text:
    SOUTHWESTERN INVESTMENT COMPANY, Appellant, v. The AMERICAN NATIONAL BANK OF AMARILLO, Appellee.
    No. 7304.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 9, 1963.
    Rehearing Denied Jan. 6, 1964.

      Clayton, Martin & Harris, Amarillo, for appellant.
    Culton, Morgan, Britain & White, Amarillo, for appellee.
   DENTON, Chief Justice.

This case involves the superiority of Henson fifteen used automobiles. The liens asserted by appellant, Southwestern Investment Company, are claimed under the Trust Receipts Act, Article 5499a-51, Vernon’s Ann.Tex.St.; and the asserted liens of appellee. The American National Bank of Amarillo, are claimed under the Certificate of Title Act, Article 1436-1, Vernon’s Ann. P.C. Plaintiff below, Southwestern Investment Company, brought this action against Ruel Nichols and the appellee bank to declare the investment company’s liens superior and for foreclosure .of .such liens., The bank’s answer and cross-action sought substantially the same relief. • The case was. tried before a jury, however upon the conclusion of the evidence., it. vpas agreed in. open court by the parties hereto that there was no disputed issue. p.f fact, and the case was submitted to the court .-.without .the intervention of a jury. The trial court rendered judgment in favor of the. bank against both Nichols and appellant and in-favor of the appellant against Nichols. Only the appellant investment company has. appealed.

The evidence material to the determination of this case is undisputed. In December of 1958 Nichols became engaged in the sale of new and used cars. Soon thereafter he established a line of credit with the appellant investment company whereby appellant floor planned or financed Nichols purchase of cars to be resold. In order to facilitate the financing, Nichols signed a “Signature Authorization” which authorized an officer or employee of the investment company to sign notes, chattel mortgages, etc. for Nichols. They carried out this floor plan arrangement until Article 5499a-51, referred to as “Uniform Trust Receipts Act”, became effective on January 1, 1960. On January 4, 1960, Nichols entered into a trust receipt financing agreement with appellant and the same was filed with the Secretary of State in accordance with the Act. The record reflects the appellant filed annual trust receipts statements during the period material here. It is undisputed that throughout the period of dealing with Nichols appellant did not retain the certificates of title to the automobiles they financed for Nichols, nor were their liens noted on the titles. Nichols took possession of the certificates of title along with the automobiles being financed by the investment company. Appellant’s employees did make periodic inspections of the cars on Nichols’ lot but they did not call for nor inspect the certificates of title.

Following the enactment of the Trust Receipts Act, Nichols borrowed money from both thfe appellant investment company and the appellee bank. Beginning on August 30, 1960, Nichols borrowed money from the appellee bank for the purported purchase of these fifteen cars, after he had previously floor planned the same cars with appellant. At the time each of these cars was financed at the bank, clear certificates of title to the cars were turned over to the bank and retained by it. During one of its periodic inspections on March 16, 1961, the investment company’s employee discovered Nichols had sold several of the cars “out of trust”, and then learned for the first time that loans were being made to Nichols by the bank. The investment company then took possession of the cars. The bank refused to surrender the certificates of title and the finance company refused to surrender possession of the cars. Subsequent to appellant’s filing of this suit on April 6, 1961, the bank prepared applications for new certificates of title on the cars on which they had made loans. These new certificates of title showed ownership in Nichols with liens in favor of the bank in the amount of the respective loans. Prior to the trial of the case, the parties agreed that the cars involved would be sold and the proceeds of such sale were placed in the registry of the trial court. Nichols has been declared bankrupt and is not before the Court on this appeal.

The ultimate question to be decided is the superiority of the liens held by the respective parties. All cars involved were used cars as distinguished from new cars. The finance company contends its liens, established under the Trust Receipts Act, are superior and argues that once it complied with this Act its liens were established and they were under no duty or obligation to comply with the Certificate of Title Act. Appellant further takes the position that the two acts are in conflict and that the Trust Receipts Act, being the most recent, supersedes the Certificate of Title Act. The bank’s contention is that inasmuch as it retained the clear negotiable certificates of title in its possession in good faith and for value without notice of the investment company’s interest, its liens were thereby established and as such are superior to any liens that might have been acquired by appellant. It is undisputed that neither party had notice of the others dealings with Nichols.

A determination of the case requires' an interpretation of the Trust Receipts Act. Before proceeding, we are constrained to quote with complete approval Judge Patrosso’s description of the Trust Receipts Act in Citizens Nat. Trust & Savings Bank of Los Angeles v. Beverly Finance Co., 127 Cal.App.2d Supp. 835, 273 P.2d 714:

“* * * the statute is far from a model of perspicuity and its nebulous language, unless carefully read and analyzed, is readily susceptible to erroneous inferences.”

Under the terms of Section 7 of the Act, the investment company, as entruster, who has filed with the Secretary of State as required by the Act — as was done by the appellant — preserves “his security interest in documents or goods against all persons, save as otherwise provided by Sections 8, 9, 10, 11, 14, and IS of this Act.” In this case if any exception to the security preserved by the entruster does exist, it falls within Section 9(1) of the Act. The material portions of that act which is headed “Limitations on Entruster’s Protection Against Purchasers” reads as follows:

“Sec. 9. 1. Purchasers of Negotiable Documents or Instruments.
“(a) Nothing in this Act shall limit the rights of purchasers in good faith and for value from the trustee of negotiable instruments or negotiable documents, and purchasers taking from the trustee for value, in good faith, and by transfer in the customary manner instruments in such form as are by common practice purchased and sold as if negotiable, shall hold such instruments free of the entruster’s interest; and filing under this Act shall not be deemed to constitute notice of the entrust-er’s interest to purchasers in good faith and for value of such documents or instruments, other than transferees in bulk.
“(b) The entrusting (directly, by agent, or through the intervention of a third person) of goods, documents or instruments by an entruster to a trustee, under a trust receipt transaction or a transaction falling within Section 3 of this Act, shall be equivalent to the like entrusting of any documents or instruments which the trustee may procure in substitution, or which represent the same goods or instruments or the proceeds thereof, and which the trustee negotiates to a purchaser in good faith and for value.”

Section 1 of the Act defines “Document” as “any documents of title to goods.” The section also defines “purchaser” as “any person taking by purchase. A pledgee, mortgagee or other claimant of a security interest created by contract is, insofar as concerns his specific security, a purchaser and not a creditor.” “Value” is defined as “any consideration sufficient to support a simple contract.” Nichols is the “trustee” under this Act.

Upon the payment of each draft drawn by Nichols on the appellee bank to purchase each of the fifteen cars, the bank was a payee of a promissory note signed by Nichols, and in addition received a “clear” certificate of title to the car as security. Thus, it is clear the bank, as mortgagee, became a purchaser for value under the definition set out in the Act.

The question which then presents itself is whether the certificates of title acquired by the bank when it floor planned the cars for Nichols were “negotiable documents” under the terms of the Trust Receipts Act. Under Section 9, subd. 1(b), although the original subject of the en-trustment was “goods” rather than “instruments” or “documents”, the entrustment should be deemed to encompass “any documents or instruments which the trustee may procure in substitution, or which represent the same goods * * * or the proceeds thereof, and which the trustee negotiates to a purchaser in good faith and for value.” It seems clear that the certificates of title acquired by Nichols from the appellant investment company were procured by the trustee Nichols in substitution for or represents the same goods (the automobiles). Certificates of title to motor vehicles are prima facie proof of title to such vehicles. Commercial Credit Corp. v. Harris, Tex.Civ.App., 225 S.W.2d 247.

As stated above, the Trust Receipts Act defines “Document” as “any documents of title to goods.” This latter phrase is not defined by the Act, but it is defined by the Uniform Sales Act as follows:

“ ‘Document of title to goods’ includes any bill of lading, dock warrant, warehouse receipt or order for the delivery of goods, or any other doctiment used in the ordinary course of business in the sale or transfer of goods, as proof of the possession or control of the goods, or authorizing or purporting to authorize the possessor of the document to transfer or receive, either by indorsement or by delivery, goods represented by such document.” (Emphasis added)

Under this recognized definition, the certificates of title here involved clearly come within that definition. A certificate of title is necessary for the sale or transfer of a motor vehicle. To accomplish this an in-dorsement or assignment and delivery of the certificate of title is required. Indorsement and delivery are basic characteristics of a negotiable instrument. The Trust Receipts Act places-emphasis on the accepted practice of negotiability rather than technical appearances of negotiability. The assignment and delivery of a clear, unencumbered certificate- of title is the means whereby modern financing and sale-of auto- . mobiles are carried on.' We are of the opinion the certificates of title were negó- ■ tiable documents within the meaning of the Trust Receipts Act. It is to be further noted the investment company’s employees recognized the certificates of title as “clear, negotiable titles.” Nichols was required to' present these titles to the finance company, before his drafts were accepted-and paid. • We conclude therefore that when the bank in' good faith for value- took these unencumbered certificates of title -it became a purchaser of negotiable documents under' the meaning of the Trust Receipts Act and' that appellant’s filing under the Trust Receipts Act did not constitute notice of the entruster’s interest in the automobiles. The bank held these open titles in its possession even though its liens were not noted on the certificates. It has been held that a lender of money for the purchase of an automobile may protect himself by retaining the title papers in his possession or by causing a lien to be noted upon the papers. First State Bank of Corpus Christi v. Austin, (Tex.Civ.App.), 315 S.W.2d 390, (Error Refused). Associates Inv. Co. v. National City Bank of Waco, (Tex.Civ.App.), 231 S.W.2d 661. McKinney v. Croan, 144 Tex. 9, 188 S.W.2d 144. The bank chose to protect itself by retaining the certificate of title until the indebtedness on each car had been paid. Section 51 of the Certificates of Title Act makes it unlawful for any person to sell or offer for sale any motor vehicle without having the certificate of title thereto. Thus, by retaining the certificates of title, the bank effectively prevented Nichols from disposing of the cars or obtaining further financing until the bank’s liens had been discharged. No such precaution was taken by the appellant investment company as it permitted Nichols to retain the clear certificates of title.

