author: BARROW, Justice.

text:
    ZONING BOARD OF ADJUSTMENT OF the CITY OF SAN ANTONIO, Appellant, v. Don MARSHALL, Appellee.
    No. 14345.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 10, 1965.
    Rehearing Denied March 11, 1965.
    Sam S. Wolf, City Atty., William R. Ward, Asst. City Atty., San Antonio, for appellant.
    Groce, Hebdon, Fahey & Smith, San Antonio, for appellee.
   BARROW, Justice.

Don Marshall brought this writ of cer-tiorari pursuant to the terms of Art. lOllg, Vernon’s Ann.Civ.Stats., complaining of the Zoning Board of Adjustment of the City of San Antonio, and seeking to reverse the ruling of the Board denying him a building permit to construct a 125' radio tower on the roof of his building. Both sides filed motions for summary judgment, the trial court overruled the motion of the Board and granted judgment on Marshall’s motion requiring the Board to issue him a building permit to construct a radio tower on top of his building.

The motions were based upon the pleadings of the parties, a stipulation of certain facts, the certified record of the proceedings before the Board, and three affidavits filed by Marshall. Marshall owns two lots located at 120 W. Mistletoe, which are in a “B” zone in the City of San Antonio. In 1950, permission was granted to construct a post office building on this property, although an “F” zone is required for same under the City Code. After the post office left the premises, Marshall applied for and on May 3, 1962, was granted permission by the Board to operate a TV sales and repair business at this location. The Board’s order did not authorize construction of a radio tower, although its minutes recognized that a dispatcher would be on duty at night with a radio equipped truck.

Marshall remodelled the building, and at the same time constructed a 145' tower at the rear of it. In June 1963, eighty feet of this tower was blown down with some damage to neighboring property. On July 18, 1963, the Board denied Marshall’s application to reconstruct the 145' tower on the rear of the lot. The appeal by Marshall from the denial of this application is still pending in the District Court of Bexar County.

On July 26, 1963, Marshall filed a new application seeking permission to construct a 125' radio tower on the roof of his building. The building inspector denied this application. This denial was appealed to the Board, and on August 15, 1963, after a full hearing, the Board denied this new application. After the Board’s denial, Marshall brought this action and asserted that the decision of the Board is illegal, arbitrary and capricious, and not based on competent evidence. He further asserted that it imposes an undue hardship on him in that he has no other recourse, and the radio tower would not create a hazard and not be against the public interest.

The following legal principles govern this appeal: (1) A legal presumption exists in favor of the Board’s order, and the burden of proof to establish its illegality rests upon Marshall; (2) the Court, when considering the legality of the Board’s order must not put itself in the position of the Board and substitute its findings for that of the Board, even though the Court concludes that the overwhelming preponderance of the evidence is against the Board’s decision; (3) the question on appeal from the Board’s order is whether or not there is any substantial evidence affording reasonable support for the findings and order entered by the Board, such being a question of law and not of fact. If the evidence before the Court, as a whole, is such that reasonable minds could have reached the conclusion that the Board must have reached in order to justify its action, the Board’s action must be sustained. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67 (1945); Jacobson v. Preston Forest Shopping Center, Inc., Tex.Civ.App., 359 S.W.2d 156, wr. ref., n. r. e.

One of the primary questions is whether a variance is required for the erection of the tower on Marshall’s building. The City Code prohibits the erection of a building in a “B” zone exceeding 35' in height, but excludes chimneys, cooling towers, radio towers, etc., in determining the height. The City Code does not authorize commercial type broadcasting in a “B” residence district, and it is our opinion that a variance is required for the granting of the permit to construct a new tower. Marshall urges, however, that a tower is authorized under the variance granted him in 1962, for the use of the building for a TV sales and repair business, in that a radio setup is absolutely essential to this business. He further urges that a tower on his building would not constitute a hazard or be against the public interest.

Marshall filed three affidavits in support of his motion for summary judgment. In his own affidavit, he averred that it was essential to have a radio setup in order to operate his business, and that the cost of renting telephone lines from another tower would be prohibitive. Mr. Rhodes, who is the communication officer for the City of San Antonio, executed an affidavit stating that it was necessary for Marshall to have access to a radio tower in order to operate his business. Both Mr. Rhodes and Mr. Crump, an experienced radio tower installer, expressed the opinion that a radio tower could be safely installed on top of Marshall’s building in accordance with existing plans and specifications.

The Board did not file any affidavits in support of its motion, but relies upon the certified minutes of the hearing at which Marshall’s permit was denied. The minutes of the Board do not purport to be a reporter’s transcript of the proceedings and leave much to be desired as to what testimony was given. It is seen, however, that a number of residential property owners, within 200 feet of Marshall’s property, opposed this application and were represented at the hearing by counsel. The minutes consist largely of statements by this attorney and Marshall’s attorney as to what testimony was given at the prior Board hearing when the application for construction of the 145' tower was denied. It was stated that it is feasible and efficient to use another tower, although it would involve “considerable cost.” There were also statements concerning the fall of the first tower, and whether or not the proposed tower would constitute a hazard. The Board found that the proposed tower would create a hazard and be against the public interest. It further found that Marshall has other recourse.

It is our opinion that the affidavits filed by Marshall do not overcome the presumption of legality of the Board’s order. No facts are set forth to support the conclusions that a radio setup is necessary for the operation of a TV rental and repair business, and that it would not be economically feasible to use a tower away from this location. Furthermore, the question of whether or not the tower was authorized under the variance granted in 1962 is properly raised in the appeal from the Board’s refusal to permit the reconstruction of the 145' tower at the rear of Marshall’s building, and is not before us on this appeal. The trial court erred in granting Marshall a summary judgment.

The Board urges that its motion should be granted in that Marshall has failed, as a matter of law, to show that the Board abused its discretion in refusing to grant a variance for construction of the new tower on the roof of the building. Although the summarized minutes of the proceedings before the Board are not as complete as might be desired, we cannot say from the record as a whole, that the Board abused its discretion in refusing- to grant this variance. Montgomery v. City of Dallas, Tex.Civ.App., 245 S.W.2d 753, wr. ref., n. r. e.; Driskell v. Board of Adjustment, Tex.Civ.App., 195 S.W.2d 594, wr. ref., n. r. e.

The judgment is reversed and here rendered that Marshall take nothing by his appeal from the order of the Board of Adjustment of August 15, 1963.

      . The material stipulated facts are incorporated in this opinion.

      . The Board denied Marshall’s application to construct a 145' tower at the rear of his building because “it is against the public interest substantiated by the fact that it would be within 25 feet of each side property line as well as 67 feet from the rear property line and would constitute a hazard in. the neighborhood. In the Board’s opinion, the owner has the possibility of leasing or renting other towers in the City whereby he would be able to make contact with his trucks to carry out his business thereby offering him some relief.”


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    James B. SIMPSON, Appellant, v. Modesta Good SIMPSON, Appellee.
    No. 3904.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 29, 1965.
    See also 378 S.W.2d 352, 380 S.W.2d 855. '
    Legg, Saxe & Baskin, Pat M. Baskin, Midland, for appellant

      Stubbeman, McRae, Sealy & Laughlin, Charles Tighe, Midland, for appellee.
   COLLINGS, Justice.

In June, 1963, Modesta Good Simpson brought suit against James B. Simpson for a divorce. In November, 1963, defendant, James B. Simpson, answered and denied the allegations in plaintiff’s petition to the effect that the parties had theretofore divided their property. Defendant alleged that the parties had executed an instrument which purported to be an agreement for a property settlement, but that such agreement and two instruments thereafter executed pursuant thereto were invalid and void and should be set aside because against public policy in that such agreement and executed instruments contemplated and were “promotive of” divorce. On October 9, 1963, the court after hearing entered an interlocutory decree dissolving the marriage but left the controversy concerning the division of property for later determination. On December 9, 1963, the court heard the evidence and argument pertaining to division of property and rendered judgment making final the judgment for divorce, and approved and confirmed the property settlement. The court further found that the parties had made certain conveyances and exchanges of properties and monies , for the purpose of consummating the agreement and of settling their property rights and interests. It was found that such transaction constituted a fair and equitable division of their property, and the court ratified, confirmed and approved the transactions, changes and division made and acquiesced in by the parties in consummation of the settlement agreement. Judgment was rendered against the defendant on his plea to have such property settlement agreement and the instruments executed pursuant thereto declared invalid and void. James B. Simpson has appealed and seeks to reverse the judgment insofar as it relates to the property division.

The record shows that the Simpsons were first married more than twenty-five years ago. In January, 1961, they were divorced in the State of Nevada. At that time they had accumulated considerable community property, but there was no division of the property. In March, 1962, the parties were remarried in Big Spring, Texas, and in April, 1962, they again separated. In July of 1962, while separated, they entered into an agreement for the division of their property. The agreement contained the following provision:

“The parties hereto are presently husband and wife, but are living separate and apart from each other and it is contemplated that James B. ‘Dick’ Simpson is to secure a divorce, at an early date, at which time the provisions with reference to a settlement of their joint property interest under the terms of this agreement is to be effective.”

Thereafter, during the period of separation James Simpson secured a divorce in old Mexico but it is agreed by all parties that the Mexican divorce was not valid. After the Mexican divorce and while both parties thought it was valid they consummated the prior agreement for a division of their property on October 29, 1962, by execution of deeds, and a check executed by Modesta Good Simpson in the 'sum of $20,000.00 payable to appellant, James B. Simpson. This check was received and endorsed by appellant and deposited by him in his bank account. At the time of the execution of the conveyance and the making and delivery of the $20,-000.00 check pursuant to the settlement agreement both parties mistakenly believed that the Mexican divorce had terminated their marriage relationship. The parties thereafter discovered that the Mexican divorce was not valid and appellee Modesta Good Simpson in June of 1963 brought the divorce suit against appellant in Borden County.

