text:
    Robert R. JAMES, Appellant, v. Helen McCARTNEY, Appellee.
    No. 4256.
    Court of Civil Appeals of Texas. Waco.
    Oct. 8, 1964.
    Rehearing Denied Oct. 29, 1964.

      J. Leonard Gotsdiner, Ranseler O. Wyatt, Houston, for appellant.
    Wolfe & Tillman, Houston, for appellee.
   WILSON, Justice.

Plaintiff appeals from a take-nothing judgment on a jury verdict. We quote from his statement of the nature of the case: “The suit was filed by appellant to set aside a purported deed” executed by appellant’s grandmother to her daughter, the appellee, “on the ground that it was not the intention of” the grantor “to pass title upon execution of the deed.” Appellee “took her mother to an attorney’s office where she executed a will leaving her property in equal one-fifth portions to her heirs, and at the same time executed a deed to the major portion of said property to appellee; and appellee executed a will leaving all of her property share and share alike” to her mother’s other heirs. Ten years later appellant’s grandmother executed a codicil to her will in which she devised her homestead to her daughter, specifying “it was not to come out of her one-fifth interest” theretofore devised. “Appellant contended in the trial court that this substantiated the contention that” his grandmother “never intended to convey the property described in the deed.” She continued in possession. After her death appellee “filed the will for probate; but did nothing further, never attempting to prove up said will or submit said property to the jurisdiction of the probate court, but rather, adversely claiming all of said property” under the deed.

The only issues submitted or requested resulted in jury findings that the grantor did intend to convey the property to appellee when she signed the deed, and that she did not intend that appellee hold an interest therein for appellant’s benefit. There were no objections to the charge. The jury findings are not challenged.

Appellant’s first three points are directed to the court’s action in overruling his motion for instructed verdict. There is no assignment in his motion for new trial on which these points may be predicated, and they are not preserved. See Rule 320, Texas Rules of Civil Procedure; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 892; Buckingham v. Thompson, Tex.Civ.App., 147 S.W. 290, writ ref.; San Antonio Traction Co. v. Emerson, Tex.Civ.App., 152 S.W. 468, 470, writ ref.; Caruthers v. Link, Tex.Civ.App., 154 S.W. 330. The first two points relate to intention of the grantor, settled by the jury verdict under contradictory evidence which clearly raised a fact issue. The third point concerns estoppel, elements of which, if raised by the evidence, are certainly not undisputed.

The fourth point asserts error in admitting testimony of an attorney in answer to a question as to why the application to probate grantor’s will was not presented to the probate court. The reason testified to was that all the property had been previously conveyed or transferred. The objection was that the question “calls for a self-serving statement.” Aside from the fact that the same inquiry was broached by appellant, the objection was not tenable. 1 McCormick & Ray, Texas Law of Evidence, Sec. 786. The evidence was admissible as explanatory of assailed conduct. 31A C.J.S. Evidence § 163, p. 445, 1 McCormick & Ray, above, Sec. 681. The fifth point complains of admission of evidence in a similar category objected to for like reason. It is overruled for the same reason.

The final point asserts generally that the court erred in rendering judgment because appellee’s evidence “unequivocally reflects she perpetrated a fraud” by influencing her mother to execute the deed to appellee on condition appellee would execute a will devising the property in question to her mother’s heirs. If it may be said this matter was pleaded, no issue referable to it was submitted or requested. It was not conclusively established. It was waived. Rule 279, Texas Rules of Civil Procedure.

Affirmed.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    E. G. WHITE, Jr., Appellant, v. W. D. WATSON, Jr., Appellee.
    No. 7406.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 19, 1964.
    Thomas J. Griffith, Jr., Lubbock, for appellant.
    Hugh Harrell, Lubbock, for appellee.
   NORTHCUTT, Justice.

W. D. Watson, Jr., the appellee herein, filed a mechanic’s and laborer’s statutory lien under Article 5452, Texas Revised Civil Statutes, Vernon’s Ann.Civ.St. art. 5452, upon the land of E. G. White, Jr., appellant herein, for labor and materials. Appellant filed suit to remove the lien to which appellee took issue and filed his cross action for alleged contract for personal services upon an oral contract of employment. In the alternative appellee sued appellant for a reasonable sum of money for the work, labor, services, and materials furnished appellant.

The trial court sustained appellant’s plea as to the lien upon the land in question to which appellee duly excepted and the trial •proceeded upon an oral contract of employment between the parties and in the alter'native for a reasonable sum of money for the work, labor, services, and materials ■furnished appellant or quantum meruit and inequity. Appellee’s suit was for $1,280.70 plus interest and reasonable attorney’s fees in the sum of $600.00 and court costs.

The-jury found that appellant employed -the appellee to prepare preliminary drawings, plans, and specifications for an apartment house project and for assistance in securing zoning changes for the land in question; that appellee completely performed; that $1,000.00 would reasonably pay appellee for the work which he did for appellant and that a reasonable attorney’s fee was $500.00.

The case was submitted to the jury upon six special issues. In answer to the first issue the jury’found that Watson was employed by White to prepare preliminary drawings, plans, and specifications for the construction in question and for assistance in securing the zoning changes of the land in question. In answer to issue two the jury found that appellee completed the preliminary drawings, plans, and specifications in question. In answer to issue three the jury found appellant did not agree to pay appellee $1,000.00 for his work done on the preliminary drawings, plans, and specifications and assistance in the zoning change. Answer to special issue four is not in issue here. In answer to issue five the jury found that $1,000.00 would reasonably pay appellee for the work which he did for appellant. In answer to issue six the jury found $500.00 was a reasonable attorney’s fee for the work done by ap-pellee’s attorney. The trial court rendered judgment upon the verdict in favor of ap-pellee for the sum of $1,000.00 plus six per cent interest from February 10, 1962, until fully paid plus $500.00 as reasonable attorney’s fee plus six per cent per annum until paid. From that judgment appellant perfected this appeal.

This, appeal is presented upon three points of error. The first point contends the court erred in submitting special issue five inquiring of the reasonable value of services rendered and in awarding judgment thereon when there was no evidence before the jury as to the reasonable value of such services. Point of error two was that the evidence was insufficient to warrant submission of such issue and insufficient to support such a judgment. The jury found against appellee’s contention that appellant agreed to pay appellee $1,-000.00 for the work done.

Since there was no contract or agreement as to the amount to be paid to the appellee by appellant, the appellee would only be entitled to recover a reasonable compensation for his services performed. Cochran v. Taylor, Tex.Civ.App., 209 S.W. 253.

We have checked the evidence in this case very carefully and are unable to find any testimony as to the reasonable value of the services performed by appellee. It is stated in the case of Parks v. Kelley, Tex.Civ.App., 126 S.W.2d 534, as follows:

“It is elementary that in order to recover upon a quantum meruit for personal services expended in behalf of another, the reasonable value of the services performed must be alleged and proved.”

Since there is no evidence in this case as to the reasonable value of the services expended by appellee, the appellant’s first two points of error will be sustained. However, since the case has not been fully developed and for lack of evidence supporting the judgment, the judgment will be reversed and remanded for a new trial. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458. By appellant’s third point of error it is contended the trial court erred in overruling appellant’s motion for directed verdict and motion for judgment notwithstanding the verdict upon proof and admission that appellee had demanded and received of appellant his entire work product and that same was valueless to appellant. It is true the appellee demanded of appellant the return of the preliminary drawings and they were returned to appellee, but there were other charges involved other than the preliminary drawings. It was the contention of appellant that the return to appellee of the preliminary drawings was an accord and satisfaction. It is stated in the case of Texas & P. Ry. Co. v. Poe, 131 Tex. 337, 115 S.W.2d 591, as follows:

“The doctrine of accord and satisfaction is well established in the law. All parties capable of making contracts may enter into an accord and satisfaction of a claim, disputed or undisputed. The rule is now universally accepted that all claims arising out of contracts, express or implied, irrespective of their subject matter, may be the subject of an accord and satisfaction, provided such contracts are not illegal. 1 Tex. Jur. p. 248, § 4; 1 Amer.Jur. p. 217; 1 R.C.L. 179; 1 C.J. p. 524, § 3. This rule is particularly applicable to claims arising from the commission of a tort; which claims are generally of an un-liquidated nature, and are almost invariably disputed, not only as to amount, but also as to liability; and it is now universally accepted that such claims form an ideal subject matter for settlement by an accord and satisfaction. 1 Tex.Jur. p. 248, § 4; 1 Amer.Jur. p. 217, § 5; 1 C.J.S. Accord and Satisfaction, p. 481, § 8b On Tort. “In 1 C.J.S. p. 462, § 1, a definition of ‘accord and satisfaction’ is given as follows: ‘An accord is an agreement whereby one of the parties undertakes to give or perform, and the other to accept, in satisfaction of a claim, liquidated or in dispute, and arising either from contract or from tort, something other than or different from what he is, or considers himself, entitled to; and a satisfaction is the execution, or performance, of such an agreement.’ ”

We are unable to see under this record any agreement that the return of the preliminary drawings constituted a satisfaction of the claim of appellee. Point three is overruled.

