252 S.W.2d 929; Womack v. Allstate Insurance Company, 1957, 156 Tex. 467, 296 S.W.2d 233. ‘The burden of demonstrating the lack of a genuine issue of material fact is upon the movant, and all doubts are resolved against him,’ McDonald, Texas Civil Practice, Vol. 4, p. 1392, § 17.26 (VI).” Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961).

An expeditious disposition of cases is a cardinal virtue of the administration of justice, but it is not more important than one’s fundamental right to his full day in court.’ Accordingly, the rule ‘should be cautiously invoked to the end that parties may always be afforded a trial where there is a bona fide dispute between them.’ ”

Since there appears to be a bona fide dispute as to whether the services required by the statute are being furnished and whether the capital improvements (sewer system) is to serve the area in question we reverse and remand the case to the trial court for trial on the merits.

Reversed and remanded.


text:
    William R. TYNDALL et al., Appellants, v. ALLEN AND MORRIS DRILLING COMPANY, Appellee.
    No. 14623.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 8, 1967.

      Butler, Schraub & Gandy, Lewright, Dyer & Redford, Corpus Christi, for appellants.
    Keys, Russell, Watson & Seaman, James C. Watson, Corpus Christi, for appellee.
   KLINGEMAN, Justice.

This is a common law damage suit brought by William R. Tyndall against Allen and Morris Drilling Company for damages for personal injuries sustained by Tyndall, in the course of his employment, while working for Pursley Tong Company engaged to run casing into a well being drilled by Allen and Morris Drilling Company. Aetna Casualty & Surety Company intervened seeking recovery of benefits paid by it under a policy of workmen’s compensation insurance in behalf of Tyndall, and for attorney’s fees in connection with such intervention. Upon a jury trial, the jury answered various special issues submitted to it adversely to Tyndall, hereinafter called plaintiff, and judgment was entered in accordance with such jury findings. No complaint is made on this appeal of such jury findings. Plaintiff’s only point of error is that the trial court erred in refusing to submit issues requested by him on discovered peril.

Plaintiff was a member of the Pursley crew assigned to run casing into a well being drilled by Allen and Morris Drilling Company, hereinafter called defendant, on June 12, 1962. Plaintiff was working on a catwalk near where the ramp joined the catwalk, and his job was to tie the pick-up line to a joint of casing as such casing was lifted up to the derrick for lowering into the hole. The casing was picked up by a traveling block to which the pick-up line was attached, and the driller, who was an employee of defendant, was in charge of the operation of the traveling block. While engaged in his work of tying such pick-up line to the casing, plaintiff was hit in the face by a hook or weight attached to the pick-up line. It appears from the testimony that while running such casing the driller had to watch the traveling block as it came down, had to observe the workers on the derrick floor, watch the weight indicator, and control the power and brakes used to pick up the casing and lower it into the hole. The evidence further shows that from where the driller was located it was not possible for him to see the tie-up man when such worker was on the ground. If such worker was on the catwalk, the most the driller could see of him was from the chest up, and could not see him if he was bent over.

Plaintiff requested six special issues of the trial court on discovered peril, which may be summarized as follows: (1) Whether plaintiff was in a position of peril; (2) whether defendant’s driller discovered plaintiff in such position of peril prior to the accident; (3) whether defendant’s driller realized, prior to the accident, that plaintiff could not, and in all reasonable probability would not, extricate himself from such position of peril; (4) whether such discovery and realization was made by defendant’s driller at such time that, by the exercise of ordinary care in the use of all means at his control, consistent with his own safety, he could have prevented such accident; (5) whether, after such discovery and realization, defendant’s driller failed to exercise ordinary care in the use of all means at his command to prevent this accident ; (6) whether such failure was a proximate cause of the accident in question.

Defendant, in addition to its reply brief, has also filed a motion to strike plaintiff’s single point of error, on the ground that such point is not bottomed or based on a proper assignment of error in plaintiff’s motion for new trial. Plaintiff’s only assignment of error in this regard, in his motion for new trial, was: “The Court erred in refusing to submit to the jury plaintiff’s special requested issues concerning the position of peril of plaintiff herein.”

Defendant’s motion to strike has considerable merit. Plaintiff’s assignment of error in his motion for new trial is restricted to the position of peril of plaintiff, and there is nothing in such assignment to direct the court to the other issues on discovered peril, to-wit: discovery, realization, extrication, the time element, negligence, and proximate cause. Our Supreme Court in Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960), said:

“Rules 320, 321, 322 and 374 govern the form of assignments of error in motions for new trial which become the basis for points of error on appeal. Rule 320 provides that the motion ‘shall specify each ground on which it is founded, and no ground not specified shall be considered.’ Rule 321 requires that the assignments in the motion refer to the action of the court complained of ‘in such way as that the point of objection can be clearly identified and understood by the court.’ Rule 322 directs that ‘Grounds of objections couched in general terms * * * shall not be considered by the court.’ Rule 374 provides that ‘A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived.’ While Rule 1 states that the rules are to be given a liberal construction to the end that a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law may be obtained with expedition and dispatch and without unnecessary expense, Rules 320, 321, 322 and 374 were deliberately adopted to serve a useful purpose. There must be a substantial compliance with the provisions of those rules if a litigant is to have his points of error based thereon considered by an appellate court.”

Nevertheless, we have examined the entire record and do not find any error of the trial court in refusing to submit the six requested issues on discovered peril. In order for plaintiff to bring the case within the doctrine of discovered peril, it was necessary for him to prove that defendant actually discovered and realized plaintiff’s perilous position in time to have avoided the accident by the exercise of ordinary care in the use of all means at his command. Texas & New Orleans Ry. Co. v. Hart, 163 Tex. 450, 356 S.W.2d 901 (1962); Texas & N. O. R. Co. v. Grace, 144 Tex. 71, 188 S.W.2d 378; Panhandle & S. F. Ry Co. v. Napier, 135 Tex. 314, 143 S.W.2d 754 (1940); Frasier v. Pierce, 398 S.W.2d 955 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.). There is no evidence in the record that defendant’s driller, at or immediately prior to the time plaintiff received his injury, discovered plaintiff in any perilous position. The driller testified unequivocally that he did not see plaintiff, and that he did not know about the accident until after ⅛ happened, and there is no testimony in the record to the contrary. In Safeway Stores, Inc. v. White, 162 Tex. 473, 348 S.W.2d 162 (1961), the Supreme Court said: “The ‘could have’ or ‘should have’ standard for measuring the proof required to raise the discovery issue has never been recognized by this Court and will not be adopted now. Actual discovery is an essential element of the doctrine of discovered peril as applied in Texas.”

There is no evidence in the record raising the issue of discovered peril and plaintiff was not entitled to the submission of his requested issues. The judgment of the trial court is affirmed.