text:
    Emilio G. GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 38944.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1966.

      Henry Beltran, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Clarence V. Lyons, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is aggravated assault on an officer; the punishment, 90 days in jail.

The record contains only a partial statement of facts which was introduced in evidence at the hearing on the motion for new trial, and we are therefore not in a position to pass upon the sufficiency of the evidence to sustain this conviction.

Appellant’s sole contention on appeal relates to the trial court’s action in overruling his motion for new trial. By affidavit of appellant’s attorney, it was sworn that Juror Weakley orally admitted that she considered certain testimony relating to an extraneous offense, which the trial court had instructed the jury to disregard, in reaching her decision to vote for a verdict of guilty. The affidavit of appellant’s attorney further recited that Juror Weakley had refused to sign an affidavit to that effect.

The record of the testimony adduced at the hearing on the motion for new trial reflects that the statement regarding the extraneous offense was elicited by the appellant’s own counsel during cross examination of a police officer and was responsive to the question asked. Be this as it may, the testimony adduced at the hearing on the motion for new trial shows only that Juror Weakley stated that in reaching her decision on the verdict she could not help considering the testimony regarding the extraneous offense, in spite of the court’s admonitory instruction to disregard such. There is nothing in the record remotely indicating that a discussion of the extraneous offense took place in the jury room.

It has been the consistent holding of this Court that a juror will not be permitted to impeach or explain his or her verdict by showing the reason for the conclusion reached. Anaya v. State, 167 Tex. Cr.R. 509, 321 S.W.2d 585. Bryant v. State, 159 Tex.Cr.R. 98, 261 S.W.2d 728. Therefore the reason alleged for the juror’s returning a verdict of guilty against the appellant would not entitle appellant to a new trial, and the trial court did not abuse his discretion in refusing to grant the same.

The judgment is affirmed.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Timer BELL, Appellant, v. The STATE of Texas, Appellee.
    No. 38664.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    Rehearing Denied Feb. 2, 1966.

      Larry Emerson, Houston, Marvin O, Teague (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Neil McKay, Asst. Dist. A ttys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the punishment, ten years.

The evidence was undisputed that appellant killed the deceased, Dillon Roberson, by shooting him with a gun.

Appellant was the manager of a group of apartments in the city of Houston. The deceased, Dillon Roberson, his brother Quille Roberson, and Quille’s wife lived in one of the apartments. It was shown by the state’s testimony that, on the day of the homicide, Quille, the brother, went to the appellant’s apartment around 10 a. m. and paid him $40 in rent. Later in the day a dispute arose between the parties, and appellant told Quille he could move and he would refund the rent money. The deceased and Quille then went to appellant’s apartment around 3 p. m., and appellant refunded the $40 to Quille. The latter returned the rent receipt to appellant. As Quille was leaving, appellant grabbed him 5¡,nd attempted to take the money. In this he did not succeed and Quille returned to his apartment and started loading his possessions in his automobile, to leave. While in the process of loading and passing by the door to appellant’s apartment, he was shot. He then ran behind some cars and appellant was seen to come out of the door of his apartment with a rifle in his hand and point the same in Quille’s direction, but he did not fire.

Dillon Roberson, the deceased, was then found lying outside appellant’s apartment near the door, with a gunshot wound in the left side.

When the officers arrived upon the scene, they went to appellant’s apartment and were admitted inside by appellant’s wife. Appellant was in the apartment, and, in conversation with the officers, said that he was the one who had done the shooting. As a result of information given by appellant the officers recovered a .303 British Enfield rifle in a bedroom which appellant had used in the shooting. When recovered, the rifle had five live rounds in the clip and one jammed shell in the barrel'. A spent cartridge was found in the hallway of the apartment, together with blood stains on the floor. There was also a bullet hole about waist-high in the front door of appellant’s apartment.

It was shown by the testimony of Dr. Robert Bucklin, associate medical examiner for Harris County, that the deceased died at 11:15 p. m., on the day of the homicide and that the cause of death was a gunshot wound through the abdominal cavity. Dr. Bucklin, testifying from the autopsy report, stated that on the deceased’s body there was a partially sutured gunshot entrance wound on the left side close to the rib and an exit wound on the same level in the back two inches to the left of the mid-line. The doctor stated, however, that it was difficult to determine the entrance and exit wounds on the body because of suturing around an old surgical wound, and that an examination of the deceased’s clothing would be of assistance in making that determination.

Testifying as a witness in his own behalf, appellant related in detail his version of the misunderstanding between the parties over payment of the rent and testified that between 3 and 4 p. m. on the day in question the deceased and his brother, Quille, entered his apartment in a rough and abusive manner. Quille demanded a return of the rent money. Appellant told his wife to go get the money, which she did. When she returned to the room with the money, Quille knocked her down, grabbed the money, and called her a bitch. Appellant was sitting in a chair and attempted to get up. Quille hit him in the right eye, knocking him to the floor. While on the floor, appellant grabbed the rifle and, when he saw the deceased advancing upon him, fired the rifle one time. The deceased fell to the floor and in about five minutes got up and went outside. Appellant swore that he fired the rifle to keep the deceased from stomping or doing further damage to him and that he did not go outside the apartment from the time he fired the shot at the deceased until the officers arrived.

Appellant’s wife, upon being called as a witness in his behalf, gave a similar version of the difficulty and shooting.

The court, in his charge, instructed the jury on the law of both murder with and without malice and on the law of self-defense.

The jury by their verdict rejected appellant’s claim of self-defense.

We overrule appellant’s contention that the evidence is insufficient to support his conviction for murder with malice aforethought.

It was undisputed that appellant shot the deceased with a .303 British Enfield rifle. That the shooting was intentional is not disputed.

It has long been the rule in this state that proof of the intentional shooting of one with a rifle is sufficient to authorize the jury to find that the shooting was actuated by malice. Brown v. State, 153 Tex.Cr.R. 1, 216 S.W.2d 226; Burns v. State, 159 Tex.Cr.R. 183, 262 S.W.2d 406; Walker v. State, 160 Tex.Cr.R. 301, 268 S.W.2d 464; Beasley v. State, 171 Tex.Cr. R. 115, 346 S.W.2d 123.

Error is urged to the admission in evidence of state’s exhibits #5 and 6, which were black and white photographs of the shirt worn by the deceased at the time of the killing, showing the bullet holes therein. It is contended that the photographs did not tend to solve any disputed fact issue in the case and were therefore inadmissible under the rule stated in Burns v. State, Tex.Cr.App., 388 S.W.2d 690.

We perceive no error in the admission of the photographs in evidence. The issue of self-defense was raised by appellant in the case. The entrance and exit of the bullet was material to the issue. As heretofore mentioned, Dr. Bucklin testified that the deceased’s clothing would be of assistance in making the determination. It should also be pointed out that the shirt worn by the deceased was not exhibited before the jury but only the photographs thereof, which in no way were ghastly or prejudicial.

Appellant insists that his conviction cannot stand because the officers violated certain fundamental rights guaranteed to him under the Constitution and laws of this State and of the United States. It is contended that his constitutional rights were violated because (1) the officers did not obtain his permission to enter the apartment, (2) his arrest was unlawful, (3) he was not taken before a magistrate, and (4)he was not informed of his constitutional rights to remain silent or consult with an attorney, or given the statutory warning pertaining to confessions.

We have carefully reviewed the record in the light of such contention and find no merit therein. No question was raised by appellant in the trial relative to the legality of his arrest, and the authority upon which the officers arrested appellant is not shown in the record.

The record is undisputed as to the officers being admitted into the apartment by appellant’s wife. Clearly, they were not trespassers.

The record is silent with reference to whether appellant was taken before a magistrate.

Appellant, in his testimony, admitted everything shown in his oral confession, which was that he fired the fatal shot with the rifle found by the officers in his apartment. No objection was made by appellant to the proof of his oral confession, which led to the recovery of the murder weapon. The rifle was admitted in evidence without objection.

No request was made by appellant of the officers that he be permitted to consult with an attorney, and the record shows that appellant had talked with an attorney by telephone before the officers arrived.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Cliff STEWART, Appellant, v. The STATE of Texas, Appellee.
    No. 38755.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1965.
    Rehearing Denied Feb. 2, 1966.

      Billy Hall, Littlefield, for appellant.
    Alton R. Griffin, Dist. Atty., Jerome H. Schuetzeberg, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is cattle theft; the punishment, two years.

The indictment charged that on or about the 9th day of September, 1963, the appellant did fraudulently take five head of cattle from one Claud Keeton.

It was shown by the state’s testimony that the prosecuting witness, Claud Keeton, owned and operated a livestock auction barn located some six or seven miles from Lubbock on Highway 84, referred to as the Slaton highway. Appellant and Murray Edwards were partners, operating under the name of E & S Cattle Company, of Clovis, New Mexico, and on occasion they purchased cattle at the Keeton auction sale.

During the first week in August of 1963, appellant and his partner attended a Kee-ton sale and purchased a number of head of cattle. The cattle, with tags bearing certain numbers pasted on their backs with gray glue, were put in pens #47 and 49. Before the cattle were moved the following day it was discovered that seven head of Mr. Keeton’s cattle were in appellant’s pens 47 and 49, and the same number of cattle purchased by appellant were in Kee-ton’s pens. The seven head of Keeton cattle in appellant’s pens had tags which had been placed on them with black glue and bore the numbers of the cattle which had been purchased by appellant. Gray glue was used to tag cattle at the Keeton auction, while black glue was used at a “Four C” auction in Clovis, New Mexico. Although informed of such fact, Mr. Kee-ton instructed his employees to load the cattle, including his seven head which had the tags switched. The cattle were then hauled away for appellant. Keeton subsequently sold the seven head of cattle which had been purchased by appellant and left in his pens and, as a result of the difference between their weight and quality and the weight and quality of his seven head which appellant had hauled away, he sustained a loss of $225. It was further shown that after the cattle were hauled away for appellant, some torn tags were found, in a chute, which had been on Kee-ton’s cattle, and the tracks of two men were found leading from pens 47 and 49 to where a car had been parked in a field. Where the tracks stopped, a buyer’s card, with black glue thereon, from the Gatesville Commission Company, was found which had either the name of appellant or his partner, or both, on it.

