author: COLEMAN, Justice.

text:
    HERRIN TRANSPORTATION CO., Inc., et al., Appellants, v. William PARKER, Appellee.
    No. 15153.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    March 7, 1968.
    Rehearing Denied March 28, 1968.

      Danny R. Edwards, Joel B. McCarty, Jr., Houston, for appellants.
    Jim Brannon, Houston, D. L. McClure, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is a suit for damages for personal injury. A judgment for the plaintiff was entered on a jury verdict. The principal questions raised on this appeal concern whether the trial court abused his discretion in refusing to permit the filing of an amended answer raising for the first time the defenses of contributory negligence and unavoidable accident when such answer was presented during the trial; whether the plaintiff by pleading that “he was proceeding in a careful and prudent manner,” and “having due regard for his own safety and the safety of others” so anticipated the affirmative defense of contributory negligence as to place it in issue by the defendants’ general denial.

In Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948), a case was reversed by reason of the action of the trial court in refusing permission to file a trial amendment tendered after the evidence was closed. The court noted that Rule 66, Texas Rules of Civil Procedure, authorizes the filing of such amendments during the trial and directs the trial court to permit such amendment of the pleading freely when the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. The only reasons presented by the objecting party for refusing to allow the amendment was the delay of more than a year in filing the amendment, and that it was tendered after the evidence was closed and without previous notice. The court said:

“ * * * It will be observed that these objections carried neither suggestion nor hint that the respondents were in any manner surprised or unprepared to meet the issues raised by the amendment; nor did they suggest that, in this trial without a jury, the amendment would otherwise prejudice them in maintaining their action on the merits. * * * Under those circumstances, we think that both the spirit and intent of Rule 66 required that the amendment be permitted. * * *”

Rule 63, T.R.C.P., authorizes a party to file amended pleadings within seven days of the date of the trial or thereafter only after leave of the judge is obtained, but provides that such leave shall be granted unless there is a showing that such an amendment will operate as a surprise to the opposite party.

The proposed amended pleading appears in the transcript. Endorsed on the amendment is the notation: “Leave to file denied”, followed by the signature of the trial judge together with the date January 4, 1967. The statement of facts contains no mention of the fact that a trial amendment was offered. Neither the objections of the plaintiff nor the reasons for the actions of the trial court appear in the statement of facts or the transcript. The case went to trial on January 3, 1967.

It is apparent from the wording of Rule 63 that the burden of convincing the trial court that the late filing of an amended pleading will operate as a surprise rests on the one resisting the filing of the pleading, as does the burden of showing prejudice in the case of a trial amendment offered under Rule 66. However, the burden of demonstrating that the trial court erred in refusing to permit the amendment rests on the party contending that such action was not justified by the rules. The mere fact that the court refused to permit the amendment is not sufficient. The statements of fact concerning the circumstances attending the presentation and refusal of the amendment found in appellants’ brief cannot be accepted since appellee has pointed out that they are not supported by the record, and thereby refuses to admit that the matter is fairly and fully presented.' In the absence of a showing, either in the statement of facts or by bill of exception, of the facts attending the presentation of the amendment and the action of the trial court in refusing to permit it to be filed and considered, this court must presume that the trial court’s action was correct under the circumstances, and that he did not abuse his discretion. Robertson v. Southwestern Bell Telephone Company, 403 S.W.2d 459 (Tex.Civ.App., Tyler 1966); Coffey v. Ft. Worth & D. Ry. Co., 285 S.W.2d 453 (Tex.Civ.App., Eastland 1955).

Appellants requested certain special issues presenting the defense of contributory negligence. In the absence of proper pleadings the trial court properly refused these issues. Coffey v. Ft. Worth & D. Ry. Co., supra. While appellants contend that the issues must be considered tried by consent since evidence raising them was introduced without objection, this position is not sound. Evidence presenting in detail the manner in which appellee was operating his vehicle was properly admitted as part of the circumstances existing at the time of and just prior to the collision for the consideration of the jury in determining the issues on negligence and proximate cause presented in the charge of the court even though the issues to be submitted would necessarily direct the attention of the jury to the conduct of appellants only. Safety Casualty Co. v. Teets, 195 S.W.2d 769 (Tex.Civ.App., Beaumont 1946, writ ref.).

Appellants contend that the trial court should have submitted their requested issues on “swerve”, “lookout” and “brakes” on the theory that these issues were anticipated by appellee in his pleading to the effect that he was driving in a careful and prudent manner with due regard for his safety and the safety of others, and, therefore, were raised by appellants’ general denial. In support of this theory they cite Zeigler v. Latham, 144 S.W.2d 435 (Tex.Civ.App., Ft. Worth 1940), and Raney v. White, 267 S.W.2d 199 (Tex.Civ.App., San Antonio 1954, writ ref.).

Zeigler v. Latham was a suit for a real estate commission. The plaintiff alleged that the property was listed with him for sale and that said property “was continued to be listed with plaintiff from and after said date, * * *: that defendant at no time withdrew said listing * * *.” The defendant answered with a general denial. In its opinion the court said:

* * * Where, as in this case, plaintiff anticipated defensive matters, such as that the listing with him had not been withdrawn or terminated, and defendant plead the general denial, she should not have been denied the right to offer testimony because she had not duplicated the allegation of plaintiff in an affirmative form; the pleadings were sufficient to raise the issue and when testimony was offered by either party on the issue, it should have been admitted. * * *”

This general statement of the rule was approved in Raney v. White, supra. In that case a landlord suing for reasonable rental value of certain premises alleged on information and belief that the tenant was asserting some character of a claim as an offset against the rentals due. Before the defendant filed an answer to the merits the plaintiff amended his petition omitting all reference to the claimed offset. The court distinguished this case from Zeigler v. Latham by pointing out that the plaintiff had never admitted the truth of the facts on which the claimed offset was based, and that since the petition was amended before a general denial was filed, no issue was raised by the pleadings.

Maryland Casualty Co. v. Hudgins, 97 Tex. 124, 76 S.W. 745 (1903), was cited in Zeigler v. Latham. This case held: “ * * * The facts alleged in the petition, taken in connection with the answer of defendant, were sufficient to present the whole defense claimed by the defendant. It is a well-established rule of pleading in our court that facts alleged by one party need not be pleaded by the other.” (Citations omitted)

In an address delivered by Robert W. Stayton before the Dallas Bar Association October 4, 1941, a portion of which is quoted in connection with Rule 85, T.R.C.P., Vol. 1, p. 357, he states:

“Because the general denial is undoubtedly an undesirable part of our practice, I only have to mention the numerous un-pleaded theories that may come in under it and that have given so much trouble in special issue submissions. * * *
“This mischief has to some extent been met in the new rules. It is there provided that no special issue may be submitted under a general denial theory unless specifically pleaded. * * *”

Rule 94, T.R.C.P., specially provides that in pleading to a preceding pleading, a party shall set forth affirmatively contributory negligence.

While the general rule quoted in Raney v. White was approved by the refusal of an application for a writ of error, there would seem to be no reason to extend the rule, and in view of Rules 94, 63, and 66, it would seem that the better practice would be to restrict that doctrine to cases clearly coming within its purview. We think this not such a case. The facts alleged by appel-lee, together with the pleading of appellants, do not present the whole defense in the absence of a pleading of facts, which the jury could find to be negligence on the part of appellee and a proximate cause of the occurrence. Merely duplicating the allegations found in appellee’s pleading in an affirmative form would not have presented appellants’ defense. We cannot say from reading- the pleading that appellee was anticipating defensive matter.

After the trial of this case was concluded, appellants discovered that appellee was also known by an alias, “Joe Henderson”. Ap-pellee failed to disclose this fact in answer to an interrogatory propounded to him prior to trial. This matter was presented to the trial court in appellants’ motion for new trial together with the contention that had the jury known of the alias “Joe Henderson”, together with the circumstances surrounding the use of such alias, a different verdict would have resulted. In connection with the motion for new trial an affidavit was filed to the effect that appellee was charged before the U. S. Commissioner with the offense of converting to his own use certain copper of a value in excess of $800.-00 while employed at N.A.S.A., on or about December 16, 1966. The charge was entitled “United States v. William Parker also known as Joe Henderson”.