The practice of banks and finance companies to retain possession of clear “open title” as security for purchase money is so general as to be of general knowledge. To the same extent is the practice of automobile dealers to receive this “open title” when automobiles are' purchased. In such instances the assignment of the certificate of title as signed by the owner does not contain the ñame of the purchaser. The name of the purchaser is inserted at the time the dealer sells the car. When the dealer sells the car, an application for a new title is made and the purchaser- is listed as the owner.- Neither the dealer in the used car nor the floor planning lender appears on the new title. - ■

Contrary to appellant’s contention, we do not think the Certificate of Title Act and the Trust Receipts Act are in conflict. In the first instance, the Certificate of Title Act is a specific act dealing only with motor vehicles and house trailers, while the Trust Receipts Act deals with “any chattels personal other than: money, things in action, or things so affixed to land as to become a part thereof.” The Certificate of Title Act recognizes the existence of “trust receipt liens” in Section 3 of the Act although undoubtedly it is making reference to the trust receipt known at common law. We therefore conclude the two acts are not in conflict and must be read together, and each given effect according to the facts and circumstances of the particular case. Both acts serve useful, unique purposes in present day commercial transactions.

The Texas Trust Receipts Act has not been previously interpreted by the Texas Courts. We must therefore look to other jurisdictions which have adopted similar acts. An excellent analysis of the material provisions which are identical with the sections under consideration here was made by the California court in Citizens Nat. Trust & Savings Bank of Los Angeles v. Beverly Finance Co., (Supra). The only material difference in that case and the case at bar is that the bank there purchased for value a conditional sales contract from the trustee as security for money loaned on the automobile rather than taking the certificate of title as security. The court held the bank was a purchaser in good faith and the instrument so purchased was in such form as by common practice was purchased and sold as if negotiable. The court concluded the rights of the bank were superior to those of the finance company, an entrust-er under the California Trust Receipts Act. See also General Credit Corp. v. First National Bank of Cody, 74 Wyo. 1, 283 P.2d 1009; and Dart National Bank v. Mid-States Corp., 356 Mich. 574, 97 N.W.2d 98. As stated above, the only material distinctions between this case and the case at bar are the types of instruments involved. In view of the language of identical trust receipts act provisions, we do not think this distinction is of any consequence as both instruments are of such a nature as to come within the exception of Section 9, subd. 1(a) and (b) of the Act.

It is undisputed the appellee bank was acting in good faith and without notice of appellant’s entruster interest in the automobiles and that the bank parted with value when it acquired the certificates of title. We therefore conclude the trial court correctly decided the liens of the bank were superior to those of the entruster, and as such the bank held such liens free of the entruster’s interest.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    Dan J. HAIDUK, Appellant, v. Eunice HAIDUK, Appellee.
    No. 14156.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 20, 1963.
    liehearing Denied Jan. 8, 1964.

      Elbert R. Jandt, Seguin, for appellant.
    L. Sanborn McDowell, Floresville, Van-dygriff, Presnal & Scofield, Austin, for appellee.
   MURRAY, Chief Justice.

This suit for a divorce was instituted in the District Court of Wilson County, Texas, by Eunice Haiduk against Dan J. Haiduk. The case was tried before the court without the intervention of a jury and resulted in judgment granting the divorce, awarding all of the real estate and part of the personal property to plaintiff, and further awarding to her the custody of their two minor children, and requiring defendant to pay the sum of $200.00 per month for the support of the children; from which judgment the defendant, Dan J. Haiduk has prosecuted this appeal.

Appellant’s first contention is that the general allegations in appellee’s petition for divorce are insufficient. Such allegations read as follows:

“On or about the 1st day of April, 1962, Defendant disregarded the solemnity of his marriage vow, and of his obligation of kind treatment toward the Plaintiff, commenced a course of unkind, harsh and tyrannical treatment which continued with very slight intermissions until Plaintiff finally separated from the Defendant on May 1, 1962. On numerous occasions during said period of time, Defendant was guilty of excesses, cruel treatment and outrages toward Plaintiff, of such a nature as to render their further living together insupportable, in consequence of which Plaintiff’s health has been impaired and it has become impossible for her to continue living with the Defendant.”

The sufficiency of these allegations was not challenged by special exceptions or in any other way. Appellant filed a general denial and was represented at the trial by counsel of his own choice.

In the absence of special exceptions, the allegations were sufficient. Art. 4629, Vernon’s Ann.Civ.Stats.; Rule 90, Texas Rules of Civil Procedure; McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459; Burks v. Burks, Tex.Civ.App., 252 S.W.2d 226; Kollenborn v. Kollenborn, Tex.Civ.App., 273 S.W.2d 660; Sloan v. Sloan, Tex.Civ.App., 228 S.W.2d 294; Renfro v. Renfro, Tex.Civ.App., 80 S.W.2d 348.

, Appellant next contends that the allegations of cruel treatment were not supported by clear and satisfactory proof. We overrule this contention. There was no request for findings of fact by the trial court, so we must view the evidence in a light most favorable to appellee. When this is done, we find the evidence sufficient, clear, and satisfactory.

The evidence shows that at the time ap-pellee married appellant she had three children by a prior marriage, the oldest of whom was a daughter, fourteen years of age. Appellant would not agree for this daughter to live in their home, and she was-forced to go and live with her father. There are two children by appellee’s second marriage, a daughter, Patsy, who was fourteen years of age at the time of the trial, and a son, Danny, age six. Appellee belonged to one demonination and appellant to a different denomination, thus they often quarreled over church matters. Appellant did not want appellee to contribute to her church. She would sometimes give a check for more than the grocery bill, secure the balance in cash and contribute it to her church. She sometimes took money out of the cash register at their jewelry store and gave it to the church. She offered to go to his church one Sunday, if he would go with her to her church the next Sunday. This he refused to do. She worked in the jewelry store and desired to have a hand in the management of the finances, but he told her to stay in the front and wait on the customers, while he worked on clocks and watches in the rear and managed the business, that she was not qualified to assist in the management. On one occasion he locked up the business and disappeared. She had to get a lawyer and a court order to open the safe. She found $1,300.00 locked up in the safe, and took and deposited it in the bank, and issued checks on such funds for payment of bills of the business that were past due and urgently in need of being paid. This displeased him. She always put in full time at the store and worked hard in the business, but he ordered her not to take any money out of the cash register. They were constantly quarreling and fussing and having arguments. When her son, who is now six years of age, was born he stated he was not the baby’s father. In 1958 he choked her over an inventory. She would make out orders for merchandise that her customers wanted, but he would not send in the orders, and it embarrassed her very much when her customers returned to pick up the merchandise. Finally, on the 11th day of June, 1962, he locked her out. of the store and changed the combination on the safe. She then separated from him and brought this suit for divorce. There were other quarrels, misunderstandings and arguments. She admitted that she was hard headed and sometimes started the quarrels herself. She admitted taking over-$600.00 worth of diamonds, out of stock and hiding them in a place unknown to appellant for some time. He thought they had been stolen and reported it to the sheriff. Though she knew he was greatly worried, she did not tell him the whereabouts of the diamonds. She stated that she thought he was going to leave her, and she wanted the diamonds so she would have something for a new start. She testified that his conduct had been such that they could never live together as man and wife. She said he had not been a husband to her for more than a year before they finally separated.

The trial court, that heard the witnesses testify and observed their conduct in the court room, found the evidence full and satisfactory and granted the divorce. We are unable to say that in so doing it committed reversible error.

Appellant next complains because the trial court in awarding the real property to appellee described it by metes and bounds, while there is nothing in the evidence showing such description, and we do not know from whence the description of the land came, but the record does show that a pretrial was held and certain inventories of the property were filed. It is not shown that the descriptions are inaccurate in any way. If the land awarded to appellee is not properly described and was not the land belonging to the community estate, it would seem that appellee would be the one to complain and not appellant. Appellant does not contend that the descriptions are not correct but only that they were not shown in the evidence. If this presents error, it is harmless error. Rule 434, T.R.C.P.

By his remaining points, appellant contends that the trial court erred in awarding all of the real property to appellee, and that the court thus divested appellant of the title to land which is prohibited by statute. Art. 4638, Vernon’s Ann.Civ.Stats. It is now well settled that a trial court can divest title to community property out of one spouse and into the other. Reardon v. Reardon, 163 Tex. 605, 359 S.W.2d 329; Harrison v. Harrison, Tex.Civ.App., 365 S.W.2d 698.

The trial court did not abuse its discretion in requiring appellant to pay $100.00 per month for the support of each of the two minor children.

The judgment is affirmed.


author: NORTHCUTT, Justice.

text:
    Earl WATSON, Appellant, v. Manuel HERNANDEZ et al., Appellees.
    No. 7313.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 9, 1963.
    Rehearing Denied Jan. 6, 1964.
    Willard G. Street, Jr., and J. R. Hall, Littlefield, for appellant.
    Moran & Miller, Dimmitt, for appellees.
   NORTHCUTT, Justice.

This is an action brought by Manuel Hernandez by and through his next friend, Ofelia Bird, as plaintiff, against Earl Watson, as defendant, to recover actual damages and exemplary damages because of the wrongful conversion by defendant of an automobile belonging to the plaintiff. The trouble arose over the possession of an automobile. This suit was brought in Castro County, Texas. The defendant filed his plea of privilege seeking to have the suit transferred to Lamb County, Texas, the county of his residence. The plaintiff filed his controverting affidavit seeking to retain venue under Exception 9 of Article 1995 of Vernon’s Ann.Texas Revised Civil Statutes. A hearing was had by the court and the plea of privilege was overruled, and from that order, the defendant perfected this appeal. The parties will hereafter be referred to as plaintiff and defendant as they were in the trial court.

