author: BATEMAN, Justice,

text:
    CITY TRANSPORTATION COMPANY, Appellant, v. Juanita K. Carroll SISSON, Appellee.
    No. 16100.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 1, 1963.

      Turner, White, Atwood, Meer & Francis, B. Thomas McElroy, Dallas, for appellant.
    McKool & McKool, and Bill Cox, Dallas, for appellee.
   BATEMAN, Justice,

City Transportation Company of Dallas appeals from a judgment for $6,250. in favor of appellee for damages on account of bodily injuries sustained by her in a collision between an automobile driven by a Mrs. Flossie Williamson and a taxicab of appellant, in which the appellee was riding as a passenger. Appellee sued both appellant and Mrs. Williamson and obtained a joint and several judgment against them, based on a jury verdict. The record before us indicates that Mrs. Williamson has paid to appellee half of the judgment and half of the court costs and has been released. A careful study of the entire record reveals no errors requiring reversal.

By its first point on appeal the appellant complains of jury misconduct in six separate instances, alleging (A) that the foreman of the jury informed other members during their deliberations that he had been paid $6,000. in settlement of a claim he had for automobile accident injuries less serious than those of the plaintiff; (B) that the foreman failed to disclose on the voir dire examination that he had sustained such prior injuries and the settlement therefor; {C) that the foreman viewed the scene of the accident during the trial and reported to the other jurors during their deliberations that the red light facing the co-defendant Mrs. Williamson as she entered the intersection was the red insignia on the hub of a Pontiac sign rather than a red traffic light; (D) that the foreman told the other jurors during their deliberations that the intersection in question did not constitute a “blind” corner for appellant’s cab driver; (E) that one or two women jurors visited the scene of the accident during the trial and testified in the jury room during the deliberations concerning their personal observations, particularly with reference to whether or not the intersection was a “blind corner” for appellant’s cab driver; and (F) that various jurors made estimates during their deliberations as to the amount of attorneys’ fees that plaintiff would have to pay out of her award. Nine of the twelve jurors testified at the hearing of appellant’s amended motion for new trial, and the statement of facts includes 157 pages of such testimony.

To give the substance of all of this testimony, even in summary form, would extend the length of this opinion unreasonably. Suffice it to say that there was some testimony in support of all the points of alleged misconduct, but as to each of these points several of the jurors testified that one or more of their number admonished the remainder of the jurors that such matters were not covered by evidence and should not be, and that they were not, considered in answering the special issues submitted to them. After patiently hearing this great volume of testimony of jurors, and giving appellant every reasonable opportunity to demonstrate the irregularities complained of and that it had been harmed or prejudiced thereby, the trial court doubtless had little if any difficulty in determining, as we do, from all of the testimony offered, both on the hearing of the motion for new trial and the entire trial, that appellant failed to meet the burden imposed by Rule 327, Texas Rules Civil Procedure, to establish by a preponderance of the evidence that “it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.” Rule 327, T.R.C.P.

The foreman of the jury testified that he made some statement to the jurors to the effect that some thirty years previously, while he was a small child, he had been in an automobile accident and that he had heard that his parents received a $6,000. settlement of his claim, and that all he had suffered was a black eye. However, the foreman also testified several times that this statement was made after the jury had come to a decision as to the damages to be awarded appellee. Then, he later admitted that this statement must have been made prior to the final decision as to damages. He also testified that one or more of the jurors, including himself, had admonished the remaining jurors that the settlement his parents had received for his black eye some thirty years ago could not be considered because it was not in the evidence.

Concerning the failure of the foreman of the jury to disclose on the voir dire examination that he had had a prior personal injury and had received a settlement therefor, it clearly appears from the corrected and substituted bill of exception filed by the court under Rule 372, T.R.C.P. that during the voir dire examination the judge himself asked the entire jury panel: “Has any of you ever had a claim or lawsuit for bodily injury or injuries to your person?” Also that the juror Plyler, who later served as foreman of the jury, did not respond in any manner to such question; that counsel for appellant did not ask any questions of prospective jurors as to whether any of them had ever had a claim or lawsuit for bodily injury or injuries to the person; and that no testimony or evidence was introduced to show whether this juror’s non-disclosure of his injury or claim filed in his behalf had or would have any material bearing on the outcome of the suit or any material hurt or harm to any of the parties to the suit. We find no evidence in the record contradicting the last statement by the trial judge and therefore hold that appellant failed to meet the burden imposed upon him by Rule 327, T.R.C.P., to show, that, if the irregularity complained of was actually error, harm resulted therefrom. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; Tudor v. Tudor, Tex.Civ.App., 311 S.W.2d 733, 736, err. ref. 158 Tex. 559, 314 S.W.2d 793.

Although there was evidence that the jury foreman had driven by the scene of the accident during a noon recess of the trial, and expressed the opinion in the jury room that (1) a red insignia on a Pontiac sign facing Mrs. Williamson as she entered the intersection was probably mistaken by the witness Echveste for a red traffic light, and (2) that the corner was not “blind”, there was also evidence that several of the jurors, including the foreman, stated that these matters were not in the evidence and should not be considered by the jury. Furthermore, the foreman said the reason he had pointed out to the jury that he didn’t think it was a blind corner was that they “had a photograph to prove otherwise.” There is no showing made that the viewing of the scene by one or two of the women jurors and their expressed opinion concerning the blind corner had any effect whatever on the verdict.

Furthermore, we deem the testimony concerning the Pontiac sign to be immaterial. Appellant’s witness Echveste testified that at the time of collision the signal light facing Mrs. Williamson was turning from red to yellow. The jury found that she drove her vehicle into the intersection “at a time when the traffic signal light facing her was not green in color,” which was negligence and a proximate cause of the collision. Apparently the jury believed Echveste’s testimony. How, then, can appellant be said to have been harmed by misconduct which, if it had any effect at all, tended to discredit or weaken Echveste’s testimony, but failed to do so ?

The testimony concerning the mentioning of attorneys’ fees also falls short of showing such misconduct as to require reversal. It is true, someone mentioned during the deliberations that this would be an expense item for appellee to pay, but several of the jurors testified that this discussion came up after the jury had decided on the amount of appellee’s damage award. Whether that be true or not, there is certainly no evidence in the record that the mention of attorneys’ fees affected the ■amount of the damage award or in any other manner caused harm or prejudice to appellant. At least two jurors testified that the mention of attorneys’ fees came only after they had agreed on the damage issue, although one of them later admitted it must have preceded the agreement. Nevertheless, several jurors admonished the others and reminded them that this matter could not properly be considered because it was not in the evidence and there was nothing about it in the charge.

By overruling the motion for new trial after hearing this testimony, the trial judge impliedly found that if misconduct occurred it was not of such nature that it probably resulted in injury to appellant. Rule 327, T.R.C.P. We cannot say from this record that the trial judge abused his discretion in so finding. Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770; City of Dallas v. Hutchins, Tex.Civ.App., 226 S.W.2d 155, err. ref. n. r. e.; McCarthy Oil & Gas Corp. v. Cunningham, Tex.Civ.App., 255 S.W.2d 368, err. ref. n. r. e.; Trice Contract Carpets & Furniture Co. v. Gilson, Tex.Civ.App., 329 S.W.2d 476, err. ref. n. r. e.; Commercial Credit Co. v. Groseclose, Tex.Civ.App., 66 S.W.2d 709, err. dis.; Dallas Transit Co. v. Collier, Tex.Civ.App., 317 S.W.2d 557, no wr. hist. Appellant’s entire first point is therefore overruled.

Appellant’s second point of error on appeal raises two contentions, the first of which is that the court committed reversible error in overruling appellant’s objection, made on the voir dire examination of the jury panel, to questions propounded to the jury panel by appellee’s counsel concerning appellee’s background with respect to the use by her of narcotics. Counsel for appellee asked the members of the jury panel if any of them would consider any evidence on appellee’s use of narcotics for any purpose, to which appellant’s counsel objected and the objection was sustained; whereupon appellee’s counsel then asked the members of the jury panel if they would hold evidence of this nature against the plaintiff, which was objected to and the objection was sustained; whereupon ap-pellee’s counsel asked the members of the jury panel if any of them had any bias or prejudice as to the appellee if during the trial evidence of her use of narcotics in prior years or of any narcotic convictions in the past should be introduced. Appellant’s objection was overruled by the court with the statement that interrogation as to bias or prejudice would be proper. During the course of the trial evidence was introduced by appellant to show appellee’s use of narcotics in the past. We see no error in this ruling and overrule appellant’s point in that respect. Art. 2134, Vernon’s Ann.Tex. St; Kansas City Life Ins. Co. v. Elmore, Tex.Civ.App., 226 S.W. 709, no wr. hist.

