author: GREENHILL, Justice.

text:
    W. L. HOOKS et al., Petitioners, v. EAST TEXAS PULP AND PAPER COM- . PANY et al., Respondents.
    No. A-9235.
    Supreme Court of Texas.
    May 22, 1963.
    Rehearing Denied July 17, 1963.
    Ernest A. Knipp, Houston, for petitioners.
    Grady O. Trimble, Jr., B. F. Whitworth, Jasper, for respondents.
   GREENHILL, Justice.

East Texas Pulp and Paper Company and Champion Papers, Inc., brought this suit on May 21, 1962, against the tax assessor-collector and the members of the Board of Equalization for the Hull-Daisetta Independent School District in Liberty County. Petitioner Hooks is chairman of that board. The suit was to enjoin the board from finally fixing the 1962 taxable value for their properties until they were given access to all the public records of the tax assessor-collector and to the proposed assessments for properties in the district other than their own. After entering a temporary restraining order without notice, the district court refused, upon hearing, to grant a temporary injunction. The Court of Civil Appeals has reversed and has ordered that the defendants be enjoined from acting as a board of equalization for the purpose of finally determining the taxable values of plaintiffs’ property until the defendants made available to plaintiffs the proposed assessed valuations for the year 1962 for all of the properties in the district. 359 S.W.Zd 955.

The facts brought out at the temporary injunction hearing are as follows: East Texas and Champion are owners of several thousands of acres of timberland in the school district. They own only the surface estate. They do not own the subsurface which is part of a valuable, producing oil and gas reservoir. These mineral estates are owned mainly by a number of oil companies. The timberlands, along with ordinary real estate, homes, and businesses, are carried on the tax assessor’s “B” tax roll; whereas the oil and gas interests lying beneath plaintiffs’ timberland are carried on the “A” roll. The “A” roll also includes all utility properties in the district.

East Texas and Champion had theretofore rendered their properties to taxation by mailing or otherwise delivering their renditions to the assessor-collector. The affidavits attached to the renditions were taken before notaries outside of Liberty County and the school district. Similarly, the renditions of the properties of the oil companies were prepared in other counties (mainly Dallas and Harris) and mailed or delivered to the assessor-collector. These facts become relevant under International & G. N. Ry. Co. v. Smith County, 54 Tex. 1, to be discussed later herein.

East Texas and Champion claim that they were wrongfully denied access to the proposed assessments for the “A” roll properties which were needed for study and comparison prior to the hearing date when the board fixes the final taxable values of their timberland. The proposed assessments of the “A” roll properties, they assert, were necessary to prove their case of a discriminatory tax scheme at the board hearing. One of the reasons given by them as to why they needed to examine the proposed assessments on both the “A” and “B” rolls at a reasonable time before the hearing was that the total of all taxable values in the school district was planned to be increased 24% over the 1961 total taxable value. The figures on their schedule show that the raise was to be effected by increasing the oil, gas, and utility properties listed in the “A” roll by 12%; the remaining property in the district, contained in the “B” roll, was to be increased by over 105%. Thus, plaintiffs’ timberland and the other “B” roll properties would bear the brunt of the new tax burden. Without access to the “A” roll proposals prior to the board meeting, East Texas and Champion argue, they would not have time or opportunity to analyze and prepare the evidence necessary to prove a discriminatory tax scheme at the board meeting.

On May 9, 1962, the Board of Equalization mailed notice to East Texas to appear on May 22, at which time the board would hear evidence and “finally fix, determine, and equalize” the 1962 taxable values on the timberland. The notice did not indicate at what value the board was proposing that the property be assessed. Champion received a similar notice directing it to appear on May 23.

On May 16, representatives of both companies, including Mr. Glen Kirby who was manager of the East Texas tax and title department, went to the tax assessor’s office to obtain information about the basis of the over-all assessments for the district. Kirby testified that this was common practice among all large landowners. Upon inquiry, it was discovered that Mr. English, the assessor-collector, was away on a two-week vacation. Kirby then directed his questions to Mr. English’s two assistants and to Mr. Thomas, the superintendent of schools. Kirby asked for permission to see the renditions and proposed assessments on the oil and gas properties. He was told that the information “was not available,” and that it was in the hands of Thomas Y. Pickett & Co. at Dallas, Texas. Pickett & Company was the professional appraising company employed by the school district to make proposed assessments on the “A” roll properties, i. e., the oil, gas, and utility properties. Ap-praisement and proposed assessments of the “B” roll properties were done for the board by Southwestern Appraising Company of Stamford, Texas.

At the June 4 hearing on the temporary injunction, English testified that neither he nor the board had possession of the proposed assessments of “A” roll properties prepared by the Pickett Company, although there was testimony that the “A” roll renditions had been returned by Pickett on May 22. English further stated that the proposed assessments on such properties would not be available in his office until “approximately at the time the Board of Equalization meets.”

It is important, as will later be developed, that the companies at no time made demand upon, or request to, the board for the information which they sought. Neither East Texas nor Champion communicated in any manner with the board or any member of the board concerning their requests.

In so far as the right of the complaining companies to see the records of the assessor-collector are concerned, the case is moot. It was made plain to us on oral argument that these records had been made available to them at the time of trial in the district court. That is, the companies were allowed to see all of the public records which were in existence. They were not shown any proposed assessments made by the assessor-collector which would raise rendered values because, as we understand it, none had been made by him.

As the case developed in the Court of Civil Appeals, that court said, “We feel the sole question * ⅜ * is whether a taxpayer is entitled to have made available to him for inspection, the proposed assessable values to be placed on all other properties, at a reasonable time prior to the hearing before the board of equalization to determine the value of such taxpayer’s property.”

So the first question is whether, under the facts here presented, the assessor is under a duty to make a proposed assessment of the properties of the timber companies- or the oil company if he differs with the values as rendered by the taxpayers.

There are many statutes on taxation by various governmental agencies, and they leave a good deal to be desired from the-standpoint of clarity. Two of these statutes fix different duties upon the assessor-depending upon the method by which the rendition of the taxpayer is transmitted to-him. These statutes were distinguished: by this Court in International & G. N. Ry.. Co. v. Smith County, 54 Tex. 1 (1880). There a distinction was made between. (1) renditions made directly to the particular assessor and (2) renditions forwarded to the assessor by mail or otherwise-from another county, where the oath had been made before an officer of another county. The Court reasoned that where the rendition was made by the taxpayer to the assessor himself, the assessor had' the opportunity to discuss values with the-taxpayer. If they could not get together, and the assessor was satisfied that the rendered value was below the reasonable cash market value, Article 7211 (or its predecessors) said, in part, that the assessor “shall at once place on said rendition opposite each piece of property so rendered! an amount equal to the reasonable cash: market value of such property * * and if the person listing such property * * * is not satisfied with the value-placed on the property by the assessor, he-shall so notify the assessor, and if desiring so to do make oath before the assessor that the valuation so fixed by said officer om said property is excessive.” The assessor is then required to furnish his rendition and! the oath of the taxpayer to the commissioners court, or its equivalent here, the Board of Equalization, which shall hear evidence on the true valuation.

Article 7185 and its predecessors, on the other hand, were treated by this Court in the Smith County case as covering the situation where the taxpayer sent in his assessment from out of the county by mail, or otherwise, making an oath before an officer of another county. That statute says in part, “If the assessor is satisfied with the valuation as rendered * * *, he shall so enter the same; if he is not satisfied with the valuation, he shall refer the same to the board of equalization * * * for their action, and shall immediately notify the person from whom he received said list that he has referred said valuation to the board of equalization.”

It will be noted that under this article, there is no provision for the assessor to enter his assessment. If he differs with the taxpayer, he is directed to refer the matter to the board for its action.

