text:
    DEALERS TRANSPORT COMPANY, Inc., Appellant, v. BATTERY DISTRIBUTING COMPANY, Inc. and General Dynamics Corporation, Appellees. BATTERY DISTRIBUTING COMPANY, Inc., Appellant, v. GENERAL DYNAMICS CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    June 4, 1965.
    As Modified on Denial of Rehearing May 13, 1966.

      James W. Hendricks, Thomas W. Speck-man, Gavin H. Cochran, Marshall, Cochran, Heyburn & Wells, Louisville, for Dealers Transport Co. Inc.
    Wm. A. Miller, Louisville, for Battery Distributing Co. Inc.
    Fielden Woodward, Robert P. Hobson, Woodward, Hobson & Fulton, Louisville, for General Dynamics Corp.
   DAVIS, Commissioner.

The appellant, Dealers Transport Company, suffered property damage when a fire on its premises caused an explosion of acetylene gas. This action was instituted by Dealers against appellee Battery Distributing Company (the jobber from whom appellant obtained the acetylene tanks in controversy) and against appellee General Dynamics Corporation (the company which had manufactured the acetylene gas and injected it under pressure into the tanks). Hereafter we shall refer to appellant as Dealers, and to the appellees as Battery (jobber) and General (manufacturer). The damage claims were premised alternatively on the theories of negligence and breach of implied warranty.

The trial court granted summary judgment absolving General (the manufacturer) from liability. The case was submitted to a jury with respect to Dealer’s claim against Battery; the jury found for Battery. Appellant presents five assignments of error: (1) The trial court erred in granting summary judgment for General; (2) appellant is entitled to judgment n. o. v. against General; (3) the court erred in submitting contributory negligence of appellant as a defense; (4) the court erred in imposing an inspection duty upon appellant; (5) the court should have granted judgment n. o. v. for appellant against Battery.

There is an appeal by Battery against General; this appeal is properly prosecuted as a precautionary measure, since Battery had cross-claimed against General for indemnity in the event it should be held liable to Dealers. Since the judgment on the verdict granted no relief against Battery the court dismissed Battery’s cross-claim against General. Battery’s appeal seeks reversal of that portion of the judgment in the event it should be determined that Battery is liable to Dealers. We consider and dispose of both appeals herein.

After all evidence was in the trial court sustained Battery’s motion for a directed verdict as to the negligence theory, but submitted the case to the jury on breach of implied warranty of fitness.

In the afternoon of Friday, February 26, 1960, appellee Battery delivered to Dealers five large oxygen tanks, two large acetylene tanks and one small acetylene tank; all of these tanks, filled with pressurized gas, had been obtained from General by Battery. There was no privity of contract between Dealers and General.

The tanks were delivered and set in place by a servant of Battery. For purposes of this opinion we need give attention only to the one small acetylene tank and one large one which stood next to it. These two tanks were put in place along the wall of Dealers’ welding shop, and were positioned about two inches apart. The small tank was at the head of a line of tanks and the large one rested immediately alongside it. The tanks were not moved from their respective positions from the time they were so placed by Battery’s servant until the fire and explosion involved in this case.

At 11:30 p. m. on Monday, February 29, 1960, Dealers’ employee Irvin Bledsoe began his duties; his task required his use of an electric arc welder with which he proposed to weld a reinforcement plate on a trailer. Bledsoe was situated “about twelve to thirteen” feet from the acetylene tanks as he welded. It was nearly midnight when Bledsoe started using the welder. He had continued the welding for about twenty minutes when he found it necessary to go to the back of the room to increase the amperage on the welding machine. In going to make this adjustment Bledsoe passed within one foot of the tanks but observed nothing unusual about them. He did not hear any sound of escaping gas, nor did he detect the odor of acetylene. The witness stated that he likely could not have heard the sound of escaping gas anyway due to the greater volume of noise emanating from the welding machine.

When Bledsoe returned from adjusting the amperage (the exact time he consumed in this is not revealed) he discovered flames approximately six to eight inches high around the bottom of the large acetylene tank. Bledsoe then left the room to notify his foreman of the fire; in a very brief time he and the foreman arrived at the site of the fire; then the flames enveloped the large tank and had obtained height of “about halfway up the building.” Bled-soe said that the small tank was “white hot,” although no flame emanated from it. After a quick appraisal of the situation Bledsoe and Smith, the foreman, decided that they should run from the scene, which they did. Almost immediately the small tank burst; thereupon there was an explosion of the acetylene which had been released from the smaller tank. The consequent property damage was extensive; the parties stipulated that the damages exceeded $15,000.00.

It was shown that it is a prevailing custom to engage in arc welding activities in confined areas containing tanks of acetylene. Bledsoe stated that an asbestos blanket was available, but that it had not been used to protect the acetylene tanks; he Stated that the asbestos blanket was never used for such purposes, but was used when welding was being done on a vehicle equipped with a gasoline or fuel tank. Another witness said the asbestos blanket was used only to protect paint on vehicles on which welding was being performed. Bledsoe said that hot sparks and slag will (and did on the occasion of the fire) fly from fifteen to eighteen feet from the point of welding. However, Bledsoe was quite positive that nothing lay on the floor near the acetylene tanks which could have been the ignition point of the fire.

It was shown in evidence that acetylene tanks (including the tanks involved in this case) are provided with four fusible plugs, as a safety factor. Two plugs are located near the base and two at points higher on the tank. These plugs are so designed as to melt when subjected to heat at 212 degrees Fahrenheit. The structure of the tank is such that it is to be able to withstand much higher temperatures, thus the plugs should permit the gas to escape before the tank will burst because of increased internal pressure.

It is the contention of appellant that one of the lower plugs on the larger tank extruded and permitted acetylene to escape. According to this theory, the extrusion of the plug resulted from a defective condition in the plug. The escaping gas was ignited, reasons appellant, and the heat from its combustion was so intense that the contents of the smaller tank expanded until that small tank burst; then it was that the released acetylene exploded into flame and damaged appellant’s property. Under this theory, the appellant contends that the fusible plugs on the small tank failed to function according to their intended purpose, and that had they worked properly the acetylene would have been released slowly from the small tank without the consequent violent eruption. In short, it is appellant’s claim that the fusible plug or plugs on the big tank improvidently permitted the gas to escape too soon and the plugs on the small tank held the gas too long.

There is unanimity among the witnesses that all four of the fusible plugs on the big tank had released when examined after the fire. It appears that none of the four plugs on the small tank had opened sufficiently to permit acetylene gas to escape from the tank, although one witness for Battery expressed the view that one of the plugs in the small tank had “relieved.” In the words of the witness, a plug in the small tank “had blown, but not as clean a blow”; he explained that traces of tin alloy left in the fusible plug indicated to him that there had not been a “clean blow.”

After the fire witnesses examined the large tank, but could find no holes or ruptures in it, there was a bulge in the large tank, but the only openings through which the gas could have escaped, said the witness, were those occurring when the safety plugs “relieved.”

Qualified witnesses for appellant expressed the view that the safety plugs in the small tank should have functioned by reason of the heat from the fire around the large tank. It was explained that the igniting temperature of acetylene is about 850 degrees Fahrenheit as compared to 212 degrees at which the fusible plugs should have opened. Furthermore, the small tank was designed to withstand having its contents heated to 500 degrees without rupture. From this it was reasoned by the appellant’s witnesses that ample heat existed for sufficient time to cause the small tank’s safety plugs to open.

A witness for the appellee Battery stated that he could ascribe only three hypotheses as explanatory of the extrusion of the safety plug on the large tank: (a) Rough handling, (b) application of heat, and (c) the plug was defective. As noted, the tank was delivered and placed in position by Battery’s servant; there was no showing that any rough handling occurred while the tank was in appellant’s plant. There was no evidence that any gas had leaked from the tank, so far as its presence could have been detected by its odor or its escaping sound, up to the very moment of the blaze.

For Battery it is argued that the evidence for appellant did not warrant submission of the case to the jury, so that all of the other questions are academic. In light of this, we deem it appropriate to first discuss the point whether the evidence created a jury issue. We hold that a jury issue was presented as to whether the tanks were defective when delivered to Dealers, and whether the damages proximately resulted from any such defects. As outlined above, there was no evidence warranting a conclusion that any employee of Dealers (or any other person) had disturbed the tanks from the time of their delivery until the fire occurred. It was also specifically stated in evidence that there was no waste or other combustible material in the vicinity of the tanks. It was shown that no evidence of leaking acetylene had been observed pri- or to the fire, although witnesses said that the odor of acetylene would have been discerned by them. Since a leaking plug in the big tank was the only place from which acetylene could have emanated, the evidence establishes a reasonable probability that the fire was caused by reason of the escaping acetylene gas. This is enough. See Kentucky Power Co. v. Halcomb, Ky., 373 S.W.2d 725; Beatrice Foods Co. v. Chatham, Ky., 371 S.W.2d 17; Bell & Koch, Inc. v. Stanley, Ky., 375 S.W.2d 696.

