text:
    Nell Jordan DUNLAP et vir, Appellants, v. EXECUTIVE INN MOTOR HOTEL CORPORATION, Appellee.
    No. 16730.
    Court of Civil Appeals of Texas. Dallas.
    May 27, 1966.
    Rehearing Denied June 24, 1966.

      Andress, Woodgate, Richards & Condos, Dallas, for appellants.
    Gardere, Porter & DeHay and Gordon H. Rowe, Jr., Dallas, for appellee.
   BATEMAN, Justice.

This is a slip-and-fall case involving injuries sustained by the appellant Nell Jordan Dunlap, a paying guest at appellee’s motor hotel in Dallas, Texas. She and her husband appeal from a summary judgment rendered for appellee.

Facts

In stating the facts of the case, since this appeal is from a summary judgment, we disregard all conflicts in the evidence and, viewing the evidence in the light most favorable to appellants, we accept as true all evidence tending to support their position. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., Tex.Sup.1965, 391 S.W.2d 41, 47.

The appellant Nell Jordan Dunlap had occupied a room on the second floor of appellee’s motor hotel for about two days. When she registered she was shown to her room by use of a staircase in the interior of the building, completely protected from the weather. She used this protected staircase several times during her sojourn, but on the morning of her departure the door leading to this stairway was locked, and the only way known to her by which she could descend to the ground floor was another staircase on the outside of the building partially exposed to the weather. A rainstorm was in progress accompanied by a high wind which blew the rain onto this staircase and causing the steps thereof, which were made of solid cement or concrete, to become slick. She descended this staircase without mishap, went to the office, paid her bill and endeavored to arrange for transportation to the airport, from which she was due to depart that morning by airplane. She again ascended the outside staircase, was in her room for several minutes and again attempted to descend. The wind was driving the rain into her face and blinding her as she descended. She slipped and fell on her back and was injured.

When she made the first descent to pay her bill and try to arrange for transportation, she told “the girl at the desk” that she had had to use the outside stairway because the door to the interior staircase was locked. She did not ask her to send someone to unlock the door. She admitted that she knew the steps were wet when she attempted to use them the last time. She discussed with a man who was there the fact that they would have to be careful in descending the stairs because of their apparent slickness. Appellee made no attempt, either in its pleadings or in the evidence, to explain why the interior staircase was locked; neither did it suggest by pleading or evidence any safer means by which Mrs. Dunlap could have reached the ground level from her room than the one she used.

Opinion

Thus is presented the rather narrow question of whether a paying hotel guest is precluded, as a matter of law, from recovering damages for injuries sustained in falling while descending a staircase partially exposed to the weather and made slippery, dangerous or unsafe by rain, when she admittedly knew the condition of the stairway when she attempted to use it.

The burden was on appellee to demonstrate the lack of any genuine issue of material fact, and in determining whether it has done so all doubts must be resolved against it. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274.

Appellee relies heavily on the landmark cases of Robert E. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391; Banks v. C. R. Anthony Co., Tex.Civ.App., 293 S.W.2d 858, wr. ref. n.r.e.; Houston Nat’l Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Halepeska v. Callihan Interests, Inc., Tex.Sup.1963, 371 S.W.2d 368; and also on the more recent cases of Wesson v. Gillespie, Tex.Sup.1964, 382 S.W.2d 921; Cline v. Texas Hotel, Tex.Civ.App., 392 S.W.2d 594, no wr. hist.; and Eagle Lincoln-Mercury, Inc. v. Hazlewood, Tex.Civ.App., 391 S.W.2d 180, wr. ref. n.r.e. All of these cases involved the liability of an occupier of land or premises to business invitees, and set forth rules which have been thus summarized by Justice Greenhill in Wesson v. Gillespie, Tex.Sup.1964, 382 S.W.2d 921, 925:

"The holdings of this Court are that ordinarily a plaintiff-invitee cannot recover if he knows of the condition, realizes the danger, and appreciates the danger, or is charged in law with such knowledge, realization, and appreciation.”

We do not think, however, that these rules may be indiscriminately applied to relationships other than that of the occupier of land or premises and his invitees. In fact, Justice Greenhill, in Halepeska v. Callihan Interests, Inc., supra, points out that his discussion does not deal with the duties of a landlord to his tenants and that the “no duty” concept is not applicable in a master-servant relationship, citing Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238. We think it should be added that the “no duty” and volenti rules are not always applicable in the relationship of innkeeper and paying guests. “An innkeeper has greater responsibilities than a person who conducts a strictly private enterprise, * * * ” 31 Tex.Jur.2d, Innkeepers, § 1, p. 381.

“To his guests, who are invitees; the innkeeper owes a duty to furnish a safe place, and to maintain it in proper condition at all times. He must provide adequate fire escapes, keep his hallways well lighted, and take special precautions to see that any dangerous aperture, such as an elevator shaft, is properly guarded.” 24-A Tex.Jur., INNKEEPERS, § 6, pp. 430-432.
“Although contributory negligence or assumption of risk may defeat a recovery, it cannot be said as a matter of law that a guest is negligent because he uses an unlighted hallway, or because, with full knowledge of the arrangement of doors and rooms, he steps into an unguarded elevator shaft. Rather, a guest has a right to assume that the hotel keeper has performed his duty of keeping the stairways and other areas and appliances in a reasonably safe condition.” 31 Tex.Jur.2d, INNKEEPERS, § 4, pp. 388-389.

A guest has a right to presume that hotel premises are kept in a safe condition for his use and is under no obligation to search out defects therein. Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357.

Many of the cases relied on by ap-pellee speak of the choice a business invitee has in entering upon premises where there is an open and obvious condition of danger. This is the “intelligent choice” spoken of by the Supreme Court in Robert E. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391, 395; and Harvey v. Seale, Tex.Sup.1962, 362 S.W.2d 310, 312. As said in the latter case, “ * * * he has an opportunity to exercise an intelligent choice as to whether the advantage to be gained by his entry is sufficient to justify his incurring the risk” of doing so.

In Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357, the facts were quite similar to those in the case at hand. Blanks had occupied a room on the ninth floor for three weeks. The elevator service extended only as high as the eighth floor, and the only means he had of reaching the ninth floor was a stairway from the eighth floor. He had used this stairway, but only in the daytime, while in the city for some fifty per cent of his three-weeks’ tenancy, and thus acquired some degree of familiarity with it. The accident occurred at night when he slipped and fell on the stairway. He alleged that the stairway was insufficiently lighted, that the handrail was too low, that the steps were hard surfaced, slick and smooth, not covered with carpets or matting or corrugation. The Hotel denied these allegations and pled specially that the arrangement was open and obvious to Blanks, who had made use of it on many occasions and who, as a matter of law, assumed the risks or voluntarily submitted himself to them. The jury found that the Hotel was guilty of several of the acts of negligence alleged and that they were proximate causes of Blanks’ injuries. The jury also found that Blanks was not guilty of any contributory negligence. The Supreme Court held that the testimony was such that reasonable minds could differ as to whether Blanks was or was not guilty of contributory negligence and did not compel the conclusion, as a matter of law, that he was contributorily negligent. Touching on the question of whether the plaintiff had an opportunity to exercise an “intelligent choice,” the Supreme Court said:

“Plaintiff had no way of reaching the floor where his room was, or of descending from it, other than by using the stairway between the eighth and ninth floors. While his situation in this regard was voluntary in the sense he willingly became a tenant on the ninth floor, it was involuntary in the sense that it was the only way provided by the Hotel whereby he, as such tenant, could use his room. He was aware, as indicated by his movements, that his predicament had become hazardous but such awareness is not conclusive that he was negligent as a matter of law in making use of the passageway.”

We think that language is applicable to the situation now before us. Like Mr. Blanks, Mrs. Dunlap had only one staircase provided for her use in descending from the floor on which her room was located. Hers was not the choice of deciding whether the advantage of going upon the landowner’s premises was sufficient to justify incurring the risks of doing so. She was already on those premises. Her situation was almost exactly that of “A” in Illustration No. 7, in Restatement, Torts, Vol. IV, § 893, p. 498, as follows:

“7. A, a business visitor in B’s building, is prevented from leaving by the usual stairway owing to the negligent locking of the door by B’s caretaker. A leaves the building by an outside, snow-covered fire escape, realizing that there is substantial danger of harm but doing so to avoid the necessity of remaining in the building during the night. If A is not unreasonable in making this choice and is careful in descending, he is entitled to recover damages from B for a broken leg caused by slipping on the snow.”

See also Morten Inv. Co. v. Jordan, Tex.Civ.App., 57 S.W.2d 887, reversed on other grounds 127 Tex. 37, 90 S.W.2d 241, and Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585, 587, holding that “ * * * the court can withdraw the question of contributory negligence of the plaintiff from the jury and determine it as a question of law only when from the facts in evidence but one rational inference can be drawn.”

Contributory negligence is a question of fact for the jury when the evidence shows that the plaintiff, with knowledge or chargeable with knowledge of the danger, exercised some care. Henwood v. Gilliam, Tex.Civ.App., 207 S.W.2d 904, wr. ref.