Appellant urges points contending that the court (1) erred in refusing to declare void the written agreement for property division and the instruments executed pursuant thereto and (2) erred in awarding to Mrs. Simpson appellant’s separately owned undivided interest in the real property held by the parties as tenants in common. In our opinion no reversible error is shown.

The agreement for division of the property which appellant contends to be void was thereafter consummated by execution of instruments purporting to convey title and a $20,000.00 check. This transaction constituted a division of the property in substantial accord with the terms of the prior agreement. The parties were still separated when this division was made. They believed that the divorce which appellant had secured in old Mexico was valid, and they thought they were both single persons. The division of the property under these circumstances was not in our opinion void because “promotive of a divorce”. The record and the finding of the court indicate that the transaction was a fair and equitable division of the property. The court did not err in ratifying and confirming such division of the property. In Rains v. Wheeler, 76 Tex. 390, 13 S.W. 324, it is stated concerning deeds of separation as follows:

“All deeds for future separation are held to be absolutely void; but, where the spouses have already separated, or have determined upon a separation, and are in the act of executing it, a conveyance by the husband intended as a provision for the support of the wife will be upheld. * * * by the weight of authority in the American courts, they are held valid in so far as they settle the rights of property between the husband and wife, provided they have been entered into without coercion or other undue influence, and the provisions are just and equitable.”

See also Cox v. Mailander, Tex.Civ.App., 178 S.W. 1012, (Error Ref.); Wheat v. Wheat, Tex.Civ.App., 239 S.W. 667; Rodriguez v. Rodriguez, Tex.Civ.App., 233 S.W.2d 916. These cases indicate that if a separation agreement is made at a time when the parties have already separated with the expectation of remaining permanently apart that such an agreement for the division of their property is not contrary to public policy and will be upheld if entered into without coercion or other undue influence and the division is just and equitable.

Appellant further contends that the conveyances are void and may be set aside because of a mutual mistake of fact. Appellant urges that both parties, at the time they executed the conveyances pursuant to the agreement, mistakenly believed that a final divorce decree had been entered dissolving their marriage and that the conveyances should therefore be set aside. It is true that both parties were mistaken about the validity of the Mexican divorce. However, for a mutual mistake of fact to constitute grounds for cancellation or recision of an instrument it must appear that the parties contracted under a mistake of fact that was material and essential to an understanding of the consequences of the agreement, and that the mistake did not relate to a mere incident thereto. The mistake here in question in our opinion related to a mere incident to the division of the property. The material consideration of the parties was a division of their property. They were permanently separated. They thought they were divorced. The fact that they were mistaken in believing that they were divorced was, in our opinion not such a mistake of fact as constitutes a ground for cancellation of the conveyances and division of property. There is no showing that the mistake has resulted in any injury to appellant. There is likewise no showing that appellee was guilty of any fraud, overreaching or breach of confidence in the matter. 10 Tex.Jur., pages 355, 356; Edwards v. Trinity B. V. Ry. Co., 54 Tex.Civ.App. 334, 118 S.W. 572, (Error Ref.).

We also overrule appellant’s point contending that the court erred in awarding to Mrs. Simpson appellant’s separately owned undivided interest in the real property, held by the parties as tenants in common. The parties had agreed to such a division of their property and had executed conveyances dividing the property in accordance with the agreement. There was no reason why appellant could not convey or: agree to convey his separate property to his wife as a part of the settlement. The court simply ratified and confirmed the action of the parties in so dividing the property.

We firld no reversible error in any of the points urged by appellant. The judgment is affirmed.


author: DIXON, Chief Justice.

text:
    STRICKLAND TRANSPORTATION COMPANY, Inc., Appellant, v. NAVAJO FREIGHT LINES, INC., Appellee.
    No. 16414.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 11, 1964.
    Rehearing Denied Feb. 5, 1965.

      Muse, Currie & Kohen, Ralph W. Cur-rie and R. Douglas Coffin, Dallas, for appellant.
    Thompson, Knight, Wright & Simmons, Frank Finn, Jr., and George C. Chapman, Dallas, for appellee.
   DIXON, Chief Justice.

On October 1, 1959 appellant Strickland Transportation Company, Inc., hereinafter called Strickland, sued appellee Navajo Freight Lines, Inc., hereinafter called Navajo, for the sum of $7,912 for rentals alleged to be due on that date on Strickland’s trailer No. 813. Appellant alleged that an oral trailer interchange master contract had been entered into in 1955. Pursuant to said master contract trailer No. 813 had been turned over to Navajo in 1956, loaded with freight destined for delivery at a destination on the line of another motor freight carrier; and that rentals at the rate of $8.00 per day had continued to accrue.

On May 8, 1962 Navajo filed a cross-action for $14,946, which it claimed was due from Strickland following an adjustment of rental accounts between the two carriers involving trailer No. 813 as well as other trailers interchanged by the two carriers. Among other defenses Strickland pled that the cross-action was barred by limitations.

On October 14, 1963 Strickland filed its amended petition in which it alleged that the amount of daily rentals due in connection with No. 813 had reached a total of $19,016. Navajo filed a plea of limitations as to a substantial portion of Strickland’s account.

In a trial before a jury an instructed verdict was granted in favor of Navajo for $4,712.

It is a practice among common carriers of freight to offer to the public a service where, for a single charge, shipments originating at a point on the line of one carrier will be transported and delivered to a destination on the line of another carrier. For convenience the cargo of freight is not ordinarily reloaded onto another trailer at an interchange point, but continues on its journey in the same trailer though the trailer is thereafter operated by the other carrier. On occasion a trailer loaded with cargo will pass into the possession of several different carriers before reaching its destination.

• In their 1955 master contract Strickland and Navajo had agreed that on all interchanges of trailers between them the carrier receiving a trailer from the other would pay the lending carrier a rental of $8.00 per day until the return of the leased trailer, or the delivery of another trailer acceptable to the lender in lieu of the original trailer. Both truck lines are freight carriers on a large scale. It was their practice to balance and settle their interchange accounts from time to time on a money basis.

This particular controversy involves three truck trailers: No. 813 owned by Strickland, No. 1A32 owned by Merchants’ Motor Freight, Inc. of St. Louis, Missouri and No. 57 owned by Navajo.

On February 28, 1956 Strickland turned over to Navajo at Amarillo, Texas Strickland’s trailer No. 813 loaded with explosives. Navajo thereafter turned No. 813 over to Garrett Freight Lines at Denver, Colorado, because the point of destination was located on Garrett’s line. Garrett was obligated to pay Navajo $8.00 per day rental while No. 813 was in Garrett’s possession, Garrett was supposed to return the trailer to Navajo so Navajo could return it to Strickland, thus terminating Navajo’s obligation to pay $8.00 per day rental to Strickland. However, Garrett did not return No. 813 to Navajo. Instead on March 7, 1956 Garrett through error turned No. 813 over to Merchants’ Freight Lines of St. Louis. Thereafter No. 813 became temporarily lost. Neither Garrett, nor Navajo, nor Merchants was able to trace No. 813. Meantime the daily rentals owed by Navajo to Strickland and by Garrett to Navajo continued to accumulate.

The transfer of February 28, 1956 of No. 813 from Strickland to Navajo was an interchange of trailer No. 813 from Strickland to Navajo, but it did not involve an exchange of trailers. In other words, Strickland did not receive a trailer in return for No. 813.

There is testimony that Garrett, desiring to terminate its obligation to pay rental on No. 813 to Navajo, communicated with Navajo at Denver, stating that Merchants would let Garrett have Merchants’ trailer No. 1A32 in lieu of No. 813. Garrett would then give No. 1A32 to Navajo and Navajo would give No. 1A32 to Strickland to close out the interchange on February 28, 1956 of No. 813 from Strickland to Navajo. There is no evidence that Strickland was a party to this agreement.

On April 17, 1956 Navajo tendered trailer No. 1A32 to Strickland in an effort to terminate its rental obligation on No. 813 which had been in effect since February 28, 1956. Strickland at first refused to accept No. 1A32 in lieu of No. 813 because No. 1A32 was not a trailer to which Strickland had title or could obtain title. But, according to Strickland, possession of No. 1A32 was finally accepted by Strickland, solely on Navajo’s representation that upon tender of No. 1A32 to Merchants, the latter carrier would either return No. 813, or some other acceptable trailer to Strickland.

The date of April 18,1956 is important in this case because Navajo in the alternative claims that on that date Strickland accepted No. 1A32 in lieu of its trailer No. 813, thereby terminating Navajo’s obligation to pay $8.00 per day rental on No. 813. This is denied by Strickland, who contends that possession of No. 1A32 was accepted strictly on condition that Merchants would exchange Strickland’s No. 813 or some other acceptable Strickland trailer for No. 1A32.

Merchants, as it turned out, refused to exchange a Strickland trailer for No. 1A32. Strickland then tendered 1A32 back to Navajo since its acceptance of No. 1A32, according to Strickland, was based on a condition which was not fulfilled as above indicated. Navajo refused to accept the return of No. 1A32 from Strickland despite several tenders of the trailer by Strickland to Navajo. This situation continued for about eleven months during which time Strickland used No. 1A32 in the transportation of merchandise on several occasions.

