text:
    Theodore R. FLAIZ et al., Petitioners, v. Jack Bernard MOORE, Sr., et al., Respondents.
    No. A-8901.
    Supreme Court of Texas.
    July 11, 1962.
    Rehearing Denied Oct. 3, 1962.

      Jacob G. Hornherger, Laredo, for petitioners.
    R. J. Goodman, Elmore H. Borchers, Laredo, for respondents.
   WALKER, Justice.

On the basis of its conclusion that the contacts between the parties and the forum are insufficient to require that the courts of Texas retain and exercise jurisdiction over this suit, the Court of Civil Appeals has held that the trial court did not abuse its discretion in dismissing the cause. 353 S.W.2d 74. It is our opinion that on the present record the order of dismissal cannot be upheld on that or any other ground.

Theodore R. Flaiz et al., petitioners, who are residents of the State of Maryland, instituted suit in the 49th District Court of Webb County against Jack Bernard Moore, Sr., respondent, and Jack Bernard Moore, Jr., neither of whom is a resident of Texas, to recover for personal injuries and property damage alleged to have been sustained in an automobile accident which occurred in South Dakota. Service of citation was never had on Jack Bernard Moore, Jr., but respondent was served while temporarily in Webb County. Respondent promptly filed a verified plea alleging that the accident occurred in South Dakota, that petitioners are residents of Maryland, that he and Jack Bernard Moore, Jr., were not residents of Texas when the suit was instituted or at any time since, and that in these circumstances the court had no jurisdiction of the action. He prayed that the suit be abated. This plea was overruled by the trial court on April 3, 1958.

About two years later respondent filed a second plea to the jurisdiction. After stating the residences of the parties and the place where the accident occurred, he alleged that South Dakota has adopted the doctrine of comparative negligence by statute, and that the laws of that state are so dissimilar to our laws that the courts of Texas cannot and should not undertake to administer and enforce the same. He prayed that the cause be dismissed for lack of jurisdiction. Respondent then filed a motion under the provisions of Rule 184a, Texas Rules of Civil Procedure, requesting the court to take judicial notice of the South Dakota comparative negligence statute and the decisions construing the same. He and petitioners also entered into a stipulation “[i]n connection with Defendant’s motion to the jurisdiction based on the dissimilarity of the laws of South Dakota and of the State of Texas.”

On January 19, 1961, the trial court entered an order dismissing the cause. This order recites that the court was acting on “the Plea to the Jurisdiction of this Court filed herein by Defendant, Jack Bernard Moore, Sr., such plea being based principally upon the dissimilarity of the law of South Dakota with the law of Texas,” and was of the opinion that such plea should be sustained. Petitioners appealed to the Court of Civil Appeals, urging by a single point of error that the comparative negligence law of South Dakota does not create such a dissimilarity in the laws of the two states that the courts of Texas should refuse to administer and enforce the same. By his counterpoints in the Court of Civil Appeals, respondent asserted: (1) that the doctrine of comparative negligence goes to the very existence of a right of action and is so dissimilar to our law that the courts of Texas should not and cannot undertake to enforce and administer the same; and (2) that to allow petitioners to recover in spite of their contributory negligence is contrary to the public policy of Texas.

The statement of the factors to be considered in applying the doctrine of forum non conveniens made by Mr. Justice Jackson in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, has been referred to or quoted in many cases. After observing that the principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute, he said:

“Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one’s own jurisdiction so strong as to result in many abuses.
“If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, wit- ' nesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforci-bility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.
“Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.”

Where the forum non conveniens doctrine is given its broadest application, the reasons for refusing to exercise jurisdiction may relate to the parties, the subject matter, or both. One writer has said that the cases in which the courts declined jurisdiction because of their inability to give effective relief are now thought of as a part of the doctrine. • See 35 Cal.Law Rev. 380, 403. If this concept is accepted, our own decisions holding that the court should refuse to hear a suit when the foreign law which determines the rights of the parties is so dissimilar to the laws of this state as to be difficult or incapable of enforcement here, might also be regarded as applications of the forum non conveniens principle. See St. Louis, I. M. & S. Ry. Co. v. McCormick, 71 Tex. 660, 9 S.W. 540, 1 L.R.A. 804; Mexican Nat. R. Co. v. Jackson, 89 Tex. 107, 33 S.W. 857, 31 L.R.A. 276; El Paso & Juarez Traction Co. v. Carruth, Tex.Com.App., 255 S.W. 159. See also Slater v. Mexican National R. R. Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900.

It is perhaps fair to say then that the doctrine of forum non conveniens is invoked by a contention that the court should not exercise jurisdiction in an action based on a foreign tort either because the parties are nonresidents or because the applicable substantive law differs from the law of the forum. These are, however, two distinct and usually unrelated grounds, and it is not fair to say that whenever the dissimilarity question is raised the court may dismiss on the ground that the party contacts with the forum are insufficient to require an exercise of jurisdiction. Whether jurisdiction will be retained when all parties are nonresidents is ordinarily determined by the trial court in the exercise of a sound discretion on the basis of the circumstances of the particular case. On the other hand, the dissimilarity problem when raised usually involves the relatively narrow inquiry as to whether the foreign law is so different from the Texas law as to be difficult or incapable of administration and enforcement by our courts.

. The courts of New York as a matter of public policy refuse to retain jurisdiction of an action between nonresidents based on a tort occurring outside the state unless special reasons are shown which make the retention of jurisdiction necessary or proper. See Annotation 32 A.L.R. 6, 48 A.L.R. 2d 800. There the emphasis is on the convenience of the court, and this has caused some courts of that state to treat the plea of forum non conveniens almost as jurist dictional. It has been said for example, that the defendant may invoke the doctrine even after the case has gone to trial, and that' the court may raise the objection on its own motion at any time, even on appeal. See Brandao v. United Fruit Co., 183 N.Y.Misc. 2d 683, 50 N.Y.S.2d 886; Collard v. Beach, 81 App.Div. 582, 81 N.Y.S. 619, 93 App.Div. 339, 87 N.Y.S. 884; Waisikoski v. Philadelphia & Reading C. & I. Co., 173 App.Div. 538, 159 N.Y.S. 906. The New York Court of Appeals has held, however, that while the trial court may dismiss the action on its own motion, an effort of the defendant to invoke the exercise of the court’s discretion in his favor comes too late when made at the end of the trial. Burdick v. Freeman, 120 N.Y. 420, 24 N.E. 949.

Whatever the rule may be in other states, it is our opinion that the absence of party contacts with the forum does not present a jurisdictional question in the sense that it might be raised for the first time on appeal or by an appellate court on its own motion. See Western Union Tel. Co. v. Russell, 12 Tex.Civ.App. 82, 33 S.W. 708 (wr. ref.). If the court is to decline jurisdiction on that ground, the question must be raised at a time and in a manner that will give the parties an opportunity to present evidence regarding the circumstances that are relevant to a determination of whether jurisdiction should or should not be retained. Here respondent’s original motion called the court’s attention to the residences of the parties and the place where the accident occurred, and prayed that the cause be abated for these reasons. This motion was overruled. Against that background, we do not think the party question was raised by the sentence in the second motion which mentions the residences of the parties and the place of the accident. The later plea was properly regarded by the parties as presenting only the contention that the court should decline jurisdiction because their rights would be determined by the doctrine of comparative negligence. Neither the trial court nor the Court of Civil Appeals was justified in treating it as anything more.

Respondent did not attack the trial court’s ruling on his first plea by cross-point in the Court of Civil Appeals. The only question presented to the intermediate court for decision was whether the dismissal of the suit could be sustained on the ground urged in respondent’s second plea to the jurisdiction. It held, and we think correctly so, that the law of South Dakota is not so dissimilar to the law of Texas as to justify the trial court’s refusal to exercise jurisdiction in this case. While contributory negligence ordinarily precludes a recovery under the laws of Texas, the doctrine of comparative negligence does not violate any public policy of this State. Vassallo v. Nederl-Amerik Stoomv Maats Holland, Tex., 344 S.W.2d 421. Our courts are quite capable of applying the same, and do so regularly in cases arising under Federal Employers’ Liability Act. It has been held that the courts of Texas may not enforce a cause of action given by the law of another state when our own law, as applied to the facts, would not entitle the plaintiff to the relief sought. The court reasoned that there was no authority in law for a court of this state to give effect to foreign law under such circumstances. Texas & P. Ry. Co. v. Richards, 68 Tex. 375, 4 S.W. 627. In so far as actions for death or personal injuries are concerned, the requisite authority is now supplied by Article 4678, Vernon’s Ann.Tex.Civ.Stat., and our courts no longer may refuse to recognize and enforce a right of action given by the law of another state or country merely because the Texas law, as applied to the same facts transpiring here, would afford the plaintiff no relief. We hold that the trial court erred in sustaining respondent’s second motion to the jurisdiction.

It should be pointed out that we have not considered or attempted to decide in this case: (1) the extent to which the forum non conveniens principle is recognized in Texas; (2) whether Article 4678 is mandatory and deprives the court of any discretion where considerations relating to either the parties or the subject matter indicate that the controversy should be submitted to and determined by another forum; (3) whether the absence of party connections with the forum may be raised by the trial court on its own motion; and (4) where the burden of proof lies when the doctrine of forum non conveniens is properly invoked.

