author: LANGDON, Justice.

text:
    Alice W. McCART, Appellant, v. Roy CAIN et al., Appellees.
    No. 16828.
    Court of Civil Appeals of Texas. Fort Worth.
    May 19, 1967.
    Rehearing Denied June 16, 1967.
    McGown, Godfrey, Decker & Courtney, and John W. McMackin, Fort Worth, for appellant.
    Freeman & Ward, Fort Worth, for appellee G. W. Wilemon.
    Thompson, Walker, Shannon & Gracey, Fort Worth, for appellee Dan Yarbrough.
    Donald C. Bubar, Fort Worth, for appellee Roy Cain.
    Garrett & Garrett, Fort Worth, for appellees Margaretta G. Beavers, Rev. C. Avery Mason, John R. Halsell, Jr., et ux.
   OPINION

LANGDON, Justice.

This suit involves alleged restrictions against the use of Lots 21 through 30, inclusive, and the West 15 feet of Lot 31, Block 26, Chamberlain Arlington Heights, First Filing, to the City of Fort Worth, Tarrant County, Texas, and a triangular tract of land out of the extreme Southwestern corner of Lot 15, Block 26, for ■other than single one-family residences.

For convenience, appellant, Alice W. Mc-'Cart, will be referred to throughout as “plaintiff,” and the various appellees will be referred to as “defendants.”

Suit was brought by plaintiff under the provisions of Article 2524-1, Vernon’s Ann. Tex.Civ.St., generally known as the “Declaratory Judgments Act.”

The case came to trial on Plaintiff’s Second Amended Original Petition in which it was alleged that there were no deed restrictions whatsoever of record against the property which is the subject matter of this suit; that it was proposed to build a town-liouse condominium project on such property; and that the defendants had claimed and were claiming that implied restrictions upon the property prohibited the proposed ■construction. Defendants had also made known their intention to attempt to block the proposed construction.

Defendants answered by general denial and further alleged that plaintiff or her predecessors in title as owners of all of the lots presently belonging to defendants as well as the lots which are the subject matter of this suit developed same under a general scheme or plan whereby all of said lots would be devoted to the erection of single ■one-family residences.

Trial was to the court without a jury. The court entered judgment that all of the lots which were the subject matter of this declaratory judgment action were burdened with a restrictive covenant limiting the use of same to single one-family residences.

The plaintiff contends that the trial court erred in (1) refusing to find that the Burden of Proof was upon the defendants to prove a general scheme or plan of development (2) entering judgment restricting the use of plaintiff’s property to single one-family residences because as a matter of law the evidence adduced at the trial did not support such judgment and further because there was no evidence or insufficient evidence to support the court’s finding to the effect that plaintiff’s property was so restricted.

We reverse and remand.

Some findings of facts made and filed by the court are summarized as follows:

(a) The deed to the property presently owned by the plaintiff contains no deed restrictions restricting its use to single family dwellings. There are no restrictions of record against the property.

(b) Defendants, who are owners of property in Block 26 and the North one-half of Block 33 of Chamberlain Arlington Heights, First Filing, have asserted that there exists an implied reciprocal covenant on the plaintiff’s land by virtue of restrictions to single family dwellings contained in the various deeds to the defendants or their predecessors in title.

(c) There is no evidence that any purchasers of lots in Blocks 26 or 33, from plaintiff’s predecessors in title had any actual knowledge of the restrictions on lots to other purchasers in said blocks or that the purchasers of said lots relied in any way upon the restrictions in deeds to other purchasers in said blocks.

(d) There is no evidence of any maps, plats, brochures or other type of written matter representing that the property which is the subject matter of this suit would be restricted according to a common scheme or plan.

(e) The only evidence of restrictions, express or implied, covering lots (of the defendants) in Blocks 26 and 33, is contained in the deeds from plaintiff’s predecessors in title to the purchasers of lots in said blocks. The restrictions contained in such deeds are not uniform or identical and contain no language referring to a common scheme or plan for the development of said blocks.

In Texas the law is well settled to the effect that in order to claim or enforce a restrictive covenant on another’s land, it is necessary for the party claiming the restriction to show its existence and further that it was for the benefit of his land.

In 20 Am.Jur.2d 890 § 323, Burden of proof, it is stated, “The burden of establishing the existence and the right to the benefit of a restriction is upon the party who asserts it. Thus, the burden of proof is upon the parties seeking to enforce restrictions to establish that the necessary legal steps have been taken to render such restrictions effective, binding, and mutually enforceable, or that they were imposed on the land for the benefit of land owned by such parties.”

“In every case where parties seek to enforce a restrictive covenant the burden of proof is upon them to establish that the covenant was imposed on defendants’ land for the benefit of land owned by them.” Davis v. Skipper, 125 Tex. 364, 83 S.W.2d 318, 321, 322 (1935); Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465, 469 (1941); Brehmer v. City of Kerrville, 320 S.W.2d 193, 195 (Tex.Civ.App., 1959, no writ hist.).

“As before mentioned, there is nothing in the deeds executed by the common grantor, or in the recorded plat or dedication executed by him, showing that the restrictive covenants in the deed were intended for the benefit of other grantees, or that gave to either the right to complain of their violation. * * * Standing alone, and aside from matters extrinsic written instruments, the presumption should be indulged that the restrictions were inserted in the deeds for the benefit alone of the grantor.” Monk v. Danna, 110 S.W.2d 84, 85, 86 (Tex.Civ. App., 1937, no writ hist.).

“In actions to enforce a restriction, a plaintiff to whom a right of enforcement has not been expressly granted has, generally, a burden to show a common plan for the benefit of all owners. He must show that such a plan or scheme existed, and prove that the land against which the restrictions are sought to be enforced was subject thereto.” 16 Tex.Jur.2d 36 § 129; Ragland v. Overton, 44 S.W.2d 768, 771 (Tex.Civ.App., 1931, no wr., subsequent appeal 54 S.W.2d 240). This accepted rule was applied in Calvary Temple v. Taylor, 288 S.W.2d 868, 871 (Tex.Civ.App., 1956, no wr.); Monk v. Danna, 110 S.W.2d 84, supra; Brehmer v. City of Kerrville 320 S.W.2d 193, 195 (Tex.Civ.App., 1959, no wr.).

According to the court’s findings there are no restrictions contained in the deeds or otherwise of record as to the plaintiff’s property nor any agreement as to rights of enforcement of the claimed restrictions in any of the deeds covering the property of the defendants.

Based upon the authorities above cited it seems apparent to us that the burden of proof was upon the defendants to establish that the plaintiff’s predecessor in title had formulated a general scheme or plan for their benefit and that they had relied upon it. They failed to meet this burden.

We do not believe that the general rule as to the burden of proof in cases involving restrictive covenants is rendered inoperative because the plaintiff filed suit for declaratory judgment rather than to await filing of suit by the defendants.

Plaintiff alleged there were no deed restrictions of record against her property. The court so found. Further the court found that defendants have asserted the existence of an implied reciprocal covenant or a general scheme or plan as alleged by defendants under which plan all of said lots would be devoted to the erection of single one-family residences. Such a plan was not established.