Judgment of the trial court is reversed and remanded for a new trial.


author: CHAPMAN, Justice.

text:
    H. D. BAILEY, Appellant, v. Ben MILLER, Appellee.
    No. 7402.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 19, 1964.

      Phelan & ■ Phelan, Levelland, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   CHAPMAN, Justice.

This is a summary judgment case. Appellant H. D. Bailey sued Ben Miller for damages to his automobile growing out of a collision between an automobile owned by Miller and driven by Buster Allen Smith and appellant’s unattended automobile sitting on a used car lot.

Following appellee’s motion for summary judgment, his accompanying affidavit and appellee’s opposing affidavit, judgment was rendered summarily for appellee Miller. This appeal is from that judgment.

The motion and affidavit of appellee denied that Smith was his employee or agent, asserted that the car had been stolen, but admitted in the interrogatories propounded to him that the vehicle at the time was in the possession of Smith for the purpose of making repairs thereon. He contended that the mechanic was not permitted to drive it.

Plaintiff, appellant, alleged that on the evening of February 3, 1963, the hour not being alleged, appellee’s 1954 Ford automobile being driven by Smith, acting in the course and scope of his employment for ap-pellee, went out of control, jumped the curbing, and crashed into his 1962 Chevrolet parked on Merle’s Used Car Lot in Denver City.

Mr. Miller’s affidavit stated that on February 3, 1963, Buster Allen Smith “was doing some work for me on a commission basis repairing and tuning up some of my cars”; that he did not have permission to drive any of them and that he did not furnish one for the mechanic’s use.

Appellant’s opposing affidavit made by Merle Souter stated:

“On the 3rd day of February, 1963 I was driving along the streets of Denver City, Yoakum County, Texas in the vicinity of Merle’s Used Car Lot when I observed the following:
“1. A 1954 Ford automobile was in contact with a 1962 Chevrolet automobile upon the used car lot and there was damage to both vehicles.
“2. One Buster Allen Smith, also known as “One-Eye” and known to me personally was sitting under the steering wheel and at the controls of the 1954 Ford automobile. On numerous occasions prior to the 3rd day of February, 1963 I observed Buster Allen Smith driving automobiles known to me to belong to one Ben Miller.
“On numerous occasions prior to the 3rd day of February, 1963 I observed Buster Allen Smith repairing and subsequently driving automobiles belonging to one Ben Miller.”

We believe the pleadings and opposing affidavit raised at- least a ground of inference that the mechanic Smith while repairing and tuning up appellee’s cars had the authority to try them out on the streets after repairing them and tuning them and that such summary judgment components involve the credibility of affiants and the weight of the showings.

In determining the motion we must accept as true all evidence of the party opposing the motion which tend to support such party’s contention, and give him the benefit of every reasonable inference which properly can be drawn in favor of his position. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

If the motion involves the credibility of affiants or the weight of the showings, or a mere ground of inference the trial court is without authority to grant the motion. Gulbenkian v. Penn, supra; Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93.

The question is raised by appellee to the effect that proof was not made concerning the driver of the Ford car when it collided with the Chevrolet. The fact that Smith had the car for repair, that it was seen in contact with the Chevrolet with Smith in the driver’s seat under the steering wheel and at the controls constitutes circumstantial evidence that he was the driver when it collided with the Chevrolet.

It appears obvious from the record that had Smith been available he could have testified concerning his authority to drive the Miller automobile but he could not be located. The record shows counsel for appellant made application for subpoena for him and that it was issued.

There is no showing that it was ever served.

We believe the rules above announced by our Supreme Court in connection with summary judgment rule 166-A, Vernon’s Ann. Tex. Rules of Civil Procedure, when applied to this record justifies appellant’s contentions that he is entitled to a trial on the merits in order that the witnesses may be examined and cross examined and the credibility of affiants passed on by a fact-finding body if justice is to be done. Also, the parties should have an opportunity to question Buster Allen (One-Eye) Smith.

Even if it could be said that appellee is correct in his position that there are no fact issues, he would not be harmed if judgment were rendered against him, in view of his right to appeal from such' judgment. F. & T. Development Co. v. Morris, Tex.Civ.App., 248 S.W.2d 233 (N.W.H.).

Accordingly, the judgment of the trial court is reversed and remanded for a trial on the merits.


author: RENFRO, Justice.

text:
    W. C. SUTHERLAND, Jr., Appellant, v. Carter McGREGOR, Jr., et ux., Appellees.
    No. 16567.
    Court of Civil Appeals of Texas. Fort Worth.

      Oct. 2, 1964.
    Rehearing Denied Oct. 30, 1964.
    Glen Sutherland, El Paso, for appellant.
    Prothro & Sellers and Lee Sellers, Wichita Falls, for appellees.
   RENFRO, Justice.

Plaintiff Sutherland alleged that he obtained an oil and gas lease from defendants Carter McGregor, Jr., and wife on May 16, 1961, covering Lot No. 13 of the Pace Subdivision on Blocks 155 and 156 of the John W. Harris Subdivision in Archer County; on July 8, 1961, he received a phone call from McGregor, in which Mc-Gregor informed plaintiff that defendant believed there was a unit agreement on the lease giving title to the lease to Galloway Bros.; this caused plaintiff to believe title to the lease was clouded and caused plaintiff to delay the drilling of a well. Other acts of the defendants were alleged but since the phone call was the only action of the defendants submitted to the jury no further consideration need be given them.

Plaintiff further alleged that Galloway Bros, filed suit to clear title in them on August 9, 1961, and on February 23, 1962, judgment was entered for plaintiff. Plaintiff pled damages against the McGregors in the sum of $30,000 as a result of oil and gas being drained from bis lease during the delay in drilling, and for $40,000 exemplary damages.

The jury found that plaintiff delayed the drilling of a well because of the conversation of July 8, but that plaintiff suffered no loss by drainage by reason of such delay.

Plaintiff contends that the “no loss” finding was based upon the testimony of the witness Gouldy, and that Gouldy’s testimony was wholly hearsay.

Gouldy testified he was a consulting petroleum engineer, registered professional engineer, and had been doing petroleum engineering since graduating with a degree in Petroleum Engineering from the University of Texas in 1939. He was employed by Galloway Brothers in 1961-2 to study their waterflood operations and make recommendations concerning them in connection with the “Abercrombie B” lease, which included the lease in question. He visited the lease regularly, conferred with the operating personnel, made recommendations concerning any changes in waterflood procedures, well testing, and gave technical advice to the operator concerning the operation of the waterflood; tests of the producing wells were made under his supervision and direction, and of course the results of such tests were available to him. Based upon his work, a study of the records and upon his knowledge of “what went on out there”, the witness was of the opinion the movement of the water from the injection well did not affect plaintiff’s lease. Gouldy testified in detail and at great length as to the reason for his opinion.

Gouldy’s qualification as a petroleum engineer was not challenged.

In Schooler v. State, 175 S.W.2d 664 (El Paso Civ.App., 1943, ref. w. m.), it was stated: “The conclusions of an expert as to so technical a subject as the geological features of a defined area arrived at in part from study of unsworn reports prepared by other experts are analogous to the diagnosis by a physician based in part on unsworn reports of tests made by hospital technicians. * * * The objection, we think, goes more to the weight to be given to, than to the admissibility of, such testimony. Testimony predicated both upon personal knowledge and upon hearsay has been held to be admissible in this jurisdiction.”

Gouldy was an expert witness. His testimony was based partly on his knowledge, partly on tests made under his direction and supervision, and partly upon reports made by others.

Clearly his testimony was admissible.

In answer to issues 10 and 11, the jury found that any delay in drilling by plaintiff from August 8, 1961, to February 23, 1962, was caused solely by the acts and conduct of Galloway Brothers.

Plaintiff contends there was no evidence to support the jury’s answers.

The suit by Galloway Brothers against plaintiff was brought without arrangement with or knowledge of the McGregors. From August 21, 1961, until February 23, 1962, plaintiff was enjoined, by agreement with Galloway Brothers, from conducting operations on the lease. Plaintiff, after judgment in his favor on February 23 in the Galloway suit, immediately proceeded to drill a well, and suffered no objection or complaint from defendants. There was ample evidence to support the jury’s findings.

The third point claims error on the part of the court “in requiring affidavits from the jury to be filed with the amended motion for a new trial before he would hear evidence from the jury concerning misconduct.”

The amended motion for new trial was not verified and no affidavits were attached to same.

In the absence of affidavits, it was necessary for the plaintiff to show in his motion a reasonable explanation and excuse as to why affidavits could not be secured and exhibited in connection with sufficient allegations of material jury misconduct. The court did not abuse his discretion in refusing to hear testimony from the jurors. Union City Transfer v. Adams, 248 S.W.2d 256 (Fort Worth Civ.App., 1952, ref., n. r. e.); Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644 (1942).

Judgment affirmed.


author: LANGDON, Justice.

text:
    Austin TODD et ux., Appellants, v. HILL’S, INC., Appellee.
    No. 16577.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 9, 1964.
    Rehearing Denied Oct. 30, 1964.
    Rawlings, Sayers, Scurlock & Eidson, and Richard J. Linton, Fort Worth, for appellants.
    Harris, Ball & Davis, and Fred W. Davis, Arlington, for appellee.
   LANGDON, Justice.

