author: CHADICK, Chief Justice.

text:
    R. R. MORRISON, Jr., Appellant, v. L. A. PARISH et al., Appellees.
    No. 7605.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 1, 1964.
    Rehearing Denied Dec. 15, 1964.
    Neal Birmingham, Linden, for appellant.
    Boyet Stevens. Daingerfield, for appel-lees.
   CHADICK, Chief Justice.

This is a trespass to try title action. A summary judgment for the plaintiffs was rendered in the trial court and is affirmed.

Mrs. Lula J. Connor, a widow, borrowed $15,000.00 from the State Bank of Omaha, Omaha, Texas, on August 6, 1960. To secure payment of the loan she executed and delivered a Deed of Trust to R. G. Moore, Trustee, conveying a 390 acre tract of land, the subject of this suit. In less than two months thereafter, “ * * * in consideration of the sum of Ten and No/100 ($10.00) Dollars, and other váluable consideration * * * ”, Mrs. Connor as grantor executed a General Warranty Deed by its terms conveying the 390 acre tract of land to R. R. Morrison, Jr., Trustee. On the same day this deed was dated, October 24, 1960, Morrison appeared at the State Bank of Omaha, attached the Deed to a draft for $15,000.00, drawn on R. P. Davis, payable to Mrs. Connor, and directed the bank to send the draft with deed attached to the First National Bank of Shreveport, Louisiana, for collection. Morrison also instructed the Bank to credit the proceeds of the draft to Mrs. Connor’s checking account, after deducting the unpaid balance of her $15,000.00 indebtedness to the Bank. The Bank forwarded the draft for collection, and on November 5, 1960, it was returned unpaid. The Bank returned the Deed to Morrison.

Mrs. Connor, as seller, entered into a Sales Contract with. Virgil Walters, as purchaser, on the 7th day of March, 1961, agreeing to sell 200 acres off of the west side of the 390 acre tract. This, instrument, besides being signed by Mrs. Connor and Walters, was also signed by R. R. Morrison, Jr., who is described therein as Agent for Mrs. Connor. In' the early morning of May 13, 1961, Mrs. Connor died testate in Dallas, Texas. At about 11:00 o’clock, the morning of the day of Mrs. Connor’s death, Virgil Walters filed the Sales Contract for record in the office of the County Clerk of Morris County, at Daingerfield, Texas. Legal counsel acting in Walters’ behalf on June 21, 1961, wrote a letter to Dr. Robert B. Connor, respectfully requesting that Dr. Connor and L. A. Parish, Executors of the Estate of Lula J. Connor, comply with the terms of the Sales Contract.

R. R. Morrison, Jr., Trustee, on September 14, 1961, executed and delivered to Virgil Walters a warranty deed to the east 200 acres of the 390 acre tract. The instrument recites.receipt by Morrison of a cash consideration of $4,000.00, and the further consideration of $5,000.00 to be paid in installments to Morrison, secured by the reservation of a vendor’s lien, as well as a deed of trust lien on the land conveyed. Both this deed (Morrison to Walters) and the earlier deed (Mrs. Connor to R. R. Morrison, Jr., Trustee), were filed for record the same day, September 27, 1961.

An affidavit filed in the summary judgment proceeding by Morrison says: “ * * I admit and recognize the title to Mrs. Lula S'. Connor, deceased, in the real property described in the plaintiff’s petition, and will stipulate that Mrs. Connor be considered a common source of title in such suit. However, I further state that prior to her death, Mrs. Lula S'. Connor conveyed to me as trustee for a then undisclosed beneficiary the lands in question by a General Warranty Deed * * * and the undersigned claims absolute title in such property by the said deed as trustee for an undisclosed beneficiary.”

The pleadings of the parties will be noticed, when material. A resume of the factual events has been given. The trial court judgment awarded a recovery of title and possession of the 390 acres to L. A. Parish and Dr. Robert B. Connor, Independent Executors of the Estate of Lula J. Connor, deceased, and to Dr. Robert B. Connor, individually. Virgil Walters has not appealed from the judgment. This appeal is prosecuted by R. R. Morrison, Jr., alone.

The appellees by counterpoint assert that the trial court judgment should be affirmed, as the pleadings, affidavits and documents on file show that no genuine issue exists as to material facts. Argument is made that the only factual conclusion permissible is that Mrs. Connor’s Deed of October 24, 1960, was never delivered to Morrison, in the sense that delivery is understood in land conveyancing. The trial court’s judgment as to Morrison can not be rested upon this theory. The Deed from Mrs. Connor to Morrison was in Morrison’s possession, was signed, acknowledged, and recorded. In the absence of proof to the contrary this combination of facts raise a presumption of delivery. The draft transaction, Morrison describing himself as Mrs. Connor’s Agent in the Sales Contract, the filing of the Deed after her death, etc., at most create a fact issue, and delivery becomes a question of fact appropriate for determination in a trial of the merits.

Morrison conveyed 200 of the 390 acre tract to Walters by warranty deed; the record presented limits the title that he can claim to be now vested in him to the residual 19Ó acres. This appeal perforce is concerned with Morrison’s title, possession or rights in the residual acreage. The points of error briefed necessitate a further examination of the title, possessory rights, etc., conveyed by Mrs. Connor’s deed to Morrison, Trustee. Morrison’s affidavit recognizes the title of Mrs. Connor, and shows that at the time the affidavit was filed, he claimed title to the acreage as “Trustee for an undisclosed beneficiary”. His affidavit eliminates any claim of title benefit or right of possession in himself in any capacity, except as a Trustee. Evidence explaining the nature and purpose of the trust created may be received and considered by the trial court.

Since it is established by the record that the land was not conveyed to Morrison for his individual use and benefit this case does not confront the court with the question that arises when a deed is made to a grantee as trustee, but the nature and purpose of the trust is not in evidence. The Morrison affidavit says the trust set up by the deed was for a beneficiary that was not disclosed at the time the deed was made, or as expressed in the language of the affidavit “for a then undisclosed beneficiary”. Morrison asserts title to the 190 acre residue as Trustee “for an undisclosed beneficiary”. This construction of the affidavit gives latitude only for a conclusion that Mrs. Connor’s Deed failed to create an expressed trust. The beneficiary is indefinite. An expressed trust is “ * * a fiduciary relationship in which one person holds a property interest, subject to an equitable obligation to keep or use that interest for the benefit of another. * * * It is customary to think of three persons as connected with every trust, namely, the settlor, the trustee, and the cestui que trust. But since, where the settlor declares himself a trustee, settlor and trustee are one and the same person, a trust may exist with only, two parties.” The proof produced by this affidavit does not show an identifiable cestui que trust or beneficiary existed at the time the deed was made; the existence of a beneficiary is an indispensable element of an expressed trust, and in the absence of a beneficiary the effort to create such trust aborts.

If the affidavit might be construed as a statement by Morrison that the deed he took from Mrs. Connor did not on its face disclose the beneficiary, but that he intended by the language used to raise the inference that Mrs. Connor had disclosed to him, and that he knew and could make known the identity of the beneficiary when it suited his purpose, still Morrison can not prevail. Again the beneficiary is indefinite. This is for the reason that the record does not show a beneficiary in existence or that a beneficiary was designated capable of qualifying as such.

Morrison by his own admission claims no title or interest in the 190 acres, except the title that reposes in him by virtue of his Trusteeship. As the record stands, he is the repository of the bare legal title to the land, and there is no proof that an express trust came into existence. Under such circumstances Morrison is cast by law into the relationship of a Trustee of a resulting trust; he is such as a result of the failure of the expressed trust to materialize. Mrs. Connor and those claiming under her are as a matter of law the beneficiary of this trust created by law. It clearly appears that as a result of the facts shown the law imposes a trusteeship upon Morrison and that he holds title to the 190 acres for the benefit of Mrs. Connor’s estate and devisee.

The appellant by appropriate points of error urge that the trial court judgment is erroneous because the appel-lees could not recover title under their pleading of a statutory trespass to try title action in ordinary form. They argue that an action to cancel Mrs. Connor’s deed to Morrison must have been plead and proved as a matter of law as a prerequisite to the judgment entered. It is now settled law that owners of a superior equitable title, such as the appellees show here, may recover under the ordinary averments of the statutory trespass to try title action. The record shows the appellees’ equitable title is superior to Morrision’s bare legal title.

The judgment of the trial court will be affirmed.

      . Deeds, 19 Texas Jurisprudence 2d 379, Sec. 96 and 97.

      . Studebaker Bros. Manufg. Co. v. Hunt, (Tex.Civ.App.) 38 S.W. 1134, writ refused; Union Pac. Ry. Co. v. Durant, 95 U.S. 576, 24 L.Ed. 391; Johnson v. Calnan, 19 Colo. 168, 34 P. 905; Foster v. Treadway, 98 Ark. 452, 136 S.W. 934. See also Annotations in 137 A.L.K. 460 on Designations of Grantee as “Trustee”, and Trusts and Trustees (Bogert), Sec. 88.

      . See Barker v. Temple Lumber Co., Tex.Com.App., 12 S.W.2d 175, (reversed 120 Tex. 244, 37 S.W.2d 721 on other grounds, without discussing this question) .

      . 1A Trusts & Trustees (Bogert) 91, Sec. 162.

      . 1 Trusts and Trustees (Bogert), P. 1, Sec. 1.

      . 1A Trusts & Trustees (Bogert) 84, Sec. 161.

      . See generally 1A Trust and Trustee (Bogert) 84, Chap. 10, The Selection of a Competent Cestui Que Trust.