The second part of appellant’s second point complains of the court’s refusal to admit in evidence certified copies of several convictions of appellee for violations of the narcotics laws, arguing that, as these convictions were for offenses involving moral turpitude, they were admissible for impeachment purposes as touching upon appellee’s credibility as a witness, and as bearing on her state of health prior to the accident. Appellee denies that the offenses involved moral turpitude and says appellant’s sole purpose in offering the evidence was to inflame the jurors’ minds against her. Our examination of the proffered documents reveals five convictions; three for unlawfully purchasing narcotics, one for having them in possession, and one for having in possession equipment for subcutaneous injection of narcotics. She was not charged or convicted of using or selling narcotics to others. Appellant relies on the rule stated in Adams v. State Board of Insurance, Tex.Civ.App., 319 S.W.2d 750, 753, as follows: “It is" well recognized that in civil as well as criminal cases a prior conviction of a c.rime involving moral turpitude is admissible to impeach a witness whose character for truth and veracity is in issue.”

While entertaining some doubt that appellee’s said crimes involved such moral turpitude as to warrant their use for impeachment of her' as a witness, it is not necessary for us to decide that question. Appellee freely admitted on cross examination that she had been convicted of narcotics violations in the State and Federal Courts, and had actually served time in the penitentiary. That being true, if there was error in rejecting this documentary evidence of those convictions, the documents were merely cumulative of appellee’s own admissions on the .stand and we hold that such error was harmless. Rule 434, T.R.C.P. We also hold that the certified copies of the convictions could not have any material bearing on the appellee’s health prior to the accident. Accordingly, appellant’s second point is overruled.

Appellant’s additional points complain of jury arguments of counsel for appellee and of counsel for Mrs. Williamson. We have carefully examined the record of these arguments and find nothing therein, or that transpired in connection therewith, which amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment, and hence, under Rule 434, T.R.C.P., we are compelled to overrule these points of error.

Counsel for appellant did not object to two of the four arguments of ap-pellee’s counsel complained of, or to any of those made by counsel for Mrs. Williamson. If such arguments could be said to have been improper, they were all of such a nature that the error could have been cured by withdrawal by the attorney or by the court’s instruction to disregard. Therefore, the error, if any, was waived. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054; Traders & General Insurance Co., v. Whitener, Tex.Civ.App., 279 S.W.2d 152, affirmed, 155 Tex. 461, 289 S.W.2d 233.

Appellee’s counsel stated in argument that appellants counsel didn’t “have the guts” to- bring the cab driver to court and let him testify from the stand. Appellant’s counsel interrupted to say that he thought this argument “unfair” because “anybody can subpoena anybody in Dallas County and if they want anybody here, they can subpoena them and bring them down here.” If this statement can properly be considered as an objection, we think the objection was sustained when the court stated: “Process is open to all of them. Let’s proceed.” Appellant’s contention in this respect is without merit. Tex-Jersey Oil Corporation v. Beck, 157 Tex. 541, 305 S.W.2d 162, 167, 68 A.L.R.2d 1062.

All of the assignments are accordingly overruled, and the judgment appealed from is

Affirmed.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    STATE of Texas et al., Appellants, v. ARANSAS DOCK AND CHANNEL COMPANY et al., Appellees.
    No. 14066.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 30, 1963.
    Rehearing Denied March 6, 1963.

      Will Wilson, Atty. Gen., Ben M. Harrison, Joe A. Osborn, Sam V. Stone, Jr., Asst. Attys. Gen., Austin, for appellants.
    Boyle, Wheeler, Gresham & Davis, A. W. Worthy, San Antonio, for appellees.
   BARROW, Justice.

This is a trespass to try title suit involving the mineral estate of approximately 1290 acres of submerged land and flats situated in Red Fish Bay, Corpus Christi Bay, and on Harbor Island in Nueces County. The case was tried without a jury and the State is appealing from a judgment which adjudicates fee simple title to both surface and mineral estates in subject tracts in the appellees, Aransas Dock and Channel Company and Aransas Properties, Inc. The State does not question appellees’ title to the surface estate.

The five surveys in question were each patented to the Aransas Pass Channel and Dock Company, pursuant to the provisions-of Sec. 4 and Sec. 6 of Chapter 45, of the General Laws, Regular Session of the 32d Legislature, Vol. 15 Gammel’s Laws, p. 69, which Act is referred to hereinafter as the 1911 Act. It was stipulated that the title of the Aransas Pass Channel and Dock Company passed to the appellees. The State asserts that the 1911 Act did not authorize the sale of the mineral estate. The Aransas Pass Channel and Dock Company and its predecessors in title have held said lands, including the mineral estate, without question for nearly, fifty years. • The State asserts that the one-year. statute of limitations, Art. 5329, Vernon’s Tex.Civ.Stats,,-i.s not applicable as the authority of the State to sell the lands is in issue.

Appellees, by cross-action, filed their owri trespass to'try title’action, alleging that the 1911 Act provides for the sale of public -lands without any reservation of minerals. Appellees further assert that, if there is any ambiguity, the State officials concerned with the administration of the Act have construed the Act, for over fifty years, as authorizing the sale of the fee title without a mineral reservation. Ap-pellees pleaded the one-year statutetof limitations and also that the State by accepting deeds to parts of the lands involved,-with a mineral reservation to appellees contained in said deeds, is bound by the recitals therein, where the State accepted the benefits under said deeds.

The State had ’ the unquestioned power to sell the fee title of both the surface and mineral estates. City of Galveston v. Menard, 23 Tex. 349. There is no question but that all five patents issued to the Aransas Pass Channel and Dock Company on their face purported to grant a fee to said lands. It is fundamental, however, that the validity of the grant of land by the State is based on the authority of the Land Commissioner to issue the patent. Empire Gas & Fuel Co. v. State, 121 Tex. 138, 47 S.W.2d 265; State v. Delesdenier, 7 Tex. 76. Therefore, it is necessary to examine the 1911 Act to determine the estate authorized by the Legislature to be conveyed.

It is important to review the historical background of said Act as an aid to arrive at the legislative intent. Cousins v. Sovereign Camp, W. Q. W., 120 Tex. 107, 35 S.W.2d. 696. This Act was a part of the long struggle to procure deep water across the-Aransas Pass Bjir between St. Joseph Island and Mustang Island, so as to provide an entrance: for ocean-going vessels to.,-the docks.on Harbor Island and to the Port of Corpus Christi. The 25th Legislature in 1897 passed a related Act and authorized the sale of Harbor Island and the submerged islands between Harbor Island and the main vicinity of the town; of Aransas Pass to the Aransas Pass Harbor Company. It is undisputed that at the time the 1911 Act was passed, the Aransas Pass Channel and Dock Company had dredged the channel and had become vested with a statutory easement in a 700-foot strip on each side of the channel under authority of Chapter 23 of the Acts of the 25th Legislature. Vol. 10, Gammel’s Laws, p. 1073, now Art. 1479, Vernon’s Ann.Civ. St.

From this background it is seen that the primary purposes of the 1911 Act are to encourage the development and use of the harbor and to prevent a monopoly, as would have been possible under the previous Act. It is a settled rule of statutory construction that it is proper to look at all parts of the legislative Act to ascertain its proper construction and meaning, and thereby determine the legislative intent. In applying this rule, the courts will not look to any one phrase, clause or sentence, but to the entire Act. This includes the caption, the body of the Act and the emergency clause. Trawalter v. Schaefer, 142 Tex. 521, 179 S.W.2d 765.

In examining the 1911 Act in this light, in our opinion, it provides for the sale, as provided in the patents, of “all the right and title to said land heretofore held and possessed by the said State.” There was no reservation of minerals and therefore “all right and title” included all minerals. It is significant that the title and caption of the Act specifically authorize the sale of lands. There is no intimation that any of the sales should be limited to an easement or that different types of purchases would be authorized or required. Sec. 1 and Sec. 2 authorize the “sale of lands” and there is no limitation anywhere in the defined area set forth in Sec. 2, which would seek to create two classes of estate. The emergency clause set forth in Sec. 14 authorizes the sale without limitation of the lands. Sec. 3 deals with the rights of a railroad company to purchase under this Act, and for the first time reference is made in the Act to a “right of say.” Sec. 4 is the section specifically giving channel and dock companies their purchase rights under this Act. We believe that as to Surveys 652, 653 and 654, the Act is clear and unambiguous that fee title passed to grantee without reservation of the minerals.