In the absence of evidence to support the asserted existence of the reciprocal covenant or general scheme the defendants who rely thereon will be defeated. The plaintiff does not have the burden to prove the negative of such assertion because she filed the suit. This is not a suit to remove cloud on title as contended by defendants.

“The ultimate burden of proof is upon the party who, upon the pleadings, asserts the affirmative claim, and who, therefore, in the absence of evidence will be defeated, and hence is not determined by the position of the parties on the docket as plaintiff or defendant in the declaratory action.” McDonald Texas Civil Practice, Vol. 1, Ch. II, § 2.06, p. 142, 145.

In 35 Texas Law Review, p. 133, the author states, “Usually the plaintiff in a declaratory-judgment action is seeking affirmative relief and has the burden of proof just as in an ordinary action. However, if the plaintiff seeks a declaration of non-liability, rather than affirmative relief, most courts ignore the formal position of the parties; they treat the plaintiff’s position as purely defensive, and place the burden of proof on the issues of liability on the defendant. The reason given is that such an important matter as placing the burden of proof should not depend upon who sues first. The plaintiff in a declaratory action is given the right to have the claim determined, thereby being released from uncertainty, and should not be penalized by being forced to assume a burden that is not normally his. Thus a majority of courts ascertain from the pleadings which party asserts the affirmative of the controlling issue or issues, or which party would be compelled to submit to an adverse judgment in an ordinary action if no evidence were introduced, and place the burden upon that party.” This majority rule was applied in Serna v. Cochrum, 290 S.W.2d 383 (Tex.Civ.App., 1956, Ref. n. r. e.) and had previously been approved by the Supreme Court of Texas in Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340 (1955).

The Declaratory Judgments Act provides a method whereby parties may bring actions to determine their relative rights without waiting until they have suffered irreparable damage. To this end the Act provides for broad powers of construction in the Courts. Article 2524-1, Section 2, V.A.T.S., supra.

In Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709,172 A.L.R. 837 (1945) the court in effect .held that the declaratory judgment proceeding does not supplant any existing remedy, but is an additional remedy and “is intended as a speedy and effective remedy for the determination of the rights of the parties when a real controversy has arisen and even before the wrong has actually been committed.”

Under the caption, “Remand where case not fully developed,” 4 Tex.Jur.2d 522 § 914, it is stated: “A case will be remanded, rather than judgment rendered, where the ends of justice will be better served thereby, either because the appellee was prevented from fully developing his case, or he excusably omitted to do so as the result of an erroneous decision of the trial court. Such is the rule where on the former trial the evidence was not fully developed owing to an erroneous ruling of the trial court, or to a mistaken view of the case, taken by the trial court, that has either prevented the appellee from completely developing his case, or caused him to rest on an incomplete presentation of it, or may have had this effect.”

Since it appears likely that the defendants omitted to fully develop their case in view of the rulings of the court as to the burden of proof on the asserted restrictions we are of the opinion that to remand rather than to render judgment will better serve the ends of justice in this case.

Reversed and remanded.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    UNITED SUPER MARKETS, Appellant, v. Marla VALESCO et vir., Appellees.
    No. 7714.
    Court of Civil Appeals of Texas. Amarillo.
    May 15, 1967.
    Rehearing Denied June 12, 1967.
    Crenshaw, Dupree & Milam, Lubbock, Cecil Kuhne, Lubbock, of counsel, for appellant.
    A. W. Salyars and J. Monty Bray, Lubbock, for appellees.
   NORTHCUTT, Justice.

This is a suit brought by Maria Valesco joined by her husband, Jessee Valesco, as plaintiffs, against United Super Markets, as defendant, to recover for personal injuries allegedly sustained by Maria Valesco in falling on the floor in defendant’s grocery store. Plaintiffs alleged that Mrs. Valesco entered the store as a business invitee and customer, further alleging the defendant was negligent in the following respects:

“(1) In mopping such floor while customers, including Mrs. Valesco, were using such floor;
“(2) In permitting the fluid from the mopping to remain on such floor;
“(3) In failing to remove water and other fluid from such floor;
“(4) In failing to provide Mrs. Valesco with a safe place to walk while shopping in defendant’s store;
“(5) In failing to remove from such floor, prior to Mrs. Valesco’s fall, any and all substances rendering such floor dangerous ;
“(6) In failing to maintain such floor, at the time and place of such plaintiff’s fall, in a safe condition;
“(7) In failing to warn Mrs. Valesco of the danger created by the presence of such fluid on the floor.”

The defendant filed a general denial and also alleged, inter alia, that the store was closed and Mrs. Valesco was not a business invitee at the time and on the occasion in question. The trial court refused all of defendant’s requested issues and instructions regarding plaintiffs’ status as a licensee or business invitee and submitted the case to a jury on issues of negligence and contributory negligence.

In answer to the special issues submitted, the jury found the defendant was mopping the floor prior to the use of the floor by Mrs. Valesco but that such mopping was not negligence; that defendant failed to warn Mrs. Valesco of the presence of such fluid ■on the floor but that such failure was not negligence; that defendant permitted fluid from mopping of the floor to remain on the floor, such was negligence and a proximate cause of Mrs. Valesco’s fall; defendant’s manager warned Mrs. Valesco that the store was closed, but that she ignored such warning and that the ignoring of such warning was negligence but that such negligence was not a proximate cause of the accident; that Mrs. Valesco walked into the area of the store where the mopping had been made but same was not negligence; that Mrs. Valesco did not fail to keep a proper lookout for her own safety; that the mopping of the store was open and obvious but that Mrs. Valesco failed to observe the mopping in the store but same was not negligence; that Mrs. Valesco did not Tcnow and appreciate the danger of walking •on the floor just after it had been mopped; that the accident was not an unavoidable accident and found plaintiffs’ doctors and medical expenses to be $150 and her damages as $1,000. The trial court rendered judgment for plaintiffs for $1,150 on the jury verdict. From that judgment the defendant perfected this appeal. The parties will be referred to hereafter as they were In the trial court.

By defendant’s first three points of error it is contended the trial court erred in submitting the case as if it were established as a matter of law that Mrs. Valesco’s status at the time and on the occasion in question was that of a business invitee. The plaintiff pleaded she was a business invitee and customer of defendant on the occasion in question. The defendant denied plaintiff was a business invitee and pleaded that on the occasion in question the store was closed and the door for customers to enter had been locked; that the plaintiff entered by pulling open the door used for customers leaving the store. Further pleading as plaintiff entered, the manager informed her the store was closed but that she ignored him and proceeded to do her shopping and thereby was nothing more than a licensee.

The plaintiff testified she was with her daughter at the time of the accident. The plaintiff further testified by. question and answer as follows:

“Q. Who went in the door first that night?
“A. I let my daughter go in first so she could open the door and I would carry in the baby.
“Q. Did she pull the door open for you ?
“A. Yes.
“Q. Do you know whether or not the doors there are usually automatic, Mrs. Valesco, and they open when when you come up to them?
“A. No, sir, I don’t recall that the door opened by itself.
“Q. Did your daughter stand there and hold the door open after she pulled it open for you so you could go in ahead of her?
“A. Yes.
“Q. Did she seem to have any difficulty in pulling it open ?
“A. I don’t recall that detail.
“Q. Do you know whether or not you went in the right, the door on the right side, or the door on the left side?
“A. I think I seem to recall that we entered on a door that was on the left.”