On March 26, 1957 No. 1A32, loaded with a cargo whose destination was California, was finally returned by Strickland to Navajo in an interchange transaction. However, Navajo insists that its acceptance of the return of No. 1A32 had nothing to do with the controversy between the two carriers in regard to No. 813. Navajo contends that Strickland had previously on April 18, 1956 accepted possession of No. 1A32 in lieu of No. 813. The March 26, 1957 transfer of No. 1A32 back to Navajo was a new, independent interchange transaction, according to Navajo.

On April 9, 1957 No. 1A32 returned from its California trip and it was tendered by Navajo to Strickland from whom it had been received in the interchange of March 26, 1957. Strickland refused to accept return of No. 1A32, claiming that it had been turned back to Navajo pursuant to Strickland’s refusal to accept it in place of No. 813. This date, April 9, 1957, is important because Navajo claims in a second alternative that its duty to pay rentals on No. 813 terminated with Strickland’s refusal to accept return of No. 1A32 in lieu of No. 813. It is admitted that Navajo declined to pay rentals on No. 813 after April 9, 1957. It was stipulated by the parties that the value of No. 813 on that date was $4,000.

Thereafter trailer No. 1A32 sat idle in a parking lot in Amarillo, Texas until January 1, 1958 when it was finally picked up by Merchants, its owner. Merchants did not take back its trailer No. 1A32 in an interchange transaction. It simply picked up its own trailer because the trailer sat idle and both Strickland and Navajo disclaimed any responsibility or liability with reference to it.

Navajo’s Denver office instructed its Amarillo office to “close off” its interchange transaction with Strickland on No. 813 as of April 9, 1957, the date Navajo had tendered trailer No. 1A32 to Strickland on its return from the California trip. In connection with these instructions Navajo’s Denver office admitted that Navajo owed Strickland a trailer, but stated it would not give Strickland a trailer until Navajo traded No. 1A32 and that meantime Navajo would not pay any more rental on No. 813.

But meantime another fact had come to light which added further to the confusion. It was discovered that on March 21, 1956 Merchants had surrendered possession of No. 813 to Strickland. This date is also important for Navajo claims that by Strickland’s acceptance of No. 813 from Merchants Navajo’s obligation to pay rental on No. 813 was terminated as of March 21, 1956.

Navajo’s claim in this regard is denied by Strickland. The latter points out that it received No. 813 from Merchants on March 21, 1956 under load in an interchange transaction between Merchants and Strickland which involved an exchange of trailers. In other words, Strickland had to give Merchants a trailer in exchange for No. 813 on March 21, 1956. Thus Strickland was still deprived of the use of a trailer since it had given possession of No. 813 to Navajo on February 28, 1956 without receiving a trailer in exchange.

Further, Strickland points out that the exchange of trailers on March 21, 1956 whereby Strickland regained possession of No. 813 was part of a separate and independent interchange agreement and an exchange of trailers between Merchants and Strickland which had no connection whatever with the agreement and interchange of February 28, 1956 between Strickland and Navajo in which Strickland was deprived of the use of trailer No. 813 and Navajo agreed to pay $8.00 per day rental until No. 813, or .another trailer acceptable to Strickland, was given to Strickland in place of No. 813.

In the cross-action filed by Navajo on May 8, 1962 Navajo sought judgment against Strickland on the ground that on various occasions the two carriers had undertaken adjustments and settlements of their interchange accounts against each other and that Strickland had wrongfully-withheld large sums of money on the pretext that the sums of money so withheld represented rentals which had accrued in connection with trailer No. 813.

Navajo also alleged that Strickland owed Navajo $4,848 as accrued rentals on Navajo’s trailer No. 57 covering a period from September 18, 1958 through May 17, 1960, which trailer had gone into Strickland’s possession in an interchange agreement. The total amount sued for by Navajo was $14,946.

OPINION

The substance of appellant’s first three points on appeal is that the trial court should have rendered judgment for appellant for the full amount of rentals due up to the date of trial, October 14, 1963, instead of merely allowing appellant credit for $4,000, the value of No. 813 on April 9, 1957, on the theory of conversion of the trailer by Navajo on that date. The basis •of appellant’s contention is that there was neither pleading nor proof of conversion.

In its brief appellee joins appellant in urging that it was error for the court to award appellant damages for conversion of appellant’s trailer. Therefore, we sustain those parts of appellant’s first three points which attack the award of damages for alleged conversion.

However, we believe the record presents issues of fact, so we overrule appellant’s points insofar as they allege that the trial court should have instructed a verdict in favor of appellant.

In its fourth, sixth and seventh points appellant asserts that the court erred in crediting appellee with the sum of $3,984 against the $4,000 awarded to appellant. Appellant urges three defenses against the court’s award of $3,984: (1) said sum had already been credited and applied to unpaid rentals due by appellee on No. 813; (2) the claim of appellee is barred by limitation; and (3) the award is not in conformity with the pleadings or evidence.

The record discloses that on August 19, 1957 and on August 19, 1958 in alleged adjustments of accounts Strickland, before paying a balance due to Navajo, deducted sums of $656 and $3,328 respectively, said sums alleged to be rentals due Strickland by Navajo in connection with trailer No. 813. In a letter to Strickland dated August 29, 1958 Navajo challenged these deductions. The trial court disallowed the deductions and awarded Navajo judgment for their total, $3,984, on Navajo’s cross-action.

In an alleged adjustment of accounts some time after October 1, 1959 Strickland credited Navajo with the sum of $4,728 which Strickland claimed Navajo owed as rentals at the rate of $8.00 per day in connection with No. 813 for 591 days on and after August 21, 1958. The trial court disallowed this deduction also and awarded Navajo judgment on its cross-action for the $4,728.

Is Navajo’s cross-action filed May 8, 1962 for $3,984 barred by limitation, as appellant asserts? In its brief Navajo, in denying that its claim is barred, asserts these defenses: (1) the 1955 master contract governing the interchange of February 28, 1956 was not oral, but was in writing; (2) during all the period in controversy the parties were negotiating as to the correct amounts involved in their accounts with each other, therefore appellant is estopped to claim limitations; and (3) each interchange of trailers is evidenced in writing by a so-called written interchange receipt which is contractual in nature.

J. E. Titsworth, Strickland’s Vice-President, testified that the master agreement entered into in 1955 was oral. However, William F. Gibson, Strickland’s Secretary and Treasurer, testified that he believed there was a written master contract, though he had not seen it; and that the “various transactions thereafter would have been pursuant to that general agreement.” Titsworth was the only person present at the meeting in 1955 whose testimony appears in the record. His testimony is sufficient to support a finding that the agreement was oral. But Titsworth, being an officer of the corporation, was an interested witness. Warlick Press, Inc. v. Lantex Construction Co., Tex.Civ.App., 375 S.W.2d 349, 351; Davis v. Texas Standard Life Ins. Co., Tex.Civ.App., 115 S.W.2d 1132. Therefore his testimony presents a fact issue, even if it were to be considered uncontradicted, as Strickland contends.

We cannot agree with appellee that because of negotiations in progress appellant is estopped to claim limitations. Estoppel is an affirmative defense. It must be specifically pleaded. Rule 94, Texas Rules of Civil Procedure. Appellee did not plead estoppel. So far as the record shows appellee raises the question for the first time on appeal.

Are the written receipts exchanged and signed by both carriers at each interchange of trailers sufficient to satisfy the four-year statute of limitation, Art. 5527, Vernon’s Ann.Civ.St. ? These receipts contain some contractual provisions. However, neither appellant nor appellee relies on them altogether. For example, some of the receipts call for rentals at the rate of $8.00 per day for the first fourteen days and $10.00 per day thereafter. Appellee says this provision in receipts does not apply, for the rental agreed upon in the master contract provided only for rentals at the rate of $8.00 per day.

Some of the receipts also provide that if the particular interchange of a trailer is not subject to a written interchange contract between the carriers, the transaction is subject to the terms and conditions of the A.T.A. Regional Common Carrier Conference Interchange Contract. Appellant says such provision is not applicable to the interchanges in controversy in this case. Appellee is not in position to stand on the A.T.A. Regional Contract for the provision in the receipts is itself conditioned on the nonexistence of a written master contract between the carriers. Appellee, as before indicated, says there was such a written contract, but claims that it has been lost.

In any event, even if the pleadings were amended to encompass the question, oral testimony would be necessary to support the contentions of the parties. If any of the provisions of the alleged receipts must be supplied by parol the contract is an oral contract. Barbier v. Barry, Tex.Civ.App., 345 S.W.2d 557, 564; Purdin v. Jenkins, Tex.Civ.App., 337 S.W.2d 418; Luglan v. Tomlin, Tex.Civ.App., 287 S.W.2d 188; Cowart v. Russell (Comm.App., op. adopted), 135 Tex. 562, 144 S.W.2d 249, 250; Cannaday v. Martin, Tex.Civ.App., 98 S.W.2d 1009, 1013.

In the present state of the record Navajo’s claim to be reimbursed for the alleged wrongful deduction of $656 in 1957 is barred by limitations even if the four-year statute is applicable, as appellee claims. As to the alleged wrongful deduction of $3,328 in August. 1958 the entire amount is barred by limitation if the two-year statute is applicable. Even if the four-year statute is applicable part of the $3,328 would be barred. Which of the two statutes is applicable would depend on whether the master contract is written or oral — a fact question. Since appellee’s claim of limitation must await the determination of a fact issue we overrule appellant’s fourth and sixth points. Appellant’s seventh point is sustained.