On September 9, appellant and Edwards attended a sale at the Keeton barn and purchased thirty-one head of cattle. These cattle, with tags and numbers on their backs, were put in pens 47 and 49. At 6 p. m., the last employee left the place after checking to see that the gates to all pens were closed and that all the alleys were blocked. Around 6:30 p. m., appellant and Edwards were seen by the wife of the auction barn nightwatchman to enter the premises in an automobile and drive toward the loading chute. When her husband, who was deceased at the time of trial, walked toward them they drove in a circle and left the same way they had entered. Thirty minutes to an hour later, appellant and Edwards were seen by the witness to drive in front of her house.

At approximately 8 p. m., Ranger Captain Raymond Waters and other officers stationed themselves at various places of hideout in the pens and grounds. At such time the gates to the pens were closed and there were no cattle milling around in the alleys. Between 10 and 10:30 p. m., appellant and Edwards drove up in an automobile to the pens near the loading chute. After sitting in the car for five minutes, they got out and walked down the alleys. A noise was heard which sounded like a gate opening and the cattle began to mill around in the alleys. The two men then left.

Around 1:30 a. m., a truck drove into the premises and backed up to the loading chute. Appellant and Edwards also returned in their automobile. The lights at the pens were turned on. Appellant, Edwards, and the truck driver then proceeded to load cattle in the truck. After the cattle were loaded the lights were turned off and the truck was driven away. Later in the night the truck, loaded with thirty-one head of cattle, was stopped at Littlefield. It was then returned to the Keeton auction barn at Lubbock. . An inspection of the thirty-one head of cattle showed that there were five head on the truck which had not been purchased by appellant the day before. Of the five head, four belonged to Mr. Keeton and the other had been purchased by the Lamesa Packing Company and was in Mr. Keeton’s custody and possession when taken. An inspection revealed that there were five head of cattle in Mr. Keeton’s pens that had been purchased by appellant. These cattle were inferior in quality and weight to the five head of Mr. Keeton’s cattle that were in the truck. Tags which had been on cattle purchased by Keeton and the Lamesa Packing Company were found near pens 38, 47, and 49.

It was further shown by the state’s evidence that appellant had no permission to take the cattle from the auction barn which he had not purchased and that three days later the truck was loaded' with the thirty-one head of cattle which appellant did purchase, and were hauled to New Mexico.

Appellant did not testify but called as a witness Don Hollon, the truck driver, who testified that on the night in question, when he went to the pens to load the cattle, some of the gates were open and the cattle were in an alley. Hollon swore that he did not see appellant or Edwards pull any tags off cattle and that when he hauled the cattle away three days later, they looked like the same cattle he had previously loaded.

This testimony, together with other testimony brought out on cross-examination of certain witnesses by appellant, raised the defensive issue of mistake.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals and circumstantial evidence. The defense of mistake was also submitted. The court limited the jury’s consideration of the evidence relative to the taking of the cattle by appellant in the first week in August, 1963, to the question of determining his intent in the transaction on September 9, when the offense for which he was on trial was alleged to have been committed.

The charge given by the court fairly submitted the issue of appellant’s guilt to the jury, together with his affirmative defense of mistake.

In refusing appellant’s requested charge on entrapment, the court did not err, as such a defense was not raised by the evidence.

By their verdict, the jury rejected appellant’s defense of mistake, and we find the evidence sufficient to sustain the judgment of conviction.

In permitting the state to make proof of the transaction in the first week in August, 1963, when appellant took the seven head of cattle, the court did not err. The issue of fraudulent intent in the transaction on September 9 was raised by appellant, his defense being that of mistake. The evidence of a prior and similar transaction by appellant, although it showed a separate offense, was admissible on the question of his intent. Daniel v. State, Tex.Cr.App., 212 S.W.2d 636; O’Brien v. State, Tex.Cr.App., 376 S.W.2d 833.

Nor did the court err in admitting in evidence state’s exhibits #1, 2, 3, 4, and S over appellant’s objection that he was not shown to be connected therewith. While the original exhibits do not appear in the record, the proof shows that state’s exhibits #1, 3, and 4 were tags found near pens 47 and 49 which had been on cattle purchased by appellant and Edwards. Exhibit #2 was two parts of a tag, found near pens 38 and 49, which had been on a heifer, purchased by the Lamesa Packing Company, unloaded from the truck when it was returned from Littlefield. Exhibit #5 was the buyer’s card, issued by the Gates-ville Commission Company, found in the field, which had either the appellant’s name or his partner’s, or both, on it.

Other informal bills of exception presented by appellant have been examined and do not show error.

The judgment is affirmed.

Opinion approved by the court.


author: WERLEIN, Justice.

text:
    James Peter ENTREKIN, Appellant, v. Diane Rohrer ENTREKIN, Appellee.
    No. 14691.
    Court of Civil Appeals of Texas. Houston.
    Jan. 6, 1966.
    Louise C. Rowen, Galveston, for appellant.
   WERLEIN, Justice.

This suit was brought by appellee, Diane Rohrer Entrekin, against James Peter En-trekin for divorce, division of community property, and for custody and support of the minor child of said parties. On February 8, 1965, there was a hearing on appellant’s application for modification of visitation rights previously granted appellant. At such hearing several witnesses testified, including appellant and appellee. Ap-pellee testified with respect to certain conduct of appellant, and, among other things, testified that appellant on one occasion when he was visiting the child permitted her to play with a film cartridge box which he had taken from his pocket, and that when appellee undertook to grab the box appellant struck her, put the box in his pocket, and told her it was none of her business what the box was. She further testified that she did not feel it was safe for appellant to be with the child alone because he did not know how to care for a child and was quite impulsive and that she was afraid that he might injure the child, and further that he had on previous occasions threatened to do appellee physical harm. After such hearing, the court, on February 15, 1965, entered an order modifying appellant’s visitation rights.

The record shows that the case was set for trial for February 23, 1965, and on such day counsel for appellant in open court moved that he be permitted to withdraw as counsel, which motion was granted. The cause was thereupon continued on motion of appellant to March 11, 1965 at 2 o’clock p. m. for trial on the merits. When the case was called, appellant in open court dismissed the cross-action which he had filed. The court thereupon, without hearing any evidence, granted appellee a divorce from appellant, gave appellee custody of the minor child, provided for child support and visitation rights, and ordered a division of the property of said parties.

The agreed statement of facts signed by the attorneys for the parties and by the trial judge clearly shows that no witnesses were sworn and no evidence whatever was received by the court in connection with the divorce proceeding. The court merely announced to appellant’s counsel that during the hearing upon appellant’s motion to modify the interlocutory order for child custody and visitation rights, he had heard all the testimony he desired to hear in the case. He further announced it was the judgment of the court that a divorce would be granted, and he instructed the attorneys to prepare a judgment granting appellee a divorce and containing the same provisions for visitation rights and custody as in the order of February 8, 1965, and for child support as per the agreement of the parties. Appellant duly excepted to the court’s judgment which was entered May 20, 1965, and gave notice of appeal.

The record shows that the hearing on February 8, 1965, was for the sole purpose of determining whether or not there should be a modification of visitation rights previously granted appellant, pending the trial on its merits. The evidence adduced at such hearing was not given by either party except in such connection and for such purpose. It was not given in a trial of the divorce suit nor for the purpose of obtaining a divorce. There is nothing in the record to show what the evidence would have been had the court permitted the parties to proceed with the trial instead of announcing that he had heard all the testimony that he desired to hear. Article 4632, Vernon’s Annotated Texas Statutes provides that a decree for divorce shall be rendered upon full and satisfactory evidence. In the instant case there was not only no full and satisfactory evidence, there was no evidence whatever and no trial on the merits.

Reversed and remanded for trial.


author: GRISSOM, Chief Justice.

text:
    NATIONAL UNION FIRE INSURANCE COMPANY, Appellant, v. CANADIAN FIRE INSURANCE COMPANY, Appellee.
    No. 4014.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 12, 1965.
    Rehearing Denied Dec. 17, 1965.
    Bryan & Patton, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tom Connally, Houston, for appellee.
   GRISSOM, Chief Justice.

In November, 1958, Canadian Fire Insurance Company issued an insurance policy to Armstrong as owner of a dwelling and household goods, insuring the building for $6,500.00 and the household goods for $3,000.00 against loss by fire. In September, 1960, National Union Fire Insurance Company issued a fire insurance policy to A. J. Bogatto, Jr., as owner, insuring the same property for $8,000.00. In December, 1960, Canadian cancelled the policy it had issued to Armstrong in 1958, because he failed to pay the premium when it became due. On January 23, 1961, Canadian issued to Bogatto a fire insurance policy on the same property for $6,500.00. Canadian did not then know of the policy National had issued to Bogatto.

On February 20, 1961, the insured property was destroyed by fire. Bogatto gave notice of loss to both companies and demanded payment. National contended that Bogatto’s loss should be prorated between said companies in accordance with the pro rata liability clauses in the two last mentioned policies. Canadian contended it was not liable to Bogatto because (1) the policy it had issued to Armstrong had been can-celled in accordance with its terms before the fire and (2), before it issued a policy to Bogatto, National had issued its policy to Bogatto and National’s policy was in effect then and at the time of the fire. Canadian contended that the policy it issued to Bogatto was not in effect at the time of the fire. Said companies settled with Bogatto in accord with the pro rata liability provision in the last two policies with the agreement that Canadian might sue National and, if it should be determined that Canadian was not liable to Bogatto, National would pay Canadian the $3,586.21 it paid Bogatto.

Canadian brought this suit against National to recover the $3,586.21 it paid Bo-gatto. The facts stated were established by the affidavits and depositions of Bogatto and Mrs. Bruce, the agent of Canadian. The court rendered summary judgment for Canadian against National for the amount Canadian had paid Bogatto. National has appealed.

We must determine whether National is obligated to pay the entire loss or whether it should he prorated between the companies. The precise question presented is whether the apportionment clause in the “148-S PLF Form” is applicable here. We hold that it is not.