The judgments of the courts below are reversed, and the cause is remanded to the district court.

SMITH, J., concurs in the result


source: Caselaw Access Project

author: GREENHILL, Justice.

license: Public Domain

text:
    Clarence WISE, Petitioner, v. M. E. ANDERSON et al., Respondents.
    No. A-8425.
    Supreme Court of Texas.
    July 18, 1962.
    Rehearing Denied Oct. 3, 1962.

      Orrin W. Johnson, Harlingen, for petitioner.
    Kelley, Looney, McLean & Littleton, Edinburg, for respondents.
   GREENHILL, Justice.

Clarence Wise brought this suit against M. E. Anderson and the Anderson Oil and Gas Company of Texas. He alleged that he was fraudulently induced by Anderson to’ execute an o!t and gallease. Among other things, Wise asserted that Anderson falsely promised him orally that he would begin the drilling of a well on his land within 90 days. His action was for damages .under Art. 4004 of Vernon’s Civil Statutes of Texas dealing with actionable fraud. In a jury trial, Wise recovered actual and exemplary damages. The judgment was reversed by the Eastland Court of Civil Appeals and judgment was rendered that plaintiff take nothing. It held that Wise’s cause of action was barred by the two-year statute of limitations. 345 S. W.2d 803. We have determined that the correct result was reached by the Court of Civil Appeals and that its judgment should be affirmed. This opinion, therefore, will be confined to the limitations questions.

On October 25, 1954, Wise executed an oil and gas lease to Anderson. It was for a primary term of five years. It provided that it should terminate after one year unless Anderson drilled a well on the land within one year or paid specified delay rentals to a depository bank. The lease further provided that “In like manner and upon like payments or tenders, the commencement of a well may be further deferred for like periods” of one year.

Wise testified that before the signing of the lease, Anderson promised him a test well would be drilled on Wise’s property within 90 days from the execution of the lease; i. e., by January 23, 1955.' He also testified that Anderson represented that he had previously secured a lease from the owners of the other half of the minerals under the Wise land, and that he, Anderson, had enough acreage to secure a permit from the Railroad Commission to drill on the Wise property. Wise alleged that his property is in a gas field and that he had been suffering drainage from other wells in the field for several years because there was no well on his property. For these reasons and because a well on his property would have the effect of stopping or minimizing the drainage, Wise alleged that he was induced to execute the lease to Anderson by reliance on Anderson’s oral representations which indicated that Anderson had the'ability and intention to drill on the Wise land within 90 days after the execution of the lease.

The jury made findings which support these allegations of Wise. As particularly applicable here it found that Anderson orally promised that he would drill a well within 90 days from the date of the lease; that the promise was made without any intention to perform it; that it was made to induce Wise to execute the lease; that it was a material inducement but for which Wise would not have executed the lease.

It is undisputed that a well was not drilled on the Wise property on January 23, 1955, 90 days after the execution of the , lease. Wise was farming this land. During the 90-day period, he observed that no roads were built or other operations performed to indicate that Anderson was about to drill. He admitted in his pleadings that when Anderson did not have a rig on the land within the 90-day period, he “decided at once to inquire into the entire matter.”

/! Wise instituted this suit on July 12, 1957, more than two years from January 23, 1955, by which date Anderson had promised Wise that he would drill a well.

On November 18, 1955, Anderson assigned the Wise lease to the Anderson Oil and Gas Company of Texas. This company was not in existence on the date of the execution of the lease on October 25, 1954, or at the time on which the well was supposed to have been drilled. It was not formed until about a year after the lease was executed. The Anderson Oil and Gas Company of Delaware, according to Anderson’s testimony, owned all of the stock in the Anderson Oil and Gas Company of Texas, and Anderson was the principal stockholder of the Delaware company and the president and a director of both companies. On May 16, 1957, Anderson Oil and Gas Company of Texas, over the protest of Wise, assigned the Wise lease to Coastal States Gas Producing Company. The consideration for the assignment was $3,000 and the reservation of an overriding royalty. Wise concedes that Coastal States had no knowledge of the alleged oral fraudulent representations of Anderson.

As has been stated, Wise brought this action against Anderson individually and the Anderson Oil and Gas Company of Texas. We shall consider the claims against the two defendants separately. We consider first the claim against Anderson.

The statute of limitations which is applicable to the claim of Wise against Anderson is one which says that a suit shall be commenced within two years after the cause of action accrues “and not afterward.” Art. 5526, Vernon’s Texas Civil Statutes Annotated. It is undisputed that this suit was not brought within two years after the expiration of the 90-day period within which Anderson promised to drill. The problems, therefore, are (1) when the twó-year statute began to run, and (2) whether Wise established that the two-year limitations period was interrupted or tolled by the absence of Anderson from the State of Texas.

We have concluded that the statute of limitations began to run immediately upon the expiration of the 90-day This was the time when Wise knew that a well had not been drilled on his land within 90 days as promised. While fraud will prevent the running of the statute of limitations until it is discovered, or by the exercise of reasonable diligence should have been discovered, Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 137 A.L.R. 263 (1941), knowledge that no well had been commenced was “knowledge of facts that would cause a reasonably prudent person to make inquiry which would lead to a discovery of the fraud.” Glenn v. Steele, 141 Tex. 565, 61 S.W.2d 810 (1933). Such knowledge is in law knowledge of the fraud itself. The holding of this Court in Glenn v. Steele is particularly strong when considered in the light of the opinion of the Court of Civil Appeals in that case, 57 S. W.2d 908.

Since Wise did not file this lawsuit until July 12, 1957, more than 2 years and 5 months after he had acquired the knowledge just discussed, the two-year statute of limitations bars his cause of action against Anderson unless the statute was interrupted or tolled for a sufficient period of time. Wise contends that the statute was tolled by virtue of Anderson’s absence from the state; that Anderson was absent about six months during the period in question. Art. 5537, V.A.C.S., provides that absence of the defendant from the state “shall not be accounted or taken as a part of time” of the limitations period. Anderson was not a resident of Texas. While it has been held that the above article has no application, as a general rule, to nonresidents, Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226, at 233, 136 S.W.2d 207 (1938), it does apply to nonresidents who were present in the state at the time the cause of action accrued or had its inception and who later leave the state. Gibson v. Nadel, 164 F.2d 970 (5th Cir.1947).

Neither the absence of Anderson from í*e state for sufficient time to avoid the run-ffittg the statute of limitations nor the statute, Art. 5537, was pleaded Wise- As we interPret the voluminous statement of facts, this issue was not deliberately tried. Such evidence as there is on Anderson’s presence in, or absence from, the state came in on other issues, such as whether Anderson was a nonresident and whether Wise exercised diligence in discovering the fraud. This evidence can be summarized as follows: Anderson admitted in his deposition, taken on February 14, 1958, that he was then and had constantly been for 55 years a resident of Warren County, Pennsylvania. His testimony at the trial shows that he was present in Texas when the alleged fraud was committed, and that the meetings during which he made the fraudulent representations to Wise took place on the Wise farm in Texas prior to the execution of the lease on October 25, 1954. He remained in Texas after October 25, 1954, and did some additional work on his oil operations until he “left the latter part of April to go back home.” He thus testified that, except for a trip out of Texas during this period “for a week or some such matter,” he was present in the state from October 25, 1954, until the latter part of April, 1955. The record is then virtually silent as to his whereabouts after April, 1955. Wise points out that there is no evidence to indicate that Anderson returned to Texas during the remainder of 1955 or until April, 1957; but it is equally true that there is no evidence that he continuously or generally remained out of Texas, or which shows where he was during this period.

There is some evidence that Anderson was not present in Texas on certain specific dates during the months and years following April, 1955. Anderson’s Texas lawyer, Higdon, testified that he told Wise that Anderson was in Pennsylvania in October, 1955. Higdon states that Wise came to see him about a delay rental payment he had received and to inquire how he could “get in touch” with Anderson. Wise testified that he had been trying to find Anderson since January, 1955, when he learned that a well had not been drilled on his property within 90 days as promised. Higdon states that he gave Anderson’s address to Wise and told him that “Mr. Anderson would be down shortly.” A notary acknowledgment to Anderson’s affidavit on his assignment of the Wise lease to the Anderson Oil & Gas Company of Texas states that Anderson personally appeared before the notary on November 25, 1955, in Warren County, Pennsylvania. Anderson testified that a unitization agreement, dated May 1, 1956, was sent to him in Pennsylvania. Anderson testified that he was in the Rio Grande Valley shortly after April 12 and met with Wise and Wise’s attorney there about April 27, 1957. Anderson, testifying as an adverse witness, testified that he had bought a home in the Valley; that it was for his daughter and son-in-law. He stated that “we live in it too.” The date of the purchase or the time that he stayed in the home is not developed in the record. Apparently he meant that he stayed in his daughter’s home when he was in Texas. On cross examination he admitted that he voted in Texas; that he paid his poll tax and voted in Texas for the first time in 1958.

