author: WOODLEY, Presiding Judge. McDonald, judge.

text:
    George FERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36890.
    Court of Criminal Appeals of Texas.
    May 13, 1964.
    On Motion to Reinstate Appeal June 17, 1964.
    Rehearing Denied Oct. 14, 1964.

      J. Charles Whitfield, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Allen L. Stilley and David R. Latch-ford, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving an automobile while his Texas license as a commercial operator was suspended; the punishment, 90 days in jail and a fine of $250.

Our attention is directed to the fact that the recognizance appearing in the record is shown to have been entered into by the appellant and only one surety. Art. 831 Vernon’s Ann.C.C.P., which prescribes the form of a misdemeanor recognizance on appeal, provides that the recognizance be entered into by the defendant and two sureties.

The recognizance, not being in substantial compliance with the statute, is insufficient to confer jurisdiction upon this Court.

The appeal is dismissed.

AMENDED OPINION ON APPELLANT’S MOTION TO RE-INSTATE APPEAL

McDonald, judge.

A prior appeal of this cause was dismissed due to a defective recognizance. This defect has now been corrected and the appeal is re-instated.

The evidence of the state reflects that appellant was driving on a public street or highway in Houston, Texas, and upon getting out of the truck he was driving stated he did not have a license as it had been suspended.

It was further shown through the custodian of appellant’s driving records that his license was in a state of suspension for being an habitual violator of the traffic-laws under Art. 6687b, V.A.C.S. Appellant was present at the hearing when an affirmative finding was made concerning four prior convictions upon which appellant had paid fines. When this determination was made by the corporation court, appellant voluntarily surrendered his commercial operator’s license.

Some six months after the suspension, appellant sought a declaratory judgment, declaring the above action of the corporation court void, but said petition was dismissed by the court because the suspension had been in effect for more than thirty days prior to the filing of the petition.

Appellant testified in his own behalf stating that he was the same George Fernandez that had been arrested and appeared in court before a judge on three complaints where he was found guilty and paid a fine. He further admitted upon cross-examination that he had known that his operator’s license had been suspended, and that he was driving when he knew his license was suspended.

This evidence is sufficient to support the verdict of the jury.

Appellant here complains of the trial court’s action in failing to submit to the jury the question of the validity of the four convictions, which resulted in the suspension of appellant’s operator’s license. Appellant further contends that the trial court was in error in not allowing evidence concerning the merits of one of the four convictions, upon which an affirmative finding was rendered by the corporation court.

We find no merit in appellant's contentions. Under Sec. 22(c) of Article 6687b, appellant had 30 days after the date of receipt of notice of suspension to bring suit in the county court or county court at law to vacate and set aside the final ruling suspending his license. Said article further states that if any licensee who is a party to such final ruling fails within thirty (30) days to institute or prosecute a suit to set such suspension aside; the final ruling shall be binding upon all parties. Appellant did not avail himself of this opportunity to appeal the affirmative finding of the corporation court, but rather consented to abide by the suspension and is bound thereby. Also, under Article 6687b, Sec. 22(b), the state is not required to go behind the proceedings suspending said license and prove the regularity of said proceedings. See Goolsby v. State, 166 Tex.Cr.R. 180, 312 S.W.2d 654. Thus, appellant’s attack on said judgments cannot be sustained.

Appellant also contends that the trial court erred in not granting a new trial as the state was allowed, over appellant’s objection, to interrogate appellant concerning some forty previous driving infractions. The record reflects that the state’s interrogation was allowed only after counsel for appellant had inquired upon direct examination as to the number of convictions appellant had received. Thus the state was properly permitted to fully cross-examine concerning same. See Lunsford v. State, 159 Tex.Cr.R. 82, 261 S.W.2d 591. This is true notwithstanding the fact that the offenses are not deemed offenses involving moral turpitude. Simmons v. State, 154 Tex.Cr.R. 554, 229 S.W.2d 370.

Under separate cover filed herein, there appears a motion for mistrial purporting to raise the issue of two separate verdicts being returned by the jury as there was no connecting language between the penalty of ninety days in jail and a fine of $250.00.

The court subsequently retired the jury and received a verdict with the proper connecting language and polled the jurors individually.

Under such facts, the court was authorized to direct the jury to retire for further deliberation in order to correct their verdict. Art. 696, Vernon’s C.C.P. See also Branch’s P.C., Vol. 1, Sec. 671, West v. State, 170 Tex.Cr.R. 317, 340 S.W.2d 813; Hatfield v. State, 161 Tex.Cr.R. 362, 276 S.W.2d 829.

Finding no reversible error and the evidence sufficient to support the jury’s verdict, the judgment is affirmed.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Ex parte Floyd Austin MILLER.
    No. 37115.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1964.

      Clyde Vinson, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding by Honorable Joe L. Mays, Judge of the 51st Judicial District Court of Tom Green County, remanding appellant to custody for extradition to the State of Kansas.

The executive warrant issued by Governor John Connally, of Texas, directing the arrest of appellant and his delivery to agents of the State of Kansas for return to that state, was introduced in evidence.

The warrant and other papers introduced in evidence by the state show that appellant stands charged by complaint in the State of Kansas with the crime of child desertion, the complaint having been filed- in the City Court of Hutchinson, Reno County, Kansas, on the 4th day of March, 1964.

Being regular on its face, the executive warrant made out a prima facie case authorizing the remand of appellant to custody for extradition. Ex parte Thompson, 171 Tex.Cr.R. 509, 351 S.W.2d 890.

Appellant insists that he should not be extradited, because the 51st Judicial District Court of Tom Green County, Texas, had exercised jurisdiction over him under the Texas Uniform Reciprocal Enforcement Act, Art. 2328b-l et seq., Vernon’s R.C.S., prior to institution of the extradition proceedings, and that he had submitted to the jurisdiction of that court.

Reliance is had upon Sec. 6 of the Enforcement Act (Art. 2328b-2), which provides :

“Any obligor contemplated by Section 5, who submits to the jurisdiction of the court of such other state and complies with the court’s order of support, shall be relieved of extradition for desertion or nonsupport entered in the courts of this State during the period of such compliance.”

In support of his contention, proof was offered by appellant that on February 25, 1963, a petition for child support was filed against him in the District Court of Reno County, Kansas, which was transmitted by that court, under the Kansas Uniform Reciprocal Enforcement of Support Act, to the 51st Judicial District of Tom Green County, Texas, for further proceedings.

On April 12, 1963, a hearing was held by the judge of the 51st Judicial District Court of Tom Green County on the petition after an answer had been filed by appellant denying that he was the father of the child named in the petition. On October 29, 1963, after the cause had been continued and reset for additional testimony, a final order was entered in the cause by Judge Mays, finding the evidence insufficient to support a finding of liability for support by the defendant of the child named in the petition and. ordering that “the relief prayed for be, and the same is, denied, without prejudice.”

We are unable to agree that the order entered denying the relief prayed for in the petition for support was such as to relieve appellant from extradition to the State of Kansas to stand trial for the crime of child desertion. While Sec. 6 of the Support Act is applicable and relieves an obligor from extradition where the court orders support and there is compliance with the order, it is not applicable where no order for support is entered. Ex parte Brito, 172 Tex.Cr.R. 409, 358 S.W.2d 122. The section would not apply where support is denied, as in the instant case.

The judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    George Leo WOCKENFUSS, Appellant, v. The STATE of Texas, Appellee.
    No. 37121.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1964.
    Billy C. Powell, J. Robert Harris, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Qetus A. Davis and Ray Montgomery, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, sixty days in jail and a fine of $200.00.

The testimony of three police officers reveals that appellant was intoxicated immediately after he was involved in an automobile collision while driving an automobile upon á public highway. An analysis of a blood specimen taken from appellant at his request showed an alcoholic content of .15 per cent by weight. The testimony further shows that such alcoholic content was indicative of intoxication.

Testifying in his own behalf, the appellant admitted that he was driving the automobile and had had four beers between 8:30 P.M. and 12 midnight, before the collision shortly after midnight, but he denied that he was intoxicated.

The jury resolved the issue of intoxication against the appellant, and the evidence is sufficient to support its verdict.

The only contentions urged for reversal are:

“The Court erred in failing to declare a mistrial because of the prosecutor’s questions to Appellant about an extraneous offense.”
“The Court erred in allowing the prosecution to impeach Appellant on a collateral matter by testimony about a_ extraneous offense.”

The questions complained of and the testimony concerning an extraneous offense were with reference to statements made by the appellant to the arresting officer after the arrest and while he was in custody.

No objections were made to the questions about the statements of the appellant to the arresting officer, or to the testimony of a state’s witness in rebuttal that appellant told the arresting officer that when he got out of jail he would get his gun and come back and get him. During direct examination, the appellant twice testified that he told the arresting officer that “he would beat the hell out of him.”

This Court has consistently held that where the appellant fails to object to the introduction of testimony in the trial court, he is in no position to assert on appeal that it was inadmissible. 5 Tex.Jur.2d 61, Sec. 39; Freeman v. State, 172 Tex.Cr.R. 389, 357 S.W.2d 757.

This rule is here applicable and controlling. Therefore no error is shown.

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner. WOODLEY, Presiding Judge.

text:
    Percy MAYFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 36903.
    Court of Criminal Appeals of Texas.
    May 6, 1964.
    On Motion to Re-Instate Appeal Oct. 7, 1964.

      Percy Foreman, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and David Ball, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is unlawful possession of a dangerous drug; the punishment, sixty days in jail.

The recognizance appearing in the record is shown to have been entered into by the appellant and only one surety. Art. 831, Vernon’s Ann.C.C.P., which prescribes the form of a misdemeanor recognizance on appeal, provides that the recognizance be entered into by the defendant and two sureties.

The recognizance, not being in substantial compliance with the statute, is in* sufficient to confer jurisdiction upon this court. Price v. State, 164 Tex.Cr.R. 312, 299 S.W.2d 141; Wilkins v. State, 130 Tex.Cr.R. 36, 91 S.W.2d 354.

The appeal is dismissed.

Opinion approved by the court.

ON MOTION TO RE-INSTATE THE APPEAL

WOODLEY, Presiding Judge.

Proper appeal bond having been given and approved, the appeal is re-instated.