Under these circumstances, this Court said in the Smith County case:

“Where, however, the person who makes oath to the list before some other officer, does so out of the county and forwards the list by mail, the case is clearly under section 5, and the assessor, if dissatisfied, is neither required nor empowered to affix a valuation, but should refer the same to the board of equalization. And although the inventory be forwarded otherwise than by mail, if it be by the hands of some person other than the one who listed the property, or other than one who appears to be equally authorized to represent the tax-payer, the proceeding would still be under section 5.” 54 Tex. 1 at 13.

As set out above, the renditions here by the paper companies were sent in by mail from out of the county as were the renditions of the oil companies in the “A” rolls. Under the Smith County case, the assessor was under no duty to make assessments. And, as above stated, the paper companies had not made demand upon the board of equalization for relief or for any information. The trial court therefore correctly denied the injunction here sought. Duck v. Peeler, 74 Tex. 268, 11 S.W. 1111 (1889). Inasmuch as the question of the duty of the board to furnish such information is not before us, anything we now say on that matter would be dictum. That question must therefore be reserved for such time as it is properly before the Court.

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

      . Articles 7211 and 7185 are made applicable to school districts by Article 1060a. All references to statutes herein are to Vernon's Civil Statutes of Texas Annotated.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    Doug CROUCH, Criminal District Attorney of Tarrant County, Relator, v. Honorable Harold CRAIK, Judge et al., Respondents.
    No. A-9447.
    Supreme Court of Texas.
    June 12, 1963.
    Rehearing Denied July 17, 1963.

      Doug Crouch, Dist. Atty., Albert F. Fick, Jr., and J. E. Winters, Asst. Dist. Attys., Fort Worth, for relator.
    M. Hendricks Brown, Fort Worth, for respondents.
   SMITH, Justice.

Clark’s Worth, Inc., and a number of its employees filed suit for injunctive relief and also for damages and for a declaratory judgment under the Uniform Declaratory Judgment Act of the State of Texas, against the Honorable Doug Crouch, individually and in his capacity as Criminal District Attorney of Tarrant County, Texas. In that suit Clark’s Worth, Inc., alleged that it owned and operated a department store in the City of Fort Worth, Tarrant County, Texas, and was engaged in selling and offering for sale merchandise such as clothing; home, business and office furniture, etc.; and that it and its employees, respondents herein, were lawfully operating such business and especially were not violating any of the provisions of Articles 286 and 287, of Vernon’s Annotated Penal Code, commonly known as the “Sunday Closing Laws” of Texas, but to the contrary all operations were permitted and were in accordance with Article 286a of the same ■Code.

Clark’s Worth, Inc., et al., further alleged that Crouch and his aids and assistants have arrested, caused to be arrested falsely, imprisoned and falsely charged each of the individual respondents herein for the ■alleged violation of the above mentioned .sections of the Penal Code of Texas.

Clark’s Worth, Inc., takes the position that Articles 286 and 287, supra, were either repealed or amended by the enactment of Articles 286a, supra, by the Legislature, thus leaving no authority for the prosecution of the criminal charges against the individual respondents. Clark’s Worth, Inc., et al., allege that under Section 4 of Article 286a, supra, the operation of any business whether by an individual, partnership or corporation contrary to the provi■sions of Article 286a, supra, would constitute a public nuisance, and under the provisions of Section 4, Crouch could apply to any court of competent jurisdiction for a writ of injunction restraining any violation of such Act. It appears that the respondents were taking the position that Section 4, supra, provided Crouch’s only remedy.

Crouch filed an answer and motion to dismiss alleging, among other things, that the 153rd District Court, the Civil District Court wherein the suit was pending, and the Court over which the Honorable Harold Craik, District Judge, presided lacked jurisdiction to the Clark’s Worth’s suit and was without power to enjoin and restrain the Criminal District Attorney of Tarrant County, Texas, from enforcing the criminal laws of the State of Texas. The Court overruled the motion to dismiss and in an order dated December 10, 1962, after stating that all allegations in the Clark’s Worth et al. petition were accepted as true, held that the District Attorney had a “full, adequate and complete remedy to enforce the provisions of the Act (286a), a remedy which would be fair and not oppressive to any of the parties involved.”

After a hearing, which began on January 7, 1963, the Court denied Clark’s Worth et al. any recovery for monetary damages, either actual or exemplary, and denied the prayer for a declaratory judgment, stating that such judgment was unnecessary in view of the injunctive relief granted. Final judgment was rendered and entered on January 28, 1963. Clark’s Worth, Inc., et al., appealed from that portion of the judgment denying damages and a declaratory judgment. Crouch did not appeal from the judgment wherein injunctive relief was granted in favor of Clark’s Worth, Inc., et al., but on February 8, 1963, filed in this court his motion for leave to file a petition for writ of mandamus and prohibition. On February 13, 1963, the motion for leave to file was granted and on March 27, 1963, the cause was submitted both by briefs and oral argument.

The relator, Doug Crouch, seeks relief in this court praying that a writ of mandamus issue commanding the respondent, the Honorable Harold Craik, Judge of the 153rd Judicial District Court of Tarrant County, Texas, to set aside the permanent injunction granted by him on January 28, 1963, in cause number 26815-C on the docket of said court, and that this court issue a writ of prohibition prohibiting him, as District Judge, from in anywise interfering with the relator in the enforcement of the provisions of Articles 286, 286a and 287 of the Penal Code of the State of Texas, and prohibiting said Judge from entering any order adjudging or attempting to adjudge the relator or his deputies in contempt of said court by reason of any alleged disobedience of the injunction.

The writ of mandamus and writ of prohibition will issue for the reasons now to be stated. The respondent, Craik, was without power to enter the order granting the injunction. Therefore, the order was void, and in such a situation, this court does not hesitate to exercise its jurisdiction and grant the writs prayed for. Yett v. Cook, 115 Tex. 175, 268 S.W. 715, 281 S.W. 843; Seagraves v. Green, 116 Tex. 220, 288 S.W. 417; Pickle v. McCall, 86 Tex. 212, 24 S.W. 265; State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272.

The respondent, Craik, admits in his brief, filed in this court, that Articles 286, 286a and 287 of the Texas Penal Code are valid statutes and have not been repealed. Section Sa of Article 286a expressly provides that it was not the intention of the Legislature to repeal Articles 286 and 287 by the adoption of 286a. However, Judge Craik does claim that Article 286 has been amended by the Legislature by its adoption of Article 286a, and that the relator, Crouch, is using the latter statute as a guise to perpetrate a gross abuse of the authority of his office. Judge Craik argues that the Clark’s Worth Department Store, in his opinion, is abiding by the law, as declared in Article 286a, and that the acts of Crouch in filing complaints for violations of the provisions of Article 286 were arbitrary and unlawful and the arrests which followed were unreasonable.

Ordinarily a court of equity, such as the acting court in this case, is not concerned with the enforcement of criminal laws. Judge Craik was, therefore, completely without authority to even suggest that the relator, in the exercise of his duties, should proceed under Section 4 of Article 286a, or should proceed in accordance with his interpretation of the Penal Code. Assuming all of the allegations of Clark’s Worth to be true, we still have no basis for holding that a court of equity has the power by injunction to stay the prosecution of criminal proceedings. The power and authority to interpret Articles 286, 286a and 287 rests solely with the courts of this state exercising criminal jurisdiction. It is only where a criminal statute is void and vested property rights are being impinged as the result of an attempt to enforce such void statutes that the jurisdiction of the courts of equity can be invoked. That situation does not exist in this case. Therefore, equitable jurisdiction does not exist. See: Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294; Ex parte Phares et al., 122 Tex. 104, 53 S.W.2d 297; State v. Ferguson, supra, 1 High on Injunctions (3rd ed.) 68; Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257, 258, 68 L.Ed. 596. For the reasons stated, the order issued by respondent, Craik, which has the effect of enjoining the relator from enforcing or attempting to enforce Articles 286 et al., supra, and which has the effect of suspending the operation of such statute is void. See: Section 28 of Article 1 of the Texas Constitution, Vernon’s Ann.St.