Wise contends that it was proved as a matter of law that Anderson was absent for at least six months: that Anderson stated that he returned to Pennsylvania in April, 1955, and while Wise had no proof that he remained there until October, 1955, there is no evidence that Anderson returned to Texas. The Court of Civil Appeals and Anderson say that the “evidence shows only that Anderson was out of the state on two or three occasions during the limitation period, each of which was of about two weeks duration.” We have reviewed the record and do. not believe that Anderson’s presence or absence was conclusively proved, as a matter of law, either way.

The burden of pleading and proving \ the defendant’s absence from the state is ’upon the plaintiff. Griffiths v. Travis, Tex.Civ.App., 102 S.W.2d 445 (error refused, 1937). As stated, Wise did not plead the defendant’s absence or that the statute of limitations had been suspended. The character of the evidence in this case demonstrates the reason that the matter should De^ pleaded.

But assuming that Wise is over the hurdle of the issue having been properly raised, the burden of proof is also upon him. His burden is not simply to introduce proof that the defendant left the state but that he was absent from the state a sufficient period to toll the statute. It has been held that it is not necessary for the plaintiff to prove the precise periods of the defendant’s absence, and that it is sufficient that he establish facts from which the jury might reasonably conclude the defendant had not, in,the aggregate, .been in the state the full statutory period. Phillips v. Holman, 26 Tex. 276 (1862). We think, at best, there was an issue of fact for the jury as to whether Anderson was out of the state for sufficient time to toll the statute. No special issues were requested or submitted to the jury upon this important issue. The burden was upon the plaintiff Wise to request issues for the jury and to obtain fact findings of Anderson’s absence. His failure to do so constituted a waiver of those issues under Rule 279 of the Texas Rules of Civil procedure.

Wise relies heavily upon Phillips v. Holman, 26 Tex. 276 (1862). We believe the case to be distinguishable on several grounds. First, the issue of absence from the state was pleaded in the Phillips case. The defendant likewise pleaded his return to the state and his presence in Texas. This Court said that “the evidence shows that [defendant] Holman left the Republic of Texas in 1840, and was generally absent from the state for several years.” The defendant proved his presence in Texas upon specific dates, including his attendance upon the Legislature. A jury issue was raised, and the question was upon the instructions to the jury. The case does not hold that plaintiff, .would have been entitled to an instructed verdict, i. e., that he established defendant’s absence as a matter of law. The defendant in the Phillips case contended that the burden was upon the plaintiff to prove the precise period or periods of his absence.. It was contended that the jury shquld_.be. instructed in weighing the evidence .presented by plaintiff of the defend-antsjgbsence, and presented by the defendant qfjbis presence in Texas. The Court said_it would have been proper to have instructed the jury that when the plaintiff had shown facts from which the jury might rea-sonablv conclude that the defendant had not been in Texas four years between the accrual of the cause _of action and^ the institution .of .the suit, it then devolved upon the_dgfendant to rebut such reasonable conclusion. This is not the equivalent of saying that Wise would have been entitled to an instructed verdict upon his having introduced. qyjjlence-that Anderson left the state in^April of 1955 and -was in -Pennsylvania on the isolated dates mentioned above.

The claim against Anderson Oil and Gas Company of Texas arises out of the assignment of the lease to that company by Anderson on November 18, 1955. The essence of Wise’s position here is that the statute of limitations did not begin to run against the company until that date because that was when the company derived “the benefit of said fraud” within the meaning of Art. 4004, and therefore that is the date when his cause of action against the company accrued.

There was only one fraud committed against Wise, and that was perpetrated by M. E. Anderson alone. That occurred before the corporation was even formed. It obviously, therefore, could not have participated in the perpetration of the fraud. No argument is made that Anderson was-acting as the agent of the corporation when he committed the fraud. The company, therefore, had no direct connection with the fraud. The only connection shown by Wise is that the lease was assigned to the corporation for a recited consideration of $1 and other valuable consideration. The assignment occurred over a year after the-fraud was committed.

Doubt has been raised in some cases as-to whether a person can constitutionally be-made liable in damages for merely “deriving the benefit of said fraud” under Art. 4004. Ulrich v. Krueger, Tex.Civ.App., 272 S.W. 824 (no writ history, 1925) ; Krueger v. Waugh, Tex.Civ.App., 261 S.W. 196 (error dism., w. o. j., 1924). The question is. not raised here. As applied to a corporation not in existence when the fraud was. perpetrated, we experience difficulty in determining what the Legislature meant by “deriving the benefit of said fraud” so as to make a person or corporation liable in actual damages who had no connection with the fraud. The statute goes further to say that persons “knowingly taking advantage of said fraud shall be liable in exemplary-damages * * (Emphasis ours.)

Be that as it may, we hold that, for limitations purposes, whatever claim Wise may have against the company was necessarily governed by the accrual of the cause of action against Anderson individually. To hold otherwise would lead to an unworkable rule. Limitations would not begin to run against subsequent transferees of the subject matter of the fraud until the date of the transfer or the date of realizing a profit. If, for example, Wise had asserted a claim against Coastal States, which bought the lease from Anderson Oil and Gas Company of Texas on May 16, 1957, for “deriving the benefit of said fraud” under Art. 4004, the cause of action against Coastal States would have accrued no earlier than May 16, 1957, under Wise’s theory. If Coastal States had assigned the lease, and it had been further assigned to others, the accrual of the cause of action would be postponed indefinitely.

Anderson Oil and Gas Company also argues that since it is not clear under’ Art. 4004 what “deriving the benefit’ of said fraud” means, it could logically be argued that the cause of action, if any, against the Anderson Oil and Gas Company would not accrue until it sold the lease or realized a profit from it. If this argument was sustained, the cause of action against Anderson Oil and Gas Company would not have accrued for limitations purposes until May 16, 1957; and the cause of action against Coastal States would not have accrued until it later sold the lease or otherwise realized a profit.

We have already held that limitations began to run after the expiration of 90 days from the execution of the lease on the cause of action against Anderson individually, and that limitations was not suspended under Art. 5537. We think these conclusions apply with equal force to the claim against Anderson Oil and Gas Company of Texas.

Anderson has other points which we do not reach. These include the legal effect of the acceptance by Wise of delay rentals for two years after he knew the well in question' had not been drilled, -.and also the question as to whether an oral promise to drill a well within 90 days may be the basis of a suit when the written lease provided that the lessee, by the payment of delay rentals, could defer the drilling of a well for five 1-year periods. We express no opinions on these questions.

The judgment of the Court of Civil Appeals is affirmed.


author: CALVERT, Justice.

text:
    Thelma HOWARD et al., Petitioners, v. Raymond SALMON, Respondent.
    No. A-8727.
    Supreme Court of Texas.
    July 25, 1962.
    Rehearing Denied Oct. 3, 1962.

      Vincent Stine, Henrietta, for petitioners.
    Earl C. Fitts, Nocona, Fillmore, Schaef-fer & Fillmore, Wichita Falls, for respondent.
   CALVERT, Justice.

Writ of error was granted in this case on points of error complaining of improper jury argument.

Mrs. Maria Hoben, a widow, died in February, 1960, leaving a will written and signed by her in 1946. The will was offered for probate in the County Court of Montague County by respondent, Raymond Salmon, sometimes known as “Boss” Salmon, a half-brother of Mrs. Hoben. A contest was filed by Thelma Howard and Helen S. Henley, petitioners, half-sisters of Mrs. Hoben. The will was admitted to probate by the County Court, and the contestants appealed to the District Court where the issues made by the pleadings were tried to a jury. The jury answered all issues favorably to respondent, and judgment was rendered and entered admitting the will to probate and certifying the judgment to the County Court for observance. The Court of Civil Appeals affirmed, 359 S.W.2d 120.

By the terms of her will Mrs. Hoben left all of her property to her four half-brothers, Raymond Salmon, Fred Salmon, Harry Salmon and Wilburn Salmon, known as Bill Salmon. Some preference was shown respondent. Nothing was devised or bequeathed to Thelma Howard, Helen S. Henley or Lottie Downard, half-sisters of the deceased. Harry Salmon predeceased Mrs. Hoben, leaving surviving him two children, Gwendolyn Saunders and Mattie Lenora Dunlap.

On Tuesday following the funeral of Mrs. Hoben on Saturday, the will was procured by the attorney for petitioners here and was read aloud by him at Mrs. Hoben’s residence to the three surviving half-brothers and two of the half-sisters. The sisters were disappointed that nothing had been left to them. To this point there is no disagreement as to the facts.

All of those present at the meeting just described testified as witnesses at the trial. All except respondent testified that a discussion following the reading of the will led to an oral agreement on the part of all present that the will would not be offered for probate and that the property of Mrs. Hoben, other than certain bonds and after the payment of debts, would be divided according to the laws of descent and distribution, and that Mrs. Howard should qualify as administratrix of the estate. Respondent testified that he did not agree that the will should not be probated and did not agree to divide the property according to the laws of descent and distribution.

