author: PER CURIAM. DAVIS, Justice

text:
    Tommie MITCHELL, Appellant, v. W. C. (Bill) JONES, Appellee.
    No. 7478.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 9, 1962.

      Fulton & McClain, Welby K. Parish, Gilmer, for appellant.
    Power, McDonald & Mell, Gilmer, Smith, Hall & Huffman, Marshall, for appellee.
   PER CURIAM.

This is an election contest arising out of the 1962 Second Democratic Primary Election in Upshur County. W. C. (Bill) Jones and Tommie Mitchell were run-off candidates for the office of Tax Assessor-Collector of Upshur County. The party Executive Committee canvassed the votes and found that Jones received 2741 votes and Mitchell received 2739 votes. Following a lengthy trial the District Court of Upshur County ordered Jones’s name certified as Democratic nominee on the basis of 2720 votes for Jones and 2719 votes for Mitchell.

It is a fundamental precept of a democratic society that suffrage, the right to vote, is first among the citizen’s prerogatives, because therein is the ultimate legal power to foster and protect without violence natural rights, constitutional privileges and democratic institutions, and the free exercise of the power is not to be curtailed or unreasonably restricted by legislative enactment or judicial decree. In recognition of this principle the Constitution of the State of Texas provides that every citizen of the United States who has resided in the State of Texas one year next preceding an election and the last six months in the county in which he offers to vote is a qualified voter unless (1) under twenty-one years of age, (2) an idiot or lunatic, (3) a pauper supported by the county, (4) previously convicted of a felony or (5) being subject to a poll tax has failed to timely pay it. Article 6, Sections 1 and 2, Vernon’s Ann.Texas Constitution.

The Constitution in Art. 6, Sec. 4, and Art. 16, Sec. 2, has limited the field of legislative action to legislation “necessary to detect and punish fraud and preserve the purity of the ballot box”, and to protect the exercise of free suffrage from “all undue influence * * * [by] power, bribery, tumult or other improper practice.” The paramount principle stated above and the constitutional provisions relating to the voting franchise are all pervasive and must be taken into account in the construction of the absentee voting laws, along with settled rules of statutory construction. When voting statutes are so construed it is apparent that a qualified citizen shall not be denied the exercise of his suffrage except in those cases where the legislature has acted within constitutional authority and has expressly or by clear implication indicated an intention that a ballot of a qualified voter shall be void if certain prohibited conditions are shown to exist.

Thé appellant’s first five points question the legality of the ballots .of well over 100 persons the trial judge ordered tallied in favor of W. C. Jones. Error is premised on the contention that Art. 5.05, Subdivisions 1, 2, 4, and 15, and Art. 8.13 of the Election Code, Vernon’s Ann.Civ.St. are of such nature that failure of the voter, election official, notary, or other person mentioned by the statutes and authorized or required to do or perform a part in the absentee voting process, to do and perform every such act and requirement thereof voids an absentee ballot. In support of this position the appellant cites Farrell v. Jordan, Tex.Civ.App., 338 S.W.2d 269 (1960) and Guerra v. Ramirez, Tex.Civ.App., 351 S.W.2d 272 (1961) as authority for the proposition that compliance in minute detail with the mentioned statutes is mandatory. However, this question is not necessarily reached in the disposition of each of the points of error.

It is thought the present article 5.05 Election Code should be construed with due regard to its text prior to the 1959 amendment and predecessor statutes and the decisions thereunder. In Fugate v. Johnston, Tex.Civ.App., 251 S.W.2d 792 it is said with reference to Art. 5.05 before amendment in 1959: “Before the enactment of the recent code the only portions of what is now Article 5.05 that were declared mandatory were what is now Section 5 of Article 5.05 that relates to the legal time during which absentee voting is permitted at all, and Section 10 of the same article that provides that an elector who dies after voting absentee shall not have his vote counted.” All other provisions were held to be directory. Unless the amended text shows a provision is intended to be mandatory its re-enactment confirms the construction previously made. An examination of Article 5.05 as amended appears to have intended to add several mandatory provisions.

The first point challenges the respective ballots of a group of voters who received assistance in marking their ballots on the basis that the person giving assistance was not sworn, and did not take an oath in accordance with that part of Art. 8.13 pertaining to persons rendering assistance to voters in the preparation of their ballot. Art. 5.05, Sec. 15 and Art. 8.13 contain provisions identical in meaning, stating that when assistance is rendered the voter in preparing a ballot other than the assistance allowed by statute the ballot shall be void. It must be assumed that the legislature intended what the statute said; that is, that the vote cast shall be void if the voter receives assistance in preparing a ballot other than the assistance allowed by law. The facts show that no voter received assistance except in marking a ballot; such assistance is the very thing the statute authorized. Taking an oath regarding his duties by the person rendering assistance is no part of the act of assisting the voter. Receiving assistance not authorized, not being assisted by an unsworn person, is the prohibited act voiding the ballot. It is sound policy, supported by abundant authority, that legislative acts tending to abridge the citizen’s franchise will be confined to their narrowest limits by a liberal interpretation favoring the citizen’s right to vote. Appellant’s first point of error is overruled.

A person by person comparison has not been made, but it appears that invalidating the votes of substantially the same absentee voters challenged by the first point is the object of appellant’s second point of error. The gist of the second point is that each of the group of voters failed to swear to the affidavit on the ballot carrier envelope after they voted.

Appellant asserts that such votes are invalid and should not be counted because this failure is a substantial non-compliance with that portion of Art. 5.05 of the Election Code which reads:

“ * * * The elector shall mark the ballot before a notary public or other person authorized to administer oaths, sign his name on the back of the ballot stub, detach the stub from the ballot, fold the ballot and place it in the envelope marked ‘Ballot Envelope’ and seal the same. The elector shall then place the stub and the ballot envelope in the carrier envelope, seal the same and sign and swear to the affidavit on the carrier envelope, which shall be certified by the notary public or other officer before whom the ballot is marked. The carrier envelope shall then be mailed, postage prepaid, to the county clerk. As amended Acts 1959, 56th Leg., p. 1055, ch. 483, § 1.”

Three different notaries and the County Clerk and his deputies are involved in actions which vary slightly with respect to each vote challenged. The proof shows the general pattern to have been that the voters signed the affidavit on the carrier envelope, or authorized someone else to sign it, and handed the affidavit to the notary or officer to be completed. The complaint is that the notary or officer did not orally administer an oath and the voter did not orally respond. The affidavits on their face are clear and complete. The oath signed by each voter began “I, (voter’s name), do solemnly swear * * * ”, etc. When the voter signed such oath in the presence of the notary and handed it over to the notary or officer for the purpose of the official affixing his jurat the affidavit was completed. Shelton v. Berry, 19 Tex. 154; Art. 23, Sec. 18, Vernon’s Texas Civil Statutes; “Affidavits”, 2 Tex.Juris.2d 394, Sec. 1. The second point of error is overruled.

The third point of error is concerned with the votes of many of the voters involved in the first and second points. The point is that voters who were neither blind nor suffering from a bodily infirmity which rendered them physically unable to write were assisted in marking their ballots, such assistance constituting a violating of Art. 5.05 and Art. 8.13. The facts developed by the appellant varied as to the different voters. On the whole the evidence tended to show that the voter challenged was not blind, and had the use of both hands. In several instances the voter’s illiteracy may have been the reason for needing assistance in marking the ballot.

Art. 8.13 provides that no voter shall have assistance in preparing his ballot unless he can not do so because of some bodily infirmity that renders him physically unable to write or sightless. In Art. 5.05 Sec. 15 it is provided that assistance authorized by Art. 8.13 may be rendered absentee voters insofar as Art. 8.13 is applicable, the latter article stating specifically: “The witness assisting the voter may perform any or all of the physical acts necessary to comply with the procedure for absentee voting.” It is probable that the restriction in Art. 8.13 of the assistance to the physically impaired and blind, if mandatory, would in a proper case be held unconstitutional as depriving persons unable to read and write of their franchise. The constitution does not make literacy a qualification to vote. However, when assistance is rendered, as is the case here, the quoted sentence from Art. 5.05 Sec. 15 pertaining to assistance to absentee voters should be interpreted as allowing assistance to a qualified voter in the performance of any or all of the physical acts necessary to comply with the absentee voting regulations. Such assistance includes marking the voter’s ballot. As noted the proof made was that the voter did not suffer from certain specified physical impairments, such as blindness, loss of hands, etc., and no conclusive proof was made of the absence of other disabling physical condition.

The appellant’s fourth point charges the trial court erred in not invalidating the ballots of voters who, after marking their ballots, delivered them sealed in a ballot carrier envelope to W. C. (Bill) Jones.

The pattern of the facts disclosed by the record is that after the challenged ballots were marked and sealed in an envelope, the envelope was handed to the notary present for the purpose of swearing the voters, and the notary disposed of them either by depositing the envelopes in the mail or leaving the envelopes with someone else — the route of those not shown to have been mailed in reaching the absentee ballot box was not traced. One group of eight carrier ballot envelopes was delivered to “Mr. Jones”.

In connection with all the challenged votes, the record contains no proof that the ballot carrier envelopes were not deposited in the United States mail with postage prepaid addressed to the County Clerk, and no proof that the ballot carrier envelopes containing the ballots cast were not received by the County Clerk through regular mail. Likewise, no proof was made that the ballot carrier envelopes, after being sealed by or in the presence of the voters, were opened or tampered with, nor is there evidence that the absentee ballots contained in the carrier envelopes were altered or tampered with in any respect; on the contrary the trial court has impliedly found no fraud in connection with the manner the carrier envelopes and absentee ballots were handled from the time they left the voters’ hands until counted by the election officials.

The law presumes that the ballots were received through the mail by the County Clerk in the absence of affirmative proof to the contrary, because the law presumes election officials, the Clerk being one, performed their duty. Lewis v. Crump, Tex.Civ.App., 34 S.W.2d 617, N.W.H.