In Gulf, C. & S. F. Ry. Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227, the plaintiff was injured while riding his horse over a defective bridge. The plaintiff knew of the dangerous condition of the bridge, but it was on the only public road from his home to the place where he desired to go. The defendant contended that the plaintiff was guilty of contributory negligence as a matter of law in attempting to ride across a bridge that he admittedly knew was defective and dangerous. In overruling this contention the Supreme Court, speaking through Justice Gaines, held that in order to hold an act negligent per se it must have been done contrary to a statutory duty or “so opposed to the dictates of common prudence that we can say, without hesitation or doubt, that no careful person would have committed it”; that this could not be said of the plaintiff’s conduct in this case; that it was well settled that “[I]f a highway or street be obstructed or out of repair, and this be known to a passenger, he cannot be held faultless if he threw himself upon the obstruction or encountered the danger, — provided another way of reaching his destination be open to him, which is safe and not much longer than that he prefers to travel.” Justice Gaines also said that “a prudent person may choose to pass along an unsafe highway, rather than abandon his trip, although he would have avoided the route if another had been open to him.” and that on the other hand, “if the passenger or traveler have no other convenient way, the mere fact that he takes the chances of a known danger, and attempts a passage, is not controlling proof of his negligence. Whether the act be negligent or not, depends upon the circumstances attending it; and the question is for the determination of the jury.”

We consider the Blanks and Gas camp cases as controlling in this case. There was evidence that Mrs. Dunlap exercised some care in descending the steps and it was for the jury to determine whether that care could be equated with the degree of care which an ordinarily prudent person would have exercised under the same or similar circumstances. Appellee failed to carry the burden of showing the absence of any genuine issue of material fact, and its summary judgment, therefore, cannot stand.

The judgment appealed from is reversed and remanded for trial.

Reversed and remanded.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    AMERICAN GUARDIAN INSURANCE COMPANY, Appellant, v. Lela B. RUTLEDGE, a Widow, Appellee.
    No. 199.
    Court of Civil Appeals of Texas. Tyler.
    May 19, 1966.
    Rehearing Denied June 16, 1966.

      John F. Maxfield, Stigall & Maxfield, Dallas, for appellant.
    Coy Johnson, Smith & Johnson, Sulphur Springs, for appellee.
   DUNAGAN, Chief Justice.

This suit was filed on the 10th day of November, 1964, in the District Court for the 62nd Judicial District of Hopkins County, Texas, by Lela B. Rutledge, appellee, against appellant, American Guardian Insurance Company, to recover a sum alleged to be due under a hospital and surgical expense insurance contract between appel-lee and appellant.

In the trial court, Lela B. Rutledge was plaintiff and American Guardian Insurance Company the defendant. Hereafter, the parties will be referred to as they were designated in the trial court.

After the filing of plaintiff’s original petition, defendant filed its original answer which contained a general denial and set up in Paragraph 2 thereof the following affirmative defenses: that plaintiff failed to give written notice to the defendant within' twenty days after the occurrence or commencement of the loss on which claim was based as covered by the policy or as soon thereafter as was reasonably possible; that plaintiff failed to furnish insurer with affirmative proof of loss within ninety days after the date of loss for which claim was made, or as soon as reasonably possible as required by the terms of the policy.

The plaintiff in her second supplemental petition specially denied the allegations in Paragraph 2 of defendant’s original answer and pled that plaintiff’s failure to give notice of claim was caused by her not being physically able to give written notice of claim and that notice was given as soon as it was reasonably possible. Plaintiff in said supplemental petition further pled that she was not' physically able to give a written proof of loss to the defendant, but that said proof of loss was timely given to the defendant by the Hopkins County Memorial Hospital and by Mrs. Sybil Jones, acting for the plaintiff.

The plaintiff, Lela B. Rutledge, a widow, is a resident of Sulphur Springs, Hopkins County, Texas, who is in her late seventies. She does not have any relatives in Sulphur Springs and only has distant relatives who live in Dallas, Texas. On December 1, 1961, American Empire Life Insurance Company issued to Mrs. Rutledge a hospitalization policy which was assumed by American Guardian Insurance Company in January, 1963. Mrs. Rutledge paid her premiums on the policy and it was in full force and effect on the date she entered the Hopkins County Memorial Hospital, December 13, 1963, and it was so stipulated by the parties. She was hospitalized for a fractured hip which was surgically repaired with a 3¡4 x inch neufeld nail being driven into place. She remained in the hospital until April 25, 1964, a period of 134 days, during which time in addition to receiving treatment for the broken hip, she was treated for poor nutritional status, wide-spread arthritis, general arteriosclerosis, pneumonia, and a series of light strokes, with recurrent urinary tract infections. A friend, Sybil Fay Jones, who visited her during the period she was in the hospital, testified that Mrs. Rutledge’s condition was such in the hospital that she was unable to do more than write her name. Plaintiff’s condition was such that she received 129 injections of narcotics in addition to $774.50 worth of drugs while confined at the hospital.

When released from the hospital, she was carried to a nursing home where she remained almost eight months before being transferred to her home in Sulphur Springs. At the time of trial, she was still unable to get out of the house without assistance and her neighbors took care of her and prepared her food.

The matter was submitted to the court without benefit of a jury, and judgment was rendered for plaintiff on "the 1st day of July, 1965, for $522.70. Defendant timely gave notice of appeal to such judgment, and same is now before this court for its review.

The defendant bases its appeal solely on the ground that it did not timely receive the notice of claim within twenty days after the commencement of the loss and did not timely receive the proof of loss within ninety days after the loss.

Mrs. Sybil Jones testified as follows concerning the preparation of plaintiff’s claim for loss:

« * * *
“Q Do you of your own personal knowledge — and we don’t want to get into hearsay— but of your own personal knowledge, do you know whether there was a claim filed or prepared to be filed for Mrs. Rutledge’s stay in the hospital?
“A Yes.
* * *
“Q Do you know or were you there when a claim was prepared for Mrs. Rutledge ?
“A. Yes.
“Q Where was it filled out?
“A In the office at Memorial Hospital.
“Q Dd you help with preparing this claim and answering questions?
“A As best I could.
« * * *
“Q Do you know about when this was?
“A It was the next day or two that she left the hospital.
“Q And would that be the latter part of April ?
“A It sure would.
<< ⅜ * ⅜
“Q Mrs. Jones, I believe you stated or did you, I will ask you whether you took care of the business as she told you specifically what to do, is that correct?
“A That’s right.”

Mrs. Elizabeth Mitchell, who was an employee of Hopkins County Memorial Hospital whose title was insurance clerk, testified:

* * *
“Q Now Mrs. Mitchell, do you remember a patient that you had out there by the name of Mrs. Lela B. Rutledge?
“A Yes sir.
“Q Is it part of your job to fill our insurance claims?
“A Yes sir it is.
“Q Do you know from your own personal knowledge whether you filled out an insurance claim on a hospitalization policy of Mrs. Rutledge?
“A Yes sir.
“Q Could you tell the court about when you filled this out and mailed it in or if you mailed it in?
“A Oh about the latter part of April I believe it was.
“Q Do you know was it sent to the company or mailed to the company?
“A Yes sir.”

It is undisputed that plaintiff was released from the hospital on April 25, 1964.

The undisputed evidence shows that the defendant received written notice of plaintiff’s claim and proof of loss on the 29th day of May, 1964, after which defendant wrote plaintiff and said hospital on the 23rd day of June, 1964, declining to pay the claim because of the late notice.

The policy provisions and conditions in issue are as follows:

“NOTICE OF CLAIM: Written notice of claim must be given to the Company within twenty days after the occurrence or commencement of any loss covered by the policy, or as soon thereafter as is reasonably possible. Notice given by or on behalf of the Insured or the beneficiary to the executive office of the Company at Austin, Texas, or to any authorized agent of the Company, with information sufficient to identify the insured, shall be deemed notice to the Company.
“PROOF OF LOSS: Written proof of loss must be furnished to the Company at its said office in case of claims for loss within ninety days after the date of such loss. Failure to furnish such proof w'thin the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible and in no event, except in the absence of legal capacity, later than one year from the time proof is otherwise required.”

The above quoted provisions found in said policy of insurance are required by Article 3.70-3(A) (5) and (7), Insurance Code of 1951, Vernon’s Annotated Civil Statutes.

Mrs. Rutledge having been released from the hospital on April 25, 1964, and the undisputed proof having shown that the defendant received the proof of loss on May 29, 1964, therefore the proof of loss was received by appellant well within the ninety-day period since it was received 34 days after plaintiff was released from the hospital.

Article 3.70-3 (A) (7), “Insurance Code” V.A.C.S., Vol. 14, reads as follows:

“Proofs of Loss: Written proof of loss must be furnished to the insurer at its said office in case of claim for loss * * * within ninety days after the termination of the period for which the insurer is liable * * *. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible; * * * ” (Emphasis ours).

We think the proof of loss was timely filed. Moreover, under the facts and circumstances the proof of loss was filed as soon as reasonably possible. In the case of Mercury Life Insurance Company v. Parker, 354 S.W.2d 677 (Tex.Civ.App.) 1962, n.w.h., the court said:

“Plaintiff was released from the Omaha hospital on June 9, 1956 and, under the terms of the policy, she had ninety days thereafter within which to file proof of loss. * * * ”

The notice for which appellant is relying is the provision for notice of claim contained in the policy requiring written notice to be given within twenty days after the occurrence or commencement of any loss covered by the policy or as soon thereafter as is reasonably possible.