This charge was filed after the conclusion of this trial. The interrogatories were answered on November 10, 196S, more than a year prior to the date on which the offense was alleged to have occurred. There is no showing that the answer made was not true at that time. While appellee was asked his name at the trial, he was not asked whether he had ever used an alias. There is nothing to show that an investigation of “Joe Henderson” would have led to evidence helpful to appellant in time for use at the trial. From a review of the entire record, we cannot say that the newly discovered evidence was of such a vital nature that its use before a jury on a new trial would probably have resulted in a different verdict. 41 Tex.Jur.2d, New Trial, § 118, p. 297. The Trial Court did not abuse its discretion in denying the motion for new trial.

The judgment of the Trial Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: RENFRO, Justice.

license: Public Domain

text:
    Harold L. DECKER, Appellant, v. Esther ELLIOTT et al., Appellees.
    No. 16892.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 16, 1968.
    Rehearing Denied March 29, 1968.

      Smoot & Smoot, and George A. Smoot, Wichita Falls, for appellant.
    Prothro & Sellers, and Lee Sellers, Wichita Falls, for appellees.
   OPINION

RENFRO, Justice.

This is a trespass to try title suit involving a tract of 110 acres of land in Archer County, Texas, with an alternative pleading of a constructive trust on the part of defendant should it be determined that he owned any interest in the land as a result of a quitclaim deed under which he claimed title.

The question before the trial court and this court is whether a provision in the will of Ida Decker, common source of title, bequeathing the land to her daughter, Ida Butcher, during her life and directing that if she had any children such land should go and belong to “her child or children,” included an adopted child of Ida Butcher, she having no natural children.

Ida Decker died December 4, 1934.

She left a will which provided in paragraph (11), “I give to my daughter, Ida Decker Butcher, the 110 acres lying just East of the 100 acre tract heretofore be-quested to Anna Culley * * * (description of land) so long as she may live, and at her death, if she has any children, then said estate shall go and belong to her child or children, share and share alike, and if she dies without any children, then said portion of my estate shall be distributed share and share alike to my heirs of body.”

Ida Decker Butcher and husband adopted William Gardner Brown Butcher on May 25, 1935.

On December 4, 1964, Ida Decker Butcher, who in the meantime had married one Husak, died.

On August 23, 1966, William Gardner Brown Butcher executed a quitclaim deed to Harold Decker to the land in question.

Plaintiffs are heirs of the body of Ida Decker, deceased. Defendant is Harold Decker.

Plaintiffs filed a motion for summary judgment based on the pleadings, agreements of record and stipulations of the parties. The motion was granted and judgment entered that plaintiffs and David D. Decker and Fred G. Decker, the latter two having been originally named as defendants, recover from the defendant Harold L. Decker the title and possession of the land involved.

Appellant did not forward to this court the will of Ida Decker. Therefore, the will, except for the stipulation as to paragraph (11), does not appear in the record. Thus, we are deprived of any assistance the will considered as a whole might have afforded us in construing paragraph (11).

Appellant relies heavily upon section 3, sub-paragraph (b) of the Probate Code, V. A.T.S., wherein it is provided that “ ‘Child’ includes an adopted child, * * *” and Article 46a, section 9, Vernon’s Ann.Tex.Civ.St. The latter section provides: “Sec. 9. When a minor child is adopted in accordance with the provisions of this Article, all legal relationship and all rights and duties between such child and its natural parents shall cease and determine, and such child shall thereafter be deemed and held to be for every purpose the child of its parent or parents by adoption as fully as though naturally born to them in lawful wedlock. * * *” And “Nothing herein shall prevent any one from disposing of his property by will according to law. Such adopted child shall be regarded as a child of the parent or parents by adoption for all other purposes as well, except that where a deed, will, or other instrument uses words clearly intended to exclude children by adoption, such adopted child shall not be included in such class.”

The 1931 statute, 42nd Leg., p. 300, Chap. 177, Sec. 9, was in effect when Mrs. Decker wrote her will and when she died. It was also in effect when Ida Decker Butcher adopted William Gardner Brown Butcher.

In Cutrer v. Cutrer, 162 Tex. 166, 345 S.W.2d 513, 86 A.L.R.2d 105 (1961), the Supreme Court, speaking through Justice Walker, held: “In jurisdictions where the adoption statutes do not require a different approach, it is generally held that an adopted child is not entitled to property conveyed or devised to the ‘children’ of the adoptive parent unless a contrary intent is disclosed by additional language or circumstances.” The Court held further: “The 1931 statute provided, among other things, that a child adopted in accordance with its provisions should ‘thereafter be deemed and held to be, for every purpose, the child of its parent or parents by adoption as fully as though born of them in lawful wedlock.’ * * * Since the trust instruments in the present case were executed while this statute was in effect, petitioner argues that Jeffrey is to be regarded for all purposes as the natural son of John Clark Cutrer and is therefore included within the classes identified as ‘children’ and ‘heirs of his body.’ We do not agree.” (Emphasis added.)

Referring to Hoch v. Hoch, 140 Tex. 475, 168 S.W.2d 638 (1943), the Court then stated : “The opinion in the Hoch case made it quite clear, however, that as to all persons other than the adoptive parents, an adopted child’s status was the same as it would have been if no act of adoption had occurred. There is no basis then for saying that the status conferred by the 1931 Act requires that an adopted child be regarded as a natural child of the adopter for the purpose of construing instruments executed by third persons.” The Court further held the 1931 statute did not make adopted children “heirs of the body” or “issue” of the adopter, that there was nothing in the instruments indicating an intention to include an adopted child, and said child had no interest in the trust.

In Vaughn v. Vaughn, 161 Tex. 104, 337 S.W.2d 793 (1960), the Supreme Court held: “In determining the right of Gary William Vaughn, the adopted son of G. H. Vaughn, Jr., to require the trustees to create and establish a new, separate, equal, and distinct trust under paragraph (C) of Section IV of the will of G. H. Vaughn, deceased, Article 46a, Section 9, supra, is not controlling, but such statute may be considered as an aid to the construction of the will. The Legislature, no doubt, was clothed with power to confer upon the adopted child the right to inherit ‘from and through’ its adoptive parents, but in the case at bar, Gary William Vaughn, the adopted child, is not claiming under the laws of inheritance. He is claiming as a legatee under the will of G. H. Vaughn, deceased. Therefore, his rights are dependent on what was intended by the testator, as expressed in the will. The intent of the testator cannot be supplied by a construction of the meaning of the words of the statute wherein it is provided that ‘* * * 'such adopted child shall be regarded as a child of the parent or parents by adoption for all other purposes as well, except that where a deed, will, or other instrument uses words clearly intended to exclude children by adoption, such adopted child shall not be included in such class. * * ”

In our case, William Gardner Brown Butcher had no claim to the land by inheritance from his mother, but his interest, if any, could only arise by reason of Ida Decker’s will. Defendant, of course, could claim no greater interest than his vendor, the adopted son.

In the instant case, the record shows that Ida Butcher was married at the time Ida Decker died. The record is silent as to the length of time she had been married, or her age. The record shows only that as of that time she had not given birth to a child, and that she did not give birth to a child or children during her lifetime. The record does not reflect whether she ever discussed with Ida Decker the probability or possibility of sometime adopting a child or children. It was not shown Ida Butcher was incapable of bearing children or even that she suspected she might not be able to bear children. It is not shown that prior to the death of Ida Decker the idea of adoption ever occurred to either testatrix or Ida Butcher.

We hold that from the scant evidence before us, and the one paragraph of the will which is in the record, the intent of Ida Decker was to devise to natural children of Ida Butcher. Certainly no intent is shown to devise to subsequently adopted children of Ida Butcher.

Under authority of Vaughn v. Vaughn, supra; Cutrer v. Cutrer, supra; and Martin v. Neel, 379 S.W.2d 422 (Tex.Civ.App., 1964, error ref.), we affirm the judgment of the trial court.