Surveys 650 and 651 present a more difficult question. It is seen that Sec. 4 authorizes channel and dock companies to make purchases. These two surveys were granted under the authority of permitting channel and dock companies to purchase a right of way adjoining the channel. It is our belief that it is more consistent with the purpose of the Act that this term was merely used as descriptive rather than as limiting the title. We have already observed that there is no mention or even intimation of sale of a right of way or easement in the caption. All land was treated in the same manner in the Act and was sold for the same price. It is also significant that before applying to purchase the lands, the channel and dock company was required to complete the channel. The right of way was not in the channel. We can not see a purpose to conveyance of a right of way in this instance. State suggests that this was to dump mud as the channel was dredged. However, it is seen here that the channel was already completed before the application to purchase was made. In a related Act of the 36th Legislature, Vol. 19, Gammel’s Laws of Texas, First Called Session, Ch. 70, p. 182, providing for the sale of lands in and under Matagorda Bay, and for construction of a channel, the Legislature conveyed the fee to the strip of land adjoining the channel. It did expressly reserve the mineral estate.

Furthermore, it is seen that channel and dock companies were given authority under Sec. 4 to sell or lease a part of .this property. This authority would be inconsistent with grant of only an easement. Also, since the Aransas Pass Channel and Dock Company owned a statutory easement at the time of the passage of the 1911 Act, it cannot be presumed that the Legislature would provide for the sale of only an easement on the same tracts. There would be no purpose in Aransas Channel and Dock Company to quitclaim its statutory easement to the State and then turn around and purchase only the same right The only restriction or limitation in the Act related to the prevention of a monopoly which admittedly has not occurred. Sec. 4 set forth various purposes for which the land could be used, although it did not seek to restrict its use to them. Davis v. Skipper, 125 Tex. 364, 84 S.W.2d 318.

It is provided in Sec. 4 that any channel and dock company or municipality purchasing lands under this Act shall have the right to erect thereon any docks, wharves, warehouses, elevators, coal chutes, terminal tracks, dry docks, slips or ship yards and all appurtenances thereto, useful or necessary in the development of its property and proper conduct of its business, or in the development of said deep water port. The granting of only an easement would not be consistent with this type of development. City of Galveston v. Menard, supra, was a suit over ownership of flats located between a city street and the main channel. The Supreme Court held that by the strict letter of the legislative grant, Menard’s right of property did not extend to the channel. However, the Court, after full discussion of purpose of the grant to develop the port, held that the grant is extended to the channel by resort to the plain intention of the contracting parties. ‘

It. is our opinion that in order to give meaning and purpose to the 1911 Act requires a construction that the use of the term “right of way” was merely descriptive and did not reserve the mineral estate as here contended by State. Texas Electric Ry. Co. v. Neale, 151 Tex. 526, 252 S.W.2d 451.

From 1911, and continuously thereafter for half a century, the construction we give to this statute, is that which the State and all its interested departments have given it. In 1911, the Attorney General rendered an opinion to the Land Commissioner that the patents to these lands should issue. What is now Article 5405, Vernon’s Ann.Civ.St., was then the reason that this matter was referred to the Attorney General for an opinion. That statute states that any question of illegality in the claim should be referred to the Attorney General, “whose written decision shall be sufficient authority for him to issue or withhold the patent.” This statute read with the 1911 Act was sufficient authority for the Land Commissioner to issue the patent. In his opinion, the Attorney General described the 1911 Act as one to “authorize the sale of portions of Harbor Island.” The Railroad Commission issued orders that the improvements required by the Act had been made in good faith, and approved the application to “purchase the land” upon the receipt by the Commissioner of the General Land Office, of a quit-claim by grantee of all other interest in said land.

In 1918, the Attorney General, in response to inquiry by the Land Commissioner, advised that the 1911 Act authorized the “sale of land” to persons other than a railroad company, a channel and dock company and a municipality. In 1938 the Attorney General, in response to an inquiry of the Railroad Commission, construed the 1911 Act as one authorizing the sale of both the mineral and surface estates. This inquiry was occasioned by the application for an oil permit to drill a well on lands purchased under the 1911 Act. The applicant had been sold this land under the authority granted in Sec. 4 of the Act. The Attorney General advised the Railroad Commissioner that the permit should be granted.

In 1939, the Land Commissioner prepared a map which showed that the minera 1 estate in the surveys involved herein did not belong to the State of Texas. In 1951, the Railroad Commission issued to appellees a permit to drill an oil well on Survey No. 652. From 1953 through 1960, the appel-lees paid the State Comptroller the gross production tax on the minerals produced by this well. In 1958 the State acquired by deed the surface estate to a part of the lands contained in Survey No. 650 and Survey No. 651. Even in this suit the Attorney General does not assert that only a right of way was granted, in that a claim is asserted for only the mineral estate, and the Attorney General does not except to the trial court’s adjudication of the surface estate in these surveys to appellees. It is also seen that in all subsequent Acts by the Legislature of a related nature, the Legislature expressly reserved the mineral estate. Thus we see that the Land Commissioner, the Attorney General, the Railroad Commission, and the State Comptroller, consistently have understood this Act in the way we have construed it.

Where an Act of the Legislature is ambiguous, the Courts are inclined to follow the administrative construction of the Act over a long period of time by the officials charged with its administration. Yoakum County v. Slaughter, 109 Tex. 42, 195 S.W. 1129; Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31; State v. Houston & T. C. R. Co., 95 Tex. 507, 68 S.W. 777; State v. Houston Oil Co. of Texas, Tex.Civ.App., 194 S.W. 422, writ ref. It is, therefore, seen, that in construing the estate conveyed under this Act, we should look at the construction given the Act by the officials charged by law with its execution, and when we do that we reach the result that the fee simple title, including both surface and mineral, was intended to be conveyed and was conveyed by the patents.

There is an additional reason why the judgment should be affirmed. This suit was brought on behalf of the School Land Board and the Permanent School Fund to recover the mineral estate. Inasmuch as appellees’ title was not questioned in the fifty-year period since issuance of the patents, we are confronted with the application of the one-year statute of limitation, Art. 5329, Vernon’s Tex.Civ.Stats., pleaded by appellees. This statute provides in part as follows: “No sale made without condition of settlement shall be questioned by the State or any person after one year from the date of such sale.”

It has been held that this statute has application only where the sale is authorized by law, or made under color of law. Caples v. Cole, 129 Tex. 370, 102 S.W.2d 173, reh. den. 129 Tex. 370, 104 S.W.2d 3, sets forth this construction. That case involved a trespass to try title suit in which it was asserted that the sale to Cole was void, in that Cole stipulated that the land involved was within five miles of a producing oil well, and, in this situation, the Land Commissioner was only authorized by law to lease the land. The Supreme Court noted that the sale was without authority, was made in the absence of a law, was forbidden by the law, and said it was null and void. However, the State had one year in which to do something about its issuance of the patent and did not do it. The Supreme Court held that the one-year statute of limitations prohibited the suit. On rehearing the Supreme Court limited the application of this statute to sales authorized by law or made under color of law, but held that Capíes’ suit was barred by the statute.

State v. Sneed, Tex.Civ.App., 181 S.W.2d 983, applies this rule and is very close in point. The case involved the sale of land admittedly within five miles of a producing oil well. The Land Commissioner testified that he applied to the Attorney General for a ruling under Art. 5405, Vernon’s Ann.Civ.St, before issuing the patent to Cole (See Caples v. Cole, supra), and the Attorney General advised that Cole had a right to buy said land even though located within five miles of a producing oil well. The Land Commissioner testified that he applied this same decision of the Attorney General to the land patented to Sneed. The Court of Civil Appeals cited with approval the definition that “color of title” means a good faith attempt to comply with the existing law. Under all these facts it was held that the grant was made under color of title and the one-year statute of limitation applied. The Supreme Court, State v. Sneed, 143 Tex. 121, 183 S.W.2d 566, in a memorandum opinion on motion for rehearing on application for writ of error, held that the one-year statute of limitation applied.

It is seen that under Sec. 6 of the 1911 Act the Railroad Commission is vested with the authority to determine eligibility of the purchaser and to decide which land is to be sold in order to prevent a monopoly. Upon these matters being determined satisfactorily, the Land Commissioner is given authority to issue a patent. If the Act provided for two types of grants, this authority would authorize the Land Commissioner to determine what type of grant to issue. Thus we have a situation similar to Caples v. Cole, supra, and State v. Sneed, supra. Before issuing the patents to Surveys Nos. 650 and 651, the Land Commissioner received an opinion from the Attorney General that Aransas Channel and Dock Company was entitled to purchase the land. This would show that the lands were purchased at least under “color of law,” and a good faith attempt of the Land Commissioner to comply with the Act. Where the State did not challenge, for approximately half a century, this grant of all its right, title and interest in these lands, the one-year statute of limitation prohibits its questioning same at this time.