In Mercury Life Insurance Company v. Parker, supra, we also find this statement by the court:

“ * * * If it is not affirmatively shown that the notice of the illness was furnished defendant within ten days after the commencement of disability from such sickness, it is, we believe, conclusively shown that such notice was furnished while plaintiff was still in the hospital and while she was still suffering from the disabilities of such illness, from which facts it may be concluded that it was not reasonably possible for plaintiff to furnish notice to defendant of her sickness within ten days after the commencement of disability therefrom, and that such notice was given as soon as was reasonably possible in accordance with the terms of the policy.”

Reasonable time within which notice of the occurrence or commencement of any loss covered by the policy must be given by insured to insurer depends on individual facts and circumstances of each particular case. International Underwriters Insurance Company of America v. Sherwood. 228 F.Supp. 465 (D.C.1964); 18 A.L.R.2d 466; Simmons v. Western Indemnity Co., 210 S.W. 713 (Tex.Civ.App.) 1919, n.w.h.; Meers v. Frick-Reid Supply Corporation, 127 S.W.2d 493 (Tex.Civ.App.) 1939, writ dism., judg. corr.; Ridglea Interests, Inc. v. General Lumber Company, 343 S.W.2d 490 (Tex.Civ.App.) 1961, writ ref., n.r.e.; Clevenger v. Potlatch Forests Inc., 85 Idaho 193, 377 P.2d 794, 799, 1963.

That which constitutes a reasonable time is a question of fact or, at least, a mixed question of law and fact and depends upon the circumstances surrounding the case which the principle is sought to be applied. What would be a reasonable time in one case might be wholly inadequate to shut off the rights of parties in a different case or under different circumstances. Meers v. Frick-Reid Supply Corporation, supra; Houston & T.C.R. Co. v. Roberts, 101 Tex. 418, 108 S.W. 808; Armstrong v. Federal Supply Co., 17 S.W.2d 170 (Tex.Civ.App.) 1929, n.w.h.; Simmons v. Western Indemnity Co., supra; Allstate Insurance Company v. Darter, 361 S.W.2d 254 (Tex.Civ.App.) 1962, n.w.h.; International Underwriters Insurance Company of America v. Sherwood, supra.

The court stated in Texas Life Ins. Co. v. Sharp, 146 S.W.2d 447 (Tex.Civ.App.) 1941, n.w.h., that:

“ * * * In this connection we do not wish to be understood as holding that the impairment of the mind is always essential to excuse the failure to submit notice and proof of disability. Violent physical suffering, suffering so intense as to free the insured of negligence in failing to furnish the proof, might in some instances relieve the insured of such duty for a time. Nor is the rule excusing the insured limited always to physical or mental suffering and disability. The delay or failure to furnish the proof might be due to providential circumstances beyond human control and sufficient in themselves to excuse the delay. * * * ”

See also Texas Life Ins. Co. v. Sharp, 159 S.W.2d 951 (Tex.Civ.App.) 1942, writ ref., want of merit.

In National Surety Corporation v. Wells (5th Cir.), 287 F.2d 102, it was stated that immediate notice “is treated as requiring transmission within a reasonable time considering all the circumstances. * * * A significant circumstance * * * may be the age and capacity for understanding of the assured. * * * ” See also Whitehead v. National Casualty Company, 273 S.W.2d 678 (Tex.Civ.App.) 1954, writ ref.

Findings of fact and conclusions of law were not filed or requested. Therefore, in the absence of any findings of fact, as in this case, it must be presumed upon appeal that the trial court resolved all issuable facts in such manner as to support the judgment appealed from, and if there is proper evidence in the record to sustain the judgment on any theory raised by the pleadings, it should not be disturbed by an appellate court. Williams v. Bankers Fire and Marine Insurance Co., 277 S.W.2d 742 (Tex.Civ.App.) 1955, writ dism.; Nortex Oil & Gas Corporation v. Clark, 369 S.W.2d 671 (Tex.Civ.App.) 1963, n.w.h.; Bishop v. Bishop, 359 S.W.2d 869, (S.Ct.) 1962; Drexler v. Architectural & Commercial Sales, 375 S.W.2d 550 (Tex.Civ.App.) 1964, n.w.h.

The evidence clearly shows that written proof of loss was given to defendant during the period of time required by the policy, as it was shown to have been given within ninety days after the termination of the period for which the insurer was liable. Even though plaintiff did not file written notice of claim with defendant within twenty days after the occurrence or commencement of her loss, from the record before us, considering all the facts and circumstances, the age, physical condition and the physical suffering of plaintiff during her lengthy confinement to the hospital and thereafter while confined to a nursing home, we cannot say there was no evidence in this case showing or tending to show that appellant did not file notice of claim as soon thereafter as was reasonably possible or that the circumstances and evidence were insufficient to support an implied finding of fact to that effect.

Judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

Appellant in its motion for rehearing states:

“In evaluating the situation whereby the matter in issue in this cause arose we must keep in mind certain important facts:
“(1) That from the 13th day of December, 1963, the claim in issue was the property and responsibility of Hopkins County Memorial Hospital and Doctor Steve Longino because on such date Mrs. Lela B. Rutledge through her agent, Mrs. Sybil Jones signed her portion of the claim form and assigned the claim to the Hospital and Doctor. Because of this fact the condition of Mrs. Rutledge through the period in issue is of no importance.”

The assignment of benefits to the Hopkins County Memorial Hospital and Dr. Steve Longino shows the signature of Lela B. Rutledge by Sybil Jones, and bears the date of 12/13/64. It is apparent that the assignment to the hospital and Dr. Longino was executed several months subsequent to May 29, 1964, the date the appellants admits first receiving Mrs. Rutledge’s claim.

Appellant further says “the evidence that was introduced showed that the claim form was completed by the insurance agent even before the insured had surgery (S.F. Pg. 10).” The statement of Dr. Bernard E. McConnell (D. Exhibit 3) shows the surgery to have been performed December 16, 1963.

We have re-examined page 10 of the Statement of Facts and find that Mrs. Jones testified that the signatures to the assignment of benefits to the Hopkins County Memorial Hospital and Dr. Steve Longino and the claim form are her signatures and that she signed for Mrs. Rutledge, all of which appears as a part of defendant’s Exhibit 1. The claim form also shows the signature of Lela B. Rutledge by Sybil Jones, but does not show the date the claim was executed. However, as shown in our original opinion, Mrs. Jones testified that it was filled out the next day or two after Mrs. Rutledge left the hospital which was on April 25, 1964.

Remaining convinced of the correctness of our disposition of this case in our original opinion, appellant’s motion for rehearing is overruled.


author: NYE, Justice.

text:
    G. C. MURPHY COMPANY et al., Appellants, v. Sam LACK, Appellee.
    No. 208.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 9, 1966.
    Rehearing Denied June 29, 1966.

      Hill, King & McKeithan, by Neal King, Mission, for appellants.
    Carter, Stiernberg, Skaggs & Koppel, by Rollins M. Koppel, Harlingen, for appellee.
   OPINION

NYE, Justice.

This was a suit brought by the landlord (appellee) to forfeit a lease on a store building for the alleged violation by the tenants (appellants) of a certain covenant in the lease. The landlord, hereafter referred to as plaintiff, non-suited his plea for money damages and the trial court granted plaintiff’s motion for summary judgment, forfeiting the lease and awarding plaintiff possession. (The trial court postponed actual possession pending appeal). From this summary judgment the tenants, hereafter called defendants, perfected their appeal.

The lease in question was for a term beginning April 1, 1959, and ending March 31, 1969. It provided for a rental equal to $14,400.00 per year or three percent (3%) of the gross sales, whichever was more. The defendants had paid the rental based on the three percent (3%) of gross sales which amounted to at least $4,500.00 more than the agreed minimum rental since 1961. One of the defendants, Terry Farris Stores, Inc., became a wholly owned subsidiary of the other defendant G. C. Murphy Company in 1961 and thereafter the plaintiff dealt with Murphy as if it were the lessee. The plaintiff’s ground for forfeiture of the lease is based upon a certain covenant which specified that the defendants should spend at least three percent (3%) per an-num of its gross sales for “advertising purposes”. This covenant reads as follows:

“V.
“Lessee agrees that it will spend a minimum of three percent (3%) of its gross sales annually for advertising purposes in order to promote the business of Lessee which is to be operated in the leased premises. In this connection, Lessor specifically gives to Lessee the right and privilege of placing and erecting and painting signs on the exterior of the leased building for the purposes of advertising” (emphasis supplied)

The forfeiture provision is contained in Paragraph XII of the lease, and is very similar to the one set forth in Rohrt v. Kelley Manufacturing Co., 162 Tex. 534, 349 S.W.2d 95 (Supreme Court 1961). The relevant portion of it reads as follows:

“In the event of default in any of the covenants herein, Lessor may enforce the performance of the lease in any method provided by law or this lease may be forfeited at Lessor’s discretion if such default continues for a period of thirty (30) days after Lessor notifies Lessee of such default and his intention to declare the lease forfeited, such notice to be sent by the Lessor in writing to the demised premises, and thereupon (unless the Lessee shall have completely removed or cured said default) this lease shall cease and come to an end as if that were the day originally fixed herein for the expiration of the term hereof, and Lessor’s agents or attorneys shall have the right (of re-entry) * * (emphasis supplied)

On March 6, 1964, plaintiff wrote defendants claiming violation of the advertising covenant for the years 1961, 1962 and 1963 and declaring the lease forfeited on March 31, 1964, twenty four days after the notice. Defendants denied that there was any violation of this covenant, whereupon, plaintiff brought this suit on March 26, 1964, claiming violations for these three preceding years. Plaintiff has dropped his claim for the 1961 violation but still contends that the defendants violated the advertising covenant for the years 1962 and 1963. For the purpose of the computation of rental based on sales the year begins February 1 and ends January 31.