Appellant’s fifth point in substance is that the court erred in awarding appellee a recovery of $4,728 since said sum, as shown by the undisputed evidence, had been properly credited by appellant to unpaid trailer rentals. We are unable to say whether as a matter of law the sum in question had been properly credited. As pointed out earlier in this opinion appellee alleges that these dates are important: March 21, 1956 '{when trailer No. 813 came back into possession of Strickland); April 18, 1956 (when according to Navajo Strickland accepted trailer No. 1A32 in lieu of No. 813); and April 9, 1957 (when Navajo notified Strickland it would no longer pay rental on No. 813 or No. 1A32). It is Navajo’s position, pleaded alternatively, that its obligation to pay rentals in connection with No. 813 terminated as of the dates named.

Strickland on the other hand says that the facts are undisputed as to the happenings on each of the three dates, and as a matter of law, the facts do not have the legal effect of terminating Navajo’s liability. Strickland concedes that had Navajo offered $4,000 on April 9, 1957 Navajo would have done all it could to terminate the bailment of No. 813 and its obligation to pay any further rentals would have ended; but Navajo did not tender such performance, so according to Strickland Navajo’s refusal to pay any further rentals did not have the effect of terminating the lease contract, which continued in effect and is still in effect.

It may be, as appellant says, that the facts in this case in the main are undisputed. But as we see it the inferences fairly to be made raise questions of fact. We therefore overrule appellant’s fifth point.

In its eighth point appellant says that even if the trial court were correct in assessing appellant’s damages at the value of the trailer on April 9, 1957 the court erred in not allowing interest from that date. We have held that the court was not correct in so assessing the damages, so the point becomes moot in the present condition of the record.

In its ninth and eleventh points appellant says that (9) the court erred in failing to render a net judgment in favor of appellant and (11) erred also in sustaining ap-pellee’s motion for instructed verdict since the uncontroverted facts did not establish appellee’s right to recover as a matter of law and the fact issues must be submitted to the jury. We overrule the ninth point and sustain the eleventh point.

In its tenth point appellant complains that the court erred in assessing appellant with one-half the court costs. Since we are reversing the court’s judgment and remanding the cause for another trial we think it will be proper to assess the costs against the loser in the next trial. Of course the costs of this appeal will be assessed against appellee since appellant has succeeded in causing the judgment of the trial court to be reversed on appeal.

APPELLEE’S CROSS-POINTS

Appellee presents seven cross-points.

Appellant has filed a motion asking that appellee’s cross-points be stricken because (1) appellee by filing a motion for instructed verdict invited the error of the court in instructing the verdict; (2) insofar as appellee attempts to reverse the trial court’s action in denying appellee any recovery for rental on Navajo trailer No. 57, such action is not reviewable because appellee failed to perfect on appeal from this divisible portion of the judgment.

Navajo’s cross-action is in two parts. In the first part Navajo sought recovery for the items of $3,984 and $4,728, which sums were wrongfully deducted by Strickland from its account with Navajo. The court awarded Navajo judgment on this part of its cross-action.

In the second part Navajo sought recovery of the sum of $4,880 alleged to be rentals due by Strickland on Navajo’s trailer No. 57. The court denied Navajo a recovery on this item.

We have concluded that appellant’s motion to strike appellee’s cross-points should be and it is hereby overruled.

Appellee’s first cross-point alleges error of the court in not entering judgment for appellee for $13,592. This would have in-eluded the sum of $2,936 for rentals alleged to be due Navajo as rentals on Navajo’s trailer No. 57.

Appellee’s second and third points allege error of the court (2) in not awarding appellee the sum of $4,880, the amount of rentals alleged to he due on trailer No. 57; and (3) in holding as a matter of law that appellee was not entitled to recover rental on Navajo’s No. 57 because fact issues were raised as to the right of recovery.

Appellee’s first three cross-points involve the court’s refusal to allow Navajo any recovery in its cross-action for rentals alleged to be due by Strickland on Navajo’s trailer No. 57. If this was error it was invited error. Appellee’s motion for instructed verdict did not ask for any recovery for rental allegedly due on trailer No. 57. It sought an instructed verdict for $4,-712, figured as follows: wrongfully withheld by Strickland were sums of $3,984 and $4,728 — a total of $8,712; credit Strickland with $4,000 (the stipulated value of No. 813) ; this would leave a net amount due Navajo of $4,712. The last named amount was the exact amount of the judgment entered by the trial court.

In its brief appellee says that at the conclusion of the testimony the trial court indicated that if a motion for directed verdict were filed in a certain manner it would be sustained. This suggested motion would deny appellee any recovery for rentals on trailer No. 57. Appellee says that with some hesitancy the motion, as suggested, was made. In its argument to the court on the motion appellee stated that for the purpose of the motion only and in the interest of ending the controversy appellee asked that the motion be sustained. However, appellee did state that it was reserving all rights should the court overrule the motion. The court sustained appellee’s motion and judgment was accordingly rendered for appellee for $4,712. The judgment complies with appellee’s motion for instructed verdict.

Appellee, having filed the motion and asked the court to sustain it, is not now in position to complain of the court’s action. Rogge v. Gulf Oil Corp., Tex.Civ.App., 351 S.W.2d 565; Allison v. Simmons, Tex.Civ.App., 306 S.W.2d 206, 210; Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487; Whitehead v. Traders & Gen. Ins. Co., Tex.Civ.App., 128 S.W.2d 429, 432; Posey v. Plains Pipe Line Co., Tex.Civ.App., 39 S.W.2d 1100; 5 C.J.S. Appeal and Error §§ 1510, 1511," pp. 949, 953. Appellee’s first three cross-points are overruled.

In its fourth, fifth, sixth and seventh cross-points appellee complains of (4) the award of a recovery of damages on the theory of conversion, (5) allowing Strickland any sum for damages, (6) the failure to allow interest at 6 per cent on $8,712 and (7) the failure to tax all costs against appellant. All but the last of these complaints come within the invited error doctrine. As to the seventh cross-point, the proper taxing of costs in the trial court must await the final outcome of the suit in the trial court. Appellee’s fourth, fifth, sixth and seventh cross-points are overruled.

The record discloses that appellee filed a motion for the appointment of a master in chancery in this case. The motion was. overruled.

The areas of dispute as disclosed by the record, both of fact and of law, are so numerous and complicated, and the areas of uncertainty are so many that we consider this an exceptional case under Rule 171, T.R.C.P. We believe good cause exists for the appointment of a master in chancery. In our opinion it will be difficult indeed, if not impossible, for a jury to find its way to a correct verdict through the maze of facts and figures presented by the record. Therefore we recommend, though we do not direct, that a master in chancery be appointed and that the person appointed preferably be both an accountant and an attorney-at-law.

The judgment against appellant Strickland is reversed and the cause remanded for another trial. The judgment denying appellee Navajo recovery on its cross-action for alleged rentals due on trailer No. 57 is affirmed.

Reversed in part and affirmed in part.

ON REHEARING

Appellant and appellee have each filed a motion for rehearing.

In its motion appellee disagrees with our statement with reference to the transfer receipts where we said, “If any of the provisions of the alleged receipts must be supplied by parol, the contract is an oral contract.” We must admit that the statement is not well phrased and requires clarification and amplification.

As pointed out in our original opinion appellee does not rely on all the provisions of the receipts. Notwithstanding the fact that the receipts call for rentals at the rate of $8.00 per day for the first fourteen days and $10.00 per day for each day thereafter, appellee presented testimony that the agreement was that only $8.00 per day would be charged regardless of the length of time appellee might retain possession of a leased trailer. Appellee cannot be permitted to accept the favorable terms of the written documents, but reject the unfavorable terms. There is no pleading or claim of fraud, accident, mistake, or ambiguity in regard to the written receipts. In the absence of such pleadings the parol testimony would not properly be admissible to support appellee’s contention, for such testimony would amount to an attempt to vary the terms of a written contract by parol evidence.

Is there any theory or circumstance, then, under which such parol evidence may properly be received? Any oral change in a written contract, if permissible, constitutes a modification of the written contract and really amounts to the making of a new contract which is oral.

Our view is well illustrated by the situation presented in Luglan v. Tomlin, 287 S.W.2d 188, cited in our opinion. The San Antonio Court of Civil Appeals, speaking through Chief Justice Murray, said:

“The general rule is that where a contract is not required to be in writing the parties may subsequently enter into an oral contract modifying and changing the terms of the written contract. The written contract is thereby rescinded and the rights of the parties are thereafter determinable by the terms of the subsequent oral agreement. (Citing authorities)
“Here the original plans and specifications were changed to such an extent that a new plan had to be drawn, but the specifications were not re-written. Oral agreements for the changes in the specifications were relied upon. Under such circumstances the contract becomes an oral one and any claim arising under such a contract is governed by the two-year statute of limitation.”

Appellee next complains of our holding that there was no evidence that Strickland was a party to the alleged oral agreement between Merchants, Garrett and Navajo whereby Merchants’ trailer No. 1A32 was to be turned over to Garrett, then to Navajo, then to Strickland, in lieu of trailer 813. Appellee contends that Exhibits Nos. 13 and 10 are evidence that Strickland was a party to the agreement.

Exhibit No. 13 is a letter written by Jack Johnson, cost accountant of Navajo, to George E. Wiard of Merchants. In the letter Johnson tells Wiard of Merchants that Strickland was a party to the agreement. The letter is hearsay and amounts to no evidence at all to support appellee’s view even if admitted without objection. Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631; Emerson v. Mills, 83 Tex. 385, 18 S.W. 805; Williams v. Thetford, Tex.Civ.App., 301 S.W.2d 954. It is not a letter from or by anyone connected with Strickland, so it cannot be construed as an admission. Warren v. Fredericks, 76 Tex. 647, 13 S.W. 643, 645; Burleson & Baker v. Sugarland Industries, Tex.Civ.App., 240 S.W. 669; 31A C.J.S. Evidence § 321, p. 816.

