author: HUGHES, Justice.

text:
    STATE BOARD OF INSURANCE of the State of Texas, Appellant, v. REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 11271.
    Court of Civil Appeals of Texas. Austin.
    Oct. 21, 1964.
    Rehearing Denied Nov. 18, 1964.

      Waggoner Carr, Atty. Gen., Joe R. Long, Asst. Atty Gen., Austin, for appellant.
    Heath & Davis, Dudley D. McCalla, Austin, Thomas G. Nash, Jr., Dallas, for appellee.
   HUGHES, Justice.

The Trial Court upon sworn petition by Republic National Life Insurance Company and after appearance by appellant, the State Board of Insurance of the State of Texas, and after hearing, both parties being represented, issued a temporary injunction the material portions of which are:

“ * * * it appearing that the plaintiff is entitled to the temporary injunction as herein granted, same being within its allegations and prayer, for the reasons that the Commissioner of Insurance and the State Board of Insurance of the State of Texas, defendant, have issued, and approved the issuance of, a certificate of authority to Great Republic Life Insurance Company to transact a life insurance business in the State of Texas and such action will result in the immediate commencement of competitive business between Great Republic Life Insurance Company and Republic National Life Insurance Company, and it appearing that such commencement of business by these companies in Dallas, Texas, and elsewhere, in view of the similarity of names, will result in confusion and misleading of the public, and that the State Board of Insurance of the State of Texas, defendant, in approving the issuance of such certificate of authority has acted in disregard of Articles 3.02 and 3.06 of the Texas Insurance Code (V.A. T.S.) and Article 2.05 of the Texas Business Corporation Act (V.A.T.S.), and that the issuance of such certificate and the operations by Great Republic Life Insurance Company will result in irreparable and inestimable damage to the plaintiff; and that the plaintiff in said hearing has made a proper showing of a probable right and probable injury of the matters in the temporary injunction prayed for; it further is the holding of the Court that the appeal taken by plaintiff herein will be tried ‘de novo’ rather than under the substantial evidence rule and therefore any action of the State Board of Insurance or the Commissioner of Insurance purporting to approve or authorize the use of the name ‘Great Republic Life Insurance Company’ or to authorize a certificate of authority issued in that name is totally void and a nullity; that no company may use that name as a matter of law and if any such company attempts to do so it will be without legal authorization of the proper authorities of the State of Texas and the temporary mandatory injunction granted herein is proper on that basis;
“It is Accordingly Ordered, Adjudged and Decreed that the clerk of this Court issue a writ of temporary mandatory injunction pending final hearing and determination of this cause ordering the State Board of Insurance of the State of Texas, defendant, to take any and all action necessary to recall and cancel certificate of authority No. 3339, purportedly authorizing Savings and Security Life Insurance Company to operate under the name ‘Great Republic Life Insurance Company’, provided that the plaintiff shall,, prior to the issuance of such injunction, file with the Clerk a bond executed by it in the amount of Five Thousand ($5,000.00) Dollars payable as required by law, with good and sufficient surety, approved and conditioned as the law requires; all of which is subject to the further order of the Court.”

Appellee posted bond as required and the injunction ordered has been issued and served upon proper parties.

The Board’s first point is that the Court erred in issuing an injunction, mandatory in form, to compel official action by it..

We overrule this point upon the authority of Texas Practice, Lowe and Archer,. Sec. 330 from which we quote:

“Mandatory injunctions may be either temporary or permanent.
“A temporary mandatory injunction will issue only for the purpose of maintaining or restoring the status-quo pending final hearing. While it is often said that a mandatory injunction, particularly a temporary mandatory injunction, should not be granted except with great caution and only in¡ cases of extreme hardship when the necessity for the relief is manifest,, the Texas courts do not hesitate to-issue the writ when it is essential to* remedy a wrong and no other adequate means of effecting the needed relief exists. * * * Should it become necessary to preserve the status quo by requiring action instead of rest pending such hearing, a mandatory injunction would be authorized since a prohibitory injunction would be ineffective.”

The quoted text is well supported by authorities.

The Board’s second point is that the Court erred in ordering cancellation of the Certificate of Authority contrary to the statutory provisions governing such cancellation.

The Board cites, in particular, Art. 1.14 of the Texas Insurance Code, V.A.T.S. This Article provides for the issuance of certificates of authority to persons engaged in the insurance business upon compliance with its conditions which certificate * * shall be in full force and effect until it is revoked, canceled or suspended according to law; * * This Article also provides for the revocation of such Certificate of Authority for certain reasons as do Arts. 1.15 and 3.55 of the Insurance Code. Both Arts. 1.14 and 1.15 contain appeal provisions to the effect that the institution of suit as authorized operates to stay the order appealed from unless the Court otherwise directs, and provides that the trial shall be de novo as in other civil cases. These articles also give the reviewing Court plenary authority over the action of the Board in the premises.

Appellee predicates its appeal upon the provisions of Art. 1.04, Insurance Code. This Article provides that relief from any ruling of the State Board of Insurance by any dissatisfied insurance company or other party at interest may be had by filing a petition in the District Court of Travis County and that such “action shall not be limited to questions of law and the substantial evidence rule shall not apply, but such action shall be tried and determined upon a trial de novo” as in cases of appeal from the Justice Court to the County Court.

Article 1.04 does not specifically provide that an appeal under its terms has the effect of annulling the order or ruling which is the subject of the appeal but the law gives it such effect. Southern Canal Company v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619.

No insurance company should be permitted to do business under a Certificate of Authority which has been nullified, and ap-pellee, on default by the Board, had the right to seek protection from unlawful competition by Great Republic Life Insurance Company and the Trial Court had authority to grant such protection upon proper showing.

Answering directly the Board’s point, the Court in directing cancellation of the Certificate of Authority issued to Great Republic Life Insurance Company was in accordance with and declaratory of the legal consequence of a proper appeal from the action of the Board. The real substance of the Court’s order was its direction to the Board to recall the Certificate of Authority issued to Great Republic Life Insurance Company and by so doing to put an end to its unlawful operation thereunder. Point two is overruled.

The Board’s third point is that the Court erred in holding that appellee had exhausted its administrative remedies in regard to cancellation of the Certificate of Authority issued by the Board to Great Republic Life Insurance Company. The basis of this point is the contention that ap-pellee did not appeal from the order of the Insurance Commissioner granting such Certificate of Authority to the State Board of Insurance but that it appealed only from the order of the Commissioner changing the name of Sayings and Security Life Insurance Company to Great Republic Life Insurance Company, and since Art. 1.04(f) authorizes an appeal to the Courts from the action of the Board, as distinguished from the action of the Commissioner, the attempted appeal from the order of the Commissioner is unwarranted.

On June 9, 1964, the chief executive officer of the Republic National Life Insurance Company wired the Commissioner of Insurance, in part, as follows:

“I would use this means to urgently protest the granting by your department of a charter amendment to the Savings and Security Life Insurance of Dallas permitting them to use the name Great Republic Life Insurance Company. I respectfully request that such amendment not be granted to them and that they not be given authority to write life insurance in Texas under such name.”

On June IS, 1964, Republic National sent identical telegrams to the Chairman of the State Board of Insurance and to the Commissioner of Insurance reading, in part, as follows:

“ * * * We wish to protest issuance of any Certificate of Authority to do business as a life insurance company in the name of Great Republic Life Insurance Company. Sjt S¡¡ 5¡t »

Certificate of Authority was issued by the Commissioner of Insurance to Great Republic Life Insurance Company on June 11, 1964.

An appeal was heard by the State Board of Insurance in this matter and its order affirming the action of the Commissioner

was signed June 30, 1964. We quote, in part, from this order:

“Subject Considered:
REPUBLIC NATIONAL LIFE INSURANCE COMPANY Dallas, Texas
Appeal from action taken by the Commissioner in denying its protest against the use of the name Great Republic Life Insurance Company

General remarks and official action taken

On this day, came on for consideration by the State Board of Insurance, the appeal of REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Dallas, Texas, from the official action of the Commissioner to the effect that the corporate name Great Republic Life Insurance Company was not so similar to that of REPUBLIC NATIONAL LIFE INSURANCE COMPANY as to be likely to mislead the public.
The State Board of Insurance is of the opinion and so finds that the official action taken or ruling made by the Commissioner is proper and correct, and the determination by the Commissioner that the corporate name Great Republic Life Insurance Company is not so similar to that of REPUBLIC NATIONAL LIFE INSURANCE COMPANY as to be likely to mislead the public is hereby approved, and the appeal by REPUBLIC NATIONAL LIFE INSURANCE COMPANY is hereby, in all respects, denied.”

It is palpable from these records that the point at issue before the Board was not the privilege of this company to engage in the life insurance business in Dallas but its right to engage in such business in Dallas under the name of Great Republic Life Insurance Company. If it had no right to use this name, it had no right to the Certificate of Authority issued in such name. The validity of the Certificate of Authority is wholly dependent upon the validity of the charter amendment authorizing the change of name. We believe that the order of the Board by necessary implication had the effect of overruling the protest made to it by Republic National to the issuance of a Certificate of Authority to Great Republic Life Insurance Company. If the order of the Board is not adroitly drawn, it is no fault of appellee and it should not be penalized for the failure of the Board, if it did fail, to draw an order adequate to dispose of the primary issue before it. Point three is overruled.

By supplemental brief the Board presents its fourth point which is that the evidence is insufficient to establish imminent danger of irreparable injury to appellee pending a trial on the merits.