Defendants-Appellants’ first and second points complain that the trial court erred in granting the summary judgment because amounts spent for “advertising purposes” as used in the lease are not limited to amounts paid for radio, television, newspaper and circulars, but also include all advertising expenditures and that these expenditures exceeded the stipulated amount, or alternatively there is a genuine fact issue with respect to this question. Defendants concede that they spent less than three percent (3%) of gross sales for the four things which plaintiff agreed to be advertising (i. e., radio, television, newspaper, and circulars), but contend that they spent more than three percent (3%) for “advertising purposes” if that term be taken to include displays, signs in the window and on the building, posters, preparation of local ads, and' an allocated share of the expense of the sales promotion department of defendant Murphy. Defendants say that the problem presented to this court is whether “advertising purposes” as used in the lease can, as a matter of law, be said to exclude sums for these additional expenses (i. e. sign painters, window trimmers, wages for preparing advertising copy, sums spent by defendant for advertising and sales promotion campaigns, printing advertising signs, banners and posters). Plaintiff, on the other hand, contends that there is no ambiguity in the related provisions of the present lease contract (i. e. “advertising purposes”); that since the lease contract is plain, clear and unambiguous, it is incumbent upon the court, as a matter of law, to determine what the parties meant in the lease by assigning to these words (“advertising purposes”) their ordinary popular and common accepted meaning: That is, that such expenditures included only payments for radio, television, newspapers and printed circulars.

This being a summary judgment case we must follow those certain rules laid down by the Supreme Court.

“ * * * Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat’l Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). * * * All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957); Smith v. Bolin, supra; Gulbenkian v. Penn, supra. Evidence which favors the mov-ant’s position is not considered unless it is uncontradicted. * * * ”

See opinion by Justice Greenhill in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Supreme Court 1965). All of the material evidence must be considered by this Court along with the pleadings, depositions, admissions and affidavits on file, to determine whether the movant is entitled to a judgment as a matter of law. It is therefore the duty of this court to accept as true all of the evidence of the defendants who opposed the motion for summary judgment which tend to support their contentions, and give the defendants the benefit of every reasonable inference which properly can be drawn in favor of their position. 4 McDonald Texas Civil Practice, Sec. 17.26, p. 1394 and Gulbenkian v. Penn, supra.

The contract of lease does not restrict “advertising purposes” to certain well defined expenditures. Tó the contrary it refers to the promotion of the business of lessee by advertising purposes and in this connection broadens the term of specific advertising further, to include “erecting and painting signs * * *.” Had plaintiff limited the term advertising to “radio, television, newspaper and printed circulars”, then expenditures for such purposes could have been readily ascertainable. The competitive nature of business, requires ingenuity and planning in announcing and making known the promotion of products to be sold. Therefore, in attempting to define the term advertising, it would have to be as broad as its ultimate purpose. This is borne out in cases cited to this court in attempting to define this term. In the case of State v. Guardian Foundation of Texas, Inc., 112 S.W.2d 806, Tex.Civ.App.1938, the court said:

“Modern advertising is conducted under a wide variety of methods, and its limitations are not readily nor precisely definable.”

On a subsequent appeal of the same case in Tex.Civ.App., 128 S.W.2d 880, the court quoted with approval from the standard text used in the business administration course at the University of Texas:

“According to one point of view, the purpose of advertising is to make a product known, but not to sell it. According to the second point of view, the purpose of advertising is not only to make the product known but also to sell, or help sell it. * * * ”

No specific definition of the term advertising has been accepted, even in advertising circles. The word advertising is used to explain a great many variations in the public promotion of business. See also Rust v. Missouri Dental Board, 155 S.W.2d 80 at 83 (Missouri Supreme Court, 1941); Edward v. Lubbock County, 33 S.W.2d 482, Tex.Civ.App. 1930. In any respect if there is any doubt as to the meaning of the language in a lease then the uncertainty would be resolved against the lessor to prevent a forfeiture. Hill v. Still, 19 Texas 76; 25 Tex.Jur.2d 504, Forfeitures, Sec. 4; Dedear v. Wilson, 220 S.W.2d 534, Tex.Civ.App.1949, wr. ref. See also, 35 Tex.Jur.2d 504, Landlord and Tenant, Sec. 20, and cases there cited.

The evidence showed that defendant Murphy Company had a special department in its home office which was in charge of planning advertising campaigns. They planned advertising promotions and made promotional materials for stores belonging to Murphy and its affiliates, including the defendants’ store. Murphy’s advertising department made advertising materials, including suggested layouts, suggested radio and T.V. messages, newspaper cuts, circulars, banners, streamers and the like. The department employed artists, painters and advertising specialists. These materials and services were used by the defendants in their store. For instance, this Home Office Department spent $518,-138.00 in 1962. In an undisputed affidavit by the man in charge of this department, he stated that he was an advertising man and that all this work was for “advertising”. A certain small proportion (½00 of 1% for 1962) of the expense of Murphy was allocated to this store. Defendants’ evidence was to the effect that this expense allocated to their store amounted to $3161.-00 in 1962 and $4118.00 in 1963, and was in addition to approximately $15,000.00 spent in 1962 and 1963 for items admitted by appellee as advertising expense. Other evidence from depositions and affidavits by the defendants showed that certain additional expenditures were made by the defendants by allocating a portion of .the salaries of local store employees for painting signs, trimming windows, planning and directing the conduct of ads originating locally, and writing advertising copy. Additional allocations of a percentage of salary of the local manager and assistant manager were allocated to advertising, based upon estimates of time they spent in formulating advertising. All of this amounted to more than three percent (3%). Plaintiff excepts to this type of expenditures arguing that these sums were not expenditures made for advertising purposes. This raises a question of material fact to be presented to the jury. We believe that the term advertising as used in this lease is quite broad, and the jury should, after hearing all the evidence, determine the amount actually spent for “advertising purposes”. Appellants’ first and second points are sustained.

Appellants’ third, fourth, fifth and sixth points are to the effect that even if defendants were in default, the plaintiff wrongfully declared an unconditional forfeiture of the lease on too short a notice; that even after notice there was no showing that they did not cure such supposed default in the shortest possible time; and that plaintiff waived his supposed right of forfeiture by continuing to collect the rentals and treating the lease as effective after the supposed default.

The forfeiture clause in this lease was almost identical to the one construed by the Supreme Court in Rohrt v. Kelley Manufacturing Co., supra, except for the time of default and notice for removing or curing the default. In the Rohrt case the lessee defaulted in his covenant to pay the monthly rental when due. Notice of such default was given by the lessor of his intention to declare the lease forfeited. Following the ten-day period (for curing such default) the lessor again advised the lessee that inasmuch as the lessee had not completely cured such default within ten days after such notice, the lease was at an end. The Supreme Court recognized, that since the petitioner failed to pay the delinquent rentals within the ten-day period after notice, coupled with the letter of notice, this resulted in a forfeiture of the lease at the end of the ten-day period.

Here, the plaintiff gave the defendants, not thirty, but twenty-five days notice of cancellation and forfeiture, and the notice was not contingent upon the defendants’ curing such default within the time specified in the lease. Defendants allege, and this contention was supported by an affidavit, that after receipt of plaintiff’s forfeiture letter on March 6, 1964, they spent more than three percent (3%) of the gross sales on “direct” advertising costs. We hold that this raised an issue of a material fact.

The forfeiture provision provided that in the event of default of “any of the covenants” the plaintiff could have enforced the performance of the lease by any method provided by law (for instance a suit for damages). If after default the lessee had abandoned or vacated the premises, the plaintiff could have taken possession of the premises and re-let the same at the best rental obtainable and made the lessee account for any deficiency, if any. Rohrt v. Kelley Manufacturing Co., supra (which is applicable here). Or, alternatively, the lease provided that “in the event of default in any of the covenants herein,” the lessor (plaintiff) could declare the lease forfeited, “if such default continue for a period of thirty days after lessor notifies lessee of such default and his intention to declare the lease forfeited,” and “unless the lessee (defendants) shall have completely removed or cured said default” the lease shall come to an end. (Rohrt v. Kelley Manufacturing Co., supra). The plaintiff did not give the required number of days notice to effectuate a forfeiture. In any event the defendants were entitled to cure such default, according to the terms of the lease within thirty days after such notice. Their affidavit stating that they had done so, raises a fact issue on this question preventing the proper entry of a summary judgment.

In the case of Anderson v. Poulos, 197 S.W.2d 521, Tex.Civ.App.1946, n. r. e., a covenant in the lease required the lessee to furnish free meals to the hotel manager and to give other hotel employees a forty percent discount. In addition, lessee was to furnish a bond conditioned upon his performance of the covenants in the lease. The lease provided for forfeiture on default if “such default continue for a period of ten days after lessor notifies said lessee of such default and his intention to declare the lease forfeited, * * *.” The lessor gave the requisite notice whereupon the lessee began to furnish the meals and gave the discount, but did not give the surety bond within the ten-day period. The court said in an opinion by Justice Norvell, that:

* * * [under the] provisions of the lease, default in the performance of a covenant in itself does not mature the right of forfeiture. In addition to default, there must be notice thereof, and failure to correct such default within ten days’ time. * * * ”

See also Harris v. Ware, 93 S.W.2d 598, 600, Tex.Civ.App.1936, wr. ref. An option to rescind must be exercised in strict accordance with its terms, to be effective. Vidor v. Peacock, 145 S.W. 672, Tex.Civ.App.1912.