Trial was before the court on a plea of not guilty.

The evidence shows that police officers, having obtained a search warrant, went to appellant’s room in the Sands Motel to execute the warrant..

The appellant drove up soon after the officers arrived and some of the officers went to the car, handed him the search warrant and searched the automobile.

In the glove compartment the officers found fourteen capsules which were shown by the evidence to contain barbiturates.

The fruits of the search were admitted in evidence over the objection that the search was illegal because (1) the affidavit supporting the search warrant was legally insufficient, and (2) the search warrant did not authorize search of the car.

The affidavit for the search warrant is in all material respects the same as that held sufficient by this Court to show probable cause in Giacona v. State, 169 Tex.Cr.R. 101, 335 S.W.2d 837; Etchieson v. State, Tex.Cr.App., 372 S.W.2d 690, and Aguillar v. State, 172 Tex.Cr.R. 629, 362 S.W.2d 111.

This Court must yield, however, to the majority holding of the Supreme Court of the United States in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, decided June 15, 1964, and in Etchieson v. Texas, 378 U.S. 589, 84 S.Ct. 1932, 12 L.Ed.2d 1041, decided June 22, 1964.

These decisions of the Supreme Court control the disposition of this appeal and require reversal of the conviction.

The judgment is reversed and the cause remanded.


author: TIREY, Justice.

text:
    Sybil SHELBURNE, Appellant, v. Leslie Lloyd SHELBURNE, Appellee.
    No. 4279.
    Court of Civil Appeals of Texas. Waco.
    Oct. 1, 1964.
    Bill Hilford, Houston, for appellant.
    Eugene Chambers, Houston, for appellee.
   TIREY, Justice.

Plaintiff grounded his cause of action for divorce on cruel treatment. He submitted his cause to the court without the aid of a jury. He went to trial on his Fifth Amended Original Petition. As grounds for cruel treatment he specifically alleged:

(1) “ * * * that the defendant has many times brought another man, namely, Tommy Guthrie, into their home, and that on or about December 31, 1960, the defendant informed the plaintiff that she no longer wanted plaintiff, that she was in love with Tommy Guthrie, and that she wanted the plaintiff to leave her alone, and that the said Tommy Guthrie and the defendant communicated and socially engaged together openly until on or about January 29, 1961.
' (2) “ * * * that during the marriage defendant had one Bill Murphy in the home of plaintiff and defendant and has-in fact had Bill Murphy in a bedroom of the home of plaintiff and defendant and has in fact occupied the same bed with Bill Murphy.
(3) “ * * * that the defendant has an uncontrollable temper and for the past ten (10) years that plaintiff and defendant have not been able to work out their problems without defendant going into an insane rage and cussing and abusing the said plaintiff.”

Pertinent to this discussion defendant entered a general denial and specifically plead that she was not guilty of any wrongdoing in her relation to her husband, nor with any other men; and further specially plead that plaintiff forgave and condoned any and all acts of every kind and character which he now seeks to allege as grounds for divorce. She alleged that she had been forced to employ an attorney to represent her for a reasonable attorney fee of $500.00, and she asked that she be awarded such sum.

The Court granted plaintiff a divorce and made disposition of the community property and awarded the defendant $500.00 as reasonable attorney’s fees to be deducted from plaintiff’s interest in the community property. Because of the disposition to be made in the case we need not discuss this phase of the judgment further.

Defendant called for Findings of Fact and Conclusions of Law. On the allegations of cruel treatment, the court found:

“1. That the separation of plaintiff and defendant was not brought about or caused by plaintiff.
“2. That during the month of January, 1961, defendant had a social relationship with one Tommy Guthrie without the knowledge and/or consent of plaintiff.
“3. That subsequent to the filing of this suit for divorce by plaintiff and prior to the time of the trial hereof defendant had a social relationship with one Bill Murphy who spent a night in the home of plaintiff and defendant with only defendant and Darla Jean Shel-burne and the said Bill Murphy present.”

The judgment is assailed on six points, save and except that the award for attorney’s fees is not challenged. Point 1 is:

“That based on the trial court’s own findings of fact, that court erred in making its conclusions of law that defendant was guilty of excesses, cruel treatment and outrages toward plaintiff of such a nature as to render their further living together insupportable and to entitle plaintiff to a divorce and partition of the community property.”

We sustain this point, and it will require us to Reverse and Render this cause granting the divorce.

This action for divorce is ruled by the pronouncement of our Supreme Court in McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459. In that opinion our Supreme Court reviewed some of the early landmark decisions of our courts dealing with divorce and announced the following rule:

“We therefore hold that the excesses, cruel treatment, or outrages provided in our statute as a ground for divorce are sufficient if they are of such a nature as to render further living together insupportable, and that without regard to whether such treatment is of such a nature as to threaten impairment of the physical health of the wife. Of course the sacredness of the marriage relation should be kept in view and divorces should not be granted on trivial matters or disagreements.”

Our Supreme Court has not seen fit to change this rule.

We have read very carefully the entire statement of facts and it is our view that the proof here tendered is not and was not that full and satisfactory proof contemplated by the legislature and as interpreted by our courts as being sufficient to establish cruel treatment and render further living together of these parties insupportable. For statement of the foregoing rule see Green v. Green, Tex.Civ.App., 268 S.W.2d 237, point 1, and cases there cited. See also Allen v. Allen, Tex.Civ.App., 267 S.W.2d 911, point 1; Grywalski v. Grywalski, Tex.Civ.App., 263 S.W.2d 684, point 3; Solis v. Solis, Tex.Civ.App., 317 S.W.2d 237. In all events, we think the evidence shows without dispute that plaintiff condoned any mental cruelty, if any he had suffered, at the time of the separation.

It is our view that a recitation of the testimony tendered would not be of any precedential value. Being of this view this cause as to granting of the divorce is reversed and rendered, but the judgment, insofar as the award of $500.00 attorney’s fees in favor of appellant, is affirmed.

Accordingly, the judgment is reversed and rendered in part and in part affirmed.


author: WILSON, Justice.

text:
    Clifford TEMPLETON, Appellant, v. FED-MART OF TEXAS INCORPORATED et al., Appellees.
    No. 4259.
    Court of Civil Appeals of Texas. Waco.
    Oct. 1, 1964.
    M. S. Morgan, Houston, for appellant.
    Baker, Botts, Shepherd & Coates, Geo. H. Kolb, Houston, for appellees.
   WILSON, Justice.

Plaintiff appeals from a summary judgment.

Appellant alleged he was an employee of Fed-Mart, and that Equitable Life Assurance Society issued to him a certificate of insurance under Fed-Mart’s group medical expense policy, on which monthly premium payments were to be made by Fed-Mart from funds withheld from his salary. He alleged premium payments were so withheld for the months of February and March, 1963, that he resigned his employment on March 8, 1963, and thereafter incurred hospital and medical expenses for treatment of his wife which Fed-Mart and Equitable were obligated to pay “under the extended benefits provisions” of the policy.

Appellees’ motion for summary judgment and affidavits asserted the provisions of the group policy as to “individual terminations” to the effect that insurance under the group policy should cease automatically upon termination of employment, and averred that appellant’s coverage under the group policy began January 13, 1963.

Appellant’s answer to the motion for summary judgment urged policy provisions not now relied on, and reasoning now abandoned. Appellant here relies on a clause in the conversion privilege provision of the policy which permitted an employee to obtain an individual converted policy after termination of employment by making written application therefor.

Aside from the fact there is no showing of application for the converted policy, the conversion privilege clause relied on was conditioned, among other prerequisites, upon the employee having “been insured under this policy for at least three months” at the time of termination of his employment. The record establishes without dispute that appellant had not been insured for the required period.

Affirmed.


author: DENTON, Chief Justice.

text:
    C. B. ROBERTSON, Appellant, v. Mona ROBERTSON, Appellee.
    No. 7398.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 28, 1964.
    Rehearing Denied Oct. 19, 1964.

      Albert Smith, Lubbock, for appellant
    Hamilton & Deaver, Memphis, for appel-lee.
   DENTON, Chief Justice.

This suit was filed by appellant, C. B. Robertson, against appellee, Mona Robertson, seeking a mandatory injunction to compel the removal of an embankment constructed by appellee and for damages alleged to be caused by the embankment’s diversion of the natural flow of the surface water onto appellant’s land. This case has been tried four times and this is the third appeal. The third trial resulted in a hung jury. See (Tex.Civ.App.), 291 S.W.2d 452; (Tex.Civ.App.), 309 S.W.2d 957; 159 Tex. 567, 323 S.W.2d 938. Based on a jury verdict the trial court entered judgment denying appellant any relief.

After the Supreme Court reversed and remanded the case following the second trial appellant duly filed his verified application for change of venue urging as grounds therefor that there exists in Hall County prejudice in favor of appellee, Mona Robertson, and against appellant, C. B. Robertson, and wide-spread, general familiarity of the citizens of that county with the case; and that by reason of which appellant alleged he could not receive a fair and impartial trial in Hall County. Appellant’s application was in proper form and was supported by affidavits by three credible persons as required by Rule 257, Texas Rules of Civil Procedure. Appellee timely contested the application, denying under oath the truth of the allegations contained therein; but did not allege affirmative matters in opposition to appellant’s application. We are of the opinion, and so hold, appellee’s affidavit opposing the application for change of venue was a sufficient attack to form an issue which must be tried by the trial court as required by Rule 258. City of Irving v. Luttrell, (Tex.Civ.App.), 351 S.W.2d 941. The issue thus formed was heard by the trial judge. The application was refused and appellant duly excepted. Thereupon, the case was tried on its merits before a jury. Based upon this jury verdict the trial court rendered judgment denying appellant the relief sought.

Appellant’s first point of error contends the trial court erred in overruling its motion for a change of venue. The issue having been formed, the burden was upon the appellant to prove the facts upon which the motion for change of venue was based. A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619; Trammell v. Currie (Tex.Civ.App.), 261 S.W. 827 (Dismissed). It is well settled that when the application is duly made and properly contested, as was done here, the trial judge becomes vested with broad discretion at the hearing to determine whether the application should be granted or refused. An abuse of discretion on the part of the trial judge is subject to review by the appellate courts, but unless an abuse of discretion is shown a decision below should not be disturbed on appeal. Texas & N. O. R. Co. v. Wilkerson (Tex.Civ.App.), 260 S.W.2d 912; Bennett v. Jackson (Tex.Civ.App.), 172 S.W.2d 395, (Refused, WM).