Affirmed.


author: PHILLIPS, Chief Justice.

text:
    STANLEY FURNITURE COMPANY, Inc., Appellant, v. TEXAS STATE BANK, Appellee.
    No. 11551.
    Court of Civil Appeals of Texas. Austin.
    March 13, 1968.
    Thompson & Jones, Joe Warren Jones, San Antonio, for appellant.
    Maloney, Black & Hearne, Thomas Black, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellant, the plaintiff below, brought this suit against Appellee to recover $5,000 that had been deposited in escrow with Appellee by Austin Apartments, Inc. and Manor Apartments, Inc., pursuant to a contract to purchase furniture from Nolan B. Warren.

The case was tried to the court on an agreed statement of facts and after a take nothing judgment, Appellant perfected his appeal to this Court.

We affirm.

Appellant is before us on a single point of error being that of the trial court in rendering judgment against Appellant because under the agreed stipulations of facts Appellee promised in writing to pay escrow funds to Appellant which it subsequently failed to do, and, as a matter of law, Appel-lee became liable to Appellant for its damages under the doctrine of promissory es-toppel.

We overrule this point.

The facts of the case are as follows. In June of 1962 Austin Apartments, Inc. and Manor Apartments, Inc. (hereinafter referred to as Austin and Manor) entered into a contract with Nolan B. Warren, which contract provided, in summary, that Austin and Manor agreed to purchase furniture from Warren for $5,000; Warren was to obtain the furniture from Appellant; Austin and Manor agreed to pay Warren for the furniture when it was delivered to them by Warren in Austin, Texas, together with fee simple title thereto; Austin and Manor deposited $2,500 each with Appellee to cover the purchase price of the furniture; Appel-lee agreed to act as escrow agent and agreed to keep such funds in escrow until written directions for the disposition of such funds were given it by Austin, Manor and Warren; in the event of a dispute between the parties to the agreement, Appellee could relieve itself of liability as escrow agent by tendering such funds into a court of competent jurisdiction in Travis County, Texas.

On June 11, 1962, Appellee wrote the following letter to Appellant:

“TEXAS STATE BANK
Post Office Box 1151, Austin, Texas 63
June 11, 1962
Stanley Furniture Company
Stanleyville, Virginia
Attention: Credit Manager
Gentlemen:
At the request of Mr. N. B. Warren, d/b/a Warren Furniture Company of Austin, Texas, we wish to advise you that we are holding in escrow the $5,000.00 for the purchase of furniture. These funds will be released to you upon written instructions as indicated in the contract dated June 8, 1962.
Yours very truly,
/s/ Monroe Bethke,
Monroe Bethke, Vice-
President”

Subsequent to the receipt of this letter and of a copy of the abovementioned escrow contract Appellant shipped the furniture to Warren at Austin, Texas. Warren subsequently delivered the furniture to Austin and Manor and pursuant to written instructions received from Austin, Manor and Warren, Appellee disbursed the funds to them and the escrow fund was entirely-exhausted. Appellee paid none of the escrow funds to Appellant.

In November of 1962, Warren was adjudged a bankrupt based upon a voluntary petition filed by him and, subsequently obtained his discharge in Bankruptcy.

Consequently, Appellant filed the suit at bar against Appellee for breach of its escrow contract, and breach of its written promise contained in the abovedescribed letter of June 11,1962.

Appellant’s position here is that Warren requested that the bank write Appellant the abovementioned letter of June 11, which fact the Appellee bank acknowledged in the letter. That the representations and promises made by Appellee in the letter to Appellant were made with Warren’s full knowledge and at his request. Therefore, Warren as of June 11, 1962, gave his directions or instructions to the bank for the release or disbursement of the $5,000 escrow funds to which he would be entitled upon his performance of the June 8, 1962 contract, summarized above. That had Warren not given the Appellee these instructions as to the disposition of the $5,000 held in escrow, Appellee would have had no reason to correspond with Appellant and make the promise and representations which it did in its letter of June 11, 1962.

Appellant then cites this Court to cases involving the doctrine of promissory estop-pel and asserts their applicability to the case at bar.

We hold that the facts of this case do not lend themselves to the theory of promissory estoppel. We also point out that since there are no findings of fact or conclusions of law filed herein, consequently all reasonable intendments will be indulged in favor of the judgment.

No estoppel can arise from the circumstances of this case because Appellee at all times simply followed the contract which unequivocally required Appellee to “hold said sums in safekeeping until written directions are given to it by Austin, Manor and Warren.”

On July 19 these parties directed Appel-lee to distribute $1,256.15 to Warren and on July 31 directed Appellee to distribute the respective remaining balances to Austin and Manor. Appellee did exactly what it was supposed to do and what it was required to do under the terms of the contract.

Appellee’s letter to Appellant of July 11, 1962, in no way changes Appellee’s duties under the contract. It advises Appellant that the funds are in escrow, and that they would be released to Appellant “upon written instructions as indicated in the contract.” No written instructions to release the funds to Appellant were ever given. The reference to the contract (a copy of which was in Appellant’s posession when it received the letter in question) put Appellant on notice that Appellee was acting, and would continue to act, subject to its duties under the contract, which Appellee obviously had to do. Thus Appellant knew that the funds belonged to Warren, Austin and Manor were subject to those parties’ absolute control. Citizens National Bank at Brownwood v. Ross Construction Co., 146 Tex. 236, 206 S.W.2d 593 (1947); Mercantile Nat. Bank at Dallas v. McCullough Tool Co., 152 Tex. 471, 259 S.W.2d 724 (1953); Farmers State Bank v. First State Bank of Liberty, 317 S.W.2d 768 (Tex.Civ.App. Waco 1958, no writ); Texas National Bank v. Eastland-Desdemona Consolidated Oil Company, 287 S.W. 149 (Tex.Civ.App. Waco 1926, writ dis’m).

Appellant relies heavily upon Wheeler v. White, supra, where a contract plus a promise to perform was involved. The Court found the contract unenforceable, however, on appeal the Supreme Court held that due to the promise, the necessary elements of inducement and reliance were present and reversed and remanded the case. Wheeler is not in point here for several reasons. Two such reasons are, first, Appellee’s letter to Appellant was not a promise upon which the necessary reliance to detriment could be placed. In the second place, the facts in Wheeler disclosed an unenforceable contract (which passed out of the picture) leaving the promise in addition to the elements described above. Here Appellant attempts to prove a promise on the part of Appellee to act in such a manner as to breach a valid, existing contract.

The judgment of the trial court is affirmed.

Affirmed.

      . The provisions of this escrow agreement are as follows:
      “Austin and Manor herewith deposit the sums of $2,500.00 and $2,500.00, respectively, with the undersigned escrow agent, Texas State Bank, a state banking corporation located in Austin, Texas, the receipt of which is hereby acknowledged and confessed. Said sums are to apply on the purchase price of said furniture, provided all the terms and conditions hereof are met by Warren. The escrow agent is to hold said sums in safekeeping until written directions are given to it by Austin, Manor and Warren. Said escrow agent may relieve itself of all liability hereunder, in the event of a dispute between the parties hereto, by tendering such sums into a court of competent jurisdiction in Travis County, Texas.”

      . Dyer v. Metallic Building Company, 410 S.W.2d 56 (Tex.Civ.App. Tyler 1966, no writ); Thompson v. McAllen Federated Woman’s Bldg. Corporation, 273 S.W.2d 105 (Tex.Civ.App. San Antonio 1954, no writ); Wheeler v. White, 398 S.W.2d 93 (Tex.1965).


author: MASSEY, Chief Justice.

text:
    COWDEN CAB COMPANY, Appellant, v. Myrtle L. THOMAS et vir, Appellees.
    No. 16901.
    Court of Civil Appeals of Texas. Fort Worth.
    March 1, 1968.
    Rehearing Denied March 29, 1968.

      Fillmore, Robinson, Lambert & Farabee, and Glynn Purtle, Wichita Falls, for appellant.
    Charlye O. Farris, Wichita Falls, for ap-pellees.
   OPINION

MASSEY, Chief Justice.

Plaintiff Myrtle Thomas, and her husband, brought suit against Cowden Cab Company, defendant, for personal injuries sustained as a passenger in defendant’s taxicab as result of its collision with a concrete abutment.