The courts do not favor forfeitures and unless compelled to do so by language that will admit to no other construction, forfeiture will not be enforced. The law abhors a forfeiture. Sirtex Oil Industries, Inc. v. Thelma Erigan, et al., 9 Sup.Ct. Journal, No. 33, p. 439, at 441, and cases cited therein; Dilbeck v. Gaynier, 368 S.W.2d 804, Tex.Civ.App.1963, n. r. e.; see also Decker v. Kirlicks, 110 Tex. 90, 216 S.W. 385-386; Johnson v. Gurley, 52 Tex. 222 (1879); 36 Tex.Jur.2d, Landlord and Tenant, Sec. 253, p. 103-105. Appellee, in his reply point number 2, says:

“As a matter of law and equity, the lease •contract has been terminated, and Ap-pellee is entitled to possession of his property under the undisputed circumstances presented by the present record.” (emphasis supplied)

Equitable relief will not be granted in declaring a forfeiture, for only the plain language of the contract will permit such drastic relief. The record indicates to us that the lessor knew or was complaining about the alleged default of the lessee in failing to expend three percent (3%) for advertising purposes as far back as 1961. The record is clear and undisputed that the lessee made the requisite monthly rental payments, not only for the minimum amount expressed under the lease, but for additional sums calculated on three percent (3%) of the gross sales. These payments were accepted by the lessor each month, presumably with knowledge of the purported default of the advertising covenant in the lease. Generally, a cause for the forfeiture of a lease or a right on the part of the landowner to re-enter the demised premises for a breach of a covenant or a condition may be waived. In 109 A.L.R., 1267, Annotation “Landlord’s acceptance of rent as waiver of right to forfeit because of tenant’s past or future violation of terms of lease”, it is said at page 1269, III:

“Upon the theory that the occurrence of a cause of forfeiture gives the lessor an election to declare the lease at an end or to overlook the breach and allow the lease to remain in force, it is generally held that the acceptance of rent which accrues after a breach of a covenant or condition of a lease, with knowledge of such breach, constitutes a waiver of the right to forfeit the lease on account of such breach.” Citing cases.

As stated in 32 Am.Jur., p. 747, Landlord and Tenant, Sec. 882:

“Generally speaking, any recognition by a lessor of a tenancy as subsisting after a right of entry has accrued, where the lessor has notice of the forfeiture, will have the effect of a waiver of the landlord’s right to a forfeiture of the leasehold. Slight acts on the part of a lessor may be sufficient. Indeed, it has been ruled that any act on the part of the lessor, by word or deed, with knowledge of what has been done, which signifies his intention to affirm the lease, is conclusive evidence of a waiver of the forfeiture. A lessor who consents to acts of the lessee which otherwise would constitute ground for a forfeiture will not be permitted to enforce a forfeiture, because there is in such a case no breach by the lessee; * * *
“Whether there has been a waiver of the right of re-entry for breach of condition is ordinarily one of fact.”

In 51 C.J.S. Landlord and Tenant § 117 page 705, Acceptance of Rent Accruing After Breach, it is said:

“ * * * the acceptance by a landlord of rent which accrues after the breach of a condition contained in the lease generally implies a waiver of the right to declare a forfeiture of the lease and reenter because of such breach, whatever may be the ground of forfeiture *

Citing Texas cases as follows: Anderson v. Poulos, supra; Harris v. Ware, infra; Theophilakos v. Costello, infra; Nardis Sportswear v. Simmons, infra. In Anderson v. Poulos, supra, the Court said:

“ * * * The appellant by accepting rents either in the form of money (10 percent of the daily gross receipts) or in the form of meals furnished free to appellant’s agent, the hotel manager, treated the contract as a subsisting agreement and thereby waived the right of forfeiture which matured under the provisions of the contract by reason of ap-pellee’s failure to deliver a surety bond within ten days after the notice of October 2, 1945.” Citing cases.
“ * * * (Lessor) treated the lease as subsisting, accepting benefits thereunder and thus waived his right of forfeiture.” (emphasis supplied).

See Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566, 570 (Supreme Court 1949) and cited cases; Gaddy v. Rich, 59 S.W.2d 921, Tex.Civ.App. 1933.

If there had been a breach of the covenant to expend the necessary funds for advertising, the lessor may have waived his right to declare the lease forfeited by his continued acceptance of the rental payments. At least under the record before us there is sufficient evidence that raises a material issue of fact as to waiver. Anderson v. Poulos, supra, and cases cited therein; Blackburn v. Manning, 307 S.W.2d 347, Tex.Civ.App.1957; Barton v. Flanagan, 25 S.W.2d 947, Tex.Civ.App.1930, err. dism.; Theophilakos v. Costello, 54 S.W.2d 203, Tex.Civ.App.1932; Nardis Sportswear v. Simmons, 147 Tex. 608, 218 S.W.2d 451, 219 S.W.2d 779 (reformed on different point) (Supreme Court 1949); Harris v. Ware, 93 S.W.2d 598, Tex.Civ.App.1936. Appellants’ points are sustained.

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


author: RENFRO, Justice.

text:
    Paul BURRELL, Appellant, v. Richard James VanLOH, Appellee.
    No. 16744.
    Court of Civil Appeals of Texas. Fort Worth.
    June 17, 1966.

      Anderson & Cherry, and Lyle B. Cherry, Wichita Falls, for appellant.
    Jones, Fillmore, Robinson & Lambert, and Glynn Purtle, Wichita Falls, for ap-pellee.
   OPINION

RENFRO, Justice.

This is an'adoption case.

Petition was filed by Richard James Van-Loh, appellee, for the adoption of the minor Kenneth Gordon Burrell. The minor child is the son of Paul Burrell and the former Mary Hall Burrell, now Mary Hall VanLoh.

VanLoh and the former Mrs. Burrell were married soon after Burrell and Mary were divorced. The present Mrs. VanLoh was granted custody of the child in July of 1963. The petition for adoption was filed in August, 1965, and adoption granted on December 16, 1965.

On appeal appellant contends the court erred in granting adoption in the absence of compliance by appellee with Article 46a, § 6, Vernon’s Ann.Civ.St., concerning consent required by the living parents or parent or the juvenile judge or county judge.

The petition alleged that appellant had not contributed to the support of the child during a period more than two years next preceding the filing of the petition.

Appellant was served with citation, filed an answer and appeared with attorney at the hearing.

In view of the pleadings it was not necessary to obtain appellant’s consent to the adoption. Art. 46a, § -6.

It was not necessary to obtain the written consent of the mother, she being married to the petitioner. 1 Tex.Jur.2d 696, § 9.

When petitioner shows legal excuse, or an exception under the statute which exempts him from obtaining written consent of the natural parent or parents, he must then obtain the written consent of the judge of the juvenile court, or, if there is no juvenile court, the consent of the county judge of the child’s residence.

Appellant contends such consent was not obtained.

The judgment of adoption was entered by the Judge of the 89th District Court. Incorporated in the judgment was the following: “And the Court being also empowered to sit as the Juvenile Court of Wichita County, does hereby expressly grant permission as the Juvenile Court for the above adoption.”

The consent, under the circumstances, was in compliance with Art. 46a, § 6. Turner v. Goelz, 296 S.W.2d 596 (Waco Civ.App., 1956, ref., n.r.e.); Reon v. Thompson, 277 S.W.2d 829 (Dallas Civ.App., 1955, ref., n.r.e.) ; 1 Tex.Jur.2d 710, § 30.

Appellant’s points two, three and four are not briefed. They are therefore waived and we overrule them without discussion. Rule 418, Texas Rules of Civil Procedure; Amstater v. Andreas, 273 S.W.2d 95 (El Paso Civ.App., 1954, ref., n.r.e.); Pride v. Pride, 318 S.W.2d 715 (Dallas Civ.App., 1958, no writ hist.); Stanford v. Brooks, 298 S.W.2d 268 (Fort Worth Civ.App., 1957, no writ hist.); 4 Tex.Jur.2d 166, § 658, "Waiver of assignments of error, and points by failure to brief”; Garcia v. Lacey, 316 S.W.2d 183 (San Antonio Civ.App., 1958, no writ hist.); Inman v. Parr, 311 S.W.2d 658 at p. 704 (Beaumont Civ.App., 1958, ref., n.r.e.).

In point five appellant merely states that the evidence was insufficient to support the judgment.

The evidence was conflicting. Appellee testified he had been the sole support of the child for more than two years preceding the filing of the petition. Appellee’s wife, mother of the child, testified she had repeatedly asked appellant for support money for the child but he had not furnished any money for the support of the child for more than two years. Appellant testified he had sent some money to appellee’s wife.

No findings of fact or conclusions of law were filed by the trial court and none were requested. Under such circumstances we must indulge the presumption that the trial court resolved all fact issues, based on conflicting evidence, in favor of appellee. Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627 (1957); Construction and General Labor Union v. Stephenson, 148 Tex. 434, 225 S.W.2d 958 (1950); Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74 (1946).

The evidence was ample to support the judgment.