Ofelia Bird went to the defendant seeking to secure a loan of $125 to give to her sister who at one time worked for the defendant’s son. The defendant in testifying concerning the making of this loan testified as follows:

“Q. Now, lets go back here to this loan transaction you are talking about. Where did all that take place ?
“A. Springlake.
“Q. What was the occasion for that?
“A. Well, they wanted to borrow some money.
“Q. Are you running a bank?
“A. No.
“Q. Are you running a finance company or a loan company?
“A. No.
“Q. Well, what was the occasion for you loaning these people money?
“A. Her sister, the lady’s sister, helped my boy strip cotton last year, last fall, and she was a good hand, and they came to me, this lady here, and she said it was her sister, I don’t know whether it' is her sister or not. She said this boy was her son, but I found out different since then. And this lady said that — or this lady hére did all the talking, said that her sister had some sick folks in the Valley and wanted to go back home, and asked me if I would loan her $125.00 on the car. And I told them that I didn’t know, I would have to think about it. And she was getting the money for her sister to go home on. And they came back, I don’t know, in two or three days, and I told them that I would, that I would loan her money so her sister could go home. I believe she said that she had some sick folks, kids, I believe, her kids. And I told her that I would, and I believe it was on a Saturday that they came down there, and I told them that I would let them have the money, and she said: ‘Well,’ she told me that they would sign the title over to me until they paid me, and I told them ‘All right.’ , And; §he said:
“‘Well,’ said, ‘The title'is ;in my son’s name.’ And ■ her son wasn’t with her. There wasn’t no man with her. And I; said i . .
“‘Well, you couldn’t-sign,the-title, you will have to go get him, ; and you can witness it. You can witness it.’ So' she went and-'^ot this boy and brought him ::back' ' down there, and we went down to ! Busby Motor Company, and' he ' didn’t do much talking. She' did • all the talking.
“Q. Well, did you loan her the money? Or did you loan .it to . her sister?
“A. I don’t know who.
“Q. Huh?
“A. I loaned it to her.
“Q. You loaned it to her?
“A. And she said that she was going to give it to her sister.
“Q. Well, did you loan the money to her sister, or did you loan it to her?
“A. I loaned it to her.”

The only written evidence introduced concerning this loan is an instrument headed “Note With Chattel Mortgage”, which was signed by Manuel Hernandez on January 8, 1963, but was never notarized. The note provided it was “payable in consecutive installments of $25 on a weekday of each consecutive month or as indicated in schedule of payments on the margin hereof, and commencing January 15, 1963.” No schedule of payments was indicated. One $25 payment had been made on the note. The date the payment was made is not shown. On February 19, 1963, the defendant took possession of the automobile. Since defendant took possession of the automobile four days after the second payment was not paid on February 15, 1963, we take for granted that the $25 payment was applied as to the payment due during the week beginning January 15, 1963. The second payment of $25 would be due on a weekday beginning February 15, 1963, and if that be true, the plaintiff still had at least two days in which to make the second payment when defendant took possession of the automobile.

The defendant presents this appeal upon two assignments of error. The effect of both defendant’s assignments contend there was no showing of a crime, offense or trespass as to bring this case within the provisions of Section 9 of Article 1995.

It is admitted the defendant took possession of the automobile in Castro County. It is well settled that conversion of personal property is a trespass under Subdivision 9 of Article 1995. Market Poultry and Egg Company v. Mueller, Tex.Civ.App., 287 S.W.2d 202; Amberson v. Wilkerson, Tex.Civ.App., 285 S.W.2d 420. If there is sufficient evidence to show that the defendant wrongfully took possession of the automobile of the plaintiff and converted it to his own use, then the trial court was justified in holding that defendant committed a trespass in Castro County and in overruling the plea of privilege.

On the day in question the plaintiff and Ofelia Bird were traveling south in the automobile and met the defendant as he was going north. The defendant turned around and started after the plaintiff and the plaintiff stopped. The plaintiff took the keys out of the car and put them in his pocket. The plaintiff testified that defendant came up to the automobile and opened the door and told the plaintiff to “scoot over”, that he looked at Ofelia Bird and she told him to scoot over. The plaintiff further testified defendant asked plaintiff for the keys and he refused to give them to him and Ofelia told him to give the keys to defendant.

The defendant testified that when plaintiff handed him the keys, he told them he was going to take the car home with him. He further testified they (plaintiff and Ofelia Bird) knew to move over, to give him the keys, and to get out. He did not have any kind of papers to take possession of the car. Defendant took the car and took it home with him and still had it in his possession at the time of this trial. On the same day defendant took the car he refused to let plaintiff have it unless he would pay the defendant $200. Defendant further testified that when he turned around to catch them, he was going to get the money or the car but he never asked them for the money and when he told them he was going to take the car he meant it. The plaintiff and Ofelia Bird testified the reason they let defendant have the car was because they were afraid of him.

A mortgagee cannot use force or violence to recover mortgaged property. Godwin v. Stanley, Tex.Civ.App., 331 S.W.2d 341, and cases there cited.

Plaintiff further contends the taking of the car was wrongful because of the invalidity of the alleged mortgage and wrongful because of the manner of taking. Manuel Hernandez was seventeen years of age when he gave the note and chattel mortgage to the defendant to secure the payment of the $125 loan to Ofelia Bird for the use of her sister. There was no fraud shown in this hearing on the part of the plaintiff, a boy of seventeen years of age. Plaintiff had never received any of the money and had nothing to return to the defendant. He did whatever he was told to do. Defendant knew the $125 was not for necessities for the plaintiff but testified he loaned the money to Ofelia Bird for the use of her sister. It is stated in the case of Rutherford v. Hughes, Tex.Civ.App., 228 S.W.2d 909, as follows:

“It has long been the established rule in this state that, with a limited class of exceptions, an infant’s contracts are voidable at his instance, regardless of whether they are beneficial or injurious to him or not, and, if he still has the consideration or property received by him, he must restore it to the party with whom he contracted and from whom he received it. Prudential Building & Loan Ass’n. v. Shaw, 119 Tex. 228, 26 S.W.2d 168, 27 S.W.2d 157.
“It is well established by the decisions that a minor is not estopped by his acts which mislead another to the latter’s injury unless the acts were intentional and fraudulent, and also unless the party with whom he deals relied upon such acts and conduct. Vogelsang v. Null, et al., 67 Tex. 465, 3 S.W. 451; Kilgore v. Jordan, 17 Tex. 341; Uhlmann Grain Co. of Texas v. Wilson, Tex.Civ.App., 68 S.W.2d 281.”

Under this record we are of the opinion the trial court could do nothing other than to deny the plea of privilege. Judgment of the trial court is affirmed.


text:
    GUADALUPE VALLEY ELECTRIC COOPERATIVE, INC. et al., Appellants, v. SOUTH TEXAS CHAMBER OF COMMERCE et al., Appellees.
    No. 14166.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 18, 1963.

      Powell, Rauhut, McGinnis, Reavley & Lochridge, Tom Reavley, B. D. St. Clair, Austin, Franklin S. Spears, San Antonio, Fred V. Klingeman, Karnes City, John A. Romberg, Gonzales, Cullen B. Vance, Edna, for appellants.
    Theo.- F. Weiss, Edward R. Finck, Jr., San Antonio, for appellees.
   MURRAY, Chief Justice.

Guadalupe Valley Electric Cooperative, Inc., and two other electric cooperative corporations 'brought this suit against South Texas. Chamber of Commerce, a corporation, and two of its officers, seeking a declaratory judgment, and injunctive relief to achieve equal treatment within that Chamber of Commerce organization, particularly in the publication of advertising in its official magazine, the South Texan. Following the filing of the suit, the South Texas Chamber of Commerce Board of Directors attempted to terminate the memberships of the plaintiffs. The Electric Cooperatives then amended their petition to establish their membership status in the South Texas Chamber of Commerce. The trial court held that plaintiffs’ memberships in the South Texas Chamber of Commerce had been effectively terminated and that they were not entitled to the injunctive relief they were seeking; from which judgment the three cooperative corporations have prosecuted this appeal.

If appellants’ memberships in the South Texas Chamber of Commerce have been legally and effectively terminated, then their equal treatment as members becomes a moot question.

We will first discuss the question of the termination of their memberships in the Chamber. The trial court made and filed the following findings of fact:

“1. The Defendant, South Texas Chamber of Commerce, is a private corporation, duly incorporated under the laws of the State of Texas; and is a nonprofit organization having no capital stock.
“2. Plaintiffs, Guadalupe Valley Electric Cooperative, Inc., Karnes Electric Cooperative, Inc., and Jackson Electric Cooperative, Inc., are corporations incorporated under the laws of the State of Texas.
“3. It, the South Texas Chamber of Commerce, is financed by membership dues and private subscription, and is a service organization, having for its purpose, the promotion of the development, growth and prosperity, and the welfare of Texas in general, and South Texas in particular. Its activities are also devoted to the dissemination of information to its membership by mail, the sponsoring of conferences on problems of agriculture and industry, and other matters of interest to its membership pertaining to the political and economic welfare of the State of Texas and South Texas in particular.
“4. The minimum dues for membership in the South Texas Chamber of Commerce were, at all times material to this controversy, the sum of $25.00 per year, which said sum the Plaintiffs paid to Defendant per year per membership; but the cost per year to perform its services to each of its members was the sum of $38.00.
“5. Guadalupe Valley Electric Cooperative, Inc., became a member of the South Texas Chamber of Commerce on December 18, 1957; Jackson County Electric Cooperative, Inc., became a member on August 19, 1957; and Karnes County Electric Cooperative, Inc., became a member on January 28, 1959; and at the time that each of the foregoing Plaintiffs became members of the South Texas Chamber of Commerce the by-laws of the South Texas Chamber' of Commerce made no provision for the approval of the membership of its members.
“6. The above and foregoing Plaintiffs continued as members of the South Texas Chamber, of Commerce, paying their dues annually and regularly until the expiration of their anniversary dates.
“7. That in October, 1961, by mail referendum, a proposition was submitted to the Board of Directors of the Chamber of Commerce to amend Section 1, Article 3, of the By-laws of the. Defendant Corporation to provide for the language contained in Plaintiffs’ Exhibit No. 6, which amendment added this clause: 'Provided, however, that all such membership applications and/or renewals of membership shall be accepted subject to approval of the Membership and Finance Committee.’ Subsequent to the mailing of such referendum to the Board of Directors, the votes of the Board having been returned and tabulated, it was revealed by such tabulation that the Board of Directors had adopted such amendment as hereinabove set out, by a vote of 60 for the adoption and none opposed.
“8. On January 18, 1962, at a meet-' ing of the Board of Directors of the South Texas Chamber of Commerce, the motion was made and carried to. reject the renewal of the memberships of the Plaintiffs herein; and pursuant to which resolution the renewal mem-' bership checks of the Plaintiffs were returned to them. , .
“9. On October 23, 1961, the Plaintiffs filéd'their Original Petition in this' cause. ' 1'
“10. Thereafter, on October- '22, 1962, at the regular annual meeting'of the membership of the South Texas Chamber of Commerce the-resolutioh' was proposed to amend Section 1, Ar-ti-; cle 3, of the By-laws of the South Tex-as Chamber of Commerce by adding the following language: ‘That membership applications and/or renewals of memberships'shall be accepted subject to the approval of the Membership and Finance Committee’ which said resolution was seconded and thereupon adopted by a unanimous vote of the general assembly of the membership.
“11. Following the meeting of the general assembly of the membership of the South Texas Chamber of Commerce, at a special called meeting, the Board of Directors convened at 11:30 o’clock a. m. of the same date and the amendment of the by-laws, as herein-above set out, by the general assembly of the membership was ratified by-said Board of Directors and Section 1, Article 3 of the by-laws thereafter was to read as follows: ‘Any individual, firm, corporation, or organization of good standing, having vested or other interests in South Texas, or interests associated with South Texas, shall be eligible to membership upon payment of dues as prescribed in this Article, provided, however, that all such membership applications and/or renewals of membership shall be accepted subject to approval of the Membership and Finance Committee.’
“12. At the same Annual Meeting of the Membership of the South Texas Chamber of Commerce it was proposed and adopted that Section 2 of Article 3 of the By-laws shall read as follows: ‘Types of membership shall be defined and minimum dues for each classification shall be fixed by the Membership and Finance Committee, which shall be composed of all members of the Board of Directors.’
“13. At the special called meeting of the Board of Directors of the South Texas Chamber of Commerce held on October 22, 1962, and after the adoption of the amendments by the general assembly of said Chamber, and after the ratification of such adoption by the Board of Directors of such amendment, the further resolution or proposal was made that the action of the Board of Directors rejecting renewals of the memberships of the Plaintiffs be ratified and confirmed, which resolution or proposal was unanimously adopted by the Board of Directors at such meeting on such date.
■ “14. That at all times material to this cause of action the By-laws of the South Texas Chamber of Commerce Contained no provision for the expulsion of its membership, as such.
“15. Pursuant to the amendment to Section 1, Article 3, of the By-laws of the South Texas Chamber of Commerce the applications for the renewal by the Plaintiffs of their membership have been rejected. , ,
“16. The members of the South Texas Chamber of Commerce acquire no distinct individual property right under a contract or other obligation of the South Texas Chamber of Commerce by virtue of their membership in the South Texas Chamber of Commerce.
“17. The members of the South Texas Chamber of Commerce acquire no property right as such by reason of their membership in the South Texas Chamber of Commerce.
“18. The Plaintiffs have lost no property right on account of the Chamber’s failure to renew their respective memberships; neither have they lost a pecuniary right on account of the Chamber’s failure to renew their respective membership, nor have they lost a contractual right on account of the Chamber’s failure to renew their respective membership; and that Plaintiffs have suffered no damages because of the failure of the Chamber to renew their respective membership.
“19. In one material aspect, at least, the principles, purposes and policies of the Plaintiffs have become inimical to the principles, purposes and policies of the South Texas Chamber of Commerce, and its membership, which inimical condition became obvious as- far back as the early part of 1961 with regard to legislation then proposed in the legislature by the Plaintiffs.
“20. The South Texas Chamber of Commerce did not expel the Plaintiffs from membership; neither did it attempt to expel them from membership in the South Texas Chamber of Commerce. The membership of members in the South Texas Chamber of Commerce expire on the annual anniversary date of said membership; and Plaintiffs’ memberships automatically expired on their respective anniversary dates.”

It is clear that a membership in the Chamber began upon the date the application for membership was received and terminated just one year later, on the anniversary date. Membership could be renewed for one year by payment of annual dues, provided such payment was accepted by the Membership and Finance Committee of the Chamber. When the Committee refused to accept appellants’ dues their respective memberships were terminated. While appellants were eligible to become members of appellee Chamber, they did not have a right to compel appellee to accept them. Washington Branch of American Association of University Women v. American Association of University Women, D. C., 79 F.Supp. 88; Gold Knob Outdoor Advertising Co. v. Outdoor Advertising Association, Tex.Civ.App., 225 S.W.2d 645 ; Harris v. Thomas, Tex.Civ.App., 217 S.W. 1068.

The trial court properly held that appellants’ membership renewals were validly and legally rejected, because the bylaws amendment, which specifically authorized such action, was valid and did not defeat or impair any vested right of appellants. The by-laws were amended in the way provided in the constitution giving the Board of Directors the right to reject applications for renewal of memberships and such Board unanimously voted to reject the renewal of appellants’ memberships. Stevenot v. Norberg, 9 Cir., 210 F.2d 615; Quilliam v. Hebbronville Utilities, Tex.Civ.App., 241 S.W.2d 225; Cline v. Insurance Exchange of Houston, 140 Tex. 175, 166 S.W.2d 677. “Courts are not disposed to interfere with the internal management of a voluntary association. The right of such an organization to interpret its own organic agreements, its laws and regulations, after they are made and. adopted, is not inferior to its right to make and adopt them. And a member, by becoming such, subjects himself, within legal limits, to his organization’s power to administer, as well as to its power to make, its rules.” Brotherhood of Railroad Trainmen v. Price, Tex.Civ.App., 108 S.W.2d 239.

This is not a case of expulsion of members, but merely a refusal to accept appellants’ renewal of membership. Such action does not require notice and hearing. Manning v. San Antonio Club, 63 Tex. 166; Lone Star Lodge No. 1,935, etc. v. Cole, 62 Tex.Civ.App. 500, 131 S.W. 1180.

Inasmuch as appellants ceased to be members of South Texas Chamber of Commerce when their renewals were rejected, the question as to their right to receive equal treatment with members of the Chamber becomes moot. .

The judgment is affirmed.

BARROW, J., disqualified and not sitting.


author: LANGDON, Justice.

text:
    T. A. MITCHELL et al., Appellants, v. Sarah Ann ELLIS, Appellee.
    No. 16468.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 20, 1963.
    Rehearing Denied Jan. 17,1964.

      Simon, Crowley, Wright, Ratliff & Miller, and George A. Crowley, Fort Worth, for appellants.
    Crumley & Hooper, Frank E. Crumley, Roswald É.‘ Shrull and R. E. Rouer, Fort Worth, for appellee.
   LANGDON, Justice.

Personal injury suit. The appellee, who was the plaintiff below, sued the appellant T. A. Mitchell for damages due to personal injuries allegedly received in an automobile accident on September 12, 1960. It was alleged that the defendant T. A. Mitchell was liable to the plaintiff because of certain negligent acts committed by the defendant’s employee, Alva Drane, while allegedly in the scope and course of his employment for the defendant. The case was submitted to the jury upon special issues.

Only one question is presented for review. Was there any evidence from the plaintiff’s standpoint to raise a fact issue for the jury as to whether Alva Drane was acting within the course and scope of his employment when the collision occurred ? The question was raised in the trial court by defendant T. A. Mitchell’s motion for judgment non obstante veredicto.

The motion was overruled and judgment entered for the plaintiff based upon the jury’s findings to the special issues. This action of the court is assigned as error by the defendant who contends that the undisputed evidence established as a matter of law that at the time of the accident in question the defendant’s employee, Alva Drane, had deviated from the scope and course of his employment and was on a mission personal to himself and therefore, defendant was not liable under the doctrine of respon-deat superior. In our opinion the contention of defendant is well taken. For the reasons hereinafter stated the judgment is reversed and rendered.

The material facts in the case which are undisputed reflect that the defendant T. A. Mitchell is engaged in the operation of a neighborhood lumberyard business. Alva Drane, a colored boy, is his only fulltime employee. Prior to the accident T. A. Mitchell knew that Alva Drane smoked and Drane had Mitchell’s implied consent to turn aside briefly from his work to purchase cigarettes. Just prior to the accident in question Alva Drane was driving defendant’s flatbed truck from a dumping area to the lumberyard. It is agreed that the route taken by Drane was a reasonably direct one. When several blocks from the lumberyard, Alva Drane pulled from the lane of traffic over to the shoulder of the road and stopped to get some cigarettes at a nearby liquor store. It is undisputed that the cigarettes were for his personal use. The jury absolved Drane of any negligence in parking the truck. It found he was negligent in crossing the street at the time he did and that he was negligent in failing to keep a proper outlook after he dismounted from the truck. It is undisputed that Drane’s only object in visiting the liquor store was to purchase cigarettes for his own personal use and that he was crossing the street on the way to the liquor store when the accident occurred.

“When a servant turns aside, for however short a time, (emphasis added) from the prosecution of his master’s work, and engages in the doing of an act not in furtherance of the master’s business, but to accomplish some purpose of his own, the relation of master and servant is temporarily suspended, and the master is not liable for the servant’s acts during the period of that suspension. A servant who turns aside from the master’s work to engage in an affair of his own ceases to act for the master and responsibility for what the servant then does in pursuing his own business or pleasure rests on himself alone.” 38 Tex.Jur.2d, pp. 512, 513, § 252 and authorities cited. Southwest Dairy Products Co. v. De Frates, 132 Tex. 556, 125 S.W.2d 282, 122 A.L.R. 854; Williams v. Roney, Tex.Civ.App., 275 S.W.2d 537, writ ref., n. r. e.

In the absence of evidence to the contrary, the fact that Drane was driving the defendant’s truck together with the fact that he was regularly employed by him was sufficient to raise a presumption that he was acting within the course and scope of his employment at the time of the collision. Hudiburgh v. Palvic, 274 S.W.2d 94 (Tex.Civ.App.), writ ref., n. r. e. and cases cited therein.

This presumption however was rebutted or dispelled by testimony which was clear, positive and uncontradicted to the effect that Drane had abandoned his master’s mission and was engaged in one exclusively his own when the accident occurred.

The presumption is not evidence and is not to be regarded as having raised an issue of fact for the jury’s determination when it is. met by positive rebutting proof. Hudiburgh v. Palvic, supra.

“In order for a third person to recover damages from a master for the negligence of his servant, the burden of proof rests on the plaintiff to show by a preponderance of evidence that the servant was acting within the scope of authority given him by the defendant, and the burden does not shift to the master during the trial. Proof that a servant’s act was done in the course and scope of his employment necessarily requires that any suggestion by the evidence that the act was done while he was on a purely personal errand of his own shall be countered and overcome by evidence.” 38 Tex.Jur.2d, p. 514, § 254 and authorities cited.