The writ of mandamus and prohibition is granted, but will actually issue only in the event of the failure of the respondent, Craik, to take action in accordance with this opinion.

      . “Art. 286. 302, 199, 186 Selling goods on Sunday
      “Any merchant, grocer, or dealer in wares or merchandise, or trader in any business whatsoever, or the proprietor of any place of public amusement, or the agent or employe of any such person, who shall sell, barter, or permit his place of business or place of public amusement to be open for the purpose of traffic or public amusement on Sunday, shall be fined not less than twenty nor more than fifty dollars. The term place of public amusement, shall be construed to mean circuses, theaters, variety threaters and such other amusements as are exhibited and for which, an admission fee is charged; and shall also include dances at disorderly houses, low dives and places of like character, with or without fees for admission. Act Dec. 2, 1871, Acts 1883, p. 66, Acts 1887, p. 108.”

      . “Art. 287. Permitting sale of certain articles on Sunday; regulations as to motion picture shows
      “The preceding Article shall not apply to markets or dealers in provisions as to sales of provisions made by them before nine o’clock A.M., nor to the sales of burial or shrouding material, newspapers, ice, ice cream, milk, nor to any sending of telegraph or telephone messages at any hour of the day or night, nor to keepers of drug stores, hotels, boarding houses, restaurants, livery stables, bath houses, or ice dealers, nor to telegraph or telephone offices, nor to sales of gasoline, •or other motor fuel, nor to vehicle lubricants, nor to motion picture shows, ■or theatres operated in any incorporated •city or town, after one o’clock P. M. ⅜ * * Acts 1925, 39th Leg., p. 347, ch. 139, § 1; Acts 1931, 42nd Leg., p. 195, ch. 116.”

      . “Art. 286a. Sale of goods on both the two consecutive days of Saturday and Sunday
      Prohibition of sales; items; misdemeanor
      “Section 1. Any person, on both the two (2) consecutive days of Saturday and Sunday, who sells or offers for sale or shall compel, force or oblige his employees to sell any clothing; clothing accessories; wearing apparel; footwear; headwear; home, business, office or out•door furniture; kitchenware; kitchen utensils; china; home appliances; ¡stoves; refrigerators; air conditioners; •electric fans; radios; television sets; washing machines; driers; cameras; hardware; tools, excluding nonpower driven hand tools; jewelry; precious or semi-precious stones; silverware; watches; clocks; luggage; motor vehicles ; musical instruments; recordings ; toys, excluding items customarily sold as novelties and souvenirs; mattresses ; bed coverings; household linens; floor coverings ; lamps; draperies; blinds; curtains; mirrors; lawn mowers or cloth piece goods shall be guilty of a misdemeanor. Each separate sale shall constitute a separate offense.”

      . “Purpose; public nuisances; injunction; application and proceedings
      “See. 4. The purpose of this Act being to promote the health, recreation and welfare of the people of this state, the operation of any business whether by any individual, partnership or corporation contrary to the provisions of this Act is declared to be a public nuisance and any person may apply to any court of competent jurisdiction for and may obtain an injunction restraining such violation of this Act. Such proceedings shall be guided by the rules of other injunction proceedings.”

      . “(3) That a Declaratory Judgment be entered in favor of each of the plaintiffs declaring that defendant would not be entitled to an injunction against them under the provisions of Section 4 of Article 286a of the Penal Code, and declaring that the conduct herein described of the plaintiffs does not amount to a public nuisance under the law and further declaring the legal rights of each of the plaintiffs under the premises.”

      . “(A) The defendant, Doug Crouch, Crimimal District Attorney of Tar-rant County, Texas, and his deputies and assistants are permanently enjoined and restrained from arresting, charging by complaint, imprisoning, or harassing any of the individual plaintiffs or inter-venors named herein or any other clerk, agent or employee of Clark’s Worth, Inc. for selling or offering for sale merchandise described and permitted to be sold in Section 1 of Article 286a of the Penal Code (being an act of the first called session of the 57th Legislature of 1961) and not prohibited to be sold in such Section at the mercantile store of Clark’s Worth, Inc. at 2530 North Commerce (Sometimes known as 2600 North Main Street) in the City of Port Worth, Tar-rant County, Texas, or preventing said store from remaining open on Sunday for the purpose of traffic in such non-prohibited sales, or otherwise interfering with any of such plaintiffs or agents of such Clark’s Worth, Inc. in the carrying on of a Sunday business in the sale or offering for sale of such permitted items of merchandise at any time hereafter for any Sunday sale or Sunday mercantile transaction not prohibited by the provisions of Article 286a of the Penal Code as long as such Clark’s Worth, Inc. and/or such individual plaintiffs and inter-venors have not been selling or offering for sale such merchandise or having its mercantile store open for business on tlm Saturday immediately before any Sunday on which any sale or mercantile business has been carried on, to which portion of the judgment the defendant duly excepted.”


author: CULVER, Justice. GREENHILL, Justice

text:
    John Charles WALL, Petitioner, v. TRINITY SAND AND GRAVEL COMPANY, Respondent.
    No. A-9415.
    Supreme Court of Texas.
    June 5, 1963.
    Rehearing Denied July 10, 1963.

      Beck & Beck, Beaumont, for petitioner.
    Crutchfield & De Cordova, Beaumont, for respondent.
   CULVER, Justice.

John Charles Wall sued Trinity Sand' and Gravel Company to recover the balance claimed to be due him as a result of the-exercise of an option by Trinity to extend' the term of a noncompetitive agreement-entered into between the parties. Judgmerit was rendered by the trial court in Wall’s favor for the amount prayed for, on the-premise that Trinity had chosen to extend the agreement for a term of four years and' became obligated to Wall for the full consideration at the rate of $5,000.00 per year.. That portion of the trial court’s judgment-has been reversed and rendered by the-Court of Civil Appeals. 363 S.W.2d 301..

The case was tried upon an agreed statement of facts which, so far as material' here, consists solely of documentary evidence, namely, the noncompetitive agreement executed by Wall and the subsequent correspondence pertaining thereto passing-between the parties. They stipulated that the case presented only questions of law..

The option agreement reads as follows::

“ * * * the undersigned hereby grants to said Trinity Sand and Gravel Company the option to extend this agreement beyond the term of my employment by the said Trinity by paying the undersigned at the rate of Five Thousand ($5,000.00) Dollars per year for such additional time, but in no event to exceed ten (10) years from date hereof. * *

The Court of Civil Appeals construed1 the contract to provide that Trinity could' in no way exercise the option to extend1 except by payment to Wall of the consideration in cash. That court held that since Trinity had paid to Wall the sum of' $5,000.00 it had thereby exercised the option to extend for a period of one year andl no more, and therefore Trinity was not obligated in any additional amount.

Conceding that the Court of Civil Appeals correctly construed the contract, yet in our opinion the liability of Trinity cannot be disposed of on that premise for we conclude that the parties subsequently agreed that the option might be otherwise exercised.

Wall’s employment with Trinity was terminated on October 31, 1960. On that date he wrote Trinity in reference to the noncompetitive agreement as follows:

“I now call upon you to either exercise this option or relieve me therefrom. Though said agreement did not provide for a time or manner in which said option should be exercised, I hereby give you two weeks from this date within which to exercise or not exercise same, and if you exercise same, to provide the period of time you wish, and request that official notification of your action be made in writing and directed to me in care of J. R. Beck, P. O. Box 149, Beaumont, Texas. If you have not exercised such option within the two weeks period, I will consider myself relieved therefrom.”

On November ISth Trinity replied: “We hereby exercise the option to extend that agreement for four years from October 15, 1960.”