This is a slip-and-fall .case. At the close of the plaintiffs’ direct evidence an instructed verdict was rendered for the defendant. The propriety of the action of the court in instructing verdict is the only question before this court.

Mrs. Mae Todd contends she was injured when she slipped and fell as the result of stepping on a piece of lettuce while shopping in appellee’s supermarket.

In order for the appellants to establish liability against the defendant, ap-pellee herein, it is necessary to show: (1) that the defendant placed the lettuce upon the floor, or (2) the defendant knew the lettuce was on the floor and wilfully or negligently failed to remove it, or (3) that the lettuce had been upon the floor for such a period of time that in the exercise of ordinary care the defendant should have discovered and removed it. H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501, 502 (San Antonio Civ.App.1949, ref., n. r. e.); Beard v. Henke & Pillot, Inc., 314 S. W.2d 844 (Beaumont Civ.App.1958, no writ hist.); O’Neal v. J. Weingarten, Inc., 328 S.W.2d 793 (Beaumont Civ.App.1959, ref., n. r. e.); Smith v. Safeway Stores, 167 S. W.2d 1044 (Fort Worth Civ.App.1943, no writ, hist.); Safeway Stores v. Miller, 110 S.W.2d 927 (Eastland Civ.App.1937, dismissed). See also 40 Tex.Jur.2d pp. 564—568, § 72, and 61 A.L.R.2d 6, together with cases cited therein.

The evidence introduced may be summarized briefly as follows: the plaintiff fell near the vegetable bin at about 2:15 P.M. After her fall she removed a piece of lettuce from one of her shoes. The piece of lettuce was either a portion of leaf, stalk, or butt. The store was full of people and several of them were ahead of the plaintiff. The testimony does not reflect that any one saw her fall. The general practice of the store was to trim all vegetables in a back room. Only on rare occasions were vegetables trimmed at the bin or counter where they were displayed for customers. On the rare occasions when vegetables were trimmed at the bin a square tub was placed on the floor below it to catch the trimmings and any trimmings which fell on the floor were placed in the tub after the trimming was completed. Each day the floor of the store was swept every fifteen to thirty ■minutes. There is no testimony that the vegetables were trimmed in the back room or at the vegetable bin on the day in question. There is no direct evidence or any •evidence from which it can be inferred that the appellee or its employees rather than •some customer dropped the particle of lettuce on the floor or that the appellee had notice of its presence on the floor or that it had been upon the floor for such a length ■of time that the appellee in the exercise of •ordinary care should have known of it and taken action to remove it. There was evidence indicating the possibility of persons ■other than appellee or its employees dropping the lettuce upon the floor. Mrs. Todd’s sister testified, “this type stuff looked like what someone may have dropped.”

Mere proof of the occurrence of the fall, coupled with proof that a piece of lettuce was upon the floor, is insufficient to show negligence on the part of the appel-lee.

There is a total absence of any testimony raising an issue of fact as to the appellee’s liability under the rules above announced.

In our opinion the trial court correctly disposed of the controversy and its judgment is accordingly affirmed.

Affirmed.


author: DENTON, Chief Justice.

text:
    EMPLOYERS CASUALTY COMPANY, Appellant, v. W. W. WEST, Appellee.
    No. 7400.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 5, 1964.
    Rehearing Denied Nov. 2, 1964.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Stovall & Stovall, Plainview, for ap-pellee.
   DENTON, Chief Justice.

This is a venue case. The suit was brought by W. W. West, appellee, against Employers Casualty Company to recover damages as a result of the alleged breach by appellant of a contract of insurance issued by appellant company to appellee. The alleged breach is based on alleged fraudulent acts committed by appellant in failing to settle a third-party claim and its refusal to defend and pay a subsequent judgment obtained by the third party against appellee. From an order overruling its. plea of privilege to be sued in Dallas County appellant perfected this appeal.

By appellant’s seven points of error it is contended the trial court erred in-overruling its plea of privilege because of appellee’s failure to prove his cause of action; and that appellee has no cause of action for the reason appellee’s loss was based on contractual liability rather than tort liability. Appellee sought to maintain this suit in Floyd County trader the section-of Subdivision 23, Article 1995, Vernon’s Ann.Tex.St., which provides that a suit against a private corporation may be brought in the county in which the cause of action or part thereof arose. By supplemental brief appellant contends the instrument offered by appellee as the insurance policy involved was not in fact the basic policy of insurance issued by appellant. In the absence of an instrument with which to compare, we are unable to say categorically that appellant is either correct or incorrect; however, the instrument introduced appears to contain the essential elements of a liability policy. It is headed "Comprehensive General Liability Policy” with a policy number; and sets out appel-lee’s name and address; and gives the policy period from September 1, 1956, to September 1, 1957. The instrument sets out limits of liability for bodily injury and property damage along with “insuring agreements”, “exclusions”, and “conditions”, together with various endorsements and a schedule of premiums for various items under “purpose of use”. In our opinion, viewed from this record, including evidence of the appellant’s employees’ conduct subsequent to the issuance of the policy, the instrument constitutes a valid insurance policy. We deem it a sufficient contract of insurance to determine the relative rights of the parties hereto. It is uncontradicted appellee paid the premiums called for in the schedule. This conclusion is further strengthened by appellant’s admissions made in its original brief, whereby it assumes the policy was issued and was in force and effect.

Subsequent to the issuance of the policy in question appellee entered into an oil and gas lease with Minnie Carpenter involving land in Floyd County, Texas. Drilling operations were begun in December of 1956. On December 24 appellee’s drilling contractor encountered a pressure pocket which caused the discharge of drilling fluids, chlorides, and other substances upon the Carpenter land. Mrs. Carpenter’s claim against appellee followed and a suit for damages was ultimately filed against ap-pellee on November 3, 1960. Appellant had notice of this third-party claim and admittedly conducted a rather extensive investigation and made efforts to settle the claim with Mrs. Carpenter and her attorney. When settlement failed and suit was brought, appellant refused appellee’s request to defend said suit. The Carpenter case resulted in a judgment against appel-lee and after said judgment became final this suit was filed.

In relying upon the applicable portion of Section 23 of Article 1995, the plaintiff below pleaded and proved the issuance of the liability insurance policy by the appellant; the third-party claim; notice of such claim to the appellant insurer; and the suit resulting in final judgment against appellee. The provisions of the oil and gas lease covering the Floyd County land was the basis of the third-party claim and resulting suit which was filed in Floyd County. Section 23 is applicable if some part of the transaction creating the primary right or some part of the transaction relating to the breach of that right occurred in the county where the suit is brought. Stone Fort National Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674. Under this record we conclude appellee sustained his burden.

We are of the opinion appellant’s contention that the exception from liability because the third-party claim was contractual rather than tort is without merit. Although appellee was required to allege and prove a cause of action and that said cause of action or a part thereof arose in Floyd County, the applicability of exceptions from liability under the policy was not a venue issue. Mutual Fire & Automobile Ins. Co. v. Kirkman, Tex.Civ.App., 231 S.W.2d 459. Rule 94, Texas Rules of Civil Procedure, provides that the burden of alleging an exception from liability in a suit on an insurance policy is upon the insurer and that insurer shall not be permitted to raise such an issue unless such exception is specifically alleged. No such exception was pleaded by appellant in connection with its plea of privilege.

We conclude appellee proved a cause of action or a part thereof arose in Floyd County, Texas. The judgment is affirmed.

Affirmed.


author: RENFRO, Justice. MASSEY, Chief Justice

text:
    Jay A. DAVIDSON, Appellant, v. Tom DANAHER, d/b/a Danaher Automobile Company, Appellee.
    No. 16565.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 9, 1964.
    Kramer & Kramer, and Clayton S. Kramer, Wichita Falls, for appellant.
    Humphrey, Gibson & Darden, and Lynn Darden, Wichita Falls, for appellee.
   RENFRO, Justice.

A 1958 Volkswagen Microbus, owned by Jay A. Davidson, was destroyed by fire while in the garage owned by Tom Dana-her.

Davidson was paid $2,500 by his insurer, United Services Automobile Association. Later the insurer, in Davidson’s name, brought suit against Danaher, praying for recovery for the difference in value of the Volkswagen before and after the fire.

Danaher pleaded settlement and estoppel. The causes were severed and in a non-jury trial judgment was entered for Danaher on his pleas of settlement and estoppel.

Plaintiff appealed.

