author: BOYD, Justice.

text:
    Louis C. HENRIE, Appellant, v. William O. COMPTON et al., Appellees.
    No. 16317.
    Court of Civil Appeals of Texas. Fort Worth.
    April 27, 1962.
    Rehearing Denied June 1, 1962.
    Harris, Anderson, Henley & Rhodes, Dallas, Stone, Parker, Snakard, Friedman & Brown, John G. Street, Jr., and James A. McMullen III, Fort Worth, for appellant.
    Rawlings, Sayers, Scurlock & Eidson, Brown & Murray, and M. Hendricks Brown, Fort Worth, for appellees.
   BOYD, Justice.

Louis C. Henrie sued William O. Compton, Mrs. William O. Compton, Tommie G. Mercer, and Mrs. G. E. Mercer, individually and doing business as Tarrant Distributing Company, for damages for personal injuries and property loss resulting from a collision between a truck owned and operated by the plaintiff and a truck belonging to the defendants and being operated by their employee, Edward Castillo. Upon a jury verdict judgment was rendered for the defendants and the plaintiff appeals.

Appellant was driving his truck east on Vickery Street. The truck and cargo weighed about 50,000 pounds. Appellees’ truck was traveling east on the same street, ahead of appellant’s truck, and on the extreme south or right side of the street, when it turned to the left and was struck by appellant’s truck.

The jury found appellant’s damages in the amount of $30,500.00. It found that appellees’ driver was negligent in bringing his truck to a sudden stop after beginning the left turn, and that such negligence was a proximate cause of the collision; and in answer to issues Nos. 18 and 19 the jury found that the rate of speed at which appellant operated his truck as he approached appellees’ truck was negligence, and was a proximate cause.

Appellant seeks a reversal on his contentions that there was prejudicial jury misconduct; that he was deprived of a fair and impartial trial because one of the jurors was disqualified; and that it was error to admit a statement made by appellant to the Industrial Accident Board in regard to the circumstances of the accident.

On the voir dire examination of the jury panel, appellant asked all the prospective jurors whether they were biased or prejudiced in any way against any such suits as this; and he asked that any member who felt that he was biased or prejudiced to hold up his hand. No one held up his hand. Mr. Fugate said that he was not biased and that he would give a fair verdict. He was taken on the jury.

According to the testimony of the juror Mrs. Kanouse, on the hearing of the motion for a new trial, 10 jurors first voted “No” on issue No. 18, that is, that the rate of speed at which appellant was driving his truck was not negligence; after that vote was taken, Fugate told the jurors that “we always had to keep foremost in our mind that the defendant was innocent until proven without a reasonable doubt that he was guilty, and he stated this all the way through our discussions both days that we were in session;” he said that if there was any reasonable doubt it had to be given to the defendant; he made that statement more than once, “all the way through;” witness changed her vote, and told the jurors that maybe she had been wrong, and she would give the defendant the benefit of the doubt; Fugate said three or four times during the two days deliberations that he did not believe in such suits; “we hadn’t been in the jury room more than an hour at the very most when he made the first statement that * * * in other words, he wanted to hurry and get it over with, that it was absurd to him and that he just didn’t believe in carrying suits through;” she believed he made that statement before any issues were answered; “he told us that he had been in a car accident and had been laid up for a matter of a few months, and * * * but he certainly didn’t bring his case to trial or sue anyone; that he didn’t believe in it, and that he and his family ate pancakes for quite a long time because of the accident;” that statement was made before issue No. 18 was answered; the juror Mrs.' Miles told Fugate that he was prejudiced; during their deliberations Fugate said that he would not want anyone to bleed him for money; Fugate was very definitely the “low man” on the jury; he put an amount for appellant’s damages on the board and said that is what it should be, and that he would not agree to anything else.

The juror Mrs. Miles testified in substance as follows: Soon after the jury retired to deliberate, Fugate said he did not believe such suits should be brought; before any issues had been answered, witness said to Fugate, “Well, you are prejudiced. You shouldn’t have come * * he said he was in an accident, and “he didn’t sue because ⅝ * * he just didn’t think that was right, and that his family ate pancakes, I believe he made that expression, for three months;” before a verdict was reached he said that he would not want anyone to bleed him for money; after a vote had been taken on No. 18, when witness answered “No”, Fugate said the jurors were supposed to give the defendant the benefit of any reasonable doubt.

Fugate testified that he told the jurors that the reason he did not sue in connection with his accident was that the other party had no insurance and his lawyer said he could not collect; he did not tell them that they had to answer the issues on the basis that they had to find the defendant guilty beyond a reasonable doubt; when asked if he made any statement “along that line” he answered: “I did ⅜ * * I do recall that * * * it may be two or three times, and I don’t recall on what issues there were, but I do recall they were pertaining to, I think, the defendant at that time, that in my opinion I couldn’t find anyone guilty unless someone had proved them so beyond a reasonable doubt and in line with the credible testimony, and I still contend that, and I’ll always contend that;” he told the jurors that in his opinion the defendant “should be given the benefit of a reasonable doübt * * * and that’s how if would influence my own opinion, and I did not try to impress it that it should influence anyone else;” a juror said that witness was prejudiced; he perhaps made the statement that he did not want anybody to bleed him for money; “I did say that this could exist throughout our world today; * * * and again, I state, to me, ‘from a preponderance of the evidence, based on the credible testimony,’ has the same type of implication as proven guilty or beyond a reasonable doubt. * * * Q. Mr. Fugate, you did make the statement to the other jurors during their deliberations and before a verdict was reached that you had to prove the defendant guilty beyond a reasonable doubt, and if there was any reasonable doubt, the defendant was supposed to be given the benefit of that didn’t you? A. Based on the credible testimony and in my opinion, and that’s the way I would vote.”

Jeffreys, the foreman, testified that Fu-gate said that the defendant had to be proved guilty beyond a reasonable doubt; “Q. And he also said if there is any doubt you’ve got to give it to the defendant, didn’t he? A. Whether he made a statement just like that or not, I don’t recall. Q. Well, it was to that effect? A. To that effect.” “Mr. Fugate, made a statement similar to this: That maybe a few years ago he or his family one had a wreck and that he didn’t even ask anybody for anything * * * I told him that whether the man was guilty or not the only thing we had to go by was the charge that was given to us here as a jury;” witness told the jury “that they had to go by the court’s charge * * *. Q. Didn’t Mr. Fugate make a statement during the jury’s deliberation and before you all returned your verdict to the effect that he did not believe in such suits himself? A. Well, he made the' statement like I said in regards to reference of his personal accident;” witness would not say that he called Fugate down after he made each argument, but he did call him down and told him “this was what we had to go by.”

The court filed findings of fact and conclusions of law as to the hearing on motion for a new trial. It was found: Juror Fu-gate told the jurors that the defendant should be found innocent unless proved guilty beyond a reasonable doubt, and that the defendant should be given the benefit of a reasonable doubt; on at least one occasion the foreman admonished the jury that they were controlled by the charge; during the jury’s deliberation Fugate made the statement three or four times that he did not believe in such suits, and before the jury reached its verdict Fugate said that he would not want anyone to bleed him for money.

The court concluded that: the statements by Fugate as to the quantum of proof were improper, but did not constitute misconduct; but if they did constitute misconduct, from the record as a whole injury probably did not result to appellant; Fugate’s statements as to his failure to file a suit in connection with his own accident did not show bias or prejudice and did not constitute misconduct; but if such statements did show misconduct, it was concluded that injury probably did not result therefrom.

By the provisions of Rule 327, Texas Rules Civil Procedure, jury misconduct is not a ground for new trial unless the misconduct is material, and it reasonably appears from the evidence both on the hearing for new trial and from the record as a whole that injury probably resulted to the complaining party. Since the jurors who testified said they followed the charge as to the quantum of proof necessary for their findings, we think the court’s findings as to the gravity of the misconduct and lack of probable injury are warranted by the record.

However, we are of the opinion that the juror Fugate was biased and prejudiced against appellant’s case, and was disqualified to sit on this jury. If that be so, we do not think it is necessary to show probable injury.

Article 1, sec. 15, of the State Constitution, Vernon’s Ann.St., provides that the right of trial by jury shall remain inviolate. This means the right of trial by an impartial jury. Pierson v. State, 18 Tex. App. 524.

By the provisions of Article 2134, Vernon’s Ann.Tex.Civ.St, a person is disqualified as a juror if he has a bias or prejudice in favor of or against either of the parties.

“A fair and impartial trial by a fair and impartial jury is what the law exacts,, and this requirement becomes a delusion if' men with bias or prejudice or preconceived ideas of the rights of one are allowed to sit in judgment on his case.”' Gulf, C. & S. F. Ry. Co. v. Dickens, 54-Tex.Civ.App. 637, 118 S.W. 612.

It is not necessary that the disqualifying bias relate solely to the party-personally, but it may also relate to such' party’s case. Couts v. Neer, 70 Tex. 468,. 9 S.W. 40; Houston & T. C. Ry. Co. v., Terrell, 69 Tex. 650, 7 S.W. 670.

1 Bouvier’s Law Dictionary, p. 341, defines bias as follows: “A particular influential power which sways the judgment;, an inclination or propensity of the mind, towards a particular object.”

“ * * * the juror must be a perfect: perpendicular between the parties as such and in such situation as to be swayedl either one way or another. * * * it-, seems to us, when the statute says a certain cause shall disqualify a juror, if the-cause is found to exist, that should end. the matter.” Kansas City Life Ins. Co. v. Elmore, Tex.Civ.App., 226 S.W. 709.