It was Mr. Wall’s understanding, as stated in his letter, that the agreement was silent as to the time or manner in which Trinity could exercise the option. He requested that Trinity notify him by letter of its decision. The letter constituted an offer to modify the terms of the contract in regard to the manner of exercising the option and this offer on Wall’s part was accepted by Trinity’s reply. We believe that by this exchange the obligation of both parties became fixed and the necessity of exercising the option only by paying the cash consideration was abrogated by mutual consent.

By letter of January 3, 1961, Wall recognized that Trinity had exercised the option for four years and called upon it to pay the full contract price for that term of years.

Then on the following 25th of January Trinity wrote enclosing its check for $5,000.00 reciting that it was in payment for an extension of one year on the agreement and reaffirmed its exercise of the option to extend for four years as follows:

“This has reference to our letter of November 15, 1960, in which we exercised our option by notifying Mr. Wall of our extension of the said non-competition agreement until October 15, 1964. This check is in payment for the first full year, through October 31, 1961.”

Trinity insists that Wall had no power to alter or revoke the offer in the option contract, citing Corbin on Contracts, Vol. 1, § 39. We quite agree that after an offer has once been made in a manner that is sufficient to make it irrevocable it cannot be varied or revoked by the offeror unilaterally. But that is not to say that both parties cannot subsequently agree to modify the terms of that offer and the manner of acceptance.

Professor Williston in his Contracts, Third Edition, Vol. 1, § 76, p. 251, states the rule as follows:

“ * * * Even though the offer prescribes as a condition and not merely a suggestion a particular mode of acceptance, a different mode adopted by the acceptor will become effectual if the offeror thereafter manifests his assent to the other party but it seems not otherwise.”

Trinity says that there was no intent on its part to modify the terms of the contract by its letter of November 15, 1960, for the reason that this letter was in reply to Wall’s letter of October 31st which requested Trinity to notify him as to its intention with respect to exercising the option. Apparently Trinity construes its letter as being a notification that it merely intended to exercise the option at some later date by paying the consideration subsequently. We are bound to gather the intention of the parties from what they have actually written. Wall’s letter expressly calls upon Trinity to take action within a period of two weeks and to give him “official notification” in writing. In reply to that letter Trinity gave notification not of any future intention, but of a present and final exercise of the option.

Trinity further contends that its letter of January 25th was an offer on its part to exercise the extension option for a period of one year; that Wall did not accept this offer, but in fact made a counteroffer to Trinity of an extension of three years and eleven months for the sum of $19,791.66 and since the counteroffer was not accepted by Trinity there was no contract. This contention might be correct if Trinity’s letter of January 25th had been written in response to Wall’s letter of October 31st. But it had already exercised the option by its letter of November 15th. Trinity cites the case of Dreyfuss & Son v. Benson, Tex. Civ.App., 239 S.W. 347, as being analogous to the situation here. In that case the employee had granted to his employer the option to purchase his stock in the company at its book value. The employer wrote the employee that he had exercised this option according to its terms. The court held that the transfer of the stock would not be affected until payment had been made therefor, and that the employee had the right before parting with title to satisfy himself as to the value of the stock by an examination of the company’s books. The court did not say that the employer had not exercised the option or was not bound to pay for the stock. We do not see the application of that case to the facts here.

The only reasonable construction that can he given to Trinity’s letter of January 25th is that it reaffirmed the exercise of the option for a period of four years and agreed to pay the balance of the consideration of $5,000.00 per year in three annual installments. Wall, on the other hand, insisted that the full consideration was due and payable in advance for whatever period of time the agreement might be extended. He accepted the $5,000.00 tendered by Trinity and applied it as part payment.

We agree with the conclusion reached by the trial court that when Trinity exercised the option to extend the agreement for a four-year term it then became obligated to pay Wall the full consideration for the entire term. Implicit in the agreement, if not so expressed, was the intention of the parties that for whatever term Trinity might choose, the whole consideration for that term would be due and payable in one sum and not in installments. The obligation assumed by Trinity was to pay Wall “at the rate of $5,000.00 per year for such additional term". Under this contract the term could be extended for any period of time not to exceed ten years, but the option was not a continuing one. Trinity was not entitled to exercise the option by the year.

No contention has been made here or in the Court of Civil Appeals that the consideration for the exercise of the option was not to be paid in advance. Trinity’s position in the Court of Civil Appeals was, that if the court determined that Trinity had exercised the option for a term of four years, the consideration would be payable in four equal annual installments of $5,000.-00 each. In conformity to that understanding it paid for the first year in advance.

Trinity bases this contention on its interpretation of the phrase contained in the option agreement, namely, “by paying the undersigned at the rate of $5,000.00 per year”. We disagree with that contention. This phrase only furnished the basis for determining the whole amount of the consideration to be paid, depending upon the length of the term for which the option was exercised. It is tantamount to the use of the words “at the rate of $100.00 per acre” in ascertaining the total price of a tract of land. It is likewise similar to an employee’s salary which is set at so much per annum. The words “per annum” or “per year” refer to the period of employment and the amount of the annual salary, not to the time of payment. Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324.

We therefore hold that Trinity Sand and Gravel Company made a valid and binding contract with Wall to pay him the sum of $19,791.66 for his agreement not to compete for a period of approximately four years. We therefore reverse the judgment of the Court of Civil Appeals in so far as it modified the judgment of the trial court and affirm the judgment of the trial court.

GREENHILL, Justice

(dissenting).

The offer by Wall was a classic example of a unilateral, as opposed to a bilateral, form of contract. Wall’s offer was to be accepted by action, and not a promise of action. His offer was that if Trinity would pay him $5,000, he would not compete for one year. He did not ask for a promise of payment, and a mere promise to pay could not constitute an acceptance of that offer.

In like manner, Wall gave Trinity the option [an offer] that if each year for 10 years Trinity would do the act required, i. e., pay $5,000, he would refrain from competing for such period of time. Again, the unilateral offer called for the doing of an act, not a promise to do an act.

Trinity had paid Wall $5,000. On the basis of that act, there was a binding unilateral contract for one year. But Trinity could not accept the option or offer for a longer period of time by any promise or agreement to pay. The Court of Civil Appeals so held, and I agree with the opinion of that court. 363 S.W.2d 301.

The majority has passed over this issue, which I regard as the main one in the case, and has found a completely new contract in the correspondence leading to this suit. In my opinion there was no meeting of the minds of the parties to any new contract. There being no binding new agreement, Trinity should not be held liable thereon.

      . The uneven amount is accounted for by the fact that Trinity chose to extend the agreement for four years beginning October 15, I960, as Wall’s employment was not terminated until October 31st. So the extension was for four years less 15 days.


author: NORVELL, Justice.

text:
    Donald M. MOTSENBOCKER, Petitioner, v. James W. WYATT, Respondent.
    No. A-9288.
    Supreme Court of Texas.
    June 26, 1963.
    Rehearing Denied July 24, 1963.

      Thompson, Knight, Wright & Simmons, John A. Gilliam and Timothy E. Kelley, Dallas, for petitioner.
    Bowyer, Thomas, Crozier & Harris, Wm. W. Sweet, Jr., Dallas, for respondent.
   NORVELL, Justice.

Gloria Ann Wyatt, a five-and-a-half-year-old child was injured when she attempted to get out of a moving automobile, and fell under the wheels of the car as it rolled down a slight incline. James W. Wyatt, the father of Gloria Ann, acting in his individual capacity and as next friend of his daughter, sued Donald M. Motsenbocker, the owner of the automobile for damages. The trial court rendered judgment, based upon the jury’s contributory negligence findings, that James W. Wyatt individually take nothing against Motsenbocker. As next friend, Wyatt was awarded a judgment of $250.00 on behalf of his daughter.

The Court of Civil Appeals held as a matter of law that the negligence of Wyatt (if such negligence be assumed to exist) was not a proximate cause of Gloria Ann’s injuries. Having thus exonerated Wyatt of contributory negligence, the court rendered judgment in favor of Wyatt individually and against Motsenbocker for $3,719.00.