Among other findings of the court were: On May 28, 1959, Jay A. Davidson’s 1958 Volkswagen Microbus was a total loss from a fire in the shop of Danaher Motor Company; an insurance adjuster investigated the fire damage between May 28, 1959, and June 2, 1959; on May 28, 1959, a dispute arose between the plaintiff Davidson and defendant as to the liability of defendant to plaintiff for damage to plaintiff’s automobile ; that between May 28, 1959, and June 2, 1959, defendant offered to sell plaintiff Davidson a replacement vehicle for a price less than defendant’s cost; that the replacement vehicle had a value in excess of $2,-800 and price said vehicle was offered to plaintiff Davidson was $2,150, which was less than defendant’s cost; that the offer of defendant to plaintiff Davidson was conditioned on plaintiff Davidson’s releasing defendant of any and all claims or causes of action for damages to plaintiff Davidson growing out of a fire damaging plaintiff Davidson’s vehicle on May 28, 1959; that between May 28, 1959, and June 2, 1959, plaintiff Davidson accepted defendant’s offer; that on June 2, 1959, defendant sold to plaintiff a replacement vehicle for $2,150; that on June 2, 1959, plaintiff, United Services Automobile Association, paid plaintiff Jay A. Davidson $2,500 under its insurance contract with Davidson and Davidson assigned to United Services Automobile Association his alleged cause of action against defendant; prior to the settlement agreement entered into by and between plaintiff Davidson and defendant Danaher, defendant Danaher had no notice or knowledge of the subrogation interest of the United Services Automobile Association; defendant Danaher would not have sold the new Volkswagen at a discount if he had known he would be required to pay the insurance claim; after plaintiff Davidson received the $2,500 draft issued by United Services Automobile Association, same was endorsed to Danaher for a new car and the difference was paid by Danaher to Davidson; Danaher knew when the U. S. A. A. draft was given him for a new car that some kind of a settlement had been made on Davidson’s insurance policy.

The court concluded there was adequate consideration for the settlement; acceptance by Davidson of the consideration es-tops Davidson from prosecuting the suit, and, since Danaher had no notice or knowledge of insurer’s interest prior to the settlement between Danaher and Davidson, insurer has no claim or cause of action against Danaher because its claim would come from Davidson, and Davidson no longer had any claim against Danaher.

Insurer contends the trial court erred in holding: (a) Davidson released Dana-her from liability, (b) Danaher did not have notice of insurer’s subrogated right, (c) release given by Davidson to Dana-her defeated insurer’s right of recovery, and (d) insurer is estopped from asserting a cause of action against Danaher.

We are of the opinion that there was no direct nor indirect evidence from which the factual finding or conclusion could be drawn that Davidson agreed or intended to release Danaher from any tort liability. An essential element of Dana-her’s case required proof that Davidson intended that Danaher be fully and finally released from such liability.

If there was such evidence it came from Danaher. Our examination of his testimony reveals that while Danaher intended to effect a release and discharge by selling the replacement vehicle at the discount price, and believed that such had been accomplished, there was want of proof that Davidson had a like intention and understanding. The record fails to establish that Davidson even knew that he was receiving the replacement vehicle at a discounted price. Though we have little doubt that he did know that fact, the requisite of trial procedure would be to establish it by evidence. Even if we should presume that Davidson did know that the price was discounted the record fails to establish that he expressly or impliedly agreed that any part of the consideration therefor involved a release of any cause of action originally belonging to him against Danaher. Dana-her testified that he “didn’t recall” what Davidson said at the time of the purchase transaction, nor what Davidson did at the time he sold him the automobile. If there was a release it was oral, for there was nothing in writing. Danaher did not remember whether his own actions were inspired or induced by Davidson threatening him or telling him that he owed anything.

All members of the court are of the opinion the affirmative defense was not fully developed. One member of the court, however, is of the opinion that, as a matter of law, when Danaher accepted the endorsed draft from Davidson, he, Danaher, was “on notice” that the insurance company theretofore had succeeded to all or part of the very cause of action presently being asserted.

The majority is of the opinion, in view of the evidence introduced and considering the circumstances as they existed as of May 28-June 2, 1959, the question of whether the draft put Danaher on notice of a subrogation claim in behalf of the insurance company was not fully developed.

In the opinion of the majority, justice will best be served by a remand and a new trial.

Reversed and remanded.

MASSEY, Chief Justice

(dissenting).

I am of the opinion that the judgment should be reversed and rendered rather than reversed and remanded. When Danaher accepted the endorsed draft from Davidson, he, Danaher, was “on notice” that the insurance company theretofore had succeeded to all or part of the very cause of action presently being asserted.

In his testimony Danaher admitted that when he saw the draft he knew that Davidson’s insurance company had made some sort of a settlement with him under and by virtue of the loss and damage Davidson sustained as result of the fire. The draft did not bear language which necessarily would have put Danaher on notice of such fact. I see no distinction to be made, however, were the case one where such language did appear — and was observed at the instant it was tendered.

Danaher was bound to have been aware that some sort of consideration had theretofore passed from the insurance company to Davidson or there would have been no insurance settlement. Necessarily, Danaher must be held to have known as a matter of law (whether or not he knew it as a matter of fact) that all or a part of the cause of action against him, originally Davidson’s, had become the property of the insurance company. Under equitable principles, ownership of part, if not all, of Davidson’s cause of action was automatically transferred when the insurance company consummated settlement of Davidson’s insurance policy loss. Having knowledge that there had been such a settlement, Danaher, perforce the operation of law, knew as of the time of Davidson’s tender that it was of consideration which did not include the release of that part of Davidson’s originally owned cause of action which had become the property of the insurance company.

I believe that Danaher must be held to have been informed and aware that Davidson was not tendering him the consideration he had agreed to accept. Although he accepted what was tendered, Danaher may not be heard to contend that he obtained a release of the whole cause of action, for he knew that such was not within the power of Davidson to deliver.


author: WALTER, Justice.

text:
    ACUFF GIN COMPANY, Appellant, v. BURTON LINGO COMPANY, Appellee.
    No. 3911.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 25, 1964.
    Rehearing Denied Oct. 16, 1964.

      Turpin, Smith, Dyer & Hardie, James T. Smith, Midland, R. H. Weaver, Big Spring, for appellant.
    Little & Little, Big Spring, John H. Hall and Hobert Price, Strasburger, Price, Kel-ton, Miller & Martin, Dallas, for appellee.
   WALTER, Justice.

Burton Lingo Company filed suit against Acuff Gin Company for damages it sustained when its property was destroyed by fire. Based on a verdict, judgment was rendered in favor of Burton Lingo for $47,000.00.

Acuff has appealed. It contends the court erred in failing to grant its motion for an instructed verdict and for judgment non obstante veredicto because there was no evidence to support the jury’s answers that the operation of - tile gin without a screen over the smokestack of the burr burner was negligence and a proximate cause of the fire. It also contends there was insufficient evidence to support such answers and that such findings are against the great weight and preponderance of the evidence. It also complains about appel-lee’s argument to the jury.

Burton Lingo’s lumber yard at Coahoma was destroyed by fire on January 4th, 1962. Acuff’s gin was located across the street west of the lumber yard. As a part of its operations it had a brick burr burner about 31 feet high and about 6 feet across the top. The following testimony was given by Mr. A. D. Shive, manager of the gin: “Q. Now, did the brick burr burner, the one on the east, have any sort of a covering over the top of it? A. No; Sir. Q. It was wide open? A. Yes, sir.” He further testified: I run the Acuff Gin in Coahoma and am its manager. My son, Wendell, is assistant manager and my wife keeps the books. The gin property covers a city block with the exception of two lots. Burton Lingo’s yard is located east of the gin. The lint that comes from the gin will travel, some distance with a breeze or a wind and will catch fire easily from sparks. The lint is very fine and a spark will set it off easily. We have had a brick burr burner in operation at the gin since 1950 or ’51. I first learned about the lumber yard fire about 3 :30 or 4:00 o’clock in the afternoon. The general direction of the wind was from the northwest. I would say the wind was blowing toward the front end of the lumber yard on that day. When the lumber yard was on fire the blaze was traveling to the southeast. I was coming from the office to the gin when they told me the lumber yard was on fire. “Q. The very first thing you did when you saw the fire was to run around it? A. Uh-huh. Q. To see if any of the lint from your gin was on fire around it? A. Yes, Sir.” The wind can become such a problem at times that we have to shut the gin down because of the fire hazard of the sparks from the burner. On the day of the fire I had employed a man to water down the gin-grounds so' that-it would not catch fire, from' the Sparks. -The reason I 'watered the lint on -the gin property was to lessen the fire hazard. We do not clean out the. brick burr burner during the ginning sea-: son. .We clean, it-out in, the summertime. We do not start a fire in the burr burner each day. This is not necessary unless we have shut down for the week end. I have seen sparks coming out of the top of the burr burner. I have .seen such sparks when the wind .was high and have seen them travel in the air a distance of about fifty feet. If the wind wasn’t high the sparks would be out by the time they hit the ground.

Lint that comes from the exhaust at the back of the gin hangs on telephone lines and electric lines and is found over on the east side of the block where the lumber yard is located. To a certain extent it is inflammable.

At one time before the fire, I think we had a screen over the lint burner. The screen is placed over the burner as a spark resister. That is what they claim a screen does. I had a screen on the lint burner at one time to arrest sparks. The screen is used to keep the sparks from blowing and flying. About noon on the day of the fire the wind was so strong, I thought it advisable to have a watchman and I put Carl Parrish out there with a hundred foot garden hose to wet down the area to prevent a fire.