It is our view that it was error to grant summary judgment in favor of General. As noted, the apparent reason for granting the summary judgment was the lack of privity between Dealers and General. In a well-reasoned opinion, this Court said in C. D. Herme, Inc. v. R. C. Tway Co., Ky., 294 S.W.2d 534, that an ultimate consumer could maintain action based on negligence against a remote manufacturer. The claim in Herme was not predicated upon any theory of warranty.

In Berger v. Standard Oil Co., 126 Ky. 155, 103 S.W. 245, 11 L.R.A.,N.S., 238, this court denied recovery on an express warranty as it related to a claimant who was a stranger to the warranty (an ultimate consumer). In the course of the opinion in the Berger case the court adverted to the principle that liability of a manufacturer to an ultimate consumer must be denied, even if the manufacturer was negligent, “unless either the article is an imminently dangerous one, or the seller has knowledge of its defects, and that they are such as to endanger life or property without notice or warning of the defects.” This principle was reaffirmed and somewhat extended in Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S.W. 1047, 37 L.R.A.,N.S., 560. However, the latter case was expressly overruled in Herme, just cited.

We are unable to perceive a valid basis for requiring privity of contract in a products liability claim based on breach of implied warranty and disregarding privity in such claims based on negligence. We are mindful that true contractual liability appropriately requires privity; the pragmatic view impels us to recognize that recovery against a remote vendor in this type case, even when based on implied warranty, truly sounds more in tort than in contract. It must be recognized that the rule allowing recovery against the remote vendor in products liability cases had its genesis in broad policy, in which the courts recognized the practical necessity for fixing responsibility even upon defendants who had had no direct dealing with the claimant— contractual or otherwise.

In Vol. 1, Products Liability, Hursh, § 6:84, this jurisdiction is listed as one committed to the rule that privity is required in breach of warranty cases. In support of that text are cited Berger v. Standard Oil Co. (1907), 126 Ky. 155, 103 S.W. 245, 11 L.R.A.,N.S., 238, and Schultz v. Tecumseh Products (CA 6 Mich.), 310 F.2d 426. The Berger case actually involved an express warranty, and is not authority for the rule applicable to an implied warranty.

The decision in Schultz v. Tecumseh Products, supra, is one in which the United States Court of Appeals expressed its views as to what the law is in Kentucky concerning the requirement of privity as a prerequisite to a claim based on breach of implied warranty. That respected sister jurisdiction concluded that the decisions of this court clearly align this jurisdiction with those requiring privity in such cases. The federal court pointed to our decisions in Prater v. Campbell, 110 Ky. 23, 60 S.W. 918 (1901); Hall Mfg. Co. v. Purcell, 199 Ky. 375, 251 S.W. 177 (1923); J. I. Case Threshing Machine Co. v. Dulworth, 216 Ky. 637, 641, 287 S.W. 994 (1926), and Berger v. Standard Oil Co., 126 Ky. 155, 103 S.W. 245 (1907). These cases, noted the Sixth Circuit Court of Appeals, had been decided prior to Kentucky’s adoption of the Uniform Sales Act in 1928. Four Kentucky cases decided since the adoption of the Uniform Sales Act were then discussed: Nehi Bottling Co. v. Thomas, 236 Ky. 684, 33 S.W.2d 701 (1930); Hieronymous Motor Co. v. Smith, 241 Ky. 209, 43 S.W.2d 668 (1931); North American Fertilizer Co. v. Combs, 307 Ky. 869, 212 S.W.2d 526 (1948), and Caplinger v. Werner, Ky., 311 S.W.2d 201 (1958). The majority opinion of the Schultz v. Tecumseh Products decision, supra, concluded that Kentucky’s decisions establish that privity is a prerequisite to recovery for breach of implied warranty. However, in a well-reasoned dissenting opinion, U. S. Circuit Judge Weick took a contrary view. Judge Weick reasoned that the impact of C. D. Herme, Inc. v. R. C. Tway Co., Ky., 294 S.W.2d 534 (particularly in light of the authorities urged by the dissenting members of this court in that case) was to do away with the privity requirement, whether in negligence cases or in implied warranty cases. 74 A.L.R.2d, p. 1195, is cited in support of the view taken by Judge Weick. It suffices to observe that the status of the law in this jurisdiction appears to be vague enough to warrant exactly opposite interpretations of it by distinguished jurists of another tribunal.

We think we would do no judicial violence to hold that the law in this jurisdiction is that privity is not a prerequisite to maintenance of an action for breach of implied warranty in products liability cases, upon the authority and reasoning enunciated in Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1. However, we are persuaded to the view expressed in Section 402A of the American Law Institute’s revised Restatement of the Law of Torts approved in May, 1964, which provides:

“§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

This view of “strict liability” has obtained recent and substantial acceptance in the jurisdictions of this country. See, for example, Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963); Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963); Santor v. A. & M. Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965); Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965); and Ford Motor Co. v. Lonon, Tenn., 398 S.W.2d 240. We hold, therefore, that it was error to award summary judgment in favor of General.

The same rule of “strict liability” is as applicable to Battery as it is to General. The issues submitted to the jury as between Dealers and Battery were not based on “strict liability” concepts, although liability was imposed, subject to certain exceptions. It is our view that the trial court erroneously instructed the jury, and that the instructions were sufficiently prejudicial to Dealers to require reversal.

The court gave the following instruction:

“(1) If you believe from the evidence that the two acetylene cylinders concerning which you have heard evidence, or either of them were defective at the time they were delivered to plaintiff, and that as a direct and proximate result of said defect, if any, the large cylinder was caused to leak acetylene gas, which ignited, and that as a result of the heat from said fire the smaller cylinder exploded, causing the damages, and that said defects, if any, were not readily apparent, then the law is for the plaintiff, and you will so find. Unless you so believe, or if you believe as set out in Instruction No. 2, the law is for the defendant, and you will so find.”

The court gave a separate instruction directing the jury that Battery would be absolved from liability by contributory negligence of Dealers.

The first instruction was not warranted by the evidence, as there was no showing that any defect in either tank was “readily apparent.” The fusible plugs in each tank were substantially obscured from view as the top two were under a metal cap and the lower two situated within the concave base of the tank. There was no duty on Dealers to make a full blown inspection (which would have been required to have even a glimpse of the plugs). Cf. Snead v. Waite, 306 Ky. 587, 208 S.W.2d 749. Hence, it was improper to instruct the jury as to “readily apparent” defects.

Neither was there sufficient evidence to warrant submission of contributory negligence of Dealers. We need not explore the numerous authorities dealing with the basic question whether contributory negligence is ever a proper defense in products liability cases based on breach of warranty, since the liability here is not upon warranty. It suffices to say that the evidence adduced upon the trial failed to establish activity of Dealers which could be characterized as contributory negligence or misuse of the product. In the absence of such proof, it was prejudicially erroneous to submit that question to the jury.

What we have said does not mean that Dealers is entitled to a directed verdict against either Battery or General. Rather, we conclude that the evidence for Dealers is sufficient to permit submitting to the jury whether the fire and consequent damages proximately resulted from a defect in an acetylene tank existing when the tank was delivered to Dealers. The quantum of evidence for Dealers is not such as to entitle it to a directed verdict, but is enough to submit to the jury. Bell & Koch, Inc. v. Stanley, Ky., 375 S.W.2d 696.

The judgment is reversed upon the appeal ■ of Dealers against Battery and General with directions to grant a new trial; the judgment is reversed upon the appeal of Battery against General for such further proceedings therein as may appear appropriate in light of the new trial.


source: Caselaw Access Project

author: CALVERT, Chief Justice.

license: Public Domain

text:
    The TRAVELERS INSURANCE COMPANY, Petitioner, v. Virgil Albert BROWN, Respondent.
    No. A-11186.
    Supreme Court of Texas.
    April 27, 1966.
    Rehearing Denied June 1, 1966.

      Atchley, Russell, Hutchinson & Waldrop, Texarkana, for petitioner.
    Old & Moye, Mt. Pleasant, for respondent.
   CALVERT, Chief Justice.

Virgil Albert Brown sued Travelers Insurance Company for benefits under “Coverage C” of a policy of insurance issued by Travelers to Ranch Managements, Inc. Trial to a jury resulted in a verdict for plaintiff on the contested fact issues. The trial court rendered judgment for the plaintiff for $3,679.00, and the Court of Civil Appeals affirmed. 396 S.W.2d 425. We affirm.

The only questions presented in the Court of Civil Appeals were questions of law. Instead of procuring a statement of facts for appeal purposes, the parties prepared, signed and filed a stipulation of relevant facts evidently deemed by them to be adequate to obtain appellate review of the law questions they wished to have decided.

We will summarize the stipulated facts. Brown, an employee of Ranch Management, Inc., sustained an accidental injury to his left arm on June 18, 1962, while in the course of his employment as an agricultural worker. As an agricultural worker, Brown was excluded from benefits under the Texas Workmen’s Compensation statutes, and any right he has to compensation benefits derives from “Coverage C” as that coverage is provided in Policy No. UB9874141 issued by Travelers to Ranch Management, Inc.