The appellant relies on the last sentence of Art. 5.05, Sec. 4. The section containing other provisions ends by saying: “The carrier envelope shall then be mailed, postage prepaid, to the county clerk.” The facts proven show no violation of the direction of the article. Nowhere does the statute direct that the voter personally place the carrier envelope in the mail. Neither does the statute purport to invalidate a ballot that the voter did not personally deposit in the mail. The trial court properly ordered the ballots counted. Stratton v. Hall, Tex.Civ.App., 90 S.W.2d 865. The point is overruled.

The fifth point asserts that certain absentee voters did not make sworn application for a ballot to the county clerk as required by Art. 5.05, subsection 2. In part the article says: “An elector desiring to vote absentee shall make written sworn application for an official ballot to the county clerk of the county of his residence”, and provides that the application be signed by the elector, or be witnessed at direction of the elector in case of inability to write because of physical disability. The present statute was amended in 1959. The only change in the subdivision made in 1959 material to the point in question respects the oath to the application. Prior to 1959 the application was not required to be sworn to; now it should be. The prior statute was held to be directory in this respect in Paredes v. Martinez, Tex.Civ.App., 264 S.W.2d 958. Re-adoption of the statute with the addition that the application be sworn to, and omitting therefrom any expression of a legislative intent to void the ballot of a voter who fails to swear to the application indicates the legislature was satisfied with the construction given the statutes by the court at the time of re-enactment. Since no fraud was alleged or proven and the vote was cast, the court properly held that a substantial compliance with the law was had. No case is cited by the appellant showing a similar factual situation where an appellate court has held otherwise. The facts of this case differentiate it from Farrell v. Jordan, supra.

The trial court construed Art. 5.05 Sec. 4 as mandatory wherein it provides that “the elector shall detach the stub from the ballot, fold the ballot, and place it in the envelope marked ‘ballot envelope’ and seal the same. The elector shall then place the stub and the ballot envelope in the carrier envelope, seal the same and sign and swear to the affidavit on the carrier envelope”, etc. There is some doubt that language used in the absentee ballot law should be given the same construction that somewhat similar language is given in the election law dealing with the voter detaching and depositing ballot stubs in the stub box. Voters at the polls are required to personally detach the stub from a ballot and to personally deposit the stub in the stub box and the ballot in the ballot box as a condition of casting a legal ballot. A voter at the poll does this in order to keep secret the number of his ballot, yet provide a means for identifying his ballot if that becomes necessary. In absentee voting this element of secrecy is lost because the stub number is known to the election official who removes it from the carrier envelope and deposits it in the stub box. The reason for a voter personally depositing the stub in the stub box and the ballot in the ballot box fails with respect to absentee voting. When the reason for a rule fails it is often said the rule fails.

However, the question has been before a Court of Civil Appeals and the Supreme Court in Guerra v. Ramirez, 351 S.W.2d 272. The Court of Civil Appeals said “When the election officials opened the carrier envelope they found no stub, and therefore had no right to cast the ballot by placing it in the ballot box. They would not have the right to open the ballot envelope in their search for the stub before placing it in the ballot box. The election officials cannot lawfully cast an absentee ballot where no stub is found in the carrier envelope.” The Supreme Court dismissed application for writ of error. In this case it was proven that the stub was not detached from the ballot, but was sealed in the ballot envelope with the ballot. On the authority of the cited case it must be said that the trial court correctly voided the ballots thus handled.

Appellant’s Seventh and Eighth points of error challenging the vote of Marianne Kinnimer and C. G. Willis are probably determinable by the rules applied in disposing of the first five points of error. But it is not necessary to make a decision thereon because of the disposition to be made of appellee’s crosspoints 1 and 4 which are hereafter discussed.

Appellant by his 9th, 10th and 11th points attacks the action of the trial court in opening the Rocky ballot box, re-counting the ballots, and also makes other attacks upon the court’s action with matters involving the Rocky box.

The allegations of appellee’s motion to open the Rocky box related to alleged irregularities, including miscalling votes and miscounting of the results.

The official count of the Rocky box showed that the appellant received 147 votes and that the appellee received 46 votes. 193 votes were counted at the Rocky box — six were not counted because it was deemed by the election officials that these ballots were so mutilated that they could not he counted for either party. The trial judge, after hearing testimony, opened the Rocky box, recounted the ballots, and found that appellant received 146 votes and that appellee received 46. According to the trial court’s judgment the appellant lost one vote on the recount of the Rocky box.

Some 49 qualified voters testified that they voted for appellee in the Rocky box. Other evidence also shows that at least 47 votes were cast for appellee in the Rocky box.

A witness testifying with reference to the manner in which the election officials at the Rocky box handled certain ballots testified in part as follows:

“ ‘Q. I don’t have it clear, you say at the time you were voting Mrs. Dunbar and some other persons were in the same room .there where you were counting ballots?
“ ‘A. Yes, sir, they were at a table at the back of the building.
“ ‘Q. Was one of them calling or how were they handling it?
‘A. Well, from where I was, she was calling them off and tallying them and this other man was sitting at the end of the table tallying them.
“ ‘Q. Did anything unusual happen?
“ ‘A. Yes, I sat there and listened to them calling off and she called off two or three and dropped the ballots and she reached over and picked them up and she called them off. She dropped—
“ ‘Q. In the same box she dropped them in?
“ ‘A. Yes, sir. I told several people as I left that looked unusual to me. It was the second time I ever voted a ballot like that.’ ”

Other testimony with reference to other alleged irregularities at the Rocky box was placed in evidence by appellee as shown in the record.

In McIver v. Starkey, Tex.Civ.App., 271 S.W.2d 314, it is stated in part as follows:

“On the contrary, it is our opinion that the trial judge is vested with wide discretion in determining all matters and things necessary or proper to the determination of such election contest, including the question as to whether the ends of justice seem to require the reopening of a ballot box in any given case, and upon appeal from his determination of the contest the trial court’s decision will not be disturbed on any questions decided unless a material abuse of discretion on his part is clearly shown by the record.”

Also see Vicars v. Stokely, Tex.Civ.App., 296 S.W.2d 599, wr. ref., N.R.E., 157 Tex., 182, 300 S.W.2d 623.

We hold that the record in this cause does not show an abuse of discretion on the part of the trial court in opening and recounting the ballots in the Rocky box. We further hold that reversible error is not shown by appellant’s complaint that the trial court erred in failing to make a comparison of the ballots and ballot stubs in the Rocky box inasmuch as appellant objected to and opposed the court’s making such a comparison when the appellee moved and requested the trial court to make such comparison. Appellant’s 9th, 10th and 11th points are overruled.

Appellant by his 12th point of error contends that the trial court erred in not counting the votes of Rennie Peoples, B. J. Harris and wife, Mary Harris. The above named parties did not vote, did not present themselves to vote, did not tell the presiding judge of the election that they had lost, mislaid or left their poll tax receipts at home, and made no request to make an affidavit to such effect. Since these parties did not vote there was no legal way to count their uncast wishes as votes for anyone. Appellant’s 12th point is overruled.

Appellant by his 13th point contends that the trial court erred in not holding the absentee ballot of Mrs. T. B. Bur-ford void because the absentee ballot was mailed to the post office box of Hal New-some, which appellant contended was neither the permanent or temporary place of residence of Mrs. Burford, and further contending that her ballot was void because she was given improper aid.

There was testimony in the record that Mrs. Burford had been in a convalescent home in Gilmer for about a year prior to the trial of the case. However prior to that time for more than 35 years she had been living at the home of a son-in-law, Mr. Newsome, and that for the past 35 years or more she had been getting her mail at the post office box of Mr. Newsome in Gilmer and was still getting her mail there. The evidence is also sufficient to support a finding that no improper assistance was given Mrs. Burford. Appellant’s 13th point is overruled.

Appellant by his 14th point contends that the trial court erred in holding that the voters, John King, Joyce King and Tommie Lee Aaron were not legally qualified voters of Upshur County, Texas. The residence of these voters were challenged and controverted by evidence presented by appellee. Issues of fact were raised by the evidence in this respect for the trial court to pass upon. We hold that there was evidence of probative force to support the trial court’s findings upon these voters, and that the evidence is sufficient to support the trial court’s findings. Appellant’s 14th point is overruled.

Appellant by his 15th point attacks the absentee ballot of E. H, Orr. The Notary Public, through inadvertence, failed to sign the jurat on the front of the application, although signing the one on the back of it following the affidavit that no exemption certificate was required.

The testimony shows that the voter was before the Notary, and the Notary’s seal was also placed on the jurat form at the front of the application, as well as at the back of the form relating to the exemption certificate. Under the authorities hereinbe-fore cited with respect to absentee ballots involving similar situations, we hold that the trial court’s action in counting the ballot of E. H. Orr is supported by the evidence and the law, and that the irregularities complained of by appellant in this respect do not compel the ballot of E. H. Orr to be voided. Appellant’s 15th point is overruled.

Appellee’s cross-point one complaining of the trial court adding one vote for J. D. Peoples to the total votes counted for appellant Mitchell is sustained because the evidence is undisputed that J. D. Peoples did not cast any ballot for anyone at the election in question. The vote of J. D. Peoples is therefore deducted from the total which the trial court counted for the appellant.

Appellee’s cross-point four complaining of the trial court’s failure to count ballot No. 3420 as a vote for appellee Jones in the Rocky box is sustained. An examination of a true copy of this ballot shows several dark and heavily drawn lines and marks through the name of appellant Mitchell. The name of Mitchell was very heavily scratched out, and a small portion of a line extended upwards from Mitchell’s name to take in a very small portion of the name of appellee Jones. We hold that it is obvious from an examination of this ballot that the voter intended to vote for ap-pellee Jones and to vote against appellant Mitchell. It is well settled by statute and by case law that the failure of a voter to mark his ballot in strict conformity with the election code does not invalidate the ballot, and that the ballot shall be counted in all races in which the intention of the voter is clearly ascertainable. Art. 6.06 Tex. Election Code; Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627. Ballot 3420 is therefore counted as a vote for appellee Jones and is added to the total number of votes credited to him hy the trial court.