Based upon a jury verdict, with remit-titur because of excess found in hospital and medical expenses, judgment for $2,257.85 was rendered in behalf of plaintiff. Defendant appealed.

Affirmed.

The jury found that defendant’s taxicab came in contact with the concrete abutment; defendant’s taxicab driver failed to keep a proper lookout for the concrete abutment on the occasion in question, but that such failure was not the proximate cause of plaintiff’s damages; plaintiff sustained personal injury as a result of the collision; the amount which would reasonably and fairly compensate plaintiff for past mental pain and suffering as a result of the collision would be $500.00; the amount which would reasonably and fairly compensate plaintiff for hospital and medical expenses already incurred as a result of the collision would be $500.00; the amount which would reasonably and fairly compensate plaintiff for loss of earnings in the past and loss of earning capacity which she will in all reasonable probability suffer in the future as result of injury sustained in the collision would be $1,500.00.

To be noticed from the above is the fact that the jury, by answer to one issue, found that plaintiff sustained personal injury as result of the collision, while in answer to another issue, Special Issue No. 3, it found that the defendant’s failure to keep a proper lookout was not the proximate cause of plaintiff’s damages.

On motion the trial court disregarded the answer of the jury to Special Issue No. 3, and held that defendant’s failure to keep a proper lookout was a proximate cause of the collision. We agree that such was a proximate cause. Actually the question of “proximate cause of the collision” was not a part of the court’s charge. In instances where juries have declined to find that negligent acts or omissions constituted proximate causes of collisions, courts have not hesitated to declare proximate cause existent as a matter of law when such proves to he proper upon application of the tests to be made in the determination of such question. Examples are: Texas Consolidated Theaters v. Mauldin, 152 S.W.2d 930 (San Antonio Civ.App., 1941, writ ref. w. o. m.); St. Louis Southwestern Ry. Co. of Texas v. Harrell, 194 S.W. 971 (Beaumont Civ.App., 1917, reversed as to rendition of judgment, and remanded for new trial because cross-assignments of error sustained, 222 S.W. 221).

In instances of breach of duty in connection with an act, or omission to act, consequences thereof which are “natural and probable consequences”, i. e. those which human foresight can foresee since they happen so frequently that they can be expected to happen again, are — in law — “proximately resulting”. In such instances the act, or omission to act, would be a proximate cause as a matter of law. 40 Tex.Jur.2d, p. 471, “Negligence”, § 19, “(Tests of Proximate Cause) — In general; Natural and probable consequences”.

It is the element of “foreseeability” that is a prime ingredient of a proper definition of the term “proximate cause”, and necessity of consideration of such as an ingredient is without application to personal injuries which result from a collision, though it be necessary of consideration as applied to the collision itself. As applied to the circumstances of the instant case the defendant taxicab company might have been entitled to escape liability for the injury to the plaintiff, its passenger, if the fact that a collision might occur was not the “foreseeable” result of any act or omission to act on the part of the taxicab driver,— but since it was “foreseeable” and did amount to a proximate cause of the collision the company would not be entitled to escape liability upon the contention that it could not “foresee” that plaintiff would experience personal injury as result of the collision. If one be responsible for a collision because of dereliction of duty in his act or omission to act, he is answerable in damages for any and all damage therefrom resulting whether or not they were “foreseeable”.

An interesting analysis of “cause”, “direct cause”, and “proximate cause” is to be found in Commercial Standard Ins. Co. v. Caster, 59 S.W.2d 931 (Waco Civ.App., 1933, reversed, Norton v. Caster, 125 Tex. 48, 81 S.W.2d 487 (1935) ), especially the dissenting opinion beginning on page 936 of the Reporter, the holding of which was approved in the opinion by the Commission of Appeals; and in Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60 (1935).

After the evidence was closed the trial court permitted plaintiff to file a trial amendment. In said amendment, according to defendant, plaintiff “for the first time sought any damages for loss of past earnings and decrease in future earning capacity”. Several of defendant’s points of error are predicated upon a contention of impropriety in permitting the trial amendment and submission of special issues to the jury.

Our examination of the state of the pleadings prior to the reception of such trial amendment convinces us that it was not necessary to be filed. All actions complained about were proper in any event under sufficient pleadings in the absence of such amendment. The plaintiff’s petition stated as follows: “Plaintiffs would further show the Court and Jury that because of the injuries which she has received and the pain and suffering and the mental anguish to which she has been subjected by reason of the injuries received by her, that she has been damaged in the sum of Fifteen Thousand ($15,000.00) dollars.” Subsequently appearing in the prayer for relief was petition “for such other and further relief, special and general, in law and in equity, to which they may show themselves justly entitled.” No exceptions were filed to this pleading. Furthermore the evidence, which the defendant company claims was improperly considered, was initially elicited on its cross-examination. By her own counsel plaintiff thereafter elaborated thereon without objection.

The trial court did not err in denying the defendant’s motion for mistrial and to continue the case to enable it to investigate plaintiff’s testimony that she had never filed a Federal Income Tax Return. It appears from the record that the matter only had a collateral relation to the issue of loss of earnings experienced by plaintiff as result of injuries sustained in the collision. Inability to work on account of injury, loss of time and correlative diminishment in earnings was a matter of inquiry at time plaintiff’s oral deposition was taken prior to trial.

There is evidence to support the special issue submitted to the jury inquiring into the plaintiff’s future loss of earning capacity, and the jury finding thereon was not against the great weight and preponderance of the evidence.

Under the evidence placed in the record the trial court did not err in refusing to submit special issues inquiring whether the collision in question was the result of an unavoidable accident; nor did it err in refusing the specially requested issues upon defendant’s contention that it was confronted with a sudden emergency. Neither question was raised by the evidence.

Appended to the Special Issue in reply to which the jury found plaintiff to have sustained personal injury as the result of the collision, was the following instruction:

“You are instructed that the term ‘INJURY’ or ‘PERSONAL INJURY’, as used in this charge, shall be considered to mean damage or harm to the physical structure of the body and such diseases and infections as naturally result therefrom, or the incitement, acceleration or aggravation of any previously existing disease or condition by reason of such damage or harm to the physical structure of the body.”

The objection to the definition of “injury” or “personal injury” contends error in that it failed to affirmatively exclude, in assessing damages, any sums of money for loss or damage suffered by plaintiff as a natural and probable result of any other injury, disease or infirmity other than that solely caused by the accident in question, etc.

The special issue to which was appended the definition complained of makes no inquiry as to damages. Obviously the complaint made could only have been related to some other aspect of the charge. This court is not obliged to search elsewhere for an aspect to which the objection would be germane. The point of error has no merit as applied to the portion of the charge to which the complaint was directed.

All points of error are overruled.

Judgment is affirmed.


text:
    W. R. KOEHLER, Appellant, v. PIONEER AMERICAN INSURANCE COMPANY, Appellee.
    No. 16916.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 23, 1968.

      Smith & Baker, Lubbock, for appellant.
    McDonald, Sanders, Wynn, Ginsburg, Phillips & Maddox, and C. Harold Brown, Fort Worth, for appellee.
   OPINION

RENFRO, Justice.

The defendant, W. R. Koehler, executed his note in the sum of $100,000 payable in monthly installments to plaintiff, Pioneer American Insurance Company, and executed a deed of trust securing payment.

Payments became in default and substitute trustee, after notice posted, sold the property to plaintiff for the sum of $25,000.00, which was credited on the note. There remained a balance due of $59,681.-03. It was for this sum, plus attorney’s fees, plaintiff brought suit against defendant.

After all pleadings were made, plaintiff moved for and obtained a summary judgment.

In his first point of error defendant contends there was an issue of fact presented as to whether the foreclosure sale was invalid because of gross inadequacy of price.

Mere inadequacy of consideration alone does not render a foreclosure sale void if the sale was legally and fairly made. Tarrant Savings Association v. Lucky Homes, Inc., 390 S.W.2d 473 (Tex.Sup., 1965); Burnette v. Realty Trust Co., 74 S.W.2d 536 (Tex.Civ.App., 1934, writ ref.).