      . The law applicable is stated in understandable fashion in Trusts and Trustees (Bogert, 2d Ed.), Sec. 468: “It sometimes occurs that an express trust, created by inter vivos instrument or by will, fails at the date when the trust was intended to begin or later, because of the terms of the trust, the applicable law, or the nature of the beneficiaries or the purposes of the trust. Thus, it may be that the settlor failed to describe any beneficiaries or described them indefinitely, or that his trust purpose was illegal, had already been achieved, or was impossible of accomplishment; or that there was a failure of the consideration for the creation of the trust; or that a beneficiary disclaimed or forfeited his interest.
      * * * * *
      “The Court equity must decide what shall be the disposition of the subject-matter of the trust which has failed. If the transfer in trust was for a consideration paid by the trustee, he is allowed to retain the property because of the certainty that the settlor would have intended such a result and would not have expected a return of the property. There is no threatened unjust enrichment of the trustee, if he is allowed to keep the property.
      “But if, as in most cases, the conveyance in trust was voluntary, and there is no express or implied gift of the property to the trustee or another in the event of the failure of the trust, the court decrees a resulting trust for the settlor or his successors. If the trustor was living and the trust failed at its inception, the trust res goes to him. If he was living at the date of the failure, but died before the case was adjudicated, the property should go to his successors by intestacy at the time of his death, or if he left a will to his legatees or devisees under that will.”

      .Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471 (op. adpt.); Gates v. Coquat (Ct.Civ.App.), 210 S.W.2d 614, no writ; Hall v. Miller (Ct.Civ.App.) 147 S.W.2d 266, or. dism’d, judg. cor; Trespass to Try Title, 56 T.J.2d p. 79, Sec. 10.


source: Caselaw Access Project

author: ARCHER, Chief Justice. HUGHES, Justice

license: Public Domain

text:
    TEXAS LIQUOR CONTROL BOARD et al., Appellants, v. AMMEX WAREHOUSE COMPANY, Incorporated, et al., Appellees.
    No. 11248.
    Court of Civil Appeals of Texas. Austin.
    Dec. 2, 1964.
    Rehearing Denied Dec. 16, 1964.
    Waggoner Carr, Atty. Gen., Howard M. Fender and Brady S. Coleman, Asst. Attys. Gen., Austin, for appellants.
    R. Dean Moorhead, Austin, for appel-lees.
   ARCHER, Chief Justice.

This case involves the constitutionality of a State law, a statute amending the Texas Liquor Control Act to provide a permit for and to regulate the retail sale of alcoholic beverages for export. Appeal is from a judgment of the trial court in an action which consolidated five separate but substantially identical suits filed on behalf of seven firms operating seventeen liquor selling establishments in the six major Texas towns on the Mexican border.

Each petition sought declaratory judgment holding the amendatory statute unconstitutional and permanent injunction prohibiting the Texas Liquor Control Board, its Administrator, agents, and employees from enforcing or attempting to enforce the new law. Separate temporary injunctions were issued but the five cases were formally consolidated for trial on the merits. The judgment of the trial court granted to the plaintiffs all the relief sought, declaring the statute unconstitutional and enjoining the Texas Liquor Control Board, its Administrator, agents, and employees from enforcing the statute or in any way interfering with the conduct of plaintiffs’ businesses. The State of Texas, on behalf of the defendants, immediately filed notice of appeal. At the plaintiffs’ request the trial court filed extensive findings of fact and conclusions of law.

The appeal is based on ten points assigned as error, and, in effect are that the court erred in holding that, as a matter of law, Federal, Constitutional and Statutory provisions prohibit State regulation of appellees’ businesses, that there is no evidence, or the evidence is insufficient to support the trial court’s holding that appellees are exporting liquor, and no evidence or the evidence is insufficient to support the trial court’s holding that appellees are conducting their businesses in compliance with Federal regulations; that the court erred in failing to uphold the constitutionality of the Statute in question; that there is no evidence, or the evidence is insufficient to support the trial court’s holding that it would be impossible for appellees to conduct their businesses in compliance with the Statute in issue, and that there is no evidence or the evidence is insufficient to support the trial court’s holding that the amendatory Statute in question would create conflict with Federal Law.

The Statute brought into question by this suit (Acts 1963, 58th Leg., Ch. 108, p. 196) as codified (Article 666-15(7b) Vernon’s Ann.P.C.) reads:

“(7b) United States Bonded Liquor Export Permit. A United States Bonded Liquor Export Permit shall authorize the holder thereof to:
“(a) Purchase liquor in bond from holders of Texas Wholesalers’ Permits or purchase liquor from distillers, brewers, wineries, wine bottlers, rectifiers, and manufacturers who are holders of Nonresident Seller’s Permits and import into the State of Texas at a United States bonded dock such liquor in transit for exportation purposes.
“(b) Transport such liquor from the United States bonded dock at point of entry under United States Bond to a United States bonded warehouse within the State of Texas.
“(c) Warehouse such liquor under United States bond.
“(d) For the purpose of exportation only, solicit orders for, take orders for, and accept payment for any quantity of said liquor in unbroken original containers.
“(e) Cause such liquor to be withdrawn from a United States bonded warehouse for exportation, in compliance with United States Custom regulations, and delivered to a public common carrier for transportation, in compliance with such carrier’s established rate schedule, into the country of export by such common carrier or by such common carrier’s affiliated common carrier in the country of export, for delivery to the purchaser at a designated address outside the continental limits of the United States or for delivery to a named qualified person at a designated address outside the continental limits of the United States.
“The annual state fee for a United States Bonded Liquor Export Permit shall be Seven Hundred and Fifty Dollars ($750).
“The privileges authorized by this Section are cumulative and not in lieu of requirements of Federal Law in the conduct of such operations. It is specifically provided, however, that permits under this Section shall not be required for the wholesale export of United States bonded liquor by the holder of any other type of permit which, under existing Statutes and the rules and regulations of the Texas Liquor Control Board, authorizes the wholesale exportation of liquor in compliance with Federal Law.”

The idea of selling tax and duty free liquor “for export * * * without State and Federal taxes” was developed by Hal G. Ward who founded Ammex Warehouse Company, and secured from the Texas Liquor Control Board a wholesaler’s permit provided for in the Act, and filed bonds to operate a Class 2 and 8 bonded warehouse, and began operations at Laredo, Texas in June, 1961.

Shortly thereafter the Liquor Board can-celled Ammex’s wholesale permit; such permits authorize the exportation of liquor but only in wholesale quantities. The ap-pellees generally sell in quantities of one to three bottles.

Certain phases of this litigation were before this Court in Texas Liquor Control Board v. Jones, 378 S.W.2d 898, and before our Supreme Court in Ammex Warehouse Company v. Archer, 381 S.W.2d 478, and the history of the subject matter was recited and discussed and we make reference to the cases, and will endeavor to confine our consideration to the issues in the instant case and not restate issues disposed of in the decision by the Supreme Court.

There is now pending Civil Action No. 1466 in the United States District Court for the Western District of Texas, Austin Division, Ammex Warehouse Company, Inc., et al. v. Texas Liquor Control Board et al.

Appellees take the position in this present suit on appeal that the cases of Hostetter v. Idlewild Bon Voyage Liquor Corporation, 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350 .(1964) and Department of Alcoholic Beverage Control for State of California v. Ammex Warehouse Co. of San Ysidro, Inc., 378 U.S. 124, 84 S.Ct. 1657, 12 L.Ed.2d 743 (1964) are controlling and that the 21st Amendment to the Constitution does not permit the State to regulate liquor passing through its territory, under the supervision of the United States Bureau of Customs acting under Federal Law for sale and delivery at foreign destinations.

Appellees contend further that the Commerce Clause, the Export-Import Clause and the Supremacy Clause of the Constitution of the United States preclude application of House Bill to them and their businesses and make such Bill unconstitutional as applied to their businesses, and that the bill is unconstitutional and unenforceable because it is “so vague, uncertain, ambiguous and unclear that it does not inform with reasonable certainty those persons who would be subject to its provisions as to what it means.”

The Board takes the position that the evidence fails to show exportation in fact.

The appellees maintain warehouses and sales areas in various border towns in Texas, where they take orders and receive payment for liquor and make deliveries in the towns where such businesses are located. No sales are made in Mexico and no liquors are transported across the international boundary and appellees had no control over the liquor after its delivery to purchasers, who transport the liquor. Such activities, appellants contend, do not fulfill the legal meaning of “export” as given in Swan & Finch Company v. United States, 190 U.S. 143, 23 S.Ct. 702, 47 L.Ed. 984, and as the leading case Empresa Siderúrgica, S. A. v. County of Merced, 337 U.S. 154, 69 S.Ct. 995, 93 L.Ed. 1276.

Appellants say that the holding of liquor in “bond” does not establish exportation by appellees, and the actions and conduct by the appellees do no more than show an intent to export and that the receipt of liquor for export and the ultimate exportation does not establish the business of exporting liquor and cite Joy Oil Company v. State Tax Commission of Michigan, 337 U.S. 286, 69 S.Ct. 1075, 93 L.Ed. 1366.

Appellants assert that taxation is not involved in this case and that the fundamental question is the State’s right to regulate the businesses of appellees and not to tax the liquor while in bond, and that there is no factual or legal basis on which appellees can be designated as exporters.

By points IV and V appellants claim that appellees’ testimony shows violation of Customs Statutes, and there is no evidence, or that the evidence is insufficient to support the Court’s holding that appellees are conducting their businesses in compliance with Federal regulations.

There is no dispute as to the facts in the case. Appellees receive their liquor by the case, and except for Border Bonded, the sales are in quantities of one to three bottles per customer. The liquor is removed from the cases in which it was received and packaged in paper sacks for delivery. Border Bonded sells only in case lots.

Appellants’ VI point is that the trial court erred in failing to uphold the constitutionality of the Amendatory Statute in question and by points VII, VIII, IX and. X that there is no evidence, or that the evidence is insufficient to support the trial court’s holding, that it would be impossible for appellees to conduct their businesses in compliance with the Statute in question and would create a conflict with Federal Law.

Appellants’ view of this litigation is that the law is entitled to the presumption of validity and that the burden of proof was on appellants as plaintiffs in the trial court, and cite among other cases Duncan v. Gabler, 147 Tex. 229, 215 S.W.2d 155, and that the Federal government has given to States broader regulatory powers over alcoholic beverages than to other items of commerce and cite James Clark Distilling Company of Cumberland, Md. v. Western Maryland Railway Company, 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, and United States v. Frankfort Distilleries, 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 951.