In view of the fact that the questions involved would become moot before the expiration of the time ordinarily allowed for filing motions for re-hearing, or before questions could be certified to the Supreme Court and answered, it is ordered that no motion for re-hearing, or to certify questions to the Supreme Court, may be filed.

The judgment of the trial court is affirmed. It is further ordered that the mandate in this cause be issued instanter.

DAVIS, Justice

(dissenting).

This is a primary election contest between Tommie Mitchell, contestant-appellant, and W. C. (Bill) Jones, contestee-appellee, for the office of Tax Assessor-Collector of Up-shur County for an unexpired term. The contest involves absentee ballots. This writer and his wife voted by absentee ballots, illegally, in the primary election in Up-shur County. We knew at the time we voted we were voting illegally. We didn’t have the courage nor the intestinal fortitude to insist that we be permitted to vote legally. We knew what the law required, but we didn’t obey it. An attorney for the contestant-appellant, and an attorney for the contestee-appellee knew about our illegal voting prior to the contest. Neither side challenged our illegal votes. The attorneys were just being courteous. Judges and their families are not infallible. When we knowingly make a mistake, our actions should be criticized. In the future, we will vote legally.

The Executive Committee of the Democratic party canvassed the returns of the Second Primary on June 5, 1962. It certified the results of the Second Primary held on June 2, 1962, and declared that the ap-pellee, W. C. (Bill) Jones, received 2,741 votes, and that appellant, Tommie Mitchell, received 2,739 votes. It certified that Jones was the Democratic nominee for the office of Tax Assessor-Collector. The contest was filed. After the trial the court held that the contestee, Jones, received 2,720 legal votes and the contestant, Mitchell, received 2,719 legal votes. It certified that Jones was the nominee.

Appellant brings forward IS points of error. By his points 1, 2, 3, S, 6, and 15 he takes the position that Arts. 5.05 and 8.13 of the Texas Election Code, as amended in 1959, are mandatory, and that certain absentee ballots cast for the contestee should not be counted. Without quoting the statutes or naming the voters, Articles 5.05 and 8.13 of the Texas Election Code, as amended in 1959, are mandatory. A total of 112 absentee ballots that were cast for the con-testee should NOT have been counted. The articles relate to affidavits, assistance given to absentee voters, provides that any person assisting in such voting shall take an affidavit, and concludes with the following paragraph: “Where any assistance is rendered in preparing an absentee ballot other than as herein allowed, the ballot shall not be counted, but shall be void for all purposes.”

From the legislative history it seems that. Subd. 15 of Art. 5.05 of the Texas Election Code is a new subdivision regulating assistance to absentee voters. The courts have previously held that provisions allowing assistance to voters unable to mark their ballots is directory; not mandatory. The purpose of the subdivision was to impose the same restrictions on absentee voters as exists to regular voters at regular polling places. Such statutes have been held to be mandatory. Appeal of Cusick, 136 Pa. 459, 20 A. 574, 10 L.R.A. 228; Farrell v. Jordan (Tex.Civ.App.) 338 S.W.2d 269, wr. dism.; Guerra et al. v. Ramirez et al. (Tex.Civ.App.) 351 S.W.2d 272, wr. dism.

The courts have held our previous statutes to be directory, not mandatory, without a statute so providing. In Stratton v. Hall (Tex.Civ.App.) 90 S.W.2d 865, wr. dism., the court said:

“It appears to be well settled that in the absence of a statute prohibiting the counting of ballots because of irregularities either in preparing or casting, and in the absence of fraud or of a showing that the returns were changed or tampered with, ballots cast by qualified voters should be counted.” (Emphasis added.)

It seems that the courts have long been pointing out the necessity of the amendment of our absentee voting statutes that were passed in 1959. Since that time, two decisions have been handed down. Both of these decisions have held the statutes mandatory.

Appellant takes the position that the action of the voters in applying for the absentee ballots, the manner of assistance that was received by them, and the fact that they were required to swear to them were not complied with according to the 1959 amendments. The testimony shows that none of the voters actually swore to the affidavit for the application for the ballot, and did not swear to the return on the envelopes. Although they signed their names, or someone else signed for them, the notaries signed, and placed their seal upon it, there was still no oath administered to the voters in either instance. The requirements of an affidavit are set out in 2 Tex.Juris.2d Chap. 4, p. 408 to 415, including §§ 14 through 21. The sufficiency of an affidavit is set out in 3 Am.Juris.2d 396, § 20; and is further defined in 2 C.J.S. Affidavits § 20 b, p. 958.

For the errors hereinabove pointed out, I would sustain points 1, 2, 3, 5, 6, and 15, and 112 absentee votes that were cast for the appellee Jones would be deleted.

By his point of error No. 4 the appellant takes the position that the mailing of the absentee votes were in violation of Secs. 1 and 4 of Art. 5.05. I believe the point to be without merit and would overrule it.

By his point 6 appellant takes the position that the requirement of the statutes to tear the stub from the ballot and place it separately in the envelope should not be held to be mandatory in the event the other statutes were not held to be mandatory. To hold that the requirements of the statutes are not mandatory would be in conflict with the holding of the Court of Civil Appeals in Guerra v. Ramirez, supra. I think the requirements of the statutes as to the stubs on the ballots are mandatory. I would overrule this point.

By his 7th point, appellant says the trial court erred in counting the ballot of Marianne Kinnimer because she made an application for an absentee ballot before Clayton Willeford, a Notary Public in Upshur County. It seems to be well settled that subdivision 1(b) of Art. 5.05 has been held to be mandatory. Where a person makes application for a ballot in the county where he or she votes, mails the application for ballot from outside the county, and mails the envelope with the ballot enclosed from outside, they have voted illegally. While Miss Kinnimer was in Upshur County, she should have gone before the County Clerk and cast her ballot. In the case of Farrell v. Jordan, supra, Chief Justice Bell held that a person voting in this manner had voted illegally. Such was his holdings as to Mrs. E. A. Weams and Mrs. Minnie Brightwell. I would sustain this point and would not count her vote.

Appellant says the court erred in counting the vote of C. G. Willis who, at the time, was in New Orleans, Louisiana. He did not make application according to the statutes as required by Sec. 2 of Art. 5.05. The article is mandatory, and the vote of Willis should not be counted. I would sustain that point of error and would not count the vote of Willis.

By his 9th, 10th and 11th points of error appellant takes the position that the trial court erred in opening the Rocky box. I do not believe that under the pleadings and the evidence that there was any showing that would allow the trial court to open the ballot box and the stub box. My theory of the law as to these three points is stated 'in McJimsey v. Yates (Tex.Civ.App.) 324 S.W.2d 438, wr. dism. I would sustain these three points and certify the Rocky box as containing 147 votes for appellant, and 46 votes for the appellee.

By his 12th point of error, appellant states that the trial court erred in not counting the votes of three people who presented themselves apparently for the purpose of voting, but did not have their poll tax receipts. The people did not carry their poll tax receipts when they presented themselves to vote. They could have gotten them had they been eager to cast their ballots. Under the record in this case, the refusal of one person to vote and the other people not applying to vote was not beyond the discretion of the election judge. I would overrule this point of error.

By his 13th point of error, appellant says the court erred in counting the vote of Mrs. T. B. Burford for contestee because the absentee ballot was mailed to the post office box of someone else, not the permanent or temporary place of residence of the voter, and the provisions of Art. 8.13 of the Election Code pertaining to aid and assistance are mandatory and must be complied with. The statutes being mandatory, I would sustain this point as to the aid and assistance given the voter.

By his 14th point, appellant takes the position that the trial court erred in not counting the votes of John King and wife, Joyce King, and Tommie Lee Aaron. He did not count the vote of Tommie Lee Aaron because he paid his poll tax in Ector County. He had lived in Ector County until about March 10, 1960. He, being a married man, had to reside in Upshur County for six months. I would overrule this point as to Tommie Lee Aaron.

The trial court erred in refusing to count the votes of John King and wife, Joyce King. King and his wife own a farm in Upshur County. They had recently moved to California for the purpose of finding work. They left part of their household goods in Upshur County. His wife and children were in Texas at the time of the election contest. King had stated that he intends to return to Upshur County and build a home on the farm. If his residence in California was temporary, he could have maintained his residence in Upshur County and continued to vote there. I would sustain the point of error as to John King and Joyce King, and count the votes for appellant.

Appellee brings forward 8 cross-points of error. By his cross-point one, appellee takes the position that the trial court erred in counting the vote of J. D. Peoples for the appellant because Peoples did not cast a vote in the election. What has heretofore been said on point twelve presents the question of whether or not J. D. Peoples was denied the right to vote. He was not refused the right to vote illegally. He could have returned and secured his poll tax receipt, or made an affidavit and he would have been permitted to vote. I would sustain this cross-point.

By his cross-points 2, 3, and 4 appellee complains of the action of the trial court about matters pertaining to the Rocky box. As heretofore stated on points nine, ten and eleven, the Rocky box was illegally opened. I would overrule these cross-points.

By his cross-point 5, appellee says the trial court erred in not counting absentee votes that were cast in the election. The Absentee Canvassing Board failed to count the votes for undisclosed reasons. To require the counting of a ballot, they must show that the voter was a qualified voter in every respect, as a matter of law, before his vote can be counted. There are many qualifications that must be shown to prove that the voter is qualified. The trial court did not err in refusing to count these votes. I would overrule cross-point 5.