Mr. Barry L. Oakes, president of Republic National, testified that his company was very large, that it had over four billion dollars insurance in force, and that it operated in forty nine states, Puerto Rico and in Washington D. C. He testified, from his experience, to the confusion which results when insurance companies have similar names. We quote the following testimony of Mr. Oakes:

“Q Mr. Oakes, in your capacity as President of Republic National, and from your experience in the insurance business, particularly in and around Dallas, and because of your past experience with other companies that you have testified about, is it your opinion that if the company under discussion begins its operations in Dallas, Texas under the name of ‘Great Republic Life Insurance Company’ that confusion will result among the stockholders of your company, the public at large, the-policyholders, and the public irt general, and that they will probably be misled as to the true identity of the respective companies at different times?
“A There is little doubt in my mind" but that it will be very confusing-to everybody.
“Q Do you think there is a possibility that the public or other people that I have mentioned may-on occasions assume there is some connection between the two companies ?
“A I think so.”

We also quote the affidavit of Mr. R. R„. Gilbert:

“That he is a partner of Sanders & Company, brokerage firm, and that he is familiar with the trading of stock, of Republic National Life both locally and nationally; that Sanders & Company is one of the largest traders in;said stock in the nation.
“That Sanders & Company deals-both in retail sales and as a wholesale trader. That in trading (which, refers to purchase and sales between: dealers) time and communication are-vital elements. That in the rapid, exchange of trading as well as retail', sales Republic National Life Insurance Company is referred to as ‘Republic Life/ the word ‘Republic’ being-used to refer to Republic National of' Dallas and the word ‘Life’ being used. to refer to the life insurance industry,, thus preventing confusion with any other industry such as Republic Bank..
“That ‘Republic’ is used since it is. a dominant and widely used word associated with Republic National Life-Insurance Company. That Republic; Life stock is traded throughout the: country in a large volume.
“That the use of the dominant word '‘Republic’ in the title of another life company, such as ‘Great Republic/ will he confusing and misleading in the trading of stock and necessitate adjustments in the use of trading names. Precautions and procedures to identify and distinguish between similar company names in the same industry to minimize the danger of confusing trades will have to be developed.
“That this problem is compounded when both companies are located in Dallas. Any such confusion can be harmful to existing stockholders, the trading public, and brokerage firms.”

There is also in the record an affidavit of Mr. Theo. P. Beasley, chairman of the Board of Directors of Republic National, which is of similar import to the testimony of Mr. Oakes and Mr. Gilbert.

It is our opinion that the evidence is sufficient to show a probability of injury to Republic National had the Trial Court refused to grant a temporary injunction.

The judgment of the Trial Court is affirmed.

Affirmed.

ON MOTION FOR REHEARING

Criticism of our opinion is made by appellant because in quoting from Lowe and Archer, Texas Practice, we omitted the following: “Mandatory injunctions may not be used as a substitute for the writ of mandamus to compel action by duly constituted public officials, * * * ”

In stopping in mid-sentence, appellant omitted the remaining portion which reads: “although it may be used to bring about a recognition or restoration of the status quo which has been flaunted or disturbed by such officials.”

The action of the trial court was clearly within appropriate limits as delineated by the above text.

Appellant, not having done so previously, now questions the constitutionality of the trial de novo provisions of Sec. (f), Art. 1.04 of the Insurance Code. We overrule this contention and sustain the constitutionality of these provisions under the authority of Key Western Life Insurance Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839, and State Board of Insurance v. Professional and Businessmen’s Insurance Co., 359 S.W.2d 312, Austin Civ.App., writ ref., n. r. e.

Appellant also for the first time contends that Great Republic Life Insurance Company was a necessary and indispensable party to this suit.

The suit in the District Court was in the nature of an appeal from a ruling of the State Board of Insurance as authorized by Sec. 1.04(f) of the Insurance Code, which Article provides that such an appeal may be taken by filing a petition in the District Court of Travis County against the State Board of Insurance. Under this statute only the Board of Insurance need be sued. See 43 Tex.Jur.2d, Sec. 665, Oil and Gas, page 610, and cases there cited, where it is stated with reference to a similar statute providing for appeals from ruling of the Railroad Commission that, “ * * * the Commission is the only necessary party defendant.”

The temporary injunction issued in this case was purely incidental to the appeal taken from the action of the Board, and the rifles relating to such appeals have primary application.

The motion is overruled.

      . Chief Justice Calvert, for tire Court, . stated the law in this language:
      “The sine qua non of a de novo trial as that term is used to describe a retrial of a matter or controversy theretofore tried by another tribunal is the nullification of the judgment' or' order of tlie first tribunal and a retrial of the issues on which the judgment or order was founded. When jurisdiction- of the second tribunal attaches, the judgment or order of the first tribunal is not merely suspended, -but is nullified.” ■’


source: Caselaw Access Project

author: DENTON, Chief Justice.

license: Public Domain

text:
    Rene YEARY et al., Appellants, v. Hollis BOND et al., Appellees.
    No. 7450.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 2, 1964.
    Rehearing Denied Nov. 30, 1964.

      Thomas J. Griffith, Jr., Lubbock, for appellants.
    Crenshaw, Dupree & Milam, Lubbock, for appellees.
   DENTON, Chief Justice.

Appellants, Rene Yeary and other property owners, brought this suit against Hollis Bond and others, individually and as directors of the Caprock Hospital District, and the Commissioner’s Court of Floyd County, Texas attacking the constitutionality of Article 4494q-14, Vernon’s Ann.Civ.St., which created the Caprock Hospital District lying within the boundaries of Precincts 1, 3, and 4 of Floyd County. Appellants sought a declaratory-judgment declaring the creating statute unconstitutional; nullifying the election creating the hospital district; and sought an injunction against the defendants from levying, assessing, or collecting' taxes or expending money and pledging credit of the district.

Appellants challenge the constitutionality of Article 4494q-14 on the grounds the act failed to meet the constitutional requirement of an affirmative vote of a majority of the taxpaying voters in the district; that the caption of the statute is inadequate; that the enabling act has as its principal object the raising of revenue and is therefore unconstitutional in that it originated in the Senate; that Section 14 of the enabling act is a grant of judicial power to the district in violation of the Texas Constitution; and the alleged gerrymandered district and mode of taxation is invalid. As we understand it, appellants take the position the act creating the Cap-rock Hospital District is unconstitutional in that it does not require an affirmative vote of a majority of the taxpaying voters in the district concerned as required by Article 9, Section 9 of the Texas Constitution, Vernon’s Ann.St., but only requires a majority of the qualified property taxpaying electors of the district voting at an election called for such purposes. (Emphasis added) In other words appellants contend Article 9, Section 9 requires an affirmative vote of the majority of the taxpaying voters regardless of the number of such voters participating in an election.

The act creating the Caprock Hospital District was enacted under authority granted the Legislature in Section 9, Article 9 of the Constitution. This section provides in part:

“providing that such district shall not be created or such tax authorized unless approved by a majority of the qualified property taxpaying electors thereof voting at an election called for the purpose; * * *.
“Provided, however, that no district shall be created except by act of the Legislature and then only after thirty (30) days’ public notice to the district affected, and in no event may the Legislature provide for a district to be created without the affirmative vote of a majority of the taxpaying voters in the district concerned.”

Section 3 of Article 4494q-14 provides in part:

“Sec. 3. The District shall not be created nor shall any tax therein be authorized unless and until such creation and such tax are approved by a majority of the qualified property taxpaying electors of the District voting at an election called for such purpose.”

Appellants contend the quoted portion of Section 3 of the act is in conflict with the last paragraph of Section 9, Article 9 of the Constitution. This 'would be correct only if the applicable constitutional provision and statute called for a different standard of voter approval. It is to be noted the first paragraph of Article 9,. Section 9, and Article 4494q-14, Section 3 employ the same language, to-wit: “approved by a majority of the qualified property taxpaying electors * * * voting at an election * * “Electors” is used in both instances while in the second paragraph of Article 9, Section 9, the term “voters” is used. We think this is significant.

In State ex rel. Wilkinson v. Self, (Tex.Civ.App.), 191 S.W.2d 756, the San Antonio Court was called on ^determine the validity of an election to annex territory to a city under Article 1182a, V.A.C.S. The contention that the term “voters” required that the election carry by an affirmative vote in excess of fifty per cent of the number of voters qualified to vote was overruled. The court held: “In our opinion the word ‘voter’ as used in the excerpts from Article 1182a, above quoted, means those who actually cast a legal vote at the elections provided for by the Article. Shaw v. Lindsley, Tex.Civ.App., 195 S.W. 338, and authorities therein cited.” See also Marsden v. Troy, (Tex.Civ.App.), 189 S.W. 960; and Bradshaw v. Marmion (Tex.Civ.App.) 188 S.W. 973. We therefore conclude, and so hold,, the phrase in Article 9, Section 9, “the affirmative vote of a majority of the taxpaying voters in the district concerned,” means an affirmative vote of a majority of the qualified taxpaying electors voting in the election. This interpretation coincides with the language in the first paragraph of the same section and the one-quoted in Article 4494q-14, Section 3. They are not in conflict. This holding is in conformity with the settled rule of in•struction that all provisions of the Constitution relative to the same subject are to he construed together, and that an interpretation he given which will avoid a -conflict if possible. 12 Jur.2d, Constitutional Law, Sections 27 and 28, and authorities there cited.