Mrs. Lopez, plaintiffs’ daughter, testified they went into the right door and it opened itself automatically. She didn’t hear the manager tell her the store was closed. Mr. Speegle, the store manager, testified that persons coming in to the store would enter through the right door. The right door would swing inside of the store and the left door for customers to leave the store would go out the left door and that door would swing outside of the store. He further testified they had the right door locked as it was after 9:00 p. m. and that plaintiff came in the left door. He further testified he told them the store was closed but they ignored him when he told them the store was closed and went on with their shopping. Mrs. Irene Thornburg, a checker in the store, testified when the plaintiff came into the store they had already closed and the door was already locked and plaintiff opened the “Out” door and came in. She heard Mr. Speegle tell plaintiff the store was closed.

There was other testimony but we believe the above evidence is sufficient to raise the issue as to whether the plaintiff was a business invitee or a licensee. The defendant prepared issues and instructions and requested the court to submit them for the jury to determine whether the plaintiff was an invitee or a licensee but the court refused to give either issue and held as a matter of law the plaintiff was an invitee.

We are of the opinion, and so hold, the trial court erred in holding as a matter of law plaintiff was an invitee. It is stated in Texas Pacific Coal & Oil Co. v. Wells, 151 S.W.2d 927 (Tex.Civ.App.—Waco, 1941, affirmed 140 Tex. 2, 164 S.W.2d 660 (1942) as follows:

“The essential facts upon which a claim of negligence is based may not be presumed, but each component element necessary to support a recovery must be established by competent, admissible evidence. In passing upon the competency of the evidence to raise such an issue, it is the duty of the court to view the same and all reasonable inferences that may be drawn therefrom in the most favorable light for the claimant, and if there be any such evidence, either direct or circumstantial, which when thus viewed may serve as the basis for a legal inference, of the fact sought to be established, then such issue, if otherwise material, should be submitted to the jury. On the other hand, if there be no evidence of probative force tending to establish the fact or facts upon which the charge of negligence is grounded, then the court should instruct the verdict.”

See also Pogue v. Allright, Inc., 375 S. W.2d 533 (Tex.Civ.App.—Austin, 1964, writ ref’d n. r. e.) where it is stated: “The plaintiff contended in his petition that he was an. invitee. The defendant in its answer alleged that plaintiff was a trespasser or licensee. The status of the plaintiff was-in issue and the burden of establishing his status was on plaintiff.”

As we view it, the distinction between invitees and licensees is that invitees come on to the premises by invitation, either expressed or implied; licensees are not invited but their presence is tolerated. In other words, was the store open for business or was the store closed and defendant cleaning up the floor? The testimony is in conflict and we believe it would be a jury issue to determine the facts as to establish whether plaintiff was an invitee or licensee. The liability is so different in case of invitee and licensee and there being disputed evidence in this case as to whether plaintiff was an invitee or licensee under the facts, it was an issue to be passed upon by a jury and the court erred in holding the plaintiff was an invitee as a matter of law. It is stated in Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073 (1941) as follows :

“It is settled by the law of this State that if the plaintiff was on the premises as an invitee, it was the defendant’s duty to exercise ordinary care to keep its premises in a reasonably safe condition, so that the plaintiff would not be injured; and that if the defendant failed so to do, it would be liable for the damages proximately caused thereby. Kalium v. Wheeler, 129 Tex. 74, 101 S.W.2d 225. On the other hand, if plaintiff was on the premises merely as a licensee, the only duty that the defendant owed her was not to injure her wilfully, wantonly, or through gross negligence. Galveston Oil Co. v. Morton, 70 Tex. 400, 7 S.W. 756, 8 Am.St.Rep. 611; Dobbins v. Missouri, K. & T. Ry. Co., 91 Tex. 60, 41 S. W. 62, 38 L.R.A. 573, 66 Am.St.Rep. 856.
“It is not contended that the evidence raises any issue of wilfullness, wantonness, or gross negligence on the part of defendant’s employee. Consequently, the material question to be determined is whether plaintiff was on the premises of the defendant as an invitee or as a mere licensee.”

Since we sustained defendant’s first three points of error and hold the case must be reversed, we will not discuss defendant’s other points.

Judgment of the trial court is reversed and remanded.


author: GRISSOM, Chief Justice.

text:
    APPELL PETROLEUM CORPORATION, Appellant, v. MOREMAN TIRE COMPANY, Inc., Appellee.
    No. 4167.
    Court of Civil Appeals of Texas. Eastland.
    May 26, 1967.
    Rehearing Denied June 16, 1967.

      Perkins, Floyd, Davis & Oden, Lawrence H. Warburton, Jr., Alice, for appellant.
    Fischer, Wood, Burney & Nesbitt, Jerry E. Fischer, Corpus Christi, for appellee.
   GRISSOM, Chief Justice.

Moreman Tire Company, Inc., sued Appell Petroleum Corporation upon a debt for merchandise sold and delivered to it on open account and for attorneys’ fees. The suit was originally based on a verified account. The defendant pleaded the two year statute of limitation. Thereupon, by amended petition, Moreman pleaded that Appell had in writing acknowledged the justness of said account and promised to pay it in a letter from appellant to appellee, contending that such letter removed the debt from the operation of said statute. In a trial to the court, judgment was rendered for Moreman against Appell for the full amount of the debt, $642.86, plus $350.00 attorneys’ fees. Appell Petroleum Corporation has appealed.

Appellant’s first 7 points assert the court erred in rendering judgment for Moreman for the full amount of its account because the letter relied upon did not constitute a written acknowledgment of the debt and a promise to pay same executed by or on behalf of the defendant and there was no evidence to sustain a finding that it did. Appellant says the court erred in rendering judgment for any amount in excess of $67.-26, the last purchase in said account, because said letter did not remove said debt from the bar of the two year statute of limitation and, as a matter of law, all but said last item was barred by said two year statute.

As to the judgment for the full amount of said account, it was agreed upon the trial that, if said letter did not-operate to remove the account from operation of the statute, all of it except the $67.26 item was barred by the two year statute. It was also agreed that, if said letter did operate to take said debt out of the statute, the account was true and correct and there was no defense to it.