Appellee’s cross-point 6 says that the court erred in holding that certain ballots should be counted as votes for the contestee, Jones, because the applications for absentee ballots bore a physician’s certificate signed by a duly licensed and practicing doctor of Chiropractic. Sub-division 2, Art. 5.05, provides that a ballot may be mailed to persons unable to go to voting places because of sickness or disability upon application sworn to by a voter and certified to by a duly licensed physician or an accredited Christian Science practitioner. I find no cases holding that a duly licensed Chiropractor, or Dr. of Chiropractic, is not authorized to sign such a certificate. If the statutes are so construed as requiring that the certificate of a medical doctor or an accredited Christian Science practitioner would render unacceptable the certificate of a licensed Chiropractor, or other member of the healing arts, the statutes would be unconstitutional and in violation of Art. 16, Sec. 31 of the Texas Constitution. It provides that No preference should be given to any school of medicine. The State of Texas through a Board of Examiners, licenses Chiropractors. “Medicine” as that word is used in this section of the Texas Constitution embraces the art of healing, whether by scientific or supposedly scientific method, the art of preventing, curing or alleviating diseases, and remedying as far as possible results of violence and accident, some thing or method supposed to possess curative power, and embraces among others, physicians, surgeons and osteopaths. Ex parte Collins, 57 Tex.Cr.R. 2, 121 S.W. 501, affirmed Collins v. State, 223 U.S. 288, 32 S.Ct. 286, 56 L.Ed. 439; Ex parte Halsted, 147 Tex.Cr.R. 453, 182 S.W.2d 479. In the event the legislature intended to leave out Chiropractors, they made a mistake. I would sustain this cross-point as to the certificate, the votes being disallowed for other reasons.

I think the appellee’s cross-points 7 and 8 are without any merit. I would overrule the same.

I would reverse and render the judgment of the trial court, holding that the appellant, Mitchell, received 2,722 votes, and the appellee, Jones, received 2,602 votes.

      . The Supreme Court in Markowsky v. Newman, 134 Tex. 440, 136 S.W.2d 808, 813 approved the following rule:
      “Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by the failure to obey the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time or in the precise mode indicated, it will still be sufficient, if that which is done accomplishes the substantial purpose of the statute.”
      Again in Ramsay v. Wilhelm, Tex.Civ.App., 52 S.W.2d 757, wr. ref., it is stated:
      “It is common knowledge that such matters are usually intrusted to laymen, and that in sparsely populated counties and small towns a strict compliance with all the provisions of the statutes is seldom, if ever, observed. The will of the legal voters as expressed at the polls is the matter of paramount concern, and, in the absence any showing of fraud, or reasonable indication that such will has not leen fairly expressed and the evidence thereof properly preserved, the courts have been liberal in construing and enforcing as directory only the provisions of the election laws which are not upon their face clearly mandatory. * * *
      “And, absent evidence of fraud, unfairness in the holding of an election, or tampering with the ballots or returns, the courts of this state have uniformly held that ballots east by legally qualified voters should be given effect, though election officials had failed to discharge their duties as prescribed by statute, unless there is clear provision in the statute itself that such ballots shall not be counted. (Emphasis added) * * *
      “This liberal policy, uniformly adhered to, was announced by Judge Gaines in Davis v. State, 75 Tex. 420, 432, 12 S.W. 957, 962, in the following language: ‘The main design of all election laws is, or should be, to secure a fair expression of the popular will, in the speediest and most convenient manner; and we think a failure to comply with provisions not essential to attain that object should not avoid the election, in the absence of language clearly showing that such was the legislative intent.’
      “The Legislature has with particularity thrown numerous safeguards around the suffrage of the citizenship; and the manner, form, time, and place of its exercise. Of necessity, the holding of such elections are and must be intrusted to those not always conversant with the numerous provisions of the law regulating same. As a result, all of such provisions are seldom complied with in every particular. But it is equally true that such failures ou the part of election officials seldom defeat a fair expression of the popular will. Where they do not, the courts have been liberal in sustaining the result. Turner v. Teller (Tex.Civ.App.) 275 S.W. 115. Where such derelictions of the election officials have interfered with or prevented such a fair .expression, or where there is any reasonable indication that such was the result, the courts have set them aside. But to enforce a strict observance of all of the directory provisions of the statute, absent proof of wnfairness or dishonesty, would more often defeat than effectuate the popular will; and it is probable that but few elections would stand such a scrupulous test." (Emphasis added.)

      . The Supreme Court of Texas in Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625 said:
      “ * * * The right to vote is so fundamental in our form of government that it should be zealously safeguarded as are our natural rights. It has been said that ‘laws abridging the natural right of the citizen should be restrained by rigorous constructions within their narrowest limits.’ It is sufficient, however, that we apply here the less extreme and well established rule of construction that statutes regulating the right to vote should be given a liberal interpretation in favor of that right. * * * ”

      . In order for an appeal to be determined before the printing of ballots for the 1962 General Election it was necessary for this court to make special orders limiting the time in which the transcript, statement of facts, and briefs of the parties might be filed and oral argument heard. To meet the voting deadline submission of the case has been given precedence over pending cases. This effort to expedite a decision and give exhaustive consideration to questions presented was incompatible with brevity and conciseness in preparing an opinion. On first consideration by the entire Court it was agreed that a true Per Curiam opinion would be written, the points of error being distributed equally among the members and each charged with the preparation of the opinion dealing with his points. In the event of disagreement it was contemplated the majority view would be stated as such. However, this understanding disappeared in the wash of the divergent views that developed.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    TEXAS AND NEW ORLEANS RAILWAY COMPANY, Appellant, v. Melba HART et al., Appellees,
    No. 6395.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 13, 1962.
    Rehearing Denied Oct. 4, 1962.
    Second Motion for Rehearing Overruled Oct. 31, 1902.

      Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellant.
    Barber & Seale, Jasper, for appellees.
   STEPHENSON, Justice.

This is a suit for personal injuries brought by Mary Evelyn McCormick and Melba Joy Hart to recover damages from the Texas and New Orleans Railway Company, arising out of an automobile-train collision. A complete statement of the case is set out in the original opinion of this court reported at Tex.Civ.App., 350 S.W.2d 227, and in the opinion of the Supreme Court at 356 S.W.2d 901. The parties will be referred to here as they were designated in the trial court.

Judgment was rendered by the trial court for both plaintiffs. This judgment was upheld by this Court of Civil Appeals on the basis of favorable answers by the jury to the discovered peril issues. The Supreme Court held there was no evidence to sustain the finding of the jury as to the discovered peril issues. The jury had found plaintiff McCormick guilty of contributory negligence and the Supreme Court reversed and rendered as to her. The case was remanded to this Court to pass upon the sufficiency of the evidence to support the answer of the jury that defendant failed to have a blinker light which was operating on the east side of the crossing on the occasion in question. In determining this question, we must look at all of the evidence bearing upon this issue. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

All of the evidence on this point is discussed in the Supreme Court decision. Mary Evelyn McCormick and Melba Hart each testified that there were no blinking lights at the crossing. Roland Lee Gadman testified that he saw the flashing warning lights on the west side of the track just before the collision. G. H. Montematt, the fireman, testified the warning signal lights were working on the east side of the track. Frank Rogers, the engineer, testified he did not notice whether the automatic signal lights were in operation. After considering all of the evidence, both favorable to and contrary to the verdict, we conclude that the verdict is not so against the weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We make the same finding to the special issues as to negligence and proximate cause.

The judgment as to Melba Hart is affirmed as set out in the original opinion of this Court.


author: YOUNG, Justice. WILLIAMS, Justice.

text:
    MINNEAPOLIS-MOLINE COMPANY, Appellant, v. J. A. PURSER, Appellee.
    No. 16016.
    Court of Civil Appeals of Texas. Dallas.
    June 22, 1962.
    Rehearing Denied Oct. 5, 1962.

      Bowyer & Thomas and William W. Sweet, Jr., Dallas, for appellant.
    McKool & McKool, Dallas, for appellee.
   YOUNG, Justice.

Appellee has no objection to the following statement of nature of case as made by appellant: “Payne Implement & Supply Company, located in Happy, Texas, was a dealer for the Appellant Minneapolis-Mo-line Company. As such dealer, Payne sold to Appellee J. A. Purser one 5-Star Minneapolis-Moline Tractor, together with swinging draw bar, cultivator and planter, for a total purchase price of $6,550.00. Appel-lee traded to Payne one 1952 Model Ford Tractor and a demonstration certificate, for which he received a total credit of $2,150.-00. The balance of the account, including carrying charges, was $5,203.06, payable as follows:

January 1, 1959
$ 304.61
January 1, 1960
1,517.53
January 1, 1961
1,637.97
November 1, 1961
1,742.95
“The transaction was consummated by the execution of a conditional sales contract, which was thereafter assigned, by Payne Implement & Supply Company to appellant for a valuable consideration.
“Appellee made the first payment of $304.61, but refused to make any further payment. Appellant brought suit in the Trial Court for the balance due under the contract in the sum of $4,898.45, together with $500.00 attorney’s fees, and prayed for a foreclosure of its lien against the tractor and implements. Appellee pleaded and the jury found a breach of warranty, and based upon such verdict the Trial Court entered judgment for the Appellee that the Appellant take nothing by its suit. This left the Appellee in the position of having title to and possession of the tractor and implements and at the same time relieved Appel-lee from paying for the same. From this judgment Appellant has perfected its appeal to this Court.”
Appellee adds to above statement that “he has repeatedly since January 1960 offered the tractor to appellant and appellee still offers appellant the tractor today.”

There was a jury trial, their answers being in substance as follows: (1) that the hydraulic system of the tractor in question proved defective during the first six months after October 20, 1958; (2) that the seller (Payne Implement & Supply Company) failed to carry out the warranty to the defendant pertaining to the tractor in question; (3) that the Payne Implement & Supply Company was an agent for the plaintiff (Minneapolis-Moline Company); (4) that the Payne Implement & Supply Company represented to the defendant that if the tractor was not in good working condition for a period of six months, then the defendant would be furnished all the necessary parts, material and labor by the plaintiff to place the tractor in good working condition; (5) that this representation on the part of Payne Implement & Supply Company induced the defendant to enter into said conditional sales contract; (6) plaintiff failed to place the tractor in good working condition; (7) the sum of $500 is reasonable compensation for the plaintiff’s attorneys for services rendered in this case.