Appellants also urge that the enabling act is unconstitutional in that the ■caption is inadequate to meet the requirements of Article 3, Section 35 of the Texas Constitution. The caption of Senate Rill No. 486, the enabling act under consideration here, is as follows:

“An Act providing for the creation of a hospital district to be known as Caprock Hospital District with boundaries coextensive with the boundaries of Commissioners Precincts 1, 3 and 4 of Floyd County; providing for elections on the questions of the creation of such District and the levy of a tax not to exceed Seventy-five Cents (75{i) for its maintenance support, •the indebtedness assumed, and the payment of bonds issued by it; providing the transfer of hospital facilities and assumption of indebtedness and assets; providing the District with powder to issue bonds, and methods for authorizing same, for the purpose of ’the purchase, construction, acquisition, repair or renovation of buildings and improvements and equipping ■same for hospital purposes, and for any and all such purposes, and for the refunding of such bonds; providing that bonds issued by the District shall be lawful investments and •security for certain funds; providing a governing body for such District, its powers and duties and the tenure of its members; withdrawing authority for the sale of bonds or levy of taxes for hospital purposes by any other municipality or political subdivision therein; enacting other provisions incident and germane to the subject and purpose of this Act; providing a severance clause; and declaring an emergency.”

Appellants complaint of the caption authorizing a “levy of tax not to exceed seventy-five cents (75$)” whereas the body of the statute permits a maximum tax of “Seventy-five cents (75$) per One Hundred Dollars ($100.00) valuation.” This apparent discrepancy was ruled on contrary to appellants’ contention by the Supreme Court in Sweeny Hospital District v. Carr, Tex., 378 S.W.2d 40. Other discrepancies complained of deal with provisions omitted from the caption but included in the body of the statute. These included: reference to annexed territory;', providing for transfer of hospital facilities and assumption of indebtedness and assets; exemption of bonds issued by the District from state and local taxation; the granting to the District the power of eminent domain; and a provision for the procedure in caring for the indigent and mode of enforcement. Our courts have uniformly held that Section 35 of Act 3 of the Texas Constitution should be given a liberal and not a strict construction. Lee v. State of Texas, 163 Tex. 89, 352 S.W.2d 724; Consolidated Underwriters v. Kirby Lumber Co., (Tex.Comm.App.), 267 S.W. 703. The purposes of the constitutional provisions relating to captions are to reasonably apprise the legislators of the contents of the bill, to the end that surprise and fraud in legislation may be prevented. It is not necessary to set out the full details of the bill. It is sufficient if the provisions of the statute relate, directly or indirectly, to the same subject, have a mutual connection, and are not foreign to the subject expressed in the title. Central Education Agency v. Independent School District, 152 Tex. 56, 254 S.W.2d 357; Continental Bus System v. Carney, (Tex.Civ.App.), 310 S.W.2d 676, (Error Refused); 53 Tex.Jur.2d, “Statutes” Sections 50 and 51. We conclude the caption is sufficient and conforms to the requirements of Section 35 of Article 3 of the Constitution.

Another contention is that the Act’s principal purpose was to raise revenue, and as such, is a violation of Article 3, Section 33 of the Texas Constitution in that the Act originated in the Senate. This constitutional provision applies only where the main purpose of the bill is to raise revenue and not to bills for other purposes which may incidentally raise revenue. Stuard v. Thompson, (Tex.Civ.App.), 251 S.W. 277; Raymond v. Kibbe, 43 Tex.Civ.App. 209, 95 S.W. 727, (Error Refused); Day Land & Cattle Co. v. State, 68 Tex. 526, 4 S.W. 865. It is clear the primary purpose of this enabling statute was to create a hospital district with powers to establish and maintain hospital facilities. The authority granted to issue bonds and levy taxes is the means by which to operate the hospital facility. The raising of revenue was a necessary incident to the creation of the hospital district. We conclude the Act is not in violation of Article 3, Section 33 of the Constitution.

Appellants further contend Section 14 of the enabling act is an unconstitutional grant of judicial power to the hospital district’s administrator or manager in violation of Section 1, Article 2, and Section 1, Article 5 of the Texas Constitution. The section complained of gives the hospital officials authority to inquire of patients and their families their ability to pay for their support; and the authority to collect such' sums from the estate of the patient or his relatives legally liable for his support. Should there be a dispute as to the ability to pay between those liable and the hospital administrator, the Board of Directors, after a hearing, shall make a determination of such dispute. We are of the opinion this contention is without merit. These are administrative functions which are necessary for orderly, businesslike operation of the hospital district. The authority of the administrator or manager is limited by the statute and in no way infringes upon the judicial functions of our courts. This act does not deprive the courts of their constitutional jurisdiction of such disputes. 1 Tex.Jur.2d, Administrative Law, Section 9, Pages 654-655, and authorities therein cited.

Appellants next attack the notice calling for a bond election which limited the election to those voters who have “duly rendered” their property for taxation. The Supreme Court in Sweeny Hospital District v. Carr, supra, has passed on this question, and the court held: “We conclude that the statute does require that the property owners of the district shall have ‘duly rendered’ their property before they are qualified to vote in the bond election, and therefore that the statute is constitutional.”

As we understand it, appellants also contend the enabling act is unconstitutional for the reason the whole of Floyd County is not included in the hospital district so created. This is specifically authorized by Article 9, Section 9 of the Constitution which provides:

“The Legislature may by law provide for the creation, establishment, maintenance and operation of hospital districts composed of one or more counties or all or any part of one or more counties * *

By the last point of error appellants urge the trial court erred in granting a summary judgment on the ground material issues of fact were raised. It is appellants’ contention fact issues raised by the pleadings and an affidavit of one of the appellants include the intent of the framers of the statute and constitutional amendment ; and the assertion by affidavit that the evaluation of the property on the county tax rolls are unjust and inequitable. The language of the Constitution is presumed to-express the will and intention of the people. Orndorff v. State ex rel McGill, (Tex.Civ.App.), 108 S.W.2d 206, (Error Refused). When facts entitling the moving party to-prevail have been established by affidavits, deposition testimony or admissions, the motion for summary judgment will not be denied merely because the opposite party has alleged matters which, if proved, would require that a different judgment be rendered. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948; Gulf, Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492. The affidavit of Durrel For-tenberry challenging the tax rolls and mode of assessment presents no material issue of fact in this case. The question to be decided is the validity and constitutionality of the act creating the hospital district. A determination of this question is not a question of fact but a question of law. Trewitt v. City of Dallas, (Tex.Civ.App.), 242 S.W. 1073. We therefore conclude the trial court did not err in granting appellees’ motion for summary judgment.

In our opinion the record in this case fails to show reversible error. All of appellants’ points of error are overruled and the judgment of the trial court is affirmed.


author: PARKER, Justice.

text:
    The CIVIL SERVICE COMMISSION OF the CITY OF LUFKIN, Appellant, v. Carroll CRAGER, Appellee.
    No. 6728.
    Court of Civil Appeals of Texas. Beaumont
    Oct. 15, 1964.
    Rehearing Denied Nov. 10, 1964.

      William Drew Perkins, Lufkin, for appellant.
    Billy Lee Thompson, Lufkin, for appel-lee.
   PARKER, Justice.

Carroll Crager sued the Civil Service Commission of the City of Lufkin seeking reinstatement as a member of that City’s police force. Both plaintiff and defendant ■filed motions for summary judgment. The parties will be designated as they were in the trial court. The District Court of Angelina County granted plaintiff’s and denied defendant’s motion for summary judgment.

The City of Lufkin adopted Art. 1269m, Vernon’s Ann.Civ.St, the Civil Service Act for Firemen and Policemen. On September 25, 1963, plaintiff was discharged from the police department of the City of Lufkin. On that day at approximately 8:20 a. m., Aycock, Chief of Police ■of the City of Lufkin, delivered the following letter to Mr. Lynn Durham, the Director of the Civil Service for the City of Lufkin, notifying Mr. Durham of the dismissal of plaintiff from the police force:

“Dear Mr. Durham:
“Be advised that effective this date Sergeant Carroll Crager has been dismissed from the services of the Police Department. Sergeant Crager stands charged with the violation of absenting himself from duty without proper reason or authority, Neglect of duty, and willfully disobeying departmental procedures. This being in violation of Police Duty Manuel rules number 29, which is more fully explained in the officer’s personnel file.
“Sergeant Crager has been supplied with a copy of this directive and advised of his rights of appeal under civil service law.
“Yours truly,
“Henry W. Aycock
“Chief of Police”

The original of this letter not being available, defendant’s attorney agreed with plaintiff’s attorney that such carbon copy was a true and correct copy of the original. Lynn Durham said in his affidavit attached to defendant’s motion for summary judgment:

“ * * * On September 25, 1963, at approximately 8:20 o’clock A.M., Henry W. Aycock, Chief of Police of the City of Lufkin, Texas, delivered to me a letter and, at the same time, verbally informed me that Sergeant Carroll Crager had been dismissed as a member of the Police Department of the City of Lufkin, Texas, and that the letter contained his reasons for dismissing him. I took the letter and stamped it with a rubber stamp, with which all material received in the Civil Service office are stamped. At that time I had not filed it and, while stamping it, I gave it a cursory reading and questions arose in my mind as to whether or not it was adequate for the purposes for which it was intended. I decided not to file it and, instead, contacted Chief Aycock who came to my office immediately. We discussed it a few minutes. He took the letter from me and left.
“On September 25, at 8:45 A.M. Chief Aycock delivered to me another letter, which I read, and which I, as Civil Service Director of the City of Lufkin, Texas, filed in the proper file in my office in the City Hall of the City of Lufkin, Texas. A true and correct copy of such letter is attached to this affidavit, marked ‘Exhibit A’, and made a part hereof for any and all purposes. The original copy of that letter is presently in my office in the Civil Service file designated as 'Carroll Crager
“In compliance with such letter, a copy of which is attached hereto and marked ‘Exhibit A’, Carroll Crager’s compensation as a member of the Police Department of the City of Lufkin, Texas, ceased as of 6:00 o’clock A.M., September 25, 1963.”