For an act to be in the course and scope of a servant’s employment it is necessary that, (1) it be done within the scope of the general authority of the servant, (2) in furtherance of the master’s business, and (3) for the accomplishment of the object for which the servant is employed.

Proof of such act necessarily requires that any suggestion by the evidence that the act was done while the servant was on a purely personal errand of his own be countered and overcome by evidence. 33 Tex.Jur.2d, p. 514, supra. See also Hudiburgh v. Palvic, supra, and Houston News Co. v. Shavers, Tex.Civ.App., 64 S.W.2d 384, writ refused.

In our opinion the plaintiff in this case failed to meet the burden of proof required of her. The uncontradicted evidence reflects that at the time of the accident in question the employee Drane was engaged in a purely personal errand of his own. He was doing nothing to further the master’s business or to accomplish the object for which he was employed. His master’s business was at a complete standstill while Drane attended to his own pleasures.

It is immaterial that the act in question occurred during normal working hours or that the employer did not object to his employee Drane turning aside from his employment to purchase cigarettes., It would appear rather far-fetched to say that some benefit would flow to the employer because his employee was more contented when permitted to smoke and thus his purchase of cigarettes did not amount to a cessation of his employment. See Bresnan v. Republic Supply Co., Tex.Civ.App., 63 S.W.2d 1105, writ refused, and Galveston, H. & S. A. Ry. Co. v. Currie, 1906, 100 Tex. 136, 96 S.W. 1073, 10 L.R.A.N.S., 367.

Since the record in this case, without contradiction, reflects that the employee Drane had turned aside from his employment to accomplish some purpose of his own it necessarily follows that the learned trial judge erred in overruling the defendant T. A. Mitchell’s motion for judgment non obstante veredicto. The judgment against T. A. Mitchell is accordingly reversed and judgment here rendered that plaintiff take nothing as against said defendant.

Reversed and rendered.


author: RENFRO, Justice.

text:
    W. T. BRYANT, Appellant, v. GARY-NEES LUMBER COMPANY, Inc., Appellee.
    No. 16473.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 20, 1963.

      Sullivant, West & Meurer, and George L. West, Gainesville, for appellant.
    Stark & Davey, and Richard S. Stark, Gainesville, for appellee.
   RENFRO, Justice.

This is a trespass to try title suit brought by Gary-Nees Lumber Company, Inc., against W. T. Bryant. The dispute actually concerns the north 200 feet of a three acre tract of land conveyed by Bryant to Ell Edwards and subsequently conveyed by Edwards to the Lumber Company.

Plaintiff brought the action in statutory form and described the land by metes and bounds. Defendant filed a not guilty plea and a general denial.

The case was submitted to the jury on one issue. The jury found that at the time plaintiff obtained the land from Edwards plaintiff had no notice that defendant claimed any interest in the land. The jury was instructed that “by the term ‘notice’ as used herein, is meant either that Gary-Nees Lumber Co., Inc. had actual knowledge thereof or that it had (ac) knowledge and information of such facts as would put a reasonably prudent person upon inquiry as to whether Bryant was making any claim from which inquiry, if made with reasonable diligence, Gary-Nees Lumber Co., Inc. would have ascertained the facts as to the claim.”

There were no exceptions to the charge.

Defendant contends instructed verdict should have been granted him because the plaintiff did not prove common source of title. The three acre tract was originally a part of a larger tract owned by defendant. The defendant deeded the three acre tract to Edwards, who in turn deeded the three acre tract to plaintiff. Defendant obtained the larger tract, which included the three acre tract, from the Veterans’ Land Board.

The above was sufficient to prove plaintiff's source of title. Goode v. Davis, Tex.Civ.App., 135 S.W.2d 285; 41-A Tex.Jur. 696-7, § 157.

Defendant argues the court erred in refusing his requested issue inquiring whether the tract of land purchased by plaintiff from Edwards had as its north boundary line concrete markers set by a surveyor in 1957. The issue as requested was orefaced with an instruction that it was to be answered if the jury answered the issue given, “They had notice.” Since the jury found “no notice”, the issue would not have been answered by the jury if given.

The defendant contends that under his not guilty plea he was entitled to prove any defense available legal or equitable, except limitation, citing Briggs v. Freeway Park Development Co., Tex.Civ.App., 366 S.W.2d 270, and consequently the court erred in sustaining, in part, plaintiff’s motion in limine, preventing defendant from proving a boundary agreement between defendant and plaintiff’s predecessor. In ruling on the motion the court stated: “I will allow the defendant to offer proof of any open and notorious fences or marker which would place the plaintiff upon notice that the land being conveyed was less than that called for in the deed. I will allow him to show that there had been a mistake made by a prior surveyor, the defendant if he can do so.” The court did allow full interrogation concerning a prior survey of the larger tract, markers existing at the time of purchase by plaintiff and the erection of a fence which cut off the north 200 feet of the three acre tract. Out of the presence of the jury the defendant was permitted to testify to the alleged agreement with Edwards.

In order that a boundary may be established by agreement there must either be a dispute or else uncertainty about the boundary’s true ground location. Hinds v. Parmley, Tex.Civ.App., 315 S.W.2d 159. It is requisite that the agreement be definite and unconditional. Harne v. Smith, Sup., 79 Tex. 310, 15 S.W. 240;. Decker v. Rucker, Tex.Civ.App., 202 S.W. 1001; McCabe v. Moore, Tex.Civ.App., 38 S.W.2d 641. In Farmer v. Kornfuehrer, Tex.Civ.App., 271 S.W.2d 501, it was held: “Before an oral agreement as to a boundary line will be binding upon the parties there must be .uncertainty, doubt or dispute as to the real boundary line. Gulf Oil Corp. v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711. The agreement must be definite and unconditional. 7 Tex.Jur. 199, .§ 57; McCabe v. Moore, Tex.Civ.App., 38 S.W.2d 641.” We have examined the excluded testimony and in our opinion it did not contain the above requisites.

Defendant contends judgment should have been rendered for him because as a matter of law plaintiff had such notice, by reason of the fence and certain markers, as to excite reasonable inquiry regarding title. It is to be remembered that defendant owned a 75 acre tract of land. In his deed to Edwards the three acre tract is described as “BEGINNING at the Southwest Corner of said 75 acre tract on East line of the right of way conveyed by Mrs. S. E. Dickinson et al. to State of Texas by deed recorded in Book 317, page 310 of Deed Records of Cooke County, Texas; THENCE with East line of said right of way N 34 W 840 feet; THENCE N 56 E 200 feet; THENCE S 34 E parallel with the Eást line of said right of way 615 feet to South line of said 75 acre tract in center of creek; THENCE S 79 deg. W 70 feet, corner in creek; THENCE S 3 E 205 feet, corner in creek; THENCE S 15 E 80 feet to the beginning.” The deed from Edwards to plaintiff contained the same description. There were no references.to markers or monuments of any kind. Hence, there was nothing in the deeds to put plaintiff on notice that defendant or anyone else might claim the 3 acre tract or any part thereof.

Defendant did not plead or testify to any claim by limitation.

The plaintiff made out its case for title to the disputed strip by introducing the above mentioned deeds.

The jury, guided by appropriate instruction, found that plaintiff did not have notice that defendant claimed any interest in the land.

All points of error are overruled.

Judgment affirmed.


text:
    Willie Alice BEASON, Appellant, v. LEGAL SECURITY LIFE INSURANCE COMPANY, Appellee.
    No. 7308.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 16, 1963.
    Rehearing Denied Jan. 20,1904.
    Carl. P. Hulsey and Robert G. Chappell, Abilene, for appellant,
    Douglas E. Bergman and Jbhn W. Hicks, Jr., Dallas, for appellee.
   NORTHCUTT, Justice.

The appellee, Legal Security Life Insurance Company, issued its policy of insurance No. 1^5147 to Riley Clark Beason on August 16, 1960. The policy of insurance was in the amount of $5,000. Appellant, Willie Alice Beason, was named as beneficiary in said policy. The premiums on the policy were payable monthly in advance in the sum of $3.60 on the sixteenth day of each subsequent month. The policy contained a provision allowing 31 days grace on the payment of premiums. The policy further provided that reinstatement could be accomplished by furnishing evidence satisfactory to the company of the insurability of insured and the payment of all overdue premiums. No evidence of the insurability of the insured was ever presented to the appellee.

Riley Clark Beason died December 31, 1960. Notice of the death of Riley Clark Beason was given to appellee and due proof of such death was likewise furnished the appellee company. Appellee denied liability under the policy. Appellant filed suit for the amount of the policy and also sought statutory penalty and attorney’s fees. The premium that was due September 16, 1960, was paid September 26, 1960, which was within the 31 days grace period. The premiums due on October 16 and November 16 were not paid when due. On December 12, 1960, a check was sent to appellee to pay the October 16 premium and appellee received and accepted the $3.60 on December IS, 1960. No more premiums were ever paid. It is the contention of the appellee that the policy lapsed for the nonpayment of the premium due on October 16, 1960, and was not reinstated prior to the death of Riley Clark Beason by Beason making application as provided under the policy. The appellee further contended that if the policy was reinstated prior to Riley Clark Beason’s death said reinstatement was nothing more than an extension of coverage, if any, up to and until November 16, 1960, with the 31 days grace expiring December 17, 1960.

it was the contention of appellant that when appellee accepted the $3.60 payment on December 15, 1960, it reinstated the policy and waived the payment of November 16, 1960. This case was submitted to a jury upon special issues and the jury found that when appellee accepted the $3.60 on December 15, 1960, which was credited to the October premiums, appellee did not intend to require payment of the November premium by December 17, 1960. Appellee filed and presented its motion for judgment non obstante veredicto. The trial court sustained appellee’s motion for judgment non obstante veredicto and rendered judgment that appellant, Willie Alice Beason, recover nothing and from that judgment appellant perfected this appeal.