In his second point defendant argues there existed a genuine issue of material fact as to whether the sale was invalid because of gross inadequacy of price, coupled with other irregularities in connection with the foreclosure sale, and certain unfair dealings and misconduct on the part of plaintiff and trustees in connection with the sale.

According to defendant the “other irreg?i ularities” and unfair dealings and misconduct consisted of the following: b. defendant conveyed the property in question to trustees (not the trustee or substitute trustee in the deed of trust) in an effort to make restitution for the wrongful appropriation of funds and relied on the trustees to protect his interest; c. property was sold by a substitute trustee; d. trustee advertised the sale for three consecutive weeks but not three consecutive weeks immediately prior to date of sale; e. wrong substitute trustee posted notice of sale; f. sale occurred on a legal holiday; g. defendant did not know of coming sale; h. the various trustees in the deed of trust were officers and employees of plaintiff.

The trustee’s sale took place on the first Tuesday in July, 1967, which happened to be a legal holiday, July 4th. A sale regularly exercised under a power is equivalent to a strict foreclosure by a court of equity properly pursued. Hampshire v. Greeves, 104 Tex. 620, 143 S.W. 147 (1912).

Court proceedings on a legal holiday are not void, except where expressly so declared by statute. Houston, E. & W. Tex. R’y Co. v. Harding, 63 Tex. 162 (1885); London v. Chandler, 400 S.W.2d 862 (Tex.Civ.App., 1966); and Stewart v. Stewart, 357 S.W.2d 492 (Tex.Civ.App., 1962, no writ hist.).

Neither the sale under the deed of trust statute, Art. 3810, Vernon’s Ann.Tex.Civ. St., nor the Holiday statute, Art. 4591, V.A.T.S., nor Rule 6, Texas Rules of Civil Procedure, prohibits a deed of trust sale, equivalent to a court of equity proceeding, being made on July 4th.

Officers and employees of the plaintiff were not disqualified to serve as trustee and substitute trustee. Thornton v. Goodman, 216 S.W. 147 (Tex.Com.App., 1919); Tarrant Savings Association v. Lucky Homes, Inc., supra.

Defendant states in his brief: “Frankly, we believe that the most serious irregularity in connection with the sale was that * * one substitute trustee (Edens) posted notices that he would sell the property on July 4, 1967, and that another substitute trustee (Rouse) was then appointed on June 27, only seven days before the sale, and actually made the sale.”

Unfortunately for defendant’s “most serious irregularity” point, the Supreme Court has held directly opposite to his position. See Tarrant Savings Association v. Lucky Homes, Inc., supra, where the court held: “At the time notices should have been posted White was the only one authorized by the deed of trust to post them. Respondents make no attempt to show that White did not in fact post the notices. When an original trustee properly posts the notices required by law, there would be no necessity for re-posting, and the substitute trustee could have made a valid sale.”

The deed of trust executed by defendant provided in event of default the trustee should enforce the trust and “make sale of said real property as provided in Article 3810, Revised Statutes of Texas for 1925, after notice as provided in said article (but without any other notice than is required by said Article 3810). * * * ”

Article 3810, governing sales under deed of trust, provides that notice of such proposed sale shall be given by posting written notice thereof for three consecutive weeks prior to the day of sale in three public places in said County.

We find no requirement that personal notice be given the mortgagor, nor that the three consecutive weeks’ notice be immediately prior to the sale.

Defendant admitted that he knew at least a month before the sale that plaintiff had suggested to the trustees to whom defendant had conveyed the property that defendant execute a quitclaim deed to the property and thus avoid a deficiency judgment. Defendant admits he took the matter under consideration, but never made a decision known to the trustees or to plaintiff.

The parties may agree, as defendant did in this case, that the recitals in the conveyance to the purchaser at any trustee’s sale shall be full evidence of the truth of the matters therein stated, and all prerequisites to said sale shall be conclusively presumed to have been performed. Rogers v. Fielder, 392 S.W.2d 797 (Tex.Civ.App., 1965, ref., n. r. e.); 39 Tex.Jur.2d 210, § 153, and authorities cited therein. The substitute trustee’s deed to plaintiff recites that notice of sale was posted for three consecutive weeks prior to the date of sale in Lubbock County, one of which was the courthouse door. Defendant offered nothing which could be considered as evidence that the recitals were not in fact true.

Before the court were (1) the plaintiff’s pleadings in which it alleged there was a balance of $59,681.03 due on the $100,000 note, and the note and deed of trust executed by defendant; (2) defendant’s answer which did not deny the execution of the note and deed of trust and default in payments. The answer referred to and adopted the following instruments, which were before the court at the trial: (a) trust agreement whereby defendant conveyed the property to certain trustees so they could endeavor to salvage defendant’s property to the extent that Citizens State Bank of Dal-hart could be repaid the approximate sum of $610,000 which defendant had wrongfully converted to his own use; (b) resignation of Marcus Ginsburg as trustee in the deed of trust and appointment of R. L. Edens as substitute trustee; (c) resignation of Edens as substitute trustee and appointment of John M. Rouse as substitute trustee; (d) substitute trustee’s deed to Pioneer; (e) plaintiff’s motion for summary judgment on pleadings and exhibits; (f) affidavit of R. L. Edens, in which he stated that the note was executed by defendant, that plaintiff is owner of the note and that a balance of $59,681.03 remains unpaid; (g) defendant’s sworn plea in opposition to the motion for summary judgment, in which he alleged “All of the allegations of fact set forth in paragraphs 4, 5 and 10 (b and g under point of error No. 2) of Defendant’s First Amended Original Answer are true and correct”; (h) affidavit by Leroy El-more in which he states “It is my opinion that the property described in Exhibit ‘A’ is worth a minimum of 30‡ per square foot or a total of $142,667.81 for the entire tract of 10.9178 acres.”

In our opinion none of the documentary instruments in the record raise any issue of “irregularities” or “unfair dealings and misconduct” on the part of plaintiff.

The only possible issue raised was inadequacy of price, based on Elmore’s affidavit. As already stated, mere inadequacy of consideration does not render a foreclosure sale void if the sale was legally and fairly made.

In the words of Justice Williams in Castle v. Appliance Buyers Credit Corporation, 410 S.W.2d 485 (Tex.Civ.App., 1966, no writ hist.), “The real theory of appellants’ appeal seems to be nothing more than a collateral attack upon a trustee sale held prior to the institution of this suit. Appellants’ contention that the consideration paid by appellee corporation for the property at the trustee sale was inadequate is in itself insufficient to constitute a valid attack on the sale.”

Since plaintiff complied with all the necessary prerequisites for judgment, and defendant raised no issue of material fact, the court properly rendered judgment for plaintiff. Castle v. Appliance Buyers Credit Corporation, supra.

Defendant’s points of error are overruled and judgment affirmed.

Affirmed.


author: TUNKS, Chief Justice.

text:
    Ray LEWIS, Appellant, v. ISTHMIAN LINES, INC., Appellee.
    No. 83.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    March 6, 1968.

      Newton B. Schwartz, Gary F. Wanzong, Houston, for appellant.
    John P. Forney, Jr., Eastham, Watson, Dale & Forney, Houston, for appellee.
   TUNKS, Chief Justice.

This is a suit under the provisions of 46 U.S.C.A. Sec. 688, the “Jones Act.” The plaintiff, appellant here, sought recovery of damages for alleged personal injuries sustained by him while a member of the crew of a vessel owned and operated by the defendant, appellee here. The plaintiff also sought recovery for maintenance.

At the close of the testimony the defendant argued to the court that the plaintiff had failed to make a case on that part of his claim related to maintenance and the trial court sustained that contention. The judgment recites that the trial court rendered judgment on an instructed verdict on the issues of maintenance, although this does not appear, from the record, to be exactly what occurred. The issues relating to the defendant’s liability for damages at law were submitted to the jury and were answered favorably to the defendant. On the issues of damages the jury found that the plaintiff sustained a personal injury but answered “None” in response to the issue as to the amount of damage caused by that injury.

The trial court rendered judgment for the defendant. Plaintiff’s motion for new trial was overruled and he has appealed.

We affirm the judgment of the trial' court.