Although not raised as a point of error, appellant suggests that adoption should not be granted for failure of the parent to contribute substantially to the support of the child in situations where the divorce decree does not order support payments.

A primary purpose of Art. 4639a, V.A.C.S., was to enable the courts to enforce child support payments through contempt proceedings. The statute did not abrogate the common law duty of a parent to support his minor children. Clay v. Siercovich, 388 S.W.2d 25 (Waco Civ.App., 1965, no writ hist.); McGowen v. McGowen, 273 S.W.2d 658 (Fort Worth Civ.App., 1954, dism.); 21 Tex.Jur.2d 9, § 386; Chandler v. Chandler, 323 S.W.2d 377 (San Antonio Civ.App., 1959, dism.).

Affirmed.


text:
    C. E. BOUQUET, Appellant, v. Pearl BELK, Appellee.
    No. 214.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 9, 1966.
    Rehearing Denied June 29, 1966.

      Strickland, Gordon & Sheinfeld by Gerald S. Gordon, Houston, for appellant.
    Day, Dio & Fields by Jean Day, Port Lavaca, for appellee.
   OPINION

NYE, Justice.

This is an appeal in a partition suit from the interlocutory judgment or decree in the sense that it is intermediate in relation to the second decree approving the Commissioners’ report and vesting title to the property in the parties. This same case was previously on appeal from a judgment wherein the trial court had ordered partitioning of the property in kind, awarded appellee Belk a specific corner out of the tract of the partitioned property, and determined that the property was to be awarded in unequal values but the same would be adjusted by owelty. This was done without the aid of the Commissioners. On appeal to the 4th Court of Civil Appeals, the appellate court determined that the trial court’s finding that the property was susceptible of partitioning in kind was fully supported by the evidence, and recognized that the court could divide the property into shares of unequal value and adjust the difference by owelty. Because of the mandatory provision for the appointment of the Commissioners the case was reversed and remanded for new trial. Rule 776, Texas Rules of Civil Procedure; Bouquet v. Belk, 376 S.W.2d 361, Tex.Civ.App. 1964.

The second trial was before a different trial judge but involved the same facts and substantially the same witnesses. Briefly, the facts are as follows: Appellant filed suit for partition of a ten-acre tract as owner of a five-sixths undivided interest in the land located in Calhoun County, Texas. He alleged that the land was incapable of fair and equitable partition in kind and sought a sale of the property through a court appointed receiver. Appellee, as owner of the other one-sixth interest, sought partition in kind and allocation or award to her of a specific comer of the tract on which improvements were located which she owned, and where a business was located that she had developed with the knowledge and consent of appellant.

The ease was tried before the court without a jury. The trial court entered a preliminary decree of partition; found that C. E. Bouquet owned a five-sixths interest; and appellee Pearl Belk owned a one-sixth interest in the property as alleged and asserted. The trial court further found that appellee owned the improvements erected by a former lessee and that she had operated a business on such property in excess of ten years. The court further found that it would be unjust and inequitable to deprive appellee of the title and use of the corner where the improvements were located ; that it would be impossible to remove such improvements without destroying the value thereof; awarded to appellant Bouquet, a five-sixths interest in the property; and awarded appellee Belk a one-sixth interest in the property which included the corner where the improvements were located. The court appointed three disinterested commissioners and ordered the commissioners to allot appellee the corner portion of the property where her improvements were located with sufficient area to conduct her business; to determine the value thereof; and if the portion of the corner allotted to appellee was greater in value than one-sixth of the value of the entire ten acres of land, then to determine the value thereof; and if owelty was owed, the commissioners should determine the amount that the value of said portion exceeds the value of one-sixth of the value of the entire ten-acre tract.

Appellant perfected his appeal from this judgment asserting (1) that the court erred in determining that the property is susceptible of fair and equitable partition in kind; (2) the court erred in awarding the specific tract out of the corner of the property subject to owelty; points (3), (4), (5), (6) and (7), that there is no evidence or insufficient evidence to support the holding of the trial court that appellee established or owned an equitable right, title or interest in the corner of the property sought to be partitioned.

The primary controversy was correctly stated in the previous appeal which is to the effect that because the corner of the ten-acre tract fronting on two well trav-elled roads is the most valuable part of the land, could it be partitioned in kind? Testimony from four witnesses fully supported the trial .court’s finding that this property was susceptible of partitioning in kind. It has been generally stated that the law favors partition in kind, rather than sale with partitioning of the proceeds where the evidence supports it. Henderson v. Chesley, Tex.Civ.App., 273 S.W. 299 (1925), wr. den., 116 Tex. 355, 292 S.W. 156; Irons v. Fort Worth Sand & Gravel Company, Tex.Civ.App., 1955, 284 S.W.2d 215, n. r. e.; Poenisch v. Quarnstrom, Tex.Civ.App., 386 S.W.2d 594, ref., n. r. e.; Carr v. Langford, 144 S.W.2d 612, affirmed, 138 Tex. 330, 159 S.W.2d 107 (1942).

Appellee’s two sons had leased the corner of the ten-acre tract in 1949. With money, most of which was. furnished by .their mother, they erected a frame building with concrete floors and a concrete extension for a dance pavilion. Appellee and her two sons operated the “Friendly Inn” and a liquor store throughout this period of time. In 1958 appellee’s sons transferred to their mother all the rights that they had in the building. After the expiration of the lease in 1959, appellee continued to operate the business, making extensive repairs and additions up to and including 1962. The structure and improvements were worth in excess of $6,000.00. Appellant admits that the improvements belong to appellee and suggests that these improvements can be removed by her, to which he has no objection. He argues, however, that because of the extra value of the corner, the property should be sold and the proceeds divided in accordance with the interests of the parties.

The trial court found in response to requests of findings of fact and conclusions of law, that the appellee Pearl Belk had created a business for over ten years on the corner where the improvements were located; and that during the period of such use she created a business upon which her livelihood depends, all with the knowledge of the appellant. By virtue of such use, the court found that it would be unjust and inequitable to deprive her of the title and use of the corner; that it would be impossible to remove her improvements off the property without seriously damaging and probably destroying their value. Other evidence showed that appellee was a widow living at home with her maiden daughter and the revenue she received from the business where the improvements were located, were her only means of earning a livelihood. The court found that the property was susceptible of partitioning in a manner fair and equitable to both parties and that it would be inequitable to deprive the appellee of the title and use of the corner where her improvements were located.

As stated in Thomas v. Southwestern Settlement & Development Co., 132 Tex. 413, 123 S.W.2d 290, at page 296 (1939):

“At a very early date courts of equity assumed jurisdiction in cases of partition, and even after partition at common law was extended by statute to joint tenancies and tenancies in common, the remedy in the law courts was still so narrow and imperfect that the jurisdiction of equity in partition soon became almost exclusive. Pomeroy’s Equity Jurisprudence (2d Ed.) VoL 5, Secs. 702, 703, pp. 4781-4785; Story’s Equity Jurisprudence (14th Ed.) Vol. 2, Sec. 843, pp. 251, 252. In this state partition by suit, whether brought under the statute or without the aid of the statute, does not proceed independently of the rules of equity. * * * »

Again, the Supreme Court in Sayers v. Pyland, 139 Tex. 57, 161 S.W.2d 769, said:

“ * * * In a partition proceeding the court has a right to adjust all such equities, and, if necessary, to fix a lien to secure the payment of same * * *” citing cases.

See also Rule 776, T.R.C.P.; Daken v. Daken, 125 Tex. 305, 83 S.W.2d 620; O’Connor v. Delk, Tex.Civ.App., 249 S.W.2d 248; Burton v. Williams, Tex.Civ.App., 195 S.W.2d 245, ref. n.r.e. As stated by Justice Barrow in Bouquet v. Belk, supra:

“The court may take into consideration the improvements made by one of the co-owners and, if it can be fairly done, divide the property so as to give the improvements to the party who made them. Moore v. Blagge, 91 Tex. 151, 38 S.W. 979; White v. Mitchell, 60 Tex. 164; Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d [472] 474; Sparks v. Robertson, Tex.Civ.App., 203 S.W.2d 622, wr. ref.; Burton v. Williams [Tex.Civ.App., 195 S.W.2d 245].”

The court continues,

“It is also well recognized that in partition proceedings, the court may, if necessary, divide the property into shares of unequal value and adjust the difference by owelty. Sayers v. Pyland, 139 Tex. 57, 161 S.W.2d 769, 140 A.L.R. 1164.”

See also, George v. Taylor, 296 S.W.2d 620, and Poenisch v. Quarnstrom, 386 S.W.2d 594, ref., n.r.e. We hold the evidence fully supports the findings of the trial court. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellant contends that rules of law in trespass to try title suits under Rule 806, T.R.C.P., and Art. 7393-7401, V.A.C.S., are applicable to the present suit. Under the facts before us, we believe appellant’s contention is without merit. Appellant’s points are overruled.

Judgment of the trial court is affirmed.

GREEN, C. J., not participating.


author: GREEN, Chief Justice. SHARPE, Justice

text:
    Ronnie FLETCHER, Appellant, v. Carolyn FLETCHER, Appellee.
    No. 249.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 23, 1966.
    Carter, Stiernberg, Skaggs & Koppel, by Claude Carter, Harlingen, for appellant.
    Orrin W. Johnson, Harlingen, having withdrawn as attorney for appellee, filed an amicus curiae brief in this cause, but made no personal appearance.
   OPINION

GREEN, Chief Justice.