Coverage C is provided in an endorsement titled “VOLUNTARY COMPENSATION ENDORSEMENT,” the relevant provisions of which are as follows:

“1. Insuring Agreement I of the policy is amended by adding thereto an additional coverage as follows:
“Coverage C — Voluntary Compensation. To pay on behalf of the insured, if any employee within a group of employees hereinafter described shall sustain injury, including death resulting therefrom, while employed by the insured in operations in a state specified opposite the description of such group of employees, under circumstances which would have rendered the insured liable for compensation if the injured employee and the insured had been subject to the workmen’s compensation law hereinafter designated with respect to such employment, an amount equal to the compensation and other benefits which would have been payable under such law had the injured employee and the insured been subject to such law with respect to such employment.”
«2 * * *
“3_ * * *
“4# * * *
“5. If any person entitled to payment under Coverage C shall refuse to accept such payment and to comply with the terms and conditions set forth above or if any person shall commence any proceedings at law, in equity or in admiralty, except for such payment, seeking damages from the insured or the company on account of such injury, the company’s liability under Coverage C with respect to such injury is thereupon terminated.”

Sometime after August 22, 1962, and prior to April 9, 1965, Brown filed a common law action for damages against Ranch Management, Inc., but the suit was dismissed with prejudice on September 10, 1963, three days before Travelers’ motion for summary judgment in this case was to be heard. Brown’s attorney was advised by the Industrial Accident Board, on or about August 22, 1962, that the insurer had voluntary compensation coverage on the employer, but neither Brown nor his counsel knew the actual contents of the policy until after the common law damage suit was filed against the employer.

In addition to its motion for summary judgment, Travelers urged a motion for instructed verdict at the close of the evidence, and, thereafter, a motion for judgment notwithstanding the jury’s findings that Brown’s injury was the producing cause of temporary total and permanent partial loss of use of his left arm. The last motion was based in part on the narrow ground that when Brown filed the common law damage suit against Ranch Management, Inc., he “commenced” a “proceeding at law * * * seeking damages from the insured” within the meaning of paragraph 5 of Coverage C, and that by virtue of the provisions of that section the company’s liability was “thereupon terminated.” All were overruled by the trial court. The same argument was urged in the Court of Civil Appeals. That Court also rejected the argument; it agreed, instead, with the contention of Brown that after learning the contents of the policy, he had a right to elect whether to seek damages from the employer or to seek from Travelers the compensation benefits provided in the policy, and that the mere institution of the suit for damages, not prosecuted to judgment, did not constitute a binding election.

We disagree with the conclusion of the Court of Civil Appeals. The contract of insurance between Travelers and Ranch Management, Inc., was a contract for the benefit of third persons, unregulated by the Workmen’s Compensation Law. The right of Brown to benefits provided in the policy is conferred and limited by the terms of the contract. In Western Union Telegraph Co. v. Douglass, 104 Tex. 66, 133 S.W. 877, 879 (1911), we said: “A plaintiff who sues upon a contract executed by another for his benefit, must, of course, accept the contract as it was made. He alleges its execution as a part of his case, and must succeed or fail upon its provisions * * Section 5 of Coverage C expressly provides that “if any person shall commence any proceedings at law * * * seeking damages from the insured * * * the company’s liability under Coverage C * * * is thereupon terminated.” The provision does not allow of an election; it terminates the liability of the insurer if a suit for damages is commenced.

The one case cited by the Court of Civil Appeals in support of its holding is not in point. In Leonard v. Hare, 161 Tex. 28, 336 S.W.2d 619 (1960), the factual situation was the reverse of the situation in this case. There, the workman, while mentally incompetent, executed an instrument releasing his employer from liability and accepting benefits under the voluntary compensation provision of an insurance contract. Later he brought suit to set aside the release and to recover damages from his employer for tortious negligence. Election of remedies was urged as a defense. There was no provision in the policy that acceptance of benefits under the policy would terminate the liability of the employer for damages for negligence. And even had there been, the workman’s mental incompetence would have avoided the legal effect of the provision.

But we do not agree with Travelers that its liability on the policy was terminated when Brown filed his suit for damages. The words “commence a proceeding” or “commence a suit or action,” are not always so narrowly construed.

Travelers’ contention that Brown “commenced” a proceeding against the insured within the meaning of the policy provision when he filed his suit, is based upon Rule 22, Texas Rules of Civil Procedure, and a dictionary definition of the word “commence.” Rule 22 reads: “A civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk.” Webster’s Third New International Dictionary defines “commence” as “1: to enter upon; BEGIN, START * * * 2: to initiate formally by performing the first act of ( — legal proceedings) ⅜ ⅝ ⅝ i)

It is not the purpose of Rule 22 to define parties’ contractual rights; its purpose is to prescribe how a suit in a district or county court shall be commenced. While the wording of the Rule may also ordinarily govern when a suit is commenced, the real question before us is what the parties intended when they used the phrase, “commence any proceeding at law,” in their contract. Ultimately, that question is to be decided by looking to the language of the contract; and if the phrase may reasonably be said to have more than one meaning, by looking to the purpose to be accomplished by the provision.

The meaning ascribed to “commence” by the dictionary is not the only reasonable meaning of the word when it is used to refer to the beginning of a legal proceeding. It has different meanings in different jurisdictions, and even different meanings in different legal proceedings in the same jurisdiction. See 1 Am.Jur.2d 646-650, Actions, §§ 126-130; 1 C.J.S. Actions § 129, pp. 1396-1404; 7 A Words and Phrases, pp. 397-438; 1 Tex.Jur.2d 545-548, § 39. By way of example that the dictionary meaning is not the only meaning, the Supreme Court of the United States held in Herb v. Pitcairn, 325 U.S. 77, 65 S.Ct. 954, 89 L.Ed. 1483, 1487-1488 (1944), that a suit was “commenced” within the limitation provision of the Federal Employers’ Liability Act “when instituted by service of process issued out of a state court.”

Decisions of courts of other jurisdictions may be put aside. In spite of the wording of Art. 1971, Vernon’s Texas Civil Statutes, which was repealed when incorporated in Rule 22, this Court has often held that the commencement of a suit or action requires something more than the mere filing of a petition. In Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733, 737 (1932), we recognized that “the mere physical filing of a petition” without “a bona fide intention * * * to obtain service and prosecute the suit” was not sufficient to abate a second suit involving the same parties and issues. See also V. D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798, 800 (1937). We held in Owen v. City of Eastland, 124 Tex. 419, 78 S.W.2d 178, 179 (1935), that the mere filing of a petition “is not all that is required to ‘commence’ ” a suit within the meaning of Art. 5529 which requires that certain suits “be brought within four years next after the right to bring the same shall have accrued.” See also Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645 (1891). In August Kern Barber Supply Co. v. Freeze, 96 Tex. 513, 74 S.W. 303, 305 (1903), we recognized that “[t]he issuance of citation in a justice’s court is the commencement of the suit,” but we held that “[t]he issuance of process which cannot possibly bring the defendant before the court cannot be considered the commencement of a suit.” These cases are not cited as controlling authority in the instant case but as illustrating that the mere filing of a petition does not always fulfill even statutory requirements for “commencement” of a suit.

In Owen v. City of Eastland, supra, we justified our holding that the mere filing of a petition did not constitute the “bringing” or “commencement” of a suit by the purpose for which statutes of limitations are enacted; and, quoting from Gautier v. Franklin, 1 Tex. 732 (1847), we said that “limitation statutes should ‘receive such interpretation consistent with their terms, as would defeat the mischief intended to be suppressed, and advance the policy and remedy they were designed to promote.’ ” 78 S.W.2d 179. The same rule should be followed in interpretation of the contract in this case.

To hold that the mere filing of a suit is the “commencement” of a proceeding at law within the meaning of paragraph 5 of Coverage C would serve no purpose except to nullify the contract. The filing of a petition and its withdrawal within minutes thereafter cannot prejudice the rights of either the insured or the insurer. Neither can the filing of a petition which is allowed to remain on file without further action calling on the employer to account to the injured workman in damages. We therefore hold that the workman does not “commence proceedings * * * seeking damages from the insured or the company” within the meaning of paragraph 5 until citation is issued and served on the defendant or he enters a voluntary appearance for the purpose of defending the suit. The only purpose of the provision which occurs to us is to avoid the necessary expenditure of time and money in preparing to defend a damage suit only to be required thereafter to make compensation payments or to expend further time and money in the defense of a suit in which the issues are entirely different. The meaning we have given the provision will satisfy that purpose. Travelers suggests no other purpose.

We return to the record in this case and to the judgment to be entered. As heretofore noted, the parties did not procure or file a statement of facts or transcript of the evidence in the Court of Civil Appeals. Counsel for Travelers stated in oral argument before this Court that an answer had been filed in the damage suit, depositions had been taken therein, and the case had been prepared for trial before its dismissal. While we do not question the truth of counsel’s statement, the case must be decided on the record before the Court; and there is nothing in Travelers’ motion for summary judgment, motion for instructed verdict or motion for judgment notwithstanding the jury’s verdict, alleging that anything was done in the damage suit beyond the filing of it. More to the point, the stipulation of facts, on which this Court must decide the questions before it, recites only that before the filing of this suit plaintiff “filed a suit” for common law damages against Ranch Management, Inc., which suit was later dismissed, and that the two suits grew out of and were based upon the same transaction or occurrence.