Since the jury found that the plaintiff sustained no damage from his injury, errors, if there were any, as to the issues on liability were immaterial and harmless unless the finding of no damage be set aside. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334; LeCompte v. Sanders, Tex.Civ.App., 378 S.W.2d 861, err. ref., n.r.e.; Wilkinson v. Chambers, Tex.Civ.App., 205 S.W.2d 639, n.w.h. Those cases are holdings to the effect that errors in findings of no damage are not harmful where other findings show no liability. On the reasoning of those cases, we hold that the errors here, if any, on the findings of no liability are harmless where, as here, there is an unchallenged finding of no damages.

We treat this jury’s finding of no damage as unchallenged because it was not challenged by any proper assignment of error in the plaintiff’s motion for new trial. The paragraph of that motion for new trial which appellant here contends challenged the jury’s finding on the damage issue is as follows:

“The verdict is contrary to the evidence in that the undisputed evidence shows that there were no set screws holding the blower element of the flange in the No. 8 soot blower just before the occurrence in question on August 7, 1965. The verdict, including the answers of Special Issues 1 and 10, were so contrary to the overwhelming preponderance and weight of the evidence as to be manifestly unjust and wrong.”

The Special Issues 1 and 10 referred to in that language are liability issues. The general language that the verdict is contrary to the weight of the evidence has no such specific reference to the finding of no damage as to constitute a proper assignment of error so as to preserve that error, if any. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887; Rule 324 and 374, Texas Rules of Civil Procedure.

We further note that there is no point of error in appellant’s brief which relates to the jury’s finding of no damages. For this reason, too, the verdict in this respect is final, so that any error in the verdict on the liability issues would be harmless. Holzapfel v. Brueggman, Tex.Civ.App., 404 S.W.2d 916, err. ref., n.r.e.; Rule 374 and 434, T.R.C.P.

Appellant next points to the alleged error in ruling that plaintiff had failed to show that he was entitled to recover on his claim for maintenance and “in failing to grant the requested instruction on said issues.”

If there were any such requested instructions, or issues either, refused by the trial court, they were not included in the record before us. Since there is nothing in the record showing any request by the plaintiff for special issues as to his cause of action for maintenance, he was waived that right of recovery, if any he had. Neuhoff Bros. Packers, Inc. v. McCauley, Tex.Civ.App., 399 S.W.2d 929, err. ref., n.r.e.; Cross v. Everybodys, Tex.Civ.App., 357 S.W.2d 156, err. ref., n.r.e.; Rule 276, T.R.C.P.

We are further of the opinion that there was no evidence raising an issue for the jury as to the plaintiff’s claim for maintenance. The accident from which he sustained his alleged injury occurred on August 7, 1965. The defendant furnished him treatment in India and then transported him to Houston, Texas, by air. In Houston, he was treated by the U. S. Public Health Service as an out-patient until he was found fit for duty on November 4, 1965. He was paid his maintenance until that date. The plaintiff did not again see a doctor until October, 1966. The doctor he then saw told him he might get some relief from his complaint of pain if he would have treatment in the nature of physical therapy. The plaintiff did not take such therapy. In February, 1967, the plaintiff saw an orthopedic surgeon who gave him medication designed to relieve pain and discomfort. As to the character of that treatment, the orthopedic surgeon, who was called as a witness by the plaintiff, testified as follows:

“Question: This treatment you gave him was of a palliative nature, not curative?
“Answer: To provide relief of pain and soreness.
“Question: It was not to cure his condition?
“Answer: Not in the specific sense, no.”

One who is injured or becomes ill while serving as a seaman is entitled to maintenance and cure during that period of time in which he is suffering from a curable disability and obtaining curative treatment therefore. This is a right in addition to and apart from his right to recover damages for negligence. That right ceases, however, when the seaman has reached his maximum recovery or ceases to avail himself of curative treatment. A continuation of treatment does not continue the right to maintenance if that treatment is palliative, only, as distinguished from curative treatment. Farrel v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850; Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993; Rofer v. Head & Head, Inc., 5th Cir., 226 F.2d 927; Ryan v. U. S. Lines Co., 2d Cir., 303 F.2d 430; Stanovich v. Jurlin, 9th Cir., 227 F.2d 245; Desmond v. United States, 217 F.2d 948; Luckenbach Overseas Corp. v. Penland, Tex.Civ.App., 409 S.W.2d 933, writ ref., n.r.e. The evidence here showed conclusively that the plaintiff received no curative treatment after he was declared fit for duty by the U.S.P.H.S. on November 4, 1965. Under those circumstances, it was proper for the trial court to refuse to submit the plaintiff’s requested special issues, if any, relating to his claim for maintenance. He was paid his maintenance to that date and was entitled to none thereafter.

The judgment of the trial court is affirmed.

Affirmed.


author: KLINGEMAN, Justice.

text:
    Maria Herrera MOLINA, Appellant, v. Bill NEGLEY, d/b/a Paisano Homes, Appellee.
    No. 14666.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 21, 1968.
    Rehearing Denied March 27, 1968.
    Evans & Marshall, San Antonio, for appellant.
    Matthews, Nowlin, Macfarlane & Barrett, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is an appeal by Maria Herrera Molina from an order of dismissal rendered against her in the County Court at Law No. 1, of Bexar County, Texas.

Appellant originally brought suit in the Justice Court against appellee, Bill Negley, d/b/a Paisano Homes, where, after a jury trial, judgment was entered in accordance with the jury verdict that appellant take nothing against appellee. Such judgment was entered on February 16, 1967, and recites that appellant “excepted and gave notice of appeal to the County Court at Law #1, sitting in Bexar County, Texas.” On February 25, 1967, appellant timely filed her appeal bond and it was approved on the same date. The transcript in said cause was sent to the County Clerk of Bexar County, Texas, on March 1, 1967, and was accepted and filed in the County Court on that date and designated as Cause No. 69512. On July 20, 1967, appellant filed her first amended original petition in said cause, and on July 21, 1967, filed a motion for summary judgment. Appellee thereafter on August 11, 1967, filed a motion to dismiss, and said motion to dismiss and motion for summary judgment were set for hearing on August 18, 1967. On said date, the motion to dismiss was heard first, and after such hearing the County Court sustained appel-lee’s motion to dismiss and dismissed the appeal.

Appellant’s only point of error is that the trial court erred in granting appellee’s motion to dismiss. Appellee, by reply points, asserts that the County Court correctly dismissed the appeal because of the failure of appellant to give notice of the filing of the appeal bond, within five days, as required by the provisions of Rule 571, Texas Rules of Civil Procedure, and because of the lack of diligence of appellant in failing to act over a period in excess of five months after the failure to give notice of the filing of her appeal bond.

This appeal involves the construction of Rule 571, T.R.C.P., which reads as follows:

“The party appealing, his agent or attorney, shall within ten days from the date of judgment, or order overruling motion for new trial, file with the justice a bond, with two or more good and sufficient sureties, to be approved by the justice, in double the amount of the judgment, payable to the appellee, conditioned that appellant shall prosecute his appeal to effect, and shall pay off and satisfy the judgment which may be rendered against him on appeal; or if the appeal is by the plaintiff by reason of judgment denying in whole or in part his claim, he shall file with the justice a bond in the same ten-day period, payable to the appellee, with two or more good and sufficient sureties, to be approved by the justice, in double the amount of the costs incurred in the justice court and estimated costs in the county court, less such sums as may have been paid by the plaintiff on the costs, conditioned that he shall prosecute his appeal to effect and shall pay off and satisfy such costs if judgment for costs be rendered against him on appeal. When such bond has been filed with the justice, the appeal shall be held to be thereby perfected and all parties to said suit or to any suit so appealed shall make their appearance at the next term of court to which said case has been appealed. Within five (5) days following the filing of such appeal bond, the party appealing shall give notice as provided in Rule 21a or 21b of the filing of such bond to all parties to the suit who have not filed such bond. No judgment shall be taken by default against any party in the court to which the cause has been appealed without first showing that this rule has been complied with. The appeal shall not be dismissed for defects or irregularities in procedure, either of form or substance, without allowing appellant five (5) days after notice within which to correct or amend same. As amended by order of April 12, 1962, effective Sept. 1, 1962, and by order of July 20, 1966, effective Jan. 1, 1967.”