The judgment is affirmed.


author: WERLEIN, Justice.

text:
    The FARMERS MUTUAL PROTECTIVE ASSOCIATION OF TEXAS (R. V. O. S.), Appellant, v. J. O. THOMPSON, Appellee.
    No. 14052.
    Court of Civil Appeals of Texas. Houston.
    Jan. 10, 1963.
    Rehearing Denied Feb. 14, 1963.
    Geo. E. Kacir, West, for appellant.
    Harris, Salyer & Taylor, A1 Taylor, Bay City, for appellee.
   WERLEIN, Justice.

Appellee, J. O. Thompson, sued The Farmers Mutual Protective Association of Texas (R.V.O.S.), on an insurance policy issued by it, to recover for damage to his barn caused by Hurricane Carla on or about September 10, 1961. Appellant is a Farm Mutual Insurance Company operating under Chapter 16 of the Texas Insurance Code, V.A.T.S. The trial court entered judgment in favor of appellee in the sum of $535.31 based on the jury verdict to the one Special Issue submitted. It was stipulated by the parties that appellee did not file proof of loss prior to January 1, 1962, or within 91 days after the loss occurred. At the conclusion of the evidence appellant filed a motion for instructed verdict, which was denied, and thereafter a motion for judgment non obstante veredicto and motion for new trial, both of which were denied.

Appellant asserts that the court erred in refusing to grant its motion for instructed verdict and also its motion for judgment non obstante veredicto because there was no proof of loss filed as provided in the insurance policy within 91 days as required by the insurance policy. The policy sued upon provides “Within 91 days after the loss, unless such time is extended in writing, the insured shall render to this Company a proof of loss signed and sworn to by the Insured,” and also provides what the proof of loss should show or reveal. It further provides, “No provision, stipulation or forfeiture of this policy shall be waived by any requirement, act, or proceeding of this Company relating to investigation, appraisal, or adjustment of any loss.”

Article 16.12 of the Insurance Code of Texas under the heading “Farm Mutual Insurance Companies” provides that “By-laws of the company shall always constitute a part of the contract with the insured and the policy shall so state.” Article 16.13 provides, “Such companies may provide in their by-laws that local chapters and officers an agents elected by them do not have the power to waive any provision of such bylaws.” Section 12 of the By-laws of appellant provides that “The application for insurance, inventory, by-laws, regulations of this Association, By-laws and regulations of the local lodge, and the policy constitute the contract between the member and this Association.” Section 13 of the By-laws provides, “Every member and every policyholder must comply completely with .every part of these By-laws and of all regulations of this Association, and all provisions of the policy. If he fails to do so, the insurance is thereby automatically cancelled, suspended and expelled.”

Appellee stipulated that he had had three letters within the 91 days reminding him he had not filed proof of loss. It was shown that appellant’s attorney wrote to appellee’s attorney on November 17, 1961, some two weeks prior to the expiration of the 91 day period, and enclosed two damage claim applications, and stated that if such form was used a jurat must be added, and further stated that “If you prefer, you may furnish an affidavit giving the items required on page 3 of the policy, as above mentioned.” It was further stated in such letter, “Upon receipt of either type of proof of loss herein mentioned, I shall be glad to submit it to the Board for its approval or disapproval of the amount or amounts claimed. We will, however, insist upon a complete itemized statement of the damage done, as required on page three of the policy.”

Under the foregoing provisions of the policy and by-laws, and in light of said letters, there was as a matter of law no waiver by appellant of the filing with it of proof of loss or an itemized statement of the damage done. Appellee failed to establish his right to recover on the policy. Commercial Union Assur. Co. v. Preston, 1926, 115 Tex. 351, 282 S.W. 563, 45 A.L.R. 1016; McKay v. American Central Ins. Co., Tex.Civ.App.1952, 245 S.W.2d 529; Provident Fire Ins. Co. v. Ashy, 1942, 139 Tex. 334, 162 S.W.2d 684.

There is another compelling reason why the court should have granted appellant’s motion for an instructed verdict. Appellant’s answer in which it is alleged that proof of loss had not been filed within 91 days was verified in conformity with Rule 93, Texas Rules of Civil Procedure. Appel-lee did mot plead in his first amended original petition upon which the case went to trial, or in any other pleading, that the filing with the company of proof of loss as provided in,the policy had been waived by appellant. Under Rule 94, T.R.C.P., waiver is an affirmative defense which must be pleaded by the party relying upon it. Ap-pellee could not rely upon waiver since it was not pleaded even though some evidence of waiver was introduced without obj ection. Brazos River Authority v. City of Graham, Tex.Sup.1962, 354 S.W.2d 99; City of Wichita Falls v. Bruner, Tex.Civ.App.1946, 191 S.W.2d 912; Andrews v. Powell, Tex.Civ.App.1951, 242 S.W.2d 656; Young v. Haynes, Tex.Civ.App.1956, 295 S.W.2d 536; 43-B Texjur. 489, § 12.

Not only was there no pleading of waiver but no issue was requested on waiver by either party and none was submitted to the jury. By failing to request submission of such issue, appellee has not met the burden placed upon him by law. No waiver can be imputed to appellant for such failure. Lincoln County Mut. Fire Ins. Co. v. Goolsby, Tex.Civ.App.1951, 240 S.W.2d 402. All independent grounds of recovery or defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed waived. Rule 279, T.R.C.P. McHaney v. Hackleman, Tex. Civ.App.1961, 347 S.W.2d 822, Ref., n. r. e.; Brazos River Authority v. City of Graham, supra.

In view of our holding, it is not necessary to discuss appellant’s other points.

Judgment of the Trial Court is reversed and rendered.

On Motion for Rehearing

Appellee has directed our attention to the fact that appellant did not in the trial court or in its brief raise the question of appel-lee’s failure to plead waiver. We, therefore, delete from our opinion the paragraph relating to appellee’s failure to plead waiver. This deletion does not change or affect our disposition of the case.

Motion for rehearing overruled.


author: PHILLIPS, Justice.

text:
    Helen B. GRIMES, Appellant, v. Ollie O. GRIMES, Appellee.
    No. 11041.
    Court of Civil Appeals of Texas. Austin.
    Feb. 20, 1963.
    Polk Shelton, Austin, for appellant.
    E. M. Grimes, Taylor, for appellee.
   PHILLIPS, Justice.

This is an appeal from a judgment granting a divorce on trial by the court sitting without a jury. The Trial Court rendered judgment in favor of the plaintiff husband on the ground of cruel treatment and the wife has appealed.

There were no findings of fact or conclusions of law, consequently the evidence must be viewed in a light most favorable to appellee, Parmeter v. Parmeter, Tex.Civ.App., 1961, 348 S.W.2d 51.

Appellant contends that the court erred in overruling appellant’s motion for new trial and in rendering a judgment granting the divorce because the evidence adduced at the trial was insufficient to grant the divorce and that the defenses of recrimination and condonation were raised.

Whether a wife’s conduct renders further living together insupportable is largely a question of fact, Art. 4629, Vernon’s Ann.Civ.St.

The rule of law in Texas is that a divorce may be granted on the ground of cruel treatment on the part of one spouse toward the other when such cruel treatment renders their further living together insupportable, Counts v. Counts, Tex.Civ.App., 1962, 358 S.W.2d 192.

The record before us shows repeated accusations on the part of the wife that the husband had been “going out or always seeing some woman, instead of going out for business”. That such conduct started back in 1930 when the parties were first married, that such harassing continued, caused the husband to be nervous. The husband denied having had anything to do with other women. The wife’s testimony was otherwise. The Trial Court believed the husband. We hold that the evidence was full and satisfactory with regard to acts of cruelty to uphold the judgment of the Trial Court.

Appellant alleges that should there have been any cruel treatment on her part, that after appellee left her to come to Texas, she visited him for two weeks, that they lived together as man and wife and that if there were such prior cruel acts they were therefore condoned. If such had been the case, the post card that the appellant sent appellee through the mails after this visit accusing him of living with a mistress is sufficient as an act of cruelty occurring after separation such as to revive condoned acts occurring prior to the separation, Branch v. Branch, Tex.Civ.App., 1962, 353 S.W.2d 247.

The record before us does not support the defense of recrimination.

The judgment of the Trial Court is affirmed.

Affirmed.


author: WILLIAMS, Justice.

text:
    MOORE VAN & STORAGE, INC., Appellant, v. YELLOW MFG. ACCEPTANCE CORPORATION, Appellee.
    No. 16103.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 1, 1963.