“If a juror, when tested on his voir dire-concerning his qualifications to sit on the-jury in a particular case, denies the existence of any bias or prejudice in his. mind in favor of or against either party - to the suit, and is accepted as a juror on-, such statement according to the great weight of authority- when such bias or-prejudice does exist, the party against whom the same exists can complain of the same as a ground for setting aside the verdict. He is not required to show that such bias or prejudice caused or contributed to cause the return of an unjust verdict in his case. It is sufficient that he, without his fault, has been deprived of the constitutional and statutory guaranty of a trial of his case before a fair and impartial jury.” Rhoades v. El Paso & S. W. R. Co., Tex.Com.App., 248 S.W. 1064, 27 A.L.R. 1048. See, also, 39 Am.Jur., p. 65, sec. 45; Gulf, C. & S. F. Ry. Co. v. Dickens, 54 Tex.Civ.App. 637, 118 S.W. 612.

It is our opinion that the provision of Rule 327, requiring a showing of probable injury before a new trial will be granted, does not apply in the case of a disqualified juror. It is true that when the ground of the motion is that a juror gave an erroneous or incorrect answer on voir dire examination, said provision applies. But here the complaint is not that the juror gave an erroneous answer, although had he not done so, he would no doubt have been challenged either for cause or peremptorily; but the complaint here is that appellant, through no fault of his own, had to submit his case to a disqualified juror. The Rule does not provide that probable injury must be shown before a new trial may be granted when a disqualified juror sits on a case. Indeed, to so provide would be to change the law as it has existed since the adoption of the Constitution, and even before, because that instrument provides that the right of trial by jury shall remain inviolate. Moreover, the Rules do not change the grounds of disqualification set out in Article 2134, V.A.T.S. Swartout v. Holt, Tex.Civ.App., 272 S.W.2d 756.

The circumstances surrounding the admission of appellant’s letter to the Industrial Accident Board will probably not arise in the same form on another trial.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    Reynaldo MIRELES, Appellant, v. TEXAS LIQUOR CONTROL BOARD, Appellee.
    No. 3708.
    Court of Civil Appeals of Texas. Eastland.
    April 20, 1962.
    Bonilla, Thomas & DeAses, Corpus Christi, for appellant.

      Will Wilson, Atty. Gen., Austin, Norman V. Suarez & Irwin R. Salmanson, Asst. Attys. Gen., Austin, for appellee.
   GRISSOM, Chief Justice.

(1) On April 5, 1961, Reynaldo Mireles’ license to sell beer on the premises at retail was cancelled by the Texas Liquor Control Board. (2) On May 3, 1961, Mireles filed an appeal from the Board’s order cancelling his license in the 28th District Court of Nueces County. (3) On July 25, 1961, judgment was rendered by that court upholding said cancellation. That judgment became final and forever determined that Mireles’ license had been lawfully cancelled.

Within less than 12 months after cancellation of his license, Mireles filed with the Board an application for renewal of his license. On June 30, 1961, the Board refused said application for renewal of his license because his license had been can-celled on April 5th, 1961. On July 24, 1961, Mireles appealed to the 117th District Court of Nueces County from the order of the Board refusing to renew his license. On the same day the Judge of the 117th District Court ordered the Board “to renew” Mireles’ license pending a final hearing. The Board complied with that order. On September 5, 1961, the 117th District Court, in the appeal from the order refusing to renew Mireles’ license, sustained the Board’s plea in abatement and to the jurisdiction, dissolved the license issued because of its order and dismissed the case. Mireles has appealed.

The kind of license in question may be issued only for one year. The Texas Liquor Control Act prohibits renewal of an applicant’s license within twelve months after the date his license has been cancelled. Therefore, at the time Mireles filed an application for renewal of his license, and the Board refused to renew it, the Board could not have lawfully renewed his license.

The Board contends that, since Mireles’ license was cancelled on April 5, 1961, he appealed to the 28th District Court from the order cancelling his license and the judgment sustaining cancellation became final, the Board could not have renewed his license before April 5, 1962. We agree with this contention. Art. 667-22, Vernon’s Ann. P.C. It follows that Mireles did not have the cause of action asserted in the 117th District Court, that is, the right to compel the Board to renew his license within 12 months after its cancellation. That is the right he asserted before the Board, the 117th District Court and that he necessarily asserts here. Renewal of his license by the Board before April 5, 1962, was prohibited by P.C. Art. 667-22.

Appellant says the question before the 117th District Court had become moot before judgment was rendered there because prior to its rendition his cancelled license had expired by its own terms. In Texas Liquor Control Board v. Floyd, Tex.Civ. App., 117 S.W.2d 530, 537, it was held that, by virtue of P.C. Article 667-22, when a license has been cancelled renewal thereof within one year is prohibited and, further, that the issue as to the Board’s right to cancel did not become moot because prior to rendition of judgment the license expired by its own terms. We hold that the question before the 117th District Court did not become moot. Texas Liquor Control Board v. Blacher, Tex.Civ.App., 115 S.W.2d 1030, 1031.

Appellant’s license was cancelled by the Board on April 5, 1961. Cancellation was upheld by the 28th District Court. Mireles did not appeal from that judgment and it became final. It finally adjudicated and determined that his license was lawfully cancelled. Therefore, by virtue of P.C. Article 667-22 said Board could not have lawfully renewed appellant’s license within one year from the date of such cancellation, that is, before April 5th, 1962. We conclude that appellant’s asserted cause of action did not exist and that the court did not err in dismissing his case.

The judgment is affirmed.


author: ARCHER, Chief Justice.

text:
    Charles A. McCORMICK et al., Appellants, v. Miller RHOADES, Appellee.
    No. 10950.
    Court of Civil Appeals of Texas. Austin.
    May 16, 1962.
    Rehearing Denied June 6, 1962.
    Hornsby & Kirk, Austin, Elgar L. Robertson, Dallas, James R. Sloan, Austin, for appellants.
    David L. Tisinger, Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment in favor of appellee and against all of the appellants for $40,000.00.

Appellee sued the Executor of the Estate of Charles A. McCormick, herein referred to as Executor, the International Life Insurance Company, herein referred to as Insurance Company and the International Life Operating Company, herein referred to as Operating Company, on an alleged oral contract that on March 27, 1957 McCormick, since deceased, would within a year or eighteen months purchase or cause to he purchased from appellee Rhoades 10,000 shares of the Insurance Company stock for the sum of $60,000.00 and in the alternative Rhoades sued on a written contract dated March 27, 1957, executed only by the Operating Company, under which the Operating Company was given the option of purchasing as many as 10,000 shares at a price of $6.00 per share.

The Insurance Company and the Operating Company answered by general denial and special exception that the Insurance Company is not a party to the alleged written contract and such was void under Article 3.39, Section 4 of the Insurance Code, and in violation of Article 3.67 of the Insurance Code, V.A.T.S.

The Operating Company answered by general denial adopting the special exceptions of the Insurance Company and excepted to the pleading as a whole, alleging that the contract in any event was only an option and that none of the contingencies have ever materialized and such option had never been exercised and plead the Statute of Frauds, etc.

The defendant, Executor, answered by general denial and special exceptions and denied that McCormick was an agent or fiduciary of Rhoades in making any investments, or was acting jointly with either of the other defendants, and that any oral agreement alleged was without consideration and void; that any alleged oral agreement was merged in the written agreement and that plaintiff having accepted the written agreement is now estopped to claim under any oral agreement; that such written agreement was executed as president of the Operating Company and not individually; that such contract was without consideration and that any oral agreement is void under Article 3995(5), Vernon’s Ann.Civ.St.

A jury was selected and trial was had but after 24 hours of deliberation, the jury being unable to answer any of the questions submitted, announced that it was unable to agree and was, by the Court, discharged.

Rhoades made a motion for judgment for $40,000.00, which was granted by the Court.

The appellant, Bank as Executor, bases its appeal on the admission of testimony given by Rhoades relating to transactions and conversations with and statements by McCormick, deceased, as being in violation of the Dead Man’s Statute, Art. 3716, V. A.C.S., and that the admissible evidence against the Executor was insufficient as a matter of law to establish that McCormick individually made any contract with Rhoades by which it was agreed that McCormick individually was bound to purchase 10,000 shares of stock for $6.00 per share.

This suit was filed October 15, 1958. McCormick died June 15, 1959 and the Executor was substituted as defendant. The trial began on April 10, 1961. Prior to the examination and selection of a jury the Executor presented its motion to instruct as to the effect of Article 3716, which was overruled.

Depositions of McCormick and Rhoades had been taken prior to McCormick’s death, neither of which had been filed prior to the trial. McCormick’s deposition had not been signed. The Court admitted both depositions only for the purposes of such motion. Neither of the depositions were introduced on the trial. Rhoades was cross examined by counsel for the defendant Companies, to which the Executor objected.

When Rhoades was called to testify the Executor again objected, contending that any testimony as to the transactions with the deceased would violate Article 3716, which objection was overruled.

The allegations of Rhoades was that on or about the 27th day of March, 1957, he and Mr. McCormick agreed that within a year or eighteen months from such date McCormick would purchase or cause to be purchased 10,000 shares of stock from Rhoades for $60,000.00. Rhoades sued in the alternative on a written instrument between him and the Operating Company dated March 27, 1957.

The testimony of Rhoades was to numerous transactions and conversations with McCormick over a period of eight years; that in 1955 or 1956, or prior to March 24 or March 27 of 1956 or 1957, McCormick told Rhoades that he would personally guarantee $6.00 per share for 10,000 shares of stock.