This second letter delivered to Mr. Durham by Aycock on the same day at 8:45 a. m. is as follows:

“Dear Mr. Durham:
“Be advised that Sergeant Carroll Crager is dismissed from the service effective this date.
“Sergeant Crager is dismissed under authority of Section 119 of the Personnel Rules of the City of Lufkin, Texas as applies to Firemen and Policemen, and under Rules and Regulations of the Police Department as outlined in the Police Duty Manuel.
“Sergeant Crager absented himself from the department in pretense -of performing a police duty when, in fact, he was at the County hospital contrary to departmental orders and was not in the performance of a police duty. This period of time covering approximately fifty-three (53) minutes.
“Details are more fully outlined in this officer’s personnel file.
“Sergeant Crager has been supplied with a copy of this directive and advised that he has ten days (10) days, to appeal under civil Service Law.
“Yours truly,
“Henry W. Aycock
“Chief of Police”

The letters were stamped by the Civil Service Director with the same stamp:

“CITY OF LUFKIN Received in office of CIVIL SERVICE DIRECTOR
at-M.
-19-
By-”

and then he filled in the time and date as-each letter was received and initialed his entries. The other instruments appellant admits were filed by the Director were by him stamped with the same stamp. The word “filed” does not appear on any exhibit filed by the Director. We consider the first letter was filed. This situation is analogous to that governing an application for filing an instrument for record, such as a deed' (and should be so treated), the instrument being deemed filed when delivered for that purpose where it is supposed to be filed, in the absence of some statute providing that fees be paid or some other thing done or performed before filing. Sun Lumber Co. v. Huttig Sash & Door Co., Tex.Civ.App., 36 S.W.2d 561. There is no provision in the Civil Service Act for a fee to be paid or other thing done by the Chief of Police before the Director of Civil Service shall file such a written statement. To repeat, the first letter was filed. See Jones v. Mac-Cordquodale, Tex.Civ.App., 218 S.W. 59, and authorities cited on p. 61.

Plaintiff duly filed his objection- to his dismissal from the Lufkin Police Department by said Henry W. Aycock, Chief of Police, requesting the Civil Service Commission of the City of Lufkin to grant him, a hearing upon such matter. The Civil Service Commission of the City of Lufkin heard such case. An order and decision sustaining the dismissal of the said plaintiff was entered by it. Plaintiff objected and excepted thereto.

Defendant’s Point of Error 1 is that the trial court erred in failing to grant defendant’s motion for summary judgment because there was a full compliance with the requirements of Art. 1269m, V.A.C.S., in discharging plaintiff. In the exercise of his power to suspend indefinitely any officer under his supervision, Sec. 16 of such Article requires the Chief of Police to file a written statement with the Commission giving the reasons for such suspension.

“ * * * The written statement above provided to be filed by the department head with the Commission, shall not only point out the civil service rule alleged to have been violated by the suspended employee, but shall contain the alleged acts of the employee which the department head contends are in violation of the civil service rules. It shall not be sufficient for the department head merely to refer to the provisions of the rules alleged to have been violated and in case the department head does not specifically point out the act or acts complained of on the part of such employee, it shall be the duty of the Commission promptly to reinstate him. In any civil service hearing hereunder, the department head is hereby restricted to his original written statement and charges, which shall not be amended, and no act or acts may be complained of by said department head which did not happen or occur within six (6) months immediately preceding the date of suspension by the department head.”

By Sec. 6 of Art. 1269m, V.A.C.S., the office of Director of Firemen's and Policemen’s Civil Service is created. Such Director serves as secretary to the Commission.

Defendant contends that the second letter is not an amendment of the original written statement. The evidence is undisputed that the first letter was delivered to the Director, received by the Director and by him stamped as received. Aycock, the Chief of Police, did not instruct him to hold or suspend the filing of the letter. The first letter of that morning delivered by the Chief of Police to the Director of Civil Service we regard as filed.

The first written statement filed with the Director of Civil Service by the Chief of Police did not comply with Sec. 16, Art. 1269m, V.A.C.S. It did not specifically point out the act or acts complained of on the part of plaintiff, what rule was violated, or when such violation occurred.

The second written statement is not limited to correcting typographical errors, but is an amendment of the first. Such amendment was erroneously considered by the Commission at its hearing. It was the duty of the Commission to reinstate Carroll Crager because the first written statement did not comply with Art. 1269m, V.A.C.S., and the second written statement could not be considered by it. Such is the holding in Bichsel v. Carver (1959), 159 Tex. 393, 321 S.W.2d 284. Plaintiff has relied on such opinion.

Defendant’s Point of Error 1 is overruled.

The affidavits and instruments accompanying defendant’s motion for summary judgment show that the second written statement was an amendment of the first, requiring the trial court to refuse defendant’s motion for summary judgment. Defendant’s Points of Error 2 and 3 urging that its motion for summary judgment should have been granted are overruled.

Defendant’s Point of Error 4 asserts the trial court “erred in admitting in evidence the letter tendered by Plaintiff at the hearing on a Motion for Summary Judgment because a copy of such letter was not attached to the Motion of Summary Judgment.” The motion for summary judgment filed by defendant attached the affidavits of Mr. Lynn Durham, the Director, and Henry W. Aycock, the Chief of Police. Such affidavits clearly admitted that the first written statement was delivered by .the Chief of Police to the Director; that thereafter the second written statement was delivered to him by the Chief of Police in the same manner. Each was stamped and handled exactly alike by the Director. The first written statement, being the letter in question, was not attached to the motion of defendant for summary judgment but was referred to in the affidavits attached to defendant’s said motion admitting there was a prior written statement. The letter admitted in evidence was admitted by defendant to be a true and correct copy of the first written statement. The fact there was a first written statement or letter is not disputed. Admitting in evidence such first written statement did not raise a fact issue. The affidavits of the Chief of Police and the Director each having referred to the original written statement or letter of the Chief of Police, under Rule 166-A(e), Texas Rules of Civil Procedure, the court properly permitted such affidavits to be supplemented by an admittedly true copy of the original written statement of the Chief of Police. Actually, it was defendant’s duty to furnish a true copy as part of its motion. Defendant’s basis for maintaining its suit or position had to be the first written statement. Without the first written statement, defendant had no suit. With the first written statement in evidence, the defendant had no suit because it did not comply with the mandatory requirements of Art. 1269m, V.A.C.S., in discharging plaintiff. Point of Error 4 is overruled.

Defendant’s Point of Error 5 is:

“The trial court erred in granting a Motion for Summary Judgment for Plaintiff because Plaintiff’s motion was not supported by affidavits, depositions, or other extrinsic evidence.”

Rule 166-A, T.R.C.P., provides in Sec. (a) :

“(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment m his favor upon all or any part thereof.”

In view of the facts above set forth and of the provisions of that part of the rule above stated, appellant’s Point of Error 5 is overruled.

The judgment of the trial court in granting plaintiff’s motion for summary judgment is affirmed.


text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Annie Lee VANN et vir, Appellees.
    No. 6652.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 29, 1964.
    Rehearing Denied Nov. 25, 1964.

      McGregor, Sewell, Junell & Riggs, Houston, for appellant.
    Combs & Mitchell, Houston, for appel-lees.
   PARKER, Justice.

This is a railroad crossing accident case. Appellee Annie Lee Vann, joined by her husband, sued Missouri Pacific Railroad Company for damages for personal injuries resulting from a collision between an automobile being operated by Mrs. Vann and the defendant’s Texas Eagle passenger train within the city limits of Conroe, Texas. Upon jury findings of discovered peril, Mrs. Vann recovered $22,500 from the defendant railroad company. For convenience, the parties will be referred to as plaintiff and defendant, as in the trial court.

Defendant’s first and second points assert error of the court in not disregarding the jury findings of discovered peril and entering judgment for the defendant because there was no evidence to support the affirmative findings of discovered peril and,, in the alternative, that such findings of the jury were so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong.

The third, fourth and fifth points-assert error of the court with reference to the jury findings detailed below, as having “no evidence” supporting such findings or are so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong. The jury found that prior to the collision the plaintiff Mrs. Vann was in a perilous position; that the defendant’s employees, the engineer or the fireman, discovered that Mrs. Vann was-in a perilous position; that such defendant’s employees, the engineer or the fireman, after they had discovered Mrs. Vann was in a perilous position, realized that Mrs. Vann would not in all probability extricate herself from such perilous position in time to avoid injury; that the defendant’s employees, the engineer or the fireman, discovered such peril and had such realization within such time and distance as that by the exercise of ordinary care in the use of all means at their command consistent with the safety of themselves, their passengers and train, they could have avoided the collision; that the defendant’s employees thereafter failed to use ordinary care in the use of all means at their command consistent with the safety of themselves, their passengers and train, which failure to use ordinary care on their part was a proximate cause of the collision in question. To such findings of the jury, defendant says the court erred in not disregarding such findings because same were without any support in the evidence or so contrary to the overwhelming weight and preponderance of the evidence as to he manifestly wrong. Defendant’s first five points of error were argued together by appellant. In passing upon the “no evidence” points in the first five points of error, we will follow the rule of viewing the evidence in its most favorable light in support of the findings of the vital facts, considering only the evidence and the inferences which support the findings and rejecting the evidence and inferences which are contrary to the findings.