One who is relieved of his contractual obligations by a contingent event or occurrence has the burden of proving the happening of the event or occurrence. Wooters v. International & G. N. R. R. Co., 54 Tex. 294, 299 (1881). There is nothing in the record to show that Travelers proved that citation in the damage suit against Ranch Management, Inc., was ever issued and served, or that it voluntarily entered its appearance in the suit. Moreover, the burden is on one appealing from an adverse judgment of a trial court to show that the judgment was erroneously rendered and entered. This rule was correctly announced by the Court of Civil Appeals in Nagelson v. Fair Park National Bank, 351 S.W.2d 925, 929 (1961), writ refused, no reversible error. Since there is nothing in the record to show issuance of citation in the damage suit and service thereof on the defendant therein, or that a voluntary appearance was entered by the defendant, Travelers has not discharged its burden of showing that the trial court erred in rendering and entering judgment for the plaintiff in this case.

The judgments of the trial court and Court of Civil Appeals are affirmed.

      . This provision is not in the stipulated facts, but is taken from a copy of the policy which appears in the transcript.

      . Evidently the parties meant this date to be April 9, 1963, the date of the filing of the instant suit, and we will so treat it.

      . Emphasis ours throughout unless otherwise indicated.


author: POPE, Justice.

text:
    D. D. WILLIAMS, Independent Executor of the Estate of James N. McKnight, Jr., Deceased, Petitioner, v. Mabel S. McKNIGHT, Respondent.
    No. A-10955.
    Supreme Court of Texas.
    May 4, 1966.
    Rehearing Denied June 1, 1966.

      Thornton & Thornton, Rick P. Fisher, with above firm, Olney, for petitioner.
    Nelson, Montgomery & Robertson, Wichita Falls, for respondent.
   POPE, Justice.

Petitioner, D. D. Williams, as Independent Executor and Trustee under the will of James N. McKnight, Jr., deceased, filed this action against Mabel S. McKnight, the decedent’s widow, to recover for the estate one-half of three savings accounts which she withdrew after the death of her husband. Petitioner contends that the funds belonged to the community estate of Mr. and Mrs. McKnight. Respondent, Mabel McKnight, contends that she and her husband complied with the 1961 amendment to Section 46 of the V.A.T.S. Probate Code by executing an agreement as to each account and that the agreements effected a partition of their community funds and the creation of joint accounts with rights of survivorship in her as the survivor. The trial court and the Court of Civil Appeals sustained that contention and held that the funds belonged to the widow as the survivor. 391 S.W.2d 813. We reverse the judgments of the courts below and render judgment that the funds were community funds, one-half of which belong to the estate of James N. McKnight.

The case is before us on an agreed statement of facts. James N. McKnight and his wife, Mabel S. McKnight, in 1962 made three separate deposits of $10,000 in savings accounts with three different institutions. All of the funds came from their community funds and nothing was thereafter added to or withdrawn from the accounts. On May 9, 1962, they deposited $10,000 with the City National Bank in Wichita Falls, Texas. On February 4, 1963, they deposited a like amount with the First-Wichita National Bank of Wichita Falls, Texas. They signed the signature cards at each of the banks. The agreements on the cards at those two banks were substantially the same. That of the First-Wichita National Bank was as follows:

“The joint depositors signing above agree, each with the other and with the above named bank, that all sums now or later deposited by either or both of such joint depositors in such account with all accumulations thereon, are and shall be owned by them jointly with the right of survivorship. The amounts in such savings account may be withdrawn by any one of such depositors or by the survivor or either of the survivors after the death of the other joint depositor or depositors. Each appoints the other his agent with power to deposit in said joint account moneys of the other and for that purpose to enforce any check, draft, note or instrument payable to the order of the other or all of such joint depositors, and each hereby ratifies and confirms any and all representations hereafter made by any of them with respect to the loss, theft or destruction of the passbook herewith issued to them. Payment to the survivor or either of these survivors shall be subject to the laws relating to inheritance and succession taxes and all rules and regulations made pursuant thereto. The rights of the bank hereunder this agreement shall not be changed or terminated by the said depositors or either of them except by written notice to the said bank which shall not affect transactions theretofore made.”

On May 9, 1962, the McKnights made a similar deposit in Parker Savings and Loan Association, Wichita Falls, Texas. The signature card they signed at that institution also purported to create a joint tenancy with right of survivorship but it contained the additional agreement: “It is agreed by the signatory parties with each other and by the parties with you, that the funds placed in or added to the account by any one of the parties is and shall be conclusively intended to be a gift at that time of such funds to the other signatory party or parties to the extent of his or their pro rata interest in that account.” Respondent does not, however, contend that she owns the account by reason of a gift. Her only contention with respect to this deposit is that Section 46 of the Probate Code authorized the creation out of community funds of a joint account with right of sur-vivorship.

In Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565 (1961), this Court held that to create a joint tenancy with right of sur-vivorship out of community property, such property must be transmuted into separate property by partition prior to the agreement creating the joint tenancy with right of survivorship. Further, we held that the partition must be accomplished in accordance with the provisions of Article 4624a, Vernon’s Ann.Tex.Civ.St., since Section 46 of the Probate Code did not inferentially repeal or modify such statutes as Articles 4613, 4614, 4619, 4624a and 881a-23. The thrust of our holding in Hilley wás that the separate property of spouses, not community property, may be the subject of a joint tenancy between them, with right of survivorship. When the property is initially community, it must be rendered separate by statutory partition before survivorship rights arise from a joint tenancy agreement between husband and wife.

Shortly after our opinion in Hilley, the Fifty-Seventh Legislature in 1961, amended Section 46 of the Probate Code by adding one sentence. The section, as it existed before amendment is here stated and the sentence that the Fifty-Seventh Legislature added is italicized:

“Where two (2) or more persons hold an estate, real, personal, or mixed, jointly, and one (1) joint owner dies before severance, his interest in said joint estate shall not survive to the remaining joint owner or joint owners, but shall descend to, and be vested in, the heirs or legal representatives of such deceased joint owner in the same manner as if his interest had been severed and ascertained. Provided, however, that by an agreement in writing of joint owners of property, the interest of any joint owner who dies may be made to survive to the surviving joint owner or joint owners, but no such agreement shall be inferred from the mere fact that the property is held in joint ownership. It is specifically provided that any husband and his wife may, by written agreement, create a joint estate out of their community property, with rights of survivorship.1’

The amendment attempts to authorize spouses to create a joint estate with rights of survivorship “out of their community property.” In Hilley, we stated the reasons that this result could not constitutionally be accomplished, and those reasons are as valid after the amendment as they were before. Constitutional limitations are as binding upon the Legislature as they are upon the Judiciary.

Section 46 does not speak of partition. Moreover, it is a very old principle of law that the husband and wife cannot, by mere agreement, partition and transfer their community property to each other and effect a change of the class of the estate which the Constitution fixes upon the property. Green v. Ferguson, 62 Tex. 525, 529 (1884); Cox v. Miller, 54 Tex. 16 (1880); Pevehouse v. Lubbock National Bank, 79 S.W.2d 1107 (Tex.Civ.App.1935, no writ). Neither Section 46 nor the agreements between Mr. and Mrs. McKnight mention a partition, but Mrs. McKnight urges that it was implicit in both the statute and the agreements. This contention is necessary in order to arrive at the separate property which alone may be the subject of an agreement for a joint tenancy with right of survivorship between husband and wife. This same contention was urged in Hilley and we rejected it as a fictional partition of community property into separate property. When the Constitution authorized a marital partition of property, it did not contemplate that fictions, presumptions, nor even legislative declarations of intention would undo constitutionally defined community properties. Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925). Mr. and Mrs. McKnight could not make an effective agreement concerning their community funds until they first reduced those funds to their separate estates. Unless we indulge in the fictions denounced in Hilley, it is clear that they did not deal with their separate estates in the instant case.

In so far as Section 46 authorizes spouses to create by agreement a joint estate with rights of survivorship out of their community property, it is violative of the Constitution. Statutory partition with the resulting separate property is the necessary prerequisite to a written agreement between husband and wife to create a joint estate with rights of survivorship.

An amicus curiae brief suggests, though it is not so contended by the parties, that at least with respect to the account with the Parker Savings and Loan. Association, we should hold that there was a gift from the husband to the wife of his community interest, and that this was a gift of the present right to withdraw funds from the account as well as title to the entire account at his death if she survived him. As discussed in Hilley, there was consideration from each; and it was derived from the community estate. Consideration precludes the idea of a gift. Kearse v. Kearse, 276 S.W. 690 (Tex.Comm.App.1925). The right or interest of the spouses for that reason remained a part of the community estate.

The judgments of the courts below are reversed and judgment is here rendered that petitioner have and recover from respondent, Mabel McKnight one-half of the three savings accounts in the sum of $15,000 together with interest from the time of her withdrawal of -those funds from the respective depositories.