Charles Coyt Williams testified substantially as follows: I lived in Coahoma about 17 years. I was engaged in the plumbing business while I live there. My home was located north of Burton Lingo Lumber Company. The Acuff Gin was located on the block west of me. While I was living at this address sparks from the gin burners fell 'all over my place. My fence rows and the excelsior in my air conditioner caught on fire. Lint from the gin would stack up. on the fences. The grass along my fence; row caught on fire nearly •every-, year. At night “it looks about -like a-.million candles o’r those lightening, bugs in the air.” “They were coming out of. those burners at the top — .” “But if you had any wind in your direction, well, they would just fall right on you.” I could see the sparks coming across the street from the burners to my property. I watered down my roof because I was afraid it would catch on fire. I talked to the manager of the gin and asked him if there was something he could do about the burners, the fire and the smoke and he said “it wasn’t and that if I didn’t like it I could move.” During the ginning season of 1961 when the wind was out of the west, my fence row caught on fire and I called the gin and they sent several men over there and put it out.

W. C. Hutchins, manager of the lumber yard, testified that he had a screen over his trash barrel to keep the sparks from flying.

We have considered the entire record and find that the jury’s answers that appellant was guilty of negligence which was a proximate cause of the fire, are not against the great weight and preponderance of the evidence. In re King’s Estate, ISO Tex. 662, 244 S.W.2d 660.

Appellant submits Smerke v. Office Equipment Company, 138 Tex. 236, 158 S.W.2d 302 (1941) as authority for the rule which we are to follow in deciding its point on counsel’s argument to the jury. The rule announced by this decision is no longer controlling. The rule of “presumed injury” has not prevailed in Texas since the adoption of Rule 434, Texas Rules of Civil Procedure. The Development of the Doctrine of Harmless Error in Texas, 31 Texas Law Review, page 1 by Chief Justice Calvert. “Before a judgment is reversed because of argument of counsel two things must appear: the argument must be improper, and it must be such as to'satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in ■the case.” Aultman et vir v. Dallas Railway & Terminal Company, 152 Tex. 509, 260 S.W.2d 596.

We have carefully considered the argument. We do not think the nature of the argument was such as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

We find there was some evidence of probative force to support the jury’s answers on negligence and proximate cause.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    Virgil SHAVER et ux., Appellants, v. Martha Lesser SHAVER, Appellee.
    No. 4272.
    Court of Civil Appeals of Texas. Waco.
    Oct. 15, 1964.
    Rehearing Denied Nov. 5, 1964.
    Harkness & Friedman, Texarkana, foi appellant.
    Louis S. Aselin, Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal from an order of the Trial Court striking appellants’ plea of privilege, and awarding custody of a minor child to appellee.

Appellee filed application for writ of Habeas Corpus in the Court of Domestic Relations No. 2 Harris County, Texas, alleging that appellee had been given custody of a minor child in a prior divorce action; that she had permitted the minor child to visit appellants (the child’s grandparents) in Bowie County; and that appellants refused to return the child. Appellee prayed that the child be produced by appellants in Domestic Relations Court No. 2, Harris County, and that they be required to show cause why the child should not be returned to appellee. Appellants were served with citation and an order to bring the minor child before the court. Appellants filed a plea of privilege to be sued in Bowie County, Texas, the county of their residence. Appellee did not file a controverting affidavit to such plea of privilege but, instead, filed a motion to strike such plea of privilege, asserting that the “residence of the minor child was in Harris County, Texas,” and such fact gave the Harris County Court “exclusive venue.”

The Trial Court thereafter entered an order granting appellee’s “motion to strike respondents’ plea of privilege.” The court further found that appellants were illegally holding the minor child from custody of ap-pellee and ordered appellants to deliver the minor child to the appellee.

Appellants appeal, contending the Trial Court erred in striking their plea of privilege, and in not transferring the cause to Bowie County, Texas (appellee having filed no controverting affidavit).

The sole issue is whether parties commanded by Habeas Corpus proceedings to produce a child, are adverse parties to proceedings, and sued within the purview of the venue statute. This question is answered in the affirmative by our Supreme Court in Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79. Such case holds that a proceeding in Habeas Corpus to determine possession of a minor child, is a suit involving custody likewise, and that the respondents (appellants here) in such suit are adverse parties to the proceedings and are sued within the purview of the venue Statutes. The Trial Court therefore erred in striking appellants’ plea of privilege, and since the appellee did not file a controverting plea within 10 days, as required by Rule 86, Texas Rules of Civil Procedure, the Trial Court was deprived of jurisdiction except to transfer the case. Calvert Fire Ins. Co. v. Carroll, CCA (n. w. h.) 231 S.W.2d 490; Bell v. Jasper Lbr. Corp., CCA, W/E Dis., 287 S.W.2d 746; Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154.

The judgment of the Trial Court is reversed and judgment here rendered that the cause be transferred to the District Court of Bowie County, Texas. Reversed and rendered.


author: WERLEIN, Justice.

text:
    Harry PLATZER, Appellant, v. Frances PLATZER, Appellee.
    No. 14406.
    Court of Civil Appeals of Texas. Houston.
    Oct. 22, 1964.

      John M. Robinson, Houston, for appellant.
    Dyche, Wheat, Thornton & Wright, Karl C. Hoppess, E. H. Thornton, Jr., Houston, for appellee.
   WERLEIN, Justice.

This is a divorce case in which the sole complaint is that the trial court abused its discretion by making an unfair and unjust division of the community property of the parties.

Since the case is before us without a statement of facts and the court made no findings of fact or conclusions of law, it is impossible for this Court to say that the trial court abused its discretion in the division of the community property or that such division is unfair or unjust. The law is well settled that in the absence of a statement of facts, every presumption must be indulged in favor of the trial court’s findings and judgment. Commercial Credit Corporation v. Smith, 1945, 143 Tex. 612, 187 S.W.2d 363, and authorities therein cited. Gammage v. Weinberg, Tex.Civ.App.1962, 355 S.W.2d 788, writ ref., n. r. e.

Appellee has filed a motion to assess 10% damages against appellant on the ground that the appeal has been taken for delay and that there was no sufficient cause for taking such appeal. It has always been the rule in this State that a motion for damages for delay, or for frivolous appeal, has; the effect of opening up the entire record in. < the case, requiring the appellate court to inspect the record and to assess damages only in the event the court concludes from .the whole record that the appeal was not taken in good faith, but for delay only. This Court is without authority to make an award of 10% of the amount in dispute as damages trader Rule 438, Texas Rules of Civil Procedure, since a complete record of the proceedings in the trial court has not been filed in this Court. National Surety Corporation v. Stukes, Tex.Civ.App.1961, 350 S.W.2d 900; Granberry v. Jackson, 62 Tex.Civ. App. 597, 132 S.W. 508; Scott v. McClain, Tex.Civ.App., 246 S.W. 1118; Ramey v. Phillips, Tex.Civ.App., 253 S.W. 323; Texas State Life Ins. Co. v. Aparicio, Tex. Civ.App., 129 S.W.2d 794; 4 Tex.Jur.2d, Sec. 867, p. 445.

Appellee’s motion to award an additional' 10% penalty as damages under Rule 438, ■ T.R.C.P., is denied.

Judgment affirmed.


text:
    J. C. BUIE, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
    No. 4282.
    Court of Civil Appeals of Texas. Waco.
    Oct. 22, 1964.
    Rehearing Denied Nov. 5, 1964.

      Campbell, Babohick & Thurlow, Houston, for appellant.
    Dittert & Hruska, Bellville, Fulbright, Crooker, Freeman, Bates & Jaworski, Blake Tartt and Tom Connally, Houston, for appellee.
   McDONALD, Chief Justice.

This is a workmen’s compensation case. Plaintiff Buie alleged that he sustained injuries on October 14, 1961, in the course and scope of his employment; that he suffered a blow to his left knee; and to his back; that the injury to his left leg extended to and affected his back and body in general; and that he sustained permanent and total disability. Trial was to a jury which found that the injury to his knee did not extend to or affect plaintiff’s back; that plaintiff’s total loss of the use of his left leg was temporary; continued for 6 weeks after October 14, 1961;. that the injury was the producing cause of 15% partial use of plaintiff’s left leg; and that such partial loss of use was permanent. The jury also found that payment of compensation to plaintiff in weekly installments would result in a manifest hardship to him. The Trial Court entered judgment on the verdict for plaintiff for a lump sum of $995.00.

Plaintiff appeals on 22 points, contending:

1) The jury’s answer finding that the injury to plaintiff’s left leg did not extend to or affect his back is against the great weight and preponderance of the evidence.

2) The Trial Court erred in permitting defendant’s counsel to cross-examine plaintiff about his credit rating in 1957, and the repossession of his automobile in 1957.

3) The Trial Court erred in instructing fhe jury during oral argument by plaintiff’s , counsel, that Dr. Renfro’s deposition, read to the jury, was not the test provided under the Workmen’s Compensation Act.

4) A new trial should have been granted because the jury-was guilty of misconduct.

5) A new trial should be granted because of improper argument of counsel for defendant.