Probate of the will was contested on the ground that respondent had made the agreement described above, that he had renounc•ed the will, and that he had waived all rights under the will. Three special issues, all answered in the negative, were submitted as follows:

SPECIAL ISSUE NO. 1:
“Do you find from a preponderance of the evidence that on or about February 23, 1960, at the meeting held at Mrs. Hoben’s house, Raymond Salmon renounced the will of Mrs. Hoben?”
SPECIAL ISSUE NO. 2:
“Do you find from a preponderance of the evidence that on or about February 23, 1960, at the meeting held at Mrs. Hoben’s house, Raymond Salmon waived all rights under Mrs. Hoben’s will?”
SPECIAL ISSUE NO. 3:
“Do you find from a preponderance of the evidence that all of the heirs of Mrs. Hoben agreed- to the effect that Mrs. Hoben’s will would not be offered for probate; that the property (other than the U. S. Government Bonds) would be divided in accordance with the laws of inheritance; and that Thelma Howard should be appointed adminis-tratrix of Mrs. Hoben’s Estate?”

With the issues thus drawn, first counsel speaking for respondent introduced the main course of his argument to the jury in this language:

“Now, what kind of a law suit are we confronted with here today ? What is the sole purpose that you have confronting you? I will tell you what it is. You have got some disgruntled people, and they want you to re-write that lady’s will for her, that lady who lies yonder in that cemetery who had her last say, and they are not satisfied with it. They zvant you to re-write her will.”

Counsel told the jury that next to life, liberty and some assurance that one is going to meet his Maker, the most sacred thing we have in our land is the right to dispose of our property by will in such manner as we see fit, and continued:

“Do you want the day to ever come that when you are gone somebody will stand here in this courthouse, or some other courthouse, and question how you left your property? That is a right that is sacred. Let’s keep it sacred.”

Counsel then called attention to the fact that the meeting of the brothers and sisters was held on “the following Tuesday after she was put away on Saturday,” and stated that "they started to try to change the will immediately. They didn’t wait until the next day. They didn’t wait until the next hour.” He commented that petitioners were trying to tell the jury that respondent agreed not to probate the will, or not to take under it, “because they want you to rewrite Maria Hoben’s will for her.” He stated that there was only one deduction that could be made from the evidence and that was that Mrs. Hoben had “left her property to the person who had been the kindest, who had been the most thoughtful, and who had been the most considerate for her welfare over the years.”; that she left the principal portion of the property to respondent “because she wanted him to have it.” Counsel read special issue number 1 to the jury, and stated: “They want you to answer that yes or np. If you believe from the evidence that it should be answered yes, then answer it that way and help them re-write the will.” An objection was made to the last statement and the jury was instructed not to consider it.

Counsel who made the closing argument for respondent stated that he knew that the jury would apply the same knowledge and same determination to the trial of the case as they would want applied to a case of theirs “if you were sitting here trying to determine whether or not the rights under a will of some of your relatives should be upheld or not.” Attention of the jury was again called to the fact that a person has a right to dispose of his property as he wishes, and counsel continued:

“Now, ladies and gentlemen, is that what you want done in connection with your property? Would you want to have the same procedure followed, when you decide some day while your mind is good, and not one word of testimony against it, when you decide—

At this point objection was made and sustained, but counsel stated:

“It is a good law that tells you that you have a right to will your property to anybody you want to. If you did that, you wouldn’t expect somebody to sit down and cut it up some way other than what you had decided you wanted it to go.
“Just uphold the will ladies and gentlemen. That’s all Raymond Salmon is asking you. Uphold the will of a woman who had a sound mind, and she was strong in body, mind, and spirit. That is all he is asking you to do; just uphold the will.”

The closing statement left by respondent’s counsel with the jury was this:

“Ladies and gentlemen, uphold the will of Mrs. Hoben, who is not here, but who had a good mind, doing her business, driving her car, going about taking care of her own affairs. She told you how she wants her property to go. Now, won’t you let it stand like she wrote it?”

We have emphasized language of the two jury arguments which indicate a studied plan to divert the attention of the jury from the only issues in the case, as to which there could be little or no passionate feeling, to issues not in the case on which an appeal could be- made to the deepest passion and strongest prejudice counsel could imagine. Predicate was laid in the statement that next to life, liberty and the hope of meeting our Maker, the thing most sacred to us in this country is the right to dispose of our property as we wish. First counsel then dinned the jurors ears with the refrain: “Don’t re-write Mrs. Hoben’s will, don’t re-write the will, don’t re-writc the will, don’t re-write the will.” Second counsel made certain that the message of the false issue touched the jurors deeply by asking them to put themselves in Mrs. Hoben’s position, stating over a sustained objection that if they disposed of their property by will they wouldn’t expect somebody to “cut it up” [the property] in a different manner. Then counsel took up the refrain: “Uphold Mrs. Hoben’s will, uphold the will, uphold the will, uphold the will.”

As the case went to trial Mrs. Ho-ben’s will was not under attack, for either re-writing or invalidation. The special issues assumed the will was a valid will, and no one suggested that it needed re-writing. The only questions to be decided by the jury were whether the parties had orally contracted not to probate it and to take under the laws of descent and distribution, whether respondent had voluntarily renounced it and whether he had waived his rights under it. The argument was highly improper. Moreover, we are satisfied from the record before us that it “was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case” within the meaning of Rule 503, Texas Rules of Civil Procedure, and thus requires a reversal of the judgments of the courts below.

The circumstance which unbalances the scales in favor of reversal is the state of the evidence. The Court of Civil Appeals overruled points of error asserting that the verdict of the jury was against the great weight and preponderance of the evidence, and that holding is well within the right of the court and is final and binding on this court. Article V, Section 6, Constitution of Texas, Vernon’s Ann.St. But it does not' take from. this court the right to consider the state of the evidence in determining whether the improper argument requires reversal. Lumbermen’s Lloyds v. Loper, 153 Tex. 404, 269 S.W.2d 367; Houseman v. DeCuir, 155 Tex. 127, 283 S.W.2d 732.

It would serve no useful purpose to set out the testimony of the witnesses in detail. It is enough to observe that the four brothers and sisters, other than respondent, and the attorney, who were present at the meeting when the discussion occurred, gave substantially identical testimony of what was said and done. All of the brothers stand to lose, not gain, by enforcement of the agreement. Fred and Wilburn Salmon had no self-interest to serve by their testimony. As a matter of fact, the testimony is that Fred was reluctant to make the agreement. The attorney had no self-interest to serve by his testimony. While the jury possibly could have found from a dispassionate weighing and appraisal of the testimony, uninfluenced by the appeal to prejudice of the improper jury argument, that respondent’s version of the discussion was correct, we think it highly improbable that it did so.

We are not unmindful of the fact that counsel for petitioners did not object to the line of improper argument as often or as strenuously as he could and should have, nor did he request the court to instruct the jury not to consider it. We are satisfied, however, that the appeal to prejudice was so strong that instruction could not have eliminated its effect on the verdict. It is no longer necessary that improper argument fit into some pre-Rule 503 category to authorize or require reversal. For, as we said in Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856, 858:

“What matters it that the argument is of a particular type or falls into a particular category? The true test is the degree of prejudice flowing from the argument — whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict.”

Moreover, when objection was made and sustained, counsel continued with the same line of argument, and this in itself has been held to be a factor in determining whether reversal should be ordered. Houseman v. DeCuir, 155 Tex. 127, 283 S.W.2d 732, 735.

Many questions of law were raised by respondent in the trial court by special exceptions and by motion for an instructed verdict. Only one of the questions has been preserved for appellate review. It is that the trial court erred in overruling respondent’s motion to strike petitioners’ testimony. The argument made by respondent is that the testimony should have been stricken because it discloses that the agreement which petitioners seek to enforce would have the effect of transferring-title to real estate which by the provisions, of Section 37 of the Texas Probate Code-became vested under the will immediately upon Mrs. Hoben’s death, and thus is prohibited by Article 1288, the Statute of Conveyances, and Article 3995, the Statute of Frauds. We are not disposed to decide-what property is affected by the agreement, unless and until an agreement is established.

We should note certain questions which were raised in the trial court but which we have not decided. We have not held that a mere oral unilateral renunciation or waiver by a devisee or legatee under a will,, almost immediately retracted, can be enforced against him in the absence of facts-giving rise to estoppel. Neither have we held that the evidence establishes or would' support an enforceable contract. Decision-of these and other questions must await proper presentation.

The judgments of the Court of Civil Appeals and the trial court are reversed and the cause is remanded to the trial court.


author: SMITH, Justice.

text:
    LAWYERS TRUST COMPANY, Petitioner, v. CITY OF HOUSTON, Respondent.
    No. A-8567.
    Supreme Court of Texas.
    July 25, 1962.
    Rehearing Denied Oct. 3, 1962.

      Red, Kemp & Fahey, Houston, (James Wyckoff, Houston, with firm), James R. Lewis, Tyler, for petitioner.
    R. H. Burks, City Atty., Houston, Homer Bouldin, Senior Asst. City Atty., for respondent.
   SMITH, Justice.