National’s points are that (1) the court erred in rendering summary judgment for Canadian because the policies provided that the loss should be apportioned and Bogatto has been fully compensated on the basis of their pro rata liability, and National is, therefore, not liable to Canadian for the amount it paid Bogatto. National also says (2) there were disputed fact issues material to Canadian’s recovery and that (3) Canadian’s motion for a summary judgment did not comply with Texas Rules of Civil Procedure 166-A.

Canadian’s first counterpoint is that the court did not err in rendering summary judgment for it because, under the undisputed facts, neither of Canadian’s policies was in force at the time of the fire. During the time covered by the policy Canadian issued to Armstrong, that is, in June, 1960, Armstrong sold the insured property to Bogatto. Armstrong was thereby deprived of an insurable interest in the property and the sale without notice to Canadian constituted a material breach of the basic conditions of Canadian’s policy, making its first policy no longer effective. The condition breached by Armstrong’s sale of the insured property provided that Canadian should not be liable for any loss (d) after a change in ownership of the insured property or (e) while any other provision or condition of said policy was being violated. As a result of said breach, Canadian’s first policy was not in force after Armstrong’s sale to Bogatto. Furthermore, before the fire that policy was cancelled for failure to pay the premium. In September, 1960, National issued a policy on the same property to Bogatto in an amount different from that fixed in Canadian’s policies. National’s policy became effective when it was issued because Canadian’s first policy was not then in force because of its provision terminating the policy upon such a change in ownership. On December 19, 1960, Canadian’s agent, Mrs. Bruce, not knowing of the sale of the insured property by Armstrong to Bogatto, cancelled Canadian’s first policy for nonpayment of the premium. In January 1961, Mrs. Bruce learned of the sale of the insured property by Armstrong to Bogatto. She then asked Bogatto to let her write a policy for him on said property. Bogatto, forgetting about National’s policy, did not inform Mrs. Bruce of its existence and, on January 21, 1961, Canadian issued its policy to Bogatto for $6,500.00. When Bogatto purchased the policy from Canadian and failed to advise it of the existence of National’s policy he breached the provision of the coinsurance clause in Canadian’s policy to the effect that, unless the total amount of insurance on each item was inserted in certain blanks, which was not done, no other insurance was permitted. Canadian’s second policy also contained said “basic conditions” suspending insurance while any condition of said policy was being violated. By Bogatto’s failure to advise Canadian of his pre-exist-ing National policy, Bogatto failed to comply with the coinsurance clause in his Canadian policy rendering it unenforceable from its inception.

For the reasons stated, Canadian’s first policy became ineffective upon the issuance of National’s policy. Under the holding of our Supreme Court in American Insurance Company v. Kelley, 160 Tex. 71, 325 S.W.2d 370, National’s policy being in effect when Canadian’s second policy was issued to Bogatto, no recovery could be had against Canadian on its second policy. National seeks to distinguish this case from the Kelley case by relying on the apportionment clause in Section VI of the “148-S Physical Loss Form” endorsement, which clause was not involved in the Kelley case. That contention cannot be sustained because the purpose clause of said endorsement makes it clear that it was intended only to extend coverage to physical loss in addition to that caused by fire. It was not intended to affect the coinsurance provision or basic conditions in Canadian’s second policy. Said endorsement modifies the insurance agreement only to extend coverage from loss by fire to all physical loss.

We conclude that the apportionment clause relied upon by National, found in said “Physical Loss Form” endorsement, is inapplicable and that it does not make the rule of the Kelley case inapplicable here. We conclude there was no issue of fact as to Mrs. Bruce’s knowledge of change in ownership of the insured property at material times; that there was no genuine issue as to any material fact and that the only question for determination by the trial court was one of law. Canadian’s policy issued to Bogatto was not a renewal of Armstrong’s policy. It was a different contract between different parties.

All of appellant’s points have been considered and are overruled. The judgment is affirmed.


author: WILSON, Justice.

text:
    CHEM-GAS ENGINEERS, INC., Appellant, v. TEXAS ASPHALT & REFINING COMPANY et al., Appellees.
    No. 4445.
    Court of Civil Appeals of Texas. Waco.
    Dec. 27, 1965.
    Rehearing Denied Jan. 6, 1966.
    See also Tex.Civ.App., 395 S.W.2d 690.

      Nowlin Randolph, Houston, for appellant.
    Brown, Kronzer, Abraham, Watkins & Steely,- Curtiss Brown, Houston, for appel-lees.
   WILSON, Justice.

. The question in this case is whether the trial court correctly sustained defendant’s plea in abatement asserting pendency of a prior action. In our opinion the plea was properly sustained, and we affirm the consequent order of dismissal.

Appellant Chem-Gas Engineers, Inc., was the plaintiff in the present suit in which Texas Asphalt & Refining Company was defendant. The petition alleged plaintiff agreed by written contract to furnish to defendant labor and material to rebuild defendant’s existing refinery facilities and to construct three additional units. Judgment was sought for the sum alleged to be due under the contract and for foreclosure of lien. Alternatively, plaintiff sued in quantum meruit for debt. It also prayed that its lien be accorded superiority over that of another defendant. This suit was filed in the 125th District Court of Harris County January 14, 1965. Citation was issued and served on appellee the following day.

The plea in abatement of defendant-ap-pellee, Texas Asphalt & Refining Company, alleged that previously, on January 13, 1965, it had filed in the 151st District Court of Harris County its petition in a suit against Chem-Gas Engineers, Inc. Citation in this prior case was issued January 14, and served January 15, 1965.

The petition in this first filed case also alleged the contract between Chem-Gas and Texas Asphalt by which the former was to build and revamp refinery facilities of the latter. It averred, however, that Chem-Gas failed to properly perform the contract in a good and workmanlike manner, and within the time required. The Texas Asphalt pleading alleged the work was completed about November 12, 1964; the Chem-Gas petition alleged the plant was not ready for acceptance until that date. Texas Asphalt sued for damages alleged to have resulted from breach of the contract, joining the surety on the contractor’s performance bond.

The general precept in determining whether the subsequent suit should be abated because of pendency of a prior action between the samé parties is stated in Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1070: the court which first acquires jurisdiction “may exercise it to dispose of the whole subject-matter of the litigation and adjust all the equities between the parties, and is entitled to do so.” In that case the first suit was for cancellation of instruments; the second was for recovery on them.

Appellant insists that the exclusive test prescribed by Cleveland v. Ward for determining whether to abate the suit last instituted is whether judgment in the prior action would be res judicata as to that last filed. This was only one of the grounds of decision. The authorities there cited supporting the rule quoted above are to the effect that the first court has power to fully adjudicate “all the matters at issue between the parties incident to” the contract involved in the suit.

In McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56, 59, the basis of decision was that of comity in avoiding conflict of jurisdiction. The test adopted was whether the two actions “involve the same subject matter,” and as to the court of first filing it was held: “its power being adequate to administer full justice to the rights of all concerned,” it should “retain such jurisdiction, undisturbed by the interference of any other court, and dispose of the whole controversy.” It was further said, “If the two cases involve the same subject-matter when a plea in abatement is properly and seasonably filed in the case last filed, the latter court should sustain such plea.”

If the res judicata test is applied, nevertheless, it also requires affirmance. In Texas the rule of res judicata bars litigation of issues connected with a cause of action or defense “which, with the use of diligence, might have been tried in a former trial, as well as those which were actually tried.” Ogletree v. Crates (Tex.Civ.App.1963), 363 S.W.2d 431, 435.

The rights and duties of the parties to a contract in controversy are conclusively fixed by the judgment insofar as such rights and duties are within the issues adjudicated by necessary inference in determination of the prior action, “although the immediate subject matter of the two actions may be different.” 50 C.J.S. Judgments § 736a. See Cockburn v. Noxon, Tex.Civ.App., 135 S.W.2d 516, 518, writ ref.; Dixon v. Watson, 52 Tex.Civ.App. 412, 115 S.W. 100, 102, writ dism.; Connell v. Spires, Tex.Civ.App., 264 S.W.2d 458.

Confusion in divergent earlier Texas cases collated in 118 A.L.R. 1249 (1939) has been dispelled by Rule 97(a) Texas Rules of Civil Procedure, making it mandatory that a party state as a counterclaim “any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction” which is the subject of the opposing party’s claim.

A prime purpose of this Rule is to prevent multiplicity of actions and achieve resolution in one suit of all disputes arising out of common matters. Southern Const. Co. v. United States for Use of Pickard (1962) 371 U.S. 57, 83 S.Ct. 108, 9 L.Ed.2d 31. The decisions interpreting original Federal Rule 13, from which Texas Rule 97 (a) is derived, hold that a claim for debt under a contract is a mandatory counterclaim in the suit alleging damages for breach of that contract, and the principle of res judicata applies. Platt & Munk Co. v. Republic Graphics, Inc. (C.A.N.Y.1963), 315 F.2d 847; Ryan Ready Mixed Concrete Corp. v. Franki Foundation Co. (C.A.Tex.1955), 229 F.2d 289. See 22 A.L.R.2d 627, 629. Under such a provision “an action will generally be abated if the claim on which it is based could have been pleaded in a pending action.” 1 Am.Jur.2d, Abatement, Sec. 28, p. 67; 30A Am.Jur., Sec. 386, p. 435. Appellant argues that its subsequent suit made its claim the “subject of a pending action” so that it was no longer a compulsory counterclaim in the prior suit under the proviso of Rule 97(a). To so construe the quoted phrase would have the practical effect of nullifying the Rule, for a defendant in the first case could, by the simple expedient of promptly filing a second suit, uniformly preclude application of the Rule. The second suit was properly abated. Affirmed.

TIREY, J., not participating.


author: BARROW, Justice.

text:
    AMERICAN INDEMNITY COMPANY, Appellant, v. R. E. (Bob) GARCIA et ux., Appellees.
    No. 14431.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 15, 1965.
    Rehearing Denied Jan. 12, 1966.
    Beckmann, Stanard, Wood & Vance, San Antonio, for appellant.
    Carter, Callender & Onion, San Antonio, for appellees.
   BARROW, Justice.

American Indemnity Company appeals from a judgment whereby R. E. (Bob) Garcia and wife recovered medical payment benefits under a Family Combination Automobile Policy issued by appellant, together with the statutory penalty and attorney’s fees. The material facts were stipulated and the questions asserted on this appeal relate to a construction of the policy.