The testimony of Rhoades in the main is:

“Q At the time this lawsuit was filed, how many shares of stock had you accumulated?
“A Well, at the time the lawsuit was filed, we was partners on one deal at the Capital National Bank. I think if I had kept the whole deal, it would have been something over 18,000 shares.
“Q Well, at the time this lawsuit was filed, did you — had you accumulated more than 10,000 shares?
"A Yes, sir.
“Q All right. Now, the latter part •of 1956 or the first part of 1957, or in that period, what are the facts respecting any conversations between you and Mr. McCormick as to purchase by you of stock and a repurchase figure of $6.00 a share?
“MR. ROBERTSON: Now, if it -please the Court, we will object to any oral negotiations concerning the sale of stock by Mr. Rhoades and Mr. McCormick, or to anybody, at $6.00 a share, because the Plaintiff has plead a written memorandum contract that is part of his pleading. This written contract is the sole depository, the agreement between the parties, and it is an attempt to vary and go behind the plain, clear and unambiguous terms of a written contract as plead by the Plaintiff.
“THE COURT: The objection is overruled.
“MR. ROBERTSON: Note our exception.
“MR. HORNSBY: The executor makes a similar objection, Your Hon- or, and note our exception.
“A I believe in 1955 at the Directors’ meeting which is held in March each year, around March 20th — I could be wrong in the year, either, ’55 or ’56 — it was a special insurance policy put in effect through the International Life Insurance Company, where it had accumulated a value over a period of eighteen months or two years, where they would receive so many shares of International Life Insurance stock for each $1,000.00 worth of insurance that they had, and at the time McCormick went to talking to me about the 10,000 shares of stock, the policy that I have reference to was in force approximately ten months or more, and it was some kind of ruling with the Insurance Commission that he was not allowed to juggle this stock, buy and sell, as he had been in the past. He contacted me to have available 10,000 shares of stock, and he told me before, six months before the Company had a dividend split in stock, that he would guarantee me personally $6.00 a share if I would have him 10,000 shares of stock where he could put his fingers on it at any time that he might need it, because these insur-anee policies were being sold rapidly, and that the accumulations was beginning to build up, and if the insured would request the stock, they had one or two options to go, but if the insured person requested the stock, McCormick had to have it some place where he could grab it overnight, and I signed an instrument, talking to McCormick as President of the International Life, President of the Western American Insurance Company, President of the— what do you call that other thing ? The Stock Company, Operating Company. I was talking to him individually and him only. I didn’t know what he was representing. I was dealing with or talking with Charles A. McCormick himself to have this stock available, which I did have.
“Q What did you tell him when you told him that ?
“A I told him I would guarantee to have 10,000 shares of stock for him within twelve or eighteen months after the contract was signed.
“Q Now, did he tell you whether he was representing only himself, or any of these Companies, or was anything said about it?
“A No, sir, and I wasn’t interested in it. I was talking to Charles McCormick himself, and I knew then and I know now that he wielded the whip. He ruled the roost in all three companies, and didn’t anybody do anything unless they got his okay first.
“Q All right, sir. Now about when was it he told you he would guarantee $6.00 a share?
“A Sometime prior to March 24th.
“Q Of what year?
“A 1956, I believe it is, or ’57.
* * * * *
“Q Now, what was its reasonable market value in Austin, Travis County, Texas, at the time you made demand on Mr. McCormick to pick yours up at $6.00?
“A $2.00 a share, $1.85 to $2.00 a share.
“Q And what was its market value at the time we filed this lawsuit?
“A Probably the same, $2.00.
“Q And what is its market value now?
“A Well, I don’t know for sure. $2.00 would be a big price for it.”
The written instrument sued on reads:
“THE STATE OF TEXAS] COUNTY OF TRAVIS}
“THIS MEMORANDUM OF AGREEMENT, between INTERNATIONAL LIFE OPERATING COMPANY, a Texas corporation with its principal office in the City of Austin, Texas, hereinafter called ‘OPERATING COMPANY,’ and MILLER F. RHOADES, a resident of Austin, Texas, hereinafter called ‘RHOADES,’
“WITNESSETH:
“Operating Company has heretofore issued and will hereafter issue to various insureds of International Life Insurance Company, Austin, Texas, who are holders of the company’s Investor’s Expansion Plan policy, a contract of agency, a copy of which is attached and made a part hereof, for all purposes; and in consequence thereof Operating Company will be required to purchase from time to time shares of stock of International Life Insurance Company in accordance with its agency agreement.
“Rhoades is the holder of considerable number of the shares of such stock, and has made his independent arrangement for the acquisition of additional shares from time to time.
“Operating Company wishes to have some assurance now of a source from which to purchase up to 10,000 shares contemplated by the agency agreements at the price of $6.00 per share for benefit of its principals in such agreements. Rhoades is willing to make such shares available upon demand from time to time at the price of $6.00 per share.
“IN CONSIDERATION of the premises and mutual undertakings and benefits derived and to be derived, it is therefore agreed between the parties that Operating Company shall have and is hereby given the option to purchase as many a’s 10,000 of such shares from Rhoades at the price of $6.00 per share, and Rhoades is hereby given the option to sell such shares from time to time to Operating Company at said price of $6.00 per share.”

Other witnesses, some of whom were employees of Rhoades, testified as having heard conversations between McCormick and Rhoades to the general effect that McCormick “wanted to buy the stock”, “when the stock is split” and “I will guarantee you $6.00.”

Since we are remanding this case for a determination by a Court or jury as to the fact issues relative to the Executor’s liability, we omit any further discussion of the testimony.

We believe that because McCormick’s testimony was available through his deposition and Rhoades had the opportunity of cross-examining McCormick on the deposition and did so, he could not have objected to the introduction of the deposition. McCormick & Ray, 723, 739; Lehman v. Howard, Tex.Civ.App., 133 S. W.2d 800, no writ history.

The Executor occupies no better position than did McCormick, when alive. Wootton v. Jones, Tex.Civ.App., 286 S.W. 680, error dism., w. o. j.; Burke v. Horth, 10 Cir., 293 F. 408; Shaller v. Allen, Tex. Civ.App., 278 S.W. 873, no writ history.

We are aware of the holding in Ivey v. Bondies, Tex.Civ.App., 44 S.W. 916, error ref. We believe that the Court erred in rendering judgment against the Executor because the evidence was not undisputed that on March 27, 1957 McCormick individually made an agreement to purchase 10,000 shares of stock at $6.00 per share. There were controverted fact issues to be decided by a jury.

Special Issues Nos. 1, 2, 3 and 4, requested by Rhoades, were submitted and were not answered. The issues inquired of the jury if McCormick agreed to purchase or cause to be purchased 10,000 shares for the sum of $60,000.00 and if Rhoades agreed that McCormick might purchase the shares at the fixed price stated, and what was the reasonable market value of the stock, and if the Life Insurance Company was acting jointly with McCormick. As stated, the jury could not agree on answers to these issues or any of the 37 other issues submitted.

It is error to instruct a verdict when the evidence raises any material issues. Air Conditioning v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422.

Then, a jury is not required to accept the uncorroborated testimony of a party to a suit as such does no more than to raise a fact issue to be determined by the jury. Flack v. First National Bank of Dalhart, 148 Tex 495, 226 S.W.2d 628; Long v. Knox, 155 Tex. 581, 291 S.W.2d 292; Taylor & Son, Inc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371, 376.

Appellants International Life Insurance Company and International Life Operating Company assign as error the action of the Court in failing to hold as a matter of law that the purported contracts relied on by appellee were illegal and void and in direct contravention and violation of Articles 3.67 and 3.39, Sec. 4, of the Insurance Code, and in holding that McCormick was acting in behalf of the appellants; in holding that there was evidence which would make the appellants a party to the contract relied on by appellee; that the Court erred in holding that the evidence was sufficient to make appellants parties to any contract, written or oral, with appellee and as relied on by appellee; that the Court erred in granting judgment against appellants because the evidence showed that the purported contract between Rhoades and International Life Operating Company was not signed until after March 6, 1958, at which time McCormick was not an officer, director, or in any way connected with appellants; that in any event the purported contract was no more than an option contract and the Court erred in not so holding; in granting a judgment for plaintiff and against appellants because there are disputed issues of fact as to each and all of the claims plead by plaintiff upon which reasonable minds may differ.

We have hereinabove stated the alleged cause of action and briefly the answers of the defendants, have reviewed the evidence and restated a portion, have embodied other portions of the testimony, and we will not again attempt to review the evidence in further detail. We have herein concluded to reverse and remand the case as it affects the Executor and believe that the case should be reversed and rendered in favor of the appellants, the Life Insurance Company and the Operating Company. The contract sued on by Rhoades by its own terms grants the Operating Company the option to purchase as many as 10,000 shares of such stock from Rhoades at the price of $6.00 per share.

The testimony of Mr. Rhoades is that he was dealing with or talking with McCormick himself and was not interested in who McCormick was representing and did not pay any attention to International Life, but dealt with McCormick, him, and him only.

It was stipulated that the notary who took the acknowledgment on the memorandum written agreement would testify if present that she back-dated the same. It is undisputed that McCormick sold his interest in the Life Insurance Company in December, 1957 and was not an officer of same at any time during 1958 or subsequent. Mr. Rhoades was a Director of the Life Insurance Company and as such was. not permitted to receive any money from the Company in negotiating any purchase or sale by such Company.

Art. 3.67, Insurance Code, reads as follows:

“Director Not to Do Certain Things.— No director or officer of any insurance company transacting business in or organized under the laws of this State, shall receive any money or valuable thing for negotiating, procuring, recommending or aiding in any purchase or sale by such company of any property, or any loan from such company, nor be pecuniarily interested, either as principal, co-principal, agent or beneficiary in any such purchase, sale or loan.”

The alleged contracts, oral or written, are in violation of the law and Courts will not grant relief to either of them. Morrison v. City of Fort Worth, 138 Tex. 10, 155 S.W.2d 908; Dallas Farm Machinery Co. v. Minneapolis-Moline Company, Tex. Civ.App., 324 S.W.2d 578; 14 Tex.Jur.2d 408, Sec. 309, pp. 310, 312.

The burden of proof was on plaintiff of alleging and proving by a preponderance of the competent evidence his cause of action and in determining whether an instructed verdict should be given, or the Court render a judgment after the jury failed to reach a verdict, all testimony must be construed most favorably to the one against whom such peremptory instructed verdict or judgment is given. McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442.