Four witnesses testified for the appellant in support of his application while no testimony was offered by appellee in opposition thereto. The affidavit filed by appellee cannot be considered as evidence but merely pleadings raising an issue of fact. Galveston H. & S. A. Ry. Co. v. Nicholson (Tex.Civ.App.), 57 S.W. 693, (Error Refused) ; City of Irving v. Luttrell, supra. There was evidence appellant would be unable to receive a fair and impartial trial in Hall County. Boots Perkins, a service station employee in Memphis, Hall County, Texas, testified he had heard the case discussed, “every where I have ever been” and “Well, I didn’t see hardly how they could be a jury without a set mind on it. It has been going on for so long.” Howard Martin, a farmer and a resident of the county for over fifty years, testified he did not believe appellant could get a fair and impartial trial in that county and had heard one man say, “can’t afford to let Charlie win. If they do, everybody will be suing his neighbor over water.” A. J. Spence, a farmer in the Webster community of Hall County, had heard the case discussed by those who seemed to favor one party and others who seemed to favor the other, but added, “Most of the ones I have heard are of the opinion he can’t get a fair trial because most of the jurors know too much about the case. They heard the case too often.” .Appellant also testified on this hearing concerning statements made to him by others which were to the effect “people are prejudice against me in favor of Mona.” Cross-examination of these witnesses did not materially alter this direct testimony. We conclude appellant has met the burden of proof by establishing the facts alleged by credible evidence. When appellant’s testimony went unchallenged we are of the opinion the trial court abused its discretion in refusing to grant the application for change of venue. In view of this holding appellant’s other points of error will not be considered.

The judgment of the trial court is reversed and the cause is remanded with instructions to remove the cause persuant to appellant’s application for change of venue in accordance with Rule 259, Texas Rules of Civil Procedure.

Reversed and remanded.


text:
    Charles H. BOUNDS, Appellant, v. Emma W. BOUNDS, Appellee.
    No. 7397.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 28, 1964.
    Rehearing Denied Oct. 26, 1964.

      Bowlen Bond, Teague, Willard G. Street, Jr., Littlefield, for appellant.
    Mays & Jacobs, Corsicana, Arthur P. Duggan, Littlefield, for appellee.
   DENTON, Chief Justice.

This is a suit filed by Emma W.. Bounds, a feme sole, against her son Charles H. Bounds to cancel a warranty deed executed by Mrs. Bounds conveying 354.272 acres of land in Lamb and Bailey counties, Texas, to her son on September 2, 1960. Upon a jury verdict the trial court entered judgment cancelling and setting aside the deed in question.

In response' to special issues submitted, the jury found the deed in question was procured from Emma W. Bounds as the result of undue influence exercised by Charles H. Bounds upon Mrs. Bounds; that Mrs. Bounds was able to understand the nature and effect of the deed when she executed it; that at the time of the transaction in question Charles Bounds stood in a fiduciary relationship .toward Mrs. Bounds; that Charles Bounds took unfair advantage of that fiduciary relationship; that he represented to his mother that her other children had abandoned her; that such representation was false, that such representation caused resentment on the part of Mrs. Bounds toward her other children; that she believed the representation; and that Emma Bounds would not have executed the deed except for her belief that her children, other than Charles H. Bounds, had abandoned her. The jury further found appellant Charles H. Bounds represented to appellee the other children filed a guardianship proceeding for the purpose of securing all of Mrs. Bounds’ property for themselves; that such representation was false; that it caused resentment on the part of Emma Bounds toward her other children; that Mrs. Bounds believed such representation; and Emma Bounds would not have executed the deed except for the belief her children, other than Charles Bounds, sought to secure all her property by filing a guardianship proceeding.

The two labors containing 354.272 acres located in Lamb and Bailey counties were the separate property of Emma Bounds. She had held title to the property since prior to 1931. At the time the deed in question was executed she was 84 years of age and was 87 at the time of this trial. Of the 8 children born to Mrs. Bounds 3 died prior to reaching adulthood. In accordance with the express wishes of John T. Bounds, Emma Bounds’ deceased husband and the father of all of her children, Emma Bounds deeded the 155J4 acres “home place” in Freestone County, Texas, to Charles Bounds on July 30, 1956. Mrs. Bounds continued to reside at the home place with Charles and his wife, Helen Bounds, until April of 1962. It is undisputed appellant and his wife properly cared and provided for his mother during this long period. There was evidence the home place was given to appellant in consideration of his agreeing to care for his mother during her lifetime. The deed to the Freestone County property is not involved in this case. It is undisputed that the Bounds family was a close-knit, congenial one until Mrs. Bounds became seriously ill in June of 1960. During the two or three months’ illness she remained in the home of appellant and was attended by all of her children from time to time. Dr. Norris Buckmeyer was her attending physician. The doctor testified, “Mrs. Bounds was in severe congestive heart failure, and she seemed to be unresponsive to the medicines we usually use for this condition.” He testified she was suffering from “generalized arteriosclerosis” and “cerebral arteriosclerosis”. Dr. Buckmeyer testified Mrs. Bounds’ condition brought on a symptom of “memory disturbance in that these people are aware of what they are doing most of the time, but they forget very easily.” This same doctor expressed the opinion that one in this mental condition could be easily influenced by one in whom she had confidence. During this period of her illness, on August 20, 1960, Mrs. Bounds executed a power of attorney to her daughter, Emma B. Stod-dard. This power of attorney was revoked by her five days later. On August 29 of that same year all of Mrs. Bounds’ children except the appellant filed an application for appointment of a guardian of Mrs. Bounds’ person and estate. On September 19 this guardianship proceeding was dismissed on motion of the applicants. It was during this interval, on September 2, 1960, that Mrs. Bounds executed the deed in controversy. The deed was recorded in Lamb County on September 20 and in Bailey County on September 21 of 1960. Appellee filed this suit to set aside the deed of September 2, 1960, on the grounds that when she executed the deed she did not have the mental capacity to execute it; the execution of the deed was induced by the undue influence of Charles H. Bounds; and fraud or misrepresentations practiced upon her by Charles H. Bounds. The jury found Mrs. Bounds possessed the mental capacity to execute the deed and this question is not before us. Based on the jury findings previously set out the trial court rendered judgment cancelling the deed.

We shall first considered appellant’s last point of error as we agree with appellant it is “the most serious point of error in this case.” By this point appellant contends the jury verdict and the court’s judgment is not supported by any evidence of undue influence, and that the verdict is against the great weight and preponderance of the evidence. In as much as the point presents both a “no evidence” and an “insufficient evidence” point it is multifarious, however, under a liberal construction of the rules, we will discuss and dispose of the point.

In reviewing the question of “no evidence” this Court is required to review the evidence and all reasonable deductions and inferences therefrom giving it its most favorable meaning to determine if it will support the jury finding of undue influence and fraud. Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208; Truelove v. Truelove (Tex.Civ.App.), 266 S.W.2d 491 (Writ Refused); Self v. Thornton (Tex.Civ.App.), 343 S.W.2d 485 (NRE). When the issue of undue influence has been properly raised, evidence of infirmity of mind produced by age, ill health or other reasons, circumstances attending the execution of the instrument, opportunity for the exertion of influence that would destroy the exercise of free agency, unnatural or unjust disposition of property, and other facts which may shed light upon the question will be reviewed by the courts in determining whether or not undue influence did exist. Long v. Long, 133 Tex. 96, 125 S.W.2d 1034; Truelove v. Truelove, supra. It has been held that rules for determining the existence of undue influence apply substantially alike to wills, deeds, and other instruments. Guedry v. Jordan (Tex.Civ.App.), 268 S.W. 191; Self v. Thornton, supra.

The events leading up to the execution of the deed in question apparently began on August 20 of 1960 when Emma Bounds executed the power of attorney to her daughter, Emma B. Stoddard. Shortly thereafter appellant became aware of this transaction. This transaction, coupled with the daughters’ decision to place their mother in a rest home, was resented by appellant, and on August 25 he ordered his sisters out of his home, “and never come back.” Several witnesses testified to the. strong lan-. guage used by appellant in ordering his sisters to leave the premises. On the day Mrs. Bounds’ daughters left appellant’s home the-power of attorney to her daughter was revoked by Mrs. Bounds. There is evidence-that the revocation was initiated by appellant. Four days later, on August 29, the guardianship proceedings were filed by Mrs. Bounds’ daughters. When she was served' in connection with the guardianship proceedings, Betty Mead testified, “Charles, [appellant] brought in a paper and carried it into his mother, and he told her that they-were trying to prove that her — her daughters were trying to prove that she was crazy.. And he told her that the daughters didn’t-love her and they were just trying to get her money, and trying to put her in this old-folks home where they could get her property.” By deposition, Mrs. Bounds corroborated this testimony. She testified she-had confidence in her son and believed him-when he told her her daughters had abandoned her, and that they sought to get her property. She further testified in connection with the deed, “I would not have-signed it if I had but — if I had known that he was the cause of them not coming back; to see me.”

Seven days after the guardianship application was filed the deed in question was executed by Mrs. Bounds to her son. Both by” deposition taken on May 25, 1962, and as a. witness at the trial, Emma Bounds testified, she could not remember executing the deed-in question. We think it is significant that the daughters of Mrs. Bounds did not see or visit her from August 25, 1960, until April' of 1962 when appellant took Mrs. Bounds to-the funeral of one of her sons-in-law. This-fact tends to support the daughters’ contention they were ordered out of appellant’s-home. It was at this funeral that Mrs. Bounds was told her daughters had not. come to see her for the reason they had been ordered off of appellant’s premises. Appellant admitted he had arranged for an attorney to prepare the deed, but’ could not recall whether he had paid the attorney.