Appellant issued its policy to appellees on July 31, 1961, effective for one year, whereby appellees insured their 1959 Mercury Station Wagon inter alia for medical payments coverage. On December 4, 1961, appellees purchased a 1962 Chevrolet pickup and insured this vehicle, through another agent, with a different company. The second policy did not provide for medical payments coverage. On December 16, 1964, appellees were involved in a collision, while occupying the Chevrolet pick-up, as a result of which Mrs. Garcia sustained reasonable and necessary medical expenses in the amount of $1,036.35. A claim was timely asserted against appellant under its policy to recover for these expenses, and after denial by appellant this suit was filed.

Under the terms of its policy, appellant agreed to pay the reasonable medical expenses up to $2,000: “To or for the insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ caused by accident, while occupying or through being struck by an automobile.”

This coverage was subject to an exclusion which is the basis of appellant’s denial of this claim. It provides in part: “This policy does not apply under Part II to bodily injury: ⅜ ⅜ ⅛ (b) sustained by the named insured or a relative (1) while occupying an automobile owned by or furnished for the regular use of either the named insured or any relative, other than an automobile defined herein as an ‘owned automobile/ * * ⅜.” (Emphasis ours.) “Owned automobile” is defined in the policy as: “ ‘owned automobile’ means a private passenger, farm or utility automobile or trailer owned by the named insured, and includes a temporary substitute automobile.”

There is a blank provided in the policy for setting forth a “Description of owned automobile or trailer,” and the Mercury Station Wagon is described therein. Appellant seeks to change the wording of the exclusion from “other than an automobile defined herein as an ‘owned automobile’,” to “other than an automobile described herein as an ‘owned automobile’.”

It is fundamental that the liability of the insurer for medical payments depends upon the construction of the particular language of the policy. 42 A.L.R.2d 983. The rules of construction to be observed in construing an insurance policy are restated in Southwestern Fire & Casualty Ins. Co. v. Atkins, Tex.Civ.App., 346 S.W.2d 892, no wr. hist. In our case, under the plain and unambiguous language of the policy, appellant agreed to pay the reasonable and necessary medical expenses incurred by appellees as a result of bodily injuries while occupying an automobile owned by them. There is no basis for construing this language to exclude this coverage.

Both parties cite Hale v. Allstate Insurance Co., 162 Tex. 65, 344 S.W.2d 430 (1961), although neither party asserts that it is in point. In Hale, endorsements were attached to the policy which excluded all coverage for a second vehicle subsequently acquired by the insured, except for medical benefits for bodily injury resulting from the insured or a relative “being struck by an automobile.” The question there presented was whether insured could recover for bodily injury sustained “while occupying” the second car under the provisions of the medical payments coverage in the original policy, which covered bodily injury sustained while occupying or being struck by an owned automobile. In our case there was no endorsement to limit the definition of “owned automobile” as contained in the policy to that of the owned automobile described in the policy.

Appellant asserts that by securing the second policy of insurance from another company appellees elected not to be covered by appellant’s policy. It can be fairly and reasonably inferred that appellees did not take out medical benefits coverage with the second company because of the coverage provided in appellant’s policy for bodily injuries sustained while occupying an automobile “owned by them.”

We therefore hold that the trial court properly entered judgment for the stipulated amount of appellees’ medical expenses.

Appellant asserts that, in any event, it should not be liable for penalty and attorney’s fees under Art. 3.62, Insurance Code, Vernon’s Ann.Tex.Stats., since it is not a life insurance company, nor accident insur-anee company, nor a life and accident, health and accident, nor life, health and accident insurance company. In Bybee v. Fireman’s Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910 (1960), the Court held that this statute has application only to these type policies. The Supreme Court cited with approval Maryland Casualty Co. v. Hopper, Tex.Civ.App., 237 S.W.2d 411. In Hopper the Court said that the penalty statute has reference to the distinctive kind of losses that are required to be paid promptly as distinguished from the type of company that issued the policy. In Evans v. Pacific National Fire Ins. Co., Tex.Civ.App., 367 S.W.2d 85, wr. ref. n.r.e., the rule was stated: “it is ‘the distinctive kind of losses pointed out and enumerated by the statute that is required to be paid promptly, and not every kind of loss against which the company may insure.’ ”

It has been generally held that medical payment clauses constitute separate accident insurance coverage. See Apple-man, Insurance Law & Practice, § 4896; Johnson v. New Jersey Manufacturers Ind. Ins. Co., 69 N.J.Super. 184, 174 A.2d 4; Sims v. Nat. Cas. Co., La.Ct. of App., 43 So.2d 26. In the latter case a penalty was imposed for wrongful denial of a claim asserted for medical payments coverage under a statute very similar to Art. 3.62, supra. It is our opinion that a claim for medical benefits is a claim in the nature of an accident or health and accident claim' within the meaning of this statute.

The Texas statute provides penalty for wrongful failure to pay this type claim. Pan American Fire & Cas. Co. v. Trammell, Tex.Civ.App., 322 S.W.2d 13, wr. ref. n.r.e., 159 Tex. 627, 325 S.W.2d 383. Here the claim was wrongfully denied by appellant. The parties stipulated that $300.00 was a reasonable attorney’s fee. The trial court did not err in entering judgment for the statutory penalty and reasonable attorney’s fee.

The judgment is affirmed.


author: PRESLAR, Justice.

text:
    Carl D. ESTES, Sr., Appellant, v. Gid REDING, Appellee.
    No. 5755.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 8, 1965.
    Rehearing Denied Jan. 5, 1966.

      Ed Keys, Monahans, for appellant.
    Johnson & Dionne, Fort Stockton, for ap-pellee.
   PRESLAR, Justice.

Appellee Gid Reding, as plaintiff in the trial court, filed this suit against appellant Carl D. Estes, Sr. to have a certain deed from appellee as grantor, to appellant as grantee, declared void, and for the removal of the cloud cast by its recording on appel-lee’s title to a portion of the property described in the deed. The deed, dated May 20, 1953, purported to convey the surface of Tract 5 of Section 36 (some 70 acres) and ⅜⅛ of the minerals under all of Section 36. Consideration of $7,200.00 was paid. Out of the transactions of the parties, a second deed to Tract 5 was executed by Reding on October 7, 1953, to the Veterans Land Board of the State of Texas, for resale to appellant’s son, Carl D. Estes, Jr. At the time of the first deed Reding owned ⅜⅛ of the minerals under Tract 5, but he acquired all of the minerals thereunder between that time and the time of the second deed, and conveyed them to the Veterans Land Board, but reserved unto himself a ⅜6⅛ royalty. Therein lies the beginning of the problem, for in 1963 Estes placed the first deed of record and claims under it ⅜⅛ of the ⅜6th minerals reserved by Red-ing in the second deed — ¾44⅛ of the minerals under Tract 5. The question before us is the validity of that first deed, and secondly, if it is good as between the parties, whether Estes is estopped to claim its benefits because of his role in the subsequent transactions.

The case was previously before us on appeal from a summary judgment in favor of Reding, and this court reversed because of fact questions concerning delivery of the deed. (Estes v. Reding, 377 S.W.2d 233). It is now before us after trial before a jury, and we are of the opinion that the findings of the jury as to delivery support the judgment declaring the deed void.

In our opinion on the prior appeal of this case we set out the general law on the question of delivery with this quotation from Texas Jurisprudence:

“To render a deed effective it must be delivered into the control of the grantee with intent of the grantor that it shall become operative as a conveyance. The proof must show both an intention on the part of the grantor to deliver the deed as a conveyance of the property and a mutual and concurrent intention on the part of the grantee to accept it as a conveyance of the property, before it can be said as a matter of law that the delivery is complete * * * It (delivery) is the final act, without which all other formalities are ineffectual.” (19 Tex.Jur.2d 358).

To that, we would add that to complete a delivery in its legal sense, two elements are essential — the instrument must not only be placed within the control of the grantee, but this must be done by the grantor with the intention that it should become operative as a conveyance. Steffian, Ex’x v. Milmo Nat. Bank, 69 Tex. 513, 518, 6 S.W. 823 (1888); Sgitcovich v. Sgitcovich, Tex.Civ.App., 229 S.W.2d 183, 185 (wr. ref., n. r. e.; 1950); Hoerster v. Wilke, Tex.Civ.App., 140 S.W.2d 952 (1940), aff’d. 138 Tex. 263, 158 S.W.2d 288; Kincheloe v. Kincheloe, Tex.Civ.App., 152 S.W.2d 851 (wr. ref., 1941); Mason v. University of the South, Tex.Civ.App., 212 S.W.2d 854 (wr. ref., n. r. e.; 1948).

In the case before us, the grantee did obtain control of the deed; exactly how or when is not clear, and is unimportant, for the jury found that when possession was obtained it was not the intention of the grantor to convey title to the grantee. It was also found by the jury that when possession was obtained, it was for the purpose of finding out whether the Veterans Land Board would buy the property for the grantee’s son. Thus we have findings which, under the above authorities, make the deed of no effect. Delivery was not made with the intention that it should become operative as a conveyance, and its delivery was for a special purpose. Either finding would support the judgment. There was evidence before the jury that Estes was unable to finance the purchase, and wanted to try financing through the Veterans Land Board, but the parties were in doubt as to whether this would be approved by such Board because of the small amount of minerals owned under Tract 5, and that it was determined to try for approval of a deal on Tract 5 with ⅜⅛ of the minerals under the entire section. That did not meet with success, and Reding then began negotiations to obtain all of the minerals under Tract 5. That was accomplished by a partition deed entered into by Reding with the other owners of minerals under the entire section, and it was with Estes’ knowledge and, in fact, his offer to assist in the negotiations with the other owners. After acquiring all of the minerals under Tract 5, Reding entered into a contract to sell the tract to Estes’ son (reserving therein Vieth of the minerals), to be financed through the Veterans Land program. All of these negotiations were carried on by Estes himself, rather than his son, except for the actual execution of instruments in connection therewith, and out of such transactions the above-mentioned deed from Reding to the Veterans Land Board resulted. The consideration for the sale, $7,500.00, was turned over to Estes by Reding in repayment of the consideration paid by Estes under the first deed.