On September 18, 1964, Appell Petroleum Corporation wrote Moreman Tire Company as follows:

“MOREMAN’S TIRE COMPANY, p.o. Box 285, Corpus Christi, Texas
ATTN: Accounting Department Gentlemen:
With the oil business in its current slump, our company has gotten behind on its accounts payable including the monies due to you. This we certainly regret as we have always paid our accounts in the past.
At the present time, we also have a large amount of accounts receivable and certainly appreciate your position. We do expect, however, to receive payment on a number of these accounts within the next 60 days, and these monies are to be dedicated toward the payment of our accounts payable.
In addition, we are currently in the process of obtaining some additional long term financing and the additional monies obtained from this sum will also be dedicated to your account.
Would you please give us at least another 60 days before taking any action on your account to complete this program of payment on your account.
We do thank you for your many kindnesses in the past and appreciate this courtesy from you at this time.
Sincerely yours,
APPELL PETROLEUM CORPORATION R. E. Ramee”

Said letter was attached to Moreman’s amended petition two years before the trial. Moreman alleged therein that:

“By that certain letter dated September 18, 1964 executed and delivered on behalf of defendant, a copy of which letter is set forth in Exhibit ‘B’ attached hereto and made a part hereof, Defendant acknowledged that its said debt owing to Plaintiff on account was, and is, just, and indicated Defendant’s willingness to pay the same and the same removed the said debt from the operation of the two year Statute of Limitation, herein plead by defendant.”

The pleadings were sufficient to support the judgment for the full amount of the account. The plaintiff expressly alleged said facts and that the letter removed the debt from the two year statute. The pleading was sufficient to apprise appellant of the basis of the recovery sought by appellee. Hanley v. Oil Capital Broadcasting Ass’n., 141 Tex. 243, 171 S.W.2d 864, 866; Article 5539. Appellant did not point out by motion or exception before rendition of the judgment any defects in the pleadings. Under said decision and Texas Rules of Civil Procedure, rule 90, any defect therein was waived.

We think the letter was properly admitted in evidence as proof of execution and delivery by appellant of a written acknowledgment of such debt and a new promise to pay it. Century Ins. Co. v. Hogan, Tex.Civ.App., 135 S.W.2d 224, 228; Tex.R.C.P. 93(h). The court did not err in rendering judgment for Moreman for the full amount of its account. It was stipulated that the debt shown by said account was just and correct; that Appell was indebted to Moreman in the amount of $642.86 on September 18, 1964, the date of said letter, and that the only question with reference to said account that was left to be determined by the trial court was whether said letter operated to remove the account from operation of the two year statute of limitation. The letter shows that Appell Petroleum Corporation was aware that it was indebted to appellee for the amount of said account. There was but one debt, the one sued upon. We think the court correctly found that the letter referred to that debt and operated to remove it from the force of said statute. Art. 5539 provides that an acknowledgment of the justness of a claim, made after it became due, is admissible to take the case out of operation of the statute of limitation when such acknowledgment is in writing and signed by the party to be charged thereby or in its behalf. In Friedman v. Worthy Fabrics, Tex.Civ.App., 347 S.W.2d 639, there was a comparable letter acknowledging justness of the debt and containing an implied promise to pay it. It was held that such a letter acknowledging the debt to be just and impliedly promising to pay it, had the effect of removing the debt from the effect of the statute.

Appellant also contends the judgment for $350.00 attorneys’ fees is, under all the facts and circumstances of this case, excessive. It is a large fee for the debt recovered, but there was detailed testimony as to the time and effort spent by eminent counsel in representing the plaintiff and, after consideration of the entire record, we conclude that it has not been shown to be excessive.

All of appellant’s points have been considered. Reversible error is not shown. The judgment is affirmed.


author: WILSON, Justice.

text:
    The STATE of Texas et al., Appellants, v. Joe N. JAMAIL et al., Appellees.
    No. 4451.
    Court of Civil Appeals of Texas. Waco.
    May 25, 1967.
    Rehearing Denied June 15, 1967.
    Joe Resweber, County Atty., Houston, Chas. F. Mitchell, Asst. County Atty., for appellant.

      Vinson, Elkins, Weems & S earls, M. C. Chiles, Ewing Werlein, Jr., Houston, for ap-pellee.
   OPINION

WILSON, Justice.

The State and County took all of one tract belonging to appellees, and part of another, for highway purposes in this eminent domain proceeding. Judgment for damages was rendered on a jury verdict.

By their first five points appellants contend the landowners abandoned their objections to the award of commissioners by waiting more than three years and nine months to have citation issued in the County Court, and their rights are barred by limitation. They point to Denton Comity v. Brammer (Tex.Sup.1962), 361 S.W.2d 198 as supporting their position.

In the present case the objections to the award were filed in October, 1958. At the same time appellants voluntarily appeared by filing a pleading reciting: “For answer to plaintiffs’ petition filed in the above entitled and numbered cause and becoming cross-plaintiffs file this answer and cross-action.” Over a month later they filed another such “answer and cross-action,” which they denominated a “plea in intervention.” Thereafter counsel for appellants approved as to form an order permitting withdrawal of condemnor’s deposit in the registry.

In February, 1961 the landowners requested a setting of the case. It was set for April, 1961, but was continued by agreement of counsel for appellants. In July, 1962 the decision in Denton County v. Brammer was announced, and appellees obtained issuance and service of citation over the court clerk’s objection that no citation was necessary. The case was subsequently continued five times by agreement, at least once at the instance of appellants’ counsel. Appellees made seven requests for setting.

After appellants entered an appearance by filing their answer and cross-action no citation was necessary. Rule 121, Texas Rules of Civil Procedure. York v. State, 73 Tex. 651, 11 S.W. 869. Consent to the continuances likewise constituted appearances. McElyea v. Parker, 125 Tex. 225, 81 SW.2d 649, 652, syl. 1. There was no abandonment, and appellees’ rights are not barred.

The foregoing holding governs appellants’ argumenfr-that the court erred in adjudging interest for the period before citation was issued.

Complaint is made of refusal to allow appellants to “cross-examine” and “impeach” the landowners as to prior inconsistent statements and conduct in “using the witness Hurlock at the hearing before the special commissioners.” It is said that Hurlock was employed by the landowners to appraise the subject property, and that he testified as their witness before the Commissioners to a value substantially lower than the landowners themselves testified to at the trial.

The landowners presented, and the court sustained, a motion in limine alleging that Hurlock had been previously employed by appellees to appraise the land, but had been paid his fee for services, and was then not aligned with them in any manner; that he had been subpoenaed by condemnors. The motion asked that condemnors be instructed not to lead Hurlock in direct examination, or to otherwise treat him as an adverse witness, or to inquire whether he had been retained by condemnees to appraise the land. The court sustained the motion in an effort to follow State v. Biggers (Tex.Sup.1962), 360 S.W.2d 516.

Appellants point to no place in the record, however, and we have found none, in which they tendered or the court excluded evidence such as is referred to in their points. The order on the motion in limine is not subject to the construction now sought to be placed on it, and the evidence said to have been excluded is not shown by a bill of exception as required by Rule 372, Texas Rules of Civil Procedure. The record is not preserved and no error is shown. J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698.

Admission of evidence concerning various items which appellants describe as noncom-pensable personal property and their value is complained of. The subject property included a building housing a large self-service grocery store and food market. The items referred to included specially' built display cases, cabinets, freezers, racks, stands, shelving and other fixtures designed and installed for a specific location and permanently attached to the building. Other portable items such as scales, cash registers, carts, tables, grinders, slicers, small freezers, a soda machine, meat blocks, and a compressor were conceded by condemnees to have been sold, and they were not taken by con-demnors as a part of the realty.

Appellants did not object to evidence concerning these items separately, but objected generally to photographs of the store interior and an inventory of store equipment because they included and showed personal property. Appellees’ counsel limited the photographs so as to exclude merchandise.