      . Art. 4624a. Section 1. “A husband and wife, without prejudice to pre-exist-ing creditors, may from time to time, by written instrument as if the wife were a feme sole, partition between themselves in severalty or into equal undivided interests all or any part of their existing community property, or exchange between themselves the community interest of one spouse in any property for the community interest of the other spouse in other community property. Such partition or exchange shall be effectuated by a written instrument subscribed and acknowledged by both spouses in the manner now required by law for the conveyance of realty; whereupon the property or interest in property set aside to each spouse by such instrument shall be and constitute a part of the separate property of such spouses.
      “Such partition shall not be good or effectual against a purchaser in good faith, without notice thereof and for a valuable consideration, nor against any creditor unless filed for record with the County Clerk of the county or counties in which such property shall be situated.
      “If such instrument purports to exchange property or to partition property between the husband and wife, otherwise than as equal undivided interest in the same property, or as equal shares or units of identical personal property, such instrument shall not be valid unless approved by the Court upon written application of the husband and wife, addressed to the District Court of the county in which they or either of them reside. Such petition must set out facts showing that the transaction is not to the disadvantage of the wife, and shall be filed and docketed as in other cases, and at any time thereafter the District Court may, in term time, take up and hear said petition and evidence in regard thereto, and enter an order accordingly either approving or disapproving the transaction.”

      . Article 881a-23 was later amended and provided that the parties could partition community funds by a written and acknowledged instrument. Acts 1957, 55th Leg., p. 1319, ch. 445. It was again amended after the date of the McKnight deposits and is now Section 6.09 of Article 852a. Acts 1963, 58th Leg., p. 269, ch. 113.


author: STEAKLEY, Justice.

text:
    HOUSTON FIRE & CASUALTY INSURANCE CO., Petitioner, v. J. W. BRITTIAN, Respondent.
    No. A-10981.
    Supreme Court of Texas.
    April 20, 1966.
    Rehearing Denied May 18, 1966.
    Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Kenzy D. Hallmark, Lufkin, for petitioner.
    Barber & Seale, Jasper, for respondent.
   STEAKLEY, Justice.

This is an appeal from the second trial of a Workmen’s Compensation case held in September, 1964. The initial question is whether the testimony at the first trial of Respondent’s medical witness, Dr. Joe Dickerson, was admissible at the second trial. Dr. Dickerson resided at Jasper, Texas, which is located in a county adjacent to Newton County where both trials were held. He testified in person at the first trial which was held in February of 1964. He was not placed under subpoena nor was his deposition taken for the second trial. Counsel for Respondent testified at the second trial that on Friday before the second trial date on the following Tuesday he checked with the office of Dr. Dickerson and determined that he would be available to testify on Tuesday; that he had planned to call him as a witness; and that upon calling his office on the Tuesday morning trial date he learned for the first time that the doctor was in emergency surgery, upon the completion of which he was leaving town and would not be available during the re-rnainder of the week. Counsel for Respondent did not seek a postponement of the trial after testifying to the foregoing but offered in evidence a transcript of the direct and cross examination of Dr. Dickerson at the former trial. Petitioner objected to the admission of the testimony as hearsay for which no proper predicate had been laid for its admission as an exception to the general rule. The trial court overruled the objection, which action was upheld by the Court of Civil Appeals [392 S.W.2d 604] on the ground that the matter was within the discretion of the trial court and no abuse was shown; and, further, that in any event the admission of the testimony was not reversible error under Rule 434, Texas Rules of Civil Procedure. We reverse the judgments below.

The applicable rule was stated by this Court in Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 697 (1941):

“It is the settled law that under an exception to the general rule against hearsay evidence, ‘testimony of a witness given at a former trial of the same case on substantially the same issues, and where there was opportunity for cross-examination, may be reproduced where it is shown that the witness is dead, or that he had become insane, or is physically unable to testify, or is beyond the jurisdiction of the court, or that his whereabouts is unknown and that diligent search has been made to ascertain where he is, or that he has been kept away from the trial by the adverse party.’ ”

None of these stated conditions supporting this exception to the general rule against hearsay evidence is claimed to exist here. This being the case, there is no question of the existence or nonexistence of the facts necessary to the predicate and the exercise of discretion by the trial court was not invoked. Respondent cites 24 Tex.Jur.2d § 701, p. 343, in its statement of the rule said to be applicable in criminal cases, and contends that the testimony of a witness at a former trial of a civil case is admissible when “for some similar and equally valid reason the witness is now unable or unavailable to testify,” which matter is addressed to the discretion of the trial court. No civil cases are cited by Respondent in support of the foregoing and we have found none. The function of the discretionary exercise in this type of situation is interestingly illustrated by the opinion of this Court in Boyd v. St. Louis, Southwestern R. Co. of Texas, 101 Tex. 411, 108 S.W. 813 (1908), and the subsequent opinion of the Court of Civil Appeals reported in 56 Tex.Civ.App. 282, 119 S.W. 1154 (1909). In its opinion this Court said:

“Counsel for both parties have requested that we should pass upon the admissibility of the testimony of Lytle given at a former trial, and we deem it proper to announce the following rule to govern in admitting such evidence: The proper predicate being laid to show that Lytle’s whereabouts is unknown and that diligent search has been made to ascertain where he is, the evidence to prove what he testified to on a former trial should be admitted.”

Responding thereto, the Court of Civil Appeals said:

“Without undertaking to state the full extent of the effort made to discover the whereabouts of Lytle, or the diligence used to bring him into court as a witness, we think it is sufficient to say that a proper predicate was laid. * * * The sufficiency of the predicate is a matter resting largely in the discretion of the trial court * *

We adhere to the established rule as stated in Lone Star Gas. This rule is sufficiently comprehensive of those situations where the testimony of a witness at a former trial of a civil case may be admitted at a later trial of the same case when the witness is unavailable. The exercise of discretion by the trial court is limited to a determination of the sufficiency of the factual predicate in the situation claimed to exist. Cf. Missouri-Kansas-Texas R. R. Co. v. Bush, 310 S.W.2d 404 (Tex.Civ.App.1958, writ ref. n. r. e.), where there was disagreement among members of the court but none questioned the soundness of the rule as -stated in Lone Star Gas; Morris v. Davis, 292 S.W. 574 (Tex.Civ.App.1927, writ ref.); Federal Underwriters Exchange v. Rigsby, 130 S.W.2d 1105 (Tex.Civ.App.1939, writ dism.); and Bowles v. Bryan, 277 S.W. 760 (Tex.Civ.App.1925, no writ hist.).

We also hold, contrary to the view of the Court of Civil Appeals, that the admission of the testimony of Dr. Dickerson given at the former trial was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rules 434 and 503, T.R. C.P.; cf. Casualty Insurance Co. of California v. Salinas, 160 Tex. 445, 333 S.W.2d 109, 116, 90 A.L.R.2d 1056 (1960); Pitt man v. Baladez, 158 Tex. 372, 312 S.W.2d 210, 216 (1958); American General Insurance Co. v. Jones, 152 Tex. 99, 255 S.W.2d 502, 505 (1953); Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 382 (1952). Seven months elapsed between the first and second trials. Respondent testified that Dr. Dickerson had examined him on five or six occasions during this interval. There was evidence of various work activities on the part of Respondent during this period. Dr. Dickerson was the only medical witness offered by Respondent and Petitioner did not have an opportunity to cross-examine him in the light of his subsequent examinations or of the subsequent work record of Respondent. Dr. Dickerson expressed the opinion at the first trial that Respondent had suffered total and permanent disability based on both objective and subjective findings to which he testified. The extent of the disability of Respondent was a vital issue in the case and the probability that the jury gave the testimony of Dr. Dickerson controlling effect cannot be avoided. The admission of his testimony was therefore reversibly harmful to Petitioner.

The other points urged by Petitioner will doubtless not arise upon another trial, and we will forego consideration of them.

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


author: PER CURIAM.

text:
    The MANHATTAN LIFE INSURANCE COMPANY, Petitioner, v. Elizabeth B. HARKRIDER, Respondent.
    No. A-11187.
    Supreme Court of Texas.
    April 13, 1966.
    Rehearing Denied May 25, 1966.
    Coleman Gay, Austin, for petitioner.
    Gaynor Kendall, Austin, for respondent.
   PER CURIAM.

The burden of proof was upon the petitioner to prove that the alleged misrepresentations by the insured were material to the risk. The jury refused to so find. We agree with the holding of the Court of Civil Appeals that there was evidence to support the answers of the jury. This is determinative of the case; therefore, we do not reach the other points of error urged by the petitioner. We refuse the application for writ of error with the notation “no reversible error.” 396 S.W.2d 207.


author: MASSEY, Chief Justice.

text:
    Kay LEDDON et vir, Appellants, v. Joseph C. HERMAN et ux., Appellees.
    No. 16704.
    Court of Civil Appeals of Texas. Fort Worth.
    April 8, 1966.
    Rehearing Denied May 6, 1966.