Appellant cites Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286, but we are of the opinion that that case is not here in point. Briefly, that case stands for the proposition that where a valid conveyance is made, a subsequent parol agreement to reconvey is unenforcible under the statute of frauds. The court specifically pointed out that the conveyance was valid: “The deed to Bell, however, was not delivered to the latter in person, but to Dawson on his behalf, although, as stated, there is no question about the effectiveness of this conveyance.” (300 S.W.2d at page 287). In our case the deed was not an effective conveyance in the first instance under the findings of the jury and the applicable law.

Since the deed in question has been found to be void, there is no need to consider the question of estoppel to claim under it, which we posed in the beginning.

Appellant assigns as error the overruling of his motions in limine, the submission of special issues to the jury, and the failure of the court to grant his motion for directed verdict. As to each of these the contention is made that the deed expressed the agreement of the parties and parol evidence was not admissible, and that which was admitted was therefore incompetent, and no fact issue resulted. The issues submitted were on the facts surrounding delivery and the question of estoppel. As pointed out, the question of estoppel to claim the benefits of the deed is not reached, when the deed is void, and so the evidence admitted on the question of estoppel could not be reversible error under our holding that the deed is void. In admitting evidence on the facts and circumstances of delivery, the court did not err. The question of delivery of a deed is one of fact for a court or jury. Towery v. Henderson, 60 Tex. 291; Chasteen v. Miller, Tex.Civ.App., 349 S.W.2d 772 (er. ref., n. r. e.); Goodman v. Goodman, Tex.Civ.App., 363 S.W.2d 893.

We have considered appellant’s other points of error, and finding them without merit, they are accordingly overruled and the judgment is affirmed.


author: ARCHER, Chief Justice.

text:
    Jeff H. SHEPLER, Appellant, v. Arnold C. FALK, Appellee.
    No. 11350.
    Court of Civil Appeals of Texas. Austin.
    Dec. 15, 1965.
    Rehearing Denied Jan. 12, 1966.
    Small, Small & Craig, C. C. Small, Jr.f Austin, for appellant.
    Black & Stay ton, John W. Stayton, Austin, for appellee.
   ARCHER, Chief Justice.

Appellant and appellee own adjoining lots located near the shore of Lake Travis in Travis County, Texas. Appellee, as plaintiff below, sought a mandatory injunction requiring appellant to take down a fence appellant had constructed along the extension of their common lot line below the 715 foot elevation, asserting that such fence violated certain covenants, restrictions and reservations of the Lake Shore Ranch Subdivision of which the two properties are a part and also that such fence encroached on the area within the extension of appellee’s lot lines below the 715 foot elevation line. Appellee’s petition also complained of appellant’s floating boat dock and its mooring cables. After a trial before the court without the intervention of a jury, a final judgment on the merits was rendered requiring appellant to remove all of that portion of appellant’s fence that lies below the 715 foot elevation and enjoining appellant from maintaining his boat dock mooring cables and equipment so as to unreasonably interfere with appellee’s ingress and egress by boat to the water in front of his property. No motion for new trial was filed and no findings of fact or conclusions of law were made by or requested of the trial court. This appeal is from such judgment and is directed only at that portion of the judgment requiring the removal of appellant’s fence.

The appeal is founded on two points:

“First Point: The trial court erred in ordering the removal of that portion of appellant’s fence which is below the water line of Lake Travis.
Second Point: The trial court erred in ordering the complete removal of that portion of appellant’s fence that is located within the area encompassed by an extension of the sidelines of his lots.”

Appellant owns Lots 33 to 36, inclusive, of Lake Shore Ranch Subdivision No. 1, which he purchased in 1957. Appellee owns Lots 31 and 32, which he acquired in September of 1960. A plat of the subdivision is in the record as Plaintiff’s Exhibit 1.

The lots themselves extend only to the contour line of the 715 foot elevation, as shown on the subdivision plat. The lot owners have no title or rights in the area between the contour line of the 715 foot elevation and the water line of Lake Travis except such rights and privileges as are established by Paragraph 12 of the Restriction applicable to the subdivision. This paragraph reads as follows:

“The area lying between the water line of Lake Travis as it may exist from time to time and the contour line of the 715 foot elevation, as shown on the plat of Lake Shore Ranch Subdivision No. 1, to which the undersigned now hold title, shall be and the same is hereby reserved for the exclusive use and benefit of the owners of lots in said Subdivision, their families and guests, for picnicing, fishing, bathing, boating and other amusement purposes, and no structures or fences shall be erected thereon which interfere with the full and free use of such area for such purposes by the owners of lots in said Subdivision, their families and guests in common with each other. Each owner of a lot fronting on said 715 foot contour line may, however, install and maintain boat docks, water pumps, and other facilities for his private use within the area encompassed by an extension of the sidelines of his lot to the water line so long as such installations do not unreasonably interfere with access to and along the water line by other owners.”

Both properties are extensively improved. Appellant has built a home, a green house and servant’s quarters on his lots at a cost of about $40,000.00 and has installed an electric lift that goes down to his boat dock which floats on the waters of Lake Travis. Appellee has built a lake house and other improvements as well as a chair lift which goes down to his floating boat dock, at a cost of approximately $30,000.00.

At the time appellee bought his lots appellant was maintaining a fence along the extension of the common line between Lots 32 and 33 from the contour line of the 715 foot elevation to a steep bluff of about eight feet, the top of which was about at the 680 foot elevation.

As the water level in the lake fell, appellant added more fence to keep the deer from coming around on his property. This fence is located along the extension of the sidelines of appellant’s Lot 33 until it reaches a point approximately 94.3 feet from the 623 foot elevation, at which point the fence deviates on to the area encompassed by the extension of the side lines of appellee’s lots. The maximum deviation is 13.5 feet at the 623 foot elevation. This fence has a gate in it at the foot of the steep bluff. The fence is substantially on the extension of the common line between Lots 32 and 33 from the 715 elevation down to this bluff.

At the time of the trial the lake was rising and the gate was beginning to get under water. On the day of the trial the water line of Lake Travis stood at elevation 657.12, which was about the base of the steep bluff where the gate is located.

Appellee had a somewhat similar fence along the extended west line of his lots, which he took up shortly before filing this suit.

The land area between the 715 foot elevation and the water level of Lake Travis in front of both appellant’s and appellee’s lots is a steep incline of from 35 to 40 degrees and the only practical means of traversing this slope down to the water level is by mechanical lifts or stairways.

Appellant takes the position the covenant is applicable only to the opening sentences, reading:

“The area lying between the water line of Lake Travis as it may exist from time to time and the contour line of the 715 foot elevation; * * *” and that this covenant does not concern anything, or create any rights below the water line of the lake; and that fluctuation in. the water line was contemplated and that the area subject to the covenant would vary from time to time.

Appellant contends that covenants or restrictions as to the use of property are to be construed so as to give the instrument a just and fair interpretation and cite Stubblefield v. Pasadena Development Co., Tex.Civ.App., 1952, 250 S.W.2d 308. A restriction is not to be enlarged or extended by construction or implications beyond the clear meaning of its terms. Johnson v. Wellborn, Tex.Civ.App., 1944, 181 S.W.2d 839, writ ref.

Appellee asserts that the restrictions apply to the structures in the water as well as on dry land.

The restrictions are of two types, absolute and qualified. The prohibition against fences is absolute, since the restriction provides “No structures or fences shall be erected thereon which interfere with the full and free use of such area for such purposes.” The purposes are enumerated and include fishing.

The prohibition against construction of boat docks and other facilities is qualified, providing that such do not unreasonably interfere with access to and along the water line by other owners, and among the activities not to be interfered with are fishing, bathing and boating, all of which involve the use of the water.

The qualified prohibition with respect to boat docks, water pumps and other facilities, is against unreasonably interfering by the installation of marine facilities, which “unreasonably interfere with access to * * * the water line.”

We believe that the fence here involved does unreasonably interfere with “access to * * * the water line” that is, access from the water of the cove to dry land.

The trial court found that the fence does “interfere with the use of the area, encompassed by the extension of the side lines of appellee’s lot for fishing, etc., and that the fence in the water is an installation that does “unreasonably interfere with access to, and along the water line by” appellee and others.

It is apparent that when the fence was first built it was situated in its entirety on dry land and in part on dry land encompassed by an extension of the sides of ap-pellee’s lot.

We believe that the trial court was justified in ordering the removal of the structure, and such has in no wise been affected by the rise of the water level of the lake.

The rise and fall of the water level in the cove is impossible to predict. Any fence below the 715 foot elevation is a hazard, in that at anytime a part of the fence may be beneath the water level, and interfere with the full and free use of such area for fishing, etc.

Appellant says that appellee has no actual desire to any of the steep slope between the 715 elevation and the water line in front of appellant’s property.

Appellee is not required to show actual damages in order to enforce the restrictions.

Protestant Episcopal Church Council of Diocese of Tex. v. McKinney, Tex.Civ.App., 339 S.W.2d 400, writ ref; Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943.

We believe that injunction is the remedy available in this situation and that appellee is injured by the maintenance of a fence that lies partially under the waters of the cove.

The judgment of the trial court is affirmed.

Affirmed.


author: BATEMAN, Justice.

text:
    PIPE LINE PARK PROPERTIES, INC., Petitioner, v. Jack FRASER, Respondent.
    No. 16640.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 3, 1965.
    Geary, Brice & Lewis, Robert A. Baker, Dallas, for appellant.
    Carrington, Johnson & Stephens,. Ronald L. Neill, Dallas, for appellee.
   BATEMAN, Justice.

This case reaches us by writ of error and the sole question is whether the petitioner Pipe Line Park Properties, Inc. is entitled to a reversal of the default judgment rendered against it as garnishee, in garnishment proceedings instituted by the respondent Jack Fraser, for lack of proper service of the writ of garnishment. The constable’s return on the writ recites that it was served on petitioner by delivering to Donald Zalej, its vice-president. This would indicate proper service on petitioner, which is a domestic corporation, pursuant to Art. 2.11, Texas Business Corporation Act, V.A.T.S., but petitioner has filed, in this court for the first time, original affidavits of Donald Zale and another to the effect that at the time of service Zale was not and never had been a vice-president of petitioner, but was at the time of service the secretary and treasurer of petitioner. Art. 2.11 does not authorize service on the secretary or treasurer.