Although some jurisdictions consider fraud in the inducement of a disposi-tive instrument as a distinctive ground for invalidating it, wholly separate and apart from undue influence, the courts of this State have treated the two as one. Undue influence is itself a species of legal fraud. Bradshaw v. Seaton, 60 Tex.Civ.App. 278, 128 S.W. 943 (Writ Refused); Curry v. Curry, supra; Rothermel v. Duncan, Tex., 369 S.W.2d 917. It is also well settled the exertion of undue influence is a subtle thing and by its very nature it usually involves an extended course of dealings and circumstances. Undue influence can he established by what is known as circumstantial as well as direct evidence. Besteiro v. Besteiro (Tex.Com.App.), 65 S.W.2d 759; Long v. Long, supra. Generally the establishment of the evidence of undue influence is based on a number of essential events and circumstances. Long v. Long, supra. These elements have been held to include: The nature and type of relationship existing between the grantor, the contestants, and the party accused of exerting such influence; the opportunities existing for the exertion of the type of influence or deception employed; tl}e circumstances surrounding the drafting and execution of the instrument; the existence of a fraudulent motive; and whether there had been a habitual subjection of the grantor to the control of another. Rothermel v. Duncan, supra. Where there is competent evidence of the existence and exercise of such influence, the state of the grantor’s mind at the time of the instrument's execution must be examined. This inquiry is based on the grantor’s mental and ■physical incapacities to resist or the sus■ceptibility of the grantor’s mind to the type and extent of the influence exerted. Weakness of mind and body, whether produced by age or disease, may be material circumstances in establishing this element of undue influence. A final element is the establishment of the fact that the instrument ■executed would not have been executed but for such influences. This element is usually predicated upon a consideration of whether •the executed instrument made an unnatural • disposition of the property. Rothermel v. Duncan, supra.

Mrs. Bounds was 84 years of age and in ill health at the time she executed the deed. Her personal physician, who also witnessed the deed in question, testified without contradiction that her mental condition was such that she might have been easily influenced by one in whom she had confidence. She admittedly had confidence in her son Charles and she had been well cared for by him and his wife for many years. She had relied on him for business advice. Up until the time she revoked her daughter’s power of attorney and the guardianship application was filed Mrs. Bound had no ill feelings toward any of her children. There is positive evidence appellant was instrumental in securing the revocation of the power of attorney; that he represented to his mother that his sisters had abandoned her and that they had filed the guardianship proceeding for the purposes of placing her in a rest home and getting her property. Mrs. Bounds testified she believed these representations. Although she testified she could not remember executing the deed she admitted she harbored this belief against her daughters until they were reunited in April of 1962. The only direct evidence that Mrs. Bounds would not have executed the deed but for the representations of the appellant came from Mrs. Bounds herself. We agree with appellant that this is an anomaly in that she could not remember the transaction, but the discarding of this portion of her testimony would not remove the circumstantial evidence surrounding this whole transaction. We think it is significant that the deed was executed within this short period of time when the family dispute and ill feelings were at their highest. This is a clear inference the filing of the guardianship application was the motivating factor that brought on the execution of the deed. The representations made by appellant to Mrs. Bounds concerning the guardianship aggravated its effect. Under this record, when considered in the proper light, we can reach no other conclusion than that the representations made by appellant created a belief in the mind of Mrs. Bounds that the deeding of the land to appellant was the only way she had to deprive her daughters of securing this land from her. We are of the opinion the elements of the exertion and the effective operation of undue influence by appellant over-Emma Bounds so as to influence her to execute the deed are supported by competent evidence.

In determining appellant’s contention that the jury verdict is against the great weight and preponderance of the evidence as to be manifestly unjust, we must consider all of the evidence, both that which supports the verdict and that which does not. Aside from the evidence which was briefly summarized above, appellant offered evidence which either contradicted or qualified appellee’s evidence. Appellant contends, and rightly so, that the record contains no evidence of any words spoken by appellant to his mother about the conveyance of the west Texas land. This is the usual case and is the basis of the rule permitting proof of undue influences by circumstantial evidence. Both Dr. Buckmeyer and Dr. C. A. Williford witnessed the execution of the deed. Dr. Buckmeyer testified he explained the transaction to Mrs. Bounds and that she responded to the explanation. The doctor observed Mrs. Bounds was “distraught” with her daughters after the guardianship proceeding was filed, but he did not know of the other aspects of the family dispute. Mrs. Julia Mead, sister of Mrs. Bounds, testified Mrs. Bounds told her she had “about decided to deed the west Texas land to Charles”, and later called him in and told him of her decision. This was not corroborated by the other witnesses whom Mrs. Mead testified were present at this time. Before we can set aside jury findings as being insufficiently supported by the evidence, the answers must be so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust or wrong. Continental Bus System v. Biggers (Tex.Civ.App.), 322 S.W.2d 1. In appraising all of the evidence in the light of 'the applicable rules,'we are unable to say the jury verdict is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust or clearly wrong.

Appellant’s first two points of error contend the trial court erred in overruling his special exceptions to certain pleadings of appellee. The allegations complained of include: “To the extent that as she became progressively feeble in mind and body, the said defendant acquired controlling influence and dominion over her”— “The defendant was able to and did practice undue influence upon her at the very time — under the conditions aforesaid, controlled her volition and induced her to do that which she otherwise would not have done.” These allegations, along with others which need not be set out here, were excepted to on the grounds they were conclusions of the pleader, irrevelant, immaterial, inflammatory and prejudicial. The allegations complained of have been reviewed. The trial court is granted a large measure of discretion in passing on exceptions to the pleadings. In the absence of a showing of abuse of discretion or injury resulting from the trial court’s ruling, the ruling will not be disturbed. Weiler v. Weiler (Tex.Civ.App.), 336 S.W.2d 454.

Appellant’s 9 remaining points of error relate to the admission of allegedly improper testimony. The objection most frequently asserted was that of hearsay and some evidence was objected to on the ground it was irrelevant, prejudicial and harmful. In seeking to set aside the deed in question, appellee had the burden to prove the allegation of undue influence and false representations. The very nature of undue influence involves the state of mind of the party pleading it, and the law recognizes the difficulty incurred in proving a person’s state of mind. Smith v. Jungkind (Tex.Civ.App.), 252 S.W.2d 596 (Writ Refused); Brooks v. Taylor (Tex.Civ.App.), 359 S.W.2d 539 (NRE). The record of the testimony in this case is voluminous. Much of the testimony was repetitious and hotly contested. Although some inadmissible testimony was received the appellant has shown nothing which demonstrates that the admission of such evidence probably caused the entry of an improper judgment in the case. Rule 434, T.R.C.P.

We have carefully considered the entire record and all points of error urged by appellant and conclude they present no reversible ■ error.

The judgment of the trial court is affirmed.

Affirmed.


author: DIXON, Chief Justice.

text:
    J. T. CLARK and Wife, Janice Clark, Appellants, v. TEXACO, INC., Appellee.
    No. 16404.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 25, 1964.
    Rehearing Denied Oct. 23, 1964.

      Carter, Gallagher, Jones & Magee and Ben Warder, Jr., Dallas, for appellants.
    Thompson, Knight, Wright & Simmons' Frank Finn, Jr., Pinkney Grissom, George: C. Chapman, Dallas, for appellee.
   DIXON, Chief Justice.

J. T. Clark and wife, Janice Clark, appellants, brought suit against Texaco, Inc_ and Thomas A. Beckett, operator of a service station, for damages for personal injuries sustained by Mrs. Clark when her car,, driven at the time by Beckett, collided with: a culvert.

Texaco, Inc., moved for summary judgment. The trial court severed the causes-of action against Texaco, Inc. and Beckett, then sustained the motion for summary judgment. Accordingly, judgment was rendered that appellants take nothing against. Texaco, Inc.

To determine whether appellants have-raised a fact issue or issues we must carefully analyze the evidence as developed by-several affidavits and exhibits and the depositions of seven witnesses.

FACTS

Mrs. Janice Clark, while visiting in Austin, Texas, on March 8, Í963, accompanied by her 15-year old son and another boy, Ward Hunt, drove her car, a new Chevrolet Impala, to a Texaco service station operated by Victor Batía in order to purchase gasoline. She asked for “Sky Chief” gasoline because her car motor required high octane, gasoline. Soon thereafter the motor began to make a pinging noise which grew worse until Mrs. Clark was afraid to drive the car.

Next day her husband arrived from Dallas. Mrs. Clark and her husband were of the opinion that they had received “Fire Chief”, a low octane gasoline, rather than “Sky Chief”, a high octane gasoline. Batía declined to do anything about the complaint and informed Clark that he should take the ifiatter up with Harold E. Ruhlman, a merchandising salesman employed by Texaco, Inc. Ruhlman’s duties include the arranging for the leasing of nineteen Texaco service stations in Austin and helping the operators, independent business men, to promote their business in various ways and keeping them advised as to Texaco’s national advertising program. One of his duties is to take complaints of customers of dealers.

Ruhlman was not in his office when Clark called, but the complaint was relayed to him. He contacted Batía and confirmed the fact that the complaint had been made. Ruhl-man then communicated with Mrs. Clark by telephone and told her to take the car to Beckett’s service station and he would meet her there. Mr. Clark had been unable to remain in Austin.

This was not the station where Mrs. Clark had bought' the gasoline. However, Ruhlman had already talked to Beckett and had told him about Clark’s complaint. He had told Beckett to check the timing of the motor, and if the timing was all right to drain the gasoline from the tank and replace it with “Sky Chief” gasoline. He further told Beckett not to bill the customer for the gasoline — that Texaco, Inc., would pay for it and would pay Beckett for his services.

Beckett did not readily agree to comply with Ruhlman’s request. It was about 6:30 or 7:00 o’clock in the evening and Beckett was ready to go home. However, he finally agreed to remain at the station and to take care of the Clarks’ automobile as Ruhlman desired him to do. Ruhlman told Beckett that he, Ruhlman, would meet Mrs. Clark at Beckett’s station as soon as possible.

Mrs. Clark arrived at Beckett’s station before Ruhlman did. Her arrival was expected. She did not tell Beckett what to do. He already knew, having talked to Ruhl-man.