As we have stated, most of appellees’ liquor is packaged in paper sacks and carted to the walkway at this end of the bridge and lined up on the sidewalk awaiting delivery.

Deliveries are made both to vehicles and to pedestrians and in most instances by cartmen on both sides of the street by Am-mex and Kings Mart on one side and other appellees on the other side.

The traffic, especially in evening time, is very heavy across the bridge and there is a possibility that some bottles might be smuggled back into Texas, but we have not had our attention directed to any such violations by customers who have purchased liquor for export. It is also possible that some purchasers would take liquor into Mexico and return with it to Texas and avoid Federal tax and pay only the State Tax. This would be accompanied by a legal risk.

The nature of the traffic and not its incidents, determines its character. Texas & N. O. Ry. Co. v. Sabine Tram Co., 227 U.S. 111, 33 S.Ct. 229, 57 L.Ed. 442.

Appellees maintain stocks of whisky and cigarettes on which no Federal taxes or duties and no Texas taxes have been paid, because such merchandise has been brought to the warehouses and stored there in bond, pursuant to applicable regulations of the U. S. Customs Bureau.

The liquor is in the sole custody of the customs officers stationed at the warehouses, who, under an arrangement approved by the Bureau, appellees reimburse the United States for the salaries paid to such officers, who only handle the stored liquor.

The warehouses are located in buildings that are divided into a bonded warehouse area and a store area connected by locked doors, with one key held by customs officers and the other by employees of appel-lees, the latter work only in the store area. No whisky is kept in the store area. Customers are not permitted in the warehouse area.

Ordinarily sales are in lots of three bottles or less. (The Mexican Government allows one entering Mexico to bring three bottles of liquor per person, per day.)

A purchaser of liquor orders liquor on forms approved by the Bureau and pays appellees for such and is given a receipt. Other forms are given to the customs officers, who withdraw the whisky called for in the forms and make entries in the warehouse records.

The liquor is delivered to a bonded cart-man, who carries the liquor in bond to the customs station at the end of the international bridge.

The purchaser presents his receipt and is handed the whisky he has purchased and delivery is made under the supervision of the customs officer. The whisky is carried into Mexico and a form certifying that the whisky has been exported is signed by the customs officer, which is placed with the other records that are kept by the Bureau.

The above outlined procedure is similar to that set out in the cases in which Am-mex is named, hereinabove cited. In the Hostetter case the manner of delivery is somewhat different, in that the liquor is placed on the aircraft and not given to the purchaser until he lands on foreign soil.

We believe that the procedure in use by appellees is in substantial compliance with that set out in the cases referred to.

The trial court made extensive findings of fact and conclusions of law which we have read and considered and believe are supported by the record as a whole and justified by law. 4 Tex.Jur.2d 333.

As may be seen, the law in question seeks to confine appellees’ purchases from wholesalers holding permits from Texas and to make deliveries by common carrier. We believe that House Bill 782 if complied with in its entirety, would be an economic impossibility, and would go further than to regulate, but would prohibit ap-pellees from carrying on their businesses.

The appellees are not immune from Texas law or from the Texas Liquor Control Act, and if they should disregard their bonded procedure, contrary to Federal Law and regulation, and divert some of their liquor into Texas, they would be subject to prosecution, apart from House Bill 782.

We believe that the Statute is in the face of the Commerce Clause and the Supremacy Clause, as set out in the Idle-wild and California Ammex cases, supra.

The judgment of the trial court is affirmed.

Affirmed.

HUGHES, Justice

(concurring).

In an Amicus Curiae brief the statement is made that, “The State of Texas is seeking to supervise and regulate the transportation of liquor through its territory for the purpose of guarding against a diversion of liquor into domestic channels, and the Liquor Control Board has both alleged and proved the diversion of appellees’ merchandise to users within the State of Texas. Delivery is made in Texas.”

If there was in this record any evidence which shows that any liquors, at least any significant quantity of liquors, sold by ap-pellees for export was consumed in Texas or diverted for use in Texas, or that there was any reasonable likelihood that such might occur, then I would sustain all of the regulations adopted by the State which were reasonably calculated to prevent such diversion. Qearly Texas has authority to so protect itself. Ziffrin v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128.

The same brief states that the entire State Regulated Liquor Industry along the Rio Grande Valley is vitally interested in sustaining the statutes here attacked.

If the Liquor Control Board, its agents, and all of the interested liquor dealers along the border have not during this controversy been able to show that one bottle of liquor certified by the United States export official as having been exported to Mexico was not in fact exported or that it has in some manner been consumed or re-sold in Texas, then it seems to me that the patently foolproof method used by ap-pellees to export this liquor is in fact foolproof.

I do not believe that the fact of “delivery in Texas” under the described circumstances is any more proof of diversion, or danger of diversion, than in the Ammex-California case where delivery was made in a strip under the joint jurisdiction of the State and Federal Governments.

Under the facts of this case, as presently appearing, I am of the opinion that the requirements of the Act before us are unreasonable as applied to appellees. I concur in the judgment.


author: NORTHCUTT, Justice.

text:
    W. Edd BROWN, Appellant, v. Richard F. STOVALL et al., Appellees.
    No. 7418.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 30, 1964.

      James P. Donovan, Dallas, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, Stovall & Stovall, Plainview, Spence, Martin & Richie, Wichita Falls, for ap-pellees.
   NORTHCUTT, Justice.

W. Edd Brown brought this suit against Bernard Martin, Richard F. Stovall and Robert Stovall for loss of cotton and wheat allotments on certain land owned by Martin contending he, Brown, had a contract with Martin that gave him the right above all other persons to rent the property in question. Brown further contended that Martin breached his contract and that Martin and the Stovalls were guilty of fraud and con-' spiracy which caused Brown to lose the use of the land in question and thereby causing him to lose his cotton and wheat allotments and resulting damages. Brown will hereafter be referred to as appellant and the other parties as appellees.

Appellant presents this appeal upon three points of error contending the court erred in holding the contract sued upon was unambiguous; in determining disputed issues of fact relevant and material to decision of the case and in granting motion for summary judgment on an ambiguous contract and in refusing to submit material issues of fact to a jury.

The sole issue as to whether appellant had a contract with Martin to have the prior right to renew the lease was based upon one sentence in a letter written by Martin in reply to a letter written to Martin by appellant. Brown had been renting the land in question for a number of years. Brown had a lease on the land for a period of three years beginning July 15, 1954, and ending July 14, 1957. On May 6, 1957, Brown wrote Martin inquiring as to the possibility of a renewal lease upon the expiration of the lease ending July 14, 1957. In the letter of May 6, 1957, it is stated:

“Since I do not have any commitment for the coming year from you I hardly feel justified in jumping in and spending the $1000.00 that it will cost to plow the land at this time. Of course I appreciate the fact that you have always given me the option of renewal of the lease for the past 20 years or more, and due to this fact I would normally go ahead and make the setup for the fall sowing of wheat, but the cost of operating a farm is more than double what it was in prior years and this naturally 'slows’ a -fellow down when he is not definitely sure of himself.”

On May 7, 1957, Martin answered the letter of May 6, 1957, in which he stated: “Yes, I have always given you the refusal of renting my land and am going to do so this time.” On May 10, 1957, Martin and Brown entered into a lease for the term beginning July 15, 1957, (being the end of their former lease) and ending July 14, 1962.

Brown contends that the sentence, “Yes, I have always given you the refusal of renting my land and I am going to do so this time,” gave him the right to renew his lease expiring on July 14, 1962, and that that was his understanding. We are unable to see how anyone could contend this sentence to be ambiguous. The letter could mean nothing more than that Martin would give him the refusal, at the end of his lease on July 14, 1957, to a renewal. They did at that time, as mentioned in the letter, enter into a written renewal lease for five years ending July 14, 1962, but that sentence could not be construed as giving Brown the right to renew his lease ending in July 1962.

On May 10, 1962, appellant wrote Martin offering to renew the lease. Martin answered that letter telling appellant that he could not accept his offer and that he would expect immediate possession of the land on the expiration of the lease contract on July 14, 1962. On June 9, 1962, appellant wrote Martin in which he stated: '“I appreciate the fact that it is your land and you are at liberty to handle it as best suits you,” but requested Martin to reconsider the possibility of leasing him on the same basis at the expiration of the existing lease. Martin on June 12, 1962, answered the letter of June 9, 1962, reaffirming his intention to take possession upon the expiration of the lease in July 1962. During all of this correspondence appellant never indicated to Martin that he had any idea that he thought that Martin had ever given him the right to renew the lease ending in July 1962 but did state in terms that he appreciated the fact that Martin had the right not to renew the lease.

The letter of May 7, 1957, being the letter upon which appellant contends he thought gave him the right of renewal, is not ambiguous since it could have but one meaning and that is that Martin did give him the refusal of renting the property to begin July 15, 1957. Martin did give him the five-year lease beginning July 15, 1957, and ending July 14, 1962. Parol evidence is not admissible to create an ambiguity in a written instrument. It is stated in Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977, as follows:

“If a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous. It follows that parol evidence is not admissible to render a contract ambiguous, which, on its face, is capable of being given a definite certain legal meaning. This rule obtains even to the extent of prohibiting proof of circumstances surrounding the transaction when the instrument involved, by its terms, plainly and clearly discloses the intention of the parties, or is so worded that it is not fairly susceptible of more than one legal meaning or construction. Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217.”

See also Dickey v. Bird, Tex.Civ.App., 366 S.W.2d 859 (N.R.E.).

The construction of an unambiguous contract is a question of law and not of fact and is for the court and not for the jury. It is stated in the case of City of Houston v. Howe & Wise, Tex.Civ.App., 323 S.W.2d 134 (N.R.E.) as follows:

“It is elementary that the construction of a contract is for the court and not the jury. Tower Contracting Co., Inc. v. Flores, Tex.Sup., 302 S.W.2d 396. Nor is it admissible to construe by parol testimony a written contract and thus prove its contents when the contract itself is before the court and is free from ambiguity. City of San Antonio v. Lewis, 9 Tex. 69; Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306. In Gulf States Equipment Co. v. Toombs, Tex.Civ.App., 288 S.W.2d 203, writ ref., n. r. e., it was held that the court improperly submitted to the jury the issue as to whether the appellee breached his contract. See Southern Travelers’ Ass’n v. Wright, Tex.Com.App., 34 S.W.2d 823.”