Motsenbocker filed certain cross-points in the Court of Civil Appeals. That court sustained a motion filed by Wyatt, styled “Motion to Dismiss Appeal of Donald W. Motsenbocker,” and held that Motsenbocker’s cross-points could not be considered. See Wyatt v. Motsenbocker, Tex.Civ.App., 360 S.W.2d 543.

In our opinion the Court of Civil Appeals erred in holding as a matter of law that Wyatt was not guilty of contributory negligence. Ordinarily, this would call for a reversal of the judgment of the Court of Civil Appeals, and an affirmance of the judgment of the trial court. However, there is a point in Wyatt’s brief in the Court of Civil Appeals which asserts that the evidence was “insufficient” to sustain the jury’s answers to Special Issues 8-A, 8-B, and 8-C, relating to the alleged contributory negligence of Wyatt. We construe this point as invoking the fact jurisdiction of the Court of Civil Appeals to set aside such findings upon the theory that the jury’s answers were against the overwhelming preponderance of the evidence. King v. King, 150 Tex. 662, 244 S.W.2d 660; Garwood, “The Question of Insufficient Evidence on Appeal,” 30 Tex. Law Rev. 803; Calvert, “‘No Evidence’ and ‘Insufficient Evidence’ Points of Error,” 38 Tex.Law Rev. 361. For reasons hereinafter mentioned, we do not believe this cause is controlled by Barker v. Coastal Builders, 153 Tex. 540, 271 S.W.2d 798, and accordingly, this cause will be remanded to the Court of Civil Appeals for further consideration.

We are also of the opinion that the Court of Civil Appeals erred in dismissing Mot-senbocker’s cross-points contained in his brief filed in such court. After a remand, the Court of Civil Appeals should consider these cross-points should they become material in deciding whether the district court’s judgment should be reversed.

No appeal was taken from that portion of the judgment awarding $250.00 for the benefit of the injured child so that we need not consider this feature of the case. That portion of the trial court’s judgment remains undisturbed.

As bearing upon the contributory negligence defense asserted by Motsenbocker to Wyatt’s individual claim, the jury found that (8-A) Wyatt permitted Gloria Ann to be absent from her home without parental supervision for approximately one hour; that (8-B) such action on the part of Wyatt was negligence; and (8-C) a proximate cause of Gloria Ann’s injuries.

The petitioner here does not complain of the Court of Civil Appeals’ statement of the facts of the case which is believed to be substantially correct. That court expressly stated that it did not decide the “issue of basic negligence” of Wyatt, but held that there was no evidence that leaving the child unattended for period of one hour was the proximate cause of her injuries.

In our opinion, there was some evidence to support the jury’s finding that Wyatt and his wife were negligent under the “person of ordinary prudence” standard in allowing Gloria Ann and her younger brother to cross the street to play with a neighbor’s child and then leaving the child unattended for approximately an hour’s time without ascertaining whether or not the children actually remained on the neighbor’s premises or wandered into an area where they might encounter danger. Small children when unattended are apt to get into trouble. They often disobey instructions and find themselves in positions of danger wherein because of their tender years and lack of experience they cannot protect themselves. Admittedly, the actions of Mrs. Wyatt in allowing her children to cross the street to play with a neighbor’s children and then becoming preoccupied with preparing the family dinner and failing to make inquiry as to their welfare and whereabouts cannot be characterized as a particularly blameworthy type of conduct. Yet, if parents do not look after their children and protect them from danger, that obligation or moral duty devolves upon those members of the public generally who perchance may encounter these unsupervised children and realize that potential harm may come to them. We need not fully restate the facts as given in the opinion of the Court of Civil Appeals other than to say that after the Wyatt family returned from Sunday School, Gloria Ann expressed a desire to go to a public park to play. This park or playground was some two blocks distant from the Wyatt residence. The mother refused this requested permission but did allow Gloria Ann to cross the street and play with Cindy Nettles, a.neighbor’s child, with instructions to return home when Cindy went in to eat her dinner. No subsequent inquiry was made to ascertain if these instructions were being obeyed. In fact, they were disobeyed. Gloria Ann and her brother went to the park or playground and there met Mr. Motsenbocker and his young son who were engaged in flying a kite. About noon, Mr. Motsenbocker undertook to return the unsupervised Wyatt children to their home, and it was during the course of this undertaking that Gloria Ann was injured.

It is pointed out in the opinion of the Court of Civil Appeals that the question of negligence as well as that of proximate cause relating to supervision or lack of supervision by parents over minor children have been considered and determined by various courts with somewhat diversity in holdings. This is necessarily so because of the various factual circumstances presented in each case.

Perhaps as good a statement of the rule applicable to this class of cases as will be found in that made by Mr. Justice Williams (afterwards a member of this Court) speaking for the Galveston Court of Civil Appeals in Houston City Street Railway Co. v. Dillon, 3 Tex.Civ.App. 303, 22 S.W. 1066, no wr. hist., when he said :

“Negligence on the part of the parent must consist, in such matters, of neglect of the duty which every father and mother owe to their child, of exercising over it such protective care as its age, capacity, and the danger to which it may be exposed render reasonably necessary; and it is to be borne in mind that this is not the only duty which rests upon heads of families, but is only one among many, and its performance is to be exacted with due regard to their abilities, and to other demands upon their attention. The degree of care to be used must always be measured by the circumstances of the case. Care which would be adequate in some situations would be wholly inadequate in others. It is therefore a question peculiarly fit for the determination of a jury of ordinary men, in cases where there is not an entire abnegation of the duty which rests upon the parent, but an attempt to perform it, whether or not caution displayed was a discharge of the duty growing out of, and demanded by, the circumstances.”

Applying the rule stated to the facts of this case, we hold that there is some evidence supporting the jury’s finding that the parents were negligent under the test of the ordinary prudent person. We here again note that a discussion on this point was pretermitted by the Court of Civil Appeals, and hence it cannot be said that it passed upon the point which asserted that the jury’s finding of negligence was not supported by sufficient evidence or was against the overwhelming preponderance of the evidence.

As above noted, the Court of Civil Appeals held as a matter of law that Wyatt’s negligence (which for the purposes of argument the court assumed) was not a proximate cause of Gloria Ann’s injuries. Under the Texas special issue practice, the issue of foreseeability is contained in the definition of proximate cause. City of Dallas v. Maxwell, Tex.Comm.App., 248 S.W. 667, holding approved by the Supreme Court, Kuemmel v. Vradenburg, Tex.Civ.App., 239 S.W.2d 869, wr. ref., n. r. e. For a result to be legally foreseeable, however, it is not “required that the particular accident complained of should have been foreseen. All that is required is ‘that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.’ ” Carey v. Pure Distributing Corporation, 133 Tex. 31, 124 S.W.2d 847.

The case cited presented an unusual factual situation and this Court held that while the driver of the Pure truck could have foreseen some injury similar to that which occurred to Carey, he could not be charged with the ability to foresee an injury similar to that sustained by Carey’s wife, that is, a miscarriage caused by fright and emotional disturbance experienced by her upon seeing her husband injured. Insofar as the husband’s injuries were concerned this Court said that:

“The evidence shows that the defendants knew that the fastener holding the sideboard of this truck was defective. They also knew, or ought to have known, that should such fastener come loose the cans of oil on the side would be thrown from the truck, and into or onto the roadway along which it was traveling. Certainly a jury was justified in finding that a prudent person ought to foresee that an oil can of this kind, and contents, suddenly propelled from the side of a moving truck along a highway would be liable to injure some person also using or occupying such highway. In order to constitute the owner and the driver of this truck liable for the injuries sustained by Walter Carey, they did not have to foresee that his injuries would occur in the exact way in which they did occur. It was only necessary that they should foresee that if this oil can should be thrown from this truck in the way and manner that it was, the natural and probable result would be to injure some person using such roadway.” [Italics supplied.]