Exhibit No. 10 is a letter from John W. Maxwell, general manager, of Strickland, to Robert L. Cohen, vice-president of Navajo. In this letter Maxwell states:

“In the third paragraph of your letter, you state that I was contacted and agreed to accept this trailer /trailer 1A32/ in place of 813. This is not so. I was not contacted nor can I find anyone else in our general office who was contacted about this.”

Appellee further says that we erred in not holding that the 813 bailment contract terminated because of the impossibility of performance by Navajo. The basis of this claim is this: since Strickland had already received trailer 813 from Merchants in a transfer there was no way possible for Navajo to redeliver 813 to Strickland.

It is in the record that the master contract provided for the return of the leased trailer, or the delivery of another trailer acceptable to the lender in lieu of the original trailer. We cannot say that the evidence in the record before us would support a holding as a matter of law that it was impossible for Navajo to have tendered some trailer other than 813 which would have been acceptable to Strickland in lieu of 813. Therefore we cannot say as a matter of law that the contract in question terminated because of the impossibility of performance by Navajo.

Appellee attacks our holding that appellee was in no position to stand on the A.T.A. regional contract to support the application of the four-year statute of limitations. Appellee is relying on a reference in the transfer receipts to the A.T.A, regional contract. As indicated in our discussion of the receipts earlier in this opinion, it is our view that in the present state of the record appellee cannot rely on the receipts as written contracts. For the reasons there stated we hold that the A.T.A. contract when incorporated into an oral contract by reference cannot make the four-year statute applicable.

Appellee urges us to “give some guide lines, rather than leave unanswered, the question of the maximum recovery to which Strickland would be entitled.” We cannot comply with appellee’s request. We do not know what answers may ultimately be found to the fact questions presented by the present record; nor can we anticipate what amended pleadings may hereafter possibly be filed, or what additional testimony may possibly be presented in another trial. In the absence of such information we shall not attempt to say what course or courses this controversy may or should take.

Appellee in another point says we should not assess all the costs against ap-pellee since we affirmed in part and reversed in part. However, we must point out that we affirmed only that part of the judgment denying appellee a recovery on its cross-action claim in regard to trailer No. 57 and reversed the part of the judgment awarding any recovery against Strickland.

Appellee’s motion for rehearing is overruled.

We have considered all the matters presented in appellant’s motion for rehearing. Appellant’s motion for rehearing is overruled.

Overruled.


text:
    HOLIDAY HILL STONE PRODUCTS, INC., Appellant, v. Clyde K. PEEK, Appellee.
    No. 14355.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 24, 1965.
    Dobbins & Howard, San Antonio, for appellant.
    Charles J. Lieck, Jr., San Antonio, for appellee.
   BARROW, Justice.

This suit was filed by appellant, Holiday Hill Stone Products, Inc., hereinafter referred to as Holiday Hill, seeking to enjoin appellee, Clyde K. Peek, from violating restrictive covenants in the employment contract signed by him. The hearing began as a non-jury hearing for a temporary injunction, hut by agreement of the parties it was considered as one for a permanent injunction.

The trial court enjoined appellee from selling or attempting to sell cast stone or cast brick, or from influencing any architect in the use of same until April 25, 1966, and permanently enjoined him from selling, transferring or giving away any of appellant’s trade secrets, formulas or the names of its customers, suppliers or agents. The trial court refused to enjoin appellee from working in a plant engaged in the cast stone and cast brick business for a period longer than one year after terminating his employment with appellant. This period had expired and therefore the provision was moot. Appellant perfected this appeal, complaining that the reduction of the contract in this respect, from three years to one year, was an abuse of the trial court’s discretion. By cross-points, appellee complains of the action of the trial court in enjoining him in any respect. The trial court filed original and supplemental findings of fact.

Appellee was hired as plant manager and salesman for appellant by a written-contract entered into on July 1, 1960. He-was hired for a period of twelve months, but actually worked for appellant until he resigned on April 25, 1963. This contract contained restrictive covenants which are involved in this action. After his resignation appellee worked, with the express-approval of appellant, for a terrazzo tile company for about a year, until that company went broke. On May 22, 1964, ap-pellee commenced work as plant superintendent for Robert Williams, d/b/a Tiffany Stone Sales Company, and shortly thereafter appellant brought this suit

The applicable rule governing this case is stated in Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950, as follows:

“An agreement on the part of an employee not to compete with his employer after termination of the employment is in restraint of trade and will not be enforced in accordance with its terms unless the same are reasonable. Where the public interest is not directly involved, the test usually stated for determining the validity of the covenant as written is whether it imposes upon the employee any greater restraint than is reasonably necessary to protect the business and good will of the employer. According to the Restatement, a restraint of trade is unreasonable, in the absence of statutory authorization or dominant social or economic justification, if it is greater than is required for the protection of the person for whose benefit the restraint is imposed or imposes undue hardship upon the person restricted. The period of time during which the restraint is to last and the territory that is included are important factors to be considered in determining the reasonableness of the agreement.”

See also 40 Tex.Law Rev. 152.

Holiday Hill, a San Antonio company, is in the business of manufacturing and selling colored cast stone products, its best seller being a ripple textured unit. Its stones are steam cured by a method known as autoclaving. Holiday Hill’s stones are nationally known, and appellant has developed various color formulas and processes for mixing the cement and curing the stones to meet severe weather tests. Ap-pellee, as plant manager for nearly three years, gained full knowledge of all Holiday Hill’s formulas and processes. He also had considerable contact with the customers and suppliers of Holiday Hill during his employment. Appellant did not contend that appellee had used any of Holiday Hill’s trade secrets in his employment with Tiffany prior to the hearing of this case, however, the president of appellant testified that he feared their use in the future without appellant’s knowledge.

Tiffany, also of San Antonio, has been a competitor of Holiday Hill since 1954, although, its gross sales are only about one-fourth' of those of Holiday Hill. Tiffany uses a different method of curing the cast stones, in that it uses a chemical method rather than heat. Holiday Hill uses a Dunn machine in curing the stones; whereas Tiffany use's a inore' expensive Columbia'- machine. There is testimony that although limestone aggregate is used by both companies, the formulas are different in each machine. Tiffany does not compete with Holiday Hill in the manufacture of hand-textured stones, and there is no evidence of any plans to do so in the future. Mr. Williams testified that appel-lee was hired to run the plant and not to sell the products. Mr. Williams further testified that he was satisfied with the formulas and product manufactured by Tiffany and that he had no intention or desire to copy any of the Holiday Hill’s formulas or processes.

The trial court found that the restrictive covenant to prohibit appellee from engaging in the manufacture of cast stone for a period in excess of one year after terminating his employment would work an unreasonable hardship on appellee in comparison to the benefits gained by appellant. We cannot say from this record that this finding was an abuse of discretion. Appellee has a large family to support and, except for four years in the clothing business with his father, had worked all his adult life in the manufacture of cast stone. Under the testimony of Mr. Williams, this employment did not involve a threat to the formulas and processes of Holiday Hill. The trial judge had the authority to limit the term of this restrictive covenant if he found it unreasonable. Lewis v. Krueger, 153 Tex. 363, 269 S.W.2d 798; Ramey v. Combined Amer. Ins. Co., Tex.Civ.App., 359 S.W.2d 523, no wr. hist.; Spinks v. Riebold, Tex.Civ.App., 310 S.W.2d 668.

The trial court did not abuse its discretion in enjoining appellee from attempting to sell cast stone or cast brick for a period of three years, or from ever disclosing the trade secrets, or the names of Holiday Hill’s customers, as provided in ■ the written contract. The evidence showed that while performing his duties appellee had acquired a personal relationship with many of Holiday Hill’s customers. The contract prohibited his attempting to sell in competition with Holiday. Hill for a period of three years after terminating his employment. We cannot say that this is an unreasonable time to prevent appellee’s competing with his former employer over the business of its customers. Weatherford Oil Tool Co. v. Campbell, supra; Lewis v. Krueger, supra. Appellant did not waive its right under this contract by expressly consenting to appellee’s going into the terrazzo tile business.

The judgment of the trial court is affirmed.

      . “Employee agrees that he will not at any time while he is in the employment of employer, or within three (3) years of when such employment ceases or is terminated, either directly or indirectly for himself or in partnership or in connection with any person or corporation or as an agent or representative of any person, partnership or corporation engage within a radius of seven hundred (700) miles of San Antonio, Texas, in manufacturing, a cast stone dr cast brick, nor in installing any stone facing or stone veneering, real or artificial, with the use of an imbedding mix similar to that used by employer or with the use of any process used by employer; nor will he engage in selling or constructing any structures composed of cast stone or cast brick; nor will he at any place in the United States call, for the purpose of selling any building materials which- are competitive to cast stone or brick, on any person or persons who have been customers of employer during the time employee shall have been employed by employer; nor shall he call on or attempt to interest any architect in the use of any building materials which are competitive to cast stone or brick, if such architects have designed houses using any of employer’s products during any time employee may have been employed by employer.
      “Employee further expressly agrees that he will not at any time either during- the term- of his employment or subsequent to the termination of his- employment sell, transfer or give away to anyone any of the trade secrets or formulas of employer or the names of any of employer’s' customers,' suppliers, employees or agents.”


author: WILLIAMS, Justice.

text:
    Neal WOOLEY et al., Appellants, v. W. L. STERRETT, County Judge, et al., Appellees.
    No. 16546.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 19, 1965.