We revert to plaintiff’s 1st contention that the jury’s finding that the injury to plaintiff’s leg did not extend to and affect his back, is against the great weight and preponderance of the evidence. Drs. Ren-fro and Gillespie both testified that plaintiff’s injury to his left leg did extend to and affect his hack. Dr. Renfro was a general practitioner called by plaintiff, further testified plaintiff had a serious knee injury; that he believed plaintiff would have 15% permanent residual disability to his left leg; that plaintiff gave, him no history of an injury to his back; and that plaintiff’s back complaints could be caused by a change in his weight bearing (due to the leg injury) which in turn caused a strain on the muscles of the lower back. Dr. Gillespie, another general practitioner, called by plaintiff, testified that plaintiff’s back complaints were caused by scoliosis, a lateral bending of the spine resulting from plaintiff’s favoring his left leg and knee; and that such was a resulting effect of the injury to plaintiff’s knee.

Dr. Milligan, an orthopedic surgeon, called by defendant, testified that in his opinion plaintiff was not suffering from scoliosis; that the very slight curvature in the backbone was due to degenerative arthritic changes; and that plaintiff had a tendency to exaggerate his symptoms.

The record further reflects that plaintiff had worked regularly since January 9, 1962, except for some 3 months in 1963, and that his gross earnings were $2828. in 1961, and $3471. in 1962.

From the record as a whole we conclude that while there was a sharp conflict in the evidence as to whether plaintiff’s leg and knee injury extended to and affected his back, there is ample evidence to support the findings of the jury, and such findings are not against the great weight and preponderance of the evidence. The contention is overruled.

Plaintiff’s 2nd contention is leveled at the Trial Court’s permitting counsel for defendant to cross-examine plaintiff about his credit rating in 1957, and about the repossession of his automobile in 1957.

Counsel for plaintiff in trying to show that plaintiff would suffer hardship unless awarded a lump sum, asked plaintiff on direct examination if sometime after the accident in 1961 he had had an automobile repossessed, and if his credit had suffered. Plaintiff answered in the affirmative. On cross-examination counsel for defendant asked plaintiff if, in 1957, he had also had a car repossessed, and if his credit rating had been subject to some question prior to the accident. Plaintiff answered in the affirmative. We think the cross-examination proper in view of plaintiff’s own direct examination. In any event the jury answered the “lump sum” issue favorable to plaintiff. The contention is overruled.

Plaintiff’s 3rd contention complains of a verbal instruction the Trial Judge gave to the jury during argument of plaintiff’s counsel. Dr. Renfro has testified in his deposition, without objection, that if you cut a piano player’s finger off he could be 100% disabled as far as doing that kind of work. Counsel for plaintiff in his argument to the jury related Dr. Renfro’s testimony and told the jury not to be misled by the contention that plaintiff was only 15% disabled. Counsel for defendant objected to the foregoing argument on the ground it was not a proper test for disability under the Compensation Act. The Court sustained the objection and instructed the jury not to consider the argument, and further that the test (of disability) under the Compensation Act was not as under the doctor’s testimony. Counsel for plaintiff then agreed with the Trial Judge and said: “Of course that is right. Nobody is saying this is a test. Here is a test, what he says is total disability. Nobody says that was a test * * The contention is overruled.

Plaintiff’s 4th contention is that a new trial should he granted because of jury misconduct. At the hearing on motion for new trial, it was testified that several jurors mentioned their own personal back trouble in the jury room, and that they had gotten over them. Other testimony was to the effect that such remarks were not heard, and that the jury based its verdict on the evidence and the instructions of the trial court. The juror, Mrs. Messman, testified that she applied the test that a person doing heavy labor could not be totally disabled. She however further testified she tried the best she knew how to follow the trial court’s instructions, and based on the evidence she did not think plaintiff was totally disabled. The trial court in overruling plaintiff’s motion for new trial, is presumed to have found that no jury misconduct occurred or that it was not harmful to plaintiff. Plaintiff’s contention is overruled.

Plaintiff finally contends a new trial should be granted because of improper argument of defendant’s counsel.

Plaintiff’s petition asserted that plaintiff’s back was injured by being hit against some tongs at the time of the accident. The trial court did not submit any issue on whether plaintiff’s back was injured by being hit against some tongs and plaintiff made no objection nor requested any issues on this matter.

Defendant’s counsel argued to the jury “ * * * the first thing the Judge has found is that there is no question about hitting back on the tongs because he * At this point counsel for plaintiff objected that defendant’s counsel was telling the jury that the court found something as a matter of law. The court ruled “All right. Proceed.” Plaintiff contends that the complained of argument was made to cause the jury to think the court personally felt plaintiff’s testimony about hitting his back on some tongs was incredible, and constituted reversible error.

Assuming that the complained of argument was error, there was no request by plaintiff for an instruction to the jury to disregard. In any event, no harm is shown. Rule 434, Texas Rules Civil Procedure; Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596.

All of plaintiff’s points and contentions are overruled. Affirmed.


author: MAUGHMER, Commissioner.

text:
    GREATER KANSAS CITY LABORERS DISTRICT COUNCIL OF the INTERNATIONAL HOD CARRIERS BUILDING AND COMMON LABORERS UNION OF AMERICA OF GREATER KANSAS CITY AND VICINITY et al., Appellants, v. BUILDERS’ ASSOCIATION OF KANSAS CITY, a Corporation, et al., Respondents.
    No. 23989.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.
    John J. Manning, Robert S. Fousek, Kansas City, for appellants.
    Harry L. Browne, Howard F. Sachs, Stanford C. Madden, Kansas City, Spencer, Fane, Britt & Browne, Kansas City, of counsel, for respondent Builders’ Ass’n of Kansas City.
   MAUGHMER, Commissioner.

Plaintiffs sought an injunction to restrain the disbursement of any part of a Health and Benefit Fund. The trial court refused to grant such relief and plaintiffs have appealed.

No findings of fact were made nor were any requested. The suit was brought by the Greater Kansas City Laborers District Council of the International Hod Carriers Building and Common Laborers Union of America of Greater Kansas City and Vicinity, and individually as a class by Willard Wilkinson, Secretary-Treasurer, Leo Boy--lan, Vice-President, and Otto Bowles, President, officers of the District Council. The defendants, as originally named, • included the Builders Association of Kansas City, Laborers Local Unions Nos. 264 and 555, and Traders National Bank, depository of the fund. Later Jerry Irving, Ray Livingston, and Don Jarrett were joined as a class representing Local 264, and Leo Mc-Kamey,' Vernon Brooks and George Hi-sháw were similarly joined as defendants representing Local 555.

The actual facts out of which this controversy arises are generally conceded or agreed upon. The disputes revolve principally around the authority of the various organizations, including labor unions— local, district and international — the Builders Association of Kansas City and various individual officials to control and expend the fund.

The plaintiff union apparently was bargaining agent for Locals 264 and 555 and other locals in Kansas City, Springfield and rural Missouri. The members of these unions were all engaged in the building industry. Some were engaged in heavy construction — roads, bridges, etc. Locals 264 and 555 build houses and other buildings termed in the trade as “light construction’'’. Through plaintiff union’s council, a group made up of delegates from the various locals, an agreement was negotiated whereby the Builders Association of Kansas City, effective April 1, 1962, would pay or the construction contractors would pay into a Health and Welfare Fund the sum of ten cents (10^) per hour for each hour worked by such construction union’s employees. Such fund payments covering the work of members of Locals 264 and 555 and.in-a large amount, have been deposited in the Traders National Bank. Similar payments covering heavy construction workers, who are members of other uniQns and. members of outstate unions, have b,een deposited in a Jefferson City Fund and insurance coverage for those members has been bought. This Jefferson City. Trust Agreement, management and insurance protection, as bought, has the approval of plaintiffs, who say that the fund on deposit with the Traders National Bank must likewise be sent to Jefferson City and become a part of that fund.

The Locals 264 and 555 unanimously voted to administer their fund locally and separate and apart from other funds. The Builders Association is in agreement with them in this respect. It is asserted for them that plaintiffs neither own nor have a right to control any part of their fund and have no authority to dictate as to its disposition. Defendants contend that the suit was properly dismissed because (1) Appellants under the constitutions of the unions — international, district and local— are required to first exhaust their administrative remedy of review by and through the unions before a civil suit is permissible; (2) plaintiffs have no interest in the fund, either ownership thereof or right to control expenditures therefrom; (3) because plaintiffs have no interest they are not proper “class representatives” and (4) the question is moot because a plan covering this particular welfare fund has been in actual operation since November, 1962.

Section 7, Article XVIII, Constitutions of the International Hod Carriers, reads as follows:

“No Local Union or officer or member thereof shall bring or cause to be brought in any court, whether in law or in equity, any action against another Local Union, District Council or the International Union, or their officers, representatives or employees, in any matter involving an issue arising out of or related to their charter' or to their rights or obligations, which is remediable within the framework of the International Union, Local Union or District Council Constitution, without first having exhausted all of the remedies available under the aforesaid Constitutions”.