We are of the opinion that judgment was rendered upon the theory that the payment on December 15, 1960, only waived' the October 16, 1960, payment and never waived the November 16 payment and that the policy lapsed on failure to pay by December 17, 1960, the November 16 payment under the 31 days grace. After accepting the $3.60 payment due October 16, the appellee had no right to cancel the policy for non-payment of the premium due November 16, 1960, until after the expiration of the 31 days grace. Since ap-pellee had no right to cancel the policy until after December 17, 1960, waiver could not exist until an occasion arose for intentional relinquishment of a known right. There could be no relinquishment until after December 17, 1960, after the 31 days grace had expired. Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855; Texas & P. Ry. Co. v. Wood, 199 S.W.2d 652; Aetna Life Insurance Company v. Eilers, Tex.Civ.App., 145 Tex. 534, 367 S.W.2d 732 (writ refused).

Appellee’s reinstatement of the the policy on December 15, 1960, did not create a new contract relationship between the parties, but merely restored that which existed previously without in any way altering its terms, and hence did not carry with it any extension of the period of grace for making the November payment. The November premium should have been paid on or before December 17, 1960, and by failure to make said payment the policy lapsed and was never renewed before the death of assured. See Stewart v. Metropolitan Life Ins. Co., 346 Pa. 314, 30 A.2d 314, a Pennsylvania case almost identical with the facts of this case.

We conclude, on the facts herein, that appellee did waive payment of the October premium by accepting the payment thereof in December; but did not waive payment of the November premium within the period of grace allowed by the policy to prevent a lapse. The November premium not having been paid within the time permitted, there could be no recovery under the policy. Judgment of the.trial court is affirmed.


author: POPE, Justice.

text:
    I. G. (Cap) YATES, Appellant, v. DEL RIO WOOL & MOHAIR COMPANY et al., Appellees.
    No. 14204.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1963.
    Rehearing Denied Jan. 8,1964.
    E. B. O’Quinn, Marfa, for appellant.
    Montague & Thurmond, W. P. Wallace, Jr., Del Rio, for appellees.
   POPE, Justice.

Del Rio Wool & Mohair Company filed this interpleader suit to determine the ownership of funds in its hands from the sale of mohair. The trial court, after hearing the evidence, divided the funds two-thirds to defendant I. G. (Cap) Yates and one-third to defendant W. L. Babb. The court awarded attorney’s fees to the attorney- for plaintiff, and also gave judgment for Babb against Yates for other claims he had against Yates.

Yates appealed and states two points. The first is that the court’s judgment is in violation of Section 19, Article 1, of the Texas Constitution, Vernon’s Ann.St. The other is that the judgment violates the Fourteenth Amendment to the United States Constitution. The brief states no factual basis for either point and does not purport to brief them. The judgment is affirmed. Thigpen v. Locke, Tex., 363 S.W.2d 247; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887; Coastal Transmission Corporation v. Lennox, Tex.Civ.App., 331 S.W.2d 778.


author: DENTON, Chief Justice.

text:
    Katheryn WHITFILL, Appellant, v. Elmer Lee HUNT et al., Appellees.
    No. 7305.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 16, 1963.
    Rehearing Denied Jan. 13,1964.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Sam H. Allred, Lubbock, Scarborough, Black, Tarpley & Scarborough, Abilene, for appellees.
   DENTON, Chief Justice.

Elmer Lee Hunt, individually and as next friend for his minor daughter, sued appellant, Katheryn Whitfill, for injuries suffered by his wife and daughter growing out of an intersection collision in Lubbock, Texas. Trial was had before a jury and the jury answered the special issues in favor of the plaintiff and fixed plaintiff’s damages at $2,500.00 for Hunt’s wife and $500.00 for his daughter. The trial court entered judgment in accordance with the jury’s verdict.

Hunt, accompanied by his wife and daughter, was driving his automobile in a northerly direction on Cherry Street and Miss Whitfill was driving alone in a westerly direction on Bates Street. The collision occurred at the intersection of these two streets. Both drivers were familiar with the streets. There were no traffic signals at the intersection. There were no obstructions except for a large truck loaded with lumber parked on Cherry Street to Hunt’s right as he approached the intersection. There is some dispute as to how far it was parked from the corner, but it doesn’t appear to have been close enough to have obscured the view of either driver. In response to the special issues submitted, the jury found defendant Whitfill failed to keep a proper lookout; and that this was a proximate cause of the collision; that the defendant was driving at a high and dangerous rate of speed under the circumstances; that this was negligence and a proximate cause of the collision; that plaintiff Hunt did not fail to keep a proper lookout; that he did not fail to yield the right-of-way; that Hunt did not operate his automobile at an excessive rate of speed under the circumstances; and that the collision was not unavoidable.

Appellant’s first four points of error complain of the trial court’s failure to instruct the jury on the law regarding right-of-way, and contends there was no evidence and insufficient evidence to support the jury finding that plaintiff did not fail to yield the right-of-way. Appellant’s requested instruction conformed with Section 71 of Article 6701d, Vernon’s Ann.Civ.St., and read as follows:

“You are instructed that the term ‘right-of-way,’ means the privilege of the immediate use of the highway.
“You are further instructed that by the term ‘highway’ is meant the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for the purposes of vehicular traffic.
“You are further instructed that the driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway. When two vehicles enter an intersection from different highways at approximately the same time the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.”

Unquestionably this requested issue was ' substantially correct, but the question is whether such instruction was necessary under this record.

We think this point has been determined adversely to appellant’s contention by this Court in Locke v. Ratliff, (Tex.Civ.App.), 351 S.W.2d 649, (Refused, NRE). That case also involved an intersection collision and the refusal of the trial court to give a similar instruction on right-of-way under Section 71(b), Article 6701d. The court there held the refusal to give a similar instruction was not error for the reasons: (a) the physical facts showed the plaintiff’s vehicle entered the intersection first; (b) defendant made no request of an issue as to whether the two vehicles entered the intersection at approximately the same time; and (c) the requested instruction simply assumed that they entered the intersection at approximately the same time, an assumption that could not be made as a matter of law under the facts of the case. We think this holding and reasoning is applicable to the facts and state of the record in the case at bar. We therefore conclude the trial court did not err in refusing to give the requested instruction.

Appellant next contends there was no evidence and insufficient evidence to support the jury finding that appellee did not fail to yield the right-of-way. This was a defensive issue based on appellant’s pleadings. Two disinterested witnesses who were following appellee’s car some one-half block or less testified appellee was about three-fourths of the way through the intersection when struck by appellant’s automobile. Appellee’s car was struck on the right rear behind the door and primarily on the right rear fender. Appellee testified the front end of his car was out of the intersection when his car was struck. Both appellee and his wife testified they saw appellant’s car prior to their entering the intersection, and that both thought they would have been able to proceed through the intersection safely. The physical facts, including the point of impact in the intersection and the place at which appellee’s car was struck, substantiates appellee’s evidence. On the other hand appellant frankly admitted she did not see appellee’s car “until just about the point of contact." She later stated the front end of her car was about a “foot” from appellee’s before she saw it. She testified that the sun prevented her from seeing appellee’s automobile. No evidence was presented by appellant as to when she entered the intersection in relation to appellee’s entry. The speed of the two cars was apparently about the same — estimated by various witnesses to be between twenty and thirty miles per hour. We conclude the jury’s answers to this issue were supported by the evidence.

Appellant next contends the trial court erred in failing to submit requested issues relative to appellee’s failing to apply his brakes; his failure to sound his horn; and his failure to have his automobile under proper control. In response to special issues submitted, the jury found appellee Hunt did not fail to keep a proper lookout; that he did not fail to yield the right-of-way; and that he did not operate his automobile as an excessive rate of speed. It is the general rule that a party has a right to an affirmative submission of any fact or group of facts properly pleaded and supported by material evidence. However, Rule 279, V.A.T.R., requires the trial court to submit only the controlling issues raised by the pleadings and evidence. Various shades of the same issue are not required. The issues of lookout; speed and right-of-way were submitted and answered adversely to appellant. We therefore conclude it was not error to refuse the submission of the issues complained of as they were included in the issues submitted. Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266; Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143; English v. Hegi, (Tex.Civ.App.), 337 S.W.2d 860.

Appellant’s last group of points of error go to the trial court’s instructions given in connection with the damage issues and the excessiveness of the amount of damages awarded by the jury. In submitting the two damage issues concerning alleged injury to appellee’s wife and minor daughter, the trial court used the following phrases: “which in all reasonable probability resulted” and “has in all reasonable probability suffered.” In both instances the court prefaced these phrases with the words “pain and suffering, if any.” This saving clause eliminates any inference that the wording constitutes a suggestion and comment by the court that the wife and daughter sustained pain and suffering. Krottinger v. Marchand, (Tex.Civ.App.), 252 S.W.2d 217; Dallas Ry. & Terminal Co. v. Menefee, (Tex.Civ.App.), 190 S.W.2d 150 (Writ Refused, W. M.) Appellant further complains of the court’s instruction making reference to appellee’s pleadings. The instruction read in part: “You are further instructed that you are to take into consideration only such items as are plead and supported by competent testimony.” The record shows this phrase was in conformity with appellant’s objection tos the charge. This particular objection to the charge read in part: “■ — and in this connection defendant says that it would be improper to submit such issue [damage issue] without limiting instructions, particularly limiting the plaintiff to the proof in the case, and limiting the plaintiff to the pleadings in this case.” Although it has been generally held to be error to submit special issues which refer to the pleadings for information necessary to enable the jury to make a finding of the issue, we are of the opinion appellant here is in - no position to complain. This was a limiting instruction and in compliance with appellant’s objection. Several other limitations were placed on the jury in answering the damage issue. Under the state of this record, we are of the opinion such an instruction was not error.

Appellant further contends the damages awarded were excessive. The jury allowed appellee’s wife $2,500.00 damages and the five-year old daughter $500.00. In determining whether an award for damages is excessive, the court should consider the fairness and reasonableness of the award under the facts of the particular case. We do not consider the awards excessive. Although neither injured person was hospitalized, it is undisputed injuries were suffered by both. They were thrown from the car, and the wife slid several feet upon the pavement. She complained of severe headaches, muscle spasm and a nervous condition which continued up until the time of the trial. She further testified medication was being taken up until the time of the trial. Her ability to perform her duties at the home and office had been impaired. The child received a severe cut on its lip with attending swelling and pain, and became very nervous as a result of the collision. Under these circumstances, we cannot say the awards were excessive.