Appellee had pled that the dealer, Payne Implement & Supply Company, was the agent of appellant (Minneapolis-Moline Company); developing the facts and circumstances with respect to this issue from Richmond J. Payne, manager of the dealer concern, who stated that his company was operating under a franchise from Minneapolis-Moline Company of Dallas, Texas. Appellant had denied the agency relationship, pleading that at all times material here it had been an independent dealer and independent contractor. A Provision of this franchise contract between appellant and Payne Implement & Supply Company reads: “Dealer not Agent. The Dealer is not the company’s agent in any respect or for any purpose and is not authorized to incur any obligations or make any agreement, provisions, warranties or representations in its behalf.” On the trial and relevant to the issue of agency, appellant had offered this franchise contract in evidence but same was excluded by the court on ground principally that above quoted provisions of the instrument was self-serving; and appellant asserts court error (1) in refusing to admit into evidence the written contract between Minneapolis-Moline Company and Payne Implement & Supply Company; (2) in submitting issue No. 3 and definition of the word “agent” in connection therewith. Together with Issue No. 3 the jury was instructed “that an agent is one who acts in behalf of another under the latter’s authority and for the latter’s benefit.”

It was error to exclude this franchise contract on the issue of agency. It was properly offered from the testimony of G. A. Wright, credit manager of appellant, identified by him as taken from the company files and indeed the instrument had also been identified by Richmond J. Payne as the contract under which his concern had been operating since 1953. Agency is the creature of contract, either expressed or implied, and ■ if a contract expressly states that no agency relationship is intended, such is conclusive evidence that no agency exists. White Sewing Mach. Co. v. Sneed, Tex.Civ.App., 174 S.W. 950. Appellant further correctly states that issue No. 3 above submits merely a question of law; appellee relying solely on the testimony of Payne, the dealer, to establish any agency in fact: “The question whether an agency relation exists between an alleged principal and agent is a question of law that must be determined solely by the trial court, in the light of the relations of the parties under the agreement between them or in view of their acts and conduct. More specifically, it is the function of the trial court alone to determine whether, under an ascertained state of facts, a legally valid agency relation exists between the parties. The province of the jury in this connection is to determine only whether or not certain facts exists — not whether, if such facts do exist, they are legally sufficient to constitute the alleged agency.” 2 Tex.Jur.2d 694.

Since Payne Implement & Supply Company had no actual authority under its franchise with appellant to act as its agent, the only other theory upon which an agency relation could be based, as appellant points out, is that of apparent or ostensible authority, which doctrine is based upon the theory of estoppel, and must be both pled and proven, which appellee failed to do in the case at bar. 2 Tex.Jur.2d “Agency” p. 676. Here the actual facts and circumstances surrounding the relationship existing between Payne Implement & Supply Company and appellant was developed only from its manager, Payne. But “the doctrine cannot be relied on by a third party to charge a principal, unless such a person has been induced to act in good faith on certain representations made by the principal * * *. Such (apparent) authority must be determined solely by the principal’s acts, and not by those of the agent.” 2 Tex.Jur.2d pp. 484, 485. (emphasis ours).

Point 3 complains of the court’s refusal to admit evidence through the witness Payne with respect to repurchase by appel-lee for $650 of the 1953 Ford Tractor which had been previously traded by appellee to Payne Implement & Supply Company, along with the breakdown in cost as between the tractor in suit and implements; and point 4 relates to further refusal of court to appellant’s offer of evidence concerning purchase by appellee of another tractor by ap-pellee in July 1959 from Workman Implement Company of Tulia, Texas. The bill of exceptions disclosed that out of the total purchase price of $6,550, about $5,000 was the price of tractor and the balance of $1,-550 was for the lister, planter and cultivator. The court had rejected the foregoing testimony; in particular, the breakdown in the cost as between the five star tractor and the implements sold. It was error to exclude the offered testimony under appellee’s defense of a “failure of consideration and a lack of consideration because of the failure of plaintiff, its agents, dealers and representatives to carry out the terms of their agreement.” No evidence was offered by appellee of any defects in the implements consisting of lister, planter and cultivator, or of any failure on part of appellant to carry out any warranty as to these items. The testimony was material as tending to show that there could not have been a total failure of consideration; these implements being free of defects, constituting a substantial part of the machinery involved under the one contract of sale.

4 must also be sustained. On cross-examination of defendant, Purser, ap-aphad sought to develop from him the fact that in July 1959 he had purchased from Workman Implement Company another tractor at a much lower price. The ruling was error, considering the wide latitude of cross-examination in Texas. 44 Tex.Jur. p. 1141. Not only that, but the second pur-purwas during the time that defendant was complaining about various defects of the tractor in suit, and tended to establish other reasons for his refusal to make fur-furpayments on the tractor originally pur-purfrom Payne Implement & Supply Company.

The original transaction between Payne Implement & Supply Company as seller and J. A. Purser as buyer was evidenced by a conditional sales contract stating that “No warranties, expressed or implied, have been made by seller except as set forth here below; ” then providing under heading “Warranty” that “The Dealer hereby agrees with and warrants to the Purchaser that (except as hereinafter stated) the Dealer will furnish free a new part to replace any part of each New Minneapolis-Moline tractor or machine or implement bearing the Minneapolis-Moline trade-mark which, with proper use, proves defective during the first six (6) months after delivery of the tractor, or machine, or implement to the original retail purchaser, and will furnish free a new part to replace any part of each new Minneapolis-Moline industrial engine or power unit which, with proper use, proves defective during the first ninety (90) days after delivery of the engine or power unit to the original retail purchaser, provided that the defective part is promptly returned to the dealer, and provided that said part shall, upon inspection, be acknowledged by the Dealer to be defective in material or workmanship. This warranty does not obligate the Dealer when any Minneapolis-Moline tractor, industrial engine or power unit, or machine or implement bearing the Minneapolis-Moline trade-mark has been subjected to negligent handling or use or to abuse, or if parts other than those made or distributed by Minneapolis-Moline Company, were used and, in the opinion of the Dealer, the use of such parts adversely affected the part claimed to be defective, * * Not material here were other warranty limitations and exclusions.

In defendant’s first amended original answer are detailed allegations of failure of the tractor to properly operate during the first six months of the warranty, alleging generally that “Defendant further show the Court that the power lift, hydraulic system, governor, torque amplifier, power steering and other parts of this tractor have not worked, and did not work properly as agreed upon within approximately three months after the date of delivery to this defendant of the tractor in question. * * that there has been failure of consideration and a lack of consideration because of the failure of the plaintiff, its agents, dealers and representatives, to carry out the terms and provisions of their agreement.” It will be noted that there are no allegations by defendant Purser of fraud, accident or mistake.

It will also be noted that appellee’s defenses were for breach of warranty; the issues obviously based on testimony of defendant Purser of which the following is typical: “Q All right, sir. Now, after you purchased it in 1958 — prior to the time— Let’s go before you purchased it. Prior to the time you purchased it, and prior to the time you signed this' contract did you talk with Mr. Payne about the provisions of this contract? A I did. Q Particularly to what provision did you talk with him about, sir? A About the warranty. Q And is that the warranty provision there, sir? A That is. Q All right. Now, tell the Jury what you talked to Mr. Payne about that provision before you signed the contract. A I asked Mr. Payne who was responsible for the working conditions and the reliability of the tractor, who, if anything went wrong with it, who was responsible for it, and would they guarantee it, or what bout it. Q And what did he explain to you, or what did he say to you, Mr. Purser? A Mr. Payne unconditionally guaranteed the tractor to give me complete satisfaction one hundred per cent.”

Appellant duly objected to the foregoing questions and answers, asking the court to instruct the jury to disregard them for the reason that same were in violation of the parol evidence rule in that they constituted an attempt to vary the terms of the written contract. The objection was overruled and testimony admitted as to these oral representations made by the dealer Payne. Appellant’s points 5, 6, and 7 are here presented; involving above objection, also relating to submission of issues 4 and 5. “In the absence of allegations of fraud, accident or mistake * * *, it will be conclusively presumed that the written contract contained the whole agreement of the parties, and parol evidence of representations, statements or warranties not disclosed by the contract was inadmissible.” Avery Co. of Texas v. Harrison, Tex.Com.App., 267 S.W. 254, 256. “When the contract is such that it presumptively contains the whole agreement of the parties, or when it expressly purports to do so, evidence of an oral warranty is inadmissible unless it is shown to have been omitted from the writing as a result of accident, fraud or mistake. When a written contract contains an express warranty, evidence of an oral warranty respecting the same subject matter will ordinarily be excluded.” 37-A Tex.Jur. § 88, p. 225. The trial court should have excluded the quoted testimony of appellee as going beyond the terms of the conditional sales contract. Since appellee had made no allegations of fraud and offered no proof of fraud, the representation made by Payne was nothing more than an oral warranty. “ * * * the rule as to the exclusion of parol testimony applies as well to the privies as to the parties to any contract.” Daggett v. Corn, Tex.Civ.App., 54 S.W.2d 1098, 1100, and appellant as assignee of Payne Implement & Supply Company, claiming under the contract in question, was in a privy relationship making the parol evidence rule clearly applicable, Daggett v. Corn, supra.

Likewise, Issue 4 was erroneous as pointed out by appellant in its objection thereto. It was to be answered on basis of the oral representations made by Payne to appellee. While Payne was undisputedly the dealer for Minneapolis-Moline Company, appellee throughout these issues has confused the relationship of “dealer” and “agent”; there being no evidence that any agency on part of Payne was thus created as we have already pointed out. As regards this dealership relation, all machinery and parts sold to Payne were to be paid for by the latter within fourteen months. The conditional sales contract on which appellant’s suit is brought, was of a required form furnished by Minneapolis-Moline Company. Time payment contracts were to be assigned to it at its regional office in Dallas, where deferred installments were payable.

its points eight and nine appel-appelcomplains of Special Issue No. 2: “Do you find from a preponderance of the evidence that the seller under the condition-conditionsales contract failed to carry out its war-warto the defendant pertaining to the tractor in question? ” and Special Issue No. 6: “Do you find from a preponderance of the evidence that the plaintiff failed to place the tractor in a good working condition ? ” We agree with appellant that the submission of these issues constituted error.

It is obvious that issue No. 2 amounts to the submission of a question of law, rather than a question of fact. As worded, the is-ispermits the jury to speculate as to whether the “Warranty” as used therein means a written warranty or includes the al-aloral warranty asserted by appellee. Assuming that the pleadings in this case will be the same on another trial it is sug-sugthat such issue be confined to the wording of the written warranty itself. Friesenhahn v. Tips Engine Works, Tex. Tex.283 S.W. 341.