Section 1(d) Article III, Uniform District Council Constitution provides:

“The District Council is required to exhaust remedies in accordance with Article XVIII, Section 7 of the International Constitution”.

The matter before us has not been presented to or through the union administrative channels. In Reed v. St. Louis Southwestern R. Co., Mo.App., 95 S.W.2d 887, 889, the law is stated this way:

“It is well settled that, where contracting parties either agree or are required by law to resort to a designated tribunal for the adjustment of controversies, they must exhaust such remedy before resorting to the courts for redress”, (citing cases).

To the same effect is this part of the opinion in Robinson v. Nick, 235 Mo.App. 461, 136 S.W.2d 374, 387:

“It is indeed a well settled principle of law that in cases involving the internal affairs of an association such as a trade union, where no distinct property right is directly involved, a member who has a grievance must exhaust whatever remedies are provided within the organization before he may ask the courts to interfere. This for the reason that the relation between the member and the association is contractual; and so long as the constitution, rules, and by-laws of the association, which constitute the contract, do not contravene the laws of the land, and the affairs of the association are conducted fairly and honestly, the courts will refuse to interfere upon the theory that the decisions of the tribunals set up within the association are binding and conclusive upon the member.”

The rule as stated in these opinions was approved by the court in Junkins v. Local Union No. 6313, Communication Workers of America et al., 241 Mo.App. 1029, 271 S.W.2d 71.

It follows that since the right and requirement of review through the union administrative channels have not been invoked or exhausted, that the present suit, even if it were otherwise well grounded, is premature and the trial court properly refused plaintiffs’ prayer for an injunction.

Moreover, we are unable to see how plaintiffs have any real and direct interest in this fund, as a union council or as individuals or as officers of the Council. The money comprising the fund is a part of the wages paid to or for members of Locals 264 and 555. The fund is to be utilized to provide health and welfare benefits and protection for them. Locals 264 and 555, as unions and by the vote of the individual members, have declared in favor of administering their fund separate and apart from the Jefferson City fund. We have not been shown any specific union requirement, any rule of law or reason under which plaintiffs are entitled to either absolute or joint control of this fund. For this second reason the injunction was rightly denied.

It seems doubtful that plaintiffs if they have no interest in the fund or at least an adverse interest, are proper “class representatives”. One witness testified that a plan utilizing this particular fund has been in operation since November, 1962. Defendants say, therefore, the issue is moot.

It is our opinion that for (1) failure to pursue and exhaust the administrative review process and (2) because plaintiffs have no interest in the fund or right to either entirely or jointly control its usage, plaintiffs’ petition for an injunction must be denied. These reasons are good, sufficient and decisive and it is therefore unnecessary to determine if the question has become moot or if plaintiffs are suitable class representatives.

The judgment denying injunctive relief is affirmed.

PER CURIAM:

The foregoing opinion of MAUGH-MER, C., is adopted as the opinion of the Court.

All concur.


author: ANDERSON, Judge.

text:
    MUTUAL FINANCE COMPANY, Inc., a Corporation, Plaintiff-Respondent, v. AUTO SUPERMARKETS, INC., a Corporation, Defendant-Appellant.
    No. 31539.
    St. Louis Court of Appeals. Missouri.
    Oct. 20, 1964.
    Gerald K. Rabushka, Jack B. Schiff, St. Louis, for defendant-appellant.
    Goldenhersh, Goldenhersh, Fredericks, Newman & Lane, Samuel J. Goldenhersh, St. Louis, for plaintiff-respondent.
   ANDERSON, Judge.

This is a suit in replevin brought by Mutual Finance Company, Inc., against Auto Supermarkets, Inc., for the recovery of a 1960 Cadillac automobile. In its pleading plaintiff prayed judgment for the recovery of said property and $500.00 damages for the taking and detention thereof. Defendant filed an answer and counterclaim which consisted of a general denial of the allegation of plaintiff’s statement in replevin, and averred that defendant was entitled to the possession of said property which was of the value of $4,500.00. The prayer of said pleading was that plaintiff’s cause be dismissed; and for recovery of said property or its value together with damages in the 'amount of $500. Plaintiff’s reply consisted of a general denial of the allegations of defendant’s counterclaim. The case was tried" to the court and resulted in a finding and judgment for plaintiff on its cause of action ; that it retain possession of said prop-' erty; and that defendant take nothing by reason of its counterclaim. Defendant has ' appealed from the judgment.

This suit was filed March 30, 1961. On the same date the court issued a writ of re- , plevin and order of delivery, which was executed on said date by the sheriff taking the possession of the automobile in question and delivering it to plaintiff. At that time plaintiff had filed no affidavit in compliance with Supreme Court Rule 99.01, V.A.M.R., which under the authorities was necessary to the issuance by the Court of a valid order of delivery under Supreme Court Rule 99.02.

On May 1, 1961, defendant filed its motion to set aside the order of delivery on the ground that the necessary affidavit had not been filed. On May 2, 1961, this motion was by the court sustained, and plaintiff was ordered to surrender the automobile seized under the order of delivery, and return same to defendant. Also, on May 2, 1961, the court granted plaintiff leave to file a proper affidavit relating to the allegations in its original petition which plaintiff did on said date. The Court then issued an order of delivery and summons in replevin returnable according to law. Plaintiff also at said time in compliance with Supreme Court Rule 99.03 filed a bond in the sum of $8,000.

On May 8, 1961, defendant filed its answer and counterclaim which has heretofore been described. Thereafter, and ■ on May 10, defendant filed a motion to strike plaintiff’s pleadings for failure of plaintiff to comply with the order of May 2, 1961, which ordered plaintiff to return the automobile to defendant. This motion was denied on May 11, 1961.

On September 28, 1962, the cause came on for hearing. At the start of the trial counsel for defendant interposéd the follow-’ ing objection: “If the Court please, on be-’ half of defendant, we-object to any evidence on behalf of plaintiff, and ask 'that their petition be stricken and their cause of action dismissed, for the reason that the plaintiff has failed to comply with the order of this court of May 2, 1961, to return the property mentioned in the, affidavit and statement.”’ This objection and motion to dismiss was denied.

. The evidence received on behalf of plaintiff was to the effect that on Janu’ary 17, 1961, plaintiff loaned Bob Carson the sum of $3753.75 for which he gave his promissory note secured by a chattel mortgage on a 1960 Cadillac' automobile. ’ No payments were ever made on this note, and When the account became delinquent, plaintiff brought’ this replevin action and the automobile was taken under the writ from the possession of. defendant. The main issue at the triql was whether the chattel mortgage was a.¡ valid lien as against the defendant. The evidence showed that the mortgage was filed in Phelps County. Defendant attempted to show that Bob Carson resided in Pulaski County at the time the chattel mortgage was executed. Plaintiff offered evidence which it contends shows that Bob Carson lived in Phelps County at said time. There were objections by defendant to the admissibility of certain documents and records received in evidence, and on this appeal it is urged that the court erred in admitting same. The facts relevant to these contentions will be detailed later when we consider the assignments of error with reference to the admission of this evidence.

Appellant’s first point raised is that the trial court erred in denying its motion made at the beginning of the trial, to strike plaintiff’s petition and dismiss the action for failure of plaintiff to comply with the previous order of the court which directed plaintiff to surrender to defendant the automobile seized under the writ of replevin.

An examination -of- the transcript shows that the foregoing allegation 'of error was not presented to the trial in defendants- motion for new tri^l. It is therefore not preserved for review in this court. Civil Rule 79.03.

Appellant’s next complaint is that the court erred in permitting Charles Elfrank to testify with reference to plaintiff’s Exhibits 1, 2 and 3, and in admitting said exhibits into evidence, based upon his testimony. Plaintiff’s Exhibit No. 1 was a Missouri Certificate of Title to the automobile, "showing ownership in Bob Carson. On the face of this exhibit is a certification by Austin Bell, Recorder of Deeds of Phelps County, to the effect that a chattel mortgage on said motor vehicle was filed in his office on January 20, 1961. Plaintiff’s Exhibit No. 2 was a note in the principal sum of $3753.75, and a chattel mortgage on the automobile involved herein securing said note. ' Both instruments are dated January 10, 1961- and both are signed by Bob Car-sbn.' > Mutual Finance Company, Inc., was designated payee in the note," and mortgagee in the chattel mortgage. Plaintiff’s Exhibit-No. 3 was a ledger card of plaintiff’s Showing a history of the sale of the automobile in question to Bob Carson and the payments required under the purchase.

Appellant contends that Elfrank was not a competent witness to lay a foundation for the admission of said exhibits under the Uniform. Business Records as Evidence Law (§ 490.680 RSMo 1959, V.A. M.S.) for the reason that he was not a proper custodian of the records of said company inasmuch as he was not connected with plaintiff’s company at the date of the trial; that since the exhibits had not been qualified under the law, they were inadmissible and should not have been admitted into evidence; that since they were not admissible plaintiff failed to make a case and for that reason the trial court should have sustained defendant’s motion to dismiss at the close of plaintiff’s case.