See also Arnold v. Ashbel Smith Land Company, Tex.Civ.App., 307 S.W.2d 818 (N.R.E.).

There is no contention here of any fraud in entering into the lease agreement covering the period from July 15, 1957, to July 14, 1962. In the absence of fraud all prior and contemporaneous negotiations, whether written or unwritten, between appellant and Martin were merged into the written lease. Hyatt v. Radio Station WLOU, Tex.Civ.App., 354 S.W.2d 415 (N.W.H.). Since there is no showing whatever that Martin, after executing the lease effective from July 15, 1957, to July 14, 1962, ever said or did one thing to let appellant believe that he had the right or privilege to renew said lease, appellant had no right to a renewal thereof.

As to appellant’s contention of fraud on the part of appellees, we are unable to find in this record any evidence of probative force to substantiate any such contention. The only evidence is based upon the mere suspicion and not based upon any facts and therefore constitutes no evidence. Even if it be considered that ap-pellees Stovalls made some false statements to the Agricultural Soil Conservation Committee after leasing the land, that would form no basis for damages for which this appellant could recover. Reagan v. Guardian Life Insurance Company, 140 Tex. 105, 166 S.W.2d 909.

We have carefully considered all of appellant’s assignments of error and are unable to find any question of fact to be submitted to a jury and think the court was correct in granting the summary judgment.

Judgment of the trial court is affirmed.

CHAPMAN, J., not participating.


author: PHILLIPS, Justice.

text:
    The STATE of Texas, Appellant, v. MEMORIAL BENEVOLENT SOCIETY OF TEXAS, Appellee.
    No. 11242.
    Court of Civil Appeals of Texas. Austin.
    Nov. 25, 1964.
    Rehearing Denied Dec. 16, 1964.

      Waggoner Carr, Atty. Gen., Howard W. Mays, R. E. Richards, Asst. Attys. Gen., Austin, for appellant.
    J. B. Sallas, Crockett, for appellee.
   PHILLIPS, Justice.

This action was brought by the State in quo warranto to forfeit, cancel, revoke and annul the charter of the Memorial Benevolent Society of Texas, for the appointment of a receiver and for an injunction to restrain the Society, its officers, agents, employees and servants from engaging in the business of insurance without a certificate of authority from the State Board of Insurance.

The State alleged in its original petition that the Society through its officers, agents, employees, servants and representatives was engaged in the business of insurance as a local mutual aid association as defined in Chapter 12 of the Texas Insurance Code, V.A.T.S.

After requesting, and being granted leave to file a petition in quo warranto, the State filed its original petition and was granted a temporary restraining order without notice. The Liquidator for the State Board of Insurance was appointed temporary receiver.

After a hearing was had before the trial court on the State’s application for a temporary injunction and for continuation of the receivership, the court entered an order denying the State’s application for a'temporary injunction and vacating the tern--porary receivership order. In that order' the court held that:

“ * * * Tfjg defendant is not now and has never engaged in acts, or activities such as to constitute doing an insurance business and that the defendant has not engaged in the business of insurance as a Local Mutual Aid Association as defined in Title 12, Texas Insurance Code, and that the defendant has never engaged in such business ; it is also the finding of the Court that the plaintiff is not entitled to the character of relief sought and prayed for in its petition and other pleadings.”"

Thus the State, the appellant here, is before this Court on a single point of error to the effect that the trial court erred in holding that the Society was not engaged in an insurance business as a matter of law, and therefore abused its discretion in) refusing to grant appellant’s application for a temporary injunction.

The facts of this case are not in dispute. The Memorial Benevolent Society of Texas, as a non-profit corporation, was chartered in 1961, maintains an office for business and has a secretary who looks after the books and records and performs whatever other secretarial services necessary to the furtherance of the business.

As stated in the Society’s original answer, the membership is wholly voluntary and according to the printed form entitled “Funeral Instructions”, upon the death of a member in good standing the Society will pay a stipulated sum for burial expenses, or expenses of the last illness of the deceased member. The Society has a radio program every Sunday morning at which time it solicits memberships. Upon joining the Society, should death occur within three months, a $300 benefit will be paid and thereafter a $600 death benefit will be paid as long as all obligations are paid and the member is in good standing. The membership obligation involves a $2 contribution for each member who dies, not to exceed ten per calendar year, a $1.00 renewal fee each year and an initial membership fee ranging from $11 to $36.

Whenever a member dies a “dun” card is sent to the membership notifying them of an assessment and containing the following statement:

“According to your obligations and to keep your certificate in force with the Memorial Benevolent Society of Texas, please submit your donation for the amount of $- for the benefit' of member _ within 30 days from this date.”

The Chief Accountant for the Liquida-■tión Division of the State Board of Insurance testified that after an audit of the financial records of the Society, it was determined that it had $7,631.21 in liabilities and $481.79 in assets which amounted to a deficit of $7,149.42. There is some question as to the exact amount of appellee’s deficit. However there is. no question but there is, a sizeable deficit over and above its assets.

It is our' opinion that the trial court was in error in his application of the law to the undisputed facts and that we must reverse his judgment.

Local Mutual Aid Associations are regulated by Chapter 12, Texas Insurance Code, Article 12.01, V.C.S., which states the following:

“ * * * and shall comprehend and include all societies and associations of any sort operating an insurance business and paying such benefits where funds are provided by assessments * *

The Society, although chartered as a non-profit corporation calling its assessments “donations”, is engaging in the business of insurance without a Certificate of Authority issued by the State Board of Insurance.

The case is very similar to Farmer v. State, 69 Tex. 561, 7 S.W. 220, where the court allowed the State to forfeit corporate franchises of the “Masonic Mutual Benevolent Association of Texas” because it was acting as an insurance company without having incorporated in accordance with the insurance laws of the State. The court spoke as follows:

“ * * * The benefits received are not gratuitous. They are due to the member on account of the money he pays into the society. It takes the risk of his continued existence and good health. If it be benevolent to pay one money under such circumstances, then every mutual life insurance company is acting in a benevolent manner toward the family of an insured member when it pays the policy it had issued thereon for a moneyed consideration. It matters not what name the association may assume. The law looks to the real objects of the body, and not to the name indicative of benevolence which it may have assumed.”

The court in Farmer defined an insurance contract as follows:

“It is a contract by which one party, for a consideration, promises to'make a certain payment of money upon the death of the other; and it is well settled that whatever may be the terms of the payment of the consideration by the assured, or the mode of estimating or securing payment of the insurance money, it is still a contract of insurance, no matter by what name it may be called.”

See also American National Insurance Co. v. Brawner, Tex.Civ.App., 93 S.W.2d 450, error dism.

In Article 12.02 Texas Insurance Code we find the following:

“Any person or persons desiring to organize a local mutual aid association to be operated upon the assessment as needed or similar plan or a burial company, association or society as defined in Article 14.37, Chapter 14, of this code, shall be permitted to do so upon the terms and conditions hereinafter set forth and by complying with the provisions of this chapter. No person, firm or corporation shall hereafter operate in this State any sort of a local mutual aid society or association paying a death benefit or other benefits and providing its funds by assessments as needed, except under the provisions hereof, or under other specific provisions of the laws of this State.”

This Court held that the Legislature was within its authority to regulate Local Mutual Aid Associations in Phillips et al. v. Daniel et al., Tex.Civ.App., 94 S.W.2d 1193, writ refused.

Appellee maintains that it is a “charitable organization”, however, it has in no way pointed out to this Court how it can accommodate itself to the provisions of the code for charitable or fraternal societies. Upon reference to these provisions (Art. 10.38; 10.01 et seq.), we find that they are not applicable here. The mere fact that appellee has made donations to certain cemeteries or churches found by the liquidator to be in the neighborhood of $300 will not in itself qualify it as a charitable organization. Nor are we impressed by the fact that neither a physical examination nor a statement regarding health is required. Such requirements are merely contractual and the fact that they are not present in this contract is of no significance.

Appellee Society maintains that the rule is well established in Texas that the granting or refusing of a temporary injunction is within the sound discretion of the trial court, and that the court’s action will not be disturbed on appeal unless it clearly appears from the record that there' has been an abuse of discretion. This prop-' osition is sound, however, the .proposition is equally sound that if the facts are undisputed and only questions of law-are, pré-..' sented, it is an abuse of the trial court’s-discretion to fail properly to apply the law to the facts. See 31 Tex.Jur.2d Sec. 224,. page 349 and the cases cited in note 1.

We reverse the judgment of the trial-court and judgment is here rendered that the temporary injunction prayed for by the State be issued and that the temporary receivership be reinstated.

Reversed and rendered.


text:
    CITY OF LUBBOCK, Appellant, v. CEMENT & SUPPLY COMPANY, Appellee.
    No. 7410.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 16, 1964.
    Rehearing Denied Dec. 14, 1964.

      Fred O. Senter, Jr., City Atty., Don Reed and Bob D. Slough, Asst. City Attys., Lubbock, for appellant.
    Key, Carr & Clark, Lubbock, for appel-lee.
   NORTHCUTT, Justice.

This suit was instituted by Cement & Supply Company, hereinafter referred to as appellee, against the City of Lubbock, hereinafter referred to as appellant, contending appellant was negligent in failing to refill a waterline ditch in a proper and prudent manner and in failing to place warning signs or devices at the ditch after it was filled.