      Clyde, Hines & Craig, and A1 Clyde, Fort Worth, for appellants.
    Mays & Mays and Richard E. Johnson, Fort Worth, for appellees.
   MASSEY, Chief Justice.

The appeal is from judgment rendered upon a full hearing on a petition in the nature of a Bill of Review in which appellants attacked two former judgments. Said former judgments were: (1) No. J — 7167, of March 26, 1964, decreeing that baby girl Ragsdale was a dependent and neglected child; and (2) No. 34,890-C, of July 2, 1964, decreeing adoption by the appellees of the same child. Additionally, appellants sought to have a change of custody of the child from appellees to themselves. Appellant Kay Leddon was the natural mother of the child.

We reverse the judgment of the trial court. In part said judgment is rendered; in part remanded.

The child in question was born March 25, 1964. Prior to the time the child was born arrangements had been made (and contracted in so far as was permitted) for the care and maintenance of the natural mother to be undertaken by the appellees, the hospital and delivery expenses paid, etc., with assured care for the child from the appellees as prospective adoptive parents who were to take the child immediately after its birth. All things were done and performed by the appellees according to their agreement. They received the child from the hospital and have subsequently had custody at all times.

It is to be remembered that the case is one where individuals purported to act, and at no stage of the transaction and proceedings was any Licensed Child Placement Agency interested or involved. We have had occasion to note the hazards present when prospective adoptive parents seek to secure a baby by a transaction of such character. See Hendricks v. Curry, 389 S.W.2d 181 (Fort Worth Civ.App., 1965). Our judgment in this case was reversed. In reversing the judgment of this court in that case the Supreme Court clarified the law applicable to questions involved in this case. In our opinion application to the instant case of the principles of law therein stated compel our judgment here. See Hendricks v. Curry, Tex., 401 S.W.2d 796.

The day after baby girl Ragsdale was born the attorney representing the appellees went to the hospital where the natural mother was confined after having been delivered of her baby. There he had an instrument labeled “Consent to Adoption” executed before a Notary Public. In addition to the language of the instrument certifying her consent to adoption of her baby, the further language appears: “* * * and hereby agree that said child may he declared dependent and neglected by any Court of competent jurisdiction and hereby waive service of any notice thereof and enter this as my personal appearance therein.”

It is to be noticed that the “Petition to Declare Minor Dependent and Neglected”, (and judgment of March 26, 1964 based thereon) was filed the same day the “Consent to Adoption” instrument was executed by the natural mother. However, said petition was not filed at the time it was executed. Indeed, the “Consent to Adoption” was made an exhibit to the petition.

It is obvious that the decree of adoption was entered prior to the expiration of the six (6) month period usual in such cases. It is immaterial to our consideration, however, for it is undisputed that the natural mother had withdrawn her consent to the adoption of her child prior to the date of such judgment, of which all parties (save the Court) had notice.

Promptly after the natural mother discovered such adoption she brought suit. By then she was a married woman, and her husband joined her as party plaintiff. It was pursuant to the hearing thereof (following necessary consolidation or transfers in the courts so as to enable that full hearing requisite in such cases) that a judgment was rendered on April 12, 1965, from which the instant appeal was taken.

The judgment of March 26, 1964, decreeing the child to be a “dependent child”, was voidable. This was because no acceptance of service, waiver, or issuance, nor service of process made prior to the institution of the suit will support a judgment by default, and the purported “waiver” and consent to the entry of such a decree executed on the same date by the mother (and made a part of the petition) was made prior to the institution of the suit. 46 Tex. Jur.2d, p. 371 “Process and Notices”, § 47, “ — Time of waiver or acceptance”; Vernon’s Ann.Tex.Civ.St. Title 43, “Dependent, Neglected Child”, Art. 2332, “Citation”; cases in 21A Texas Digest, Infants ^16.7 “ — Notice”.

Of course, in instances of adoption predicated upon written consent from the natural parent or parents of the child sought to be adopted, such consent can be withdrawn at any time before an adoption decree is entered. It is a legal right which is reserved though the natural parent delivers up the possession and custody of a child to prospective adoptive parents and executes a consent to adopt the child. Hendricks v. Curry, supra, and cases therein cited. In the instant case the consent to adopt had been withdrawn prior to entry of the decree of adoption. Therefore the decree was voidable. The petition for adoption was predicated, according to its terms, upon the consent to adopt executed by the natural mother. No other ground was stated. The judgment which was entered on April 12, 1965 did not purport to decree anew any adoption of the child, but rather recited a confirmation of the adoption which had been earlier decreed. See generally V.A.T.S. Title 3, “Adoption”, Art. 46a, “Proceedings for adoption, hearing and rights of adopted child”.

The original judgment decreeing that baby girl Ragsdale was a “dependent child”, followed the language of the petition (of appellees’ attorney as the individual seeking the adjudication) and, as stated therein, gave reasons for its entry. They were that said child — at that time — was (1) dependent upon the public for support, (2) destitute, (3) homeless, (4) abandoned, or (5) had not proper parental care or guardianship. V.A.T.S. Art. 2330 et. seq. See also this court’s opinion in Hendricks v. Curry in 389 S.W.2d 181.

The evidence showed that as of the time the “dependency” petition was filed and judgment was rendered no basis existed for declaring that the conditions, or any of them, existed. Therefore no proper occasion existed for entry of the decree declaring the child to be a “dependent child”. It was formerly this court’s opinion that the test of “abandonment” as a ground for the entry of such a decree would be one whereby it was to be determined whether the natural mother might be treated as having “abandoned” her child and our conclusion was that conditions analogous to those existent in this case warranted the conclusion that there had been an “abandonment”. See this court’s opinion in Hendricks v. Curry. However, it was held by the Supreme Court in the same case (401 S.W.2d 796) that in the determination of whether a child is an “abandoned” child within the meaning of Article 2330 the question would be whether such a natural mother, by her wilful act or course of conduct may be said to have evidenced a conscious disregard or indifference to her child in respect to the parental obligation that she, as the parent, owes to such child. No act or course of conduct by the natural mother in the instant case could justify a conclusion that she evidenced a conscious disregard or indifference to her child born March 25, 1964 in respect to its care, support, and general welfare.

The natural mother was not estop-ped by having executed the instrument denominated “Consent to Adoption”, containing the language relative to a dependency action in a “Court of Competent Jurisdiction”. That suit had not been filed at the time she executed the instrument, and the language of the instrument contained no request of the natural mother endorsed upon the petition filed in the court that the child be declared a “dependent child”, as contemplated by V.A.T.S. Art. 2332. See Broome v. Edna Gladney Home, 295 S.W.2d 266 (Fort Worth Civ.App., 1956, no writ hist.). Her “consent” to the entry of a decree to such effect could not be construed as a “request” for such by any instrument the provisions of which she was fully aware and in which she had intelligently joined.

That part of the judgment in Cause No. J-7167 which adjudicates the minor girl to be a dependent child and terminates the parental rights of appellant Kay Leddon must be vacated. When it is vacated, there remains no legal basis for the judgment of adoption in Cause No. 34,890-C inasmuch as Mrs. Leddon withdrew her consent to adoption before the judgment was rendered and entered.

Only the issue of custody remains for our disposition. The legal right to custody was in its mother on both March 26, 1964 and July 2, 1964; but the mother voluntarily surrendered possession and actual custody on March 26, 1964. By her pleadings she sought to regain possession of her daughter. Under a long line of decisions by the Supreme Court, jurisdiction of the trial court was thus invoked to decide whether the child’s welfare and best interests would be served by restoring possession and actual custody to the mother, the legal custodian, or by awarding both legal and actual custody to the appellees. See cases cited in the Supreme Court opinion in Hendricks v. Curry. After a full hearing on March 2, 1965, the trial court awarded full custody of the child, legal and actual, permanently to the appellees, and thereafter made extensive findings of fact to support a legal conclusion that the best interests of the child womd be served thereby.

We have held that the trial court erred in adjudicating the minor girl to be a dependent child. Texas Rules of Civil Procedure 434 directs that judgments not be reversed by this court for harmless errors, and provides: “* * * and if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error.” The issues of dependency and custody are severable. The trial court made ultimate fact findings to the effect that at all times, including the date of the trial from which the appeal was taken, it was to the best interests of the child that its custody remain with the appellees. In the findings it seems clear that in deciding the custody issue the court gave great weight to its conclusion that one or all the prerequisites for an adjudication that the child was a “dependent” child existed at the time such had been originally decreed. We have hereinabove held that such conclusion is not supported by evidence. Under these circumstances we are not authorized to sever the issues before the trial court in relation to Cause No. J — 7167 and affirm the judgment of custody.

We therefore reverse and render judgment as same stood before the trial court in relation to Cause No. 34,890-C, and confirmed below relative to adoption. Judgment is here rendered denying the petition of appellees, Joseph C. Herman and his wife, to adopt the child of Mrs. Leddon. In other respects (relative to Cause No. J-7167) the judgment of the trial court is reversed and the cause remanded with directions to vacate the judgment declaring the child to be a dependent child and terminating the parental rights of Mrs. Led-don, and to render judgment denying that relief,- — with a new trial to be held of the change of custody issue raised by the pleadings.


author: HUGHES, Justice.

text:
    INTERNATIONAL MOTORISTS ASSOCIATION, Appellant, v. Sebastian AGUILAR, Appellee.
    No. 11386.
    Court of Civil Appeals of Texas. Austin.
    April 13, 1966.
    Rehearing Denied May 4, 1966.