The judgment of the Trial Court is reversed and judgment is rendered that ap-pellee Rhoades take nothing against appellants International Life Operating Company and International Life Insurance Company and they are each discharged with their costs.

The judgment of the Trial Court is reversed and this cause is remanded for another trial as to the McCormick estate.

Reversed and rendered in part and in part reversed and remanded.


author: DIXON, Chief Justice.

text:
    Dolores M. Hall LISKA et vir, Appellants, v. Jack A. HALL, Appellee.
    No. 16002.
    Court of Civil Appeals of Texas. Dallas.
    May 4, 1962.
    Rehearing Denied May 25, 1962.
    Burt Barr and J. P. Moseley, Dallas, for appellants.
    Leonard R. Winborn, Dallas, for appel-lee.
   DIXON, Chief Justice.

Heretofore we dismissed this appeal because the Transcript of the Record did not contain a copy of the judgment from which the appeal had been taken. In connection with a motion for rehearing appellant with our leave has filed a Supplemental Transcript which brings forward a copy of the judgment. Therefore we have sustained the motion for rehearing, have set aside our judgment of dismissal and shall now proceed to consider the appeal on its merits.

On February 15, 1961 appellant, the mother of two children aged eight and ten years respectively, filed a motion to change the custody of the children from appellee, their father, to herself.

The parents were divorced September 28, 1956. Custody of the children was awarded to their mother. However, soon thereafter, by agreement, care and custody was transferred to the father. This change was later officially recognized when on April 17, 1957 a court order was entered giving to the father, appellee herein, care and custody.

At the time appellant voluntarily surrendered custody to appellee, she departed for Durant, Oklahoma to be married. This second marriage did not last. It ended in a divorce or an annulment. Subsequently appellant made a trip to Houston, Texas when she was considering marrying a Houston man. She did not marry him. In 1960 she married Frank L. Liska, her present husband.

Mr. & Mrs. Liska live in Ennis, Texas. Mr. Liska is a butcher. He operates his own meat market. He and Mrs. Liska rent the house in which they live.

Appellee has not remarried. He lives with his two children in a home which he owns. At times he has employed housekeepers. For some time immediately prior to the trial he had employed the services of a lady, Mrs. Ward, to come to his home to supervise the children after they return home from school. She leaves when ap-pellee gets home from work. Appellee prepares breakfast for himself and the children and takes them to school. Most evenings he is at home, but on evenings when he is not at home he either hires a “baby sitter”, or takes the children to the home of his parents, the paternal grandparents of the children. The paternal grandmother testified in this case. She loves the children and welcomes them in her home.

From time to time, since their mother married Frank L. Liska, the children have spent week ends with their mother in Ennis, Texas. The Lislcas have a horse, chickens and other domestic animals. The children seem to enjoy their visits in Ennis.

It is conceded by all parties that the children are doing well in school. Their father takes them to Sunday School every Sunday. He does not stay for Sunday School but returns and attends church services. So far as the evidence shows the children are happy and well adjusted.

The trial court refused to change the custody of the children except to provide that they might visit their mother in Ennis each summer for a period not to exceed 45 days.

Appellants’ seven points on appeal may be summarized as follows: (1) the undisputed evidence showed a change of conditions affecting the best interest of the children; the judgment is an abuse of discretion because (2) it is not supported by substantial evidence, (3) is contrary to the great weight and preponderance of the evidence; (4) it was error to divide the custody; and (5) it was error to award custody to the father, since the court found that the mother was a suitable person to have the children for four to six weeks each summer.

It has often been stated that, other things being equal, when the mother is found to be a fit person it is the mother rather than the father who should have the care and custody of children of tender years. With this general rule we agree. But the circumstances of each case must be weighed carefully in determining whether the rule should control the court’s decision. It is the best interest of the children, not the mother’s interest, which must guide the court.

In this connection we must point out that the judgment here appealed from was not an original award of care and custody to the father. The care and custody of the children had already been awarded to the father in 1957 with the knowledge and com sent of the mother. The latter after five years is seeking to change the custody. In the judgment appealed from the court refused to change the custody from the father to the mother except for a visit not to exceed 45 days with the mother each summer. Our law takes into consideration the difference between an original award of custody and a change of custody.

This difference was one of the controlling factors 'in the decision of our Supreme Court in Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790. There the contest for custody was between the grandparents and the father of a child. The Court was confronted with the general rule that the natural parent is ordinarily considered to have a prior claim to the care and custody of children over the claim of other persons, including grandparents. Nevertheless the .Supreme Court affirmed a judgment awarding custody to the grandparents. We quote from the opinion :

“In determining the question of the child’s best interests, there is this difference between the first award of custody and a change of custody. Because a change of custody disrupts the child’s living arrangements and the channels of a child’s affection, a change should be ordered only when the trial court is convinced that the change is to be a positive improvement for the child. * * * The paramount right of a natural parent to a child comes from a legal presumption that to be raised by its natural parents is to the child’s best interest. This presumption is based upon the natural affection usually flowing from parentage. * * * Although this presumption should be considered by the trial judge in weighing the evidence, it cannot be controlling in the face of a final judgment to the contrary, and, whatever effect such a presumption may have in an original custody action, it cannot control a suit to change custody. * * * In the case at bar, we hold that in determining the question of the best interests'of the child the trial court did not abuse its discretion. * * ⅜ The plaintiff argues that there was evidence in the record sufficient to justify the trial court in awarding the child to its natural father. We agree, but the trial court did not make such an award, and neither we nor the Court of Civil Appeals has the power to substitute our judgment for that .of the trial court in the absence of an abuse of discretion." (Emphasis ours.)

The principle above stated by our Supreme Court in a contest between parent and grandparents of a child must govern our decision in this contest between a mother and father. These children, so far as the evidence shows, have been in the past and are now being well taken care of by their father. Their physical, educational and spiritual welfare is receiving his careful attention. The children are happy and well adjusted to their present way of living. We cannot say that the trial judge abused his discretion in refusing to disrupt the satisfactory living arrangements to which the children have become accustomed over a period of five years.

As a general rule our courts do not favor divided custody of children. But we do not consider the divided custody in this case an abuse of discretion on the part ■of the trial court. There appears to be no friction between the parents in regard to week end visits of the children with their mother in Ennis, Texas. The children seem to enjoy these visits. This fact along with other circumstances doubtless led the trial court to decide that it would be well for the children to visit their mother each summer for a period not to exceed 45 days. We see no error in that decision.

Appellants’ seven points on appeal are overruled.

Judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    SOUTHERN LLOYDS, Appellant, v. Tom JONES, Appellee.
    No. 10962.
    Court of Civil Appeals of Texas. Austin.
    May 2, 1962.
    Park Street, Walker Powell Gray, San Antonio, for appellant.
    Victor B. Rogers, Byron Fullerton, Austin, for appellee.
   HUGHES, Justice.

Tom Jones sued his insurer, Southern Lloyds, to recover on a fire insurance policy issued by it to him effective February 6, 1959, and in force on August 9, 1959, when the insured dwelling was totally destroyed by fire.

Trial to a jury resulted in verdict and judgment for appellee on the policy.

Appellee purchased the lot on which the insured house was situated in February, 1950, by warranty deed duly recorded. The lot is in Manor, Travis County.

Appellee testified that he sold this property to Mr. and Mrs. DeWitty in 1953, and that he went to the law office of Mr. Virgil Lott, an attorney, to sign papers in connection with its sale. Just what those papers were, he did not know.

Mr. Lott testified, and, recalling the transaction, stated that appellee and Mr. and Mrs. DeWitty came to his office in 1953, that he prepared a warranty deed, vendor’s lien retained, and a vendor’s lien note. Copies of the deed and note were in Mr. Lotts’ files and were introduced in evidence. They reflect a conveyance by appellee to the DeWittys for $300.00 cash and a vendor's lien note for $1200.00, payable $300.00 annually for four succeeding years.

Mr. Lott testified that these instruments were signed by the proper parties in his office. He did not know whether or not delivery was made of any of the instruments to the parties entitled to them.

The deed, so executed, was never filed for record in Travis County. The DeWittys never paid any ad valorem taxes on the property. They were fully paid at the time of the 1953 deed. Thereafter no one paid the taxes.

The jury found that appellee did not execute and deliver a deed to the property to the DeWittys in 1953. It did find that ap-pellee entered into a contract of sale with the DeWittys in 1953 to sell them this property, but it found that “such contract of sale, * * * or some revision thereof” was not in effect on February 6, 1959, when the insurance policy became effective.

Under the view we take of the case, it is not necessary to determine the existence of evidence to sustain the finding that the 1953 deed was not delivered.

Appellee testified positively that he was the sole owner of this property on the date the insurance was purchased and on the date of the fire. He testified, not always consistently, that because the DeWittys had not made the payments on the place as agreed that he had taken the property back in 1957. Mrs. DeWitty and her fourteen year old son occupied the place when it burned, although Mrs. DeWitty on this particular day was off picking cotton. Mrs. DeWitty and her husband were divorced in 1957. The reason appellee gave for not resuming possession of the property was that the DeWittys would not leave and he “wasn’t able to go into a lawsuit to force them, but they had done lost it in 1957.”

We quote from the testimony of appellee:

“A Let me see; I can’t exactly remember the date, but anyhow I traded with them to pay $300 a year for five years, and when they didn’t — they refused to pay me, well, I told them that I had to have the place or the money, and so they couldn’t raise it, and I told them I couldn’t put them out unless they would get out.
* * * * * *
“Q When did you cancel this agreement that you had, — what year?
“A The third year after I sold it to them.
* * * * * *
“Q All right. Now, then, when was it that you terminated it?
“A It was to be paid out in ’57.
“Q Did they pay it out by 1957?
“A No, sir.
“Q So that you took the place back?
“A Yes, sir.
“Q And it has been yours ever since then?
“A Yes, sir.”
On cross examination he testified:
“Q And you say you took the property back in 1957, Tom?
“A Yes, sir.
* * * * * *
“Q Did you ever tell the DeWittys that you wanted the property back, and for them to get out?
“A I told them they had done lost it, the five years was up. But I couldn’t make them get out. I wasn’t able to go into a lawsuit to force them, but they done lost it in 1957. They had five years to pay for it.
“Q Well, now, did you ever tell them that if they would pay you as much as $10.00 a month that they could stay there ?
“A I told them; I told them $15.00 a month.
“Q I see." Well, when did you tell them that?
“A I told them that before the fire a while, and she wouldn’t move, and she wouldn’t even pay that.”