[10] No. 6 is too broad and gen-genpresenting a question which is wholly unrelated to any contractual obligation as-asby appellant. It is not confined to either the written warranty or the alleged oral warranty. The written warranty re-reonly to the replacement of defective parts during the six months period follow-followthe sale and there is no obligation to place the tractor in good working condition. The oral warranty, as testified to by Mr. Purser is: “Mr. Payne unconditionally guaranteed the tractor to give me complete satisfaction one hundred per cent.” And also: “The warranty guarantee is for any and all operating parts of the tractor or the tractor as a whole for a period of six months after delivery.” The issue, as framed, contains no limitations as to time. Such manner of submission is wrong. Schoenberg v. Forrest, Tex.Civ.App., 228 S.W.2d 556; Walton v. Smulcer, Tex.Civ. Tex.Civ.222 S.W.2d 918. Points eight and nine are sustained.

[11] its tenth and eleventh points appellant contends that since the trial court rendered a “take nothing” judgment against it that such amounts to a complete recission of the contract and cancellation of the note in question, whereas appellee failed to either allege or prove any theory of defense which would have entitled him to a recission of the contract but, at the most, the defense pleaded would only entitle appellee to a credit of the damages suffered as a result of the breach of warranty. As heretofore stated, appellee pleaded a defense based upon breach of oral and written warranties by appellant and its alleged agent. The representations alleged and relied upon were to the effect that the tractor in question was guaranteed to appellee’s satisfaction and that “any part which did not work properly” would be replaced by appellant in order that the tractor would be placed in a perfect working condition. While failure of consideration was also pleaded defensively the evidence is uncontradicted that there could have been no such failure since the tractor and implements sold were not wholly unsuited for the purpose for which they were designed. No issues were requested by ap-pellee or submitted to the jury relating to either a total or partial failure of consideration and this theory of defense was abandoned.

We agree with appellant that the pleadings and testimony in this case does not warrant a judgment of recission of the contract. The rule in this connection is announced in 37-A Tex.Jur. § 311, pp. 640, 641 and 642 as follows: “In respect of the right to rescind a sales contract for a breach of warranty, when there is no fraud, and the warranty of a subsequently unsuitable article goes to the fitness of the article, it may be returned, and if the warranty goes to the identity of the article which proves to be something different, it may also be returned. But if the warranty goes to the degree of fitness or to quality, and it proves to be of an inferior quality or fitness, the goods cannot be returned. Thus, if a machine is sold for a particular purpose, and it will perform none of the functions, it may be returned; but if it only performs them badly the remedy is by action for damages. The fact that some parts may be defective, or that the machine does not perform as guaranteed, does not warrant a recission of the contract, so long as the machine is not wholly worthless.

“This rule appears to be contrary to that prevailing in many other jurisdictions, and has been subjected to some criticism, but it has been enforced very consistently in this State.”

In Jesse French Piano & Organ Co. v. Thomas, 36 Tex.Civ.App. 78, 80 S.W. 1063, it was held that proof of breach of warranty does not entitle the vendee of a re-cission of a sale on the theory that the consideration has failed, since the failure of goods to come up to the seller’s warranty is not proof that the goods are wholly worthless. Where the evidence shows that the machine is sold for a particular purpose merely performed its function badly, the courts have held that such does not entitle the purchaser to a recission. In such circumstances his remedy is for damages for a partial failure of consideration. 37-A Tex.Jur. pp. 695-696; Allison Ranch Co. v. Angelo Auto Electric, Inc., Tex.Civ.App., 145 S.W.2d 645; Exchange Bank v. Hensley & Roland, Tex.Civ.App., 240 S.W. 679, 680.

The judgment of the court in this case, denying appellant anything, relieved appel-lee from further liability for the unpaid balance of the purchase price and also permitted appellee to retain the tractor and implements. The effect of such a judgment is that of both recission and damages and same cannot be sustained on any theory of law. Dillard v. Clutter, Tex.Civ.App., 145 S.W.2d 632, err. ref. Appellant’s tenth and eleventh points are sustained.

Appellant contends in his twelfth and thirteenth points that since appellee used the tractor and implements in question long after discovery of the alleged defects and did not legally tender the tractor and implements back to appellant, that it was error to render judgment in effect, rescinding the contract. Furthermore, the judgment of “take nothing” amounts to unjust enrichment of appellee in as much as he is relieved from further obligations to pay for the property which he retains. The record reveals that within a month after purchase of the tractor and implements appel-lee made known to appellant that the hydraulic system was giving trouble. Nevertheless, appellee continued to use the tractor and implements for approximately two years following the purchase of same. Ap-pellee testified that he had used the tractor for a total of 1200 hours which represents approximately two years use. With reference to return of the machinery, Mr. Purser testified that he had never offered to deliver the tractor back to Mr. Payne. Instead he told Mr. Payne to “come and get it”.

A buyer desiring to rescind his contract must return the goods he has received. This rule is based upon the proposition that before a recission can be granted the parties must be placed in status quo. “The tender must include not only all the goods received by the buyer from the seller, but also the value of any benefit that he may have derived from the possession.” 37-A Tex.Jur. pp. 646, 647. The only evidence of tender is that appellee told appellant to “come and get it”. Even if such could be regarded as a “tender”, appellant could not have been placed in status quo after the tractor had been used for over two years by appellee.

It cannot be questioned that appellee derived substantial value from the tractor after such prolonged period of use, and we believe, under these circumstances, that appellee was not in a position to say that he was entitled to a recission. In 37-A Tex.Jur. p. 655, the rule is correctly announced that a buyer will be deemed to have ratified the contract and to have waived his right of recission whenever it appears that, after discovering the existence of such right, he has made an extended use of the goods. See also Bancroft v. Emerson-Brantingham Implement, Tex. Civ.App., 194 S.W. 991.

We also agree with appellant that the judgment rendered by the trial court in this case results in an unjust enrichment of appellee. The judgment relieves appellee from paying for the tractor and implements and fails to restore said machinery, or any part thereof, to appellant. It has long been the law of this State that a party aggrieved by a fraudulent transaction has an alternative remedy in that he may either rescind or affirm the transaction and recover his damages. He cannot do both. He cannot retain all the benefits of the transaction and escape all the obligations. He cannot rescind the contract in order to escape paying the balance of the consideration due and at the same time affirm it so as to keep the purchased property and recover damages. Talley v. Nalley, Tex.Civ.App., 277 S.W.2d 739; O’Con v. Hightower, Tex.Civ.App., 268 S.W.2d 321, writ ref.; 37-A Tex.Jur. p. 622.

Appellant’s points are sustained and the judgment of the trial court is reversed and remanded for a new trial.

Reversed and remanded.

ON REHEARING

WILLIAMS, Justice.

Subsequent to the rendition of our original opinion in this case June 22, 1962, appellant filed its motion for permission to file a supplemental brief containing two additional points of error not theretofore contained in appellant’s brief. Appellant cited Rule 431, Texas Rules of Civil Procedure in support of its request. This Rule provides that briefs may be “supplemented at anytime when justice requires upon such reasonable terms as the court may prescribe * * *.” This Rule, together with the adjudicated cases, support appellant’s, contention that after submission and rendition of an opinion, the court may grant leave to file amended briefs including additional points of error not originally presented. Warnasch v. Wagner, Tex.Civ.App., 291 S.W.2d 389; Texas Cities Gas. Co. v. Gomez, Tex.Civ.App., 160 S.W.2d 74; Gillette Motor Transport Co. Inc. v. Wichita Falls & Southern Ry. Co., Tex.Civ.App., 170 S.W.2d 629; Old Line Mutual Life Ins. Co. v. Tilger, Tex.Civ.App., 264 S.W.2d 557. Appellant’s motion to file supplemental brief is sustained.

By its two points on appeal (being the 14th and 15th points) appellant contends that the trial court erred in overruling its motion for peremptory instruction and also its motion for judgment notwithstanding the verdict of the jury, and calling upon us to reverse and render the judgment of the trial court. We have given careful consideration to appellant’s points and once again reviewed the entire record. Having done so we arrived at the conclusion that appellant’s points should be overruled. Our previous action in sustaining the various procedural points of error indicate that ends of justice will be better subserved by remanding the case for another trial. London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619; Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699; Godwin v. Texas Employers Ins. Ass’n., 145 Tex. 100, 195 S.W.2d 347; Rule 434, T.R.C.P.

We have also carefully considered appellant’s motion for rehearing and finding the same to be without merit, the same is overruled.


author: WERLEIN, Justice.

text:
    Rubye FOOTE, Appellant, v. The CITY OF HOUSTON, Texas, et al., Appellees.
    No. 14067.
    Court of Civil Appeals of Texas. Houston.
    Oct. 18, 1962.
    Rehearing Denied Nov. 1, 1962.
    C. C. Divine, Houston, for appellant.
    R. H. Burks, City Atty., Homer T. Boul-din, Senior Asst. City Atty., Houston, for appellees.
   WERLEIN, Justice.

This suit was brought by appellant, Rubye Foote, against The City of Houston for a declaratory judgment declaring Ordinance No. 61-1444 illegal and unconstitutional, and for a temporary and permanent injunction restraining the City from enforcing or attempting to enforce such ordinance or interfering with appellant’s conduct of her business, and also for a mandamus ordering appellee to issue appellant a license to operate her business upon her tendering the prescribed fee. Appellee filed its original answer which included pleas and exceptions to the jurisdiction of the court. On hearing of appellant’s application for temporary injunction, the trial court sustained appellees’ pleas to the jurisdiction and dismissed the entire cause of action on the sole ground that the court did not have jurisdiction of the subject matter of the suit, since it was brought to enjoin the enforcement of a penal ordinance making it unlawful in massage parlors or establishments to massage people of the opposite sex, or for such establishments to accommodate both male and female patrons.