This is a trespass to try title suit. On the 12th day of August, 1926, W. T. Carter Lumber & Building Company, executed an instrument wherein it was recited that the company had acquired title to certain lands in the H. B. Prentiss, Blas Berrera and Joseph Kopman Surveys in Harris County, Texas, and had plotted the several tracts so acquired into lots and blocks, to be known as “Garden Villas”. The instrument, subject to certain reservations, dedicated unto the public certain described portions of such tracts for park and other purposes, all of which was delineated upon a map attached to and made a part of the dedicatory instrument. Among the rights reserved unto W. T. Carter Lumber & Building Company, its successors and assigns, was that expressed in reservation1 four (4), which reads:

“If, on or after the expiration oí twenty-five (25) years from date hereof, any tract or tracts dedicated for parks, civic centers, schools or community places as shown on said plat,, cease to be used for the purpose or purposes indicated thereon, the fee title-to any such tract or tracts shall vest and be in W. T. Carter Lumber & Building Company.”

Lawyers Trust Company, hereinafter designated as Lawyers Trust, successor in title to W. T. Carter Lumber & Building-Company, filed this trespass to try title-suit against the City of Houston, hereinafter referred to as the “City” and R. N. Ferguson. Thereafter, Ferguson died and Mrs. Minnie Lucille Anderson was substituted as party defendant. Lawyers Trust based its suit upon the contention that the City, the representative of the public, had1 on and after August 12, 1951, the expiration date of the twenty-five (25) year term provided in the reservation, ceased to use the land described in its petition for park purposes, and, therefore, Lawyers Trust was the owner of the land and vested with all rights reserved by W. T. Carter Lumber & Building Company. The City answered the suit by filing a general denial. Mrs. Anderson filed a general denial and claimed title to the land involved under the Ten Year Statute of Limitations of the State of Texas. An instructed verdict was granted against Mrs. Anderson in the trial court and the case as between Lawyers Trust and the City was submitted to a jury upon two-special issues. The jury in response thereto found: (1) that on and after August 12, 1951, the land involved had ceased to be used for park purposes, and (2) that the land in question was abandoned as a public park on or after August 12, 1951.

The trial court entered judgment against the City and Mrs. Anderson and awarded to Lawyers Trust the title to and possession of the tract of land sued for and described as follows:

“A tract of land lying in and being within the confines of Garden Villas, a subdivision described and depicted in the declaration of dedication recorded in Vol. 655, page 258 of the Deed Records of Harris County, Texas, and in map thereof recorded in Vol. 8, page 3, 4, and 5, Harris County Map Records, and more particularly described as follows, to-wit: An irregularly shaped parcel of land bounded on the South by Santa Fe Drive, on the East by Park Drive, on the northeast by lot S35, on the Northwest by lot S34, and on the West by Sims Drive, all according to the above mentioned map, and on said map marked ‘Park’, to which map reference is here made in aid of description. Also described as ‘Second Tract’ in deed from the Carter Investment Company to Lawyers Trust ‘Company recorded in Volume 3409, page 311, of the Record of Deeds for Harris County, Texas, to which deed and the record thereof reference is also made in aid of description.”

The City alone appealed to the Court of Civil Appeals and that court reversed the judgment of the trial court and rendered judgment for the City. 348 S.W.2d 26.

The pertinent facts are these: On April 12, 1926, the date of dedication, the land was situated outside the city limits of Houston, Texas, and was owned by the dedicator, W. T. Carter Lumber & Building Company. The land involved here was designated on the map or plat as Park No. 1 and was used by the public for park purposes from the date of dedication through the year 1944. The city limits of Houston were extended in 1949 so as to include Park No. 1.

The record shows that sometime in the middle 1930’s Mr. Ferguson was placed on the park property as an employee of the W. T. Carter Lumber & Building Company. The reason for this was that the residents of Garden Villas were complaining that the park was being used for improper purposes. As an accommodation to the public, Mr. Ferguson was placed on the property partly to police the same. In this connection, we point out that at no time after the execution of the deed of dedication was W. T. Carter Lumber & Building Company under a duty to furnish police protection to the public.

In 1947 the W. T. Carter Lumber & Building Company conveyed to the Carter Investment Company all of its rights to the property. Thereafter, in 1957, the Carter Investment Company conveyed to the Lawyers Trust Company its interest in the property. Although Ferguson continued to live on the property from 1947 until the time of his death in 1959, he was never at any time an employee of either the Carter Investment Company or the Lawyers Trust Company.

Lawyers Trust Company contends that a conditional limitation was created by the deed of dedication and that consequently upon cessation of use of the property for park purposes on and after August 12, 1951, the estate created by the deed of dedication automatically terminated. Lawyers Trust makes the further contention that even though it may be held that the language of the deed of dedication was sufficient to create a condition subsequent, ^ it had a right of re-entry from and after August 12, 1951, nevertheless, by virtue of the broken condition, and that it exercised such right of re-entry by the filing of this suit in trespass to try "title in 1959.

The City contends that the language of the deed of dedication conclusively shows that a condition subsequent was created, but that a forfeiture resulting from the breach of the condition subsequent was waived, and that Lawyers Trust had forfeited its right to claim a forfeiture prior to the filing of this suit on February 18, 1959. The City makes the further contention that it was excused from using Park No. 1 for park purposes by the acts and conduct of Ferguson, the agent of the W. T. Carter Lumber & Building Company.

In view of the vigorous contention presented by Lawyers Trust that a conditional limitation was created by the language of the deed of dedication and that consequently cessation of use of the property for park purposes automatically terminated the estate, we deem it necessary to briefly state our reasons for holding to the contrary. The City contends that the deed of dedication imposed upon the estate a condition subsequent. We agree.

It is a cardinal rule in determining from the language of deeds whether a conditional limitation or a condition subsequent was intended by the parties that the instrument as a whole must be considered. Stevens v. Galveston H. & S. A. Ry. Co., 212 S.W. 639 (Tex.Comm.App.1919). The pertinent provision of the deed before us begins with the word “if”, a word of art which traditionally has been held to create a condition subsequent. American Law of Property, Section 4.7. By this we do not mean that by use of the word “if” a condition subsequent is created as a matter of law. We mention it merely as one portion of the deed which must be considered and given effect. It is a rather strong indication that the parties intended a condition subsequent. However, we do not treat its import as conclusive. When we turn to other language in the deed of dedication, we find the provision that the property “shall vest and be in” the grantor in the event the property is not used for its designated purpose. The quoted language seems to provide that the estate will terminate automatically and that it will revest immediately upon the occurrence of the stated contingency. It seems to foreclose the necessity of a re-entry on the part of the grantor in order to terminate the estate. This unmistakably indicates a special limitation. But, here again, such indication is not conclusive. Similar language in other conveyances of this character has not been held to be prohibitive of the creation of a condition subsequent. Daggett v. City of Fort Worth, Tex.Civ.App., 177 S.W. 222, no wr. hist.; Houston & T. C. R. Co. v. Ennis-Calvert Compress Co., 23 Tex. 441, 56 S.W. 367, wr. ref.; Stevens et al. v. Galveston H. & S. A. Ry. Co., supra; Gulf C. & S. F. Ry. Co. v. Dunman, 74 Tex. 265, 11 S.W. 1094.

It is well settled that when there is doubt from the entire language of the instrument whether its fair construction imports a limitation or a condition subsequent the doubt must be resolved in favor of the latter as being in a sense less onerous upon the grantee in that, under such a construction, the estate does not terminate automatically with the occurrence of the stated contingency, but only after re-entry or its equivalent is made by the grantor. Stevens v. Galveston H. & S. A. Ry. Co., supra; Houston & T. C. R. Co. v. Ennis-Calvert Compress Co., supra.

The language in the deed before us presents an appropriate situation for the application of this principle. Part of the expressed provision would lead to the belief that a condition subsequent was created whereas another part indicates that a conditional limitation was intended by the parties. Therefore, in accordance with the above-mentioned constructional preference, we are led to the conclusion that a condition subsequent was created by the terms of the deed.

The Court of Civil Appeals has held that “the evidence is without dispute that the property had ceased to be used for park purposes since about 1944.” The City does not contend that the property was used for park purposes at any time after 1944.

Although we do not agree with Lawyers Trust in its contention that the language of the deed of dedication created a conditional limitation and that the fee simple title automatically vested in W. T. Carter Lumber & Building Company, we do agree that as of August 12, 1951, the Carter Investment Company, the then owner of the title, had the right of re-entry by virtue of the broken condition, and that right was acquired by the Lawyers Trust Company by virtue of the deed to it as grantee executed in October, 1957 by the Carter Investment Company. This right of re-entry was properly exercised by Lawyers Trust by the filing of this suit in 1959. See Gulf C. & S. F. Ry. Co. v. Dunman, supra. Therefore, Lawyers Trust is entitled to recover the title to Park No. 1, the property involved in this suit, unless we conclude to sustain the City in either of its contentions of waiver and estoppel or that because of the acts and conduct of Ferguson it was excused from using the park after the condition had been broken. We do not agree with either contention.

With regard to the latter of these two contentions, it should be remembered that at no time after the execution of its deed of dedication until August 12, 1951, did the Carter Lumber & Building Company have any right or duty to put Mr. Ferguson, or anyone else, on the park property. They had by their deed of dedication divested themselves of any possessory interest. Consequently, Mr. Ferguson was at best a tenant at sufferance and as such could have been removed at any time by proper proceedings instituted by the county or city authorities. There is no showing that such proceedings were ever instituted. The public authorities thus having failed to have exercised their remedy when it arose cannot now be heard to complain of Mr. Ferguson’s conduct and its effect.