Appellee also testified that when he sold the property to the DeWittys it was understood that he “was to keep up the insurance, until they paid me the last dollar.”

Appellant has five points, briefed jointly, all to the effect that appellee was not the “unqualified owner” of the insured property, and that there was such a change in ownership of the property as to void the insurance.

Appellant states that its points present the single question of “Whether or not Tom Jones, under the evidence was, at the material -times, the unconditional owner of the premises such as to warrant a finding sufficient to justify that he had a valid policy of insurance.” Italics added.

We set out in full all the provisions and recitations in the policy or proof of loss upon which appellant relies, as taken from its brief: ‘ ' ■ ■

“The proof of loss submitted to Appellant upon which the check was issued, signed by Tom Jones, recites ‘No exception’ as to Item 2, being:
“‘Title and Interest: The property described in the said policy on which loss is claimed belonged at the time of the loss to the assured in fee simple, and no other person or persons had any interest, lien or encumbrance thereon except :’
“The policy itself provides under ‘Basic Conditions’ lines 1 through 7:
“ ‘This entire policy shall be void if whether before or after a loss, the insured has .willfully concealed or misrepresented any material fact or circumstance concerning this insurance, or the subject thereof, or the interest of the assured therein, or in case of any fraud or false swearing by the insured relating thereto.’
“Lines 31 through '47, set out conditions suspending or restricting insurance as follows :
“ ‘Unless otherwise provided in writing added hereto, this Company shall not be liable for loss occurring (a, b, and c applicable only to Coverage F — Fire):
“ ‘a) While the hazard is increased by any means within the knowledge and control of the insured, provided such increase in hazard, is not usual and incidental to the occupancy as hereon described: -or ■
“ ‘b) (omitted)
“ ‘c) (omitted)
“ ‘d) Following a change in ownership of the insured property: or '
“ ‘e) While any other stipulation or condition of this policy is being violated.’
“Lines 48 through S3, set out the conditions of changes or additions.
“ ‘Changes in this policy may be made and Perils added hereon only by written endorsement properly executed by an authorized agent of this Company and attached hereto; but no provision may be waived except such as by the terms of this policy is subject to change.’ ”

We have carefully read the policy of insurance issued to appellee. In it he is not described as and there is no provision to the effect that he is or should be the “unqualified” or “unconditional” owner of the insured property. In fact, the policy does not describe him as the owner of the property, but refers to him only as the insured.

We do not mean to say that a valid policy of fire insurance could be issued on property in which the insured has no interest. The point we máke is that appellee did not represent when he obtained the insurance, and the policy did not require that appellee be the “unqualified”, “unconditional” or 'fee simple” owner of the insured property.

The proof of loss signed by appellee was a printed form supplied by appellant and the portion of it quoted herein is printed. The alleged falsity of the representation in this statement that the property “belonged at the time of loss to the assured in fee simple” coupled with the policy provision that if, after the loss, the insured has willfully concealed or misrepresented any material fact concerning the interest of the assured in the insured property is relied upon by appellant to void the policy.

There is no evidence that appellee has willfully concealed or misrepresented any fact.

There is also no evidence that there has been any change in the ownership of the insured property since the inception of its insured status with appellant.

We are of the opinion that under the evidence and the jury finding that appellee had an insurable interest in the property at the time of its loss and when the insurance was effected. It is also our opinion that such interest is a fee simple title in the subject property. This conclusion is based upon the decision of the Circuit Court of Appeals, Sth Circuit, in Dean v. Pioneer Co-Operative Fire Insurance Company, 231 F.2d 18, opinion by Brown, Circuit Judge. The Court there considered a Texas Standard Fire Policy, apparently identical with the present policy, and particularly construed the provision, quoted above, providing that a policy should be void following “change in ownership of the insured property.” The Court there held that a rescission of a sale of land by a vendor retaining a vendor’s lien to secure the unpaid purchase money did not result in a violation of the “change of ownership” provision in the fire insurance policy.

There are two factual differences between that case and this case: (a) There the insured made full disclosure of the sale of the property and the buyer’s default to the company before the policy was issued to him. (b) The actual rescission of the sale did not occur until after the policy of insurance was issued.

Here there was no disclosure made by the insured of the sale or rescission, and the rescission occurred before the policy of insurance was issued.

The Court in Dean, citing Texas authorities, held that the effect of a rescission by a vendor retaining a vendor’s lien is to reinvest the vendor with the title and right to possession as completely as though the sale had never been made. The- Court also stated the Texas rule that while default, itself, by the vendee does not amount to an automatic rescission it, rescission, can be accomplished without formal reconveyance by one of many ways effectively reflecting the assertion of that right by the vendor.

We construe the jury finding that the “contract of sale * * * was not in effect” when the insurance policy was purchased as being tantamount to a finding that the sale had been rescinded by appellee. The evidence sufficiently supports this conclusion. Appellee testified that the purchaser was in default and that he had taken the property back. He explained his failure to take possession of the house. The purchaser did not pay taxes on the property or insure it. Appellee insured it and represented that it was occupied by a tenant. This was an act and representation consistent with ownership.

As to nondisclosure by appellee of the sale and rescission, he was not asked to explain his ownership of the property. He made no false representation concerning it. As far as this insurance is concerned, we cannot understand the materiality of ap-pellee’s chain of title to this property or the source from which it came. If appellant desired this information, it should have requested it.

If the superior title of a vendor who retains a vendor’s lien which is in default, is insurable as an owner under a Texas Standard Fire Policy and if an actual rescission of the vendor after issuance of the policy and before the loss does not violate the change of ownership provision of such policy, as held in Dean, then the validity of a fire insurance policy purchased by the vendor following default of the vendee and acts by the vendor from which rescission is reflected, would seem to be free from doubt. We so hold, and affirm the judgment of the Trial Court.

Affirmed.

      . This is the second appeal of this case. S.W.2d 435.
      See Southern Lloyds v. Jones, Tex.Oiv.App., 345


text:
    E. C. ENLOW, Appellant, v. F. E. BROWN et al., Appellees.
    No. 15994.
    Court of Civil Appeals of Texas. Dallas.
    March 30, 1962.
    Rehearing Denied May 18, 1962.
    C. C. Renfro, Dallas, for appellant.
    Dalton, Moore & Walden, Ennis E. Walden, Dallas, for appellees.
   DIXON, Chief Justice.

Appellee F. E. Brown obtained judgment against Pacemaker Plomes, Inc., and E. C. Enlow for debt and foreclosure of a constitutional and statutory lien for material and labor furnished to the owner in the construction of a house on property formerly owned by Pacemaker Homes, Inc., but owned at the time of suit by E. C. Enlow. Another defendant was dismissed from the suit before judgment was rendered. Only E. C. Enlow has appealed. A judgment of foreclosure was rendered against him.

The suit was tried to a jury which returned a verdict finding that (1) vinyl tile installed by appellee in the house could not be removed from the floor and other surfaces to which it was attached without materially injuring said floor; and (2) the sum of $501 would reasonably compensate appellee for the material and labor furnished in installing the vinyl tile.

We quote appellant’s first point on appeal in full: “The trial court erred in refusing to submit to the jury the defensive issues raised and supported by evidence in the record.”

After carefully studying the statement of facts before us we cannot say that the defensive issues pled by appellant were supported by evidence. However, we need not be concerned about the matter, for we cannot sustain the above quoted point on appeal for two reasons.

In the first place the point is multifarious and too general to be entitled to our consideration. It attempts to lump together in one package all defensive special issues which appellant may have wanted the court to submit without particularizing or designating each issue separately. Thus the point as worded overlooks the possibility that one or more of the issues should have been submitted while possibly others should not have been submitted. City of Nederland v. Callihan, Tex.Civ.App., 299 S.W.2d 380; Jones v. Hortenstine, Tex.Civ.App., 291 S.W.2d 761; Sheffield v. Lewis, Tex. Civ.App., 287 S.W.2d 531; Carmichael v. Williams, Tex.Civ.App., 286 S.W.2d 456; Johnson-Sampson Construction Co. v. W & W Waterproofing Co., Tex.Civ.App., 274 S.W.2d 926; Texas Life Ins. Co. v. Jordan, Tex.Civ.App., 253 S.W.2d 906.

In the second place appellant has not complied with Rule 279 Texas Rules of Civil Procedure. The Rule contains this provision: “Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; * * Appellant did not prepare in substantially correct wording and tender any one or more defensive issues. Therefore, he has waived the court’s failure to submit his defensive issues. Cantrell v. Garrett, Tex.Civ.App., 342 S.W.2d 466; Querner v. George, Tex. Civ.App., 336 S.W.2d 903; Texas Employers Ins. Ass’n v. Yother, Tex.Civ.App., 306 S.W.2d 730; Meacham v. Loving, 155 Tex. 279, 285 S.W.2d 936.

Appellant’s first point on appeal is overruled.

In his second point on appeal appellant says that special issue No. 2 submitted the wrong measure of damages to the jury. Special issue No. 2 in substance inquired what sum of money would reasonably compensate appellee for the labor and material furnished in installing the vinyl tile involved herein.

From appellant’s argument under this point we understand his contention to be that appellee was not entitled to a lien for labor for the reason that he hired others to install the vinyl tile; he did not himself personally install the material. In support of this view appellant cites us to West v. First Baptist Church of Taft, 123 Tex. 388, 71 S.W.2d 1090, in which it was held that a bank which advanced or loaned money to a church was not entitled to a laborer’s lien.