The judgment of the trial court is affirmed.

Affirmed.


author: McNEILL, Justice.

text:
    The AETNA CASUALTY & SURETY CO., Appellant, v. James A. WYATT, Appellee.
    No. 6657.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 12, 1963.
    Rehearing Denied Jan. 15,1964.
    King, Sharfstein & Rienstra, Beaumont, for appellant.
    Keith, Mehaffy & Weber, Beaumont, for appellee.
   McNEILL, Justice.

The issue here is whether the employee sustained total and permanent loss of the use of his left leg within the meaning of Section 12, Article 8306, Vernon’s Ann.Civ. St. The jury found that he did and judgment was based thereon. The workman is a painter and in the trade is known as a combination-painter. A combination-painter is one who does all types of painting, using brushes, operating spray guns, boatswain chair work, ladder paint spraying, and as a paint sprayer is required to carry heavy pots weighing up to 100 lb., as well as air hose. In doing this work he is required to do stooping, lifting and climbing, and a good pair of legs is essential to this work.

On or about November 25, 1960, he was working as such for DuPont at its Beaumont plant and was climbing a ladder carrying a spray rig weighing about SO lb. On the way up, he struck the kneecap of his left knee against the ladder with such force that he sustained sharp pain and had to go back down the ladder and rest a short while before he undertook to finish the work.

Appellant says that there was no evidence, or alternatively, insufficient evidence to sustain the finding that the employee’s loss of use of his leg was total. It also says that there was no evidence, or alternatively, insufficient evidence to sustain the finding that the loss of use of his leg was permanent. The authority upon which appellant relies is Travelers Ins. Co. v. Seabolt (Sup.Ct.), 361 S.W.2d 204. There is much similarity between that case and the present one, as appellant ably illustrates. In Seabolt the workman was a pipefitter. He injured one hand and while he thereafter continued to work as a pipefitter he did not have the same use of and grip in his hand as he had previously and at times he was given work which would not require as much effort with his hand.

The employee in the present case after his injury to the knee continued to work 14 days for DuPont and was then laid off. When he injured his knee it became blue and was swollen for some' time; It was shown that every time he would use his knee more than normal in his work it would swell up and pain him. After being laid off by DuPont he did several pieces of parking lot striping, which required the use of a machine that pushed along the ground to mark lines. This required no unusual use of his knees. Somewhat later, he obtained a job with Bethlehem Steel, a Beaumont shipyard, as a combination-painter. He worked a few weeks but was unable to perform the duties required — stooping, climbing, and working in tight places — and had to quit. Still later he obtained a job at the Goodyear plant, as a combination-painter but his work as such because of his knee was unsatisfactory to the foreman; but since he was Wyatt’s friend, he did not lay him off but gave him the job of shop-boy. As shop-boy he received the same pay as a combination-painter. As such shop-boy it was his duty to mix paints, paint signs and generally keep up with the paint supplies. It was shown that the job of shop-boy only exists where there is a large number of painters working on the job. If there are less than 20 to 25 painters the place of shop-boy is eliminated. Wyatt held his job as shop-boy without material trouble although his knee did from time to time give him pain and would be sore. This job with Goodyear ran for about a year and until the construction work was finished. After that, he was out of work for a while. He got a job with Noblock Construction, but after 2 weeks had to give it up as being unable to do the painting assigned him. Shortly thereafter the foreman who was on the Goodyear job put him to work as shop-boy on the Monsanto construction job at Texas City. He was doing this shop-boy work at the time of the trial. He testified that his job there was about to end. When he was out of work he would sign up for unemployment compensation and the form he signed stated he was able to work. He collected several items of unemployment compensation. He stated he was married, had two children, and needed to work to support his family.

The testimony shows that the ordinary painter needs to have two good legs for in his work he bends, stoops, squats, and works in tight places from time to time.

The medical proof reveals that Wyatt has Chondromalatia in his left knee. This is a term describing a roughening of the under-surface of the kneecap. This condition may be caused by trauma. The cartilage under the kneecap becomes cracked and forms little fragments which become loose, ragged and roughened. This condition is made evident by .soreness and swelling of the knee joint, and by a grinding or grating sound when the knee joint is moved. And it will cause a momentary locking of the knee joint. From a few days after time of his injury Wyatt’s knee upon movement would have this grinding sound and with the passage of time the sound has grown more distinct. Dr. Scott Wallace testified that Wyatt’s knee injury is of the moderately severe type and that it will worsen as time goes on. Both Dr. Wallace and Dr. Paul Freshcorn testified that they would not pass Wyatt for employment in the type of work he was doing when he got hurt, on account of the condition of his knee.

This record indicates that the job of shop-boy is one that is not generally obtainable in the -painting industry but may exist intermittently only when there are large groups of painters working on the same project. In order to determine its sufficiency as to whether the employee has lost the total use of his leg we must measure the evidence by the definition of “total loss” as given in the court’s charge. Traders & General Ins. Co. v. Derrett, Tex.Civ.App., 340 S.W.2d 305. “Total loss” was there defined:

“the term ‘total loss of use of the leg” does not imply an absolute disability to perform any kind of labor, but such disability or incapacity of the leg that it disqualifies a person from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment requiring the use of said leg.”

The fact that Dr. Wallace testified that Wyatt’s knee condition would get worse as time went on, and that he would not pass him for work requiring stooping, squatting, climbing, carrying heavy objects, and for other work putting stress on his knee, distinguishes the present case from the Seabolt Case and we hold that the evidence is sufficient to support the jury’s finding of total loss of use of the leg. Since the evidence predominately shows Wyatt’s condition will not improve, the finding of permanent loss of use is justified. Having considered all the evidence on these questions and holding the evidence sufficient thereon, it follows necessarily that there was evidence to justify the findings as against the contention of no evidence.

Judgment affirmed.


author: MASSEY, Chief Justice.

text:
    Donald Keith PALMER, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 16472.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 20, 1963.
    Rehearing Denied Jan. 17,1964.

      Mike E. Powell, Fort Worth, for appellant.
    Doug Crouch, Criminal Dist. Atty., and George McManus, Asst. Dist. Atty., Fort Worth, for appellee.
   MASSEY, Chief Justice.

This is a case having similarity to that of Texas Department of Public Safety v. Williams, 1962 (Tex.Civ.App., Eastland), 356 S.W.2d 848, where a motorist’s driver license was sought to be suspended as an habitual traffic violator ■ under provisions of Vernon’s Ann.Civ.St. Art. 6687b, “Drivers’, chauffeurs’, and commercial operators’ licenses; accident reports”, § 22, “Authority of Department to suspend or revoke a license”. In that case, however, the trial court judgment was for the motorist. In the case before us a summary judgment was entered for the Department, the motorist’s privilege to. drive being suspended for a period of six (6) months.

In the Williams case, aforementioned, counsel for the motorist prevailed upon the trial court to decide that the Department of Public Safety had failed to establish the number of “convictions” requisite to be shown by the Department in order to establish that the motorist was an “habitual violator” of the traffic law of the State of Texas, within the provisions of subsection (b) of § 22 under Art. 6687b. The trial court so held by reason of its having found that the evidence adduced before it failed to show that the motorist, whose license was sought to be suspended, had been “convicted” within the contemplation of Texas’ Code of Criminal Procedure in that there had been no plea of guilty in accordance therewith, or in particular within the contemplation of Vernon’s Ann.C.C.P. Art. 518, “Plea of guilty in misdemeanor”.

Specifically, the motorist in the Williams case had ascertained the amount his fine would be if he plead “guilty” to each of the traffic violations with which he was charged, and promptly mailed checks in the amounts of the fines, thus by-passing any procedure of pleading, depositing bail or collateral, etc. The Court of Civil Appeals at Eastland upheld the trial court on the appeal taken by the Department. Mooneyhan v. Benedict, 1955 (Tex.Civ.App., Austin), 284 S.W.2d 741, writ ref., n. r. e., was cited as authority for the court’s action in the Williams case. That case held that similar procedure did not constitute a legal plea of guilty to traffic violation and that evidence thereof was inadmissible to establish that the motorist had confessed his guilt of the traffic offense with which he was charged and because of which he paid a fine.

This court had a case of some similarity in Whittington v. Department of Public Safety, 1961 (Tex.Civ.App., Fort Worth), 342 S.W.2d 374, writ ref., n. r. e. In that case, however, the motorist, whose license Was sought to be suspended, did not show the manner in which his purported “convictions” had resulted. The motorist made no showing that such did not result from a forfeiture of bail or collateral deposited to secure his appearance in court, the opinion noting that § 25(c) of Art. 6687b provided in part: “Also, for the purpose of this Act, a forfeiture of bail or collateral deposited to secure a defendant’s appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction.”

In the instant case the contrary is true. In the motorist’s controverting affidavit to the Department’s motion for summary judgment he swears that he did not appear in court either by attorney or in person, and that he paid the fines by mailing checks to cover them in each (material) instance. The procedure being one for summary judgment the facts therein are accorded complete verity. We deem the affidavit to effectively obviate any inference that the fines were paid by way of “bond forfeiture”.

We do not believe that we are at liberty to construe the statute so as to hold that a voluntary payment of a fine in the amount which would have been assessed upon a plea of guilty is equivalent to a “conviction” for the purposes of the Act. Rules applicable to statutory construction forbid. The Legislature could have so provided, if such was intended, as easily as it did provide that forfeiture of bail or collateral should be equivalent to a “conviction”. In view thereof there were issues of fact raised by the affidavit of the motorist whose appeal is before us, and the summary judgment should not have been entered.

Accordingly, judgment is reversed and the cause remanded for a trial of the merits.


author: CHAPMAN, Justice.

text:
    J. B. MARION d/b/a J. B. Marion & Company, Appellant, v. W. B. HAMMONDS, Appellee.
    No. 7315.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 16, 1963.
    Rehearing Denied Jan. 13,1964.
    Edward W. Napier, Lubbock, for appellant.
    Shaver, Hurley & Sowder, Lubbock, for appellee.
   CHAPMAN, Justice.

This is an appeal by J. B. Marion d/b/a J. B. Marion & Company from an adverse judgment based upon a jury verdict in favor of W. B. Hammonds in which he sued for breach of contract to purchase all the cotton appellee grew on two designated farms in 1961 at thirty cents per pound.