The court confined the jury to consideration of the market value of the land and “permanent improvements” attached thereto. He instructed that “permanent improvements” included something “put on the land which the occupant cannot remove or carry away with him, either because it has become physically impossible to separate it from the land or because in contemplation of law it has become annexed to the land or building and is therefore to be considered as a part of the ownership of such land and building.”

We neither approve nor disapprove this charge. Appellate courts are not authorized to “approve” a court’s charge. They are empowered only to pass on points which present specific objections, properly preserved, to an actual charge under the unique facts of a particular case, and to determine whether reversible error is demonstrated by the objection raised under the record in that case. Here appellants made no objection to the charge. We have no objection, therefore, upon which to pass. We quote the charge only in order to show how the asserted errors complained of concerning evidence are harmless in any event in this case, because the charge, unobjected to, limited the jury’s consideration in effect to fixtures which were permanent accessions to the freehold, and excluded items of personalty.

Appellants’ requested special instruction, refused by the court, would have charged the jury to “disregard all testimony about the value of all items of personal property” which the owners “removed or reasonably could have removed.” The refusal of the requested charge was not reversible error in view of the quoted instruction given.

All points have been considered and are overruled.

Affirmed.

      I. See cases cited in Lyles v. Texas Employers’ Insurance Association, Tex.Oiv. App., 405 S.W.2d 725, 727, syl. 4, writ ref. n. r. e.


text:
    C & G COIN-METER SUPPLY CORPORATION et al., Appellants, v. TARRANT STATE BANK, Appellee.
    No. 16838.
    Court of Civil Appeals of Texas. Fort Worth.
    June 2, 1967.

      J. A. Amis, Jr., Bryan, Hill, Paddock & Street, and Homa S. Hill, Fort Worth, for appellants.
    Hudson, Keltner, Smith & Cunningham, and Dale B. Hinson, Fort Worth, for appel-lee.
   OPINION

LANGDON, Justice.

This appeal is from an order overruling a plea of privilege. Suit was filed by Tar-rant State Bank, appellee against B-W Acceptance Corporation, a resident of Dallas County, Texas, and C & G Coin-Meter Supply Corporation and Calvin R. Guest of Brazos County, Texas. Suit is based on several theories for debt and damages. Plaintiff seeks joint and several recovery against the defendants. Appellants filed their plea of privilege and appellee its controverting plea. Upon hearing, the trial court entered its order overruling the plea of privilege without specifying the basis of its holding.

The appellants contend that the trial court erred if it held that this cause is maintainable against them in Tarrant County under any one or more of the following exceptions: 7 (pertaining to fraud), 9 (pertaining to trespass), 14 (pertaining to damages in reference to realty), 23 (pertaining to corporations), 29a (pertaining to joinder with some other exception to Art. 1995) because of no proper pleading, no evidence or insufficient evidence.

We affirm.

The more pertinent allegations relied upon by appellee are briefly outlined as follows:

(1) Tarrant State Bank is domiciled in Tarrant County. It is the sole owner of the property interest involved. The interest is essentially that of a leasehold estate in land and improvements thereon located in Fort Worth, Texas.

(2) B-W Acceptance Corporation (one of the defendants) was a financing affiliate of Borg-Warner Company. Norge was a division of Borg-Warner Company. C & G Coin-Meter Supply Corporation (another defendant) was a Norge distributor. It sold appliances manufactured by Norge, with financing by B-W Acceptance Corporation. Calvin R. Guest (the remaining defendant) was president and principal stockholder of C & G Coin-Meter Supply Corporation.

(3) C & G Coin-Meter Supply Corporation sold a Norge coin operated laundry and dry cleaning installation to tenants of the Tarrant State Bank. The transaction was financed by B-W Acceptance Corporation, incident to which the bank was required to subordinate its landlord’s lien.

(4) The tenants defaulted on their lease with the bank. All interested parties were notified. The bank terminated the lease.

(5) All three defendants having been fully apprised of the circumstances and having failed and refused to remove the laundry and dry cleaning equipment, it is asserted that the defendants, having direct and contingent property interests in the equipment impliedly adopted the former tenants’ lease and became liable for payment of rent to the bank as therein specified.

(6) In the alternative, it is asserted that by said defendants’ use and occupancy of the premises and the wrongful detention thereof to the bank’s detriment, they were guilty of a trespass and became liable to the bank for such wrongful use, occupancy and detention of said premises.

(7) Also in the alternative, it is asserted that Calvin R. Guest (one of the appellants herein), acting for himself and the other defendants, made certain false representations, promises and agreements to the bank which were actionable within the purview of Article 4004, Vernon’s Ann. Tex.St.

(8) Also in the alternative, it is asserted that the said false representations, promises and agreements of Calvin R. Guest were actionable at common law on the theory of fraud and deceit.

(9) It is further asserted that when the equipment was finally removed, that even though entry on the premises was with the bank’s permission, the reckless and wanton destruction of the bank’s property as occurred during the course of removal of such equipment was neither authorized by the bank nor permitted at common law and constituted a trespass for which the defendants should be held liable, which damages pertained to an interest in realty.

(10) In view of the interrelationship between the acts, omissions and property interests of all three defendants, plaintiff has sought joint and several recovery.

Exception 7, Article 1995, V.A.T.S. (Fraud and defalcation), provides that: “In all cases of fraud, and in all cases of defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has his domicile.” The essence of the question to be determined is succinctly stated in 1 McDonald, Texas Civil Practice (Rev.Vol., 1965) § 4.13 at p. 464, as follows: “Venue under subdivision 7 may rest upon a false statement of present intention to perform, upon an undisclosed intention at the time of contracting not to perform, and similar misrepresentations where material and where relied upon by the complainant to his damage.”

The statutory definition of actionable fraud is contained in Article 4004, V.A.T.S. In part it reads: “All persons making the false representations or promises and all persons deriving the benefit of said fraud, shall be jointly and severally liable in actual damages * *

Actionable fraud at common law includes any number of wrongful acts or omissions relied upon by another party to his detriment.

“It is said that to state a cause of action for fraud that is based on false representations, the plaintiff is required to show that the defendant made or was connected with the making of the representation; that the representation was as to a material fact; that the representation was false at the time it was made; that the representation was made with intent to induce the plaintiff to do or refrain from doing some act; that the representation was relied on by the plaintiff — in other words, that the plaintiff believed it to be true and was induced thereby to act or refrain from acting; and that the plaintiff thereby suffered damage or injury.” 25 Tex.Jur.2d 625, § 13, Fraud and Deceit.

The appellee alleged that appellant Guest made false representations to Mr. Single-tary, its president, at its business office in Fort Worth, Texas, which representations pertained to the ownership of the laundry and dry cleaning equipment involved, and further falsely promised that C & G Coin-Meter Supply Corporation would enter into a lease personally guaranteed by Guest; that such representations and promises were material; that such representations and promises were false at the time they were made; that they were willfully made with the intent of securing appellee’s forbearance; that such representations and promises were believed and relied on in good faith; and that in reliance upon such representations and promises appellee suffered actual damages as there set forth.