When Ruhlman arrived a short time later, Beckett had placed the car on a rack and was siphoning the gasoline from the tank. He told Ruhlman he had tested the timing and it was all right. There is testimony that Ruhlman thereupon told Beckett to fill the tank with “Sky Chief” gasoline. This was done, Beckett then stated that the car should be driven some distance in order to road test the car and burn out the old gasoline which might still be in the fuel lines. For that purpose Beckett drove the car. Mrs. Clark was sitting on the back seat and Ward Hunt on the front seat beside Beckett. Mrs. Clark’s son remained at the service station. Several miles from the service station the collision occurred in which Mrs. Clark, Beckett and Hunt were injured.

Since appellant contends that there is a fact issue raised by the evidence as to whether Beckett was an independent contractor or a servant, agent and employee of Texaco, Inc. at the time Mrs. Clark sustained her injuries, we deem it appropriate to reproduce parts of the testimony.

Beckett’s testimony:

“Question: What else did he [Ruhl-man] tell you ?
“Answer: He told me that he wanted me to check the timing on the car, to see if the timing was as it should be, and if the timing was all right, then he wanted me to turn the gas out and fill the car with Sky Chief Gasoline.
“Question: Did he tell you the name of the people?
“Answer: He told me a Mrs. Clark.”
******
“Question: Then when you told Mr. Ruhlman that, what did he tell you ?
“Answer: He told me that he would appreciate it if I would do it, and insisted that I do it for him, so I finally agreed to.
“Question: You agreed to stay and do this service for him?
“Answer: Yes, sir.
“Question: Did he tell you that he would come to the station also?
“Answer: He said he would.”
“Question: Was Mr. Ruhlman there at the time the timing was checked?
“Answer: I think he arrived there just about at that time.
“Question: Up to then, had Mrs. Clark made any complaint except about this pinging in her conversation with you?
“Answer: Actually, Mrs. Clark came in — I mean she just told me that this was the car, Mr. Ruhlman had instructed me as to what he wanted done, and I was following Mr. Ruhlman’s instructions.
“Question: And you really had no conversation with either Mrs. Clark or either of the boys?
“Answer: Other than to identify the fact that she was the one that had the car with the gasoline problem.”
******
“Question: Was it your understanding from Mr. Ruhlman before that that the customer was to pay for the gasoline, or Texaco was, or that you were?
“Answer: He told me to make no charge to the customer — that he would reimburse me for the gasoline and the service.
“Question: And had he told you that before the customer came ?
“Answer: Yes, sir. He told me to make no charge — to check the timing, and if the timing was proper, then to drain the car and fill the car.”
******
“Question: And then what were you to do with the gasoline that you had siphoned out of the car?
“Answer: He said that he wanted to check it to see if there was something wrong with the gasoline.
“Question: That was just something that you were going to turn over to him, I assume.
“Answer: Yes, sir.”
******
“Answer: * * * I turned to Mr-Ruhlman and told him that the only thing that would completely eliminate the pinging was to drive the car and burn the rest of the gasoline out of the car.
“Question: And Mr. Ruhlman told you to do that?
“Answer: And he said, ‘Yes.’ ”
******
“Question: And he told you that he wanted the timing checked and if it was all right, he wanted you to take the gas out and put in the best that you had?
“Answer: Yes, sir.
“Question: And that he would pay you for the service and for the gasoline?
“Answer: Yes, sir.
“Question: And that was your arrangement with Mr. Ruhlman ?
“Answer: Yes, sir.”
******
“Question: The Clarks had no arrangement with you?
“Answer: No, sir.
“Question: Their arrangements were all with Mr. Ruhlman, according to your understanding of things?
“Answer: Yes, sir.”

Ruhlman’s testimony:

“Answer: * * * I asked Tom what he had done, and he said that he had taken the timing on it, and that it was perfect, and he said, ‘All I can do is to drain it out.’ And I said, ‘Well, that will be fine.’ And he proceeded to drain the gasoline out.”
******
“Question: Did you also agree to pay Tom Beckett for checking the timing on the car ?
“Answer: If there was any charge, I would have paid it; but generally—
“Question: That is something that you didn’t expect Mrs. Clark to pay?
“Answer: No.
“Question: And to your knowledge, she had no arrangements of her own with Tom Beckett?
“Answer: On what?
“Question: About refilling this gas and all that. I mean you had made the arrangements with Tom, and you made the arrangements with her, but as between Mrs. Clark and Mr. Beckett, no arrangements were made that you know of?
“Answer: Not that I know of.”
******
“Question: But it is a continual problem to see to it that your customer gets your product as advertised?
“Answer: Yes, sir.
“Question: And that is a concern of yours as a merchandising salesman?
“Answer: Yes, sir.

Mrs. Clark’s testimony:

“Question: All right. And then, what happened after that?.
“Answer: Well, Mr. Ruhlman says to Mr. Beckett, ‘If you are sure the timing' is perfect, drain the gas, and we-’U fill it with Sky Chief gas’.”

Ward Hunt’s testimony:

“Question: Now, were you present, and did you hear Mr. Ruhlman tell Mr. Beckett to drain the tank?
“Answer: Yes, sir.
“Question: Did Mrs. Clark make any of these arrangements directly with Mr. Beckett?
“Answer: No sir, Mr. Ruhlman primarily told him.”
* * * * * *
“Question: All right And then what happened ?
“Answer: Mrs. Clark and I were in the car and Mr. Beckett walked around and got in and said, T am going to drive it around the block’. And drove out of the station.”
******
“Question: Did you agree that he could drive the car, or did Mrs. Clark agree that he could drive the car, or did she say that he should or should not?
“Answer: Well, we didn’t even know that he was in there. We didn’t tell him to.
“Question: Well, you saw him get in the car.
“Answer: Yes sir.
“Question: And then I assume he announced he was going to drive it around the block?
“Answer: Yes, sir.”
******
“Question: All right, Was anything further said about him driving it or not driving it ? At that point.
“Answer: No sir. Mrs. Clark asked him where we were going, though.
“Question: That is all that was said as far as you remember there in the driveway ?
“Answer: Yes sir.”

Attached to an affidavit by Ruhlman are three written contracts between Texaco, Inc. and Beckett: (1) a lease agreement covering the premises on which Beckett’s service station is located; (2) a sales agreement whereby Beckett agrees to purchase and Texaco, Inc., agrees to sell certain named products; and (3) a gasoline consignment contract.

Opinion

Appellants base their appeal on eight points of error, all of which are vigorously disputed by appellee in fourteen counterpoints.

In their first three points on appeal appellants say that (1) the record does not establish as a matter of law that Beckett was acting as an independent contractor in handling appellants’ complaint against Texaco, Inc.; (2) a genuine issue of fact exists as to whether Beckett at the time was acting as the agent; or (3) as the servant of Texaco, Inc. We agree with appellant in regard to these points.

It is undoubtedly true, as appellee contends, that as long as Beckett operates under the terms of his three contracts with Texaco, Inc. his status is that of an independent contractor. It has been so held in several cases in which similar agreements have been considered. Texas Co. v. Wheat, 140 Tex. 468, 168 S.W.2d 632; Frye v. Sinclair Oil & Gas Co., Tex.Civ.App., 249 S.W.2d 102; Hayes v. Travelers Ins. Co., Tex.Civ.App., 358 S.W.2d 254; McGee v. Phillips Petroleum Co., Tex.Civ.App., 373 S.W.2d 773.

But an entirely different situation is presented when we consider Beckett’s ■status while he was handling the Clark complaint for Texaco, Inc. The contracts under which Beckett operated his station make no mention of the handling by Beckett for Texaco, Inc. of complaints originating in other service stations. There is evidence that there was a separate oral agreement under which Beckett handled the Clark complaint at the direction of Ruhlman, the representative of Texaco, Inc., who was in charge of complaints for Texaco, Inc. There is evidence that Texaco, Inc. acting through Ruhlman, made all the arrangements with Beckett, including payment to Beckett for his gasoline and services. There is no evidence in the record before us that the Clarks made the arrangements for Beckett to handle the complaint or remedy the defect in gasoline, if there was one. The testimony is such that it could support an inference that Texaco, Inc. through Ruhlman had a right to control Beckett’s activities in the course of handling the Clark complaint. Southern Underwriters v. Samanie, 137 Tex. 531, 155 S.W.2d 359, 362. And right to control is the test. Halliburton v. Texas Indemnity Ins. Co., 147 Tex. 133, 213 S.W.2d 677. It is recognized that one may be an independent contractor under some circumstances yet may be a servant, agent and employee in connection with other work or activities. Standard Ins. Co. v. McKee, 146 Tex. 183, 205 S.W.2d 362, 365; Helms v. Sinclair Refining Co., 5 Cir., 170 F.2d 289; Mills v. Jones’ Estate, 213 Miss. 680, 56 So.2d 488, 57 So.2d 496; 27 Am.Jur. 500. Appellants’ first three points are sustained.

In their fourth, fifth, sixth and seventh points appellants assert that there are fact issues as to (4) apparent agency, (5) implied agency, (6) estoppel and (7) reasonable belief that the services were being rendered by Texaco, Inc., or its servant Beckett.

An apparent or ostensible agent is one “whom the principal either intentionally or by want of ordinary care induces third persons to believe to be his agent although he has not either expressly or by implication conferred authority on him.” Roberts v. Capitol City Steel Co., Tex.Civ.App., 376 S.W.2d 771, 775; Collins v. San Antonio Food Products and Produce Co., Tex.Civ.App., 188 S.W.2d 888, 890. We are of the opinion that the record before us raises a fact issue as to apparent or ostensible authority. Appellants’ fourth point is sustained.

We find no pleadings alleging issues of implied agency or reasonable belief. So far as the record shows these issues were not presented to the trial court at the hearing on appellees’ motion for summary judgment They cannot he raised on appeal for the first time. State of California Dept. of Mental Hygiene v. Bank of Southwest Nat’l Ass’n et al., Tex.Civ.App., 348 S.W.2d 731 (aff. 163 Tex. 314, 354 S.W.2d 576); Moseley v. T. & N. O. R. Co. et al., Tex.Civ.App., 346 S.W.2d 636. Appellants’ fifth and seventh points are overruled.