Appellee maintains that the giving of such notice within five days is of a mandatory and jurisdictional nature and that appellant lost her right to prosecute an appeal by failing to give notice within such five-day period. He asserts that the provision as to giving notice is couched in mandatory language, to-wit, “shall give notice.” It is to be noted that Rule 571 also provides that “When such bond has been filed with the justice, the appeal shall be held to be thereby perfected * * *.” (Emphasis added.) It is further noteworthy that Rule 72, T.R. C.P., pertaining to filing pleadings in district and county courts, provides that “Whenever any party files, or asks leave to file any pleading, plea, or motion of any character which is not * * * required to be served upon the adverse party, he shall at the same time either deliver or mail to the adverse party or his attorney of record a copy of such pleading, plea, or motion.” (Emphasis added.) Such filing under that rule has never been held to be mandatory, and it cannot be said that the use of the word “shall” is fully determinative of the question whether such provision is mandatory-

Rule 571 was amended in the year 1962 by adding the provision that an appealing party shall within five days following the filing of an appeal bond in the justice court give notice of the filing of such bond to all parties to the suit who have not filed such bond, and that no default judgment shall be taken on appeal until such notice has been given. It has been stated that the purpose of such amendment was to eliminate the possibility that the successful party in the justice court might suffer a default judgment in the county court because he was unaware that an appeal had been perfected. See general commentary to Rule 571, p. 671, Vol. 5, Vernon’s Ann.Rules Civ. Proc. If the rule as to the giving of five days notice is jurisdictional and mandatory, as contended by appellee, we cannot see the purpose of the legislature in adding the provision that no default judgment may be taken until such notice has been given. We think a reasonable construction of the entire rule is that the filing of an appeal bond within ten days perfects an appeal, as specifically provided for in Rules 571 and 573, T.R.C.P., and that the failure to give this notice only prevents a default judgment.

Appellee also contends that the appeal was properly dismissed because of the lack of diligence displayed by appellant in failing to further prosecute the appeal for a period of slightly over five months after filing such appeal bond. The order of dismissal does not state the grounds upon which the dismissal is predicated. However, the statement of facts contains the argument of counsel and the questions and comments of the court on the hearing of such motion. It would appear therefrom that the trial court’s order of dismissal is predicated upon the basis that the ^giving of notice within five days is jurisdictional. In any event, there is nothing in the record to show that appellee suffered any harm or that his rights were in any way prejudiced by the delay of approximately five months, or that this is an unusual or unreasonable period of time under the circumstances.

We do not believe that the giving of such notice within five days under Rule 571 is mandatory or jurisdictional and must be complied with in order to invoke ■ appellate jurisdiction, and the record does not establish such a lack of diligence as would justify a dismissal. The judgment of the County Court dismissing such appeal is reversed and the cause remanded for further proceedings not inconsistent with this opinion.


author: GRISSOM, Chief Justice.

text:
    Lisby Jann CARRELL, Appellant, v. HOPE COTTAGE-CHILDREN’S BUREAU, INC., Appellee.
    No. 4215.
    Court of Civil Appeals of Texas. Eastland.
    March 8, 1968.
    Rehearing Denied March 29, 1968.

      Thomas A. Melody, Harold J. Fleming, Dallas, for appellant.
    Muse, Currie & Kohen, R. Douglas Coffin, Dallas, for appellee.
   GRISSOM, Chief Justice.

Lisby Jann Carrell had, in a divorce suit, been awarded custody of her child, Karl Dixon Cotton. Thereafter, she and the child’s father duly executed instruments in writing placing the child with Hope Cottage-Children’s Bureau, Inc., a licensed child placing agency, for adoption. Five days thereafter Mrs. Carrell instituted this habeas corpus proceeding to regain possession of her son. She alleged that her consent was obtained by coercion, threats, and undue influence; that she had revoked her consent but Hope Cottage refused to relinquish custody of the child to her. Upon a trial to the court, judgment was rendered for Hope Cottage. Mrs. Carrell has appealed.

Appellant’s first point is that the court erred in rendering said judgment because her consent had been revoked before a judgment of adoption was rendered. She cites authorities which hold that consent may be revoked at any time before the adoption judgment is rendered. In Catholic Charities of Diocese of Galveston, Inc. v. Harper, 161 Tex. 21, 337 S.W.2d 111, our Supreme Court recognized the correctness of these decisions. However, it held that Vernon’s Ann.Civ.St. Article 46a had been so changed that they were not applicable to a licensed child placing agency, such as Hope Cottage-Children’s Bureau, Inc., and that where a child had been delivered into the custody of such an organization by its parents and they had executed a written consent for it to place the child for adoption that they could not withdraw their consent, even before a judgment of adoption had been rendered. The Supreme Court expressly held that where parents surrender their child to the custody of an agency licensed to place children for adoption and had given their consent for such agency to place the child for adoption, that consent is subject to revocation only by proof of fraud, misrepresentation, overreaching and the like. That holding is controlling in this case.

This being a trial to the court and there being no findings of fact or conclusions of law, we cannot presume that the court found that the consent of the mother was procured through fraud, misrepresentation, or the like, as she alleged. Our presumption must be to the contrary. Appellant’s first point is overruled.

Appellant’s second point is that the court erred in refusing to award her custody of her child because appellee did not allege nor prove a material change in condition. As stated, in a divorce case appellant was awarded custody of the child. That case and decision was solely between her and the child’s father. Appellee was not a party thereto. It was not required to allege or prove a change in condition since the award of custody to her in the divorce case.

Although appellant does not present a point to that effect, she argues in her brief that the judgment is wrong because the father was not a party to the suit. She brought this suit. The father had executed a written instrument giving custody of the child to appellee and authorizing it to place his child for adoption. He has not attempted to revoke his consent. He was not a necessary party.

Appellant’s points are overruled. The judgment is affirmed.


author: ESCO WALTER, Associate Justice.

text:
    Mary RAMEY, Appellant, v. James C. RAMEY, Appellee.
    No. 4223.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 29, 1968.
    Rehearing Denied March 29, 1968.
    Andress, Woodgate & Condos, William Andress, Jr., Dallas, for appellant.
    Collie & McSpedden, R. L. McSpedden, Dallas, for appellee.
   ESCO WALTER, Associate Justice.

Mary Ramey filed a motion to hold James C. Ramey in contempt for his failure to make child support payments. She alleged that he was in arrears $1,250.00. Mr. Ramey filed an answer asking for a reduction of support payments from $500.00 to $200.00 a month. The court reduced Mr. Ramey’s child suport to $400.00 per month and the plaintiff Mary Ramey has appealed.

She contends there is no evidence to support the court’s order reducing child support payments and that the court abused her discretion.

In non jury cases where no findings of fact or conclusions of law have been filed, the judgment implies all necessary fact findings in support of the judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

We have examined the record, in the light of the appropriate authorities, and find there was some evidence of probative value to support the judgment.

Our Supreme Court in Gully v. Gully, 111 Tex. 233, 231 S.W. 97 at page 100, 15 A.L.R. 564 said:

“In determining the duty of the husband to supply necessaries to his children, before or after divorce, it is to be borne in mind that his duty corresponds to his financial ability, having due regard to all his lawful obligations, which may include those assumed to another wife and to other children. * * * ”

In Madden v. Madden, Tex.Civ.App., 365 S.W.2d 427, (no writ history), the court said:

“The duty of a father to support his children, after divorce, corresponds to his financial ability. Each case must stand on its own facts, and trial courts of necessity have wide discretion in regard thereto. 21 Tex.Jur.2d 10, § 387; Scott v. Fort Worth National Bank, Tex.Civ.App., 170 S.W.2d 576; Brito v. Brito, Tex.Civ.App., 346 S.W.2d 133.”

In Hobdy v. Lewis, Tex.Civ.App., 409 S.W.2d 428, (no writ history), the court said:

“The appellate court is not authorized to change or alter findings of the trial court unless the court has grossly abused its discretion. We are not authorized to change the amount found by the trial court merely because we might think it too high or too low. We must indulge every reasonable presumption, consistent with the record, in favor of the judgment.”