Damages sustained by appellee both as to loss of rent and physical damage to the property in question appear without contradiction. The appellee’s president did in good faith believe the representations and promises made by Mr. Guest is further demonstrated by exhibits which appear in the record.

Mr. Guest admitted that he was president of C & G Coin-Meter Supply Corporation; that he was a principal stockholder of the company; that the company was a franchised distributor of “Norge Sales. Corporation”; and that the company had a financing arrangement and maintained a dealer reserve account of approximately $100,000.00 with B-W Acceptance Corporation.

. The admissions by Mr. Guest and exhibits clearly show that he had a vital interest in and authority to act for and in behalf o'f C & G Coin-Meter Supply Corporation; that C & G Coin-Meter Supply Corporation was a franchised representative of the Norge division or subsidiary of Borg-Warner Company; that B-W Acceptance Corporation extended 100% financing to C & G Coin-Meter Supply Corporation on the condition that C & G Coin-Meter Supply Corporation unconditionally guarantee payment to B-W Acceptance Corporation, by virtue of which C & G Coin-Meter Supply Corporation had a substantial interest in and liability on the indebtedness financed by B-W Acceptance Corporation; and that Mr. Guest came to Fort Worth with a representative of B-W Acceptance Corporation and had a conference with D. J. Singletary concerning the continued occupancy of the premises in question.

There is without question a dispute between the parties as to the substance of the conversation between Mr. Guest and Mr. Singletary during their conference in May of 1963. Appellee’s burden is not to prove its allegations beyond doubt, but to establish the essential elements of a controversy involving fraud. The testimony of Mr. Singletary, if believed, would certainly establish that Mr. Guest made fraudulent and false representations as to the ownership of the equipment in question and fraudulent and false promises as to the proposed lease agreement. The trial court was entitled to believe Mr. Singletary, and for the purposes. of determining the issues before this court it must be presumed that the trial court did believe Mr. Singletary. In the case of Brown Company v. Terrell, 310 S.W.2d 757, (Tex.Civ.App., 1958, no writ history) it is stated: “In the case of Sterling Mut. Life Ins. Co. v. Larson, Tex.Civ.App., 99 S.W.2d 1013, 1015, this Court held that in a venue case alleging fraud in a named county the pleader has the burden of establishing only a prima facie case of fraud committed in such county by producing proof of the existence of the elements of fraud perpetrated in such county. However, it is not necessary to introduce all the testimony on the merits of the case. The requirements of the statutes have been met when the evidence shows a substantial controversy over the question of alleged fraud or shows transactions which probably or might have constituted an actionable fraud committed in the county of venue alleged. The matters of extent of injury and amount of damages are to be determined at the trial on the merits. These pronouncements of the rules were observed in the previous case of Edmonds v. White, Tex.Civ.App., 226 S.W. 819, 820 * * *.” (Emphasis added.) See also Cockburn v. Dixon, 152 Tex. 572, 261 S.W.2d 689, 691.

The record in this case demonstrates that the requirements necessary to sustain venue under Exception 7, Article 1995, V.A.T.S., have been met by appellee. We are further of the opinion that venue may be sustained under Exception 9 (trespass), 56 Tex.Jur.2d 10, Trespass, § 1. See also 1 McDonald, Texas Civil Practice (Rev.Vol., 1965) § 4.17.1 at p. 471; 56 Tex. Jur.2d 13, Trespass, § 4.

Being of the opinion that venue may be sustained under either exception 7 or 9 we defer discussion of the points involving other exceptions.

All points of error are overruled and the judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    GREAT AMERICAN INVESTMENT COMPANY, Appellant, v. Tom I. McFARLING, Receiver, Appellee.
    No. 11514.
    Court of Civil Appeals of Texas. Austin.
    May 31, 1967.
    Rehearing Denied June 21, 1967.
    Kuykendall & Kuykendall, Kirk Kuyken-dall, Austin, for appellant.

      Osorio & Palmer, Tom Thomas, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellant, Great American Investment Company after having the hereinafter described claim rejected by the receiver and after the receivership had been closed by the district court, attempted to “intervene” in the receivership proceedings, have the court set aside the reinsurance contract negotiated by the receiver and approved by the court and reopen the receivership.

The trial court denied appellant any relief from which ruling appellant appeals to this Court.

The company in receivership in this case, Blue Bonnet Life Insurance Company was, prior to its failure and receivership, a mutual assessment life insurance company organized and operating under the provisions pf chapter 14 of the Texas Insurance Code.

On April 2, 1964, upon petition of Clay Cotten, Liquidator-Receiver for the Texas Department of Insurance, this company was placed into receivership by order of the 53rd District Court of Travis County, Texas. At the time of its entry into receivership, Blue Bonnet Life Insurance Company was insolvent, having liabilities in excess of its assets.

On April 22, 1964, the Receiver entered into a contract and agreement with National Bankers Life Insurance Company, wherein National Bankers Life agreed to advance and pay certain cash funds to the Receiver to provide funds for the receivership estate; to pay creditors and to meet policyholder claims, and to reinsure all outstanding policies of Blue Bonnet Life Insurance Company to protect existing policy holders from further loss.

This contract was submitted to the court for consideration by the Receiver and was subsequently approved.

Thereafter, pursuant to this contract, National Bankers Life paid the Receiver cash sums totaling at least $169,500.00 and established the policy reserves for reinsured policies as agreed upon and approved by the court.

In March of 1965, the claim of Appellant Great American Investment Company was submitted to the receiver by Mr. William H. Haight as the Attorney for Appellant and for Charles F. Palm, its President. Thereafter in June of 1965, Mr. Martin De-Stephano, an attorney for the Receiver, addressed and sent a rejection of this claim by certified mail, return receipt requested. It is undisputed that this rejection was received and acknowledged by Mr. Haight, then attorney of record for appellant and C. F. Palm. No further claim or objection was received by the Receiver until the receivership was formally closed on June 20, 1966.

Appellant is before this Court on five points of error however due to the disposition we make of this case we need notice only the first point which is the error of the trial court in overruling Great American Investment Company’s motion for new trial asking that the order closing the receivership be set aside because Great American Investment Company’s claim had never been rejected in the manner required by law, and the receivership was not ready to be properly closed.

We overrule this point.

The claim referred to herein is Appellant’s Expense Fund Certificate of Advance which presents a question in itself as to whether it qualifies as a claim. We do not pass upon this question. If it is not a claim, the answer is obvious. If it is a claim, we hold that Appellant is barred as hereinafter described.

Appellant cites us to Tex.Rev.Civ.Stat. Ann. art. 21.28, Section 3(h), to the effect that where a claim is rejected in whole or in part the Receiver shall notify the claimant of such rejection by written notice. This section further requires that action upon a rejected claim must be brought in the court within three months. No action was brought by appellant on this claim until after the receivership was closed which was a year after the so-called claim had been rejected. Appellant contends that this statute required the Receiver himself, and not Mr. DeStephano his attorney, to have notified Mr. Palm himself as claimant and not his attorney of record, Mr. Haight. Thus the claim is still pending and was not acted upon.