To support equitable estoppel or estoppel in. pais there must be some evidence of false representation or concealment of material facts. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932; Marek v. Goyen, Tex.Civ.App., 346 S.W.2d 926; Red Jacket Mfg. Co. v. Adams, Tex.Civ.App., 346 S.W.2d 897; 22 Tex.Jur.2d, Estoppel, Sec. 8. We agree with appellees that the record contains no evidence of false representations, concealment of material facts, or deception on the part of Texaco, Inc., or its representative Ruhlman. Appellants’ sixth point is overruled.

In their eighth point appellants contend that the evidence raises a fact question as to whether Beckett was in the course of his employment for Texaco, Inc., at the time Mrs. Clark sustained her injuries. We agree with appellants. We have concluded in sustaining appellants’ first three points that the evidence raises a fact issue as to whether Beckett at the time in question was the servant, agent and employee of Texaco, Inc. Having so held we now hold that the evidence raises the additional fact issue as to whether Beckett was engaged in the course of his employment

There is testimony that after testing the timing of the motor, siphoning the gasoline out of the tank and replacing it with “Sky Chief” gasoline, Beckett told Ruhlman the car should be road tested or driven for a while in order to use up all the old gasoline still in the fuel lines. There is evidence in the record that Ruhlman gave his consent It was while Beckett was driving the car for that purpose that the collision occurred. Appellants’ eighth point is sustained.

Because we believe the record discloses undetermined fact issues, the summary judgment is reversed and the cause is re- ! manded for trial on the merits.

Reversed and remanded.


author: CLAUDE WILLIAMS, Justice.

text:
    CAMPBELL BROTHERS, INC., Appellant, v. GENERAL ELECTRIC SUPPLY COMPANY, Appellee.
    No. 16410.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 25, 1964.
    Rehearing Denied Oct. 16, 1964.
    Henry Stollenwerck, Dallas, for appellant.
    Tom D. Matthews, Matthews, Matthews & Allen and John D. Gilliland, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

General Electric Supply Company (a Division of General Electric Company),- engaged in the business of furnishing electrical supplies and equipment, hereinafter called materialman, brought this action against Campbell Brothers, Inc., hereinafter called general contractor, National Surety Corporation, hereinafter called Surety, Y-B Electric Company, Inc., hereinafter called subcontractor, and Herbert E. Youngkin, d/b/a Y-B Electric Company, seeking to recover the reasonable price of materials and supplies furnished by mate-rialman to subcontractor and used in the construction of a building in Dallas County. Plaintiff also sought judgment against the surety company on a statutory payment bond executed in accordance with the terms of Art. 5472d, Vernon’s Ann.Civ.St.

Y-B Electric Company, Inc. failed to answer and default judgment was rendered against such defendant. Following a non-jury trial the court rendered judgment for $7,103.22, together with the interest and attorneys fees, in favor of the materialman and against the general contractor and the surety. The court denied any recovery against Youngkin, individually, d/b/a Y-B Electric Company. From this judgment only the general contractor and Surety have perfected an appeal.

The trial court found as a fact that Campbell Brothers, Inc., as general contractor, entered into a contract with St. Joe Container Company to build a building in Dallas County; that in compliance with Art. 5472d, V.A.C.S., the general, contractor supplied a payment hond executed by National Surety Corporation, as surety, in the amount of $269,237.00, such bond providing, among other things, that the principal "shall promptly pay claimants for all labor, subcontracts, materials and specially fabricated materials performed or furnished under or by virtue of said contract and duly authorized normal and usual extras thereto (not to exceed 15% of said contract price), * * * labor, subcontracts, materials and specially fabricated materials shall be construed in accordance with Article 5452, Vernon’s Revised Civil Statutes of Texas, 1925, as amended by the acts of the regular session of the 57th Legislature, 1961”; that the general contractor entered into a subcontract for the electrical work with Y-B Electric Company, Inc.; that Mr. Youngkin (of Y-B Electric Company), actually put in the electrical installations through company employees and was familiar with the material needed according to the specifications applicable to the job; that Mr. Youngkin gave the orders to General Electric Supply Company for all of the materials and supplies needed on the job; that General Electric Supply Company furnished all of the materials required for the electrical work on the job to Y-B Electric Company and that such job could not have been completed without such materials and supplies. The court found that all of the materials and supplies were received on the job in question and incorporated in the job; that the prices charged for such material were reasonable and that the amount owed the materialman was $7,103.22. The court further found that materialman gave the surety company and general contractor notice of the materials and supplies which had been delivered for the job between August 20, 1962 and November 9, 1962 in the amount of $7,069.36. The court found that during the latter part of November 1962, (after all of the materials and supplies had been delivered to and received on the job) general contractor, through an agent, advised ma-terialman that all monies owing subcontractor under the contract had been expended or paid out.

The court, in its conclusions of law, found that since materialman had supplied the labor and material to the job and that same had been incorporated in the project, that materialman was therefore entitled to recover under the provisions of Art. 5452, V.A.C.S.; that materialman is protected in its unpaid claim for $7,103.22, with interest, by virtue of the payment bond executed by general contractor, pursuant to Art. 5472d V.A.C.S.; that materialman had given the proper notices as provided by Art. 5472d(4) (a) V.A.C.S., and is further entitled to recover attorneys’ fees as provided by Art. 5472d, gee. 6, V.A.C.S.

Appellants have brought forward four general and vague points of error and with some difficulty-we have concluded, from a review of appellants’ “discussion” contained under these four points, grouped together, that they contend that the court erred (1) in holding that appellee was protected in its claim under the provisions of Art. 5472d, V.A.C.S. and (2) that there is “No evidence” to sustain the judgment against appellants. We find no merit to either of these contentions and affirm the judgment of the trial court.

Art. 5472d, V.A.C.S., entitled “Bond to pay liens or claims” was enacted by Acts 1961, 57th Legislature, Page 863, Chapter 382, Sec. 10. Its purpose, as evidenced by the plain language of the enacting clause, and the clear wording of the various provisions of the act itself is quite evident. It provides for security in the form of a surety bond, as distinguished from the lien security as provided in Art. 5452, V.A.C.S. to pay for materials, labor, subcontracts and fabricated materials supplied by material-man and laborers to general contractors and subcontractors.

Section 4 of Article 5472d, provides that a claim under the bond provision may be perfected either in the manner prescribed for fixing and securing a lien by Article 5453, V.A.C.S. or by the specific terms of Subdivision (a) (1) (2), having reference to notice to the general contractor or notice to the surety. Section 7 of the Act provides that the remedy is by action on the bond and that the owner will be immune from lawsuits and relieved of obligations under other lien statutes where the bond has been filed in accordance with this article.

Thus the law is abundantly clear that to recover under the provisions of this law one is required to show that he is a claimant who has furnished labor or material for the constrution of a building or improvement within this state, under or by virtue of a contract with the owner, contractor, or with any subcontractor, and that' requisite notice of the furnishing of such material must have been made to the surety, or to the contractor, as provided by the existing statutes. We have carefully examined the entire record, and have concluded that appellee complied with each and every requirement of the Act in order to justify recovery against the payment bond. Materialman was a “claimant” having supplied materials to a subcontractor which were admittedly incorporated in the work in question pursuant to the contract by the general contractor and the owner of the premises. There is no question but that notice was given not only to the general contractor but to the surety, all in compliance with the express provisions of the statute. We hold, accordingly, that appellee has complied with all prerequisites to bring itself within the terms and provisions of the statute in question.

Appellants raise some question concerning the misnomer of Y-B Electric Company, Inc. as “Y-B Electric Company”. It is true that certain invoices covering the materials furnished were directed to “Y-B Electric Company” but it is also true that all of the materials in question were incorporated into the very job covered by the general contract. Appellants’ attorney admitted in the trial court that all of the materials were delivered to and incorporated in the work in question. There is no evidence in this record that the surety company or the contractor were misled in any manner by the omission of the abbreviation “Inc.” following the name of Y-B Electric Company in the various invoices. The identical question was raised and rejected in Houston Fire & Casualty Co. v. Col-Tex Refining Company, Civ.App., 231 S.W.2d 468.

Nor do we find any merit in appellants’ contention that during the latter part of November an agent for the general contractor called the General Electric Supply Company and advised them that all monies owing Y-B Electric Company, Inc. under its subcontract had been expended or paid out, and therefore no liability exists. This •contention must be overruled for two reasons: (1) the so-called .notice was made after all of the materials and supplies had been delivered to the job by the material-man, and (2) materialman’s right to recover is not dependent upon the status of the accounts between the general contractor and the subcontractor. John F. Buckner & Sons, et al. v. Arkansas Fuel Oil Corporation, Civ.App., 301 S.W.2d 325; and 319 S.W.2d 204.

As relates to appellants’ “no evidence” point of error, we have carefully reviewed the entire record and not only find some evidence but abundant evidence to support the findings of fact and judgment of the trial court.

The judgment of the trial court is

Affirmed.


author: MURRAY, Chief Justice.

text:
    Juventino GONZALEZ, Jr., Appellant, v. Olga Moreno GONZALEZ, Appellee.
    No. 14279.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 16, 1964.
    Richard G. Morales, Laredo, for appellant.
    Albert Armendariz, Gloria Senftner, El Paso, for appellee.
   MURRAY, Chief Justice.

On December 3, 1962, Juventino Gonzalez, Jr., sued his wife, Olga Moreno Gonzalez, for a divorce on the grounds of cruel treatment. On December 2, 1963, after a hearing, the trial court rendered judgment denying the divorce. Juventino Gonzalez, Jr., has prosecuted this appeal.

We here copy the statement of the evidence made by appellant in his briof:

“No property was involved, and no children were born of this marriage; Testimony was obtained from Appellant only; Was cross-examined by Appellee’s Attorney; Said Appellant’s testimony was not controverted by Ap-pellee or Attorney, although the opportunity was given them; Appellant testified that his earnings were $18.00 a week; his working hours were from 8:30 A.M. to 8:00 P.M. During their time of their marriage, they did not live in harmony. She would fight with Appellant, because he was tired when he got home from work, was always • fighting. She would act angry and did not feed him. Would refer to him as an animal. Did not sleep in his bed, and in the morning would send him to work without his breakfast. On occasions would slap him, and Appellant would suppress his anger for fear of hurting her; Said fighting continued during the course of their marriage and their time of separation; Appellee had Appellant arrested and brought before the Justice of the Peace, claiming for non-support; stating that Appellee would rather see Appellant in jail, and that she wanted Appellant punished and put in jail. Attempted to reconcile, and was asked by Appellant to come and live with him with his salary. Ap-pellee refused; Appellee earned $40.-00 a week, while Appellant earned $18.00 a week. As a result of the life he was leading with Appellee, Appellant felt very badly and could not go on living through life in this manner, affecting his eating, as well as his work.”