On the question of waiver, the City argues the delay of seven and one-half years before suit was filed effected a waiver of the right of re-entry. In effect, the City is saying that a grantor may lose his right to claim a forfeiture for breach of a condition subsequent merely because of lapse of time between the breach of a condition subsequent and the time of re-entry. Mere indulgence, acquiescence, or inaction is not ordinarily considered sufficient to constitute a waiver of a forfeiture for breach of a condition subsequent, 4 Thompson on Real Property, Section 2118, p. 665, and it has been held that a waiver or estoppel arises only when the grantor does some act inconsistent with his right of forfeiture, and where it would be unjust for him thereafter to insist upon a forfeiture. See Brown v. McKinney, Tex.Civ.App., 208 S.W. 565 (1919), wr. ref.; City of Barnesville v. Stafford, 161 Ga. 588, 131 S.E. 487, 43 A.L.R. 1045. In Tiffany on Real Property, Third Edition, Vol. 1, Section 203, p. 338, it is said: “ * * * But a mere silent acquiescence in the doing of an act involving,a breach of the condition is not sufficient to show a waiver of its condition, so as to preclude the assertion of a right of forfeiture by reason of such act.”

A waiver of a breach of a condition subsequent may be presumed after a reasonable lapse of time has occurred without any assertion of right by the grantor under the condition. But, as said in 4 Thompson on Real Property, Section 2123, p. 668, it is incumbent upon the grantee to allege and prove such lapse of time. Waiver is a question of fact, and whether in any particular case there is a waiver is a matter of intention on the part of the grantor, to be ascertained from his acts and all the attendant circumstances of the case. Waiver of the right to claim a forfeiture has not been established as a matter of law. Granting, without deciding, that the evidence in the present case presented an issue of fact on the question of whether the grantor waived his right to claim a forfeiture, the issue was the City’s issue and it waived the issue by failing to request and obtain a submission of it to the jury. Rule 279, Texas Rules of Civil Procedure.

It is true that 'delay in exercising the right of re-entry coupled with proof that the grantee was misled by such delay and as a result changed his position by making improvements on the property or investing money in it, then it can be said that the grantor has waived his right of re-entry and is estopped from asserting his claim of the right of forfeiture. See Benavides v. Hunt, 79 Tex. 383, 15 S.W. 396; Wisdom v. Michen, Tex.Civ.App., 154 S.W.2d 330, wr. ref. w. o. m. There is no evidence of any act on the part of the grantor or its grantees, Carter Investment Company and Lawyers Trust, which could be calculated to mislead the City, nor is there any evidence that the City has changed its position on the strength of the failure to file suit prior to February, 1959.

The holdings we have made on the questions herein discussed render it unnecessary for us to pass upon the question of whether or not Park No. 1 had been “abandoned as a public park on or after August 12, 1951.”

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

      . “No. 1. Do you find from a preponderance of the evidence that the land involved in this law suit had ceased to be used for park purposes on or after August 12. 1951?
      “No. 2. Do you find from a preponderance of the evidence that the land or property in question was abandoned as a public park on or after August 12, 1951?”


author: STEAKLEY, Justice.

text:
    HOUSTON FIRE AND CASUALTY INSURANCE COMPANY, Petitioner, v. Leonard C. KAHN, Respondent.
    No. A-9002.
    Supreme Court of Texas.
    July 18, 1962.
    Rehearing Denied Oct. 3, 1962.
    Clawson, Jennings & Clawson and R. Philip Schulze, Houston, for petitioner.
    Leonard C. Kahn and Gizella E. Salomon,, Houston, for respondent.
   STEAKLEY, Justice.

The only problem of the case is the proper construction of the medical coverage clause of a policy of insurance issued by Petitioner covering Respondent and members of his family. The coverage is for medical expenses resulting from bodily injury “caused by accident * * * through being struck by an automobile.”

The facts were stipulated. The son of Respondent while riding a bicycle ran into the rear of an unoccupied and legally parked automobile on a public street in Houston, and sustained bodily injuries. Respondent recovered judgment against Petitioner in the sum of $2,232.00 for medical expenses. This was affirmed by the Court of Civil Appeals. 355 S.W.2d 221.

The Court of Civil Appeals was persuaded .by the cases of Hale v. Allstate Insurance Co., 162 Tex. 65, 344 S.W.2d 430; Carson v. Nationwide Mutual Insurance Co., Ohio Com.Pl., 169 N.E.2d 506; and Davilla v. Liberty Life Insurance Co., 114 Cal. App. 308, 299 P. 831. The problem in the Hale and Carson cases, as relevant here, was whether the insured had been struck by an automobile in a collision between a vehicle in which the insured was riding and another moving vehicle, the latter not coming into actual physical contact with the person of the insured but with the vehicle in which he was riding. It was held that the coverage of the policies would be given their ordinary meaning as contemplating that one is “struck” by an automobile in such a situation. The obvious difference here is that the automobile with which the son of Respondent collided was parked and cannot very well be regarded as a moving or striking force.

The opinion of the California District Court of Appeals in the Davilla case states that “the policy merely requires that the insured be struck without specifying what shall strike,” and from this the court reasoned that the accidental injury policy there under review covered a fact situation where the insured, who was endeavoring to stop and avoid a collision, was thrown from his motorcycle and against the automobile which had stopped for some reason after being driven into the street ahead of him.

Apart from the differences between the policy language “being struck” and “being struck by an automobile,” and between the types of policies involved (covering accidental injuries in the Davilla case and indemnifying against medical expenses resulting from certain risks, as here) ordinary usage can very well be said to hold that one is struck by an automobile in a situation where the automobile is stationary at the moment of impact, as in Davilla; whereas, such is not true in the case of a parked and passive vehicle, the movement and propulsion of which is not a factor in the collision.

We are unable to say, as Respondent urges in his quotation from the opinion of the Tennessee Supreme Court in American Casualty Co. of Reading, Pa. v. Cutshall, 205 Tenn. 234, 326 S.W.2d 443, that “It is logical to conclude that what the parties had in mind was insurance against injuries inflicted by a blow in which an automobile participates.” The language of the insurance policy under review requires, as we view the matter, that the automobile causing the injury must have been a causative force in the collision before it can be said to have struck the insured.

The judgments of the courts below are reversed, and judgment is here rendered for Petitioner.


author: CALVERT, Chief Justice.

text:
    Sidney VAN ZANDT et ux., Petitioners, v. FORT WORTH PRESS et al., Respondents.
    No. A-8897.
    Supreme Court of Texas.
    July 25, 1962.
    Rehearings Denied Oct. 3, 1962.

      Stone, Parker, Snakard, Friedman & Brown, John G. Street, Jr., and James A. McMullen, III, with above firm, Fort Worth, for petitioner.
    Morgan & Shropshire, Irvin W. Shelman, Fort Worth, for respondent.
   CALVERT, Chief Justice.

Ft. Worth Press recovered a trial court judgment against Sidney Van Zandt and his wife and others for debt in the sum of $1,085.45, and for attorney fees in the sum of $375.00. The Van Zandts appealed, and the judgment was affirmed by the Court of Civil Appeals, 353 S.W.2d 95. We granted writ of error to review the holding of the Court of Civil Appeals that Article 2226, Vernon’s Annotated Texas Statutes, authorizes the judgment for attorney fees.

Article 2226 authorizes a recovery of attorney fees by “Any person having a valid claim against a person or corporation for personal services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured, or suits founded upon a sworn account or accounts, * * The Article thus clearly itemizes seven, and only seven, classes of claims which can form a basis for an award of attorney fees. Unless the claim made the basis of respondent’s recovery falls within one or more of the seven classes, the judgment for attorney fees must be reversed.

Respondent’s suit was for $1,014.89 for classified advertising and $70.56 for • display advertising. Attached to the trial court petition as exhibits are two sworn itemized accounts. The first exhibit is an itemized account for classified advertising. It shows the dates of insertions, the number of lines of each insertion and the charges made therefor, from August 9, 1959, through October 25, 1959. Separate charges are shown for each day classified advertising was published. Analysis of the itemized account shows that charges at varying rates were made for 6975 lines of classified advertising and that the charges thus made total $1,014.89. The second exhibit is an itemized account for display advertising. It shows six insertions of three-inch display advertising at $3.92 per inch for a total charge of $70.56. Respondent asserts that the claim thus analyzed is a claim “upon a sworn account” or is a claim for “personal services rendered” and “labor done” within the meaning of the statute.

We have heretofore held that in order for a claim to be founded “upon a sworn account or accounts” within the meaning of the statute the account must be one “in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other.” Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78; Guay v. Schneider, Bernet & Hickman, Inc., 161 Tex. 560, 344 S.W.2d 429, refusing writ of error, no reversible error, in the same case, Tex.Civ.App., 341 S.W.2d 461; Langdeau v. Bouknight, Tex., 344 S.W.2d 435. Respondent’s claim is not founded upon a “sworn account or accounts” of transactions in which there were sales on one side and purchases on the other, whereby title to personal property passed from respondent to petitioners. Therefore, it i s not a cláim “upon a sworn account” within the meaning of the statute.

Is respondent’s claim one for “personal services rendered”? The Court of Civil Appeals affirmed the judgment for attorney fees on the theory that it is. We hold that it is not.