We reject this argument and hold that the abovementioned section of the Code was complied with. Appellant is a business corporation, an artificial entity, and can act only through agents and attorneys. Here there is no doubt but that both attorneys were in fact and at law agents for their

respective clients. It is also clear that both attorneys were acting well within their authority, particularly if we assume that Mr. Haight was within his authority when he submitted the claim. Thus, it should be beyond question that he had the corresponding authority to receive the reply. 7 Tex. Jur.2d, Attorneys at Law, sec. 38, p. 78.

As authority for his contention, appellant cites us to Phinney v. Langdeau decided by this Court, 337 S.W.2d 393, (Tex.Civ. App.1960, writ ref’d n. r. e.). Phinney is not in point as it involves a claim by the Federal Government for a tax deficiency through a specially designated agent, the District Director of Internal Revenue. Here this Court was faced with the well established rule that governmental agency must be strictly shown and supported by statutory authority, and that there can be no agency by estoppel or apparent authority.

We also hold that appellant’s alleged claim was barred in that it was not presented within three months as required by Tex.Rev.Civ.Stat.Ann. art. 21.28, Section 3(h).

On February 16, 1966, the court, upon application of the Receiver, directed that he transfer all of the assets remaining in his hands to National Bankers Life Insurance Company, as reinsurer, except for funds necessary to pay the closing costs of the receivership. The receivership was then closed by court order some four months later on June 20, 1966. It is interesting to note that all of the Blue Bonnet Life Insurance Co. policyholders were paid in full and incurred no loss because of the above-mentioned insolvency.

We affirm the judgment of the trial court.

Affirmed.

      I. Appellant's remaining points of error are:
      “The trial court erred in overruling Appellant’s Motion for New Trial because the transfer of funds by the Receiver to National Bankers Life Insurance Company was an illegal or unlawful transfer, not authorized by law; the trial court erred in overruling Appellant’s Motion for New Trial because the funds remaining in the hands of the Receiver after the payment of the final dividend did not constitute Mortuary Funds which could be transferred to National Bankers Life Insurance Company under the Contract of Reinsurance; the trial court erred in overruling Appellant’s Motion for New Trial because National Bankers Life Insurance Company did not show, and the Receiver did not know, the amount of money National Bankers Life Insurance Company was entitled to under the Contract of Reinsurance, and the trial court erred in overruling Appellant’s Motion for New Trial because all funds in the hands of the Receiver, after the payment of the final dividend, were funds subject to distribution to claimants, policyholders or other persons and should have been delivered to the State Board of Insurance.”

      . The pertinent parts of Article 21.28, Section 3(h) Action on Claims is as follows :
      “The receiver shall have the discretion to approve or reject any claim filed against the insurer. * * * Upon the rejection of each claim either in whole or in part, the receiver shall notify the claimant of such rejection by written notice. Action upon a claim so rejected must he brought in the court * * * within three (3) months * *


author: STEPHENSON, Justice.

text:
    FIDELITY SAVINGS & LOAN ASSOCIATION OF PORT ARTHUR, Appellant, v. Howard Lyle BALDWIN et ux., Appellee.
    No. 6889.
    Court of Civil Appeals of Texas. Beaumont.
    June 1, 1967.
    Rehearing Denied June 21, 1967.

      Tom Featherston, Port Arthur, for appellant.
    Herbert A. Plummer, Port Arthur, for appellee.
   STEPHENSON, Justice.

This is an action to enjoin foreclosure of a mechanics’ and materialmen’s lien. Trial was before the court and judgment was rendered for plaintiffs granting such injunction. The parties will be referred to here as they were in the trial court.

The facts in this case are not disputed. Howard Lyle Baldwin and wife, plaintiffs, entered into a mechanics’ and materialmen’s lien contract with Diamond Enterprises, Inc., hereinafter called “Diamond”, for the construction of a home. Such contract recited the payment of $1,000.00 down and the balance of $15,000.00 payable upon completion of the home. This contract was assigned to Fidelity Savings & Loan Association of Port Arthur, Texas, defendant. Diamond began construction, but abandoned the contract before substantial completion. Plaintiffs then entered into a second mechanics’ and materialmen’s lien contract in the amount of $10,000.00 with John May, and in the home was completed. Defendant notified plaintiffs that it intended to foreclose its mechanics’ and material-men’s lien and this suit was brought. The trial court filed findings of fact and conclusions of law. It found that there had not been substantial compliance by Diamond of its contract with plaintiffs, and that plaintiffs had incurred $2,005.49 expense in connection with this litigation, including their attorney’s fees. The court also found that because there was no substantial performance by Diamond that defendant acquired no lien on plaintiffs’ homestead. The judgment created an equitable lien in favor of defendant to secure the payment by plaintiffs to defendant of the sum of $2,994.51. This amount was arrived at by deducting from $16,000.00 the $1,000.00 cash payment made by plaintiffs to Diamond, the $10,000.-00 representing the contract by plaintiffs with John May and $2,005.49 representing plaintiffs’ expenses.

Defendant’s first point of error is that the trial court erred in allowing plaintiffs to recover the $2,005.49 for attorney’s fee and other expenses. First, we think it is clear that defendant does not have a valid lien upon plaintiffs’ homestead. Murphy v. Williams, 103 Tex. 155, 124 S.W. 900. The law of this state re- ' quires substantial performance of a mechanics’ and materialmen’s lien contract before such lien attaches to a homestead. This is true whether the person claiming the lien is the original contractor, or the contractor’s assignee, as in this case. As stated by the Supreme Court in the Murphy v. Williams Case, supra, the assignee bought the note before the contract was performed, and. the assignee’s lien depended upon the performance either by the original contractor or the assignee of that which such contractor had undertaken to do to create or perfect the lien. In this case, upon abandonment by Diamond, defendant could have-protected itself and established its lien by seeing that the contract was substantially-completed. Plaintiffs entered into á contract with John May for $10,000.00 to complete their home, and this amount was approved by the trial court with no attack being made upon it. The statement is made in appellant’s brief that it was stipulated that defendant advanced $10,400.00 in progress construction advances before abandonment by Diamond. However, after deducting the $1,000.00 paid by plaintiffs to Diamond and the $10,000.00 representing the contract price with John May, which has not been attacked, only $5,000.00 remains as a part of the original contract price. There is no provision under the law of this state for plaintiffs to be permitted to recover the $2,005.49 for their expenses. Plaintiffs agree with defendant in the briefs that this is not the type of case in which recovery for attorney’s fees is permitted under Art. 2226, Vernon’s Ann. Civ.St. Defendant is entitled to a judgment against plaintiffs in the amount of $5,000.00 with no lien, equitable or otherwise, to secure it. A lien can exist upon a homestead only when created in accordance with the Constitution of this State. Art. 16, Sec. 50, Vernon’s Ann.St. The Supreme Court made it clear in Murphy v. Williams, supra, that the contract for the building of a house at a stipulated price cannot be split up so as to provide a lien for the contractor or his assignee, to secure a part of the price, when such contractor or assignee failed to substantially complete the house. Except as herein provided, all points of error are overruled.