Mr. Hudson, appellee’s employee, was driving a crane carrier truck with a Rex Mixer attached and loaded with concrete down Guava Avenue, a street within the corporate limits of the City of Lubbock. The City of Lubbock had laid a waterline west of the paved part of Guava Avenue and had refilled the waterline ditch. The truck that was being driven by Hudson slipped off the pavement onto the dirt shoulder and sank into the waterline ditch which had been dug and refilled by the City of Lubbock after the waterline had been installed. The cement truck struck the ditch with its right front wheel which sank, then ran along the ditch with the front wheel buried until the right rear wheel sank into the ditch and then traveled two or three feet before stopping. The truck was tilted to the right so as to throw the crane mixer filled with concrete off the truck frame causing damage to the truck frame, mixer and other portions of the equipment. Appellee brought this action against the appellant to recover its damages for the repair of the truck and mixer; the cost of wrecker service; loss of the concrete inside the mixer; and for other alleged damages.

The case was submitted to the jury upon seventeen special issues. In answer to the first issue the jury found that appellant-failed to refill the ditch in question as an ordinary prudent man would have done under the same or similar circumstances and found in answer to special issue two ■ that such failure was a proximate cause of the accident in question. In answer to is-. sue three the jury found that appellant was negligent in failing to provide a barricade, flare, warning sign, or other warning devices to warn the traveling public including the driver of appellant’s truck of the exist- ■ ence of the filled ditch and in answer to issue four that such negligence was a proximate cause of the accident in question. The remaining issues are not involved in any manner in this appeal. Judgment was granted in favor of appellant for its damages as found by the jury in the sum of $1,315.30. Appellant filed its motion for judgment non obstante which was overruled. Appellant then filed its motion for a new trial which motion was overruled. From that judgment appellant perfected this appeal.

This appeal is presented upon four points of error. The real question to he determined as to the liability of appellant was if it was negligent in refilling the ditch as it did and that such negligence was a proximate cause of the accident in question. Appellant’s first point is that there was no evidence that any acts or omissions of negligence were committed by any employee of the appellant that constituted a proximate cause of the accident in question. Appellant’s second point is that there was no evidence offered to show that a need for any signs or warning devices were required or that appellant was under a duty to place such warning sign or device at such point on the street. The question to be determined is whether there is any evidence of probative force to sustain the finding of the jury.

It is stated in the case of Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W. 2d 359, as follows:

"The judgment of the Court of Civil Appeals in favor of Continental must be reversed if there is in the record before us evidence of probative value which, with the reasonable inferences therefrom, will support any one of the findings of proximate cause. Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497, 498. Moreover, we must approach a determination of the question in the light of our former admonition regarding questions of ‘no evidence’ that ‘Appellate courts are. without' authority to set aside jury verdict's, particularly on questions of proximate cause in damage suits, upon conflicting facts — the undisputed facts must be ample and clear, and the circumstances most exceptional to justify such action.’ Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982, 983.
******
“The boundaries of our duty are well established by decisions of this Court. We may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury’findings, and we must disregard all evidence which would lead to a contrary result. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698; Ford v. Panhandle & S. F. Ry. Co., 151 Tex. 538, 252 S.W. 2d 561, 562.”

It was stipulated by the parties that Mr. Hickerson was the Director of, Public Works for appellant; that Guava Avenue was a street within the city limits of Lubbock under the control and supervision of appellant, acting through Mr. Hickerson; that Guava Avenue was a paved street running north and south with cement curbing and guttering on the east side of the street but unpaved shoulder on the west .side of the street; that Mr. Fair was an employee of appellant on all. dates'material1 to. this suit;, that Mr. Hudson was an. employee of ¡ap.-pellee and acting within,the course of his-employment at the time of the accident and that appellee was the owner of the crane carrier at the time of the accident..

The undisputed evidence' shows the accident happened on the- west edge or right-hand side of Guava Avenue,' á paved street running north and. south with an unpaved shoulder on the west side of such avenue which sloped to a slight:bar ditch; that John Hickerson was1 the Director of Public Works for the City of Lubbock and in charge of all construction, maintenance and repair of the streets; that Mr. Hudson, an employee of appellee, was driving the crane carrier with the Rex Mixer attached at the time and place of the- accident. Mr. Hudson testified that he was driving on the right edge of the pavement and' that the right front wheel of the truck slipped off the pavement and slipped into the trench that had been covered up and that the truck went far enough into the trench that the rear wheel also went into the trench with the weight shifting to the right and the mixer was torn loose from the truck. The trench was five feet deep• and about thirty inches wide. Hudson further testified that the trench was against the pavement. and he could see where the ditch digging machine hit the gravel and asphalt. Hudson further testified there was nothing to indicate a filled up trench and that the surface of the shoulder gave no indication of such a trench but looked firm and substantial. Wade Fair, employee of appellant whose duty was to fill in the trench, testified he did fill in the trench but might not have packed it. The evidence shows the manner used by the City in filling trenches and packing so as to make the same safe for traveling over. The trench after being filled up was soft and would give under the weight of a man weighing 150 pounds. Fair also testified that when he filled up the trench in question on the shoulder, he knew that the shoulder was put there for traffic. There is much evidence showing the appellant had dug the trench in question and had filled it in and left it under such circumstances as to justify the jury in holding appellant negligent and such negligence was a proximate cause of the accident in question. Appellant’s first and second points of error are overruled. Houston Natural Gas Corporation v. Pearce, Tex.Civ.App., 311 S.W.2d 899 (N.R.E.); Houston Belt & Terminal Ry. Co. v. Scheppelman, Tex.Com.App., 235 S.W. 206.

By appellant’s third point it is contended the court erred in refusing to give appellant’s requested special issue inquiring whether the City of Lubbock had any actual notice of any defect, if any, in the street at the time and place. It is undisputed that the City of Lubbock issued its working order directing the construction of the waterline in question and all the work was done by the City’s employees and the City will be held to have notice. Willis v. City of San Antonio, Tex.Com.App., 280 S.W. 569; City of Grandview v. Ingle, Tex.Civ.App., 90 S.W.2d 855; City of Wichita Falls v. Williams, Tex.Civ.App., 342 S.W.2d 588. Appellant’s third point of error is overruled.

By appellant’s fourth point of error it is contended the court erred in rendering judgment for the appellee for the. reason that the verdict was not supported by any evidence that the appellant was guilty of any act or omission of negligence with respect to the ditch in question. In considering and weighing all evidence in this case, we think, from what we have said above as to the evidence, it was sufficient to sustain the verdict of the jury. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Appellant’s fourth point of error is overruled.

Judgment of the trial court is affirmed.

CHAPMAN, J., not participating.


author: DUNAGAN, Chief Justice.

text:
    Robert E. ABBOTT, Appellant, v. EARL HAYES CHEVROLET COMPANY, a Corp., Appellee.
    No. 104.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 3, 1964.

      James H. Martin, Dallas, for appellant.
    Charles W. Mohundro, June R. Welch, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal by appellant, Robert E. Abbott, from a judgment rendered in the trial court upon a jury verdict for the ap-pellee, Earl Hayes Chevrolet Company. This suit was occasioned by the appellant’s failure to perform his conditional sales contract with the appellee, necessitating the sale of the mortgaged property which ap-pellee alleges resulted in loss to him. The appellant became in default of the contract by his failure to make the monthly installment payments as therein provided. After the appellant was in default on the contract, he delivered the car into the possession of the appellee. Thereafter, ap-pellee sold the automobile. Appellee instituted suit against appellant for the difference in what the repossessed car brought and the amount owed against it at the time it was returned to it.

The case was submitted to a jury upon special issues and both appellant and ap-pellee made motion for judgment upon the verdict. Judgment was rendered for ap-pellee, Earl Hayes Chevrolet Company, and appellant duly gave notice of appeal from said judgment.

The appellant alleged in his pleadings in the trial court that upon his return of the car to the appellee, that he delivered same to Melvin O. Johnson, agent and employee of the appellee, and that the said Melvin O. Johnson agreed to accept the automobile in cancellation of and in full payment of the indebtedness due under the conditional sales contract.

The jury found that the said Melvin O. Johnson did not have the authority to accept the automobile in cancellation of and in full payment of the indebtedness due and owing under the conditional sales contract.

Appellant did not file a Motion for New Trial.

Rule 324, Texas Rules of Civil Procedure, requires, with certain exceptions, that a Motion for New Trial be filed as a prerequisite to the appeal of all cases tried before juries. One of the exceptions stated in the rule is that an assignment in a Motion for New Trial shall not be necessary as a prerequisite to the right to complain of the action of the court “in rendering or refusing to render judgment non obstante veredicto, or in overruling a motion for judgment for appellant on the verdict.” Barron v. James, 145 Tex. 283, 198 S.W.2d 256; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887; Jemerson v. Houston-American Finance Corporation, 351 S.W.2d 574, Tex.Civ.App., 1961, (no writ hist.).

A party whose Motion for Judgment on verdict of jury is denied may forego the filing of a Motion for New Trial and predicate his Points of Error on appeal on the matters included in such motion. If he follows that course, he may complain on appeal only of the denial of the Motion for Judgment. Wagner v. Foster, supra; Barron v. James, supra; Pickett v. Biggs, 307 S.W.2d 817, Tex.Civ.App., 1957, (writ dism.); Fenley v. Ogletree, 277 S.W.2d 135, Tex.Civ.App., 1955, (writ ref., n. r. e.); Tindall v. Tacconelly, 328 S.W.2d 909, Tex.Civ.App., 1959, (writ ref., n. r. e.); City of San Antonio v. Gonzales, 304 S.W.2d 429, Tex.Civ.App., 1957, (writ ref., n. r. e.); Miller v. Miller, 274 S.W.2d 762, Tex.Civ.App., 1954, (writ ref.) ; and Appellate Procedure in Texas, Section 8.4 [3].

The only ground alleged in appellant’s Motion for Judgment is “that the jury verdict together with the undisputed evidence entitled him to a judgment; that the plaintiff take nothing by reason of its said suit.”