We see no merit in appellant’s second point. This case does not involve a loan by appellee. Appellee was the contractor who furnished materials and labor which went into the construction of the house. The men who actually laid the tile were employees of appellee. They were paid wages by appellee. Compensation for labor performed in the installation of the tile was properly included in the debt secured by lien. In Wilson v. Hinton, 131 Tex. 593, 116 S.W.2d 365, it was held that a lien for labor and material may be created though the labor and material are furnished through the agency of another. Though the case involves a written contract involving a homestead under Art. 5460, Vernon’s Ann.Civ.St. we think the principle above stated is applicable here. See also Grammar v. Hesperian Building & Savings Ass’n, Tex.Civ.App., 70 S.W.2d 220. Appellant’s second point is overruled.

In his third point appellant asserts that the court erred in rendering judgment for appellee after appellee admitted the material involved was floor covering and was installed by hired labor after the house was completed.

The uncontradicted evidence is that the vinyl tile is permanently attached to a plywood floor. It is so firmly affixed by a glue or mastic that in order to be removed it would have to be dug up with a hoe or some other instrument with a straight blade. The plywood might be ripped out in the process. It is not a floor covering similar to a carpet. We find no testimony that the vinyl tile was installed after the house was completed. The testimony is that the laying of the tile was one of the last acts in completing the house. As to the hired labor, the uncontradicted evidence is that the tile was installed by appellee’s employees, as we pointed out in our discussion of appellant’s second point. The third point is overruled.

Appellant’s fourth point is as follows: “There was no competent evidence to support the judgment rendered; in the alternative, the evidence was insufficient to support the judgment rendered.”

Here again we must hold that the point is too general to be entitled to our consideration. Weaver v. Tom Felton, Inc., Tex.Civ.App., 346 S.W.2d 159; Phillips v. Le Gallez, Tex.Civ.App., 329 S.W. 2d 922; Redman v. Cooper, Tex.Civ.App., 160 S.W.2d 318; Universal Life Ins. Co. v. Wallace, Tex.Civ.App., 149 S.W.2d 662.

However, we have studied the statement of facts in this case, and find ourselves unable to agree with appellant’s fourth point. The evidence is that appellee, a contractor, made an oral agreement to furnish and install vinyl tile in a house being constructed on Lot 12, Block 2/4413 of Emerald Isle Addition in the City of Dallas. His dealings were with James D. Crow, who was President of Pacemaker Homes, Inc. Appellee was to be paid upon finishing his work. He completed his job February 13, 1959. He was not paid for his material or labor.

The record shows that Pacemaker Homes, Inc., acquired ownership of the property January 14, 1959, though the deed was not filed for record until March 3, 1959. Apparently construction of the house began before Pacemaker Homes, Inc. acquired title on January 14, 1959. But this fact is not sufficient to deprive appellee of his lien. Schultze v. Alamo Ice & Brewing Co., 2 Tex.Civ.App. 236, 21 S.W. 160. Apparently there was no complaint about the start of construction from the predecessor in title, J. A. Crow & Co. Inc., of which corporation J. A. Crow was president. J. A. Crow is the father of James D. Crow, president of Pacemaker Homes, Inc.

On February 11, 1959 Pacemaker Homes, Inc. conveyed title to the property to appellant Enlow but this deed was also not recorded until March 3, 1959.

It is undisputed that appellee furnished the material and labor on which his suit is based. The material and labor went into the construction of the house. The material became affixed permanently as a part of the body of the house. Appellee demanded payment of both Crow and Enlow. He has not been paid. He notified Enlow of his intention to file an affidavit establishing his lien. His affidavit made for him by his attorney was filed May 6, 1959 and recorded in the Mechanic’s Lien Records of Dallas County.

It is our opinion that under the record before us there is sufficient evidence to support the trial court’s judgment. Arts. 5452, 5453, V.A.C.S., see also Newman v. Coker, Tex.Civ.App., 310 S.W.2d 354; Tomlinson v. Higginbotham Bros. & Co., Tex.Civ.App., 229 S.W.2d 920; Hoffman v. Continental Supply Co., Tex.Civ.App., 120 S.W.2d 851; Breckenridge City Club v. Hardin, Tex.Civ.App., 253 S.W. 873; Keating Implement & Machine Co. v. Marshall Electric Light & Power Co., 74 Tex. 605, 12 S.W. 489. Appellant’s fourth point is overruled.

. The judgment of the trial court is affirmed.


text:
    Floyd K. ROBINSON et al., Appellants, v. Fred W. ASHNER, Sr., Appellee.
    No. 16293.
    Court of Civil Appeals of Texas. Forth Worth.
    April 20, 1962.
    Rehearing Denied June 1, 1962.

      Wilbur T. Knape, Dallas, for appellants.
    Elizabeth Carp, Dallas, for appellee.
   BOYD, Justice.

Fred W. Ashner, Sr., recovered judgment against Floyd K. Robinson, Pete Koontz, and Don Jacobs for $33,000.00 as damages for personal injuries sustained in a collision of two motor vehicles, and the defendants appeal.

The collision occurred on Thornton Freeway in Dallas, when a pickup track, driven by appellee’s son, Fred W. Ashner, Jr., in which appellee was riding, struck the left rear dual wheel of a dump truck driven by Robinson and owned by Koontz and Jacobs. Robinson was in the course of his employment by Koontz and Jacobs when the accident occurred.

According to the jury findings, Robinson failed to keep a proper lookout, which was a proximate cause of the collision; he turned the dump truck abruptly to the left immediately before the collision, which was negligence and a proximate cause; he failed to signal his intention to turn to the left, which failure was negligence and a proximate cause; he had been driving in the north or outside traffic lane and immediately before the collision he drove from that lane into another lane in which the Ashner vehicle was traveling without ascertaining that such movement could be made in safety, which was negligence and a proximate cause. The jury acquitted appellee of failing to keep a proper lookout; and acquitted Ashner, Junior, of negligence in failing to drive to the left of the dump truck; in failing to turn to his right; of failure to keep a proper lookout ; of negligence in failing to sound his horn; of negligence in not sooner applying his brakes; and of negligence in driving too closely behind the dump truck. It was also found that the Ashners were not engaged in a joint enterprise.

Several points of error present the contention that there is no evidence to support the verdict and judgment, or to warrant the submission of issues; and that if there is some evidence, the findings of the jury are so against its great weight and preponderance as to be clearly wrong.

We think there is evidence of probative force to warrant the submission of such issues as were submitted, and to support all the findings of the jury, including those relative to negligence and proximate cause, and that the findings are not so against the preponderance as to warrant their being set aside by this court.

According to the testimony of Ashner, Junior, he was driving in the left or inside lane of the two lanes for west-bound traffic; there were two dump trucks ahead of him, both in the right or outside lane; he passed one without changing lanes; as he started to pass the other, which was appellants’ truck, the driver made a left-hand turn in front of him; no directional lights were burning on the dump truck; no stop lights came on on the back of the dump truck; witness’ pickup was 40 or 50 feet behind the dump truck, in another lane; witness was driving about 25 miles per hour; the dump truck “was going slow, approximately around 10 miles per hour, I would say”; witness applied his brakes; his pickup was in perfect condition; it skidded, and the left rear dual wheel of the dump truck came into contact with the pickup’s front bumper; witness did not sound his horn; the driver of the dump truck did not give any signal; witness did not turn to his right, but turned to his left; there was no traffic to his right while the dump truck was ahead of him; his father said nothing about seeing the -dump truck, and did not ask witness to slow down.

Robinson testified that he did not see the Ashner pickup before the collision; he said his own directional lights were burning, indicating that he was to turn to the left, for a considerable distance before he began the turn¡ and continued to burn until the time of the impact. He said he was driving approximately 20 miles per hour when he began to turn to the left.

Since we think there were issues of material fact in the case, and that the evidence is sufficient to support the findings of the jury, we find no error in the action of the court in overruling appellants’ motions for summary judgment, for peremptory instructions, and for judgment non obstante vere-dicto.

We have carefully considered appellants’ contention that certain issues are duplicitous and multifarious, and constitute double submissions and comments on the weight of the evidence, but we do not think that error is thereby shown.

Error is assigned to the court’s refusal to submit certain requested issues. We think that the requested issues were fairly covered by the issues submitted, and that therefore no error is shown. Smith & Conklin Bros. v. Griffith, 153 Tex. 341, 268 S.W.2d 124.

We perceive no error in the court’s granting appellee’s motion for summary judgment as to appellants’ cross-action against him for damages to appellants’ dump truck resulting from the collision. It was shown on that hearing that appellee’s only connection with the matter was that he was riding in the pickup belonging to and operated by Ashner, Junior, and was himself guilty of no act of negligence.

Ashner, Junior, sued these appellants for his damages resulting from the collision. He lost his case. On appeal, the judgment was affirmed. Ashner v. Robinson et al., Tex.Civ.App., 344 S.W.2d 909. In that trial the jury found that both Robinson and Ashner, Junior, were guilty of acts of negligence proximately causing the collision. In the case at bar appellants sought to make Ashner, Junior, a party, and alleged that he had an interest of such nature in the controversy that a final decree could not be made without affecting his interest or leaving the controversy in such a condition that its final termination would be wholly inconsistent with equity and good conscience; that he appeared to be a joint owner of the amount asserted by appellee to be due upon his cause of action; and that appellants were entitled to judgment for full indemnity over and against him, or for contribution.

This cause was pending when the cause of Ashner, Junior, against appellants was tried. Appellants made no effort to have the cases consolidated. Rule 97(f), Texas Rules Civil Procedure, provides that when the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, they may be brought in. Rule 174(a), T.R. C.P., provides that when actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all of the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Henderson County Levee Improvement Dist. No. 3 v. Williams et al., Tex.Civ.App., 19 S.W.2d 197; Regester v. Lang, Tex.Civ.App., 33 S.W.2d 230; Cobb v. Barber, 92 Tex. 309, 47 S.W. 963.