Appellant accepted the first seventy-five bales and refused one hundred and seven bales, telling appellee he did not have the money to pay for them. He also told him to sell the cotton and sue them for the difference. This is exactly what he did after taking the cotton cards to “half a dozen or more offices over on Cotton Row,” selling to a cotton buyer by the name of Vandiver for the highest price offered.

The court submitted an issue as to whether appellee exercised ordinary care to sell the one hundred and seven bales of cotton for a fair market value, to which the jury answered in the affirmative. The only point raised is that “ * * * the burden was upon plaintiff to secure a jury finding as to the fair market value of such cotton at the time of breach and the place of delivery.” The exact same point was raised in J. B. Marion d/b/a J. B. Marion & Company v. Bowers, Tex.Civ.App., 371 S.W.2d 575.

We have previously disposed of that point in the case just cited and here refer to that opinion for a proper disposition of this case.

Accordingly, the judgment of the trial court is in all things affirmed.


author: HUGHES, Justice.

text:
    TRINITY UNIVERSAL INSURANCE COMPANY, Appellant, v. J. C. McLAUGHLIN et al., Appellees.
    No. 11074.
    Court of Civil Appeals of Texas. Austin.
    Nov. 27, 1963.
   HUGHES, Justice.

In appellees’ Motion for Rehearing it is stated that “The Appellant and the Court have evidently overlooked the fact'that the reason the Appellees are withholding certain moneys in the instant case is actually because of contractual provisions rather than the provisions found in Article 6674m.”

The contract between McLaughlin and the Highway Department is not in the record. Appellees, in their answer, pleaded:

“That the State Highway Department presently is retaining the sum of Eight Thousand, Eight Hundred Seventeen Dollars and Thirty-six cents (8,817-36) pursuant to the provisions of Article 6674m, Vernon’s Civil Statutes.”

We accepted this statement, appellees are bound by it.

Appellees also contend that Art. 6674m, as it read when the McLaughlin contract was made, became a part of such contract. Conceding the correctness of this contention, it is of no avail to appellees. The parties to the contract are the State of Texas and McLaughlin. The State, acting through the Legislature, has changed the Statute and, hence, the contract. The other party to the contract, the assignee of McLaughlin, approves and consents to such change. No one else, including the State Highway Department and the Attorney General, has any justiciable right to complain that constitutional rights of the contracting parties have been violated.

The motion is overruled.


author: ARCHER, Chief Justice.

text:
    Lloyd G. HOBBS, Appellant, v. Thomas H. HAJECATE et al., Appellees.
    No. 11145.
    Court of Civil Appeals of Texas. Austin.
    Jan. 8, 1964.
    Rehearing Denied Jan. 22,1964.
    Franklin Wilder, Fort Smith, Ark., Butler, Binion, Rice & Cook, Tom Alexander, Houston, for appellant.
    R. Shearn Smith, L. L. Warner, Houston, for appellees.
   ARCHER, Chief Justice.

This was ah action by appellant, an accommodation endorser, to recover money based upon a written promissory note, payable to the 1st National'Bánk of Ft. Smith, Arkansas^ executed'jointly and seVerally by' appellees' in Arkansas to be wholly performed in Arkansas'. Appellees defaulted. Appellant was' required to' pay- ánd was forced to bring this suit in Texas' iti order for the court to acquire jurisdiction over the defendants. The trial court granted ap-pellees’ motion for summary judgment on the pleadings, holding the action barred by Art. 5527, Vernon’s Ann.Tex.St, the Texas four year Limitation Statute. Appellant’s Motion for summary judgment was overruled.

This appeal is based on the error of the trial court in granting appellees’ motion for summary judgment.

This action was on a promissory note brought against appellees as alleged comakers by appellant as an allied endorser in the District Court of Harris County, Texas, on January 4, 1963.

An allegation was made that the last payment on the note was made on February 8, 1958.

Appellees moved for a summary judgment on the pleadings and the court granted the motion holding that the cause of action was barred by the Limitation Statute of Texas as shown by the petition on its face.

Appellees plead limitations as a bar and general denial.

Appellant filed his affidavit in opposition that part payment of a note by one joint and several debtor before action on the note is barred by limitations has the effect under the laws of Arkansas of preventing action on the note from being barred for a period of 5 years and moved the court to take judicial notice of the laws of Arkansas. Rule 184a Texas Rules of Civil Procedure.

Appellant’s position is that when the note was endorsed to him on April 30, 1958, the partial payment of February 8, 1958, was shown on the note and he took the note with the right to withhold demand for any period of time up to February 7, 1963, under the laws of Arkansas, which has a statutory period of five years. Sec. 37-209, Ark.Stats. of 1947 and cites Smith v. Grimsley, 215 Ark. 279, 220 S.W.2d 428, S.Ct. of Ark.

Appellant asserts that where part payment is made in a foreign State on a debt incurred there, the effect of that payment is to be determined by the laws of the foreign State though suit is brought in another State and cites Butler v. Merchants National Bank of Mobile, Tex.Civ.App., 325 S.W.2d 229, no writ history.

Matters of remedy and procedure are governed by the laws of the State where the action is sought to be maintained. Home Ins. Co. v. Dick, Tex.Com.App., 15 S.W.2d 1028, reversed on other grounds, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926, Art. 5527, V.A.C.S.; The Continental Supply Co. v. Hutchings, Tex.Civ.App., 267 S.W.2d 914, er. ref.

The Butler case, supra, is distinguished from this case and from the Continental Supply Co., case supra, because in the Butler case there was not a lapse of four years from the date of the last alleged part-payment and the date that suit was filed but in the Continental Supply Co. case and in the instant case there had been more than four years lapse between the date of the last alleged part-payment and the date the suit was filed.

We believe the Court was justified in granting the summary judgment.

The judgment of the trial court is affirmed.

Affirmed.


author: CLAY, Commissioner.

text:
    Hershel A. McKINLEY et al., Appellants, v. DANVILLE MOTORS, INCORPORATED, Appellee.
    Court of Appeals of Kentucky.

      Oct. 4, 1963.
    As Modified on Denial of Rehearing Deb. 7, 1964.
    Donald Harkins, James C. Begley, Dan-ville, for appellants.
    James F. Clay, Pierce Lively, Danville, for appellee.
   CLAY, Commissioner.

Appellant plaintiffs brought suit for personal property damage caused by a fire which admittedly originated in appellee defendant’s garage and burned an adjoining building. The jury returned a verdict for defendant. The principal contention on this appeal is that plaintiffs were entitled to a directed verdict (the defendant introduced no proof) on the ground defendant was negligent as a matter of law because it violated certain safety standards promulgated by the Insurance Commissioner. The trial court ruled that these safety standards did not apply to the acts of defendant’s employee which allegedly started the fire.

Defendant’s employee, inside its garage, had placed a truck upon a wheel alignment rack for the purpose of servicing it. After doing so he discovered a slow dripping leak in the gasoline tank. The employee placed a drain pan beneath the leak and loosened the plug to permit the gasoline to flow more freely. As he started to unscrew the plug by hand he noticed a blue flame just above the floor a few feet away. This started the fire that caused plaintiffs’ damage.

It cannot be disputed that the presence of gasoline fumes constituted the condition which made the fire possible, although the source of the igniting spark is not known.

In 1955 the Insurance Commissioner had promulgated certain rules and regulations under the authority of KRS 227.300. Quite lengthy, they were designed to set up reasonable standards for the protection of life and property from common fire hazards. The pertinent provisions of these regulations which defendant allegedly violated relate to the handling of flammable liquids. Assuming, for the purposes of this case, that these regulations have the force and effect of law (Linkhous v. Darch, Ky., 323 S.W.2d 850) and that a violation thereof would constitute negligence as a matter of law (Phoenix Amusement Co. v. White, 306 Ky. 361, 208 S.W.2d 64), it is our opinion the trial court properly ruled they had no application to the method of handling the gasoline by defendant’s employee.

Section 1413 is the particular regulation the plaintiffs invoke. It relates to use and dispensing of flammable liquids. This section, when read with other sections of the regulations, generally pertains to commercial or industrial establishments which handle flammable liquids as a commodity or as a part of a process in the usual course of business. Subsection 2(a) provides that flammable liquids shall be “used” only in particular types of buildings or rooms. Defendant’s employee was not using this gasoline.

Subsection 3 is titled “Dispensing”. It provides that flammable liquids shall not be “drawn from” or “dispensed” into certain types of vessels under certain conditions except by special means. It is apparent this subsection relates to the transfer of flammable liquids from a supply source designed for dispensing such liquids to other containers as a normal operation. A gasoline pump at a’filling station perfectly fits this regulation.

Defendant’s employee was not using or dispensing gasoline as a part of some commercial or industrial operation. He was confronted with an emergency situation which he undertook to rectify by draining a tank in order to repair it. A jury may have found him negligent in adopting this particular method, but his conduct under these unusual circumstances was not within the scope of the specific safety regulations. The trial court properly ruled upon this issue.

It is next contended the court improperly permitted the defendant to exhibit a muffler to plaintiffs’ expert witness for the purpose of showing that it may have somehow caused the fire. (Defendant’s attorneys failed in their brief to answer this and other arguments in plaintiffs’ brief. It imposes an undue burden on this Court when opposing counsel does not reply to a substantial and explicit argument of the adverse party.) The line of questioning about this muffler related to certain holes in it which the expert witness indicated might possibly have some causal connection with this fire. We are unable to understand how this muffler, holes or no. holes, or any muffler, had anything to do with the question of liability. The ultimate issue was whether defendant’s employee negligently created the condition which constituted a fire hazard. It was immaterial from what source the gasoline fumes were ignited. Therefore, even if questions concerning this muffler were improper, they could have had no prejudicial effect.

Plaintiffs’ contentions with respect to the instructions have been answered in the earlier part of this opinion.

Plaintiffs finally contend the trial court improperly sustained an objection to a question asked plaintiffs’ expert witness concerning the use of a “safety can”. While we believe this question was proper, its rejection could not have been prejudicial because the witness had substantially answered the question previously, and it is common knowledge that vapor is less likely to escape from a closed can than from an open one.

■ We find no errors justifying reversal of this judgment.

The judgment is affirmed.