      Mayer, Mayer & Levin, Marvin L. Levin, Dallas, Kemp & Prud’homme, Austin, for appellant.
    Jack Garey, Joseph H. R. Colbert, Austin, for appellee.
   HUGHES, Justice.

This suit was by Sebastian Aguilar against International Motorists Association to recover the sum of $995.00 which he had incurred in attorney’s fees in prosecuting a claim for damages arising out of a collision in which his car was involved and in prosecuting the claim represented by this suit. The liability of the Association was alleged to be the consequence of a “service contract” which it had made with Mr. Aguilar.

Trial was non-jury. Judgment was rendered against the Association for the amount claimed.

The Association’s first point is that the Trial Judge erred in not timely filing findings of facts and conclusions of law. Its motion for a new trial was overruled June 24, 1965.

On July 6, 1965, appellant filed its request for findings of facts and conclusions of law.

On August 13, 1965, appellant called to the attention of the Trial Judge that its requested findings and conclusions had not been filed.

On August 18, 1965, the Trial Judge filed findings of fact and conclusions of law and they are included in the transcript.

Rule 296, Texas Rules of Civil Procedure, provides, in part, that a request for conclusions of fact and law shall be filed within ten days from rendition of final judgment or order overruling motion for new trial. Appellant’s request was not so filed.

Rule 297, T.R.C.P., provides, in part, that the Trial Judge, when demanded, shall within thirty days before the time for filing transcript prepare his findings of fact and conclusions of law and if he fails to do so the demanding party “shall, in writing, within five days after such period” call the omission to the attention of the trial judge.

The time for filing the transcript herein expired sixty days from June 24, 1965, Rule 386, T.R.C.P. This date was August 23, 1965. Thirty days before August 23 was July 23. Appellant should have called the attention of the Trial Judge to his failure to comply with its request for conclusions of fact and law on or before July 28, 1965. This it failed to do.

Under these circumstances, we believe that the Trial Judge would have been warranted in not filing the requested conclusions.

Appellant contends that he has been prejudiced by the Court’s delay in filing the requested conclusions because of insufficient time to request additional conclusions or to file objections to those made.

Appellant does not spell out these contentions by specifying any objections he may have had to the conclusions or any additional conclusions he may have desired. In any event, appellant does not present any point which involves a controverted issue of fact. We, therefore, hold that no error of a reversible nature is shown and, for all the reasons above stated, we overrule the point under discussion.

Appellant’s remaining four points all present questions of law which challenge the authority of the trial court to render any judgment except one of dismissal or to render any judgment m excess of $100.00.

We will state the facts.

Appellee had been a member of the Association for two years from September 8, 1961, when, on September 30, 1963, he signed an application for renewed membership for a period of two years. He was thereupon furnished a membership application receipt which we depict m full:

Relying upon the provision in the above receipt that the benefits and services under this Contract were limited by the terms and conditions set out in the membership contract to be issued to appellee, appellant sought to introduce a membership certificate in the Association appearing on its face to have been issued to appellee on September 30, 1963, in which was contained this provision:

“Legal Expenses: In the event the member has occasion to use legal services set forth in this instrument the Association shall reimburse the member for a reasonable attorney’s fee, but in no event shall an attorney fee exceed thirty per cent (30%) of the total amount involved, provided further that the maximum fee shall he one hundred dollars ($100.00).”

Appellee was asked if he had received this membership certificate or one similar to it and he could not remember if he had seen it or not. No independent evidence or effort was offered or made to prove either its issuance or delivery.

Under these circumstances, we cannot hold that the trial court erred in excluding the proffered certificate of membership

The trial court also excluded evidence relating to the terms and provisions of the Contract between the parties which may have existed during appellee’s prior, but expired, membership.

We have no doubt that a simple agreement to renew an insurance policy or to renew an identified contract, where no new terms are added, is sufficient to incorporate the provisions of the old policy or contract into a new agreement on the same terms as the former agreement.

The former contract here, if properly offered in evidence, would show a contract in all respects identical with the contract which appellant seeks to establish here. It would show the same $100.00 limitation for attorney’s fees to be incorporated in the membership certificate.

We believe it immaterial that this evidence was excluded by the trial court. Without expressing any opinion on the validity of the 1961 Contract between the parties and its limiting membership certificate, it is our opinion that an intervening Act of the Legislature, effective September 1, 1963, makes invalid and unenforceable, in this suit, the limitations contained in the membership certificate. This Act is contained in Art. 1528d, Vernon’s Ann.Tex. Civ.St., from which we quote:

“Sec. 2. (a) ‘Automobile Club’ shall mean any person who in consideration of dues, assessments, or periodic payments of money, promises its members or subscribers to assist them in matters relating to travel and the operation, use or maintenance of a motor vehicle in the supplying of services which by way of illustration and not by way of limitation may include such services as community traffic safety service, travel and touring service, theft or reward service, map service, towing service, emergency road service, bail bond service and legal fee reimbursement service in the defense of traffic offenses, and the purchase of accidental injury and death benefits insurance coverage from a duly authorized insurance company.
Sec. 9. Every Automobile Club operating under the provisions of this Act shall furnish to its members a service contract or membership card together with the following information:
* * *
(c) A description of the services or benefits to which the member is entitled.
(d) The completed application and the description of services shall constitute the service contract.”

Clearly a “membership contract to be issued” by the Association at an unspecified time and containing unknown conditions cannot be held to come within the above provisions of Art. 1528d. Under this statute, nothing but the description of the services and the completed application is part of the service contract.

The Contract in suit was executed when Art. 1528d was in effect and its terms were incorporated therein as a matter of law. 13 Tex.Jur.2d, Sec. 165.

The need for this remedial legislation is demonstrated by this case. We have no hesitancy in commending its enactment and implementing its enforcement. We affirm the judgment of the trial court.

Affirmed.


author: MOORE, Justice.

text:
    R. E. SELMAN et ux., Appellants, v. E. L. BRISTOW et al., Appellees.
    No. 197.
    Court of Civil Appeals of Texas. Tyler.
    April 14, 1966.
    Rehearing Denied May 12, 1966.

      Chas. F. Potter, Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, for appellants.
    Tom Steele, Linden, for appellees.
   MOORE, Justice.

Plaintiffs, E. L. Bristow and wife, Lena Bristow, brought this suit against defendants, R. E. Selman and wife, Nettie Sel-man, to determine ownership of the mineral rights in, to and under a 92.2 acre tract of land situated in Henderson County, Texas. Jeff Austin, who the record shows to be a joint tenant with the Bristows, was made an involuntary plaintiff in the case.

Plaintiffs Bristow and Austin allege that they purchased the 92.2 acre tract of land from Mrs. A. Mae Weeden, et al. on January 21, 1941. That in the deed to them, Mrs. A. Mae Weeden, et al. reserved 14th of the royalty. Plaintiffs further allege that they sold the 92.2 acre tract of land to the defendant, R. E. Selman, on February 26, 1943, by a warranty deed and that in said deed, the plaintiffs reserved unto themselves, their heirs and assigns, ¼⅛ of the minerals by the following reservation :

“The grantors herein reserve one fourth (Í4) of the mineral interest, for themselves, their assigns or their heirs. It is also understood that the grantee has full authority to lease the land for Oil & Gas and the grantors will join him in the lease. Grantors also have the right to lease for Oil & Gas their ¼ interest should the Grantee desire not to lease.”

In addition to this deed, plaintiffs further allege that thereafter on April 15, 1948, they conveyed to defendants an additional 8.62 acre mineral interest in the said 92.2 acre tract. Plaintiffs’ pleadings further assert that the y$th of the royalty reserved in the deed from Mrs. A. Mae Weeden, et al. unto the plaintiffs is royalty right attributable to the entire mineral estate and that each of the owners of the mineral estate in and to the land described in the deed covering the 92.2 acre tract of land must account proportionately for such reserve royalty reservation; that the defendants have by their actions, conduct and claims cast a cloud of interest upon the plaintiffs’ estate, asserting that all of such reserved interest should be borne by the mineral estate belonging to the plaintiffs, hence they allege that all of the instruments affecting the interest of the plaintiffs and defendants should be legally construed and judgment entered vesting title and quieting title as the law directs.

Plaintiffs contended that the ⅛⅛ royalty theretofore reserved by Mrs. Weeden, et al. followed the mineral estate as conveyed by their two deeds to Selman and therefore must be carved out of the mineral estate in proportion to the respective ownership of the grantors and grantee. Since their grantee, Selman, owned %ths of the minerals in place, and they owned ¼⅛, they therefore contend that Selman must bear %ths of the outstanding ⅛⅛ royalty and they must bear ¼⅛ of same.