On August 5, 1960, a bright and clear day, between 9 and 10 o’clock in the morning, Mrs. Vann was driving her automobile west on Davis Street in Conroe, Texas. Davis Street is intersected by railroad tracks which run north and south.

Mrs. Vann testified: As she drove onto the main track of the defendant railroad ■company, her automobile stalled. At the time it stalled she did not know there was a train in the area. She tried to start her ■car a couple of times, consuming some two ■or three seconds. Then she looked up to the north and saw the train approaching at the Phillips Street crossing. The Phillips Street crossing is 320 feet north of Davis Street, being the next crossing north of Davis Street. She made no further attempt to start her car but opened the car door and tried to get out of the way. After ■she got out of her automobile, the train struck her car and she was hurled south along the track for several feet. Her next recollection is of waking up in the hospital. If she could see the train at the Phillips Street crossing, the operators of the train could see her at the Davis Street crossing.

The speed of the train was estimated by the fireman at 25 mph, which is less than 40 feet per second. The fireman on the train testified: His only duty on the morning of the accident after the train entered Conroe was to keep a lookout. The track is straight and level north of the point of collision for at least three-fourths of a mile. There was no obstruction to keep him from seeing down the track to where the accident occurred. He could see right down the middle of the track there. His attention wasn’t distracted from that duty. He first saw the Vann car when it came out from behind a Sinclair bulk station before the car stalled on the track. The fireman saw the car travel until it got onto the main track and stop thereon; that in not over one second he could have applied the emergency brake. There is no evidence that the engineer or fireman considered there was any hazard or danger to the safety of the train and its passengers in making an emergency application of the brakes in this particular case. Emergency application of the brakes was made. Based on his experience, the fireman stated that this train, loaded and equipped as it was, could be stopped in 175 to 180 feet, traveling at the speed the train was traveling. He had never seen a train derailed because of applying the emergency brakes at such speed. The witness Jack Palmer, who was a bus driver for the City of Conroe, testified that he saw the Vann car as it approached the track and saw other cars crossing the track immediately ahead of Mrs. Vann; that at the time the Vann car stalled on the track, the train was a block or more north of the crossing where the car stalled.

In Creech v. Thompson, 156 Tex. 561, 297 S.W.2d 817 (1957) it was held that in a discovered peril case the fact of timely “realization” on part of train op-crators and failure thereafter diligently to use means at hand to stop the train may be established by circumstances with or without aid of their testimony. The jury may believe part of the testimony of train operators, while rejecting other parts of their testimony. The reasoning in Creech v. Thompson, supra, as well as the principles announced in Texas & New Orleans Ry. Co. v. Hart (1962) 163 Tex. 450, 356 S.W.2d 901, and Safeway Stores, Inc. v. White (1961) 162 Tex. 473, 348 S.W.2d 162, are applied to the evidence in this case. Here the fireman saw the car when it stalled.

Under the evidence in this case, the jury could have believed the fireman’s testimony to the effect the train was traveling at 25 mph or some 40 feet per second; that he could have stopped the train at the rate of speed in 175 feet by applying the brake. The jury could have believed the plaintiff and other witnesses that the car was stalled on the track when the train was over 320 feet from the stalled automobile.

Accordingly, the jury could properly have reasoned that “realization” by the train operators of the peril to Mrs. Vann actually occurred at a point 320 feet or more from the point of collision.

In other words, the jury could properly have reasoned, “The stalled automobile being visible for over 320 feet in the situation of the train operators on the train, and the latter — particularly the fireman — actually looking down the track as his duty required him to do, and as he said he was doing, he must have seen and realized the peril of Mrs. Vann in the stalled automobile at a point more than 320 feet from the point of collision.” The jury might properly have believed that the fireman and engineer on the train seeing the stalled car when the train was approaching the Phillips Street crossing was the equivalent of realization. The jury could have concluded within reason that realization at 320 feet or more from the point of collision afforded sufficient time within which to hare properly slowed and stopped the train before colliding with the stalled car of Mrs. Vann. From this, the jury could have believed the train operators had a last chance to avoid the collision and injury, and it was a clear last chance. We have followed the reasoning of the Supreme Court in Creech v. Thompson, supra, and Texas and New Orleans Ry. Co. v. Hart, supra, authorizing a jury to select the statements of the engineer and fireman in part and rejecting them in part, taking the testimony of Mrs. Vann and other witnesses corroborating her story. There is evidence supporting the jury’s findings to the special issues discussed hereinbefore, and defendant’s “no evidence” points are overruled.

Taking up the defendant’s contentions that the answers of the jury to the discovered peril issues were contrary to the overwhelming weight and preponderance of the evidence, we consider all the evidence bearing upon such issues. The jury could reject and not believe the train operators’ testimony that the train was only 70 or 85 feet from the Davis Street crossing when Mrs. Vann’s automobile stalled. The jury could reject and not believe the train operators’ testimony that “realization” on the part of the train operators did not occur until the train was some 70 feet from the stalled automobile on the track. The jury could reject and not believe the train operators’ testimony that in less than one second they applied the emergency brakes on the train. Creech v. Thompson, supra; Texas & New Orleans Ry. Co. v. Hart, supra. Viewing all the evidence bearing upon the above issues, the jury’s findings thereon are not so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong. Defendant’s points of error contending that such findings of the jury to the above issues are so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong are overruled.

Defendant’s 6th point is:

“The error of the Court in failing to grant a new trial, because of the prejudicial misconduct of the jurors m discussing, taking into consideration and increasing the award of damages because the plaintiff would have to pay attorneys’ fees out of recovery.”

The matter of attorneys’ fees was mentioned in the jury room. There was a full and complete hearing on this question on the motion for new trial. All jurors except two fixed the damage issue at $22,500 at the very beginning of the discussion before attorneys’ fees were mentioned by some juror. The foreman of the jury and at least three other jurors admonished the entire jury that attorneys’ fees could not be considered. The testimony of the jurors justified the trial court in overruling the motion for new trial based on jury misconduct. The evidence supports the view that the mention of attorneys’ fees in this case did not cause the rendition of an improper or excessive judgment. Defendant’s 6th point is overruled.

Defendant’s 7th point is:

“The error of the Court in refusing to grant a new trial, because the award of damages to the plaintiffs in the full amount sued for was so excessive as to indicate mistake, bias, prejudice or other improper motive.”

As a result of the collision, Mrs. Vann sustained injuries consisting of a fracture of her right ankle, fracture of three or four ribs, bruises over her entire body, a concussion, and extreme bruises to her left hip area. She remained in the hospital originally for 53 days, returned thereafter for an operation and was in the hospital for an additional 12 days. She suffered extreme pain, marked pain which was relieved partially by the latter operation. She was still being treated at the time of trial some two years after the accident, and at the time of trial required the use of considerable pain medication. Her physician did not expect her condition to improve in the future. Her medical and hospital bills amounted to over $2,500. She was 57 years of age, working m selling products on commission basis. We do not consider the amount of damages awarded by the jury to be excessive or in any way disproportionate to the injuries sustained by Mrs. Vann. There is nothing in the record to show bias or prejudice or other improper motive on the part of the jury. Leonhart v. Gilbreath (Tex.Civ.App.1961) 347 S.W.2d 369. Defendant’s 7th point is overruled.

Judgment of the trial court is affirmed.


author: LANGDON, Justice.

text:
    Willard B. AUBREY, Jr., Appellant, v. W. O. WORKMAN, Appellee.
    No. 16564.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 6, 1964.
    Rehearing Denied Dec. 11, 1964.

      Lee & Lee and Jack Lee, Mason, for appellant.
    Jacobs & Lipscomb and Ernest May, Fort Worth, for appellee.
   LANGDON, Justice.

This is a suit on a promissory note which was originally secured by a second lien on a house in Arlington, Tarrant County, Texas.

By way of defense Aubrey alleged that during May, June and July of 1954, on numerous occasions he discussed his financial and marital difficulties with Workman. That he advised him that he had decided to move into smaller quarters and rent the house he had purchased from Workman which was in the latter’s Park Row Addition in which there remained unsold houses. That Workman advised him that a rent house would depreciate the value of the new unsold homes remaining and render them more difficult to sell. That because of the adverse effect a rent house would have on the values of the unsold houses Workman advised Aubrey that if he would turn his house over to him he would assume the first lien thereon and release the second lien which is the subject matter of this suit. That he, Aubrey, having no desire to damage the value of Workman’s unsold property and in reliance upon Workman’s statements that such actions on his part would satisfy all indebtedness to Workman, accepted the latter’s offer and on or about August 1, 1954, moved his belongings out of the house and left it in charge of Workman. That the latter having caused him to rely in good faith on his statements and promises cannot now complain that the note is unpaid.

The pleadings and the testimony of Aubrey reflect that the alleged agreement was pieced together from various chance meetings between Workman and Aubrey covering the months of May, June and July, 1954. According to his testimony there was never a meeting between the two for the specific purpose of working out the terms of an agreement and no single meeting in which all of the terms of the alleged agreement were discussed. There was no promise to make a memorandum.