Therefore, the only question presented to this court is whether the trial court committed error in refusing to grant appellant’s Motion for Judgment “on the verdict.” Appellant Abbott based his defense in part on the theory that Johnson had authority from Earl Hayes Chevrolet Company to accept the automobile and cancel the indebtedness due appellee under the conditional sales contract. Under the record before this court, the burden was on appellant Abbott to prove Johnson’s authority by a preponderance of the evidence. The law does not presume agency and he who alleges it has the burden of proving it. Buchoz v. Klein, 143 Tex. 284, 184 S.W.2d 271. The authority of such agent to bind the. company- must appear. The authority of an agent to bind his principal must be shown in order to bind the principal is an elementary proposition. Rhodes v. Smith, 230 S.W. 227, Tex.Civ.App., (no writ hist.), and Winter v. Morgan & Williams, 256 S.W. 342, Tex.Civ.App., (no writ hist.).

The jury having found that Johnson did not have the authority to accept the automobile from Abbott in cancellation of and in full payment of the indebtedness due appellee under the conditional sales contract, the appellant was not entitled to judgment “on the verdict.” Since appellant was not entitled to judgment “on the verdict” because of the lack of such authority on the part of Johnson, the trial court correctly rendered judgment for the appellee.

Appellant alleged that Melvin O. Johnson was acting as manager of the used car lot for the appellee. The undisputed evidence shows that Johnson was the used car manager for the appellee. The appellant did not allege nor prove that Johnson had the authority to accept the car in full payment of the indebtedness due to the appellee under the conditional sales contract. However, the court submitted the issue without objection by the appellant and the jury answered the issue against him.

The appellant did not file any objection to the court’s charge; or request the submission of any issue; nor did he file a Motion for Instructed Verdict.

We do not think the errors complained of by appellant in his Points 2 and 3 were preserved for appellate review. As above stated, no Motion for New Trial was filed by the appellant and these matters were not mentioned in his Motion for Judgment. They are not properly before us. Rule 324, Texas Rules of Civil Procedure; Wagner v. Foster, supra; and Lovell v. Stanford, 378 S.W.2d 399, Tex.Civ.App., 1964, (writ granted on other points); and Miller v. Miller, supra.

If we be in error in holding that appellant’s Points 2 and 3 are not before the court for review, we are, nevertheless, of the opinion that the points do not present any reversible error under the record in this case.

The judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    Mary Jim GRAHAM et vir, Appellants, v. FED-X, INC., et al., Appellees.
    No. 16578.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 20, 1964.
    Rehearing Denied Dec. 18, 1964.
    Joe E. Shaddock, Wichita Falls, for appellants.
    Fillmore, Schaeffer & Fillmore, and Roy-Schaeffer, Wichita Falls, for appellees.
   RENFRO, Justice.

Suit was brought by Mary Jim Graham and husband against Fed-X, Inc., and Dr. Pepper Bottling Co., Inc., for damages for injuries sustained by Mrs. Graham when-, injured by a broken bottle in the Fed-X grocery store.

For convenience we refer to Mrs. Graham as plaintiff.

According to plaintiff’s petition she was shopping in Fed-X store when a carton of soft drinks fell from a stack across the aisle- and behind plaintiff, and slivers of glass cut her leg.

She alleged that Fed-X and, alternatively, Dr. Pepper Bottling Company were guilty of the following acts of negligence in that they failed: (a) to keep cartons properly stacked; (b) to provide racks or firm foundation which would not rock or collapse ; (c) to stack cartons far enough away from the counter on the opposite aisle; (d) to stack cartons so they would not fall from occasional jostling; (e) to stack so patrons would have to take cartons off top rather than lower levels. She alleged that they stacked the cartons so high as to constitute a menace to customer traffic. Plaintiff also invoked res ipsa loquitur.

Verdict was instructed for defendants.

It is not shown by the statement of facts that a Dr. Pepper bottle was involved, or that Dr. Pepper Company committed any act of negligence, or that it was in control of the bottle “pop” racks; hence, instructed verdict for said Company was undoubtedly proper.

Therefore we will hereinafter refer to Fed-X as defendant.

Plaintiff contends there was some evidence of negligence on the part of defendant and the court erred in refusing to submit the case to the jury.

Plaintiff testified the store is a big store; it is Y2 block from the grocery department to the pharmacy department. She went down an aisle to the ice cream counter. While leaning over the ice cream counter “the bottles fell behind me” and a sliver of glass entered her leg. The bottles were stacked “one carton on top of each other, with no layer of protection in between them so far as I could tell. * * * it looked like just bottles stacked on a shelf.” She did not notice what they looked like, and never did go back to look. As for the reason the bottles fell over, she answered, “I don’t know. So far as I know, there was no one near them; they just fell.” It is possible they were jostled from the “other side of the stack.” She did not know what brand of bottle struck her. When she looked around after the bottle fell she saw a woman and a little boy two or three feet from the bottle stack.

Witness Brewer was an employee of the defendant at the time of the accident. He testified the soda pop was kept in a four foot wide aisle, on shelves, and was stacked about four feet high. Pliable plastic material as thick as a piece of paper was used to keep the cartons stable. “The way it was stacked, it was pretty well stable.” Usually the “pop” men kept the racks stacked. All employees in that department were supposed to keep the pop bottles straight, it was no one person’s particular job. Bottles had fallen or been knocked off before, but no one had ever been injured. The “pop” companies put the plastic strips between the levels of the soda pop. Dr. Pepper Company, the Coca-Cola people and one or two other companies used the same racks for display of their bottled “pop”.

Plaintiff concedes that she could not show any specific act of negligence on the part of defendant, but argues that the evidence was such that the jury might have inferred from the circumstances that defendant was negligent in one or more of the pleaded acts of negligence.

In our opinion the evidence merely shows that an accident occurred.

The occurrence of an accident is not of itself evidence of negligence. Davis v. Castile, 257 S.W. 870 (Tex.Com.App., 1924); Phillips v. Citizens’ Nat. Bank, 15 S.W.2d 550 (Tex.Com.App., 1929) ; Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W. 2d 195 (Tex.Com.App., 1937); Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791 (1955).

Negligence is never presumed as a fact, but must be proved by evidence; and the burden of proving it is on the party seeking a recovery of damages by reason of such negligence. Carter v. Simmons, 178 S.W.2d 743 (Waco Civ.App., 1944, no writ hist.); Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954).

The evidence did not show any pleaded act of negligence on the part of defendant.

Nor was the evidence sufficient to invoke res ipsa loquitur.

The doctrine of res ipsa loquitur applies only where the instrumentalities causing the injury are shown to have been wholly in the care of the defendant and not to have been meddled with by the person injured or third persons. 40 Tex.Jur.2d 677, § 148.

It is shown by the evidence that the defendant was a serve-yourself store. Customers had free and easy access to the bottle racks and the aisle on each side of the racks. Several companies used the bottle stacks; and all the “pop” men stacked the racks. Another customer and her son were within two or three feet of the stack when plaintiff looked hack immediately after the bottle fell.

The evidence did not show what caused the bottle to fall.

With so many people having equal access to the bottle racks it can hardly be said the bottles were in the sole and exclusive control of defendant.

It is just as probable that the bottle in question fell as a result of some act of another customer, another bottling company employee, or some other person having business in the store as it is that the bottle fell as a result of some unexplained negligence on the part of defendant.

Since the evidence fails to show that the injury could only have occurred by the negligence of defendant or its employees, agents or servants, it is insufficient to invoke the doctrine of res ipsa loquitur. Texas & Pacific Coal Co. v. Kowsikowsiki, 103 Tex. 173, 125 S.W. 3 (1910); Hodges Tire Co. v. Kemp, 334 S.W.2d 627 (Fort Worth Civ. App., 1960, no writ hist.); Longoria v. Violet Gin Co., 309 S.W.2d 484 (San Antonio Civ.App., 1958, ref., n. r. e.); Alley v. Texas Electric Service Co., 134 S.W.2d 762 (Eastland Civ.App., 1939, no writ hist.); Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659 (Tex.Com.App., 1935).

There being no evidence to support any specific acts of negligence, and plaintiff having failed to establish liability under the doctrine of res ipsa loquitur, the trial court did not err in instructing a verdict for defendant

Judgment affirmed.


author: WILSON, Justice.

text:
    HERRIN TRANSPORTATION COMPANY et al., Appellants, v. Steve Joe GREGORY et al., Appellees.
    No. 4280.
    Court of Civil Appeals of Texas. Waco.
    Oct. 15, 1964.
    Rehearing Denied Dec. 10, 1964.

      Butler, Binion, Rice & Cook, John L. McConn, Jr., Houston, for appellants.
    Patterson, McDaniel & Moore, Louis M. Moore, Houston, for appellees.
   WILSON, Justice.

In a personal injury case arising out of a truck collision, judgment was rendered for plaintiffs ón a jury verdict. We affirm.

Defendants say the jury findings to the effect that their truck was driven on its wrong side of the highway, and plaintiffs’ truck was not, are without support in the evidence, and are contrary to the great weight and preponderance of the evidence. Although defendants list evidence and circumstances which would have supported a contrary verdict, the evidence, in our opinion, is adequate to support each of these findings and their correlatives.

Complaint is made that the court excluded the prior consistent statement of defendants’ witness, a police officer who investigated the collision. On direct examination, after testifying to a detailed description of the highway and vehicles after the collision, and expressing an opinion as to the point of impact favorable to defendants, this witness testified that he visited the injured plaintiff in his hospital room July 8th, the morning after the accident. In response to the officer’s question, “What happened ?”, plaintiff then answered, he testified, “I hit a hole or bump in the road and went over there and run into him.”

On cross-examination the officer testified that plaintiff did not tell him he was on the wrong side of the road, and did not tell him he “ran into the other vehicle.” It was also developed that at the time this witness testified he talked to plaintiff, the day following the collision, the hospital records showed the latter was “sleeping soundly.” Plaintiffs’ counsel then read from testimony of the officer given nine months after the accident in a previous trial to the effect that the conversation with plaintiff occurred on the 7th, the morning of the accident. The officer insisted, “I talked to him on the 8th.” His subsequent deposition testimony given 14 months after the collision to the effect that the conversation took place on the 8th was also read. The witness testified he did not remember whether he had talked to defendants’ representatives before the previous trial, but he had talked to the representatives before his deposition was taken and before he “changed it to the 8th.”