In determining the jurisdiction of the trial court this court is not authorized to consider evidence outside the record but is restricted to the record of what transpired in the trial court. 3 Tex.Jur.2d, Appeal and Error — Civil, § 39S, p. 651, § 399, p. 655; White Motor Co. v. Loden, Tex.Civ.App., 373 S.W.2d 863, no wr. hist.

We therefore decline to consider the affidavits. There being nothing in the record before us to show lack of jurisdiction in the trial court to render the judgment under review, and that being the only attack made in this court against the judgment, it must be affirmed.

Where, as in this case, the officer’s return recites service of process on a corporation by delivering it to a corporate officer designated by the statute, as distinguished from those cases where the return shows delivery to one purporting to be an “agent” authorized to receive the same, the officer’s return affords prima facie evidence that the person served is such officer, obviating the necessity for the trial court to hear evidence thereof. San Antonio and A. P. Ry. Co. v. Wells, 3 Tex.Civ.App. 307, 23 S.W. 31, no wr. hist.; American Soda Fountain Co. v. Hairston Drug Co., Tex.Civ.App., 52 S.W.2d 764, no wr. hist.

We make no holding as to whether the petitioner may or may not properly question service of process or jurisdiction in the trial court, by bill of review or otherwise, for that question is not before us.

The judgment of the trial court is

Affirmed.

      Texaco, Inc. v. McEwen, Tex.Civ.App., 356 S.W.2d 809, wr. ref. n. r. e., and White Motor Co. v. Loden, Tex.Civ.App., 373 S.W.2d 863, no wr. hist., are two such cases.


author: DUNAGAN, Chief Justice.

text:
    WHITAKER OIL COMPANY, Appellant, v. Travis WARD, Appellee.
    No. 170.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 30, 1965.

      Fred Whitaker, Whitaker & Lee, Carthage, for appellant.
    Willis D. Moore, Moore & Holland, Athens, for appellee.
   DUNAGAN, Chief Justice.

Appellant has filed herein a motion to certify questions to the Supreme Court because of a conflict of decisions. Rule 462, Texas Rules of Civil Procedure.

As grounds therefor, the appellant makes the following allegation:

“That heretofore on the 4th day of November, 1965, this Honorable Court did hand down a decision in this cause affirming the order of the trial court overruling appellant’s motion to vacate the order appointing the receiver to take over the control and management of the property in controversy; that within 15 days of the rendering of said judgment of this court, the appellant herein filed its motion for a rehearing, the same being filed on the 18th day of November, 1965, which said motion was overruled by this court without a written opinion filed on the 2nd day of December, 1965; that this cause, being an appeal from the order of the trial court appointing a receiver, is one of which the jurisdiction of the Court of Civil Appeals is final and in which no writ of error or other method of appeal can be employed by appellant by which the ease can reach the Supreme Court of the State of Texas; and that the original opinion as rendered by this court and filed by it and overruling appellant’s motion for a rehearing are in direct conflict with decisions handed down by other Courts of Civil Appeals on the receivership phase of the case and right of appellant to appeal from order of the trial court refusing to vacate the receivership.”

This motion cannot be granted, for, if there be a conflict of decisions, the Supreme Court has jurisdiction of this cause upon writ of error. Bostwick v. Bucklin, 190 S.W.2d 818, (Tex.Civ.App.) 1945, n.w.h., and the authorities therein cited. Also see Coleman v. Ammons, 249 S.W.2d 1014, 1024, (Tex.Civ.App.) 1952, n.w.h.

The Supreme Court in Joseph Zukin of California v. Archer, Chief Justice et al., 150 Tex. 158, 238 S.W.2d 171, had before it a motion for leave to file a petition for mandamus to compel the Honorable Court of Civil Appeals, Third Supreme Judicial District, to certify certain questions of law to it for decision. The grounds of jurisdiction alleged in the petition for writ of mandamus accompanying the motion were that the amount in controversy being less than $1,000.00, the case was one in which the jurisdiction of the Court of Civil Appeals was final and in which no writ of error or other method of appeal could be employed by which the case could reach the Supreme Court, and that conflicts existed between the decision of the Court of Civil Appeals in this case and the decisions of various other appellate courts. The court in overruling the motion said:

“* * * Because of the frequency with which motions of this character are filed here, we deem it desirable to announce again the general rule, applicable to cases in which jurisdiction depends upon the amount in controversy that, if conflicts exist warranting the issuance of a writ of mandamus to compel the certification of questions, this court would have jurisdiction to grant an application for a writ of error, Rev. Stat. art. 1728, Vernon’s Ann.Civ.St. art. 1728, and will not issue a writ of mandamus in a case which could reach it by writ of error. Duval v. Clark, 138 Tex. 186, 157 S.W.2d 626; Simpson v. McDonald, 142 Tex. 444, 179 S.W.2d 239.”

In the case of Williams v. Murray, Chief Justice et al., 162 Tex. 616, 350 S.W.2d 332, 1961, in overruling the motion for leave to file a petition for writ of mandamus to require the Court of Civil Appeals to certify questions on the ground that their decision conflicts with other Courts of Civil Appeals and the Supreme Court, the court held:

Article 1821, Vernon’s Ann.Tex.Civ. Stat., was amended in 1953 to provide that nothing therein should deprive the Supreme Court of jurisdiction of any case falling within the terms of either Subdivision 1 or Subdivision 2 of Article 1728, Vernon’s Ann.Tex.Civ. Stat., and which was brought to the Court of Civil Appeals from an appeal-able judgment of the trial court. If the decision of the Court of Civil Appeals mentioned above does conflict with a prior decision of another Court of Civil Appeals, or the Supreme Court as contended by relator, the Supreme Court has writ of error jurisdiction of the case. See Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706; Hammonds v. Hammonds, 155 Tex. 207, 285 S.W.2d 362; State v. Wynn, 157 Tex. 200, 301 S.W.2d 76. Mandamus will not issue to require certification of questions in a case which can reach us by writ of error. Joseph Zukin of California v. Archer, 150 Tex. 158, 238 S.W.2d 171. * * *”

The material provisions of Article 1728, Vernon’s Ann.Civ.Stat. pertinent to the question before this court read:

“The Supreme Court shall have appellate jurisdiction co-extensive with the limits of the State, extending to all questions of law arising in the following cases when same have been brought to the Courts of Civil Appeals from appealable judgments of trial courts:
“1. Those in which the judges of the Courts of Civil Appeals may disagree upon any question of law material to the decision.
“2. Those in which one of the Courts of Civil Appeals holds differently from a prior decision of another Court of Civil Appeals, or of the Supreme Court upon any question of law material to to a decision of the case.”

Appellant’s motion to certify is overruled.

MOORE and SELLERS, TL, concur.


author: COLLINGS, Justice.

text:
    Guadalupe HERNANDEZ, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 4021.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 26, 1965.
    Rehearing Denied Dec. 17, 1965.

      C. C. Divine, Houston, for appellant.
    Joe Resweber, County Atty., Bruce D. Mosier, Asst. County Atty., Houston, for appellee.
   COLLINGS, Justice.

This is a drivers license suspension case. On July 23rd, 1964, the Department of Public Safety ordered a three months suspension of the operators license previously issued to Guadalupe Hernandez, pursuant to a finding by the Corporation Court of Houston, Harris County that Hernandez was an habitual violator of the traffic laws of the State of Texas or a political subdivision. On July 30, 1964, Hernandez filed an appeal in the County Civil Court at Law Number 1. On March 18, 1965, a hearing was had upon the motion of the Department of Public Safety for a summary judgment. Hernandez did not appear at the hearing and after submission of the matter to the court the motion for a summary judgment was granted. Thereafter, Hernandez filed a motion for a new trial and, upon a hearing' of that motion on April 16, 1965, it was overruled. Hernandez has appealed.

Appellant, Hernandez, urges points contending that the court erred: (1) in granting a summary judgment; (2) in overruling his motion for a new trial, and (3) in holding the traffic court records to be evidence of valid judgments of conviction.

The basis of appellant’s contention under his first point complaining of the granting of the summary judgment is that “the facts pleaded and allegations of the Department” create many issues “upon which the minds of reasonable men might differ.” In this connection appellant urges that the summary judgment is based upon the pleadings and that under all the pleadings, fact issues are presented for a trial on the merits. We cannot agree with appellant’s apparent contention that the summary judgment complained of was granted on the pleadings alone, in violation of the provisions of Rule 166-A(c). Appellant filed an answer to the pleadings of the Department, urging that the Department had not presented a prima facie case by its motion for summary judgment. Appellant also alleged that he had appeared and entered a plea of guilty upon only one of the offenses charged, and that he did not appear and plead guilty on the other three offenses.

The record shows that appellee’s motion for a summary judgment was supported by affidavits and by four notices of conviction showing that appellant had plead guilty and had been found guilty of four moving violations of the traffic laws. Appellant’s contention that the summary judgment was erroneous in that it was granted on appellee’s pleadings alone, which were denied by appellant, is an incorrect interpretation of the record and is overruled.

In appellant’s second and third points it is urged, in effect, that the record demonstrates that the allegations of the Department that appellant had been convicted of four violations of the traffic laws were false, and that the court erred in holding that the traffic court records were records of conviction. As grounds for this, contention appellant urges that the purported records of conviction are in fact not records of conviction by any judicial or mayor’s court, but that such records reflect only the action of a clerk of a traffic court. Appellant’s attorney testified that he represented appellant in three of the four cases in which the department contends there were judgments of conviction; that in each of such cases he, the attorney, appeared before a clerk of the Corporation Court and not before a Judge; that he gave the clerk of the court $10.00 in each of the cases, but that neither he nor the appellant appeared before a Judge in either case, and that he did not plead appellant guilty in absentia and did not agree to do so. Appellant’s second and third points are not well taken and are overruled.