The question here is not whether the above evidence given by appellant would support a judgment of divorce if the trial court had seen fit to enter such a decree, but, rather, did the trial court abuse its discretion in refusing the divorce?

Art. 4632, Vernon’s Ann.Civ.Stats., provides, among other things, that a decree of divorce shall be rendered upon full and satisfactory evidence. The trial court may grant or deny a divorce subject to review on appeal for an abuse of discretion. Deebs v. Deebs, Tex.Civ.App., 164 S.W.2d 758. The trial court has broad discretion in divorce matters. Hursey v. Hursey, Tex.Civ. App., 165 S.W.2d 761.

We cannot revise the trial court’s discretion in determining the sufficiency or insufficiency of evidence to warrant a divorce decree in the absence of a showing of a clear case of abuse of discretion. Grisham v. Grisham, Tex.Civ.App., 255 S.W.2d 891; Ivy v. Ivy, Tex.Civ.App., 177 S.W.2d 237; Caldwell v. Caldwell, Tex.Civ.App., 176 S.W.2d 758; Kreiter v. Kreiter, Tex. Civ.App., 137 S.W.2d 184.

Under the evidence in this case the trial court did not abuse its discretion in denying the divorce. James v. James, Tex. Civ.App., 328 S.W.2d 197; Bustos v. Bustos, Tex.Civ.App., 282 S.W.2d 434; Duffer v. Duffer, Tex.Civ.App., 144 S.W. 354.

The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    HUDIBURG CHEVROLET, INC., Appellant, v. GLOBE INDEMNITY COMPANY, Appellee.
    No. 16563.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 25, 1964.
    Rehearing Denied Oct. 23, 1964.

      Kerr, Day & Cook, and Taylor Gandy, Fort Worth, for appellant.
    Thompson, Knight, Wright & Simmons, Pinkney Grissom, David S. Kidder and George C. Chapman, Dallas, for appellee.
   MASSEY, Chief Justice.

The questions to be resolved relate to the right of recovery by Hudiburg Chevrolet, Inc., hereinafter termed the insured, under two theft insurance policies issued by Globe Indemnity Company, hereinafter termed the insurance company.

The first policy we will call Policy “A”. Under it the insurance company agreed to pay for (or on account of) the loss of any vehicle insured thereby caused by theft. Vehicles insured thereby were those “(a) consigned to or owned by the insured and held for sale or used in the insured’s business as an automobile dealer * * *, exclusive of automobiles leased or rented to others and automobiles sold by the insured under bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance ; * * Excluded from coverage under the policy was any vehicle which “is or at any time becomes subject to any bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance not specifically declared and described in this policy.” In view of the circumstances hereinafter described there was no liability on the part of the insurance company under and by virtue of the provisions of Policy “A”.

The second policy we will call Policy “B”. Under it the insurance company agreed to pay for (or on account of) loss of any vehicle insured thereby caused by theft. Unlike Policy “A”, Policy “B” did not contemplate nor provide coverage which would require payment to the insured, as for a vehicle “consigned to or owned” by the insured, but rather was in the form of an “extended” coverage to a contract, the basic form of which was liability insurance, i. e., which obligated the company “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property * * * caused by accident and arising out of the hazards hereinafter defined”, — and which (under SOA. Garage Keepers’ Extra Legal Liability Coverage Endorsement) furthermore obligated the insurance company to pay “for direct loss of or damage including loss of use by theft, hereafter called loss, to automobiles which are the property of others and in the custody of the insured for storage, repair or safe-keeping, sustained under coverages described in Endorsement 50, Garage Keepers’ Legal Liability Coverage Endorsement * * * regardless of the legal liability of the insured(Emphasis supplied) Endorsement 50, Garage Keepers’ Legal Liability Coverage Endorsement, is one wherein the insurance company agreed to pay “all sums which the insured shall become obligated to pay by reason of liability imposed by law for direct loss of or damage including loss of use by theft, hereinafter called loss, to automobiles which are the property of others and in the custody of the insured for storage, repair or safekeeping, * * In view of the circumstances hereinafter described there was no liability on the part of the insurance company under and by virtue of the provisions of Policy “B”.

On or about June 13, 1961, while both policies were in full force and effect, a certain Chevrolet truck was taken by Comas Roark from the premises of the insured, without his knowledge or permission and against his expressed desires. Roark was, or claimed to be, the owner of the truck. The insured, as the operator of a garage, had furnished parts in the aggregate value of $688.35, which parts had been incorporated into the physical structure of the truck in the repair thereof performed in and upon its premises. The insured therefore held a lien against the truck in the amount of $688.35 so long as it maintained its possession, or until its charges in said amount should be fully paid or otherwise satisfied.

At the time Roark took the truck we have no doubt that the equitable title thereto was vested in him. There was a purchase price lien upon the truck in favor of the General Motors Acceptance Corporation. A mortgage existed as security for the indebtedness owing, but such instrument was not made a part of the record presented to us. We are left to speculate upon provisions thereof relating to the rights of “repossession” by such lienholder, if any, relative to imposing a possession superior to that of Roark. There was never any suit for lien foreclosure filed.

The complication which arose was undoubtedly born in the belief on the part of the insured and the General Motors Acceptance Corporation that the former had received the truck, on or about May 24, 1961, as one which had been “repossessed” by the latter under some contractual provision in the mortgage. Indeed, the insured had executed an instrument which contractually acknowledged its receipt as a vehicle which the General Motors Acceptance Corporation had “repossessed”. Even if there were no dispute relative to the matter, there is uncontradicted evidence that by agreement of all parties, and through the agency of the insured acting for the finance concern, the amount Roark owed on the truck was brought current. General Motors Acceptance Corporation did insist, however, and the insured agreed, that the truck would not be surrendered to Roark until Roark or someone for him had secured a “12 month paid up policy” which would afford insurance protecting the finance company’s interest therein.

Roark could not arrange the necessary cash to obtain this form of insurance and became impatient. He felt that if he could get possession of the truck for a few days he could perform a contract of hauling he had obtained, thus securing funds wherewith he could purchase the required policy. Understandably, the insured could not afford to accommodate him. Seizing upon an opportunity, Roark took the truck by using an extra set of keys. Promptly thereafter the insured sought to have him arrested for theft. Upon being taken into custody he made bond, perhaps using money he had intended to apply upon insurance premiums.

Neither the insured nor General Motors Acceptance Corporation were able to peaceably reacquire possession of the truck. It was decided to forego recourse to the courts for a recovery, preferring instead to have the insured make claim under the insurance policies. Demand being made therefor, the insured paid off the mortgage indebtedness owing General Motors Acceptance Corporation. There seems to be no question but that the proper amount was paid under an obligation upon which the insured considered itself bound in order to redeem its contractual liability to the finance company under the receipt the insured had delivered to it. The insurance company denied liability upon both policies of insurance and suit followed.

The trial court concluded that under Policy “A” the insured was entitled to recover the amount of $688.35, the value of the materials incorporated in the repair of the truck. The trial court concluded that neither General Motors Acceptance Corporation nor the insured (who had succeeded to the finance company’s rights) were entitled to recover under Policy “B”. Judgment was entered in favor of the insured and against the insurance company for $688.35, plus interest from June 13, 1961.

As heretofore indicated, it is our conclusion that the insurance company is not liable under either policy.

Under Policy “A” no form of property other than vehicular was even purported to be insured. The insured’s $688.35 in parts had been incorporated into the truck. It could only have been as the result of such incorporation into the vehicle that the insured could have obtained a property interest therein. Yet the truck did not thereby become in any sense a vehicle “consigned to or owned by the insured”, much less one which was “held for sale or used in the insured’s business”. Furthermore, the vehicle in question was encumbered by a mortgage which- was not declared or described in the policy of insurance. The insured’s $688.35 loss was not contemplated to be covered, nor was it the subject of insurance afforded by the policy.

Under Policy “B”, under the circumstances existent at the time Roark secured the truck from the premises of the insured it was Roark rather than the insured or General Motors Acceptance Corporation who was actually entitled to claim the protection afforded thereby. Had some unknown third party stolen the truck it would have been its owner, Roark, who would have been entitled to make demand of the insurance company for payment. Of course the insured and General Motors Acceptance Corporation would have been entitled, perforce of their liens, to demand the principal balance owing, but their demands would have been of Roark rather than the insurance company. Their right to receive payments in priority to Roark would necessarily have to be founded in “notice” to the insurance-company, absent which the insurance company could properly discharge its full liability by paying Roark.

The fact that the insured had contractually obligated itself to make payment to General Motors Acceptance Corporation could have had no effect on the liability of the insurance company under the policy contract. It was “legal” liability, to be distinguished from any “contractual” liability, which was contemplated by the policy. The insurance company could not have contemplated an exposure to liability under its policy under some form of contractual liability which did not exist and could not have been anticipated at the time its policy was issued, particularly one entered into respecting a vehicle which was not owned by either party so contracting.

Viewed from the standpoint of the in-, surance policy the vehicle was the property of Roark. Most certainly may it properly be said that the truck was the property of Roark at the time he resumed its possession on June 13, 1961, for the previously described binding agreement between him, the insured, and General Motors Acceptance Corporation had only been entered into a few days prior thereto. It was pursuant to such agreement that through the insured’s delivery of consideration paid by Roark the finance company had brought its accounts current. Under Texas decisions neither the finance company nor the insured had any rights in the property as the owner, their rights being restricted to those con-notated by the term “lien”, as a lien on personal property is considered and treated under our laws.

Viewed from the standpoint of the insurance policy, Roark was the owner of the truck in question and could not have reentered into possession of it by any means which would at one and the same time constitute him a thief, and render the insurance company liable to him for any loss resulting from his own theft.

Nothing stated herein is to be construed as a holding that Roark could not be properly held accountable for the penal offense of theft.