The case was tried to a jury which found in response to special issues, that, (1) Workman promised to discharge Aubrey’s obligation under the second lien note, (2) that Aubrey relied upon such promise, and (3) that but for such reliance Aubrey would have prevented foreclosure of the first lien. (4) The jury further found that Aubrey delivered the house to Workman.

The trial court overruled appellant’s motion for judgment and granted appellee’s motion for judgment non obstante vere-dicto. We affirm.

The propriety of the action of the court in entering such judgment is the sole question before this court.

W. O. Workman, plaintiff below and ap-pellee herein, and W. B. Aubrey, Jr., defendant below and appellant herein, will be referred to hereinafter as Workman and Aubrey.

Aubrey purchased a house from Workman in June of 1963. He made a down payment of $1,000 and executed a first lien note payable to J. E. Foster Company and a second lien note in the sum of $5,-850 payable to Workman, which note is the basis of this suit.

Aubrey has never executed a deed re-conveying the property to Workman in connection with the alleged oral arrangement although the agreement to he effective would require a re-conveyance.

Aubrey in explaining his delivery of the house to Workman testified that he removed his belongings, moved out of the house and left the key in the door. He did not notify Workman of his move either before or after he abandoned his home.

Broadly stated, a conveyance of real estate must be in writing. The basic statute of frauds denies a right to maintain an action on an oral contract for the sale of real estate or the lease thereof for a longer term than one year. 26 Tex.Jur.2d 201, § 39.

The statutory phrase “any contract for the sale of real estate” includes every executory agreement that contemplates the alienation of an existing interest in land. The effect of the statute is to render unavailing to the parties, as the ground of a claim, any parol contract, in whatever shape it may be put, by which either of them is to part with real estate. 26 Tex. Jur.2d 220, § 61, and p. 205, § 41; Chandler v. City State Bank in Wellington, 135 S.W.2d 1013 (Amarillo Civ.App., 1940, no writ hist.).

In Hill v. Frost, 59 Tex. 25 (1883), it was held that: “The agreement to take the case out of the statute must not only be in writing, but, like any other promise binding in law, must be founded upon a sufficient consideration moving between the parties.”

Article 3995, R.C.S. of Texas, subd. 2, provides that before any person may be charged upon a promise to answer for the debt of another the promise or agreement or some memorandum thereof shall be in writing and signed by the party sought to be charged therewith.

Article 1288, R.C.S. of Texas, forbids any conveyance not declared by an instrument in writing, subscribed to and delivered by the party disposing of the same.

“On the matter of the construction of the provision of the statute of frauds concerning transactions in real estate, it has been observed that the provision is valid, that it is imperative, and that it is emphatic. It is said that its simple requirement that contracts for the transfer of lands be in writing imposes no hardship and that the effect of its relaxation in, what seemed to the courts, hard cases, has produced abuses almost as great as would have its rigorous enforcement by the substitution of a doubtful state of the law for a rule that was plain, certain, and easily capable of observance.” 26 Tex.Jur.2d 203, § 40.

It is undisputed that Workman did not at any time transfer possession of the second lien note to Aubrey or otherwise by any action on his part indicate that the obligation was discharged by any one of the five (5) methods set forth in Art. 5939, § 119 of the Negotiable Instruments Act.

Renunciation by the holder of the note must be in writing, unless the instrument is delivered up to the person primarily liable thereon. Section 122 of Art. 5939, supra.

The note in question was clear, plain and unambiguous. It was complete and regular upon its face and unconditional. By signing the note Aubrey became liable for the payment thereof.

In the case of Hickox v. Hickox, 151 S.W.2d 913 (El Paso Civ.App., 1941, no writ hist.), it was held that “a mere unexecuted intention to cancel a note not based upon a valuable consideration is without legal effect.” See also Rowe v. Daugherty, 196 S.W. 240 (Beaumont Civ. App., 1917, no writ hist.).

“But when there is a mere promise by the creditor to forbear without any corresponding promise on the part of the debt- or not to pay during the period of the promised forbearance, the agreement is without consideration.” 9 Tex.Jur.2d, p. 82-33, § 71, “Consideration”; 85 A.L.R. 319 and cited cases.

“Between the original parties, a compromise contract that results in the giving of commercial paper must he supported by a legal consideration.” 9 Tex.Jur.2d, p. 58, § 46; p. 323, § 294, “Agreements limiting liability”; p. 227, § 206, “Renunciation”.

The only possible consideration or benefit flowing to Workman under the agreement in question which Aubrey undertook to allege or about which he testified was the protection of the addition from a rent house. Yet there is no evidence that Aubrey ever suggested to Workman that he proposed to rent his house unless released from the note. He did state at one point that had it not been for Workman’s proposition he probably would have rented it. In our opinion the promises, if any of Workman, were purely gratuitous and within the statute of frauds. There was no conveyance, no surrender of the note, no delivery of the property.

This brings us to a discussion of the appellant’s chief defense, promissory estoppel, a substitute for consideration. The elements of this brand of estoppel are set forth as follows in § 90 of the Restatement of the Law (Contracts) : “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”

A true application of the doctrine of promissory estoppel consists of three elements which must be alleged and proved to support it, and they are: (1) a promise, (2) foreseeability of reliance thereon by the promisor, and (3) substantial reliance by the promisee to his detriment.

According to various writings on the subject it is not required that the promisor received any benefit or that the detriment of the promisee was requested. The element of detriment is apparently satisfied in any case where the promisor has changed his position for the worse, even though his loss may not be solely pecuniary. Thus, if injustice can be avoided only by enforcement of the promise, it will be enforced. In 20 Tex.Law Review 479, it is stated that Texas Courts have reiterated the general rule that the consideration given must be the consideration requested by the promisor and thus have applied the es-toppel theory only to donative promises and refused to do so where there is a request for a bargained-for exchange even though the three elements of promissory estoppel are present.

“The doctrine of promissory estop-pel has been invoked as means of enforcing contracts otherwise unenforceable as coming within the statute of frauds.

“In applying the principles of promissory estoppel, as represented by Restatement of Contracts § 90, to enforce an oral contract of employment within the Alaska statute of frauds, the court in Alaska Airlines, Inc. v. Stephenson (1954, CA9th) 15 Alaska 272, 217 F.2d 295, stated that § 90, not mentioning promissory estoppel, was addressed not to the statute of frauds but to promissory estoppel as a substitute for consideration, but that when one considered the part Professor Williston took in the formulation of the Restatement and examined § 178, Comment f of the Restatement of Contracts, one had to conclude that there was an intention to carry promissory estoppel into the statute of frauds, if the additional factor of a promise to reduce the contract to writing was present. The court cited Williston on Contracts (1936) § 533a. The above mentioned Comment f of § 178 of the Restatement of Contracts, dealing with the statute of frauds, states as follows: ‘f. Though there has been no satisfaction of the Statute, an estoppel may preclude objection on that ground in the same way that objection to the non-existence of other facts essential for the establishment of a right or a defense may be precluded. A misrepresentation that there has been such satisfaction if substantial action is taken in reliance on the representation, precludes proof by the party who made the representation that it was false; and a promise to make a memorandum, if similarly relied on, may give rise to an effective promissory estoppel if the Statute would otherwise operate to defraud.’ ” 48 A.L.R.2d 1079.

The Revised Edition of Williston on Contracts, pp. 503, 504, § 140, contains the following reference to § 90 of the Restatement of the Law (Contracts) : “It is not to be denied that there are numerous cases in which this element of justifiable reliance to one’s detriment is held not sufficient to make a gratuitous promise binding. Therefore, Section 90 does not assert a sweeping rule that in every case action in reliance is sufficient support for a promise. In the first place, it is only where the action induced is definite and substantial that any legal consequences follow from the gratuitous promise. In the second place such an action should reasonably have been expected by the promisor. Under these words it will not be enough that some action of the promisee, even of substantial character, has been induced by the promise. A promise of one thousand dollars with which to buy a motor car may thus be binding if it induces the purchase of the car. A promise of one thousand dollars for no specified purpose will not be binding, though it induces similar action. If the promisee is helpless to do otherwise, he has not acted or foreborne in reliance on the promise within this doctrine.

“Finally, the words are added at the end of the Section for greater caution, ‘if injustice can be avoided only by enforcement of the promise.’ With these qualifications it is believed that the provisions of Section 90 do not go beyond existing law, in many jurisdictions at least, and that the section is a useful coordination of the classes of cases enumerated in the preceding section.”

Appellant cited several cases on the point of promissory estoppel. Three applied the doctrine. They are: Longbotham v. Ley, 47 S.W.2d 1109 (Galveston Civ.App., 1932, writ ref.); Rancher v. Franks, 269 S.W.2d 926 (Fort Worth Civ.App., 1954, no writ hist.); Richards v. Frick-Reid Supply Corp., 160 S.W.2d 282 (Fort Worth Civ.App., 1942, ref. w.o.m.). Each of these cases involved temporary forbearance of a debt rather than the cancellation thereof.

While the Statute of Frauds may not be used as a device to accomplish a fraud and equity may under some circumstances compel a conveyance or the cancellation of a negotiable instrument, we are unable to find any cases approving such principles in which the promisor failed to receive some requested benefit as a result of his promise. Texas Co. v. Dunn, 219 S.W. 300 (El Paso Civ.App., 1920, writ dism.).