Considering the record and the authorities, we conclude the court did not abuse her discretion.

The judgment is affirmed.


text:
    Warren DONALDSON et al., Appellants, v. LIBERTY SIGN COMPANY, Appellee.
    No. 16888.
    Court of Civil Appeals of Texas. Fort Worth.
    March 1, 1968.
    Rehearing Denied March 29, 1968.

      Garrett & Garrett, and Rufus S. Garrett, Jr., Fort Worth, for appellants.
    Malone, Seay, Gwinn & Crawford, and Durwood D. Crawford and Robert G. Mebus, Dallas, for appellee.
   OPINION

RENFRO, Justice.

This is the latest of a series of suits arising out of the financial woes of Admiral Motor Hotel of Texas, Inc., which have beset it from its beginning.

On July 15, 1963, Liberty Sign Company entered into a rental agreement with the Motel in which plaintiff agreed to construct a neon sign according to specifications contained in the rental agreement and would install the sign at Admiral’s place of business in Arlington, Texas. Defendant agreed to pay eighty-four consecutive monthly payments, beginning at $150 per month and which, on a graduated scale, would reach $650 per month in years six and seven of the lease.

Defendants Donaldson and Parker jointly and severally guaranteed prompt payment of the rent payments.

The sign was erected and put into use. Rent was paid until December 31, 1964. Thereafter no rental money was paid to plaintiff. Six months after Admiral ceased to make payments, plaintiff removed the sign and later sued the Motel and the guarantors for damages.

Based on a jury verdict, judgment was entered for plaintiff for $26,428.56 actual damages and $6,000 attorneys’ fees.

Only Donaldson and Parker, the guarantors, appealed. They will be referred to as appellants.

In twelve points of error appellants attack the jury findings as being without supporting evidence, or against the overwhelming preponderance of the evidence, wherein the jury found the design and structure of the sign were agreed upon before appellants executed the warranty; that plaintiff built and maintained the sign in compliance with the agreement; that a reasonable cost to plaintiff of maintaining the sign in the future would have been $8,718.44; that plaintiff was not guilty of negligence in removing the sign, and contend as a matter of law plaintiff failed to exercise reasonable care in minimizing its damages, that removal of the sign proximately caused plaintiff to suffer substantially more damages than it would have sustained if the sign had not been removed.

Although all points are well and ably briefed, we think appellants’ principal complaint and the main source of their dissatisfaction is concisely stated by them on page 5 of their brief: “This case presents the unusual contention by a Lessor of personal property that it is entitled, upon default of rental payments by the Lessee, to destroy the subject matter of the lease and recover its prospective profits. Appellants contend that such action by Lessor in increasing its damages by destruction of the valuable sign breached its duty to minimize its damages and its duty to minimize the damages to its guarantors. Although other important grounds for reversal of the case are presented * * * Appellants feel that question of breach of duty to minimize damages is the most important and far reaching aspect of this case. Should Appellee possess the contractual right to destroy intentionally the subject matter of its rental contract and recover its damages in full, equity should prevent the exercise of such an unconscionable right.”

The rental contract is partly printed, partly typed.

In the contract plaintiff agreed to hold Motel harmless from any liability (except from Motel’s negligence) due to operation and maintenance of the sign. Plaintiff was to carry insurance, secure and pay for all public permits, licenses, or inspection fees, repair any and all future damage to the sign so as to restore same to conform to the original specifications, and to maintain the sign in good working order.

The contract provided that in the event of default in payment, plaintiff might, at its option, terminate the agreement and remove the sign, and, in such event, the unpaid rent for the unexpired portion of the agreement should become immediately due and payable.

The evidence shows that because of the location of the motel it was of great importance that the sign be so placed and with such height it could be seen from the Dallas-Fort Worth Toll Road and from the Six Flags area. It was agreed the sign would be seventy feet high.

After exhaustive study of terrain, etc., sketches were made. The sign was constructed, erected and put in use. There was never any complaint the sign varied in any way from the drawing and the contract. Plaintiff spent more than $20,000 in building and financing the structure.

Plaintiff accepted full responsibility for complete electrical maintenance, replacement of lamps, cleaning, replacement of burned out sockets, wiring, repainting, and periodic inspection.

The Motel changed ownership twice, and at the time of trial a receiver was in charge of the Motel. After December 1, 1964, none of the owners, nor the receiver, would make any rental payments. Plaintiff’s maintenance cost, insurance costs, etc., were continuing, so, in the absence of rentals and after exhaustive efforts to collect, decision was made to take the sign down as the contract provided it might.

Operation cost to plaintiff had the lease run its full term was admittedly difficult to compute. The president of plaintiff testified fully, however, as to cost and arrived at the figure $8,608. Different figures could be reached by other methods of calculation, depending largely on how much overall operating expenses of the Company were allotted to the particular sign.

On a firm five year contract the rental value of the sign in place would be $450 to $500 per month. However, no one paid anything after December, 1964, and no owner nor the receiver would agree to pay anything on past, current or future monthly rentals.

The sign in question was custom designed and built for the peculiar needs of the Motel. No other motel could or would use it. Its very large size and its design made it unadaptable for use by other motels. It had no market value. Efforts were made to interest other businesses to purchase it. None were interested. It had only the value of scrap steel. Plaintiff tried, unsuccessfully, to sell it by parts.

In our opinion there is ample evidence that plaintiff used reasonable care to minimize its damages. Prince Line Ltd. v. Steger, 210 S.W. 223 (Tex.Civ.App., 1918, writ ref.); Stanley Manly Boys’ Clothes v. Hickey, 113 Tex. 482, 259 S.W. 160 (Tex.Com.App., 1924); Barron G. Collier, Inc., v. Peter Bros., 124 S.W.2d 904 (Tex.Civ.App., 1939, no writ hist.).

Plaintiff introduced evidence by its president, and other evidence, that all questions of design of the sign and the structure upon which it was to be placed were agreed upon before Donaldson and Parker signed the rental agreement.

The jury so found.

The jury found that $8,718.44 would have been the cost to plaintiff to have performed its part of the contract from the date the sign was removed to the end of the lease term had the contract been fully completed.

Also, the jury found the reasonable cash salvage value of the sign after its removal to be $120. There was evidence of probative force to support the answers to the above issues, as well as all the issues answered by the jury, and the findings are not against the great preponderance of the evidence.

Considering the jury verdict and undisputed evidence, the court calculated the damages as follows:

“Total rentals due under lease $37,200.00
“Less payments 2,700.00
“Less Lessor’s future expense 8,718.44
“Plus cost of sign removal 767.00
“Less cash salvage value of sign 120.00
$26,428.56.”

Thereupon judgment was entered for plaintiff for the sum of $26,428.56, plus $6,000 attorneys’ fees.

Some of plaintiff’s elements of prospective damages were difficult to prove with mathematical certainty. Mathematical exactness', however, is not required. Dixie Glass Co. v. Pollak, 341 S.W.2d 530, 91 A.L.R.2d 662 (Tex.Civ.App., 1960, writ ref., n. r. e.).

The Supreme Court held in City of La Grange v. Pieratt, 142 Tex. 23, 175 S.W.2d 243 (1943): “Profits which would have been earned by an established business, absent any interference therewith, are in their very nature more or less conjectural, uncertain, and speculative, but this does not deprive the party injured by such interference of his right to recover. In other words, the difficulties which may lie in the way of making proof will not defeat a recovery. It is not necessary that damages in the form of loss of profits should be susceptible of exact calculation. All that is required is that they be ascertained with a reasonable degree of certainty. 13 Tex. Jur. p. 207, § 108, and authorities there cited.”

Plaintiff’s attorney testified fully regarding the amount and kind of work, including work hours, expended in preparation and trial of the case. The parties agreed for the court to' fix the amount of attorney’s fees. The court awarded plaintiff $6,000. No complaint is made of this amount, except that appellants want that amount reduced in the event this court reduces the amount of the judgment on damages. We do not reduce the amount of the judgment.

All points of error have been considered separately and collectively and each and all are overruled.

Judgment affirmed.