      Gibbs & Hooks, Dallas, for appellants.
    Franklin E. Spafford, Richard S. Geiger, Henry Wade, Dist. Atty., and Don R. Stodghill, Asst. Dist. Atty., Dallas, for ap-pellees.
   WILLIAMS, Justice.

By authority of Art. 9.17, Election Code, V.A.C.S., appellants appeal from the judgment of the district court denying their relief in an election contest. The Seago-ville Independent School District was what is commonly called a “county line” school district, a portion of the properties thereof being situated within an area in the southern portion of Dallas County, Texas, and a smaller portion of said district being situated in a northern area of Kaufman County, Texas. Pursuant to authority contained in Art. 2767, Vernon’s Ann.Civ. St., the Honorable W. L. Sterrett, County Judge of Dallas County, Texas, did on July 28, 1964, enter an order in the Commissioners Court minutes calling for an election, designating the date of the election to be August 13, 1964 in the Seagoville Independent School District, and stating the purpose' of such election to be to determine the following proposition: “Shall the Sea-goville Independent School District be abolished?” Pursuant to such order, the voting machines to be used in such election were prepared and the sole proposition was placed upon the machine ballot, worded as follows:

"FOR ABOLISHING OF SEAGOVILLE INDEPENDENT SCHOOL DISTRICT”
“AGAINST ABOLISHING OF SEAGOVILLE INDEPENDENT SCHOOL DISTRICT”

The election was held on August 13, 1964 and at the conclusion thereof a certificate of election was duly made by the presiding judge, various clerks, judges and watchers. This certificate stated that 622 voted for the proposition and 565 voted against the proposition. It was also recited that 1,276 was the total number of votes cast. Thereafter, on August 14, 1964, County Judge W. L. Sterrett entered an order declaring results of election, said order reciting that 622 votes were counted for abolishing the district and 565 votes counted against abolishing the district. The order then states:

“3. That it is hereby found, determined and declared to be the result of said election that the said Proposition so submitted has received .a favorable majority vote and has carried.
“4. That in accordance with the result of said election the Seagoville Independent School District is hereby abolished.”'

On August 20, 1964, pursuant to authority of Art. 2922-18, V.A.C.S. the County Board of School Trustees of Dallas County passed an order annexing to Dallas Independent School District of Dallas County, Texas that portion of the area of the former Sea-goville Independent School District which was situated in Dallas County, Texas.

On August 18, 1964 Neal Wooley and others, being tax payers and qualified voters within the former Seagoville Independent School District, brought this action in the nature of an election contest, as authorized by Art. 5, § 8, of the Constitution of the State of Texas, Vernon’s Ann.St. and Art. 9.01, et seq., Election Code, V.A.C.S., naming County Judge W. L. Sterrett, and other officials, defendants, and therein contending that the vote for abolishing the Seagoville 'Independent School District had not carried by a majority of votes cast in the election. Contestants alleged, inter alia, that at said election “many people were disfranchised and such disfranchised voters were in sufficient numbers to have materially changed the result of such election and the election official and his judges exercised undue influence and so conducted themselves as officials of the election that many voters were intimidated and did not cast their ballots as a free exercise of their discretion.” Contestants also allege that the election judges and officials violated Art. 8.13, Election Code, V.A.C.S., by giving unauthorized aid to voters and by exercising undue influence on many voters. Contestants requested and were given a temporary restraining order, restraining respondents from taking any further action relating to the abolishment of such school district pending final hearing of the litigation. This restraining order was dissolved by agreement of the parties on August 19, 1964, and at that time, upon agreement of counsel, the contest was set down for hearing on its merits for August 26, 1964. The court, without a jury, heard the case on its merits.on August 26 and 27, 1964 and then entered a judgment denying contestants the relief sought. This appeal followed.

Before determination and disposition of appellants’ (contestants) points we deem it desirable and appropriate to direct attention to and discuss the character of the proceedings before us. An election contest does not partake of the usual characteristics of the ordinary case in law or in equity. While the Constitution and laws of the state specifically confer jurisdiction of election contests on district courts, and specifically provide for appeals in such cases to the Court of Civil Appeals, such contests involve political questions, rather than judicial questions, and therefore lack the elements of a civil suit. 21 Tex.Jur.2d § 152, pp. 405, 406; Adamson v. Connally, Tex.Civ.App., 112 S.W.2d 287; Gibson v. Templeton, 62 Tex. 555. Our courts have repeatedly said that an election contest is not a civil suit in the true sense of that term. Williamson v. Lane, 52 Tex. 335; Ladd v. Yett, Tex.Civ.App., 273 S.W. 1006; Maddox v. Commissioners Court of Palo Pinto County, Tex.Civ.App., 222 S.W.2d 475. It is said that election contests are political proceedings, legislative proceedings, quasi-judicial proceedings, and other such designations. Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627; Wright v. Fawcett, 42 Tex. 203; Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012; Robinson v. Hays, Tex.Civ.App., 62 S.W.2d 1007; Adamson v. Connally, supra. All courts are in accord in holding that an election contest is a statutory proceeding in which statutory requirements must be met and the contest can only be maintained when all of such statutory requirements have been completely satisfied. 21 Tex.Jur.2d, § 152, p. 407; Maddox v. Commissioners Court of Palo Pinto County, supra; Gonzalez v. Rodriguez, Tex.Civ.App., 250 S.W.2d 253; Horine v. Kellam, Tex.Civ.App., 123 S.W.2d 439; Magnolia Petroleum Co. v. Jackson County Water Control & Improvement Dist. No. 1, Tex.Civ.App., 290 S.W.2d 310; Christy v. Williams, Tex.Civ.App., 292 S.W.2d 348.

Moreover, it is important to bear in. mind that election contests may not be conducted as a matter of private right. 15-B Tex.Jur., § 143, p. 515; Dickson v. Strickland, supra.

With these broad principles in mind we approach the question of scope of review of an election contest. What is the ultimate test of the validity of an election? Shall the election laws be given a strict or a liberal construction?

The answer to the first question is given by Justice Roberts of our early Supreme Court in McKinney v. O’Connor, 26 Tex. 5 (1861), wherein he said:

“* * * rules prescribing the manner in which the qualified electors shall hold the election, at the time and place designated, and those prescribing the manner in which their act, when done, shall be authenticated, so as to import verity on its face, are directory. Irregularities in their observance will not vitiate an election, unless they be such that the true result of the ballot cannot be arrived at with reasonable certainty. The ultimate test of the validity of an election is involved in the questions: Did the qualified electors, at the time and place designated, acting, in concert, either actively or by acquiescence, hold an election and cast their votes in the ballot box; and has it been done in a manner sufficiently conformable to the directions of the law, as that the true result can be arrived at with reasonable certainty?” (Emphasis supplied.)

As to the application of a liberal or strict construction of election laws we are told by Justice Gaines in Davis v. State ex rel. Wren, 75 Tex. 420, 12 S.W. 957:

“The main design of all election laws is, or should be, to secure a fair expression of the popular will, in the speediest and most convenient manner; and we think a failure to comply with provisions not essential to attain that object should not avoid the election, in the absence of language clearly showing that such was the legislative intent.”

The Supreme Court in Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625, said:

“The right to vote is so fundamental in our form of government that it should be as zealously safeguarded as are our natural rights. It has been said that ‘laws abridging the natural right of the citizen should be restrained by rigorous constructions within their narrowest limits.’ It is sufficient, however, that we apply here the less extreme and well established rule of construction that statutes regulating the right to vote should be given a liberal interpretation in favor of that right.”

In Ramsay v. Wilhelm, Tex.Civ.App., 52 S.W.2d 757, the Court said:

"But to enforce a strict observance of all of the directory provisions of the statute, absent proof of unfairness or dishonesty, would more often defeat than effectuate the popular will; and it is probable that but few elections would stand such a scrupulous test.” (Emphasis supplied.)

The right to free exercise of intelligent choice by a citizen at the polls is surely one of the most treasured of all American heritages guaranteed by the Constitution and Bill of Rights. We do not believe it can be said that the free exercise of this right is to be unreasonably curtailed or restricted by judicial decree which places a narrow or strict construction on legislative rules. Mitchell v. Jones, Tex.Civ.App., 361 S.W.2d 224.

Finally, it is appropriate to observe that in this unique type of action time is of the essence. The very nature of the proceedings is such that courts are called upon to speedily and expeditiously dispose of the subject matter without regard to some of the usual rules applicable in the ordinary civil action. Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627; Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484; Sterling v. Ferguson, 122 Tex. 122, 53 S.W.2d 753; Polk v. Davidson, 145 Tex. 200, 196 S.W.2d 632.

Being ever mindful of these well established landmarks of jurisprudence which guide us in our approach to the problems presented by this appeal we now turn to a consideration of appellants’ first point of error which complains of the trial court’s action in overruling appellants’ motion for continuance.

On August 26, 1964, appellants filed their motion for continuance based upon the absence of Judge W. L. Sterrett, County Judge of Dallas County, Texas. The motion alleges inability to obtain service of a subpoena upon Judge Sterrett and as to the materiality of the absent witness’ testimony, appellants say:

“Plaintiffs would further show that it is essential that this witness testify as to the matters contained in the Order declaring the Seagoville Independent School District abolished, and to state the basis upon which such Order was entered and the facts and other returns and orders upon which such Order was made.”