Reversed in part and in part affirmed. Judgment rendered that Hudiburg Chevrolet, Inc. take nothing by its suit against Globe Indemnity Company.


author: COLEMAN, Justice.

text:
    Leonard M. KEATING et ux., Appellants, v. K-C-K CORPORATION et al., Appellees.
    No. 14394.
    Court of Civil Appeals of Texas. Houston.
    Oct. 8, 1964.
    Leonard Rosenberg; M. Michael Gordon, Houston, for appellants.
    Walton & Brochstein, Fred W. Hofstet-ter, Harry Brochstein, Houston, for appel-lees.
   COLEMAN, Justice.

This suit grew out of a contest for the management of a closely held corporation. The principal question involved is whether the stockholders elected three, or whether they elected four, directors at the stockholders meeting held June 14, 1963.

Article 2.23, Business Corporation Act, Yol. 3A, Vernon’s Ann.Tex.Civ.St., provides :

“The initial bylaws of a corporation shall be adopted by its board of directors. The power to alter, amend, or repeal the bylaws or to adopt new bylaws shall be vested in the shareholders, but such power may be delegated by the shareholders to the board of directors. The bylaws may contain any provisions for the regulation and management of the affairs of the corporation not inconsistent with law or the articles of incorporation.”
The corporate charter provides:

ARTICLE VII.

“The number of directors of the Corporation may be fixed by the bylaws, but shall not be less than three (3), * *

ARTICLE IX.

“The board of directors is expressly authorized to make, alter, or amend the by-laws of this Corporation or to adopt by-laws.”

Article 2.28, Business Corporation Act, Vol. 3A, V.A.T.S., provides:

“Unless otherwise provided in the articles of incorporation, the holders of a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders, but in no event shall a quorum consist of the holders of less than one-third (1/3) of the shares entitled to vote and thus represented at such meeting. The vote of the holders of a majority of the shares entitled to vote and thus represented at a meeting at which a quorum is present shall be the act of tire shareholders’ meeting, unless the vote of a greater number is required by law, the articles of incorporation or bylaws.”

The by-laws adopted by the original directors of the Corporation have never been changed by formal action of the directors or the shareholders. Article VII of these by-laws, reads, in part, as follows:

“The power to alter, amend, or repeal the by-laws or to adopt new by-laws, is reserved to the shareholders, the affirmative vote of not less than the holders of three-fourths (24th) in number of the total number of shares issued and outstanding being necessary to exercise such reserved power. * * * ”

It is not denied that three directors were elected in 1957 and 1958. In 1959, 1960, 1961 and 1962 four directors were elected. At the meeting in June, 1963, a motion was made that three directors be elected. This motion carried by a majority vote, but not by the 24th majority required by the by-law. The motion, if it be considered an amendment to the by-laws, failed unless the requirement of a 24th majority is invalid as being inconsistent with the provision of Art. 2.23, supra.

Article IX of the Corporate Charter is inconsistent with the Article 2.23 of the Business Corporation Act, and must be considered surplusage, since the power to delegate to the board of directors authority to alter or amend the by-laws is given to the shareholders by the Act, and the Corporate Charter may not contain any provision inconsistent with the provisions of the Business Corporation Act. Art. 3.02(9), Business Corporation Act, Vol. 3A, V.A.T. S.

The question arises, therefore, whether the board of directors, in the exercise of their statutory power to enact the initial by-laws, may restrict the power of the shareholders to amend these by-laws by requiring a greater vote than a simple majority.

Art. 2.28 of the Business Corporation Act answers this question. A by-law requiring more than a simple majority for stockholder action is clearly authorized. The by-law with which we are concerned is not inconsistent with the law of this State.

It is appellants’ contention that the bylaw under discussion has been amended, so that the number of directors is now four, by acts and conduct of the shareholders and directors. The minutes of the stockholders meetings, as well as the undisputed testimony of witnesses, establish that for the four years preceding the meeting in question four directors were elected. While there is a question raised as to whether it was intended that one of the directors elected would exercise the power and authority of a director, there is no evidence that she was not in fact elected as recited in the minutes of the shareholders meeting.

In answer to special issues the jury found that the shareholders did not amend the bylaws of the Corporation by electing four directors for the years 1959, 1960, 1961 and 1962. According to the evidence four directors were elected. Either all of them were directors or none of them were. The minutes reflect that the directors were elected in 1959 by a “motion, duly made and seconded.” The minutes also reflect that all of the stockholders were present. The minutes of the meetings held in 1960, 1961 and 1962 reflect that the owners of 100% of the stock outstanding were present at the meetings; that four persons were nominated as directors and that “all votes cast were for said nominees, and they were declared duly elected.”

Art. 2.32 of the Business Corporation Act requires that the number of directors be fixed by the by-laws of the corporation and that the number may be increased or decreased from time to time by amendment of the by-laws. The action of the stockholders in electing four directors must be viewed with this provision of the law in mind. It is also significant that all of the stockholders were directors and active in the management of the Corporation prior to 1959 and thereafter, and that there is no evidence that anyone objected to the election of a four-member board of directors prior to the present controversy.

Where by statute, or by charter provision, certain formal procedures are prescribed for the enactment, or amendment, of by-laws they must be substantially followed, but since both the charter and the Texas Business Corporation Act are silent as to the formalities to be observed, no particular mode of enactment or formality is necessary. Under such circumstances, it is a general rule that by-laws may be adopted, or amended, orally or by acts evidenced by a uniform course of proceeding, or usage and acquiescence. Schutze v. Austin Saengerrunde, Tex.Civ.App., 244 S.W.2d 341, ref., n. r. e.; Dixie Glass Co. v. Pollak, Tex. Civ.App., 341 S.W.2d 530, 91 A.L.R.2d 662, ref., n. r. e., 162 Tex. 440, 347 S.W.2d 596; Realty Acceptance Corporation v. Montgomery, 3rd Cir., 51 F.2d 636; Huxtable v. Berg, 98 Wash. 616, 168 P. 187; Buck v. Troy Aqueduct Co., 76 Vt. 75, 56 A. 285; 18 C.J.S. Corporations § 187.

The special issues asking whether the action of the shareholders and directors in electing four directors amended the bylaws were improperly submitted to the jury, and the answers made thereto should have been disregarded by the court. The facts bearing on this question were undisputed and it must be held as a matter of law that the by-law was amended so as to provide for a board of four directors.

Since the stockholders meeting of June 14, 1963, there has been no meeting of the board of directors of the Corporation at which a quorum of the membership was present. As a consequence new officers have not been elected. Appellant is entitled to retain his offices in the Corporation until his successor is duly elected.

Under our disposition of this case, it is not necessary to determine what appellant’s contractual rights, if any, are. Because of his official position in the Corporation prior to the action of the shareholders in 1963, the judgment of the trial court enjoining appellants from performing the duties of their offices and appellant, Mrs. Leonard M. Keating, from assuming the office and duties of a director, is erroneous. If appellant, Leonard M. Keating, has contractual rights, the Corporation, acting through a legally constituted board of directors, has not infringed upon them.

The jury found that there was no agreement between the shareholders and directors of K-C-K Corporation that Leonard M. Keating would be Chief Operating Officer and have sole authority and responsibility for all financial dealings of the Corporation. This finding is supported by the evidence and is not contrary to the great weight and preponderance of the evidence. There was evidence that the agreement relied on by Keating related only to the management of finances.

The judgment of the trial court is reversed, the injunction is ordered dissolved, and this case is remanded to the trial court.


author: POPE, Justice.

text:
    Roland REINHARDT, Appellant, v. TOMMY BURNS PAINTING AND DECORATING COMPANY, Inc., Appellee.
    No. 14277.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 23, 1964.
    Rehearing Denied Oct. 21, 1964.
    Park Street, Walter Powell Gray, San Antonio, for appellant.
    George E. Bradfield, San Antonio, for appellee.
   POPE, Justice.

Tommy Burns Painting and Decorating Company, Inc., sued Roland Reinhardt and recovered judgment on a note for $6,168.17, plus interest and attorney’s fees. Reinhardt’s defense was that plaintiff had released the debt. Plaintiff then countered this defense by a plea, sustained by the trial court, that there was a total failure of consideration for the release.

Reinhardt was building houses during 1961 and ran into s.erious financial difficulties. He had previously given plaintiff the note, secured by a second lien on some houses and lots. Flynn Investment Company held the first lien and was threatening foreclosure, which would wipe out all creditors. Reinhardt called a meeting of his creditors. A composition of creditors was-proposed and Reinhardt promptly reduced the proposal to writing and mailed copies to all his creditors. Any creditor who accepted the proposed composition was called upon to execute a release of his claim, and it was agreed that he would then participate in the proceeds, if any, after Flynn Investment’s first lien was satisfied. The proposal which was submitted to the creditors stated that Flynn Investment Company “has agreed to allow an extension of the indebtedness provided that the arrangement is agreeable to all the creditors, and the agreement from all the creditors is consummated with you in writing not later than June 10, 1961.” The proposal stated that the Roland Reinhardt Construction Company “is to convey to Ralph M. Mayen, Jr., Trustee, the seven properties mentioned in the caption hereof * * On June 26, 1961, plaintiff executed the acceptance which was attached at the bottom of the proposal and returned it to the trustee. Plaintiff later executed a release which recited that it was a release of the note and the lien.

The consideration for a composition of creditors is the mutual covenant of each creditor to accept the settlement. Texarkana National Bank v. Hubbard, Tex. Civ.App., 114 S.W.2d 389; Creditors Rights in Texas, p. 137. Where there is no composition, there is no consideration, and the composition relied upon in this case to supply the consideration never came into being. Defendant, Roland Reinhardt, who relies upon the composition and the release executed by plaintiff, did not fulfill the first essential, his own duty to convey the assets by deed to the trustee, as the proposal required him to do. Flynn Investment Company, the creditor who held complete power over the success or failure of the composition, never agreed to it. In-other words, there never was a composition. Because it failed, there was np consideration for plaintiff’s release. See, Fitts v. Panhandle & S. F. R. Co., Com.App., 222 S.W. 158; 50 Tex.Jur.2d, Release, § 13.

The judgment is affirmed.