In the present case the exact way in which Gloria Ann was injured was unusual, but the general nature of the injury was not. One of the most common injuries suffered by young children when left unattended and without supervision is that of being struck by a motor vehicle. If the fact of negligence in leaving the child unattended be established, injury by being struck with an automobile seems clearly foreseeable, and a jury was authorized to so hold under the evidence in this case.

It was not essential to the foreseeable element of the contributory negligence defense that Wyatt must have been able to “have anticipated and foreseen the peculiar chain of circumstances that led to the eventual injury of the child.” In unusual fact cases, a peculiar set of circumstances may be alluded to in an opinion and considered of some importance when the kind of injury which resulted is beyond reasonable human anticipation. However, where, as in this case, the kind or type of injury — being struck by an automobile — could have been reasonably foreseen as flowing from the negligent act, the peculiarity or unusualness of the chain of events which finally resulted in injury will not break the link of proximate causal connection.

We are also of the opinion that Motsen-bocker’s acts and conduct did not create a new and independent cause or a new and independent agency that led to Gloria Ann’s injuries. Wyatt was a plaintiff in the trial court suing in his individual capacity for damages accruing to him as a result of his daughter’s injuries. As between parties, in this case, Wyatt and Motsenbocker, the doctrine of “new and independent cause” is not ordinarily invoked to solve the proximate cause issue relating either to the negligence of the defendant or to the contributory negligence of the plaintiff.

In holding that it was not error to include the element of new and independent cause in the definition of proximate cause under the facts of the case, this Court in Lowri-more v. Sanders, 129 Tex. 563, 103 S.W.2d 739, said:

“The plaintiff’s claim for damages is based upon the defendant’s negligence ; one of the defendant’s defenses is the claim of contributory negligence of plaintiff, based in. part upon the above acts of the plaintiff. A new and independent cause could not arise out of an affirmative act of negligence by one of these parties.”

In J. S. Abercrombie Company v. Delcomyn, 134 Tex. 490, 135 S.W.2d 978, this Court said, “Any correct definition of new and intervening cause will exclude the idea that the negligent act of either of the parties may constitute such cause.”

In effect, the holding of the Court of Civil Appeals seems to be that the acts and conduct of Motsenbocker broke the causal connection between the negligence of the father and the injury of the child. We are unable to agree with this analysis. As a result of the child’s being left without supervision, she wandered into the park where Motsenbocker found her and offered to take her home rather than leave her and her younger brother unattended in the park. If we assume Motsenbocker to be negligent in the manner in which he attempted to discharge the obligation which he assumed, a jury could well conclude that the negligence of the parents in leaving the children unattended and unsupervised was still operative and that such negligence was a concurrent cause of Gloria Ann’s injury. In other words, it does not appear as a matter of law that Motsenbocker’s conduct was the sole cause of the child’s injury. The law does not excuse a parent’s neglect in failing to care for his child simply because some other person, upon finding the unattended child, makes an attempt to look after the child himself.

We hold that as a matter of law there is some evidence supporting the jury’s finding that Wyatt was negligent. The Court of Civil Appeals did not pass upon this point. And what is more important in determining what disposition should be made of this cause, i. e., whether to remand to the Court of Civil Appeals or to the trial court, the Court of Civil Appeals did not pass upon Wyatt’s contention that as a matter of fact, the jury’s answer to Special Issue 8-B, the negligence issue, was against the overwhelming preponderance of the evidence.

We also hold that there is some evidence supporting the jury’s finding that Wyatt’s negligence was a proximate cause of Gloria Ann’s injuries. From what we have said, it is apparent that the opposite holding of the Court of Civil Appeals was based upon two erroneous concepts of substantive law: first, that the negligence of Wyatt and his wife could not have been a proximate cause of Gloria Ann’s injury unless they could “have reasonably anticipated and foreseen the peculiar chain of circumstances that led to the eventual injury of the child”; and second, that acts and conduct of Motsenbocker could be a new and independent cause of the injury. When the action of a Court of Civil Appeals in sustaining a no evidence point of error is based upon an erroneous concept of applicable law, this Court will remand the case to that court for consideration, under correct principles of law, of points of error' asserting that the jury finding is against the overwhelming preponderance of the evidence. Corzelius v. Oliver, 148 Tex. 76, 220 S.W.2d 632; Hale v. Texas Employers’ Ins. Ass’n, 150 Tex. 215, 239 S.W.2d 608; Puryear v. Porter, 153 Tex. 82, 264 S.W.2d 689. As this cause must be remanded to the Court of Civil Appeals for a factual determination of the overwhelming preponderance of the evidence point upon the negligence issue (8-B), that court should also determine the factual contention that the jury’s finding on the proximate cause issue (8-C) is against the overwhelming preponderance of the evidence.

In view of a remand to the Court of Civil Appeals, there is another matter which calls for a brief discussion.

As heretofore noted, the judgment of the trial court was that Wyatt as next friend of Gloria Ann and in her behalf recover of Motsenbocker the sum of $250.00. As to Wyatt’s individual claim against Mot-senbocker, the trial court decreed that he take nothing. Motsenbocker did not appeal from the judgment. Wyatt, however, did appeal from the take-nothing judgment rendered against him in his individual capacity. Motsenbocker filed cross-points to this appeal which were predicated upon his motion to disregard the jury’s answers to special issues finding Motsenbocker guilty of certain acts of negligence proximately causing the injuries suffered by Gloria Ann. This motion was expressly overruled by the trial court. Motsenbocker did not urge in the Court of Civil Appeals that the judgment in favor of Gloria Ann be reversed. He was, however, entitled to assert by cross-point those matters which had been raised in the trial court by a motion to disregard the answers of the jury to certain issues whereby the jury found him guilty of negligence proximately causing Gloria Ann’s injuries. The sustaining of these cross-points would result in the defeating of Wyatt’s appeal and the sustaining of the trial court’s judgment that Wyatt take nothing in his individual capacity. We have this situation: the jury found that Motsen-bocker was negligent and that Wyatt was contributorily negligent. The judgment was that Wyatt take nothing. Motsenbocker in effect urged in the Court of Civil Appeals through his cross points that if that court should decide that Wyatt was not negligent, nevertheless the judgment should not be disturbed because the evidence shows conclusively that Motsenbocker was not negligent. Insofar as these cross-points were supported by Motsenbocker’s motion filed in the trial court, they were entitled to consideration by the Court of Civil Appeals. Rule 324, Texas Rules of Civil Procedure, Wagner v. Foster, 161 Tex. 333, 341 S.W. 2d 887; Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571, reversing Court of Civil Appeals, 185 S.W.2d 228, but expressly approving holding of that court with reference to consideration of cross-points; Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427; Ward v. Scarborough, Tex.Comm.App., 236 S.W. 441.

It is urged here that we may not properly review the Court of Civil Appeals’ action in refusing to consider Motsenbocker’s cross-points, because in his motion for rehearing he referred to a motion for an instructed verdict (which does not appear in the transcript) rather than his motion to disregard the negligence issues found against Motsenbocker. This matter would cause some concern if the reversal and remand were based thereon; but for the reasons above set forth, the cause must be remanded to the Court of Civil Appeals for further consideration. If that court should hold that the jury’s findings in answer to Special Issues Nos. 8-B and 8-C are not against the overwhelming preponderance of the evidence, there would be no necessity for considering Motsenbocker’s cross-points. However, should that court decide that the answer to either of such issues is against the overwhelming preponderance of the evidence, it would be necessary that Motsenbocker’s cross-points be considered and disposed of adversely to him before a new trial could properly be ordered.