Aubrey was unable to recall whether he paid the installments on the first lien during the months of May, June, July or August, 1954, and he stated that he did not expect Workman to make these payments until after he moved out of the house. When he moved out sometime in August he did not advise Workman of his move. The latter did not know of it for some time. The first lien was foreclosed in September, 1954. The foreclosure was not due to any failure on the part of Workman.

Under the rule as announced in Williston, Revised Edition, § 140, supra, Aubrey was not induced to take any action of a definite and substantial nature. There is no pleading or proof that any action taken by Aubrey should reasonably have been expected by Workman. Further, by failing to make the payments on the first lien note Aubrey was' helpless to prevent foreclosure and certainly Workman was in no position to do so; thus Aubrey did not act or forbear in reliance on the promise within this doctrine and foreclosure was the very essence of his alleged agreement and understanding with Workman.

There was no issue requested nor submitted as to whether Workman promised to assume the first lien and no objection to the failure to submit was made. The same applies to issues on the foreseeability of reliance by Workman and substantial reliance thereon by Aubrey to his detriment. In so far as the record is concerned, the first lien was foreclosed because of Aubrey’s failure to make the payments and not because of any failure to act on the part of Workman. It appears that Aubrey’s chief aim is to defeat the second lien note since he makes no real complaint and requests no issues pertaining to foreclosure of the first lien and the loss of his home. The status of Aubrey’s payments on the first lien note placed the house beyond control by either him or Workman. Aubrey owed the second lien note before the alleged promise and after the first lien was foreclosed. His position was unchanged. He sustained no detriment because of any promise.

The only promise found by the jury was to discharge Aubrey from his obligation to pay the second lien note. It seems unreal to us that Workman by his alleged promise could reasonably anticipate that release from the second lien would induce Aubrey to vacate his home, leave the key in the door, without notice to anyone and allow foreclosure of the first lien.

Injustice in this case can be avoided only by enforcing the terms of the note.

Aubrey and Workman were the only witnesses in the case. “The case was fully developed. All of the testimony with regard to the facts relied on as a defense was given by the appellee himself. We must presume that, if there were other facts, he would have testified to them.” American Surety Co. v. Fielder, 36 S.W.2d 818-821 (Eastland Civ.App., 1931, no writ hist).

The judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    Juana Robles NIETO et vir, Appellants, v. UNITED STATES NATIONAL BANK OF GALVESTON, Appellee.
    No. 14414.
    Court of Civil Appeals of Texas. Houston.
    Nov. 19, 1964.
    Rehearing Denied Dec. 10, 1964.

      Nipper & Knox, -James E. Knox, Houston, for appellants.
    McLeod, Mills, Shirley & Alexander, V. W. McLeod, Galveston, for appellee.
   WERLEIN, Justice.

This suit was brought by appellants to recover damages for personal injuries allegedly sustained by appellant, Juana Robles Nieto, on October 12, 1959 when she fell from a ladder or stool while attempting to replace her safe deposit box in its slot or pigeon hole in the safe deposit vault of the United States National Bank of Galveston. After the jury had been retired for approximately seven hours and had indicated to the trial court that it was hopelessly deadlocked on the first issue pertaining to liability, the court, on motion of appel-lee, withdrew the case from the jury and rendered judgment that appellants take nothing. Appellants, who moved that a mistrial be declared, assert that the court’s action was error since there were fact issues in the case.

The testimony of appellant, Mrs. Nieto, who testified through an interpreter, is so conflicting, confusing and contradictory and inconsistent with her previous testimony by deposition, that it is practically impossible to determine therefrom what happened on the occasion in question. Her testimony is to the effect that a woman employee of the Bank took the safe deposit box from its slot in the wall of the vault and handed it to her. After finishing her business, she waited about ten minutes for the employee to return, and then decided to replace the box. We quote certain parts of her testimony which seem most favorable to her, as follows: “Q. And then when you were through with your box what happened then ? A. Her say the lady employer not be back in more than ten minutes and that her go up and fix the box in the wall and at that time lost the balance and went down, one foot in the front and one foot in the back. Q. Could you reach your box from the floor? A. No.” * * * “Q. In your own words, describe what happened. A. In that time I go up for the little case, for the deposit, and the little bench move and thereby lost control”. * * * “O. Did you stand on something when you were trying to put your box back? A. He [meaning she] say a box. I don’t know whether made of wood or metal. Q. She doesn’t recall whether it was a stool or a box? A. No, sir. Q. Do you recall what it was made of; do you recall’what this stool or box was made of? A. Yes. Q. What was it made of? A. He say he lost control and after a stumble her sister touched her. COURT: He asked her what was it made out of; wood, metal or what. The box. A. She don’t remember the material.” * * * “Q. Where were your feet when you fell, just as you started to fall? A. He say at the time he went up with the box and lost control back, one foot one side and one foot other side. Q. Why did you lose control ? A. At that time to put the box up. The bench, when he was coming up, it moved, not this way, but this way (indicating).”

The only other eye-witness to the occurrence was Mrs. Nieto’s sister, Mrs. Mendoza, who was with appellant on the occasion in question. The testimony of Mrs. Mendoza, which is most favorable to appellants is in substance that the stool involved in the accident looked like it was made out of wood; that it was square, from 8 to 10 inches in height, had legs on it that didn’t have any rubber caps or anything on them; that it had only the one step which was the top of the stool; that appellant waited a few minutes before she tried to put the box in its slot; that she had the box in her hands and put one foot on the stool to put the box in its slot, and when she undertook to place her other foot on the stool it moved forward and appellant fell backward; that she did not notice the lady employee who removed the safe deposit box from its slot use any stool but she was taller than the witness and appellant; that she saw appellant lose her balance, and she looked down and saw the stool move a little bit forward but she didn’t know whether the stool slid before her sister fell or not; that it appeared to her that appellant was not falling to her right or left but backward; that when she saw appellant falling appellant still had one foot on the stool and she appeared to be falling back; that appellant had put the weight of her left foot on the stool, and as she was going to put her right foot on the stool it seemed as if it went forward and slipped out from under her; that when she went to help her sister she realized how slippery the floor was, and that at the time the witness’s right foot was towards the wall and it seemed to slip more than her left foot, but she didn’t know whether that was when she went to grab appellant; that she couldn’t tell that the floor was slippery by looking at it, and didn’t notice it until she walked on it.

In determining whether it was proper for the court to take the case from the jury and render judgment, we must view the evidence in the light most favorable to appellant, the losing party. White v. White, 1943, 141 Tex. 328, 172 S.W.2d 295. He must indulge against the action of the court every inference that may properly be drawn from the evidence, and if the record reflects any testimony of probative force in favor of the losing party, we must hold the court’s action improper. Texas Employers Ins. Ass’n v. Boecker, Tex.Civ.App., 53 S.W.2d 327, error ref.; Clutter v. Wisconsin Texas Oil Company, Tex.Civ.App., 233 S.W. 322, error ref.

The judgment of the court does not recite upon what grounds the case was withdrawn from the jury and judgment rendered by the court. Appellee’s motion for judgment, however, alleges that appellants “failed to establish any plead act of negligence” ; that their only proof was that Mrs. Nieto stepped on a little stool and fell; that if there was a little stool and appellant stepped on it and fell, then as a matter of law the stool and the fact that it was wooden as well as its other features would be open and obvious to her; that as a matter of law the burden of proof was on appellants to prove a breach of duty, and to establish as one of the elements thereof that the defective device was not open and obvious, and this appellants failed to do.

Appellants pleaded, among other grounds of negligence on the part of appel-lee, the following:

“3. That the aforementioned ladder or stool was an unsafe and dangerous instrumentality as a result of the absence of an effective device on the legs ■of said ladder 'to provide traction between the legs of the ladder and the flo'o'r on which it rested. Such condition causing the ladder to have a tendency to slip and slide on said floor.
“4. That the floor and ladder and their respective conditions, when used together and in conjunction with each other constituted a dangerous condition not readily discoverable to Juana Nieto in the exercise of due care.
“5. The Defendant Bank failed to maintain and give any notice or warning to Juana Nieto to the dangerous' and unsafe condition of the ladder and floor as above set forth.”

In our opinion, the foregoing paragraphs constitute sufficient allegations of negligence on the part of appellee. It is apparent that in.such pleading the words “ladder" and “stool” are used synonymously. Both appellant and Mrs. Mendoza testified in. effect that the stool in question was not the ladder which was introduced in evidence as “Plaintiffs’ Exhibit 16”. Appellee in its amended answer pleaded among other things contributory negligence and that if any defect existed, it was open' and obvious. In Halepeska v. Callihan Interests, Inc., Tex.1963, 371 S.W.2d 368, the Court, in a carefully considered opinion by Justice Greenhill, clearly states the established rules of law in this State with respect to the doctrine of “no duty” and “clear and obvious”. The Court stated:

“The ‘no duty’ doctrine is this: the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Genell, Inc. v. Flynn [163], Tex. [543], 358 S.W.2d 543 (1962). His duty is to protect his invitees from dangers of which he, the occupier, knows, or-(because of his duty ■ to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them ‘no duty’ to warn or to protect the invitees. This is so, the cases say, because there is ‘no duty’ to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof.”