      Dexter W. Scurlock, Fort Worth, for appellant.
    Biggers, Baker, Lloyd & Carver, Spencer Carver, Dallas, for appellee.
   WILLIAMS, Justice.

Yellow Manufacturing Acceptance Corporation brought this suit against Moore Van & Storage, Inc., seeking to recover balance due on a conditional sales contract and note given to secure the purchase price of a Chevrolet Tractor. Defendant Corporation answered, admitting plaintiff’s cause of action, but seeking to offset same by cross action which contained alternative counts. Defendant alleged that plaintiff, pursuant to an option in the conditional sales contract, procured collision insurance on the Chevrolet Tractor and then can-celled said insurance after a collision loss which destroyed the property. In the alternative, defendant alleged that the acts of the plaintiff in procuring and then can-celling the insurance coverage after loss constituted a fraud with resulting damages. Trial was had to the court, without a jury, and after hearing evidence the court rendered judgment in favor of plaintiff, denying defendant all relief on its cross action. No request was made for findings of fact and conclusions of law and none were filed.

By three points on appeal appellant complains of the action of the trial court in (1) failing to find that plaintiff had exercised its right as mortgagee under the terms of the conditional sales contract by providing insurance and then cancelling same after the loss; (2) in holding as a matter of law that plaintiff had the right to cancel the insurance coverage on the tractor after the same had become a total loss by collision; and (3) failing to find for defendant on the issue of fraud.

The following rule of law pronounced by our Supreme Court in Renfro Drug Company v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114 governs our decision as to whether the trial court correctly rendered judgment for plaintiff:

“No findings of facts or conclusions of law were requested of or filed by the trial judge. The trial court’s judgment, therefore, implies all necessary fact findings in support of the judgment. In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto ‘it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.’ Austin v. Cochran, Tex.Com.App., 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.”

The record is undisputed that on May 4, 1960 appellant purchased a used Chevrolet Tractor from Kliff GMC Truck Co., of Fort Worth, Texas and at the same time executed a written conditional sales contract and note securing the purchase price of the vehicle. Said contract and note were assigned to appellee. The conditional sales agreement contained the following provision concerning insurance:

“It is the Purchaser’s obligation at all times during the life of this contract to keep the Property described herein insured against loss or damage by fire, theft or collision. Such insurance shall be written by an insurance company or companies and in an amount satisfactory to the Seller and shall name as beneficiaries or assureds, Purchaser, Seller or their successors or assigns, as their interests may appear. Upon failure of the Purchaser at any time during the life of this contract to maintain such insurance, Seller may, at Seller’s option, declare this contract in default or procure such insurance. In the latter event, Purchaser agrees to immediately pay the premium therefor upon receipt of notice of the procurement of such insurance as an additional part of this obligation.”

By its signed statement dated May 4, 1960, appellant asserted that it did not desire the seller to arrange for the insurance and that same would be secured from Carriers and General Insurance Company of Fort Worth, Texas, by appellant. On May 16, 1960 appellee wrote appellant requesting that it be furnished with evidence that insurance had been secured. On June 1, 1960 appellee again wrote appellant calling attention to the fact that no insurance coverage had been furnished and requesting that such be done immediately. On June IS, 1960 appellee wrote to Carriers and General Insurance Company requesting a copy of the insurance coverage that was supposed to have been written by that company. On July 17, 1960 appellant wrote appellee enclosing check for first payment on the note but completely ignoring all prior requests for insurance coverage. On July 8, 1960 appellee forwarded a request in writing to its main office in Detroit, Michigan asking that proper insurance be ordered covering the property in question. On July 8, 1960 appellee wrote appellant directing attention to the fact that appellant had failed and refused to provide evidence of insurance coverage and stated: “Since, of this date, we have not received the required evidence of insurance, we have ordered insurance on this equipment and you will receive evidence of the insurance within the next few days. The premium for this insurance is $159.00 and is due and payable with the next installment of your account.” (Emphasis supplied.) On July 12, 1960 appellant wrote appellee, said letter reading, in part, as follows:

“I received your letter today stating that you had added insurance coverage on the tractor that is financed through YMAC. We carry a fleet policy on all of our equipment which amount to over 27 units. Insurance in the amount of $1,000,000.00 liability and also fire and thief. At no time do we carry a deductable policy expecially on used equipment.
“We cannot accept the additional charge of $159.00 from your so called insurance company on 1957 Chev. purchased from Kliff GMC in Ft. Worth.
“We can do one of two things concerning this matter. One is that we can let YMAC hold a clear title to one piece of equipment to insure that in case of an accident that you will be paid, or we will have to finance thru another means. If this does not meet with your approval you can have the truck back immediately. * * * ”

Following receipt of this letter and on July 20, 1960 appellee forwarded a cancellation notice to its insurance department in Detroit, Michigan requesting prior order to be cancelled because: “Ordered in error — account to be self insured”. By date of August 1, 1960 appellee wrote appellant acknowledging receipt of appellant’s letter of July 12, 1960 saying, in part:

“ * * * In view of this fact, we have reviewed your file and find that your desire to be self-insuring as far as collision is concerned is satisfactory with us. * * * ” Also: “ * * * We are unable to reconcile your remarks regarding YMAC’s strict policy on insurance coverage. In reviewing the Customer’s Statement which you completed, you indicate that Carriers & General Insurance Company would provide the physical damage coverage. In no way were we advised that you were self-insuring as to collision. In view of the lack of insurance coverage, we had no choice but to proceed in accordance with provisions in our contract and place coverage to protect our interest.
“We wish to advise that we have cancelled the coverage which has been ordered and there was no additional charge to your account. * * * ”

The testimony is undisputed that the property in question was completely destroyed by collision on July 30, 1960. There is no evidence that appellee had knowledge of the loss on July 30, 1960 at the time the letter dated August 1, 1960 was addressed to appellant.

In reviewing this testimony in its entirety in a light most favorable to the judgment rendered by the trial court, we are impelled to the conclusion that the trial judge was amply justified in his findings implied in the judgment rendered. The trial court was supported by abundant testimony in impliedly finding that appellee acted in good faith when it relied upon the expressed desires of appellant made in writing that no insurance coverage was desired, none would be accepted, and none would be paid for. The record supports appellee’s interpretation of appellant’s course of conduct to the effect that it desired to be self-insuring insofar as collision loss on the vehicle was concerned. Appellant made this clear in writing by stating that it carried all other kinds of insurance, in large limits, but did not insure used vehicles of this kind against collision loss. The record is entirely devoid of any evidence that appellant knew, or reasonably could have known, of the loss on July 30, 1960, when it wrote the letter of August 1, 1960, advising that the insurance coverage, previously ordered, had been cancelled. With all of these facts before it, the trial judge was justified in finding that there was no fraud perpetrated against appellant by appellee and that ap-pellee did not cancel the insurance with knowledge of the loss.

Finding, as we do, ample evidence to support the judgment of the trial court we find no merit in appellant’s points and the same are therefore overruled. The judgment of the trial court is affirmed.

Affirmed.


author: ARCHER, Chief Justice.

text:
    Robert S. CALVERT et al., Appellants, v. AUSTIN LAUNDRY & DRY CLEANING CO., Inc. et al., Appellees.
    No. 11047.
    Court of Civil Appeals of Texas. Austin.
    Feb. 13, 1963.
    Rehearing Denied March 6, 1963.

      Will Wilson, Atty. Gen., H. Grady Chandler, William E. Allen, Asst. Attys. Gen., J. C. Aler and Michael A. Wash, Austin, for appellants.
    Kuykendall & Kuykendall, Austin, for appellees.
   ARCHER, Chief Justice.

Plaintiff, Austin Laundry & Dry Cleaning Co., filed suit agáinst the State Comptroller, Attorney General, Southern Union Gas Co., and the City of Austin, Texas, on its own behalf and on behalf of all other similarly situated for a declaratory judgment to declare that it was not liable for the sales tax on gas purchased from the Gas Company and electricity purchased from the City for use by it in the operation of a laundry and dry cleaning business, and to enjoin defendants from collecting said tax.

The Gas Company filed only a general denial to Plaintiffs’ Petition, while the City of Austin filed an answer disclaiming any interest and prayed that it be relieved from the necessity of any further appearance in the cause and are no longer concerned in this appeal.

It was claimed by plaintiff that the purchase and use of said gas and electricity was exempt from the Texas Sales Tax Act, Article 20.02, Taxation-General, Vernon’s Civil Statutes, (1) by virtue of Article 20.04, Section (B) (1) which provides an exemption from the tax from the sale of natural gas as taxed under Chapter 3 • of Title 122A, Taxation-General and (2) by virtue of Article 20.04, Section (Q) which exempts sale of gas and electricity when used in industrial operations.