The motion of the Department of Public Safety for summary judgment was supported by four notices of conviction as evidence of the fact that appellant was an habitual violator of the traffic laws. As pointed out by appellant these notices of conviction were certified to by a Deputy Clerk instead of by a Judge of the Corporation Court as provided for by Section 152 of Article 6701d, Vernon’s Ann.Tex. Civ.St., it is held, however, that such notices of conviction are admissible as evidence because they are records or reports “made by an officer of this State or of any governmental subdivision thereof, or by his deputy, or person or employee” as contemplated by Section 1, of Article 3731a, V.A.T.C.S. See Texas Department of Public Safety v. Miller, (Sup.Ct.), 386 S.W.2d 760. The four notices of conviction relied upon by the Department reflect that appellant entered pleas of guilty and was found guilty in each of said cases in which he was charged with a moving violation of the traffic laws. In addition to the notices of conviction introduced by appellee, appellant introduced certified copies of the judgments in such cases and they, likewise, show that appellant entered pleas of guilty in such cases and that judgments of conviction were entered therein. Appellant sought to introduce evidence to the effect that in three of such cases neither he nor his attorney appeared before the court and entered pleas of guilty; that in such cases his attorney appeared before a Deputy Clerk of the Corporation Court, but did not appear before a Judge. Appellant contends that such evidence was admissible and tends to show that the purported convictions are not valid judgments of conviction as contemplated by the statutes as a prerequisite for revoking his drivers license. Appellant’s contention in this respect is not well taken. Evidence tending’ to show the lack of a proper legal appearance by appellant or his attorney in such cases is contrary to the recitations in the notices of conviction and in the judgments themselves. Appellant’s contention that by reason of such evidence the judgments in question are not legal convictions constitutes collateral attacks on said judgments. The attempted collateral attacks on the judgments are not permissible and the evidence in support thereof was not admissible. Appellant’s contention ⅛ the contrary is overruled. Texas Department of Public Safety v. Richardson, (Sup.Ct.), 384 S.W.2d 128; Texas Department of Public Safety v. Miller, (Sup.Ct.), 386 S.W.2d 760.

The judgment is affirmed.


author: CADENA, Justice.

text:
    Dario DE LEON et ux., Appellants, v. Cristobal P. ALDRETE, Appellee.
    No. 14422.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 15, 1965.
    Rehearing Denied Jan. 12, 1966.

      Arturo C. Gonzalez, Del Rio, for appellants.
    Montague & Thurmond, Del Rio, for ap-pellee.
   CADENA, Justice.

This case involves the rights of a defaulting purchaser under a contract for the sale of land. The parties will be referred to according to the designations they carried in the trial' court.

On May 30, 1960, plaintiff, Cristobal P. Aldrete, and defendants, Dario De Leon and wife, Felicitas De Leon, entered into a written contract wherein plaintiff agreed to purchase ánd defendants agreed to sell a tract of land in the City of Del Rio. The purchase price was $1,500.00, payable in installments according to a schedule which called for the last payment to be made on April 1, 1961. Plaintiff did not make a single payment on time, and on April 1, 1961, when, according to the contract, the full price should have been paid, plaintiff had made payments totalling less than one-half of the purchase price. Thereafter, he made partial payments totalling $350.00. On July 6, 1961, the date of the last payment made by plaintiff, he had paid only $1,070.00, leaving a balance of $430.00 unpaid and overdue since April 1, 1961.

On February 1, 1962, defendants, by general warranty deed, conveyed the land in question to Guillermo Hernandez for a cash consideration of $1,300.00. The case has been tried on the theory that, since the contract between plaintiff and defendants was unrecorded and since plaintiff did not take possession of the land, Hernandez qualified as a bona fide purchaser and took the land free of any claims which plaintiff might assert under his contract of sale.

The trial court entered judgment for plaintiff in the sum of $1,512.60. This amount represented the total payments which plaintiff had made under the contract, $1,070.00, with interest thereon from February 21, 1962, to the date of judgment, and $250.00 which plaintiff had expended in payment of architect’s fees incurred in preparation for the construction of a residence on the land. Defendants contend that there was no evidence to support the judgment. They further assert that, in any event, the trial court erred in allowing plaintiff to recover interest on the installments paid by him from February 21, 1962, to the date of judgment..

1. Plaintiffs Right to Restitution.

Defendants’ theory is that, because of plaintiff’s failure to make the payments called for in the contract, they had the right to, and did, “rescind” the contract of sale and that, therefore, plaintiff had no right to recover the payments made by him prior to such “rescission.” It is clear that defendants do not contemplate, by the use of the term “rescission,” a nullification of the contract ah initio, with consequent rights of full restitution. What defendants assert here is the right of forfeiture.

A vendor, after breach of a contract for the sale of land by a purchaser, has the power to terminate the contract, thus ending the purchaser’s interest in the land and freeing himself from the obligations imposed on him by such contract. McBride v. Banguss, 65 Tex. 174 (1885); Huddle v. Cleveland, Tex.Civ.App., 297 S.W.2d 737, wr. ref. The conveyance of the land by defendants to Hernandez was an effective exercise by them of their power to terminate the contract. McBride v. Banguss, supra; Whiteside v. Bell, 162 Tex. 411, 347 S.W.2d 568 (1961).

Where a vendor thus exercises the power of termination created in him by the purchaser’s default, the question arises as to the right of the defaulting purchaser to obtain restitution of payments made by him prior to such termination. There are literally innumerable cases dealing with this problem and, as might be expected, the factual situations involved in these cases vary greatly. Attempts to state dogmatic rules without considering the factual distinctions reflected in the cases have resulted in much doctrinal confusion. Tucker v. Beam, 343 Ill.App. 290, 98 N.E.2d 871.

What is generally described as the majority rule in this country is that a defaulting purchaser cannot recover any money paid by him under the contract to the vendor even though, as a result of the purchaser’s breach, the vendor has abandoned all idea of further performance and retains the money, not for application on the purchase price, but as forfeited. Anno: 31 A.L.R.2d 8, 11-12 (1953).

The Texas decisions contain some broad general language which, if accepted at face value, would indicate that our courts are committed to the majority or “forfeiture” rule. Tom v. Wollhoefer, 61 Tex. 277 (1884); Estes v. Browning, 11 Tex. 237 (1853); Magruder v. Poulton, 257 S.W. 533 (Tex.Com.App., 1924). However, it is apparent that the Texas courts have not adopted a dogmatic rule of forfeiture but, instead, have embraced the more salutary rule that the vendor must make restitution if the principles of equity so require. The following language by our Supreme Court in Lipscomb v. Fuqua, 103 Tex. 585, 131 S.W. 1061, 1064, is pertinent:

“Whether the vendor who rescinds an executory contract for the sale of land shall return the purchase money paid depends upon the equities of each case. If it would be inequitable for such rescission to occur without restoration of money paid, then it must be restored.”

See also Miller v. Horn, Tex.Civ.App., 149 S.W. 769, no writ; Fink v. Hough, Tex.Civ.App., 153 S.W. 676, wr.ref.; Sparenberg v. Collins, Tex.Civ.App., 63 S.W.2d 241, no writ.

In Lipscomb, the Supreme Court properly denied restitution to the purchaser, since it did not appear that the damages which the vendor might suffer from the breach exceeded the amount which had been paid by the purchaser. Since the damages which the vendor might suffer were uncertain, and since it did not appear that the amount which the vendor sought to retain was unreasonable as an estimate of such damages, the purchaser had shown no equities which would support his claim for restitution.

The approach of our Supreme Court in Lipscomb is best calculated to achieve justice. Dogmatic application of the majority rule leads to indefensibly absurd results. Under that rule of forfeiture the amount of the forfeiture will always and necessarily depend simply on the stage to which the purchaser’s performance has progressed, with complete disregard of the amount of damages suffered by the vendor. The surprising result is that a purchaser who pays a substantial portion of the purchase price before defaulting is in a much worse position than the purchaser who pays nothing. In the latter case, the vendor would receive only compensation for his actual losses. In the former case, a strict application of the forfeiture rule would allow the vendor to get much more, in some cases, than compensation for the loss caused him by the purchaser’s default. A rule which leads to the result that the purchaser’s loss increases as the seriousness of his breach decreases is so unreasonable that it does not deserve serious consideration.

One of the most popular rationalizations of the forfeiture rule is that one should not be permitted to create a cause of action in himself by his own breach of his contractual obligations. See Estes v. Browning, supra, 11 Tex. at 243, where our Supreme Court observed that “it would be an alarming doctrine that parties might violate their contracts because they chose to do so, and make their own infraction the basis for an action for money had and received.”

This explanation and justification of what is obviously a “harsh and stringent” rule (Tom v. Willhoeffer, supra, 61 Tex. at 281) is singularly unpersuasive. It assumes, erroneously, that a purchaser who defaults would, as a consequence of that act alone, be entitled to recover what he has paid. No one would suppose that the purchaser’s breach, standing alone, would have the effect of terminating the contract or the vendor’s rights thereunder. It merely creates in the vendor a power to terminate the contract. Until he exercises such power, the vendor, apart from his right to damages, has the remedy of specific performance. If, for some reason, that remedy is unavailable, he may obtain its equivalent through enforcement of his lien (so-called foreclosure of the contract) by sale of the land and application of the proceeds to the unpaid purchase price. Patently, then, the purchaser’s breach does not of itself create a cause of action in the purchaser. His right to restitution cannot arise unless and until the vendor elects to reject the remedies the law has provided for obtaining the stipulated price and chooses, instead, to abandon the contract for all purposes except that of retaining the money and enjoying the cake which he had previously eaten.

A rule which makes the right of the purchaser depend on the equities of each case leaves room for the consideration of all relevant factors, especially the all-important considerations of the amount which the purchaser has paid and the extent to which the vendor has been injured by the breach. Unless it appears that the amount paid by the purchaser exceeds the injury suffered by the vendor, restitution will not be allowed. In no event will the vendor go uncompensated for his injury.

At least in the absence of a forfeiture clause, the obvious intent of the parties to the contract is that all payments made by the purchaser are to be treated simply and only as payments on the purchase price. Where, as here, the vendor has disabled himself from performing his obligations under the contract, so that it is no longer possible to carry out the intention of the parties by applying the purchaser’s payments to the purchase price, it is only equitable to regard the vendor as holding the money paid to the use of the purchaser, subject to allowance of proper damages to the vendor.