No appeal having been taken from that portion of the judgment of the trial court awarding James W. Wyatt, as next friend, a recovery of $250.00 for the benefit of his daughter, Gloria Ann Wyatt, that portion of the trial court’s judgment is left undisturbed. The judgment of the Court of Civil Appeals insofar as it reverses the trial court’s judgment that Wyatt take nothing against Motsenbocker and renders judgment in favor of Wyatt in his individual capacity and against Motsenbocker for the sum of $3,719.00 is reversed and the cause remanded to the Court of Civil Appeals for further proceedings as are indicated by this opinion and not inconsistent therewith.

Judgment of the Court of Civil Appeals reversed and the cause remanded to that court for further proceedings.

      . Illustrative of various factual situation are the following cases in which it has been held that the question of a parent’s negligence was an issue for the jury or that the evidence as a matter of law showed or failed to show parental negligence :
      A. The question of negligence held to be for the jury:
      (1) Cases decided in favor of parents on negligence issue: Houston City St. Ry. Co. v. Dillon, 3 Tex.Civ. App. 303, 22 S.W. 1066, no wr. hist. Panhandle & Santa Fe Ry. Co. v. Haywood, Tex.Civ.App. (1921), 227 S.W. 347, wr. ref. Sciachitano v. City of Beaumont, Tex.Civ.App., 266 S.W. 588, no wr. hist. Pickens v. Southern Ry. Co., E.D.Tenn., 177 F.Supp. 553. Christiana v. Rattaro, 81 Cal.App. 2d 597, 184 P.2d 682. Atchison, Topeka & Santa Fe Ry. Co. v. McFarland, 2 Kan. 662, 43 P. 788. Gunderson v. Northwestern Elevator Co., 47 Minn. 161, 49 N.W. 694. Strutzel v. St. Paul City Ry. Co., 47 Minn. 543, 50 N.W. 690.
      (2) Cases decided against parents on negligence issue: Bullard v. McCarthy, 89 N.H. 158, 195 A. 355. Reber v. Hanson, 260 Wisc. 632, 51 N.W.2d 505.
      B. The question of negligence held to be a matter of law:
      (1) Cases decided in favor of parents on negligence issue: San Antonio St. Ry. Co. v. Caillonette, 79 Tex. 341, 15 S.W. 390. Collier v. Hill and Hill Exterminators, Tex.Civ. App., 322 S.W.2d 329, no wr. hist., 73 A.L.R.2d 1141. Doren v. Northwestern Baptist Hospital Association, 240 Minn. 181, 60 N.W.2d 361, 42 A.L.R.2d 921.
      (2) Cases decided against parents on negligence issue: Monge v. New Orleans Ry. & Light Co., 145 La. 435, 82 So. 397.

      . Motsenbocker left Ms Chevrolet automobile parked on a slight incline with the transmission in reverse gear. He did not put on the hand brake, and left the key in the motor switch. The turning of the key would start the motor even though the car was in gear. When Mot-senbocker told the Wyatt children he would take them home, he instructed them and his four-year-old son to go to the car and wait for him until he brought in the kite they had been flying. The children got in the car, and one of them must have turned the key which caused the automobile to start backing down the incline. Glorida Ann, in attempting to get out of the car, fell under the wheels and was injured. (See opinion of Court of Civil Appeals, 1. c. 360 S.W.2d, p. 545.)


author: CULVER, Justice.

text:
    Blanche CRISP, Petitioner, v. SECURITY NATIONAL INSURANCE COMPANY, Respondent.
    No. A-9470.
    Supreme Court of Texas.
    June 26, 1963.
    Rehearing Denied July 24, 1963.

      R. S. Sutton, Amarillo, for petitioner.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for respondent.
   CULVER, Justice.

The Security National Insurance Company issued its policy of fire insurance covering the household goods of the petitioner, Mrs. Crisp, in the total sum of $7,-500.00. The goods were totally destroyed by fire and this suit was brought to recover for the loss.

Based on jury findings the trial court entered a judgment for Mrs. Crisp in the amount of $7,500.00. The Court of Civil Appeals has reversed and remanded for another trial. 364 S.W.2d 283.

The issue submitted to the jury is as follows:

“What amount of money, if any, do you find from a preponderance of the evidence, was the actual value to the plaintiff at the time and place of its loss by fire, of the furniture, furnishings and personal belongings of the plaintiff.”
The liability clause in the policy reads:
“Subject to Article 6.13 of the Texas Insurance Code, 1951, liability hereunder shall not exceed the actual cash value of the property at the time of loss, ascertained with proper deduction for depreciation; nor shall it exceed the amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss, * *

The Court of Civil Appeals was of the opinion and so held that the case was tried on the wrong theory, namely, on that of an implied contract rather than on an express contract and that the correct measure of damage was not the actual value to the plaintiff of the property at the time and place of its loss, but the reasonable cost of replacing the property with material of like kind and quality, making allowance for depreciation.

We do not agree with this interpretation of the policy. The quoted clause constitutes only a limitation on the amount of recovery. It provides that the recovery shall not exceed the actual cash value of the property less depreciation nor exceed the cost of repair or replacement. It does not establish a contractual measure of damages to which the insured must be relegated.

Indemnity is the basis and foundation of insurance coverage not to exceed the amount of the policy, the objective being that the insured should neither reap economic gain nor incur a loss if adequately insured. Queen Ins. Co. v. Jefferson Ice Co., 64 Tex. 578; Monarch Fire Ins. Co. v. Redmon, Tex.Civ.App., 109 S.W.2d 177, no writ history; Finch v. Great American Ins. Co. et al., 101 Conn. 332, 125 A. 628, 38 A.L.R. 1068. As one early decision, Washington Mills Emery Mfg. Co. v. Weymouth & B. Mut. Fire Ins. Co., 135 Mass. 503, puts it:

“The contract of the insurer is not that, if the property is burned, he will pay its market value; but that he will indemnify the assured, that is, save him harmless or put him in as good a condition, so far as practicable, as he would have been in if no fire had occurred.”

The trend of the decisions increasingly is that the measure of recovery for fire damage shall correspond to the actual loss sustained by the insured in view of all the circumstances in the case. Valuation of Property to Measure Fire Insurance Losses. 29 Col.Law Review 857, 859.

It is a matter of common knowledge and of usual acceptation by the courts that used household goods, clothing and personal effects have no market value in the ordinary meaning of that term. They may be sold but only at considerable sacrifice which by no means represents the value of the articles to the owner. We find no recognized authority which would hold the insured to a recovery based solely on the proceeds obtainable on a secondhand market. Likewise, replacement costs do not afford a fair test. In some instances on account of obsolescence, change in style and fashion, this measure might represent an economic gain to the insured quite aside from the difficulty of application and proof. The measure of damage that should be applied in case of destruction of this kind of property is the actual worth or value of the articles to the owner for use in the condition in which they were at the time of the fire excluding any fanciful or sentimental considerations. Boise Ass’n of Credit Men v. U. S. Fire Ins. Co., 44 Idaho 249, 256 P. 523; Sun Fire Office of London v. Ayerst, 37 Neb. 184, 55 N.W. 635; Northern Assurance Co., Ltd. v. Stewart, 228 Ala. 201, 153 So. 243. See Appleman, Insurance Law and Practice, Vol. 6, § 3825; Couch Cyclopedia of Insurance Law, Vol. 7, § 1840. We are in agreement with the following statement from McAnarney v. Newark Fire Ins. Co., 247 N.Y. 176, 159 N.E. 902, 56 A.L.R. 1149:

“ * * * The law of damages distinguishes between marketable chattels possessed for purposes of sale and chattels possessed for the comfort and well-being of their owner. In the instance of the former it judges their value by the market price. In the instance of the latter it measures their loss, not by their value in a secondhand market, but by the value of their use to the owner who suffers from their deprivation. The latter measure is employed in the case of household furniture, family records, wearing apparel, personal effects, and family portraits. Barker v. Lewis Storage & Transfer Co., 78 Conn. 198, 61 A. 363, 3 Ann.Cas. 889; Green v. Boston & Lowell R. Co., 128 Mass. 221, 35 Am. Rep. 370; Lake v. Dye, 232 N.Y. 209, at p. 214, 133 N.E. 448. * *

The courts have not abandoned the consideration of either market or reproduction or replacement values in arriving at actual value to the insured, but evidence of those values may be used as a guide in making that determination rather than a shackle which compels strict adherence thereto. The trier of facts may consider original cost and cost of replacement, the opinions upon value given by qualified witnesses, the gainful uses to which the property has been put as well as any other facts reasonably tending to shed light upon the subject. Pinet v. New Hampshire Fire Ins. Co., 100 N.H. 346, 126 A.2d 262, 61 A.L.R.2d 706.