The trial was without a jury. The court held that gas and electricity purchased by plaintiff was not exempt under Section (B) (1) above mentioned, but did find that the. business of plaintiff was an industrial operation and exempt under Section (Q) aforesaid and accordingly entered judgment that plaintiff and all others similarly situated are engaged in industrial operation and exempt from the sales tax levied by said Article 20.02 on natural gas and electricity used by them in the conduct of their business of operating laundries and dry cleaning establishments, and further permanently enjoined the defendants from collecting from plaintiff and others in the same situation the sales tax on natural gas and electricity sold to and used by them in operating their laundries and dry cleaning establishments in Texas.

The appeal is founded on five points and are that the court erred in finding that gas and electricity used by plaintiff is exempt from the sales tax because such use is an industrial operation; that there is no evidence to sustain such finding; that the evidence is insufficient; the court erred in decreeing that plaintiff and all others similarly situated are engaged in an industrial operation and are exempt from the tax; and in adjudging that the defendants be permanently enjoined from collecting the sales tax.

The sole question involved in this appeal is whether the named plaintiff and others similarly situated are engaged in industrial operations, and exempt from the payment of the sales tax.

Article 20.02, Title 122A, V.A.C.S. imposes the sales tax of 2% on the sale price of each item, etc.

Article 20.04(Q), the exempt service is as follows:

“Certain Utility Service Exempt. There are exempted from the taxes imposed by this Chapter the sale, production, distribution, lease or rental of and the storage, use or other consumption in this State of gas and electricity when used in industrial, manufacturing, mining, agricultural, dairy or poultry operations or pumping water for irrigation or for electrical processes such as electroplating and electrolysis.”

Appellee contends that it is entitled to an exemption on its purchases of gas and electricity because it uses its utility in an industrial operation.

It was stipulated that the named plaintiff, Austin Laundry S¿ Dry Cleaning Co., Inc., operates such corporation, and purchases gas and electricity for its use and brought the suit in its own behalf and approximately 4,000 other persons, firms or corporations in Texas engaged in the business of operating laundry and dry cleaning establishments on various scales of size.

A further stipulation was as to the equipment used in operating the Austin plant, and the number of employees, amount of pay roll, plant grounds and the amounts of costs of gas and electricity, etc.

The court rendered judgment for plaintiffs, and made findings that this is a class suit and that gas and electricity purchased and used were exempt by virtue of Article 20.04, Section (Q), Title 122A, Taxation-General, V.A.C.S., for the reason that the conduct of the business by the class is an industrial operation, and permanently enjoined the defendants from collecting from plaintiff and others in the class for whom the suit is brought the 2% sales tax on natural gas and electricity used in operating the laundry and dry cleaning establishments in Texas.

We believe the court was justified by the law and facts in rendering the judgment.

We have set out Article 20.04 which provides for an exemption for gas and electricity when used in industrial operations, and we believe that the operation of the laundry and dry cleaning plants are industrial operations and therefore tax exempt.

The State Comptroller issued Ruling No. 12 and with reference to use of gas and electricity for “Industrial” purposes or operation, recited:

“For the purpose of this law, the word ‘industrial’ shall be termed ‘noscitur a sociis’ that is, it shall be known from its associates. (The meaning of the word is or may be known from the accompanying words). It will be considered to be a broad term defining the specific industries following it. The exemptions allowed under this law will be those specifically mentioned above only.”

The maxim “noscitur a sociis” is a rule often applied so that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it. Farmers’ and Mechanics’ National Bank v. Hanks et al., 104 Tex. 320, 137 S.W. 1120.

The word “industrial” has a meaning of its own and the maxim referred to above may be used as a guide to ascertain legislative intent, and cannot be transformed into a “manufacturing”, “mining” or “agricultural” operation. 39 Tex.Jur. p. 208, Section 112; Russell Motor Car Co. v. U. S., 261 U.S. 514, 43 S.Ct. 428, 67 L.Ed. 778.

Section 1, Article 10, Construction of Laws, Vernon’s Ann.Civ.St. in part reads “ * * * The ordinary signification shall be applied to words, except words of art * * Other sections of Article 10 set out additional rules of construction.

The Legislature is presumed to have used words in the sense in which they are ordinarily understood. Rudman v. Railroad Commission, 162 Tex. 579, 349 S.W.2d 717.

In Messenger Publishing Co. v. Board of Property Assessments, 183 Pa.Super. 407, 132 A.2d 768, the Supreme Court construed a newspaper as an industrial plant.

In Northside Laundry Co. v. Board of Property Assessments, 366 Pa. 636, 79 A.2d 419, it was held that a laundry was an industrial operation.

The pleading of appellees is sufficient to make applicable the rule of Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837, excluding application of the doctrine of the State’s immunity from suit.

The judgment of the trial court is affirmed.

Affirmed.


author: McNEILL, Justice.

text:
    A P V COMPANY, Inc., et al., Appellants, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.
    No. 6552.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 7, 1963.
    Rehearing Denied March 6, 1963.

      Brown & Murray, Ft. Worth, Kelley & Ryan, Houston, G. Gordon Whitman, Ft. Worth, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
   McNEILL, Justice.

This appeal is from an order overruling pleas of privilege. The suit was instituted in the District Court of Harris County by U. S. F. & G. Company, appellee, against appellants A P V Company, Inc., R. L. Fluff, I. S. Ashburn, Alton Vaughn, George W. Krog and others to recover upon an indemnity agreement in favor of said company. Being non-residents of the county,1 each of the named defendants filed pleas of privilege; each of such pleas were controverted; and after a postponed hearing thereof, said pleas of privilege were overruled. None of appellants have filed briefs except George W. Krog, and he will be referred to hereinafter as appellant.

When the pleas were controverted, in accordance with Rule 87, Texas Rules of Civil Procedure, the judge set hearing thereon for the 11th day of September, 1961, at 10 o’clock A.M. Proper notice of such hearing, including a copy of the controverting plea and a copy of the judge’s notation, was sent" by registered mail to each defendant as required by such rule.

• On Monday, September 11, 1961, the trial court was not in session and closed due to gulf hurricane “Carla” which struck in the area about that time. Appellant Krog is an attorney and resides in Fort Worth. Although he and Mr. Whitman, another Fort Worth lawyer representing some of appellants, had planned to ride to Houston' for the hearing, they did not do so because of bad weather; although Whitman came on and reached Houston Monday afternoon. On the day following, September 12, after a conference with attorneys for appellee, the court postponed the hearing on the pleas of privilege to September 18, 1961. On the postponed date the trial court heard the pleas and overruled them, including that of appellant. Appellant did not appear at the hearing.

Having appealed from the order overruling his plea, appellant urges that proper notice required by law for the hearing on his plea of privilege was not given him, and the trial court abused his discretion in hearing the postponed plea on September 18th.

The record shows that after the court, on September 12, reset the hearing for Monday, September 18th, appellee’s attorney attempted to reach appellant in Fort Worth by ’phone. Not being successful, on September 14th he sent appellant a letter by certified mail with return receipt requested, advising him of the hearing to be held on September 18th. In. addition to that, appel-lee’s attorney attempted several times to call appellant by long distance ’phone in Fort Worth, without success, until finally on Sunday afternoon, September 17th, about 5 o’clock he reached appellant, and advised him of the hearing to be held the next day. .Appellant stated he had been out of town during the week and had not gotten the letter nor any other previous notice of the setting.

Mr.. Whitman, the Fort Worth attorney representing part of 'the non-resident defendants, was again in Houston for the hearing on September 18th. Mr. Whitman and appellant shared offices in Fort Worth until July, 1961. Appellant called from Fort Worth at 9 A.M. on September 18th and talked to Mr. Whitman in Houston. He was again told by Whitman of the case being set for that day. In the conversation appellant told Whitman that he, appellant, was entitled to 10 days notice of any postponed setting as provided for under Rule 87, and he had not received it. He also stated that he had two appointments during the day in Fort Worth and he had no money to pay for an airplane ticket to Houston. He did not attempt to call the trial judge to ask for a postponement or delay but simply stood on his right as he asserted to receive another notice by registered mail of the hearing as required in the first instance by Rule 87.

When the provisions of Rule 87 have once been complied with, and the hearing set by the judge has been postponed, it is the non-resident defendant’s duty to use diligence in keeping informed as to when the hearing may be reset. He is not entitled under said rule to a new setting at least 10 days off and notice, as in the first instance. No case has involved this point. However, our construction is upheld by the opinion of the Subcommittee of the State Bar on Interpretation of the Rules. In its opinion found in 8 Tex.Bar Journal, p. 24, it was said:

“The hearing on the plea can be had (1) upon the date noted by the judge on the controverting plea, or (2) upon any subsequent date to which the judge may postpone the hearing, or (3) upon any date agreed to by all parties subject to the approval of the judge

McDonald, Tex.Civil Practice, Vol. 1, Sec. 4.53 at p. 454, has adopted this quotation.