Appellants invoke Rule 38, T.R. C.P., which provides that a defendant may file a cross-action against a person not a party to the action who is or may be liable to him or to the plaintiff for all or a part of the plaintiff’s claim against the defendant. We cannot see how Ashner, Junior, could be liable to appellee for any of ap-pellee’s claim against appellants. A claim by appellee against Ashner, Junior, for damages sustained in the collision could arise only under the provisions of the Guest Statute, which require a finding of gross negligence; whereas, appellee’s claim against appellants may arise, and is alleged to have arisen, from acts of ordinary negligence, or from their failure to use ordinary care. Neither, in such a situation, could appellants recover indemnity or contribution. Mitchell v. Gooch et al., Tex.Civ.App., 210 S.W.2d 834; Patterson v. Tomlinson, Tex.Civ.App., 118 S.W.2d 645, error refused. We pretermit a discussion of appellee’s position that appellants are estopped by the judgment in the former case, and that it is res judicata as to the contentions of appellants in reference to the court’s refusal to permit their cross-action against Ashner, Junior, in this suit. Appellants’ point of error is overruled.

One point for reversal is that there was jury misconduct. The transcript of the testimony taken on that hearing covers 372 pages. The nearest approach to a serious matter revealed in that record is the testimony of one juror that while he was sitting in the jury box before a morning session, and conversing with the court bailiff, the bailiff said that the case had been tried before and appellee secured a verdict for $34,000.00. The juror said he did not mention that matter to any fellow-juror until after the verdict had been returned, and that during the deliberations of the jury he was among the approximately half of the jurors who were “on the low side” before compromising on a verdict of $33,000.00. We do not think it was shown that there was such misconduct as was calculated to and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P.

It is contended that the verdict is excessive. We have reviewed all the evidence on the point, and, although we do not set it out, we think it is ample to support a recovery for $33,000.00. Moreover, courts have found no formula for the exact measurement of pecuniary compensation for physical pain and mental anguish, or for future medical expenses. These matters are for the jury in the first instance; and courts are reluctant to interfere when there is substantial evidence to support the jury finding. George C. Vaughan & Sons v. Dyess, Tex.Civ.App., 323 S.W.2d 261; Louisiana & A. Ry. Co. v. Chapin, Tex.Civ.App., 225 S.W.2d 614; Green v. Rudsenske, Tex.Civ.App., 320 S.W.2d'228. We think the evidence-would sustain a recovery somewhat like those allowed in George C. Vaughan & Sons v. Dyess, supra; Houston Belt & Terminal Railway Company v. Burmester, Tex.Civ. App., 309 S.W.2d 271; and Viking Construction Company v. Beaird, Tex.Civ. App., 337 S.W.2d 699.

All points of error not discussed have been considered and they are overruled.

We have studied every page of this approximately 2000 page record in the light of the contentions ably presented by appellants’ brief and oral argument, but we do not believe that reversible error is reflected.

The judgment is affirmed.


author: WERLEIN, Justice.

text:
    PERMIAN BASIN LIFE INSURANCE COMPANY, Appellant, v. Martin STUART, Appellee.
    No. 13915.
    Court of Civil Appeals of Texas. Houston.
    May 17, 1962.
    Rehearing Denied June 7, 1962.
    Raymond D. Wier, Odessa, for appellant.
    Blakeley & Williams, Carey Williams, Houston, for appellee.
   WERLEIN, Justice.

Appellant, a private corporation, appeals from an order of the trial court overruling its plea of privilege to be sued in Ector County, Texas, where its principal office is situated. Appellee in his amended controverting plea averred that venue is maintainable in Harris County under Subdivision 23 of Article 1995, Vernon’s Annotated Texas Statutes, which provides in part: “Suits against a private corporation, association, or joint stock company may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; * *

This suit was instituted by appellee in the District Court of Harris County for rescission of the sale of two “Advisory Board Investment Certificates,” which ap-pellee bought from appellant allegedly in reliance upon fraudulent misrepresentations of appellant acting by and through its duly authorized agent who solicited appellee to purchase such certificates at a price of $600.00 for each certificate payable at the rate of $120.00 down and the balance payable in equal installments over a period of four years. Appellee alleged that appellant represented to him in such solicitation and offer, both orally and in writing, that such investment was guaranteed, and under no circumstances could he lose his money, for the reason that at the expiration of five years from the date of purchase he could surrender his certificates for their full face value of $600.00 each.

Appellee further alleged that he later ascertained that the certificates provide that they are not repayable until and unless a special fund to which appellant was obligated to credit each year one-third of its net surplus earnings, if any, reached a sum equal in the aggregate to the' total face value of all outstanding similar certificates, and that he did not discover the falsity of the representations made by appellant until after the expiration of five years when he called upon appellant to pay their face value. He then, through his attorney, notified appellant by mail of his election to void and rescind the sale of said certificates because of ^he fraud perpetrated upon him, and at the same time offered to send said certificates to appellant in due form for transfer, together with a cashier’s check in the amount of all interest payments he had received under said certificates, in return for appellant’s check in the amount of $1200.00 he had paid, plus interest thereon.

The question for our determination is whether any part of appellee’s cause of action arose in Harris County. It is not disputed that appellant’s principal office is in Ector County, and that the alleged initial fraudulent representations upon which ap-pellee relied, were made by appellant’s agent in Cameron County, Texas, and that appel-lee did not move to Harris County until about two years prior to filing this suit. Appellant asserts that there is no evidence in support of the implied finding by the trial court that a part of appellee’s cause of action arose in Harris County.

Appellee, on the other hand, alleged in his controverting plea and now contends that he continued to rely on appellant’s misrepresentations after moving to Harris County, demanded rescission in Harris County, offered in Harris County to de equity and restore what he had received, and received in Harris County appellant’s refusal of his demand for rescission, and that hence a part of his cause of action arose in Harris County.

We do not agree. Appellee’s cause of action is essentially one to rescind a sale of two certificates because of appellant’s fraudulent representations made in Cameron County, and to recover back what he had paid for such certificates. The execution of the contract of sale; the payment by ap-pellee of the cash part of the consideration; the reliance by him upon appellant’s representations; the delivery of the certificates to appellee, and the receipt of the deferred purchase money payments by appellant occurred in counties other than Harris County.

Since this is a suit brought to rescind a contract because of fraud, appellee would have to allege and prove the fraudulent representations and his reliance thereon, and he would have to offer to do equity and tender back what he had received. Such offer and tender could be made in his pleading. They did not have to be made by letter as was done. Tompkins v. Johnson, Tex.Civ.App., 86 S.W. 953; Alexander v. Walker, Tex.Civ.App., 239 S.W. 309, writ dism.; 10 Tex.Jur.2d 376, § 46. In said letter appellee’s attorney stated that if they did not hear from appellant within two weeks they would construe such silence as a rejection of appellee’s tender. Such letter and the other correspondence which followed resulted merely in appellant’s refusal in Ector County to concede to appellee’s request for.payment.

Appellee asserts that he continued to rely on appellant’s fraudulent representations in Harris County. The contract of sale was entered into by appellee in reliance upon appellant’s representations at the time they were made in Cameron County. No further representations were made. Appellee apparently gave no further thought to such representations until more than five years later when appellant refused to pay. The letter notifying appellant of appellee’s rescission and offer to return the certificates and do equity was received by appellant in Ector County, where appellant considered appellee’s offer and tender, and rejected the same. Appellant did nothing in Harris County and the contract of sale did not call for anything to be done in Harris County. Had appellee’s offer and tender by letter been accepted by appellant, the agreement to refund appellee’s money would have been consummated in Ector County upon appellant depositing in the mail its acceptance. We can perceive of no reason why the rejection of the offer and refusal to pay did not occur in Ector County. Southland Cotton Oil Co. v. Guitar, Tex.Civ.App., 3 S.W. 2d 471; Continental State Bank v. Mailander, Tex.Civ.App., 277 S.W. 232; Aynesworth v. Peacock Military College, Tex.Civ. App., 225 S.W. 866; National Life Co. v. Harvey, Tex.Civ.App.1942, 159 S.W.2d 920.

The general rule in Texas is that a person who has been sued has the right to defend such suit in the county of his residence except under well defined exceptions. An equal doubt between the exception and the general rule is to be resolved in favor of the rule. A. H. Belo Corporation v. Blanton, 133 Tex. 391, 1939, 129 S.W. 2d 619; Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969. The plaintiff has the burden to allege and prove the facts he relies upon to bring his case within an exception to the general rule. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69. Exception 23, relied upon by appellee in this case, has been construed as meaning that some part of the transaction creating the primary right, or some part of the transaction relating to the breach of that right, must have occurred in the county where the suit is brought. Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674, 676. In the Forbess case the primary right arose when appellee became a general depositor in appellant bank, and appellant’s violation of such right occurred when appellant refused to pay checks drawn on such account. Both occurred in Nacogdoches County. In the instant case no part of the transaction either creating the primary right or relating to the breach of that right occurred in Harris County.

The cases relied upon by appellee to establish that a part of his cause of action arose in Harris County are factually not applicable. In Hoffer Oil Corporation v. Brian, Tex.Civ.App., 38 S.W.2d 596, the contract for services was made in Fort Worth. There was no agreement as to where appellees were to be paid for their services, but performance of such services was necessarily to be in Eastland County, since the lands which were to be mapped and upon which geophysical work was to be performed was situated in that county. Appellant’s plea of privilege to be sued in Tar-rant County was properly overruled.