In the case before us, plaintiff had paid in excess of 70% of the purchase price. The damages which defendants suffered as a result of plaintiff’s breach are definite and ascertainable from the evidence by resort to simple mathematical calculation. Had plaintiff fully performed, defendants would have received $1,500.00 for their land. Because of such breach, they received only $1,300.00. Plaintiff makes no contention that this was not a fair price. Clearly, in order to prevent defendants from suffering as a result of plaintiff’s default, it is only necessary to allow them to retain, from the amount paid by plaintiff, the sum of $200.00. To allow them to retain the $1,070.00 paid by plaintiff, after they had received $1,300.00 as a result of their termination of the contract and sale of the land to a third party, would result in a situation where defendants would be unjustly enriched in the amount of $870.00. This result can be justified only if we are prepared to hold that plaintiff must be punished for his breach. Punitive damages are alien to the law of contract. The fundamental principle of our law concerning the liability of one who breaches his contract is the principle of compensation. This principle contemplates that the liability to respond in compensatory, as distinguished from punitive, damages will afford sufficient protection to the innocent party, and this is the only interest, absent extraordinary circumstances which are not present here, which the social welfare demands should be the subject of judicial solicitude. Norris v. Letchworth, 167 Mo.App. 553, 152 S.W. 421.

To restore to plaintiff the amount which he has paid, less the amount required to make defendants whole, will in no way affect the stability of contracts or reward the contract breaker. Plaintiff has lost $200.00 because of his breach. Defendants will have received $1,500.00, which is all they would have realized had plaintiff rendered faithful performance.

From what has been said, it is apparent that the trial court erred in allowing plaintiff to recover $1,070.00, the full amount of the payments he had made. Defendants should have been allowed to retain, as compensation for the damages resulting from plaintiff’s breach, the sum of $200.00, allowing plaintiff a recovery of $870.00.

2. Plaintiffs Right to Recover Interest.

The result of our holding is that, as of February 21, 1962, defendants were holding the amount previously paid by plaintiff, subject to an allowance for their damages, for the use and benefit of plaintiff. The sum due from defendants to plaintiff was sufficiently definite as of that date to enable them to ascertain the amount owed by them. Where the amount due is ascertainable by application of fixed rules of evidence and known standards of value, interest is recoverable from the date of the accrual of the cause of action. Statler Hotels v. Herbert Rosenthal Jewelry Corp., Tex.Civ.App., 351 S.W.2d 579, wr. ref., n.r.e.; Restatement, Restitution, § 356 (1937). Under such circumstances, the purchaser who is entitled to restitution is entitled to interest on the amount due him. Phillips v. Herndon, 78 Tex. 378, 14 S.W. 857 (1890).

Defendants present no point challenging that portion of the judgment which allows plaintiff to recover the sum of $250.00 for architect’s fees.

The judgment of the trial court is modified so as to allow plaintiff to recover the sum of $870.00, with interest thereon at the rate of 6% from February 21, 1962, to March 3, 1963, the date of the judgment below, and, in addition, the sum of $250.00 for architect’s fees. As so modified, the judgment of the trial court is affirmed. The costs incurred in this Court are taxed four-fifths against defendants and one-fifth against plaintiff. Rule 448, Texas Rules of Civil Procedure.


text:
    Clay KITCHENS, Independent Executor of the Estate of Mrs. Inez Kitchens, Deceased, Appellant, v. Francis G. CULHANE, Appellee.
    No. 14410.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 24, 1965.
    Rehearing Denied Dec. 29, 1965.

      Moursund & Ferguson, Johnson City, for appellant.
    Davee & Davee, Brady, for appellee.
   BARROW, Justice.

This is a suit for attorney’s fees and expenses. Appellant, as independent executor of the estate of Mrs. Inez Kitchens, appeals from a’judgment based upon a jury verdict whereby appellee recovered from the estate the sum of $1,992.58 as the reasonable value of his necessary legal services and expenses. Appellant individually recovered $200.00 from appellee on a cross-action growing out of another transaction, however, no appeal has been perfected from that part of the judgment.

It is settled that attorney’s fees, reasonable in amount and necessarily incurred for services to the estate are expenses of administration. Sec. 243, V.A. T.S., Probate Code; Salmon v. Salmon, Vol. 9, Tex.Sup.Ct. Journal 34. The attorney furnishing same may make his claim as any other creditor direct upon the estate, or he may elect to hold the representative of the estate to a personal liability. Morton’s Estate v. Ferguson, Tex.Civ.App., 45 S.W.2d 419, wr. ref. This suit was brought by appellee against appellant individually and as independent executor; however, appellee testified he agreed to look only to the estate for payment, and judgment was entered only against the estate.

The primary question presented is whether it was necessary for appellee to present a verified claim to appellant as independent executor in accordance with the provisions of Sec. 294 et seq., of the Probate Code as a predicate to bring suit on the claim. Ap-pellee testified that although he presented a very detailed time and expense record to appellant, same was probably not verified.

Appellant concedes that prior to the revision of the Probate Code in 1955 it was generally held it was not necessary to present a claim to an independent executor. See Hunter v. Cook, 375 S.W.2d 574, wr. dism.; Mullins v. Berryman, Tex.Civ.App., 296 S.W.2d 805, wr. ref. n. r. e.; Ditto Investment Co. v. Ditto, Tex.Civ.App., 293 S.W.2d 267, no wr. hist. Appellant urges these holdings have been changed by the Probate Code, in that Sec. 314 requires a claim be legally presented to the “representative” and rejected before a judgment may be rendered upon same. The possibility of such a change has been expressed by two writers. See Woodward, Some Developments in Independent Administration, 37 Tex.Law Rev. 828, 837; Winn, NonJudicial Administration, 17 S.L.J. 384, 393. Contra, State v. Traylor, 374 S.W.2d 203, 204 (Tex.1963); Gibraltar Mortgage & Loan Corp. v. Lerman, Tex.Civ.App., 346 S.W.2d 487, no wr. hist.

It is not necessary for us to determine whether the law has been changed. It is seen that the claim asserted by appellee accrued against the estate after the appointment of appellant as independent executor and was contracted for by appellant. Therefore, the provisions of the Probate Code relative to the presentment of claims do not apply to this claim. Sec. 317(d), Probate Code, Vernon’s Ann.Civ.Stats.; Hunter v. Cook, supra.

Appellant cites Gammage & Hunter v. Rather, 46 Tex. 105 (1876), wherein the Supreme Court held that a party seeking to recover attorney’s fees was required to authenticate and present his claim for allowance and approval. This claim accrued prior to the enactment, effective August 9, 1876, of the law which has been carried forward as Sec. 317(d), supra. Morton’s Estate v. Ferguson, supra, is also relied upon by appellant. The question before that court did not involve the necessity of presenting the claim to the administrator and therefore there was no determination of the proposition before us.

On June 12, 1962, appellee presented his itemized claim to appellant. No response was made to same and suit was properly filed on August 31, 1962. It was not necessary that appellee present a verified claim to appellant prior to filing this suit.

Appellant urges that there is no evidence or insufficient evidence to support the verdict. Appellee was employed by appellant as lead counsel on May 18, 1961, to represent the estate, along with the Hon. M. C. Blackburn. A controversy had already arisen between the heirs and it was correctly foreseen by appellant and the attorneys that there would be extensive litigation involving this estate. See Kitchens v. Kitchens, Tex.Civ.App., 372 S.W.2d 249, and 387 S.W.2d 89. Appellant as executor agreed to pay appellee $20.00 an hour plus his expenses for representing the estate. There was a dispute in the testimony as to whether appellee estimated a minimum of J00 hours or if that number of hours was to be the maximum. Mr, Blackburn was to be paid an agreed fee of $1500.00 for assisting appellee. In November, 1961, appellant paid appellee $750.00 and Mr. Blackburn $500.00 on their fees.

Appellee testified that in November, 1961, he presented appellant with a statement which showed charges to date in excess of $3,000.00. Appellant expressed a desire to wait until after the first of the year to pay all of same. Nothing further was paid, although there was some discussion about the fee in February, 1962. On June 10, 1962, appellee presented appellant with a detailed time and expense record, setting forth services consisting of 320.5 hours at $20.00 an hour, a total of $6,410.00 plus expenses. After crediting appellant with the $750.00 payment, appellee asserted claim for $6,358.75. Appellant contested any charges in excess of a total of $2,000.00 and asserted this was to be the maximum fee. Following this discussion, appellee on June 12 filed his motion to withdraw from the case because of appellant’s refusal to pay in accordance with their purported fee arrangement, and this motion was granted on September 12, 1962.

This detailed account consisting of 36 pages was introduced in evidence and appellee was examined very closely on each item, both by way of direct and cross examination as to the reasonableness and necessity of each charge. This account itemized all the time appellee devoted to the case. The fee of $20.00 per hour was in accordance with the minimum fee schedule of the Tom Green County Bar Association of which appellee was a member. The mimi-mum fee schedules of the State Bar of Texas and the Hill County Bar Association were also introduced in evidence. The jury, after hearing the conflicting evidence at length, found that appellee furnished necessary attorney’s services and incurred necessary expenses to the independent executor in excess of the $750.00 theretofore paid him, and that the reasonable value of such services was $1,992.58. There is evidence to support these findings and same are not so contrary to the preponderance of the evidence as to be manifestly unjust.

Appellant also urges that appellee is not entitled to recover this fee because he abandoned his representation of the estate without just cause. Appellee testified that his reason for withdrawing was appellant’s refusal to pay his fee in accordance with their agreement. This was a hotly disputed issue under the record. No issue was submitted or requested as to whether appellee was justified in withdrawing from this representation because of appellant’s conduct and neither party objected to the failure to submit this disputed issue. They thereby impliedly agreed for the trial court to resolve this issue and no express finding being set forth in the record, we will presume that same was found favorable to appellee. Rule 279, Texas Rules of Civil Procedure.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

We withdraw our opinion of October 27, 1965, and substitute the opinion of this date. Appellant’s first motion for rehearing is overruled. Appellant is granted leave to file a second motion for rehearing within fifteen days from this date.