The evidence shows that Mrs. Nieto had during a period of more than two years immediately prior to her injury visited ap-pellee’s vault some IS times and made use of her safe deposit box. She had never before undertaken to get on a ladder or stool to take down or replace such box. Her testimony and that of Mrs. Mendoza is that when she attempted on the occasion in question to use the stool to replace the box, the stool moved forward, and she lost her balance and fell. Mrs. Mendoza testified that the floor in the vault was slippery and that the stool had no rubber caps or anything on its legs to keep it from slipping, and that when she went to help her sister she herself slipped and then realized how slippery the floor was. She also testified that she could not tell the floor was slippery by looking at it, and that she did not see anything in the bank that would give her any warning that Mrs. Nieto might fall from the foot-stool. The vault was well lighted and had a marble tile floor. There was no evidence that it had been recently waxed or oiled.

The instant case is distinguishable from the case of Houston National Bank v. Adair, 1948, 146 Tex. 387, 207 S.W.2d 374, in which the Court held that the evidence was undisputed that the condition of the stairs was open, visible and obvious to any reasonably prudent person; that the plaintiff had been a customer of the bank for several years, and had used the stairs at irregular intervals to go to the Statement Window, and that during such period the condition of the stairs was not changed, and she had ample opportunity to observe their condition. There was no evidence of any hidden or latent defect in the stairs, and their condition was as easily perceptible to the plaintiff as to the bank or its employees.

In the instant case, appellant had never previously used the stool in question. She was not in as good a position as appellee and its employees to know that the stool had no rubber caps or other device on the bottom of the legs to prevent it from slipping on the marble floor. There is no evidence that she saw or could have seen whether there were rubber caps or pads under the stool’s legs without picking it up and carefully inspecting it. She had a right to assume that appellee would not furnish a stool not reasonably safe for her to stand upon in replacing her box in its slot, and she was not required to make an inspection thereof. Appellee was required to inspect and to discover dangerous conditions and to keep its premises and appliances placed thereupon for the use of its invitee in a reasonably safe condition, and to protect her from dangers which were not open and obvious. There is nothing in the record to show that she had knowledge of such dangerous condition resulting from the absence of rubber caps or some other device on the legs of the stool that would keep it from slipping when she used it upon the marble tile floor.

Reverting again to the Halepeska case, supra, we quote the following language :

“Similarly, in both the ‘no duty’ and volenti situations, whether he actually knows and appreciates the danger may be for the jury to pass upon, despite his testimony that he did not. His credibility may be for the jury. Moreover, the jury may be called upon to find whether he had knowledge of particular facts from which he would be charged with knowledge or appreciation of the danger. Or, in a proper case, the court may hold as a matter of law that the plaintiff had knowledge or that he is charged with knowledge and appreciation of the danger.”

We are unable to hold as a matter of law that Mrs. Nieto, who had never used the stool before or undertaken to return her safe deposit box to its slot, had knowledge, or that she was charged with knowledge and an appreciation, of the danger in using the stool on the tile floor. We cannot say as a matter of law that the condition of the stool with respect to no rubber caps at the bottom of the legs was open and obvious to appellant, or that the appel-lee did not owe her a duty to warn or to protect her in connection with the use of the stool on the slippery floor. Had appellant slipped and fallen on the floor over which she had walked at irregular intervals over a period of some two years, we would have a case somewhat similar to that of Houston National Bank v. Adair, supra. In the instant case, however, it was the combination of using on a slippery marble tile floor a stool without any rubber caps or other device to keep it from slipping, which created the dangerous condition not open and obvious to one who had never before been confronted with such situation. There was at least a fact issue raised with respect to whether the use of the stool upon such floor created a dangerous condition which was not open and obvious. There was also a fact issue with respect to whether Mrs. Nieto had knowledge of particular facts from which she would be charged with knowledge and appreciation of the danger.

In our opinion, the present case is distinguishable from the case of Wesson v. Gillespie, Texas Supreme Court, 382 S.W.2d 921, in which our Supreme Court on October 7, 1964 reversed Gillespie v. Wesson, Tex.Civ.App., 370 S.W.2d 918. In the Gillespie case the condition of the threshold at the entrance to the 8-Ball Lounge in Wichita Falls was held to be open and obvious to the plaintiff who had been in and out of the 8-Ball two or three times a week for four or five years, and who had crossed such threshold “an astronomical number of times,” at least 500, and who had tripped on-her fourth exposure to the threshold that night. Moreover, the plaintiff in that case admitted the steps were just like they had always been, and in referring to the steps, or entrance she testified that she considered it dangerous but she kept on using it anyway.

We have considered the other cases cited by appellee and are of the view that they are all distinguishable from the instant case. In the case of Robert E. McKee, General Contractor, v. Patterson, 1954, 153 Tex. 517, 271 S.W.2d 391, relied upon by appellee, it was held that the owner of property is charged with knowledge of any-dangerous condition that a reasonable inspection would have revealed because his-duty to keep his premises in a reasonably safe condition for use by his invitees includes a duty to inspect. There is no suchi obligation on the invitee. He may not close his eyes to obvious dangers, but he has a right to assume that the premises are-safe for his use. In the McKee case the-plaintiff’s testimony established that he knew of the slick condition of the floor and. fully appreciated the danger of working on-it. Such is not the situation in the case at bar.

Appellant complains that the trial court erred in refusing to allow appellant’s; counsel to propound leading questions in-conducting the examination of appellant. In view of the apparent illiteracy of appellant and her inability to understand English, it doubtless would have been proper for the court to permit the use of some leading questions. We cannot say, however, that the court abused its discretion in refusing to do so. Travelers Insurance Company v. Hurst, Tex.Civ.App., 358 S.W. 2d 883, error ref., n. r. e. The fact that appellant spoke little or no English did not require the Court to permit leading questions in view of the fact that she did speak Spanish and her testimony was given through an interpreter. There is no showing as to what the witness’s answers would have been to the questions propounded, and hence the propriety of sustaining objections to the leading questions cannot be considered on appeal. Bradford v. Magnolia Pipe Line Co., Tex.Civ.App., 262 S.W.2d 242; Taylor v. Taylor, Tex.Civ.App., 272 S.W.2d 636, error ref., n. r. e.; Henne-berger v. Sheahan, Tex.Civ.App., 278 S.W.2d 497, error ref., n. r. e.; Statler Hotels v. Herbert Rosenthal Jewelry Corp., Tex. Civ.App., 351 S.W.2d 579, error ref., n. r. e. Moreover, appellant has failed to show that any error in connection with the refusal to permit the asking of leading questions was calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

Reversed and remanded.


author: GRISSOM, Chief Justice.

text:
    GROOS NATIONAL BANK, Administrator, Appellant, v. J. M. NORRIS, Appellee.
    No. 3924.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 20, 1964.
    Rehearing Denied Dec. 11, 1964.

      Rice & Nowland, San Antonio, for appellant.
    Remy & Burns, San Antonio, for ap-pellee.
   GRISSOM, Chief Justice.

In February, 1961, Maud Brown Champagne and J. M. Norris executed an agreement which contained the following provision:

“The undersigned joint depositors, hereby agree, each with the other and with the above bank that all sums now on deposit heretofore or hereafter deposited by either or both of said joint depositors with said bank to their credit as such joint depositors with all accumulations thereon, are and shall be owned by them jointly, with right of survivorship and be subject to the check or receipt of either of them or the survivor of them and payment to or on the check of either or the survivor shall be valid and discharge said bank from liability.”

At the same time they executed a signature card showing the signatures of Mrs. Champagne and Mr. Norris. It contained the recital, “New card adding signature of J. M. Norris to the account and making survivorship.” After the death of Mrs. Champagne, Norris withdrew the money in said account. The foregoing facts are undisputed. They were alleged by both plaintiff and defendant.

Groos National Bank, as administrator of Mrs. Champagne’s estate, filed this suit against Norris to recover the money he withdrew from said account after Mrs. Champagne’s death. Said administrator alleged it was an asset of Mrs. Champagne’s estate. In a trial' to the court, judgment was rendered for the defendant. The administrator has appealed.

Appellant’s points are to the effect that the survivorship agreement and signature card were executed for the protection of the bank and conveyed no interest to Norris; that Mrs. Champagne left a will in which she bequeathed said money to her brothers; that said funds never belonged to Norris and that Mrs. Champagne’s will transferred title thereto to her brothers. Said points are overruled.

The contract does not disclose, as contended by the administrator, that it was executed solely for the protection of the bank and conveyed no interest to Norris. It justified, if it did not compel, the conclusion that the parties intended that if Norris survived Mrs. Champagne he should be the owner of the funds then in the account.

Appellant alleged that Mrs. Champagne’s probated will contained a provision that “My checking account with the National Bank of Commerce I wish to go to my three brothers.” (Emphasis ours.) Appellant has not filed a statement of facts. There are no findings of fact. We cannot know that Mrs. Champagne left a will so providing. However, if such fact were in evidence, it would not be conclusive and compel a different disposition of the case. Assuming that she could thus dispose of Norris’ interest in the account, such a provision in her will would not be conclusive of her intent to do so. To illustrate, she may have had an individual account in said bank which she referred to as “My” account. She could have intended to bequeath that money to her brothers if Norris died before she did and she became the survivor and sole owner. Certainly, in the absence of conclusive evidence of disposition of the account by Mrs. Champagne, we cannot say that the court erred in holding that, as the survivor, Mr. Norris became the owner of the account. Davis v. East Texas Savings & Loan Association, 163 Tex. 361, 354 S.W.2d 926, 931; Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48, 52; Adams v. Jones, Tex.Civ.App., 258 S.W.2d 401, 403; Johnson v. Johnson, Tex.Civ.App., 306 S.W.2d 780.

The judgment is affirmed.