On redirect, objection was sustained to defendants’ question to this witness: “When you talked to him, was the sense of his conversation that he had gone over on the wrong side of the road?” There is no showing as to what the answer would have been if admitted. In the ensuing argument defendants’ counsel told the court he knew from conversations with the witness and his prior testimony that he “believes the sense of what Gregory told him was that Gregory got over on the wrong side of the road.” The court said, “You have got the right to go back over it and ask him what he actually said and what transpired in the room,” and “to go back into the entire conversation again.” Defendants’ counsel by leading question again asked what plaintiff had “indicated” in the conversation, and objection was again sustained. Again there is no showing as to what the proffered answer would have been.

Although the record does not otherwise reflect the fact, and although there is no showing of either a tender or exclusion, it appears from a formal bill of exception that defendant “was seeking to introduce testimony by” the officer given in the previous trial in a Louisiana city court, transcript of which read in part: “I asked him, ■“My goodness, what happened over there? It look like you were way over on the other man’s road.’ He says, ‘Yes, I hit either a hole or a bump in the road and I went on the other side, that’s all.’ ”

We are thus called on to decide a confusing point under a confused record. If it may be said the record was perfected, the transcript of the prior testimony was not admissible in our opinion. Defendants say it was admissible as a prior consistent statement under the “recent fabrication” doctrine because plaintiffs’ counsel “had created the impression before the jury that he had impeached” the witness “on the latter’s testimony to the effect that Gregory had admitted to him going on the wrong side of the road, and thereby causing the accident.”

The rules applicable to a recent fabrication situation are given in Aetna Ins. Co. v. Eastman, 95 Tex. 34, 64 S.W. 863 and Skillern & Sons, Inc. v. Rosen, Tex.Sup., 359 S.W.2d 298. Under these decisions the evidence was not admissible because (1) Although there was impeaching evidence as to when the conversation took place, there was no attempt to impeach or contradict the witness as to the substance of the conversation. He simply modified or altered his own testimony at the present trial on cross-examination. (2) In the trial court defendants argued that the transcribed prior testimony of the witness was inconsistent — not consistent — with that at the trial. From it, counsel urged, he knew the witness believed the “sense of what Gregory told him was that Gregory got over on the wrong side of the road.” (3) The prior testimony is not necessarily consistent with the testimony on the trial. (4) “The trial court has a wide discretion in applying the rule,” and in determining whether a motive for fabrication existed, if there had been a showing of fabrication. (5) There is nothing to show motive to fabricate, or interest in fabrication. (6) The present testimony with reference to the substance of the conversation was not assailed on the ground the witness had fabricated it. (7) The evidence was subject to the hearsay rule, and under the cited cases, “the grounds which take it out of the rule ought clearly to appear.”

Appellants say the verdict is excessive. Appellees say the trial court erred in requiring remittiturs. These contentions are overruled, as are all points.

Affirmed.


author: SHARPE, Justice.

text:
    H. E. BUTT GROCERY COMPANY, Appellant, v. B. W. KIRKWOOD et ux., Appellees.
    No. 82.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 3, 1964.
    W. N. Woolsey of Lewright, Dyer & Redford, Corpus Christi, for appellant.
    Robert J. Seerden, Victoria, for ap-pellees.
   SHARPE, Justice.

This is an appeal from a judgment overruling appellant’s plea of privilege. The parties will sometimes be referred to as in the trial court, i. e., Mrs. Ora Kirkwood, joined by her husband, as plaintiff, and H. E. Butt Grocery Company, a corporation, as defendant.

This is a “slip and fall” case in which plaintiff seeks damages for injuries allegedly sustained on January 17, 1963, when, she stepped in a puddle of water on the floor and fell in one of defendant’s grocery-stores located in Victoria, Texas. Plaintiff relies upon exceptions 9a and 23 of Article 1995, Vernon’s Ann.Tex.St., to maintain venue in Victoria County, Texas. Appellant, by two points of error, contends in substance that plaintiff failed to prove a cause of action required by each of such-exceptions, consisting of the factual propositions which established the plaintiff’s primary right, the defendant’s duty (often called the genesis of the right), and the defendant’s act or omission which violates such right. Appellant particularly says, there is no breach of duty established, against it here because the evidence did not show by a preponderance thereof that (1) appellant put water on the floor, or (2) appellant knew, prior to the accident in-question, that the water was on the floor, or (3) that the water had been upon the floor for such period of time that appellant, acting as a reasonably prudent person in the exercise of ordinary care, should have discovered it.

We agree with appellant that there was a failure to establish a cause of action for venue purposes and that the judgment should be reversed for the reasons hereafter given.

At the hearing on the plea of privilege-only two witnesses testified, Mr. Wesley Lott, manager of defendant’s store, and Mrs. Ora Kirkwood, plaintiff. Mr. Lott did not witness the accident but came on the scene upon being advised of it. He-testified that vegetables to be sold in the store are washed in the morning and are-taken to and placed in the produce section where the accident occurred; that this is the only time that such vegetables are-washed and that thereafter during the day they are moistened on the racks rather than elsewhere. His testimony varied as to whether the vegetables were dripping water when they were put out during the day. Lott further testified as to his duties and those of other supervisory personnel located and living in Victoria County, Texas. He was not asked any questions nor did he give testimony as to how or in what way the puddle of water could have accumulated at the place where the plaintiff fell.

Mrs. Ora Kirkwood testified that she had been shopping in the store for about 45 to 50 minutes in the late afternoon on the occasion in question prior to the accident; that as she started to leave she remembered that she had forgotten some greens, left her cart, and began walking toward where the greens were located when her feet went out from under her; she then determined that she had slipped in a puddle of water which was about 18 inches in diameter. Mrs. Kirkwood further testified that if the floor had been a darker color it would have been easier to see if it was wet; that no one sacked greens or vegetables or mopped the floor prior to the fall; that there were no mats or anything of that sort on the floor; that she did not see the water before she fell. On cross-examination Mrs. Kirkwood answered “Yes” to the question “ — I am asking you now if it isn’t true to just summarize what you have already told me that you don’t know how the water got there, you don’t know how long it had been there and you don’t know of any employees of H. E. B. that knew it was there until you slipped in it, that is true, isn’t it?”

There was no evidence that appellant or its employees put the water on the floor or that they knew the water was on the floor. Therefore, the only question about which there might be any controversy is whether the water had been upon the floor for such period of time that appellant, or its employees, acting as reasonably prudent persons in the exercise of ordinary care, should have discovered it. As to this issue there is no direct evidence and the circumstantial evidence to establish it in the plaintiff’s favor is lacking. The fact that the vegetables were washed in the morning before being placed on the produce section and they are moistened during the day at such location is not enough to establish that the puddle of water in which plaintiff slipped either came from the vegetables or got there through some fault of defendant. There was no showing as to the construction of the counter or rack on which the vegetables were kept or how the water from them could have leaked out to the place where the puddle was formed; nor was there a showing as to how much water was used in moistening the vegetables, the frequency with which they were moistened; nor that the water or liquid in question was not placed there by other persons in the course of handling the vegetables or otherwise; neither was there any showing as to the physical lay-out of the produce section and the distances involved. In short, there is no evidence to show when or how the water got on the floor or how long it had been there. It might have been put there by third persons only a few moments before the plaintiff slipped and fell. In this situation we believe that the statement from the case of Smith v. Safeway Stores, Inc., 167 S.W. 2d 1044-1046, (Tex.Civ.App., 1943, n. w. h.), correctly summarizes the applicable rule as follows:

“We think the settled rule in such cases as the one before us is that a storekeeper is not the insurer of the safety of his invited customers but that he owes to them the duty to use ordinary care to keep and maintain his premises in a reasonably safe condition for their use. The dangerous condition must have been known to the one charged with negligence, or the condition must have existed for such length of time or under such conditions that he would or should have discovered it by the exercise of reasonable diligence. Worth Food Markets v. Le Baume, Tex.Civ.App., 112 S.W.2d 1089, writ dismissed; Montfort v. West Texas Hotel Co., Tex.Civ.App., 117 S.W.2d 811, writ refused; Lone Star Gas Co. v. Ballard, Tex.Civ.App., 138 S.W.2d 633, writ refused; F. W. Woolworth Co. v. Goldston, Tex.Civ.App., 155 S.W.2d 830; Hollingsworth v. American Trading Co. Inc., Tex.Civ.App., 156 S.W. 2d 290; McCrory’s Stores Corp. v. Murphy, Tex.Civ.App., 164 S.W.2d 735, writ refused, want of merit; 45 C.J. 837.”

Appellee relies strongly upon Ice Service Company v. Scruggs, 284 S.W.2d 185 (Tex.Civ.App., 1955, wr. ref. n. r. e.). In that case the court held that a proper inference could be drawn that the puddle of water in which plaintiff (who was the manager of the business where the accident occurred) fell, was placed there by the employee of the Ice Company, where pieces of ice were present in nearby puddles of water and it was shown that the employee of the said Ice Company was the only person who had carried ice in the vicinity of the location where the fall took place. This is a considerably stronger showing .than was made here where a similar inference as to the cause of the puddle cannot properly he made. Extended discussion of appellee’s contention as to the color of the floor in the instant case is not necessary in the light of the recent decision in Parker Food Stores, Inc. v. Pierce, 374 S.W.2d 699 (Tex.Civ.App., 1964, wr. ref. n. r. e.).