The motion further alleged that plaintiffs expected to prove by the witness Sterrett that no proper order, written or oral was made appointing the presiding officer and other officials who served at the election in question, and that “the official election returns show that a total number of voters who cast votes was 1,276, which was not a majority of those voting to abolish such Independent School District.”

Appellants’ point 1 is without merit and must be overruled for several reasons. The election in question was held just prior to the commencement of the scheduled opening of schools for September 1964. The filing of the election contest on August 18, 1964, and the obtaining of a temporary restraining order, threatened chaos as to the orderly administration of the School Board business. Time, indeed, was of the essence in this proceeding. The Legislature recognizes such by directing that precedence by given such actions both in a trial court and in the appellate courts. Moreover, the record shows that the case was set for trial on August 26, 1964 by agreement of both parties. As to Judge Sterrett’s expected testimony relating to his order both calling the election and approving the result thereof, the record is without dispute that both orders were introduced into evidence by appellants without objection. Had Judge Sterrett been present to testify he certainly could not have impeached his former orders by parol testimony. His duties in issuing the order and in approving the result of the election were purely statutory. As to appellants’ allegation that “a total number of voters who cast votes was 1,276, which was not a majority of those voting to abolish such independent school district,” such statement is unintelligible and unworthy of consideration by the trial court Finally, the record does not demonstrate that the trial court abused its discretion in overruling this continuance, nor is it shown that the court’s action probably resulted in the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

By their second point appellants contend .that the order of the trial court affirming the results of the election was against the weight and preponderance of the evidence in that 1,276 persons voted, according to the official election returns, and only 622 voters voted for the proposition so that such number is not a majority of the total number of votes cast so as to legally abolish the independent school district. Appellants argue that Art. 2767, V.A.C.S. specifically provides that “a majority of such voters, voting at such election” must vote to abolish a school district. They urge that when the 622 votes “For” and 565 “Against” are added together that a total of 1187 votes were actually cast for or against the proposition, thus leaving 89 votes unaccounted for. Appellants urge that the 89 votes, being referred to as “shrinkage” must be counted in determining whether a majority of the votes “cast at such election” voted to abolish the school district. Appellants candidly concede that they have found no Texas case supporting their contention that blank ballots must be considered in determining the fact of majority. They rely upon cases from other jurisdictions such as Lawrence v. Ingersoll, 88 Tenn. 52, 12 S.W. 422, 6 L.R.A. 308; City of Wellsville v. Connor, 91 Ohio St. 28, 109 N.E. 526; Enyart et al. v. Trustees of Hanover Township, 25 Ohio St. 618; and State ex rel. v. Foraker, Governor, 46 Ohio St. 677, 23 N.E. 491, 6 L.R.A. 422. However, the majority rule in the United States is contrary to the position taken by the appellants. In 18 Am.Jur. § 246, p. 342, the rule is stated:

“There is some conflict among the cases as to whether illegal, rejected, and blank ballots shall be counted in determining the total vote cast. The weight of authority adheres to the view that a qualified voter who succeeds in getting his name on the poll list and a ballot in the ballot box is not a voter unless his ballot is such as is prescribed by law, and that blank and illegal ballots should be rejected in computing the number of votes.”

We do not believe that it is, or should be, the law in Texas that blank ballots, or ballots that do not legally register the will of the voter, should be computed in determining a majority. The statutory provision that a determination of the issue must be by a majority of the “votes cast at the election” surely means the majority of votes “legally” cast and reflecting the free exercise of choice by the voters. We think Texas should follow the majority rule as illustrated in the case of Munce v. O’Hara, 340 Pa. 209, 16 A.2d 532, 131 A.L.R. 1379, by the Supreme Court of Pennsylvania, which rejected a similar contention as here made by appellants.

What is the meaning of the word, “vote”? Webster’s New International Dictionary, Second Edition, says: “vote, v.; * * * Intransitive * * *. 2. To express or signify the mind, will, or preference, either viva voce, or by ballot, etc., as a means of deciding on any proposition in which one has an interest with others; to cast or give a vote; * * The word “elect” is defined as: “To determine by choice; to decide upon; to choose”; and the word “election” means “The act of choosing between alternatives.” Reason and common sense dictate that the verb “vote” carries with it the implication of affirmative choice by action. The word “vote” cannot be equated with total failure of choice.

An examination of this record clearly reveals why the discrepancy appeared in the return of the election officials. ■ The election in question was held with the use of two voting machines. These voting machines had “public counters” which registered whenever a prospective voter entered the machine and pulled the lever closing the curtains and then again pulled the lever, thereby opening the curtains. Each machine also' contained a counter registering a vote whenever the voting lever was pulled by the voter expressing his choice for or against the proposition. The return of the election officials reflected that the public counters showed 1,276 people entering the machines, being designated on the return as “total number of votes cast” and also showing that only 1,187 votes were registered. Obviously, 89 people entered the machines, according to the public counter, who did not exercise their choice by pulling the lever for or against the proposition, or who failed to properly and legally complete the voting procedure. The record reveals that a great deal of confusion existed during the election because elections previously held had used paper ballots. Many people were unfamiliar with the manner of voting by voting machines. This is illustrated in the testimony of Ona Tucker who testified that he did not know how to use the voting machine and asked the election judge for assistance and was told by such judge to pull down the lever indicating his choice. He said he went into the machine and pulled the curtain to and made an effort to pull down the lever but could not do so. He then pulled the lever opening the curtains and stepped outside and asked for more assistance, then went back into the machine and pulled the lever again closing the curtains of the machine. This time he pulled the lever down but then pushed if back up and then pulled the lever opening the curtains and departed from the machine. By this procedure two numbers were indicated on the “public counter” and no numbers were indicated on- the votes .cast for the simple reason that by pulling the lever down and then pulling it back up-no vote was registered. We think, from a review of the entire record, that it is entirely reasonable and plausible that many other voters did the same thing as Mr. Tucker, which would clearly account for the 89 “blank” votes.

The appellants offered in evidence the order of the County Judge in which he officially determines that a majority voted for the proposition to abolish the school district. The trial court in upholding the results of the election necessarily made findings in support of his order and such findings are, in our opinion, supported by ample evidence. In Fox v. Nail, Tex.Civ.App., 294 S.W.2d 407 the court held that the trial judge is vested with wide discretion in passing upon election contests and that such discretion will not he disturbed on appeal unless there is sufficient evidence of probative force of fraud or illegality in counting the ballots. In this case appellants, in their pleadings, do not even allege fraud, nor is there any proof of fraud. We find no abuse of discretion on the part of the trial court in this case and find that he correctly applied the law to the facts before him in declaring the election to be fairly held. Appellants’ second point is overruled.

By their third point, multifariously framed, appellants contend that the trial court erred in failing to void the election because the judges and clerks violated the election code in (a) using placards, posters, or other written instructions not in the English language, and by using signs, symbols and gestures which constituted unauthorized assistance to the voters; (b) in campaigning upon the issue in question by using statements and sample ballots which were misleading, false and confusing; (c) by assisting the electors within the voting machines without the presence of another judge; (d) by incorrectly instructing voters who sought aid, such instructions being contrary to the desire and intent of such voters.

Appellants introduced evidence by many of the voters establishing that, without controversy, many of the persons appearing at; the polls were confused by the use of voting machines. It was also developed that considerable confusion resulted from the manner in which the proposition was submitted, same being in the double negative form. It was also established that many voters requested aid from the judges and election clerks and that on many occasions such aid was given. From several witnesses it was developed that Mr. Ballard, the election judge, prepared a placard with the letter “D” over the word “For” and the letter “S” over the word “Against”.. It was testified that when voters would ask the meaning of the ballot that the placard would be used to explain that if the voter desired the independent school district to go to the Dallas district that they should pull the “For” lever but should they desire the district to remain with Seagoville that they should pull the “Against” lever.

A review of the entire record in this case clearly indicates that the election in question was not held with the degree of perfection that should be desired. Many instances of confusion and technical' irregularities abound in this record. Many of the voters were aged and could neither read nor write. A great number of the voters did not understand the mechanism of the voting machines. Many of the voters requested and received assistance of the voting officials. There is no evidence that any voter actually voted pursuant to instructions of a judge and thereby voted contrary to his intention. There is no allegation or evidence of fraud on the part of any election judge or official. The record is silent as to how the voter actually voted after he received the instructions and assistance from the election judges or clerks. Mr. Jack Ballard, the presiding judge, testified that he “was interested in a fair and impartial election,” and did not even vote, though qualified to do so. Olin Glenn, a judge, testified that he had conducted elections in some capacity over a period of twenty-five years. He said, “I think it was a fair and impartial election, I think it was held and everything was tried to be carried out in a legal, way.’.’ Mrs. Fisher, one of the officials, who was opposed to the proposition as submitted denied that she attempted to influence or mislead any voter. Mollie Collins, a poll watcher, selected by those who opposed the proposition, testified that “It was run as good as one could be run.”