In her petition appellant pleaded in effect that she was the owner and operator of a business establishment known as Brunswick Massage & Steam Baths at 1700 East Alabama, Houston, Texas, and had not paid a license fee for operation of such business because appellee had enacted the aforesaid ordinance which restricted her trade and patronage; that she had expended much money in the installation and equipping of said place for business, and employed female attendants trained and experienced in the art of massaging; that said ordinance deprived her of her property and privileges without due course of law, contrary to Article 1, Sec. 19, of the Constitution of the State of Texas, Vernon’s Ann.St., and interfered with her lawful vocation and means of livelihood; that she had made application for a license under the provisions of the ordinances of the City of Houston and that the City had refused to license her business and threatens arrest if she operates without a license. Appellant also alleged in her sworn pleading that if the City is not enjoined, it will interfere with the operation of her business and she will be irreparably damaged, and will be denied a right to earn a living, deprived of her patronage, and will be forced to go out of business.

In her prayer appellant prays for a declaratory judgment declaring said Ordinance No. 61-1444 illegal and void, and enjoining the City from enforcing or attempting to enforce said ordinance, or in any manner interfering with either the licensed or unlicensed operation and conduct of her business and trade, and for a mandamus ordering the appellee to issue a license upon tender of the required fee.

It is our view that the trial court had jurisdiction of the subject matter of appellant’s suit or certain phases of it. She sought injunctive relief alleging that her property rights would be substantially injured by enforcement of an invalid ordinance. 31 Tex.Jur.2d, p. 180, Injunctions, §91. She also sought a declaratory judgment and mandamus. The trial court was not called upon to determine the merits of the case on the hearing for temporary injunction, but only to decide whether or not a temporary injunction should be granted. It was error to dismiss the suit.

Judgment reversed and cause remanded.


author: HIGHTOWER, Chief Justice.

text:
    John HANCOCK, Jr., Appellant, v. ZURICH INSURANCE COMPANY, Appellee.
    No. 6358.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 20, 1962.
    Rehearing Denied Oct. 31, 1962.

      Joe H. Tonahill, Jasper, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   HIGHTOWER, Chief Justice.

This is a Workmen’s Compensation case. It was tried before the court without a jury upon a statement of facts made upon a previous trial of the case wherein a jury was unable to reach a verdict. Plaintiff-claimant has appealed from an adverse judgment of the trial court. The following findings of fact and conclusion of law, upon which the trial court predicated its judgment, characterizes the pleadings of the parties as here pertinent and the evidence adduced in support of the court’s findings:

“(1) Plaintiff was employed by W. H. Greer. (2) Plaintiff sustained an accidental injury in Jasper County, Texas, on or about January 30, 1956, while serving as a special employee of Koppers Company, Inc., and has suffered total loss of use of his right arm for 116 weeks from said date as a natural result of said injury * * *.
* ⅜ * * ⅜ *
“(8) Plaintiff received one hundred ($100.00) dollars from W. H. Greer and signed the instrument designated as Defendant’s Exhibit No. 1, which purports on its face to be a release, which the Court finds is not a release of liability of anyone, but on the contrary said exhibit was a mere receipt for the one hundred ($100.00) dollars received and was not a compromise settlement in release of liability of any party, and that plaintiff did not agree to compromise and settle his claim for one hundred ($100.00) dollars when he signed said instrument; and, that there was never an agreement entered into between plaintiff and W. H. Greer that contemplated jointly and mutually a fully executed consummation of any employer’s liability under the Employer’s Liability Act of Texas, Workmen’s Compensation Act of Texas, Article 8306, et seq., V.A.C.S., as being a full and final compromise settlement in satisfaction of any liability that might have existed between W. H. Greer and plaintiff.”

The trial court thereafter filed this conclusion of law:

“As a matter of law the plaintiff, John Hancock, should not recover from the defendant on the basis of the above and foregoing findings of fact, and none other ⅜ ⅝ ⅜ »

Defendant’s objections to the court’s findings of fact is a part of the record before us, as is the statement of facts upon which trial was had.

The instrument referred to as a “release” and as a “receipt” in the court’s last finding of fact aforesaid is as follows:

2-4 — 56
EXHIBIT D-l “I John Hancock Jr. received $100.00 from injury received while working, From W. H. Greer. I release him for obligation from injury.
John Hancock Jr.
WIT Fletcher Byerly
E. L. Clark”

Among other affirmative defenses the defendant pleaded, and it was its contention throughout trial, that this instrument was a valid, binding release by plaintiff to a negligent third party (Greer) which effected an election of remedies by plaintiff and es-topped him from recovery of defendant. It was defendant’s contentions, unsupported by any pleading of fraud or mistake, that the instrument was merely a receipt.

In connection with both parties’ contentions, the only proof made of the nature of said instrument was plaintiff’s testimony to the effect that shortly after he got out of the hospital he saw W. H. Greer, executed an instrument in writing and received from W. H. Greer the sum of One Hundred ■($100.00) Dollars. He testified that he thought or understood he was getting an advance on his weekly compensation; that he later employed counsel to represent him and was told that his claim lay against the Koppers Company, and that he did not understand the instrument that he signed to be a release.

On cross-examination, he identified the instrument which he signed at the time he received the One Hundred ($100.00) Dollars and identified his signature on the same; admits that he got the One Hundred ($100.00) Dollars mentioned; that Mr. Greer was the party who wrote it up, and that it was executed because of an accident he sustained while working on January 30, 1956. Later he testified to the effect that he had made a bank loan and that Mr. Greer was advancing him money on the bank loan. Finally his testimony is to the effect that the instrument was given for One Hundred ($100.00) Dollars and because of an injury sustained on January 30, 1956. Defendant filed objections to the reception by the trial court of the testimony of plaintiff tending to change the plain import of said instrument as a release to that of a receipt.

“Where the injury for which compensation is payable under this law was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employé may at his option proceed either at law against that person to recover damages or against the association for compensation under this law, but not against both, and if he elects to proceed at law against the person other than the subscriber, then he shall not be entitled to compensation under this law. * * * ” Art. 8307, sec. 6a, Vernon’s Ann.Civ.St.

If the instrument in issue was indeed a release of liability to Greer, then plaintiff was barred from proceeding against defendant for Workmen’s Compensation. Texas Employers Ins. Ass’n v. Brandon, 126 Tex. 636, 89 S.W.2d 982, and cases cited.

However, should the court’s conclusion of law upon which judgment was rendered in defendant’s favor be sustained in view of the trial court’s conflicting findings of fact concerning “release” and “receipt” hereinabove? We think so, for, as herein-above stated, the statement of facts in the case are in the record; therefore the findings of fact are not conclusive on appeal. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156; 4 McDonald, p. 1302.

We sustain the court’s finding of fact that the instrument in question “purports on its face to be a release.” The only competent and admissible evidence in connection with the instrument was that given by the plaintiff himself, as hereinabove summarized, which established that the same was given to Greer in consideration of $100.00, as a release of liability for plaintiff’s injury of January 30, 1956, the very same injury for which plaintiff now sues defendant.

The finding of fact by the trial court to the effect that this release was a mere receipt, and not a release of liability to Greer, is not supported by any probative evidence. Hence, there being sufficient evidence in the statement of facts to support the trial court’s finding that the instrument purports on its face to he a release, we sustain said court’s judgment in favor of defendant.

We find it unnecessary to discuss other contentions of the defendant.

Judgment affirmed.


text:
    HOUSTON CONTRACTING COMPANY, Appellant, v. The TEXAS AND PACIFIC RAILWAY COMPANY, Appellee.
    No. 6549.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 6, 1962.
    Bryan & Patton, Houston, for appellant.
    McGregor, Sewell & Junell, Houston, for appellee.
   STEPHENSON, Justice.

This is an appeal from an order of the trial court sustaining a plea of privilege. The plaintiff relied upon Subdivision 23 of Article 1995 of the R.C.S. to maintain venue in Harris County. A portion of this subdivision reads as follows:

“Suits against a railroad corporation, or against any assignee, trustee or receiver operating its railway, may also be brought in any county through or into which the railroad of such corporation extends or is operated.”

The parties will be designated here as they were in the trial court.

The evidence showed that this was a cause of action for damages arising out of a crossing collision which occurred in Luling, Louisiana. Suit was filed in Harris County, Texas, and defendant filed its plea of privilege to be sued in Dallas County, Texas, alleging Dallas County to be the location of its principal office and place of business in the State of Texas.

The evidence showed that the defendant railway company maintained a sales office in Houston. This office was headed by T. A. Falk, whose title was District Manager, Freight Sales. Mr. Falk was a freight sales representative for defendant, and had nothing to do with passengers. The purpose of the Houston office was to solicit freight business for the defendant. There was no evidence showing that defendant had any railroad rails or roadbeds in Harris County.

The sole question for this court to determine is whether the operation of a freight sales office in Harris County brings the defendant within the provision of Subdivision 23 of Article 1995. We have concluded that it does not. We feel that the wording of the statute “through or into which the railroad of such corporation extends or is operated” means the operation or extension of the railroad rails and roadbeds. If the meaning was otherwise, the statutes would merely read “in which the railroad corporation operated.” The words “through or into” must refer to railroad rails and roadbeds. The phrase “railroad of such corporation” and the phrase “railroad corporation” do not have the same meaning in this statute. See International & G. N. Railway Co. v. Anderson County, 59 Tex. 654.

The judgment of the trial court is affirmed.


text:
    Warren J. LATIOLAIS, Appellant, v. Mardell Newton LATIOLAIS, Appellee.
    No. 6498.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 6, 1962.
    Rehearing Denied Oct. 3, 1962.
    Harold Peterson, Beaumont, for appellant.
    Keith, Mehaffy, McNicholas, & Weber, Beaumont, for appellee.
   HIGHTOWER, Chief Justice.

This appeal presents the sole question, novel in Texas, of whether or not one spouse may recover damages of the other by reason of a premarital tort. The parties are designated as in the trial court.