Where property, such as household goods and wearing apparel, has no recognized market value, the actual value to the owner must be determined without resort to market value. Britven v. Occidental Ins. Co., 234 Iowa 682, 13 N.W.2d 791; Lampe Market Co. v. Alliance Ins. Co., 71 S.D. 120, 22 N.W.2d 427; Featherston v. Hartford Fire Ins. Co., D.C., 146 F.Supp. 535.

We have not found that this problem has been directly passed upon by this court but a number of our Courts of Civil Appeals have discussed the problem and on the whole may be said to be in agreement with the foregoing principles.

In Southern Nat. Ins. Co. v. Wood, 63 Tex.Civ.App. 319, 133 S.W. 286, no writ history, the facts were somewhat similar to those under consideration here. The insured was permitted to testify as to what the value of the destroyed property was to her. She was held entitled to recover not merely what she could have sold the goods for in the market, but rather what their cash value was to her. In that case there was no proof of a market for household goods nor any testimony as to the cost of replacement. In Fidelity & Guaranty Fire Corp. v. Ormand, Tex.Civ.App., 62 S.W.2d 675, writ dismissed, the court upheld the following Special Issue on damages:

“From a preponderance of the testimony, what pecuniary loss or damage, if any, do you find was caused to the household furniture, wearing apparel and personal property of the plaintiff by reason of the fire * * *?”

See also Niagara Fire Ins. Co. v. Pool, Tex.Civ.App., 31 S.W.2d 850, writ dismissed ; Standard National Ins. Co. v. Bayless, Tex.Civ.App., 338 S.W.2d 313, writ refused, n. r. e.; Fire Ass’n of Philadelphia v. Coomer, Tex.Civ.App., 158 S.W.2d 355, no writ history; Monarch Fire Ins. Co. v. Redmon, supra; American General Ins. Co. v. Bell, Tex.Civ.App., 116 S.W.2d 877, no writ history.

It has long been the rule generally in this state that to compensate for the loss of used household furniture and personal effects the measure of damages is the value of such goods to the owner, that is, the actual loss in money he has sustained by being deprived of articles which are especially adapted to the use of the individual and his family. International & G. N. Ry. Co. v. Nicholson, 61 Tex. 550; Wells Fargo Express Co. v. Williams, Tex.Civ.App., 71 S.W. 314, writ refused. In fact some common carrier cases which announce this rule have cited and relied upon fire insurance decisions which apply the same measure of damages. See Wall v. Platt, 169 Mass. 398, 48 N.E. 270. We therefore hold that the trial court in the case here submitted a substantially correct guide for the jury’s use in ascertaining and fixing the insurer’s liability under the policy provisions.

The recovery in this case does not exceed the limitation of liability expressed in the policy. The company offered no evidence at all of the cost of replacement with materials of like kind and quality, nor any evidence bearing on the value of the goods at the time of the loss. The limitation that “liability herein shall not exceed the actual cash value of the property at the time of loss, ascertained with proper deduction for depreciation” may be construed as meaning the price of new property, as of the time of loss, of the same material and quality as the kind destroyed less the amount that the destroyed property would have depreciated over the period of time owned and used by the insured. In fact little distinction is to be made between the two limits of liability set out in the insurance contract. Fedas v. Insurance Co. of Pa., 300 Pa. 555, 151 A. 285; German Ins. Co. v. Everett, Tex.Civ.App., 36 S.W. 125.

The insurance company urges that there was no evidence of probative force to support the jury’s finding of value. This proposition seems to be based partly upon the contention that there were certain items of property upon which testimony of value was entirely lacking. No particularization is furnished and from a review of the evidence we are of the opinion that there is no substantial merit to this claim. All of the testimony that appears in the record was offered by the insured. The company’s local recording agent made an inspection of these goods before he issued the policy. He estimated at the time they were of good quality and worth the amount for which they were insured. He testified that Mrs. Crisp asked for a policy in the amount of $8,000.00, but that after an inspection of the property by him and a discussion with her he declined to write the policy for more than $7,500.00. Mrs. Crisp quoted the price and the date of purchase of various items of her property in the total sum'of approximately $9,000.00. She testified that she had taken good care of these furnishings and they were worth as much to her as when they were new. A dealer who had sold her much of her furniture testified that the quality was of a high type. Another dealer had sold to her over a period of several years about $1800.00 worth of the best grade carpeting. Photographs of the damaged goods were in evidence The home consisted of living room, dining room, two bedrooms, a hall and a kitchen, all completely furnished with articles commonly to be found, such as two bedroom suites, divan, tables, breakfront, buffet, chairs, lamps, two radios, bric-a-brac, clocks, refrigerator, dishwasher, dishes, silverware, provisions, cooking utensils, clothing, all of which were destroyed. Admittedly, a good deal of this property had been owned for quite some timé. But we are not concerned with market value and the jury could well determine that household furniture well cared for depreciates slowly so far as the use and value to the owner is concerned. Necessarily, proof of values of this kind of property is difficult and somewhat speculative, but in the state of the record before us at least we cannot say that there was no support for the jury’s valuation.

On the trial it was stipulated that the insurer mailed notice of cancellation of this policy to the insured at her correct address some months before the fire. But she denied having received the notice. The Court of Civil Appeals correctly held that her testimony raised a fact issue which the jury decided in her favor. The policy provides that the company “may cancel this policy by giving the insured five days written notice.” Unless the notice was received by this insured the attempted cancellation was ineffective. Mrs. Crisp had given her promissory note payable in installments in the amount of the premium and admittedly had defaulted in the payment of those installments according to the terms of the note, but that fact alone would not serve to render unnecessary the giving by the company of written notice of cancellation.

As a counter proposition insurer contends that the trial court was in error in respect to the form in which the special issue was given to the jury on the question of notice of cancellation. It reads:

“Do you find from a preponderance of the evidence, if any, that the written notice of cancellation, if any, was received by plaintiff five days prior to November 18, 1959?”

It was stipulated that the notice of cancellation was mailed at Amarillo, Texas, to Mrs. Crisp at her correct address in Amarillo, Texas, on June 10, 1959. In the normal course the notice should have been delivered on the following day. The issue inquires whether or not the notice was received by the insured five days prior to the date of the fire, November 18, 1959, or in other words on November 13th. The issue, if construed literally, places an impossible burden on the insurer. It was almost beyond the realm of possibility that a letter mailed on June 10th to an address in the same city would not be received until some five months later. The issue obviously is erroneous. It should have read “at least” five days prior to November 18th. However, there is nothing to show that the jury took the issue so literally and considered that they were limited to determining whether or not Mrs. Crisp actually received the notice on November 13th even though they should have believed that she had received it at some time prior thereto. The judge surely did not think the issue was so restricted. The testimony of Mrs. Crisp was that she never did receive the notice at any time. Argument of counsel is not before us and we may assume that if counsel for Mrs. Crisp so strictly construed this issue in his argument to the jury, an objection would have been made and the ruling; of the court preserved. In our opinion the error was therefore harmless.

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