In Ramsay v. Wilhelm, Tex.Civ.App., 52 S.W.2d 757, wr. ref., the court pointedly discussed the overall situation with which we are here confronted. It was there stated:

“It is common knowledge that such matters are usually intrusted to laymen, and that in sparsely populated counties and small towns a strict compliance with all the provisions of the statutes is seldom, if ever, observed. The will of the legal voters as expressed at the polls is the matter of paramount concern, and, in the absence any showing of fraud, or reasonable indication that such will has not been fairly expressed and the evidence thereof properly preserved, the courts have been liberal in construing and enforcing as directory only the provisions of the election laws which are not upon their face clearly mandatory. * * * And, absent evidence of fraud, unfairness in the holding of an election, or tampering with the ballots or returns, the courts of this state have uniformly held that ballots cast by legally qualified voters should be given effect * * *»

The tendency on the part of the courts to construe Election Code provisions as directory rather than mandatory is salutory because it leads to the true expression of the will of the voters. Stafford v. Stegle, Tex.Civ.App., 271 S.W.2d 833; Moore v. Pitman, Tex.Civ.App., 280 S.W. 873; McJimsey v. Yates, Tex.Civ.App., 324 S.W.2d 438.

In McJimsey v. Yates, supra, which involved a contest of a school consolidation election, the court discussed a similar complaint of assistance rendered voters in violation of Art. 8.13, Election Code, V.A.C.S., and held that such assistance did not violate the law to such extent as contended by appellants here. The court said:

“The evidence does not show that the voters whose votes were held to be illegal for receiving unauthorized assistance and the holdings complained of on appeal were assisted in marking their ballots. They were only informed how to mark their ballots in order to express their intent and ' desire. There is no evidence in the record that the election judges or their helpers through such explanatory assistance caused any person to change his vote.”

Without extending this opinion further, we deem it sufficient to state that we have carefully examined the entire record and find that no reversible error is shown by appellants’ points. The trial court, by its judgment, impliedly found that the election was fairly held and we believe that such finding is supported by ample evidence.

We think the matter is aptly summarized by Chief Justice Murray of the San Antonio Court of Civil Appeals in Stafford v. Stegle, Tex.Civ.App., 271 S.W.2d 833 wherein he says:

“While those charged with conducting elections should use every precaution possible to see that elections are conducted strictly in accordance with the provisions of the Election Code, nevertheless, after an election has been held and it' appears that it has been fairly conducted and the result correctly declared, and there [are] no charges of fraud, misconduct or illegality, the entire election will not be set aside for irregularities in the manner of conducting the election, unless the statutes governing such matters state that the election must be vitiated. It appears here that the result would have been exactly the same even if the irregularities complained of by appellants had not occurred. There was no evidence which, indicates anything to the contrary. It would indeed seem to be a useless thing to set an entire election aside because of irregularities, where there is nothing to indicate that the result would be any different if a new election was ordered and held with no irregularities occurring.”

No reversible error being apparent the judgment of the trial court is affirmed.

Affirmed.


author: BATEMAN, Justice.

text:
    H. G. FLETCHER, Appellant, v. SECURITY INSURANCE CO. OF NEW HAVEN, Appellee.
    No. 16466.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 19, 1965.
    James H. Martin, Dallas, for appellant,
    Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., and R. Keith Drummond, Dallas, for appellee.
   BATEMAN, Justice.

The appellant H. G. Fletcher sought.by bill of review to set aside a judgment rendered against him on October 9, 1962 in Cause No. 60,143-D, Security Insurance Company of New Haven vs. H. G. Fletcher, wherein the appellee Security Insurance Company of New Haven had sued him for certain past due insurance premiums. The defense asserted in that action, as well as in this bill of review, was that appellant had paid the premiums to appel-lee by paying same to its agent, Vida B. Keith.

Appellant’s “petition for bill of review” asserts that appellee fraudulently denied that Vida B. Keith was its agent and fraudulently-withheld from appellant information it possessed as to her whereabouts, thus making it impossible for him to use her as a witness; that this amounted to such extrinsic fraud as entitled him to the equitable relief of having the judgment set aside. Both parties moved for summary judgment and the court overruled that of appellant and granted that of appellee. Our review of the record indicates that this judgment should be affirmed.

To be entitled to the relief he sought, it was incumbent on appellant to allege and prove: (1) a meritorious defense to the original suit, (2) which he was prevented from making by the extrinsic fraud, accident or wrongful conduct of the insurance company, (3) unmixed with any fault or negligence of his own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996; Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94.

Appellee attached to its motion for summary judgment a transcript of all the proceedings in Cause No. 60,143-D. There is nothing on the face thereof to show any irregularity in the disposition of that suit. The company sued Fletcher for the debt; Fletcher pled payment “to the plaintiff’s agent”; and at the end of a nonjury trial the court rendered judgment for the company. Fletcher filed a motion to set aside the judgment, one of the grounds thereof being newly discovered evidence, but this motion did not disclose what the newly discovered evidence was and does not appear to have been presented to or passed on by the court. Appellee’s motion demonstrated the absence of any genuine issue as to any material fact, and it became incumbent on appellant to show, if he could, that such an issue existed.

Appellant’s proof, consisting of the deposition of Mrs. Vida B. Keith Koepcke and several affidavits, disclosed that Mrs. Koepcke (formerly Vida B. Keith)' had been his insurance agent for about twenty-five years; that he called on her for a workmen’s compensation policy; that she, not being a licensed agent of appellee, nevertheless tendered the business to ap-pellee, which issued the policy through the Regis Insurance Agency, and it was turned over to Mrs. Keith, who delivered it to appellant; that appellant paid the premium to Mrs. Keith; that during the trial of Cause No. 60,143-D, when “it became obvious” to appellant’s attorney that the company was denying that Mrs. Keith was its agent, he orally asked the judge “for some time to locate Mrs. Keith for the purpose of ascertaining her connection with Security Insurance Company,” which request was denied. Appellant did not except to that ruling. No formal application for continuance was made. Appellant’s wife made affidavit that during the trial of Cause No. 60, 143-D her husband told her it would be necessary to locate Mrs. Keith, that she immediately began a search for her which continued for several weeks after the trial, but without success until a man called her over telephone, told her he was or had been “with” Security Insurance Company of New Haven, would not give his name, but gave her information by which Mrs. Keith (who had married a Mr. Koepcke) was located in Goldthwaite, Texas. Mrs. Koepcke testified by deposition that the premium was paid by appellant to her and by her to Regis Insurance Agency; that after she became Mrs. Koepcke she moved to Denver, Colorado, thence to Gold-thwaite; that appellee could have known where-she was in May, 1961 and when it took the judgment in September, 1962 and could have so informed the court; that she had relatives and many friends living in Dallas and that appellant could also have found her “if he had just remembered all of the people’s names.”

This showing was insufficient, in our opinion, to meet the test enunciated in Alexander v. Hagedorn, supra. Assuming for the moment, hut without deciding, that the evidence raised a fact issue as to whether a meritorious defense existed, there was no evidence of extrinsic fraud on the part of appellee. Even if it had been established that appellee knew that the premium had been paid to its authorized agent and deliberately concealed this knowledge from appellant, by perjury or otherwise, this at most would have been intrinsic fraud and no proper ground for setting aside the judgment. As said in Garcia v. Ramos, Tex.Civ.App., 208 S.W.2d 111, 112:

“Failure of an opposite party to furnish evidence to present defendant’s defense, or even concealing such defense by committing perjury at the trial, can not be grounds for setting aside a final judgment. Kelly v. Wright, 144 Tex. 114, 188 S.W.2d 983.”

The Supreme Court refused the writ of error in that case and cited it in Alexander v. Hagedorn, supra, as having its unqualified approval.

Appellant’s contention that appellee was guilty of extrinsic fraud in not informing him that Mrs. Keith had remarried and where she was then residing must likewise be overruled. There is no evidence that appellant sought this information from ap-pellee, and appellee was under no duty to volunteer it, even if the proof had shown that it possessed the same. Kelly v. Wright, Tex.Civ.App., 184 S.W.2d 649, affirmed 144 Tex. 114, 188 S.W.2d 983. As said in De Garcia v. San Antonio & A. P. Ry. Co., Tex.Civ.App., 90 S.W. 670, 671, no wr. hist.:

“In no event can a party to a lawsuit. be expected to go into the camp of his adversary and assist him in making out a case against himself.”

Being under no duty to supply appellant with information not even asked for, appel-lee cannot be said to have defrauded him by not supplying it.

Moreover, appellant failed to show that he was free from fault or negligence in the matter. He is bound to have known that appellee would not admit, but would in fact deny, that Mrs. Keith was its agent. The trial began on September 13, 1962, but on February 1, 1962 appellant was served with a request for admissions which indicated clearly that appellee was taking the position that the premium in question had not been paid to it or to any of its agents authorized, or even apparently authorized, to accept payment. Appellant thus had more than six months in which to prepare to meet this important issue; yet he waited until the trial started before attempting to locate this key witness, Mrs. Keith. And even then he did not ask appellee for any help in doing so; neither did he file a motion to withdraw his announcement of ready or a written application for continuance — all he did was to request additional time orally, and he did not even except to the court’s refusal thereof. He did not have a subpoena issued for Mrs. Keith at any time, and he addressed no request for admissions to appellee in an effort to establish that Mrs. Keith was its agent. As stated above, he did file a motion to set aside the judgment alleging newly discovered evidence, but the record before us fails to reveal that he ever presented this to the court or even tried to obtain a ruling on it. He did not appeal. In the light of all these facts and circumstances, appellant cannot be said to have been free of fault or negligence, or lack of diligence, in making available the testimony of this witness. For this additional reason we hold that appel-lee’s motion for summary judgment was properly sustained. Smith v. Ferrell, Tex.Com.App., 44 S.W.2d 962; American Red Cross v. Longley, Tex.Civ.App., 165 S.W.2d 233, wr. ref. w. m.

The judgment appealed from is

Affirmed.

      . In fairness we should mention that the able attorney of record for appellant in this court did not participate in the trial of Cause No. 60,143-D.