Appellant also asserts that he was entitled to reasonable notice of the postponed hearing, and notice of less than 24 hours is not sufficient as a matter of law. We hold that it was appellant’s duty to have informed himself of the time of the postponed hearing. If more time would have helped appellant, he failed to use the means at hand to secure it when he did not request a delay or postponement, either by appealing directly to the judge or through his fellow Fort Worth attorney. He thus showed lack of diligence. The trial court’s order as to appellant is affirmed.

No briefs having been filed in behalf of appellants R. L. Huff, I. S. Ashburn, Alton Vaughn and A P V Company, their appeal is dismissed for want of prosecution. Kirby Lumber Corp. v. Walters, Tex.Civ.App., 277 S.W.2d 796.


author: HUGHES, Justice.

text:
    Frank S. BUHLER, Appellant, v. McCord McINTIRE, Jr., Appellee.
    No. 11045.
    Court of Civil Appeals of Texas. Austin.
    Feb. 13, 1963.
    Rehearing Denied March 6, 1963.

      Fly & Moeller, Victoria, for appellant.
    Gay & Meyers, Austin, for appellee.
   HUGHES, Justice.

This is a suit for damages for breach of a contract for the sale and purchase of land in Travis County. The plaintiff below, appellant here, was Frank S. Buhler. The defendant and appellee is McCord Mcln-tire, Jr. Both parties moved for summary judgment. Appellee’s motion was granted. Appellant’s motion was denied.

The contract of sale, dated January IS, 1958, was executed by Hampton Construction Company, Inc., as seller, and McCord Mclntire, Jr. and Jess P. Hampton, as purchasers. Appellant alleged that such contract was made for his benefit and that it had been assigned to him by the construction.company.

We copy the relevant portions of this contract :

“The purchase price is $42,500.00, payable as follows: $ note cash (of which purchaser has deposited with the undersigned agent $-- as part payment, receipt of which is hereby acknowledged by said agent) ;
“Condition of sale: (1) Purchasers agree to fullfill condition for cash payment of said property on or before eleven (11) months from date of this contract.
“ * * * Should the purchaser fail to consummate this contract as specified for any reason, except for material title defects, Seller shall have the right to retain said cash deposit as liquidated damages for the breach of this contract, from which the Agent shall be paid 50% of said cash deposit, or Seller may enforce specific performance of this contract.”

The pleadings and present state of supporting evidence make an issue of fact as to the right of appellant to enforce the foregoing contract.

The record is undisputed that no money has been paid by the purchasers under the contract. It also appears that the property involved has been sold to third parties, and appellant’s suit is for damages only.

Appellee seeks to sustain the judgment in his behalf upon two grounds: (1) That the contract of sale is too vague, indefinite and uncertain to be enforceable (2) that the contract excludes the recovery of monetary damages for its breach.

The contract, in our opinion, clearly provides that the total consideration of $42,-500.00 is to be evidenced by a note payable on or before eleven months from the date of the contract. Appellee, relying primarily upon Bryant v. Clark, 358 S.W.2d 614 (Tex.Sup.Ct.) says: “The terms of that note are left completely to future negotiation.”, and that “There is no agreement among the parties as to some of the essential terms of the sale and accordingly the contract is unenforceable.”

If the contract is lacking in any essential element and since it is a contract required to be in writing, it is unenforceable. Buratti and Montandon v. Tennant, 147 Tex. 536, 218 S.W.2d 842, 9 A.L.R.2d 742; Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150.

In Garcia v. Karam, 154 Tex. 240, 276 S.W.2d 255, it was held that the Statute of Frauds does not require that consideration for sale of realty be expressed in writing. Here the consideration for the contract is stated and the time of payment is given. It is also provided, as appellee and we construe the contract, that the pur-case price is to be evidenced by a note payable on or before eleven months. What terms of the note are left to “future negotiation?” Appellee does not suggest what these terms are. Perhaps he means interest and attorneys fees. While we know that such provisions are usually incorporated in notes, we are not aware of any reason compelling their inclusion.

It is our opinion that the contract of sale is not made uncertain by not being more specific about the terms of the note representing the purchase price.

We are of the opinion, however, that the vendor, and appellant who stands in his shoes, is, under the contract, precluded from .recovering actual damages, as distinguished from liquidated damages, for breach of the contract.

The contract restricts the remedies for its breach to a retention of the cash deposit as liquidated damages or to specific performance.

Vendor (and appellant) has voluntarily deprived himself of the remedy of specific performance by selling the property to third parties, making performance of the contract impossible.

There was no cash deposit, and the provision for liquidated damages is inapplicable and unenforceable. The effect of this is to leave the remedy of specific performance the only remedy for breach of the contract by the purchasers.

The general rule seems to be that parties having agreed upon the measure of damages for breach of their contract are accordingly bound. Tucker v. Northcutt, Tex.Civ.App., 248 S.W.2d 750, Waco Civil Appeals; Wade v. Southwestern Bell Tel. Co., Tex.Civ.App., 352 S.W.2d 460, Austin Civil Appeals. In 5 Corbin on Contracts, p. 323, Sec. 1068 it is stated:

“If a contract provision is held to be one for a penalty, it will have no effect upon the damages to be recovered; and occasionally they will exceed the penalty. Nevertheless, the courts see no harm in express agreements limiting the damages to be recovered for breach of contract. Public policy may forbid the enforcement of penalties against a defendant; but it does not forbid the enforcement of a limitation in his favor. Parties sometimes make agreements and expressly provide that they shall not be enforceable at all, by any remedy legal or equitable. They may later regret their assumption of the .risks of non-performance in this manner ; but the courts let them lie on the bed they made. Where a contract provides that damages for breach shall not be recoverable beyond a specified sum, it is obvious that the risk of loss beyond that sum is being assumed by the promisee. If the law allows him to assume the whole risk, with no remedy whatever, it is obvious that it will allow him to assume a part less than the whole.”

We have been cited to no case directly in point on the question before us but we believe the above authorities support our holding in principle. The question is primarily one of contract, secondarily, a matter of' public policy.

As we construe the contract, we enforce the contract as made by the parties. In the absence of countervailing public policy, this is what courts should do.

We are not aware of any public policy which invalidates a provision in a land sale contract restricting the vendor to the remedy of specific performance. It may be an unwise provision, but with this we have no concern.

The judgment of the Trial Court is affirmed.

Affirmed.

      . The figures $42,500.00 and the word “note” are in type; the remainder of this paragraph is printed.


author: ANDERSON, Presiding Judge. JAMES D. CLEMENS, Special Judge PER CURIAM.

text:
    DUBINSKY BROTHERS, INC., a Corporation, d/b/a Esquire Theatre, (Plaintiff) Respondent, v. INDUSTRIAL COMMISSION of Missouri, by and Through its Members June R. ROSE, R. W. Atkeson, and Charles E. Cates, Division of Employment Security of Missouri, by and Through its Director, Gordon P. Weir, Kenneth G. Siemers, (Defendants) Appellants.
    No. 31147.
    St. Louis Court of Appeals. Missouri.
    Feb. 19, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Denied March 22, 1963.

      George Schwartz, Jefferson City, for Division of Employment Security. Lloyd G. Poole, Jefferson City, for Industrial Commission of Missouri.
    Elmer A. Strom, Stephan E. Strom, and Strom & Strom, Cape Girardeau, Mo., for respondent,
   ANDERSON, Presiding Judge.

This is an action in two counts for judicial review of two decisions of the Industrial Commission of Missouri, on two claims filed by Kenneth G. Siemers for benefits under the Missouri Employment Security Law. The action was brought by Dubinsky Brothers, Inc., d/b/a Esquire Theatre, the employing unit. The defendants were the Industrial Commission of Missouri, the Division of Employment Security of Missouri, and Kenneth G. Siem-ers, claimant. The judgment appealed from reversed the decisions of the Industrial Commission which was in favor of claimant on both claims, and held that claimant was not entitled to the benefits claimed. There was a finding by the court that the decision of the Industrial Commission was not supported by competent and substantial evidence; was against the weight of the evidence and the law; that on the whole record the Industrial Commission could not reasonably have made its findings in favor of claimant. By said judgment it was also ordered that plaintiff have restitution if payments had been made under the decision of the Industrial Commission. Costs were assessed against defendants. From this judgment an appeal was taken by the Division of Employment Security and the Industrial Commission. Claimant did not appeal.