The trial court, sitting without a jury, rendered judgment as follows:

“3. It is adjudged by the court that the royalty interest reserved by the grantors (Mrs. Weeden, et al.) in the January 22, 1941 deed shall be borne by the interest conveyed to the parties to the February 26, 1943 deed as follows:
“The interest of the grantee R. E. Sel-man (and wife, Nettie Selman) shall bear ¾ of said royalty interest.
“The interest of the grantors E. L. Bristow, Lena Bristow and Jeff Austin, shall bear ½ of the said royalty interest.
“4. It is further adjudged that all relief not expressly granted is hereby denied.”

The trial court thus rendered judgment for the plaintiffs based upon a construction of the 92.2 acre deed, but denied plaintiffs any relief under the 8.62 acre royalty and/or mineral deed. Plaintiffs make no complaint of the judgment in this respect; consequently, the trial court’s ruling denying relief with respect to the 8.62 acre deed is final and is not before us.

Defendants, R. E. Selman and wife, have perfected this appeal, contending that the construction placed on the 92.2 acre deed by the trial court was erroneous. They contend that all of the ⅛⅛ royalty previously reserved by Mrs. A. Mae Weeden, et al. must be borne by plaintiffs, Bristow and Austin, out of their ⅛⅛ undivided mineral interest and that the undivided fáüis mineral interest which plaintiffs conveyed to them by the 92.2 acre deed passed to them encumbered by the previous royalty reservation.

At the request of the defendants, the court made the following findings of fact and conclusions of law:

(1) On January 22, 1941, Mrs. A. Mae Weeden, et al. executed a deed to E. L. Bristow and Jeff Austin conveying the 92.2 acre tract of land, and reserved therein an interest referred to as ⅛⅛ of the royalty interest.

(2) On February 26, 1943, Bristow and Austin executed a deed to R. E. Selman conveying the same 92.2 acre tract of land, in which the grantors reserved an undivided ¼⅛ of the minerals, all as more fully shown in said deed, a copy of which is attached hereto.

(3) * * *

(4) That thereafter, a “royalty and/or mineral deed” was executed by Austin and Bristow to Selman in 1948, conveying unto the said grantees an “undivided 8.62 royalty and/or mineral acre interest in the said 92.2 acre tract of land.”

(5) That the parties entered into a certain stipulation, which stipulation was introduced in evidence and is made a part of the findings of fact.

(6) That at the time Bristow and Austin executed the deed to Selman conveying the 92.2 acres of land, Selman had no knowledge of the royalty reservation contained in the 1941 deed from Mrs. A. Mae Weed-en, et al. to Jeff Austin and E. L. Bristow; that Selman bought the property without title examination and in reliance upon the grantors’ warranty of title, paid therefor a valuable consideration.

Based upon these facts, the court concluded as a matter of law that the royalty interest retained by the grantors in the deed from Mrs. A. Mae Weeden, et al. to Jeff Austin and E. L. Bristow in 1941 should be charged proportionately to the interest reserved by the grantors and conveyed to the grantee in the deed from Bristow and Austin to R. E. Selman; that is, the ⅛⅛ royalty theretofore reserved by Mrs. Weeden, et al. should be charged, 54th to the interest of the grantors, Bristow and Austin, and J^ths to the interest of the grantee, Sel-man.

No complaint was made by either party to these findings, and the record is before us without a statement of facts.

In the stipulation entered into by the parties, it was agreed that the question to be decided was as follows: What interest was conveyed by the deed from Bristow and Austin to Selman covering the 92.2 acre tract?

It is not contended that the deed in question is ambiguous and it must therefore be given the legal effect resulting from a construction of the language contained within the four corners of the instrument. All parts of the instrument must be given effect, if possible to do so without violating any legal principles. Even though different parts of the deed may appear to be contradictory and inconsistent with each other — if possible, the court must construe the language of the deed so as to give effect to all provisions thereof and will harmonize all provisions therein, and not strike down any part of the deed, unless there is an irreconcilable conflict wherein one part of the instrument destroys in effect another part thereof. Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166. When the Bris-tow-Austin deed is construed by its own language, it is not ambiguous. It purported to grant to Selman an absolute fee simple title to all interest in the land except a ¼⅛ interest in the minerals. To accept the theory of the judgment, the deed conveyed the surface rights together with J^ths of the minerals subject to a proportionate reduction of the reserved royalty. Such a construction would be contrary to the very language used in the granting clause because the deed by its express terms purported to convey all the interest in the land except the reserved ¼⅛ interest in the minerals. The deed is so written that the general warranty extends to the full fee simple title to all the surface and mineral estate, except an undivided 14th interest in the minerals. Without the reservation clause, the deed clearly implies a grant of all of the surface and a full J^ths of the mineral estate. While the deed in question does make reference to the Weeden deed as the source of title, nowhere does it mention the royalty theretofore reserved by Mrs. Weed-en, et al.

“ * * * ‘The general rule is that a deed will pass whatever interest the grantor may have in the land, unless words are used showing an intention to convey a less estate. And, where the granting clause is apt to transfer all the interest of the grantor, an intention to convey a less estate than the grantor has is not manifested by a recital of the grantor’s source of title. Such a recital is usually regarded as mere descriptive matter which does not restrict the granting clause.’ ” Peavy-Moore Lumber Co. v. Duhig (Tex.Civ.App.) 119 S.W.2d 688; 135 Tex. 503, 144 S.W.2d 878.

Therefore, since Bristow and Austin owned all of the mineral estate and their deed purported to convey %ths thereof, under this rule the mere reference to the Weeden deed as their source of title would not restrict the granting clause conveying %ths of the minerals.

The effect of the deed was to divide ownership of the mineral estate. The two separate mineral estates thus created constituted a distinct and severable adjunct of the fee simple in real property. The royalty interest theretofore reserved by Mrs. Weeden, et al. also constituted an adjunct that was distinct and severable from the mineral fee. Both the interest in the minerals in place and the interest in the royalty based on the production of these minerals are separate and distinct estates in land. 43 Tex.Jur.2d, Sec. 382, page 22; Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472.

Prior to their conveyance to Sel-man, Bristow and Austin owned 100% of the minerals in place. They could not, however, because of the outstanding royalty interest, convey to Selman the full fee simple title to the full J^ths of the minerals and yet at the same time reserve ¼⅛ °f the minerals for themselves. Obviously, to give effect to both the grant and the reservation would be impossible. In such a situation, the rule is that if both grant and reservation cannot be given effect, the grant prevails and the reservation fails. Klein v. Humble Oil & Refining Co., 126 Tex. 450, 86 S.W.2d 1077.

The Weeden reservation of ⅛⅛ of the usual Ysth royalty was a reservation of ⅜4⅛ of the royalty on the entire mineral estate. In effectj such a reservation would be equivalent to a reservation of ⅛⅛ of the mineral estate, i. e., the usual ⅛⅛ royalty on an undivided ⅛⅛ of the minerals would amount to a Yetth royalty on the entire mineral estate.

When Bristow and Austin reserved ¼⅛ of the minerals, they then became entitled to ¼⅛ of the usual ⅛⅛ royalty and were thus the owners of a %2nd royalty upon the entire mineral estate. Thus, their reservation left them with more than enough minerals and royalty to satisfy the previous royalty reservation without effecting their conveyance to Selman of a full ¿4ths of the minerals. Since the grantors undertook to convey a full ^ths of the minerals and had the power to do so, they will be held to this undertaking. The deed was therefore effective to convey to Selman the surface and an unencumbered, unrestricted ^ths of the minerals. Howell v. Liles, (Tex.Civ.App.) 246 S.W.2d 260; Peavy-Moore Lumber Co. v. Duhig, supra; Continental Oil Co. v. Tate, 211 La. 852, 854, 30 So.2d 858; 7 Oil & Gas Reporter, page 636; 1 Oil & Gas Reporter, page 509; 1 Williams and Meyers Oil & Gas Law, Sec. 311, pages 568-580; 42 Tex.Jur.2d, Oil & Gas, Sec. 75, page 181; 36 Tex.Law Review, page 412.

Although Bristow and Austin had knowledge of the Weeden royalty reservation, nevertheless they chose to warrant the title to Selman, and thereby assumed the risk of failure of title. 42 Tex.Jur.2d, Sec. 75, page 181.

While the covenants of general warranty cannot be construed as enlarging the title conveyed or impairing the grantors’ title to ⅛⅛ of the minerals reserved to them, the warranty operates as an estoppel denying to the grantors the right to set up their ⅛⅛ undivided interest in the mineral estate against the grantee’s title to the $4ths undivided interest therein. Box v. Lawrence, 14 Tex. 545; Peavy-Moore Lumber Co. v. Duhig, supra, and Howell v. Liles, supra.

For the reasons stated, that portion of the judgment decreeing a proportionate reduction of the mineral estate conveyed to R. E. Selman by the 92.2 acre deed is reversed and judgment is hereby rendered granting R. E. Selman and wife, Nettie Selman, all right, title and interest to an undivided ^ths of the minerals in and under the land described by the deed. In all other respects, the judgment of the trial court is affirmed.

Affirmed in part and in part reversed and rendered.