On September 16, 1958, plaintiff, Warren J. Latiolais, was riding in a pickup truck owned by plaintiff’s brother. The truck was being driven by plaintiff’s fiancee, Mardeil Newton, when it got out of control and overturned on a public highway near Henrietta, Texas. Subsequently, in 1959, the plaintiff and Mardeil Newton were married. Thereafter, September 16, 1960, plaintiff sued his wife for personal injuries allegedly growing out of her negligent operation of the truck at the time and place aforesaid. It may he of some interest to observe that plaintiff’s petition alleged the existence of a liability insurance policy on said truck at the time of the accident. Furthermore, as requested in plaintiff’s petition, the trial court appointed a guardian ad litem to protect the interests of defendant inasmuch as her interests “may or may not be adverse” to the interests of the liability insurance carrier.

The defendant, by and through her guardian ad litem, filed special exceptions to plaintiff’s petition in its entirety, the substance of which being that as a matter of Texas law plaintiff was precluded recovery by reason of the marriage. Plaintiff has appealed as a result of the court having sustained said exception and dismissing the cause of action.

Plaintiff’s counsel has, as has defendant’s, presented this court with a most commendable brief in which he persuasively analyzes, construes and distinguishes many out of state decisions dealing directly with the question before us and many Texas cases which tend to approach it significantly. See good collation of such cases 43 A.L.R. 2d, 632. He urges that the common law of England has never been adopted in Texas as it relates to marital rights; that by reason of defendant’s tortious conduct a cause of action arose and vested in plaintiff, a denial of which would deprive him of property rights without due process'of law within the meaning of the 14th amendment to the Constitution of the United States.

are inclined to the belief, al-alviews are expressed to the contrary in some Texas cases, that the common law of England in regard to spousal disability was never adopted in this state with the intendment that it govern our courts in the determination of marital rights. Speer’s Law of Marital Rights in Texas (3rd Ed. 1929) p. 90, et seq.; Barkley v. Dumke et al., 99 Tex. ISO, 150, S.W. 1147, 1148.

[2] it is not an open ques-quesin this state that a wife cannot sue her husband for a tort committed during marriage against her person. Nickerson v. Nickerson, 65 Tex. 281. That the con-conis true, see Wilson v. Brown, Tex. Tex.154 S.W. 322.

[3] Nickerson case, supra, in keep-keepwith the majority view in the United States, bases its holding upon grounds of public policy, and we adhere to the same reasoning in the present circumstances. As noted in 43 A.L.R.2d 632, the great majority of our jurisdictions deny suits between spouses for premarital torts or those com-comduring coverture. Decisions of the minority states allowing recovery in such circumstances are generally the result of constitutional or statutory enactments. Ab-Absimilar legislative directives interpre-interpreof the law is the only function of this court. In this connection we have no hesitancy in adopting the holding and rea-reaof the Minn.Sup.Ct. in Patenaude v. Patenaude, 195 Minn. 523, 263 N.W. 546, where the sole question was presented of whether a wife could, during coverture, bring an action against her husband for a tort committed against her person prior to her marriage to him. The court first stated:

“Quite generally, one of the reasons why a husband or wife cannot bring suit for a personal tort against the other, during coverture at least, is that so to do would disturb and tend to disrupt the marriage and family relations, which it is the public policy of the state to protect and maintain inviolable.” 263 N.W. 546, 547.

The Minnesota Supreme Court then noted that the same reasoning was pertinent in suits between spouses for premarital torts and accordingly affirmed the trial court’s judgment in dismissing the plaintiff’s suit.

In connection with appellant’s conten-contenthat a denial of his right of action would deprive him of property without due process, we hold in keeping with the decision of Amendola v. Amendola, 121 So.2d 805 (Fla.App.1960) where the same question arose, that the cause of action was not necessarily canceled or purged by the marriage, but the right of action i. e., the right to sue his wife in this cause is at least abated or suspended by the marriage. The husband is without capacity to sue his wife for personal injury because she is his wife. See, also, Gowin v. Gowin, 265 S.W. 529, (Tex.Civ.App.) affirmed Tex.Com.App., 292 S.W. 211.

The trial court was correct in dismissing plaintiff’s cause of action.

Affirmed.


author: RENFRO, Justice.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Jimmy DARTER et al., Appellees.
    No. 16350.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 28, 1962.
    Rehearing Denied Nov. 2, 1962.
    Nelson & Sherrod and Charles Oldham, Wichita Falls, for appellant.
    Peery & Wilson and James W. Jameson, Wichita Falls, for appellee Jimmy Darter.
    Jones, Fillmore, Robinson & Lambert and Larry Lambert, Wichita Falls, for appellee Pioneer Casualty Co.
   RENFRO, Justice.

On August 28, 1960, Jimmy Darter and Dale Welch were riding in an automobile owned by Darter but being driven by Welch. An accident occurred in which Darter received personal injuries and his automobile practically demolished.

Darter carried an Allstate insurance policy and Welch carried a Pioneer Casualty policy.

Pioneer was notified of the collision within a few days after the accident.

On November 10, 1960, Darter sued Welch for damages. Pioneer filed an answer on December 12. Allstate learned of the accident 109 days after its occurrence. The suit was tried on January 23, 1961 (42 days after Allstate received notice of the accident).

Both insurance companies participated in the trial of the case.

Darter recovered judgment against Welch for the sum of $1,750 for personal injuries and $2,150 for damages to his automobile, or a total of $3,900.

The judgment became final.

On March 14, 1961, Darter brought suit against both companies, and on Nov. 17, 1961, judgment was entered for Darter against both companies for the total amount of the Welch judgment, but declared Allstate to be primarily liable to Darter.

Allstate contends that it should not be held liable for any part of the judgment because notice of the accident was not given to it by Welch as soon as practicable.

The jury was asked: “Do you find from a preponderance of the evidence that notice of the accident in question was given to Allstate Insurance Company by or for Dale Welch as soon as practicable, as that phrase is defined hereunder, under the circumstances ?” The jury was instructed that “as soon as practicable”, as used in the issue, meant as soon as notice would have been given by an ordinary prudent person in the exercise of ordinary care in the same or similar circumstances.

The jury answered that notice was given as soon as practicable.

It was also found by the jury that Welch did not fail and refuse to make a statement concerning the accident to Allstate, and that the citation and petition in the case of Darter v. Welch were forwarded to Allstate immediately after they were delivered to Welch.

There was evidence that neither Pioneer (Welch’s insurer) nor its attorneys knew of Darter’s Allstate coverage until a day or two before Allstate received notice. Welch gave prompt notice in his own Company (Pioneer), but did not know the name of Darter’s insurer, did not know the coverage provided in Darter’s policy, never saw the policy, and did not know he was covered thereunder.

Welch was just under 21 years of age. At the time of the accident he was stationed at Fort Sill, Oklahoma, and was not discharged from the Army until November 28, 1960.

If this were a case where Welch failed, without excuse, to give notice to his own named insurer for 109 days, the points raised would be a complete defense. Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95; Trinity Universal Ins. Co. v. Weems, Tex.Civ.App., 326 S.W.2d 302.

However, it is stated in Appleman, Insurance Law and Practice, Vol. 8, p. 54, § 4738: “An additional insured, operating an automobile with the permission of the owner, has been held to be a proper person to give notice to the insurer. Such additional insured could not be expected nor required to give notice before he knew of the existence of the policy or of the fact that he was covered thereby; * * *” and at p. 87, § 4745: “An insured’s lack of knowledge of the existence of insurance excused a delay in giving notice, as a matter of law, where he was not guilty of a lack of due diligence. And an additional insured was under no duty to give notice until he had knowledge that he was covered by the policy.”

In National Surety Corp. v. Wells, 5 Cir., 287 F.2d 102, it was stated that immediate notice “is treated as requiring transmission within a reasonable time considering all of the circumstances. * * * A significant circumstance * * * may be the age and capacity for understanding of the assured. So, too, may be knowledge that the coverage exists in one’s favor.”

Under the facts and circumstances of this case, we believe a fact issue was presented as to whether Welch gave notice to Allstate as soon as practicable under the circumstances. The issue and accompanying instruction properly presented the matter to the jury. The jury found that notice was given as soon as practicable under the circumstances.

We hold, therefore, that Allstate is liable for the amount of damages incurred by Darter for personal injuries.

Allstate further contends, however, that it is not liable to Darter for damages to his automobile because its policy to Darter excluded property damage to Darter’s automobile.

The Allstate policy issued to Darter provided : “Part 1. * * * Coverage A— Bodily Injury Liability — * * * Coverage B — Property Damage Liability — * * *. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of * * * B. Injury to or destruction of property, including loss of use thereof, hereinafter called ‘property damage’. * * * Exclusions : This policy does not apply under this Part 1: * * * (i) to injury to or destruction of (1) property owned or transported by the insured or (2) property rented to or in charge of the insured other than a residence or private garage.”

Under Part 1 the persons insured are: (1) the named insured and any resident of ■the same household; (2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured.

The exclusions were pleaded by Allstate.

It is undisputed that Welch was driving the car with Darter’s permission.

The Pioneer policy issued to Welch also excluded property damage, which Pioneer pleaded.

We agree with Allstate and Pioneer that property damage to Darter’s automobile was not covered by the policies. Neither provided for collision insurance. An insured was in charge of the car and therefore excluded from coverage, and the automobile was owned by an insured, Darter, hence coverage for the property damage was excluded. Speier v. Ayling, 158 Pa. Super. 404, 45 A.2d 385; Purcell v. Metropolitan Cas. Ins. Co., Tex.Civ.App., 260 S.W.2d 134; and State Farm Mutual Automobile Insurance Co. v. Walker, Tex.Civ.App., 334 S.W.2d 458.

By cross-points Darter contends the trial court erred in failing to find that Pioneer waived or was estopped from defending under the above mentioned exclusionary provision. We have examined the entire record and find no error in said holding.

The portion of the judgment of the trial court which awarded Darter $2,150 for property damages to his automobile against Allstate and Pioneer is reversed and judgment rendered that Darter take nothing against either company for property damage.

The judgment awarding $1,750 to Darter against both companies, with Allstate primarily liable, is affirmed.

Judgment affirmed in part and reversed and rendered in part.