Appellant Ronnie Fletcher and appellee Carolyn Fletcher, hereafter called Ronnie and Carolyn, were formerly husband and wife, and were residents of Little Rock, Arkansas. Three children, now approximately 9, 7, and two years of age, were born to this couple. The parties separated in January, 1966, and Ronnie took the two older children to Texas. The evidence is without any material conflict that he had the intention at the time of permanently leaving his home in Arkansas, and of establishing his domicile, and that of the two children, in Willacy County, Texas, and that he did establish such domicile. While Ronnie and the two children were in Texas, residing in Willacy County, Carolyn secured a divorce in the courts of Arkansas, the decree granting her custody of the three children, including the two then domiciled with Ronnie in Texas. No personal service was had on Ronnie, the citation on him being by publication, and Ronnie was represented in the divorce proceedings only by a court appointed attorney-ad-litem. Neither Ronnie nor either of the two children were present in court during the trial.

After securing the judgment for divorce and custody of the children, Carolyn filed application for the writ of habeas corpus in the district court of Willacy County alleging that the two children were being illegally confined and restrained of their liberty in said county by Ronnie, and praying that they be discharged from such restraint and returned to Carolyn’s custody. A certified copy of the Arkansas decree was attached to said application. A supplemental petition seeking temporary restraining order, and temporary and permanent injunction, prohibiting Ronnie from removing the children from the jurisdiction of the court, and from committing any act of violence was filed. A temporary restraining order was granted without notice, and after hearing a temporary injunction was also granted.

Ronnie filed his answer to the application, and on April 18, 1966, a trial was had before the court without a jury. Both parties announced ready, and evidence was introduced by plaintiff and defendant on the issue of custody. In addition to other testimony, Carolyn introduced and relied on the Arkansas decree. At the close of the evidence, on April 18th, the court rendered judgment for Carolyn, basing his decision entirely on the Arkansas decree. The court held that the provisions of such decree as to custody were entitled to full faith and credit, and his order was made in accordance with said Arkansas judgment.

In so deciding, we feel that the trial court erred. As stated in Henthorn v. Tyler, Tex.Civ.App., 266 S.W.2d 484, 486:

“Without reviewing all the authorities, since such authorities have been adequately discussed in some of the decisions herein cited, it is apparent that the rulings of the Supreme Court, and such Courts of Civil Appeals as have ruled on facts similar to those here in issue, have not upheld the validity of a judgment for child custody where the domicile and actual residence of the child and of the parent holding his custody was outside the state where judgment of custody was rendered, such persons were not personally present before the court and the parent was not duly in court either by personal service or appearance. Wicks v. Cox, supra; [146 Tex. 489, 208 S.W.2d 876]; Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187; Avenier v. Avenier, Tex.Civ.App., 216 S.W.2d 638; Campbell v. Stover, 101 Tex. 82, 104 S.W. 1046; Peacock v. Bradshaw, supra [145 Tex. 68, 194 S.W.2d 551]; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293.”

See, also, Best v. Best, Tex.Civ.App., 331 S.W.2d 364.

Since Ronnie and the two children were domiciled in Texas at the time of the filing of the suit, trial, and rendition of the judgment, and were not personally present during the proceedings, or represented therein by counsel of their own employment, the Arkansas judgment in so far as it granted custody of such two children, based on citation' by publication, was void, and could not validly support the decree of the district court in Willacy County in this case. Appellant’s 1st point is sustained.

After the trial court had announced its decision, Ronnie filed a cross-petition seeking an order granting to him custody and control of the two children, and asking that Carolyn be enjoined from removing said children from the jurisdiction of the suit pending final judgment, and demanding a jury trial. Ronnie seeks now to have this court remand this cause for a complete new trial.

This cause, although initiated by application for writ of habeas corpus, was a civil suit involving custody, with Carolyn and Ronnie as adverse parties, and the powers of the court to adjudicate custody were automatically invoked. Legate v. Legate, 87 Tex. 248, 28 S.W. 281; Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79. When the case was called for trial, both parties announced ready, and no jury was requested. Ronnie’s answer expressly denied that he was not a fit person to have custody of the two children, and contained allegations to show that custody should not be awarded to Carolyn. The pleadings filed by Ronnie after pronouncement of judgment raised no new issues as to custody which were not already before the court. Knollhoff v. Norris, supra; Burson v. Montgomery, Tex.Civ.App., 386 S.W.2d 817. A full trial on the custody issues was had. The error of the trial court here assigned was not with reference to the conduct of the trial, but was in basing his decision of custody upon a void provision of the Arkansas decree.

There is no good reason for this court to order a new trial, since the issues have been fully tried and would on remand still be before the trial court for his decision. We can not render decision for either party, since we are not judges of the credibility of the witnesses and the weight to be given their testimony. That is for the trier of facts, who is the trial court in . this instance.

The effect of our order setting aside the judgment of the trial court is to restore the case to the status of one which has been tried on its merits and in which no order has been entered. In such situation, the trial court, on remand, is authorized to enter such judgment as it finds proper under the law and the facts. Brown v. Aetna Casualty & Surety Co., 135 Tex. 583, 145 S.W.2d 171, 174, opinion adopted by the Supreme Court.

We direct that the judgment of the trial court be reversed, and the cause be remanded to the trial court with instructions that it is authorized to render judgment upon the merits of the ease, after reasonable notice to all parties. No consideration is to be given the void custody provisions of the Arkansas judgment. Wo do not suggest the character of judgment to be rendered; that is a question within the province of the trial court to decide. We merely direct that it proceed without another trial to render final judgment in the case. It is within the sound discretion of the trial court to determine whether the trial should be re-opened, on motion of either party, for the introduction of additional testimony. The judgment will, of course, be subject to being set aside upon motion for new trial and to review as any other final judgment.

Reversed and remanded with instructions.

SHARPE, Justice

(concurring in part and dissenting in part).

I concur in reversal of the judgment but believe that the cause should be remanded for a completely new trial. On the present record we cannot modify and affirm nor can we here render judgment. In my view, a remand with instructions is not the proper disposition of this case.

It is apparent that the case was tried and decided on the wrong theory, and that the evidence was not completely developed. The Arkansas judgment which provided the sole basis for the judgment below was void as to its custody provisions. But appellee’s case was squarely based upon it. Since there was no valid order of custody, appellant’s custody of his children was legal. Illegal restraint was not shown. At the hearing on April 18, 1966 the trial judge made it clear that evidence concerning matters other than the Arkansas judgment would not be considered by him if he agreed with appellee’s theory. Much of the tendered evidence was not admitted, but appears in the record on bill of exception. It is difficult to determine in some instances whether evidence was admitted or was permitted only for bill of exception. The trial court’s refusal to entertain appellant’s eross-petition for custody was solely based upon the erroneous conclusion of law that the custody provisions of the Arkansas judgment were valid. It is apparent to me that the trial judge did not intend to preclude further hearing if that conclusion proved to be wrong.

The hearing in question was on the short notice of five days. Appellant was not a volunteer. He appeared and defended under compulsion of court orders. The record does not show that a regular citation was issued for a final hearing wherein permanent custody would be adjudicated. Appellee was not entitled to the relief sought and granted to her either when the court pronounced its decision nor when the judgment was entered. At the latter time, appellee’s cross-petition had been duly filed, citation had been served on appellee, and a jury properly demanded.

Appellant’s cross-petition properly invoked the jurisdiction of the trial court under Article 4639c, Vernon’s Ann.Civ.St. which provides for a situation in which a foreign divorce decree is silent as to custody of children. Here, the Arkansas judgment was legally silent as to that matter because its provisions concerning custody were void. Art. 4639c provides for issuance of a regular citation as in other cases upon the filing of suit thereunder. Appellee was duly served with a regular citation on appellant’s cross-petition, but appellant was not served with such a regular citation on ap-pellee’s original petition. Under these conditions I would hold that upon reversal of the judgment below, appellant would be entitled to a jury trial on his cross-petition under Articles 4639c enacted in 1959, and under 4639a, as amended in 1961. When the case reaches the trial court for further consideration, in my view, the issues of custody should not be restricted to facts developed at the hearing held on April 18, 1966. There is evidence in the present record which shows that conditions have substantially changed since the judgment was entered on April 22, 1966. Counsel for appellee has withdrawn from the case, but has tendered an amicus curiae brief and has also stated that appellee has disobeyed the order of the trial court in taking the children back to Arkansas. Appellee did not appear in the trial court on May 20, 1966, when her application for permanent injunction was set for hearing, and the same was denied. Under these conditions there are matters of fact to be ascertained and the matter to be decreed is uncertain under Rule 434, Texas Rules of Civil Procedure, providing for remand for new trial in such instances. The said provisions of that rule have been held to mean the same as “if it shall appear that the justice of the case demands another trial” under Rule 505, T.R.C.P. London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619 (1944). I would hold that we have a duty to remand for a completely new trial in this case, and, in any event, that we have discretion to do so; and that this is a proper case for that action.