In Western Wool Commission Co. v. Hart, Tex.Sup.1892, 20 S.W. 131, suit was brought for breach of a contract made between appellant, a foreign corporation, and appellee, whereby appellant was to sell ap-pellee’s wool at St. Louis, Missouri, on commission. The court held that a part of the cause of action arose in Howard County, since under the contract between appellant and appellee the shipping of the wool which constituted a part of the transaction, occurred in Howard County, Texas.

In San Jacinto Life Insurance Co. v. Boyd, Tex.Civ.App., 214 S.W. 482, although the contract was made in Jefferson County, services were partly to be performed under it in Lynn County. Hence suit was properly brought in such county. The recent case of Teague Brick Sales Company v. Dewey, Tex.Civ.App., 355 S.W.2d 249, cited by appellee, is also distinguishable.

Judgment of the trial court is reversed and the cause is remanded with instructions to transfer the case to the District Court of Ector County, Texas.


author: McNEILL, Justice.

text:
    Billy R. STACY et al., Appellants, v. BRIDGE CITY INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 6557.
    Court of Civil Appeals of Texas. Beaumont.
    May 17, 1962.
    Jerry L. Zunker, Orange, for appellants.
    Sexton & Owens, Orange, for appellees.
   McNEILL, Justice.

From the meager evidence before us, we conclude that Glenn Buffaloe was employed under a written contract of employment by the Bridge City Independent School District of Orange County as coach and teacher for the 1961-62 school term. During October, November and December, 1961, there was considerable friction in the school community over whether Buffaloe should be discharged. Several meetings of the School Board were held on the matter, some of which were attended by patrons of the school. The minutes of the Board of October 19, 1961 show that a resolution was adopted that Mr. Buffaloe “be terminated and dismissed immediately without pay.” At a later meeting, November 27, 1961, a motion to pay Mr. Buffaloe the amount due him under his contract was defeated. At Buffaloe’s request, a meeting of the Board was held December 1st to give him a hearing in connection with termination of his contract. Later on December 6, 1961, the Board met “to consider Buffaloe’s case after the hearing.” As a result of this meeting the Board ordered its attorney to notify Mr. Buffaloe’s attorney that as a result of the hearing the Board had not changed its position. At a later meeting the Board held on December 26, 1961 motion of the Board was adopted “that Glenn Buffaloe be paid in full according to his contract, less any deductions we are legally required to make. The details of method of payment to be worked out by the attorneys with Board approval.”

As a result of this last action of the School Board, the named appellant and several other tax paying patrons within said school district filed this suit in the district court seeking to enjoin the School Board from paying Buffaloe under the order passed December 26, 1961. As basis for the suit, it was alleged that the oayment of $5,-662.00, being the balance owing to Buffaloe under his contract, would be payment for services unperformed and unearned, is illegal and contrary to Sec. 51, Art. 3 of the Constitution of Texas, Vernon’s Ann.St. and such action would be an abuse of discretion on the part of said School Board, and would he without any right or authority whatsoever “to make said threatened payment in the proposed amount.”

A temporary restraining order was granted without notice and hearing set thereon. Before 'the date of the hearing Glenn Buffa-loe, the discharged teacher, intervened in the suit and asserted that the payment of the balance owing him as provided under said Board’s order was legal and should be upheld, and that all relief prayed for by appellants be denied. The School District did not answer the suit nor file brief herein.

Upon the hearing, the trial court refused to grant the temporary injunction and dismissed the suit.

Appellants assert two points of error. The first is that since the School Board on December 6, 1961, did not change its former position on the discharge of Buf-faloe, this was a final determination by the Board of the matter and it could not be rescinded or revoked at a subsequent meeting, and consequently the order of the Board of Trustees made on December 26, 1961, to pay the balance due Buffaloe on his contract was void. Intervenor asserts that this position was not taken in the trial court but it is now advanced for the first time in this court and should not be considered. We think intervenor’s position is correct. The minutes of the various meetings of the Board were introduced in evidence by appellants, including the ones held on December 26th and December 27th, 1961, without restriction or limitation. A case will be tried in the appellate court on the same theory advanced in the trial court. 4 Tex.Jur.2d 242.

Even if it is proper to consider appellants’ point, we think the School Board still had jurisdiction of the right to pay appellee under his contract, less deductions which are required by law to be made, as provided in its order of December 26, 1961. The record before us fails to indicate whether the State Board of Education has adopted any rules of procedure with reference to appeals under Art. 2654—7, Vernon’s Ann.Civ.Tex.St. from decisions of local school boards. The cases relied upon by appellants to sustain their view that the order of the School Board of December 6th, 1961, was a final one, not subject to later change by the Board, are Adkins v. Rogers, Tex.Civ.App., 303 S.W.2d 820 and Weinert Ind. School District v. Ellis, Tex. Civ.App., 52 S.W.2d 370. These cases are clearly distinguishable from the present one. They each involve the action of the County School Board and involve the question of detaching territory from one school district and annexing it to another; and after this is done, at a later meeting attempting to change its order without notice and following the procedure required for annexation in the first instance. It would not be wise to hold that the school board of an independent school district when it once acted upon a matter in the ordinary course of its business affairs, could not reconsider and rescind its action at a later date. We do not attach the same finality to its action in the administration of its affairs as is required in reference to judgments of a court at law.

Appellants’ second point is that the court abused its discretion in refusing to grant a temporary injunction because it asserts that the payment to intervenor Buf-faloe is illegal. It is argued that as inter-venor has since his discharge rendered no services as teacher or coach, payment to him by order made by the School Board under date of December 26th would be in violation of Sec. 51, Art. 3, of the State Constitution which prohibits the granting of public moneys to an individual.

We think from the fact that the Board on December 26, 1961, voted to pay Buffaloe the amount due him, less all legal deductions, it concluded that its discharge of Buffaloe was without cause. So to sustain appellants we would be, in effect, holding a school district could violate its contract with. impunity. When a school district makes a contract it should he as much hound by it as a citizen would be bound by a like contract. State v. Elliott, Tex.Civ.App., 212 S.W. 695. If it violates its contract by discharging a teacher without cause during the term of employment, it must pay the damages resulting therefrom. The order of the School Board of December 26, 1961, in the present case recognizes this duty.

The trial court correctly denied the temporary injunction.


text:
    Deupree BROWN et al., Appellants, v. Mrs. Ed F. GRICE, Appellee.
    No. 10965.
    Court of Civil Appeals of Texas. Austin.
    May 23, 1962.
    Rehearing Denied June 6, 1962.
    Clyde Vinson, San Angelo, for appellant.
    O’Neal Dendy, San Angelo, for appellee.
   ARCHER, Chief Justice.

This suit was filed by Mrs. Ed F. Grice, operating under the name of G & G Sales Company, against Deupree Brown and Don Brown for the possession of certain items and articles of merchandise listed on invoices identified as exhibits, and alleging conversion of such merchandise by defendants, to plaintiff’s damage in the sum of $224.67, and sought exemplary damages alleging that the defendants wilfully withheld the merchandise. A writ of sequestration was issued directing the sheriff or any constable to take possession of the property, describing it, and the property was attached by the sheriff. The property was re-plevied by Deupree Brown, with W. C. Turner and V. E. Beasley as sureties.

Trial was had to the Court without a jury and judgment was rendered in favor ■of the plaintiff against Deupree Brown for $213.86 actual damages and $125.00 exemplary damages. Of the sum of $213.86 a judgment for $161.92 was given against Deupree Brown and the sureties W. C. Turner and V. E. Beasley, jointly and severally.

The appeal is founded on three points and are that the Court erred in entering judgment for the recovery of the merchandise; in entering judgment against Deupree Brown for $213.86 and against Deupree Brown, W. C. Turner and V. E. Beasley jointly and severally for $161.92; and in Tendering judgment against Deupree Brown for $125.00 exemplary damages.

Appellee alleged that certain merchan•dise, itemized on invoices, was consigned to David Farrington, with fixed prices on October 12, 1960, and that Farrington notified appellee in February, 1961 that he ■could not pay for the merchandise and desired to return the same in cancellation of 'his obligation which appellee consented to, :and called at a station operated by appellants who refused to let appellee have the merchandise, claiming that the merchandise was sold on open account and that Farring-ton owed Brown a large sum of money and vdaimed the merchandise as his own.

There were a number of witnesses testifying in the case. Joe Whitaker, a salesman for appellee, testified that he sold the merchandise to Farrington, who could not pay for such, and told Whitaker to pick up the “stuff.” The witness went to the station and checked over the belts and hose .and found that some were missing; that Don Brown was running the station; that •on February 6, 1961, the witness returned to pick up the merchandise and was told that Deupree Brown was claiming the same and refused to let the merchandise be taken .away.

David Farrington testified that he purchased the merchandise and did not sell the same to Brown.

Scott Syler testified that he and Farring-ton operated the station under lease from Brown.

Deupree Brown, the operator of the station, testified that he told Whitaker on February 4, 1961, that the merchandise belonged to him.

The Trial Judge filed a statement of the testimony of the several witnesses. We have reviewed the record in the case and believe that it supports the judgment.

Since there was sufficient testimony that the merchandise belonged to the plaintiff and defendant Deupree Brown knowing that the merchandise did belong to the plaintiff, Brown’s failure and refusal to permit the plaintiff to repossess the merchandise, and after the merchandise had been sequestered by the plaintiff and the defendant Brown having re-plevied the merchandise and took actual possession thereof, such acts were wilful and the defendant became liable for exemplary damages. The Court did not err in allowing $125.00 as damages.

17 Tex.Jur.2d 238, Secs. 173 et seq.

As above stated, this case was tried without a jury. The Court heard the testimony of the several witnesses and resolved the facts in favor of appellee. If the judgment can be sustained on any reasonable theory consistent with the record, it must be affirmed and we believe the evidence supports the judgment

Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609; Rilling v. Munoz, Tex. Civ.App., 344 S.W.2d 696, error ref., N. R.E.

The judgment of the Trial Court is affirmed.

Affirmed.