Statutes authorizing a recovery of attorney fees are penal in character and are to be strictly construed. Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332, 333; Washington Fidelity Nat. Ins. Co. v. Williams, Tex.Com.App., 49 S.W.2d 1093, 1094. When strictly construed, the words “personal services” are not as broad and all-encompassing as the word “services”.

Webster’s Third New International Dictionary gives a general definition of “service” as “action or use that furthers some end or purpose: conduct or performance that assists or benefits someone or something : deeds useful or instrumental toward some object.” The same source defines “personal services” thusly: “economic service involving the either intellectual or manual personal labor of the server rather than a salable product of his skill (physicians, architects, and garbage collectors equally sell personal services).” In construing the state’s Unemployment Compensation Act the Supreme Court of Utah had occasion in Creameries of America v. Industrial Commission, 98 Utah 571, 102 P.2d 300, 304, to differentiate “services” and “personal services”. The court said:

“In ordinary usage the term ‘services’ has a rather broad and general meaning. It includes generally any act performed for the benefit of another under some arrangement or agreement whereby such act was to have been performed. The general definition of ‘service’ as given in Webster’s New International Dictionary is ‘performance of labor for the benefit of another’; ‘Act or instance of helping, or benefiting’. The term ‘personal service* indicates that the ‘act’ done for the benefit of another is done personally by a particular individual.”

The Appellate Department, Superior Court, Los Angeles County, California, had occasion to distinguish “services” and “personal services” in Levitt v. Faber, 20 Cal.App.2d Supp. 758, 64 P.2d 498, 500, and did so in these words:

“ ‘Services’ and ‘personal services* are not definitely coextensive. Within the meaning of statutes such as that now under consideration and of exemption statutes, 'services’ may be rendered though the actual labor be performed by one’s employees and by means of his machinery or other equipment, but ‘personal services’ are those performed by the individual himself.”

In quoting from Levitt v. Faber we are not to be understood as holding. that services will lose their character as personal services within the meaning of Art. 2226 because in the performance of the services the claimant uses the material, implements, tools or equipment essential to the service. To perform personal services the lawyer must use his books, the doctor his diagnostic or surgical instruments, the carpenter. his tools. We would thus agree with the Supreme Court of New Hampshire which held in Hale v. Brown, 59 N.H. 551, 558, that “the personal services of the lumberman include the use and earnings of his oxen, chain, canthook, and his own team and sled, if these are actually used by him and are essential to the service rendered.”

While a corporation may be a person having a right to recover attorney fees under certain of the other provisions of Article 2226, it must be apparent from what has been said that an argument of considerable force can be made that a corporation cannot recover attorney fees in a suit on a claim for personal services because a corporation, as such, cannot perform personal services. However, we need not decide that question in this case, for the claim on which this suit is brought is not one for personal services. And “labor done” is but one form of “personal services rendered.” Felton v. Johnson, 112 Tex. 412, 247 S.W. 837.

No doubt some of the employees of Ft. Worth Press rendered personal services, as respondent contends. It may be assumed that their claim for personal services, if unremunerated, would be against their corporate employer, Ft. Worth Press. The claim on which suit is brought by Ft. Worth' Press is for advertising service, not personal services. The claim may include charges for labor done (operation of machinery, etc.), personal services (art work, ad writing, etc.), materials furnished (paper, ink, etc.), but it also includes, as in charges made by any solvent business, a margin of profit above recoupment of those costs and such other costs as taxes, insurance, etc. Respondent’s proof on the trial clearly indicates this to have been its own concept of the nature of its claim. It introduced its sworn itemized account in evidence after proving it up by one of its employees. And while one of the employees testified to the making of changes in some of the advertising at the request of petitioners, and thus testified to some personal services rendered by employees, that was the only proof of the performance of personal services by employees of respondent, and there was no proof whatever of the value of, or of charges for, those or any other personal services.

The general common law rule is that in the absence of contract to the contrary every litigant will compensate his or its own counsel. Perhaps every successful litigant should be permitted to recover his attorney fees from the opposite party. But whether that policy would be wise is for the Legislature, not the courts, to decide. Apparently the Legislature has not thought it wise. But however that may be, the Legislature has not authorized a recovery of attorney fees in suits on claims such as that involved in this case. We do not agree with the holding of the Court of Civil Appeals in Harris v. Corpus Christi Broadcasting Co., 333 S.W.2d 475, no writ history.

We do not regard the other questions raised by petitioners as of sufficient importance or seriousness to justify discussion.

The judgments of the Court of Civil Appeals and the trial court are reformed to eliminate the item of attorney fees and as thus reformed the judgment of the Court of Civil Appeals is affirmed.


text:
    V. L. WARE, Petitioner, v. J. S. PAXTON et al., Respondents.
    No. A-8818.
    Supreme Court of Texas.
    July 11, 1962.
    Rehearing Denied Oct. 3, 1962.
    George M. Elliott and Allen Melton, Dallas, for petitioner.
    Fritz & Vinson, Dallas, for respondents.
   GREENHILL, Justice.

This case has a long history. It has been twice tried to a jury. Ware, a lender of money, sued Paxton and his wife on a promissory note. The Paxtons brought a cross action in which they alleged that Ware had charged them usurious interest and that they had been damaged by the unreasonable collection efforts. Upon the first trial, the jury found that Ware had not used unreasonable collection methods. In the second trial, the jury found that unreasonable collection methods had been exercised by Ware. It awarded both actual and exemplary damages against Ware for that reason. As this second appeal reaches us, the main question is whether there is any evidence to support the jury finding awarding the Paxtons exemplary damages because of Ware’s collection methods. The Court of Civil Appeals found that there was evidence to support the jury’s finding. 352 S.W.2d 520. We granted the writ of error on this point.

This suit was begun in 1951 when Ware sued the Paxtons upon a note for $3,048 and 10% interest thereon. The cross action of the Paxtons for usurious interest was based on Art. 5073, Vernon’s Texas Civil Statutes, which provides for a double recovery of usurious interest paid. Based on fact findings that the Paxtons had paid $936.40 of usurious interest, and after allowing proper credits, judgment was entered for the Pax-tons for $181.84. As stated above, the jury verdict was for Ware on the unreasonable collection methods issues. On the first appeal, the Eastland Court of Civil Appeals reversed and remanded the case for a further development of the amount of usurious interest actually paid by the Paxtons during the two-year period. 266 S.W.2d 218 (error refused, n.r.e., 1954).

The second trial of the case, likewise to a jury, resulted again in judgment for the Paxtons on the usury point. The trial court, after finding that the Paxtons paid $690 in usurious interest in the two-year period prior to the suit, entered a judgment for them of $861.66 double damages for usurious interest after offsets and credits. Based on other favorable special issue findings of unreasonable collection methods in attempts by Ware to collect the note of December 29, 1950, and of malice in connection with those attempts, the trial court awarded the Paxtons $15,000 actual damages and $10,000 exemplary damages. On the second appeal, the Dallas Court of Civil Appeals affirmed that judgment but required a remittitur of $5,000 on the exemplary damages for excessiveness, thus reducing the exemplary damages to $5,000. 352 S.W.2d 520.

The contentions of the parties- and the rather involved facts of the financial transactions between them are set out at length in the Court of Civil Appeals opinion in the first appeal on pages 221-227 of 266 S.W.2d and in the Court of Civil Appeals opinion in the second appeal on pages 521-522 of 352 S.W.2d. They need not be repeated here except to state that the Paxtons received no cash from the $3,048 note of December 29, 1950. It was given instead to cover unpaid balances due on previous loans made by Ware to the Paxtons in a long series of notes and renewal notes dating from 1947 to 1950. The jury answered every special issue presented to them inquiring into the various service charges made on various loans from 1947 to 1950 that no services were performed in return for such charges. We have examined the record and have concluded that there is evidence to support these jury findings of usury and therefore affirm the judgments of the courts below in this respect.

There is no point of error in Ware’s appellant’s brief or in his motion for rehearing in the Court of Civil Appeals complaining that there is “no evidence” to support the jury findings of unreasonable collection efforts and the actual damages awarded therefor. That point is therefore not before us. Rule 418, Texas Rules of Civil Procedure.

Ware’s point of error of “no evidence” to support the jury findings of malice and exemplary damages awarded as a result is before us. The evidence concerning the collection efforts of Ware is accurately presented in detail in the Court of Civil Appeals opinion, 352 S.W.2d 520, on pages 522-526, and we need not repeat all of it here. After a consideration of the facts in the record which are alleged to be some evidence of malice, we have concluded that there is no evidence to support the jury verdict in this regard.