The claim which is the subject matter of Count I of the petition was filed February 2, 1959. Thereafter claimant sought benefits for the week ending March 21, 1959. The Deputy held that claimant was eligible for said benefits, and the Appeals Tribunal affirmed the Deputy’s decision. Respondent then applied to the Commission for a review, which application was denied. Said denial had the effect of affirming the Appeals Tribunal’s decision.

Respondent owns and operates the Esquire Theatre in Cape Girardeau, Missouri. Two projectionists were regularly employed at the theatre, each to work seven shifts per week. There were two shifts each day, one running from 1 P. M. to 6 P. M. and the other from 6 P. M. to 11 P. M. Paul L. Johnson and Richard Spalding were hired as regular projectionists at the thea-tre. Johnson was first employed in 1947 and thereafter worked seven shifts per week until he obtained additional work in 1956. At that time there was a contract between respondent and Local 700 of the International Alliance of Theatrical State Employes and Moving Picture Operators of The United States and Canada, which contract governed wages, hours and other conditions of employment of the motion picture operators at respondent’s theatre. Johnson, Spalding and claimant were members of Local 700. Under the union contract respondent agreed to employ only operators supplied by the Union, and the Union on its part agreed to furnish competent men as required by respondent. Under this agreement respondent did not have the right to select employees other than those supplied by the Union without the consent of the Union. This appears to have been in accordance with the usual procedure as, for instance, in the event an operator should become ill. In 1956 at the time Johnson secured additional work the business agent of the Union, at Johnson’s request, arranged for claimant to take over two of Johnson’s shifts. Mr. Foster, respondent’s manager, testified that he was asked over the telephone, if it would be agreeable to him for Siemers to work those two shifts. Under the Union rules Johnson had the right, due to his seniority, to take back the two shifts at any time he desired. Claimant worked these two shifts each week from July 1956 to December 1958. In September 1958, the respondent notified the Union that it was going to discontinue two of the matinees. This was discussed at a Union meeting and it was there decided that Johnson and Spald-ing would each work four and a half of the remaining nine shifts, and that claimant would discontinue his part-time employment. Foster testified that claimant did not explain why he was leaving, but that he was told by Johnson and Spalding that they would take full responsibility for operating all the shifts at the theatre except in case of emergencies or during vacation periods. There was no severance payment made to claimant, nor any notice by respondent of its desire to dispense with claimant’s services as required by the terms of the Union contract in the event of termination of employment of union members by respondent. Claimant gave the following testimony:

“Q. And the business agent of your union does the negotiating with the employers ?
“A. Yes.
“Q. And does it on behalf of the Union members ?
“A. Yes, him or some of the employees usually.
“Q. I mean whatever the business agent does or says, he is doing it as your agent?
“A. Yes.”

During the weeks for which claimant sought benefits he sought full-time work. He obtained part-time work and reported his earnings therefrom to the Division.

The administrative proceedings, insofar as they relate to Count II, were as follows :

Claimant renewed his claim for benefits under the Missouri Employment Security Law and thereafter claimed benefits for one week, viz.: the week ending July 11, 1959. He reported he had earnings in that week amounting to $31.35. The Deputy held that he was eligible for benefits subject to adjustment on account of said earnings. Respondent appealed, a hearing was had, and the Appeals Tribunal affirmed the decision of the Deputy. Respondent applied for a review by the Commission and the latter thereafter entered its order denying said application which had the effect of affirming the decision of the Appeals Tribunal.

The facts, insofar as they relate to Count II are as follows:

The contract between Respondent and the Union provided that operators employed by the respondent for one year were entitled to one week vacation with pay; that those employed two years or longer were entitled to two weeks vacation with pay. Johnson and Richard Spalding on account of the length of their service were both entitled to two weeks vacation under the contract. Some time during the first part of June 1959, Johnson requested a vacation of two weeks, beginning June 7 and ending June 20th. Mr. Foster, Respondent’s Manager, agreed that he might have his vacation at that time, and notified the business agent of the Union, William McDowell, that Respondent would need an operator to take Johnson’s place during the latter’s vacation. Mr. McDowell was not connected in any way with Respondent. McDowell advised Mr. Foster that if it was agreeable with him claimant would work as relief operator during the period of Johnson’s vacation. This was agreeable to Mr. Foster. Claimant was paid for the time he worked the same amount as Johnson drew as a regular operator. After claimant had worked a week at the theatre Spalding made a request for a vacation to begin at the end of Johnson’s vacation. Again Mr. Foster called McDowell and informed him of Spalding’s request. Claimant then appeared and worked the two weeks of Spalding’s vacation, which began June 21, 1959. At the end of 'the two vacation periods claimant left for the reason that his services as a replacement were no longer needed. Claimant understood that his employment was as a replacement during the vacation periods of Johnson and Spalding, and that the job would terminate when vacations were over. He was told that by McDowell.

Claimant was regularly employed as a part-time operator at the Broadway Thea-tre in Cape Girardeau, performing his services every Saturday and Sunday. He was so employed during the four ’ weeks he worked at Respondent’s theatre as a substitute for Johnson and Spalding. During the week ending July 11 (the one in controversy here) claimant earned $31.35 as a result of his employment at the Broadway Theatre. This was reported when he made his claim for benefits with respect to such week.

Respondent has filed a motion to-dismiss the appeal in this case for the reason that neither of the appellants is aggrieved by the judgment from which the appeal has been taken. In our opinion, there would be merit to the motion were it not for the fact that, in the judgment from which the appeal was taken, the costs of the action were assessed against appellants. This fact makes appellants aggrieved parties entitled to appeal under Sections 512.020 RSMol959, V.A.M.S. The motion to dismiss the appeal is overruled.

In appellant’s brief under points I and II of “Points Relied On”, appellants assign as error the action of the trial court in setting aside and reversing the orders of the Industrial Commission.

Claimant, although a party to the action below, filed no pleadings and made no appearance at the hearing; nor did he appeal from the adverse ruling of the trial court. The judgment against claimant is now final and any pronouncement by this court on the matter sought to be reviewed would amount only to an advisory opinion on moot questions. This we will not do. The Appellate Courts of this State have never permitted themselves to be used in such fashion, nor can appellants speak for a claimant who has abandoned his claim. The rule applicable is well stated in Howell v. Jackson County, 262 Mo. 403, 171 S.W. 342, l.c. 344, where the court said:

“An appellant is not allowed two voices on appeal, one for itself and another for some party absent and not complaining. One voice is enough. It is only errors that affect appellant' or •plaintiff in error that are reversible, and the courts lend an attentive ear to none other.”

Appellants’ next point is that the court «rred in that part of its judgment which provided that claimant should make restitution if payments of benefits had been made to him under Commission’s award. Here again it is apparent that no rights of appellants have been adversely affected by such order.

Finally it is urged that the court erred in assessing costs against the defendants. We make no ruling as to the right of Respondent to recover its costs against claimant, but we do hold that the assessment of costs against appellants was error, since they are representatives of the State. Hartwig-Dischinger Realty Co. v. Unemployment Compensation Commission, 350 Mo. 690, 168 S.W.2d 78. The judgment should be amended to relieve appellants of the obligation thereunder for the costs of said suit, and said cause is remanded for that purpose only.

WOLFE, J., concurs.

RUDDY, J., not participating.

On Motion for Rehearing or to Transfer to Supreme Court.

Motion denied.

JAMES D. CLEMENS, Special Judge

(dissenting).

Upon consideration of the motion for rehearing, it is my view that the same should be sustained and a rehearing had for the reason that the opinion rendered in this case is, in my judgment, contrary to the opinion of the Supreme Court in Krisman v. Unemployment Compensation Commission, 351 Mo. 18, 171 S.W.2d 575, and inconsistent with the case of Carlton v. Division of Employment Security, Mo.App., 246 S.W.2d 388 decided by this court and the case of Producers Produce Co. v. Industrial Commission of Mo., Div. of Employment Sec., Mo.App., 281 S.W.2d 619, decided by the Springfield Court of Appeals. However, the court has taken a different view of the matter. Therefore, I dissent from said action of the court and I further withdraw my concurrence in the opinion filed and dissent therefrom and, deeming the opinion contrary to the previous decision of the Supreme Court in Krisman v. Unemployment Compensation Commission, supra, I request that the case be certified to the Supreme Court for final determination.

PER CURIAM.

The opinion in this cause being deemed by one of the Judges of this court to be contrary to a previous decision of the Supreme Court of Missouri, the cause is hereby transferred for final determination to the Supreme Court of Missouri.