Plaintiff has not met the burden of proving a cause of action for venue purposes in this case. In addition to the cases heretofore cited, as authority for such holding see the following: Safeway Stores of Texas v. Miller, 110 S.W.2d 927 (Tex.Civ.App.1937, error dism.) ; F. W. Woolworth Co. v. Goldston, 155 S.W.2d 830 (Tex.Civ.App.1941, ref. w. o m.); Rogers v. Collier, 223 S.W.2d 560 (Tex.Civ.App. error ref.); Springall v. Fredericksburg Hospital and Clinic, 225 S.W.2d 232 (Tex.Civ.App.1949, n. w. h.); Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413 (Tex.Civ.App.1952, n. w. h.); Beard v. Henke & Pilot, Inc., 314 S.W.2d 844 (Tex.Civ.App.1958, n. w. h.); Dill v. Holt’s Sporting Goods Store, 323 S.W.2d 644 (Tex.Civ.App.1959, n. w. h.); Great Atlantic & Pacific Tea Co. v. Giles, 354 S.W.2d 410 (Tex.Civ.App.1962, ref. n. r. e.).

It is apparent that the case has not been’ fully developed and a remand for new-trial on the plea of privilege is proper. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948).

Reversed and remanded.


author: HUGHES, Justice. ARCHER, Chief Justice

text:
    REPUBLIC ACCEPTANCE CORPORATION, Appellant, v. Robert R. THOMPSON, Jr., Appellee.
    No. 11246.
    Court of Civil Appeals of Texas. Austin.
    Nov. 25, 1964.
    Rehearing Denied Dec. 16, 1964.

      Leonard L. Franklin, Isaac D. White, Austin, for appellant.
    Mauzy & Mauzy, Houston, for appellee.
   HUGHES, Justice.

The note upon which this suit was based, copy of which is attached to plaintiff’s petition, is dated, “Houston, Texas, November 28, 1962,” and is payable “In Austin.”

The Supreme Court in Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, answered the following certified question in the affirmative:

“Since Exhibit B shows on its face that it was executed in Texas, are the words ‘All bills payable in Dallas’ sufficient to designate Dallas as a definite place in Dallas County, Texas, and fix the venue of this suit in Dallas County, within the terms of Subdivision 5 of Article 1995 ?”

In its opinion the Court stated:

“Therefore, we have an instrument in writing signed by the defendant Burtis whereby he agrees to pay for all goods sold to him on credit by Butler Bros, in Dallas. The courts of Texas judicially know that Dallas is a county in Texas and also that it is a city which is the county seat of Dallas County, Texas. This is ‘naming a particular county, or a definite place therein’ by a written instrument as is required by subdivision 5, art. 1995, Revised Civil Statutes 1925, as amended.”

Under this authority it is our opinion that venue of this suit, as disclosed by the note, is in Travis County, Austin being the County seat of such County, a fact which we judicially know.

There is no statement of facts, but in our opinion none is required in order to show error in the ruling of the trial court.

Rule 93, Texas Rules Civil Procedure (H) requires denial under oath of the execution of any instrument in writing upon which a pleading is founded, if execution is to be denied, the penalty of failing to so deny being that “the instrument shall be received in evidence as fully proved.”

The execution of the note here declared upon was not denied under oath, the filing of a formal plea of privilege not being sufficient for this purpose. Venue, Sec. 146, 59 Tex.Jur.2d and cases there cited.

It is also firmly established that where venue facts can only be put in issue by verified pleading and defendant does not interpose such plea, plaintiff is not required to prove such facts; they are taken as admitted. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758.

For further statement of the nature and result of this case reference is made to the dissenting opinion of Chief Justice Archer.

We reverse the order sustaining appel-lee’s plea of privilege and render judgment overruling it.

Reversed and rendered, overruling plea of privilege.

ARCHER, Chief Justice

(dissenting).

This is an appeal from a judgment of the District Court sustaining appellee’s plea of privilege.

The suit was filed by appellant on a promissory note for $993.15 dated November 28, 1962, executed by appellee and payable in monthly installments beginning January 5, 1963 and “payable to the order of Family Freeze Dallas, Ft. Worth, Inc. in Austin.”

Plaintiff alleged that defendant had made only six payments on the note and that it had exercised its option to mature all installments then unpaid and sought judgment for $827.67 with ten per cent interest from July 5, 1963, for costs and for fifteen per cent additional as attorney’s fees.

Defendant filed a plea of privilege to be sued in Harris County, Texas, his legal residence, alleging that no exception to exclusive venue in the County of his residence exists, and prayed that the cause be transferred to the District Court of Harris County, Texas, and subject to the plea, filed a general denial.

Plaintiff filed a controverting plea on the grounds “that pursuant to the provisions of Subdivision 5 of Article 1995 (Vernon’s Ann.Civ.St.), defendant herein has contracted in writing to perform his obligation in a definite place in a particular county, namely Austin in Travis County. In addition, defendant has made six payments on such obligation in such county.”

A hearing was had and defendant’s plea of privilege was sustained and the suit ordered transferred to the District Court of Harris County, Texas, on April 14, 1964, to which plaintiff duly excepted and gave notice of appeal.

The appeal is founded on two points of error, and are that the court erred in sustaining the plea because plaintiff was entitled to sue in Travis County by virtue of Subdivision 5, Article 1995, V.A.C.S. and because the parties had by their actions demonstrated that the place of payment specified in the contract was a definite place in a particular county.

There is no allegation in the petition that the payments were made in Travis County,. Texas, or proof of such.

The note is payable: “ * * * I, we, or either of us promise to pay to the order of Family Freeze Dallas, Ft. Worth, Inc. in: Austin the sum of * * * ”

I do not believe that on its face the noté-is definite as to where payment was to be made and venue cannot be fixed by implication. Burrus Mills, Inc. v. Hein, Tex.Civ.App., 378 S.W.2d 85, dism.

Exceptions to Article 1995 are strictly construed and in order to deprive the maker of a note of the right to be sued in the county of his domicile the place of payment must be expressly written into- the note. Tatum v. Home Improvement Loan Co., Tex.Civ.App., 300 S.W.2d 215.

There is no statement of facts on file in-this case and in the absence of such it is presumed that such, facts as were introduced were necessary to support the judgment and that appellant failed to discharge its burden. Republic Acceptance Corp. v. Nichols, Tex.Civ.App., 377 S.W.2d 775, err. dism.

The foregoing was written as the opinion of the Court but was not acceptable by the Associate Justices who have expressed their views in an opinion which becomes the judgment of this Court, and I respectfully dissent, and my views are as in my opinion and with the additional statement that in no place in the record is there a showing that the note was payable in Texas.

It is my opinion that the judgment of the trial court should be affirmed.


author: DENTON, Chief Justice.

text:
    C. E. CHRISTY et al., Appellants, v. Cleve HAMILTON et al., Appellees.
    No. 7413.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 30, 1964.
    Guy Hardin, Shamrock, for appellants.
    No attorney for appellees.
   DENTON, Chief Justice.

This suit was brought by Cleve Hamilton, Etta Hamilton, and Pierce Hamilton against C. E. Christy and Mills Oil Company for alleged damages to appellees’ land and cattle arising from oil drilling operations on said property. Appellees were the owners of the surface, and appellants were lessees under an oil and gas lease of said premises. A jury verdict resulted in a judgment for appellees in the amount of $1,185.00. Appellants have perfected this appeal. Appellees represented themselves in the trial court and have not filed a brief in this Court.

Three special issues were submitted to the jury. The jury found the defendants “action — in the operation of the lease on the land in question, caused — damage to the grass lands of the plaintiff”; that such damages amounted to $1,185.00; but failed to answer the issue inquiring if defendants’ lease contract expressly excluded damages to the real estate. The trial court sustained appellants’ exception and motion as to the damages sought for the death of appellees’ cattle, and that portion of the case is not before us on appeal. Material allegations in • appellees’ petition pertaining to the other segment of their cause of action read as follows:

“That the defendants have heretofore during the last year, drilled several oil and gas [wells] upon the above tracts of land, the surface of which belongs to these plaintiffs; and that during the process of drilling, operating and connecting the same to pipeline which croses plaintiffs— said land, the defendants, their agents, servants or employees have conducted such operations, drilling and connecting with the said pipeline across plaintiffs— said property that they have damaged these plaintiffs in the following manner;”
“That the damages to these plaintiffs— grassland over which defendants laid connecting lines from the pipeline to the wells, as well as the driving of the heavy machinery, trucks and numerous vehicles on and across said grassland to the reasonable damage of $50.00 per well of $200.00, plus the damage of $1.00 per rod for the damages due to the laying of 320 rods of pipeline across this land; That the oil and debris were allowed to polute the plaintiffs— fish pond on this property in the sum of $200.00.”

Appellants timely filed special exceptions to these allegations to the effect the petition failed to state a cause of action in that it did not allege any acts of negligence on the part of appellants, and that such allegations were vague, general, and not specific enough to apprise appellants of what appellees intended to prove. The trial court erred in overruling appellants’ special exceptions. It is elementary that a plaintiff’s petition shall contain a statement in plain and concise language of the plaintiff’s cause of action and shall give fair notice of the claim involved. Rule 47, Texas Rules of Civil Procedure. It must also appear from the face of a petition that a primary legal right rests in the plaintiff, that there is a primary legal duty connected with this right resting on the defendant, and that there has been a breach of this duty by the defendant. West v. Citizens State Bank (Tex.Civ.App.), 140 S.W.2d 868 (Dismissed, Judgment Correct); See 45 Tex.Jur.2d, Pleadings, Sections 34, 36, and 37. Appellees’ petition- falls far short of the basic requirements for stating a cause of action. No facts are alleged which show a legal duty resting on appellants; no breach of that duty; and no acts of negligence are alleged. The petition is totally defective and will not sustain a judgment for plaintiffs below. The trial court’s failure to sustain appellants’ special exceptions constitutes reversible error.

In view of our disposition of appellants first two points of error, a determination of the other points is unnecessary. However, it is to be noted the verdict and judgment were in excess of the amount asked for by the plaintiffs after the alleged damages resulting from the death of appellees' cattle was removed from the case. This is a matter that could be corrected by remit-titur, but as the case must be remanded this becomes unnecessary on this appeal. The last point complains of jury misconduct. Under this record this question is a close one, but it is not expected that the method used by the jury will be repeated in another trial of the case.

The judgment of the trial court is reversed and the cause is remanded for another trial.

CHAPMAN, J., not sitting.