The charge to the jury given by the trial court contained the following definitions of malice and exemplary damages:

“By the term ‘malice’ as used in this charge is meant ill will or bad or evil motive or such gross indifference of the rights of another as will amount to a willful or wanton act done intentionally and without just cause or excuse.
“By the term ‘exemplary damages’ as used in this charge is meant such damages as may be allowed where acts complained of are wantonly and maliciously done with intent to injure the complaining party or with a reckless disregard of the injurious consequences of his acts to others. Such damages may include compensation for inconvenience, reasonable attorneys’ fees, and other losses too remote to be considered under actual damages.” [Tr. 67]

In Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022 (1943), we quoted with approval the following discussion of exemplary damages from 25 C.J.S. Damages § 123, p. 726 and we repeat it here as a guidepost to our consideration of the evidence in this case:

“The fact that an act is unlawful is not of itself ground for an award of exemplary or punitive damages. The act complained of not only must be unlawful but also must partake of a wanton and malicious nature, or, as sometimes stated, somewhat of a criminal or wanton nature, and an act will not be deemed malicious, and so warranting punitive damages, merely because it is unlawful or wrongful.” [173 S.W.2d 1022, 1024]

Definitions of malice and the grounds for exemplary damages are necessarily general and do not provide precise limits for the decision of cases. Where the collection methods of a lender cease merely being unreasonable and take on the character of malicious and wanton conduct is a matter of degree. To determine whether Ware’s actions are of such a nature that it can properly be said that they evidence maliciousness and wantonness, we must compare the facts of this case with others where the conduct of the lender was extreme enough to be considered malicious, wanton, and indicating a reckless disregard for the injurious consequences of his acts to others.

In Duty v. General Finance Company, 154 Tex. 16, 273 S.W.2d 64 (1954), the lender carried on a campaign of continuous harassment against the borrowers from the first time the borrowers missed a payment on any of their loans. This campaign consisted of the following extreme methods:

“ * * * Daily telephone calls to both Mr. and Mrs. Duty, which extended to great length; threatening to blacklist them with the Merchants’ Retail Credit Association; accusing them of being deadbeats; talking to them in a harsh, insinuating, loud voice; stating to their neighbors and employers that they were deadbeats; asking Mrs. Duty what she was doing with her money; accusing her of spending money in other ways than in payments on the loan transaction; threatening to cause both plaintiffs to lose their jobs unless they made the payments demanded; calling each of the plaintiffs at the respective places of their employment several times daily; threatening to garnishee their wages; berating plaintiffs to their fellow employees; requesting their employers to require them to pay; calling on them at their work; flooding them with a barrage of demand letters, dun cards, special delivery letters, and telegrams both at their homes and their places of work; sending them cards bearing this opening statement: ‘Dear Customer: We made you a loan because we thought that you were honest.’; sending telegrams and special delivery letters to them at approximately midnight, causing them to be awakened from their sleep; calling a neighbor in the disguise of a sick brother of one of the plaintiffs, and on another occasion as a stepson; calling Mr. Duty’s mother at her place of employment in Wichita Falls long distance, collect; leaving red cards in their door, with insulting notes on the back and thinly-veiled threats; calling Mr. Duty’s brother long distance, collect, in Albuquerque, New Mexico, at his residence at a cost to him in excess of $11, and haranguing him about the alleged balance owed by plaintiffs.” [273 S.W.2d 64, 65]

While classifying- the lender’s conduct as “outrageous,” this Court went on to say:

“ * * * we do not hold that by reasonable efforts to collect usury a creditor runs the risk of liability for damages. A decision of the case before us does not require that we undertake to outline the limits to which such a creditor may go, but we do hold that resort to every cruel device which his cunning can invent in order to enforce collection when that course of conduct has the intended effect of causing great mental anguish to the debtor, resulting in physical injury and causing his loss of employment, renders the creditor liable to respond in damages.” [273 S.W.2d 64, 66]

The borrowers apparently sought only actual damages in the Duty case, but it has application to our case because it was considered necessary that the lender carry on a campaign of harassment in order to entitle the borrowers to actual damages, much less exemplary damages.

In Industrial Finance Service Co. v. Riley, Tex.Civ.App., 295 S.W.2d 498 (1956), affirmed 157 Tex. 306, 302 S.W.2d 652 (1957), where the facts were held to support an award of both actual and exemplary damages, the conduct complained of was similar to that of the lender in the Duty case:

“Upon failure of appellees to keep up their payments, appellants began a bombardment of collection letters, telegrams, and telephone calls, in daytime and nighttime, at appellees’ home and at their places of employment. In addition the company’s collectors called in person at appellees’ home and places of business. There is testimony that the methods employed by appellants were ‘nasty, harsh and loud,’- and sometimes contained implied threats. The evidence in our opinion amply supports the jury finding that appellants’ collection efforts were unreasonable and were made with malice and with reckless disregard of appellees’ health and welfare.” [295 S.W.2d 500, 502]

Likewise, in Wright v. E-Z Finance Co., Tex.Civ.App., 267 S.W.2d 602 (error refused, n. r. e., 1954), actual and exemplary damages were upheld where the conduct of the lender was of a similar nature:

“The record here most favorable to the judgment rendered by the trial court is: (1) The pleading alleged a conspiracy by all appellees to wrongfully harass him; in connection with the common ownership of groups of the companies or loan offices, or single individuals appellees by contemporaneous and malicious collection methods by six of the seven loan companies resulting collectively in severe mental and physical damage; that appellant was called and harassed daily by one loan office after another in an almost identical manner; each reported to the Retail Merchants Credit Association claiming a debt but not describing the debt to be in part usurious interest; from all of which appellant and wife . suffered both mental and resultant personal harm.” [267 S.W.2d 602, 607]

The facts of the case at bar do not show a campaign of harassment and intimidation of the sort held to support exemplary damages in the foregoing cases. In the two-year period 1949-1951, the Pax-tons testified that they received several telephone calls from Ware. Mr. Paxton could only remember the substance of one of these calls: a call on December 5, 1950. He testified that on that occasion Ware told him he was behind on his payments and that he might have to send the sheriff out to pick up everything he had. The evidence . indicates that Mr. Paxton may have suffered a heart attack immediately following this call; that he was in general bad health in the years following the call; and that, following this call, he was unable to do the work which he had previously done. However, there is no evidence that Ware used abusive or insulting language or anything of that nature in the conversation of December 5, 1950, nor is there any evidence that Ware knew that a telephone call reminding Mr. Paxton that he was behind on his payments and threatening to send the sheriff out would have such injurious consequences on Paxton’s health, if in fact it were the cause of that condition.

Mrs. Paxton testified that during the same two-year period, 1949 to 1951, she received several telephone calls from Ware but she could not remember how many. She likewise could recall the substance of only one of these calls. Mrs. Paxton stated that on that occasion Ware asked where her husband was, what he was doing, and how he could reach him, and that the effect of this was to make her “real nervous.” She admitted that Ware did not use abusive, vulgar, or indecent language in any conversation with her, nor did he threaten any violence. The most critical comment she made as to Ware’s language or tone of voice during all of the calls made to her was that it was “sarcastic.” The evidence shows that Mrs. Paxton was in a bad state of health prior to Ware’s telephone calls, but she stated that all of her old symptoms of head and back aches and a nervous condition returned following these calls. There was testimony by her doctor that “half a dozen calls by a bill collector might very well cause a nervous breakdown” and that her nervous tension might well have been increased thereby. But Mrs. Paxton admitted that she had not informed Ware of her condition and that there was no way he could have known she was “nervous.”

Mrs. Paxton further testified that, although her old symptoms had returned following Ware’s 1949-1951 telephone calls to her, she had almost recovered when Ware visited her at her home in January, 1956. Mrs. Paxton said she thought “this thing was over with and he said it wasn’t over with and would not be until he got $3,000 out of it.” She stated that Ware stated that he wanted to see Mr. Paxton and that he could put him in jail but he didn’t want to do that. She said Ware also suggested that the Paxtons come see his lawyer; and when she told him they had a lawyer of their own, he said their lawyer wasn’t going to represent them anymore. She admitted that Ware did not use abusive language or threaten any violence during this visit. She testified that following this visit all of her old symptoms returned and that she developed additional health complications. This is the only personal visit by Ware to the Paxtons’ home shown by the record.

In addition to the phone calls and the one personal visit, Mrs. Paxton testified that Ware had sent “numerous letters” since 1949. Mrs. Paxton could not recall the contents of any of the letters, and she stated that the number received from Ware was “probably” four a month.

Counsel for the Paxtons argues that the Paxtons were poor and uneducated people and that they were therefore more susceptible to the collection methods employed by Ware. Although any collection efforts of a lender would undoubtedly upset most borrowers behind on their debt payments, his position is that Ware’s collection efforts toward the Paxtons indicated malice and wantonness in view of their greater susceptibility. However, even taking into account their greater susceptibility, the record here does not reflect that Ware acted with a reckless disregard of the injurious consequences of his acts toward the Paxtons. There is no evidence that Ware carried on a campaign similar to any of the cases previously cited. There is no evidence of telephone calls at all hours of the day and night or the use of abusive language. The record does not show that Ware informed the Paxtons’ neighbors, friends, employers, or other creditors that they were behind on their payments or that he even contacted them. There was no attempt to blacklist. the Paxtons with other creditors. There is no evidence of a constant barrage of threatening or insulting letters and telephone calls calculated to harass the Paxtons into paying their debts.

We conclude therefore that there is no evidence to support the jury findings of malice and the trial court’s award of exemplary damages.

The judgment of the trial court is therefore affirmed as to the award of $861.66 damages for usury and $15,000 actual damages, but reversed and rendered for petitioner Ware as to the award of $5,000 exemplary damages.