I do not believe that Brown v. Aetna Casualty & Surety Co., 135 Tex. 583, 145 S.W.2d 171 (1940), controls the disposition of the instant case. There the trial court incorrectly held that it did not have jurisdiction under the Workmen’s Compensation Act, believing that exclusive jurisdiction was in a federal admiralty court. Under stipulation of the parties the question of jurisdiction was reserved for decision and the case was completely tried to a jury with findings favorable to plaintiff. After verdict, the trial court dismissed for want of jurisdiction, and the Court of Civil Appeals affirmed. The Supreme Court reversed the jurisdictional holding of the lower courts and remanded to the trial court for action on pending motions and for entry of judgment. In Brown, the case had been fully tried on the merits but judgment had not been rendered thereon because of the trial court’s incorrect view that it had no jurisdiction. In the instant case the trial court has rendered a final judgment on the merits concerning custody of the children. We are in agreement that such judgment was erroneous and must be reversed. At the time of its entry appellant’s cross-petition was properly pending, as it is now. Under these circumstances, in my view, we cannot properly cut off appellant from a hearing on his cross-petition, and, in any event, we should not do so in the exercise of discretion.

Reasonable notice and an opportunity to be heard constitute the essence of due process of law. In my view, if the parties are not accorded a completely new trial on remand of this case, serious due process questions will be raised under Article 1, Section 19, Constitution of Texas, Vernon’s Ann.St., and under the Fourteenth Amendment to the Constitution of the United States. See Goodman v. Goodman, 236 S.W.2d 641 (Tex.Civ.App., 1951, n. w. h., opinion per Pope, J.).

I concur in reversal of the judgment but respectfully dissent to a remand with instructions which would award anything less than a completely new trial.


author: DENTON, Chief Justice.

text:
    J. M. WILLSON et al., Appellants, v. Ralph C. JOHNSTON et al., Appellees.
    No. 7626.
    Court of Civil Appeals of Texas. Amarillo.
    June 20, 1966.

      Thomas J. Griffith, Jr., O’Connor & Brister, Lubbock, for appellants.
    Crenshaw, Dupree & Milam, Lubbock, Ben P. Ayres, Floydada, for appellees.
   DENTON, Chief Justice.

Appellants filed this suit seeking writs of mandamus and injunction and a complaint for contempt of court against ap-pellees as officials of the Floydada Independent School District. Appellants alleged the appellees’ willful refusal and failure to obey the judgment and orders of the trial court pertaining to the assessment and collection of 1963 ad valorem taxes. The trial court, without a jury, denied all relief sought and appellants have brought this appeal.

In the original suit appellants sought an injunction to restrain appellees from certifying and approving the tax roll of the school district for the year 1963. Mandamus was also sought to require appellees to comply with the Constitutional and statutory provisions relating to the assessment and collection of ad valorem taxes. The contention was made that not all taxable personal property was placed on the tax rolls, thus placing an undue tax burden upon real property owners of the district. A temporary restraining order was issued upon the filing of the original suit. On November 19, 1963 the trial court, with approval of all parties, appointed a Master in Chancery, who was charged with the duty of ascertaining taxable personal property which had not been rendered or placed on the district’s tax roll prior to September 20, 1963. Such supplemental list was to be given the Board of Equalization for their study and approval and to incorporate this additional property into the 1963 tax roll. On January 3, 1964, on motion of the school district, the trial court authorized the district to certify the 1963 tax roll as it existed on September 19, 1963 and to proceed collecting taxes upon such tax roll, subject to the inclusion of additional items of personal property that might be added to the roll as a result of the Master’s investigation. The court further directed the school district’s tax assessor-collector to put aside 2% of the taxes collected and place it into a special fund to be used for the repayment of any overpayments which would result from the adding of personal property upon the tax rolls.

On December 9, 1964 the trial court entered its final judgment approving the Master’s report and adopting its findings. The judgment found the additional personal property reflected by the supplemental rendition constituted all additional personal property which should be awarded to the 1963 tax roll; and directed the school district to prepare such a roll and submit it to the Board of Equalization. The judgment further directed the district’s tax assessor-collector to make adjustments “in the taxes assessed against the real and personal property” appearing in the original tax roll when the additional property was ultimately included. It then provided for the adjusted augmented roll to then he submitted to the Board of Equalization for its approval. Proportionate refunds were then to be made to those taxpayers who had previously paid their 1963 taxes. Subsequent taxpayers were to he credited in the same proportion.

As a result of letters sent by the tax collector and the Master in Chancery, approximately 747 taxpayers rendered additional personal property of the value of approximately $1,924,504.00. These renditions were then processed by the tax office into a supplemental tax roll. This procedure included ascertaining property value by an adopted schedule; eliminating such non-taxable items as stocks in Texas Corporations; deducting the first $250.00 of household furniture rendered; and eliminating duplicate renditions. The tax collector then took 47% of the value so remaining for tax purposes and then applied the tax rate. The supplemental tax roll, after this procedure was completed, reflected an additional $629,502.00 of taxable personal property added to the “augmented” tax roll. The tax collector described the augmented roll as a combination of the original roll and the supplemental roll. This supplemental roll was first submitted to the Board of Equalization on June 11, 1965 and was subsequently approved by the Board as submitted by the tax collector. Statements of additional taxes due on the supplemental roll were mailed on September 28, 1965, the date the present suit was filed. After adding $629,502.00 in taxable personal property to the tax roll the tax: collector determined there was an .0216 credit or refund factor to be applied to taxes shown on the original roll. There was testimony this refund was made to taxpayers who had paid their 1963 taxes and that a credit in that amount was given unpaid taxes. These payments and credits were reflected in the augmented roll as finally approved.

The trial court filed findings of fact and conclusions of law. It found the school district’s tax assessor-collector submitted the supplemental rendition to the Board of Equalization after deleting renditions of capital stock in Texas Corporations; the first $250.00 of each household furniture rendition, and duplicate renditions; that the augmented roll was prepared and submitted to the Board of Equalization and approved by it; that the tax refund factor of .0216 was calculated and that such refund was made to taxpayers who had already paid 1963 taxes on the original tax roll; that the augmented roll reflects the amount of refund due and that the appellants “in good faith and with reasonable diligence made substantial compliance with” the court’s judgment and orders of January 3, 1964 and December 9, 1964. The court concluded appellants were not in contempt of court and the court’s orders and judgment had been substantially complied with.

Appellants’ basic contention is that the appellees did not comply with the trial court’s order of December 9, 1964 which they contend ordered the school district to add the property placed on the supplemental roll to the existing tax roll, adjust such property to its 47% taxable value, and collect taxes on such property. They argue the tax collector acted arbitrarily and without authority in making any correetion on the supplemental tax roll. As we understand their position, they say that approximately $904,506.00 or 47% of the rendered value of $1,924,504.00 was taxable property and should have been treated as such. They do not take into account any exempt property that might have been included in the supplemental roll or duplications. They say these factors were taken into account when the property was placed on the supplemental roll.

It is an elementary rule of law that mandamus will not lie to compel a public official to perform an official act unless it is shown the petitioners’ right to have the act performed is clear. Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148. 37 Tex.Jur.2d, Mandamus, Section 108, page 765.

The only witness offered by appellants was a Certified Public Accountant who audited the supplemental tax roll as of October 11, 1963. He did not examine the Master’s report or the supplemental roll after the October 1963 date. His findings relative to the value of stocks and bonds and household furniture reduced from the supplemental roll was substantially less than the amounts reflected on the assessor’s roll, but his investigation took place prior to the appointment of the Master of Chancery, and approximately a year prior to the time the augmented roll was finally approved. This evidence was not sufficient to sustain appellants’ burden in this cause.

Appellants further question the authority of the school district’s assessor-collector to reduce the rendered value of personal property placed on the supplemental roll. The first $250.00 of the assessed value of household furnishings is exempt from taxation. Article 7150, Section 11, Vernon’s Ann.Civ.St. Article 7211 empowers the tax assessor to raise values of property rendered if he is not satisfied with the rendered value; and if the assessor finds the property rendered has no market value the assessor shall place a real or intrinsic value on such property. If the taxpayer is not satisfied with the assessor’s valuation, the article gives the taxpayer his remedy. We think the tax assessor had authority to reduce the rendered value of the household furniture to the extent of the statutory exemption. Stocks in Texas Corporations or a corporation which is required to list or render its capital and property for taxation in this state are not required to be rendered by the individual taxpayer. Articles 7152, Section (1) and 7163 V.A.C.S. The fact the taxpayers did in fact render this character of stock on the supplemental roll does not render them liable for taxes on such stock. The assessor did not exceed his authority in removing such stock from the supplemental tax roll. These reductions together with the elimination of duplications of property rendered on the original tax roll amounted to a substantial sum, but the amount of such reduction is not shown by this record. We cannot say, in the light of this record, that a substantial reduction in itself is evidence of failure to comply with the trial court’s order. The undisputed evidence supports the findings and conclusions of the trial court that the appellants were in substantial compliance with the court’s order and judgment.

The power to punish for contempt will only be exercised with caution. Contempt proceedings are generally criminal in their nature whether they grow out of criminal or civil actions. Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824. Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306. Contempt is not to be presumed, but on the contrary is presumed not to exist. Deramus v. Thornton, supra.

Appellate courts are bound by the trial court’s findings and conclusions which are supported by the evidence. City State Bank in Wellington v. Wellington Independent School District (Tex.Civ.App.) 173 S.W.2d 738, Affirmed 142 Tex. 344, 178 S.W.2d 114. From a review of this record we are of the opinion there is evidence to support findings of the trial court that appellees were in substantial compliance with the orders and judgment of that court; and its conclusion appellees were not in contempt and that appellants were not entitled to writs of mandamus or injunction.

The judgment of the trial court is affirmed.

CHAPMAN, J., not participating.