The transcript shows that defendant objected to the admission into evidence of plaintiff’s Exhibits No. 1 and No. 2, but not on the grounds urged in this court. The-point now urged-as to said exhibits is, therefore, not open .for consideration or review. Hall v. Clark, Mo., 298 S.W.2d 344, and cases cited therein. Furthermore it does not appear that said exhibits were offered as records of the company admissible under the Uniform Business Records as Evidence Law.

Plaintiff’s Exhibit No. 3 was offered in evidence as a business record admissible under Section 490.680 supra, and when plaintiff’s counsel sought information from Mr. Elfrank to qualify the exhibit under said act, defendant’s counsel objected on the ground “ * * * because he is not competent to testify.” There was no suggestion to the Court as to why it was thought the witness was not competent to testify. However, he must have had in mind the reasons now urged, to wit; “Being a stranger to plaintiff at trial, he certainly could not qualify as custodian of such records as required by the Revised Statutes of Missouri, 1959, Section 490.680, * * * and absent his personal attendance to and witness of the signing of the chattel mortgage by Bob Carson, he could not in any event be an ‘other qualified witness’ as set out in the statute.”

Mr. Elfrank testified that he first became associated with Mutual Finance Company in January, 1959; that in the Spring of 1961 he was an officer of that company; that he had some direct connection with the Robert Carson account; that he first did business with Mr. Carson beginning approximately in March, 1959; that he supervised the office and actually solicited Carson as a Mutual Finance customer.

Mr. Elfrank further testified that plaintiff’s Exhibit No. 3 was a ledger card showing the payments required and the history of the performance on the contract; that the record was maintained in the usual course of business; that entries are made a few days following the date of execution of the note and mortgage, and when payment is received it is entered the same day it is received and that he recognized the handwriting of the bookkeeper as having made the entries on plaintiff’s Exhibit No. 3.

The witness further testified that Mutual Finance Company was under his direct supervision; that he screened the paper that was purchased; that he did the hiring and firing, and was the only liaison between the office and the home office; that the systems employed there were suggested by him and supervised by him; that he was thoroughly familiar with the manner in which the records were maintained, which was his responsibility.

Mr. Elfrank left the employ of Mutual Finance Company in September, 1962.

In our judgment Mr. Elfrank was a qualified witness under § 490.680 RSMo 1959, V.A.M.S., to testify as to the matters specified in said statute as necessary to render the exhibit admissible in evidence, even though he was not employed by plaintiff at the time of trial. It is also our opinion that the facts testified to were sufficient to justify the admission of said exhibit into evidence.

It is urged that plaintiff was not entitled to possession of the automobile for the reason there was no showing that Bob Carson had defaulted in the payments on the note since no demand therefor was shown. The note and mortgage called for five payments of $100.00 each and one payment of $3253.75. Neither the note or mortgage specified when the payments were due. The trial court, although not requested to make findings of fact and conclusion of law, filed a written opinion in the case in which he stated that the actual making of a demand was unnecessary as a useless act. The note provided that if any installment was not paid when due all installments would become due and payable at the option of the legal holder of the note without notice or demand. Exhibit 3 recites that the first payment was due March 1, 1961, and the final payment August 1, 1961. Mr. Elfrank testified that the first payment was due March 1, 1961, and that no payments were ever made on the note; and that when it became delinquent, he undertook to locate the automobile. He located it at defendant’s place of business which the evidence shows was located at 820 North Kingshighway in St. Louis. The whereabouts of Bob Carson was not clearly shown. Elfrank testified he did locate Carson during the summer of 1961 in the Federal Court in Springfield, Missouri, the day the jury returned a verdict of guilty in the counterfeiting case.

Bob Auffenberg, defendant’s witness, testified that the business of Auto Supermarkets, Inc., was the buying and selling of motor vehicles. On cross-examination he testified that he worked at defendant’s place of business, and supervised the buying of the automobile here in question for defendant Auto Supermarkets, Inc.

In the chattel mortgage the mortgagor, Bob Carson, agreed among other things that he would not attempt to sell, assign or dispose of the mortgaged property. There was also a provision that if the mortgagor should fail to keep and perform any of the covenants, stipulations and agreements in said mortgage, the whole amount of the debt secured by the note would be admitted by said mortgagor as due and payable; and that the mortgagee could, at its option (notice of which was waived) foreclose the mortgage by action or otherwise without demand for performance and sell the property, etc..

Since Carson had violated the terms of the agreement contained in the mortgage by selling or attempting to sell the mortgage property to defendant the whole amount of the debt became due and payable at the mortgagee’s option without notice or demand, and plaintiff was entitled to possession for the purpose of foreclosure without first making a demand upon Carson for payment of the amount due.

It is next urged that plaintiff failed to prove that its chattel mortgage was filed for record so as to constitute notice to defendant of plaintiff’s alleged lien. There is no merit to this contention. The mortgage was introduced in evidence. It bore the signature of Bob Carson as mortgagor. Mutual Finance Company was named as mortgagee. The automobile was described as 1960 Cadillac, 4 door H.T., Serial # 60K057935. The principal debt secured was $3753.75. The Certificate of Title of the automobile was then offered in evidence. It described the automobile as a 1960 Cadillac, 4-door sedan,. Serial Number 60K057935. It showed Bob Carson as the owner of said motor vehicle. On the face of the title was a certificate signed by Austin Bell, Clerk of the Circuit Court of Phelps County and ex-officio Recorder of said county, which recited that a .chattel mortgage for $3753.75 to Mutual Finance Co. was filed in Phelps County on January .20, 1961. Section 443.-480 RSMo 1959, V.A.M.S., provides that it is the duty of the Recorder of Deeds to make-: such certificate when requested by the mortgagee, for'said mortgage to be notice’. to the world.. -In- our view the foregoing evidence "justifies ’a finding that the chattel mortgage in question was filed in Phelps County.

• Appellant’s final assignment of error relates to the only real dispute in this case. It is urged that plaintiff failed to offer any evidence that Bob Carson was a resident of Phelps County, whereas defendant proved by the clear weight of the evidence that Carson lived in Pulaski County; that since he was a resident of Pulaski County, the chattel mortgage did not constitute notice to defendant of plaintiff’s lien, and for that reason plaintiff was not entitled to recover in this action.

Charles Elfrank, testifying for plaintiff, stated that he was personally acquainted with Bob Carson; that he had occasion to associate with Bob Carson while doing business with him; that he saw him socially and would go out with him from time to time; that he visited him at a private residence in Rolla; that when he visited him at the private residence in Rolla, Carson’s wife and child were present; that this residence where he visited Carson was a small house in a section called Sunset. Hills, or Sunset Acres, or Sunset Park; that it was on Highway 63 about three or four blocks from the office of plaintiff, Mutual Finance Co.; that he had food and drink at this residence served by Mrs. Carson; that the address “4 Sunset Hills, Rolla, Missouri” appearing in plaintiff’s Exhibit No. 3 as the address of Bob Carson, is the address where he visited with Carson and his wife and child; that he would see Mr. Carson as often as once a week in Rolla, in his office, which was about thirty or thirty-five miles from Carson’s place of business in Pulaski County. The evidence shows that Carson was engaged in the used car business which was located just outside the gate entrance to Fort Leonard Wood. His business was known as Trader Inn Auto Sales.

The deposition of Rice Farmer, County Clerk for Pulaski County, was introduced by defendant. In that deposition Farmer .testified’that on March 19, 1959, Bob Carson came to his office in regard to his commission as Notary Public, and at said time made oath he was a resident of Pulaski County. It must be noted that this was approximately two years before the mortgage in question was executed. He also testified that as far as he knew Carson lived in his trailer at his place of business in Pulaski County outside the gate entrance to Fort Leonard Wood. Mr. Elfrank, plaintiff’s witness, testified that Carson had a house trailer at his place of business which he used as an office.

Eula May Anderson, Deputy County Clerk of Pulaski County, testified on behalf of defendant. She identified defendant’s Exhibit A, a Merchants Bond filed in her office by King Cole Auto Sales, which bore the signature of Bob Carson as Notary Public of Pulaski County, on an affidavit thereon. The bond was dated January 30, 1961. Defendant’s Exhibit B was an instrument dated May 25, I960,' on which the signature of Bob Carson and his notorial seal appealed under date of February 25, 1960.

Defendant called as a witness William H. Jones, Circuit Clerk and ex-officio Recorder of Deeds for Pulaski County. While this witness was on the stand there was offered and received in evidence defendant’s Exhibit C This exhibit does not appear in the transcript, nor was it separately filed in this court as provided for in Civil Rule 82.15. We are therefore unable to determine its probative value on the issue of Bob Carson’s residence.

We have examined and considered the evidence relative to the issue of Bob Carson’s residence. We find no merit whatever to the contention that plaintiff failed to offer any evidence that Bob Carson was a resident of Phelps County. Nor did defendant prove, as it contends, by the overwhelming weight of the evidence that Bob Carson was a resident of Pulaski County. The issue was one of fact under the evidence adduced, which in our judgment was properly decided by the trial court.

The defenses in this case, and the points raised on this appeal were purely technical and, wholly without merit. For that reason the judgment appealed from is affirmed.

RUDDY, P. J., and WOLFE, J., concur.