Reformed and affirmed.


author: McDONALD, Chief Justice.

text:
    HOUSTON NATURAL GAS CORPORATION, Appellant, v. Victor J. JANAK et al., Appellees.
    No. 4614.

    Court of Civil Appeals of Texas. Waco.
    May 18, 1967.
    Rehearing Denied June 22, 1967.

      Fulbright, Crooker, Freeman, Bates & Jaworski, St. John Garwood, Jr., Houston, for appellant.
    Baggett, Kirk, Van Keuren & Baggett, Russell T. Van Keuren, J. P. Madole, Jr., Vernon E. Fewell, Houston, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Houston Natural Gas Corporation from a $7500 judgment for plaintiff Janak, in a false representation case.

Plaintiff Janak sued Defendant Gas Company, Wayne Lippert, Active Air Conditioning, and others, for falsely representing that the air conditioning contracted for by Janak for a 50 unit apartment house he was building, would be sufficient to adequately cool the apartments. Plaintiff alleged defendant Gas Company, through its employee Lippert, represented the gas air conditioning contracted for would be sufficient; that it was in fact insufficient; that defendant’s representations were false; were relied on by plaintiffs; that such representations were material; and that plaintiff was damaged $35,000.

Defendant answered by general denial.

Trial was to a jury which, in answer to issues submitted, found:

1) Just before plaintiff signed the contract on October 5, 1961, Wayne Lip-pert was acting as agent of defendant Gas Corporation.
2) Prior to execution of the contract Lippert represented to plaintiff, as a then existing fact, that the air conditioning system to be installed was of such a nature and character that it would be adequate for the premises.
3) Such representations were false.
4) Such false representations were a material inducement to plaintiff Janak in entering into such air conditioning contract.
5) Such representations were made to induce plaintiff Janak to execute such contract.
6) Plaintiff Janak relied on the truth of such representations in executing the contract.
7) Such representations were not understood by plaintiff Janak to be an expression of opinion on the part of Lippert.
8) Stinnett was acting as agent of Active Heating-Air Conditioning Co. at the time of signing the contract.
9) The value of labor and materials in the air handlers and duct work in the apartment after completion was $3,000.
10)The air handlers and duct work was not installed in a workmanlike manner.
11a) The reasonable cash market value of the labor and materials in the air handlers and duct work as performed is $3,000..
12) The reasonable cash market value of the Ready Power unit on 28 April, 1964 was $1200.
13) The reasonable cash market value of the equipment room controls on 28 April, 1964 was $200.
14) To maintain the air conditioning in working order, plaintiff had to spend money over ordinary operating expense from installation to 28 April, 1964.
15) Such expenses were $900.

The trial court disregarded the answer to Issue 11a; further found that plaintiff paid $6835.00 for the unit (Issue 12); and $1165 for the controls (Issue 13); and rendered judgment for plaintiff Janak against defendant Gas Corporation for $7500. Cost of unit $6835, plus cost of controls $1165 — $8,000; less value of unit ‡1200, less value of controls $200; plus cost of extraordinary maintenance $900, equals $7500).

Defendant appeals on 7 points, contending:

1)The trial court erred in entering judgment here on Issue 2, because plaintiff admitted that Lippert only stated, and truthfully, that 50 tons of air conditioning would cool plaintiffs apartment.
2) The trial court erred in entering judgment on Issue 2 because the “system” consisted of a written contract by which Active Heating and Air Conditioning Company agreed to design and install duct work for plaintiff’s apartment.
3) There is no evidence to sustain the finding in answer to Issue 1, that just before plaintiff signed the contract, Lippert was acting as agent for defendant Gas Company.
4) The trial court erred in rendering judgment based on Issues 12-15, because there is no evidence of the value of the power unit or controls when installed; and the $9000 item for extraordinary maintenance is not a proper element of damage.

Plaintiff, by cross-points, complains the trial court erred:

1) In not awarding plaintiff an additional $10,860; and
2) In discharging defendant Lippert on motion for instructed verdict.

Defendants’ contentions 1 and 2 complain of the judgment based on the jury’s answer to Issue 2.

Issue 2 inquired if, prior to execution of the contract, Lippert represented to plaintiff as a then existing fact that the air conditioning system to be installed was of such a nature that it would be adequate for the premises.

Plaintiff was building an apartment house. He put out bids for electrical air conditioning and had not even considered a gas unit. Defendant Gas Company sent its salesman Pitts and its engineer Lippert to see plaintiff to persuade plaintiff to use gas air conditioning. Lippert picked up plaintiff’s plans; shopped for the unit; picked out the contractor, represented to plaintiff that the system would be well sufficient for the whole apartment; furnished the contract form; and watched over the installation. The record reflects Lippert told plaintiff he had studied the system and that he, Lippert, and the Gas Company engineered the system; and Lippert told plaintiff at the October 5th or 6th meeting “it was engineered and calculated low and everything and the air handlers and everything would be sufficient.”

Actionable fraud may result from a positive representation that a plant or machine will do a certain amount of work or furnish a specified amount of heat, light, or power, when made by one who is in a superior position to know the truth, injury having resulted because of reliance on the representation; and material misrepresentations as to the quality of a thing which is the subject matter of the transaction are actionable when such misrepresentations induce the other party to enter into the transaction, and are relied on to his damage. Bell v. Bradshaw, CCA (n. w. h.) 342 S.W. 2d 185; 25 Tex.Jur.2d p. 707; United States Pipe & Fdy. Co. v. City of Waco, CCA, 100 S.W.2d 1099; Aff’d Sup.Ct., 130 Tex. 126, 108 S.W.2d 432.. Contentions 1 and 2 are overruled.

We think the evidence ample to sustain the jury’s finding in answer to Issue 2. The fact that Lippert stated additionally and truthfully, that 50 tons of air conditioning would cool the apartment; and the fact that plaintiff’s contract was with Active, under the facts, does not relieve defendant Gas Company from liability on its false representations to plaintiff.

Defendant’s third contention is there is no evidence to sustain the finding in answer to Issue 1, that Lippert was agent for defendant Gas Company.

Lippert was an engineer and employee of defendant Gas Company. The Gas Company benefited by plaintiff installing gas air conditioning. When defendant Gas Company sent Lippert to plaintiff, under the record, he had apparent authority to represent engineering facts to plaintiff, and the jury were authorized to so believe. Russell v. Industrial Transp. Co., 113 Tex. 441, 251 S.W. 1034, 51 A.L.R. 1, Affirmed Sup. Ct., 258 S.W. 462. Contention 3 is overruled.

Defendant’s 4th contention is that there is no evidence of the value of the power unit or controls when installed; hence the trial court erred in rendering judgment based on Issues 12-15 (and that the $900. extraordinary maintenance item was improper.)

Plaintiff’s 1st cross-point is that the trial court erred in not rendering plaintiff judgment for an additional $10,860.

The trial court found from the evidence that the power unit cost $6835, and that the controls cost $1200; and then subtracted the jury’s finding that same were worth $1200 and $200 on April 28, 1964 from the cost, and rendered judgment for the difference.

Plaintiff contends the evidence is undisputed that the duct system cost $13,860. and that the trial court should have subtracted the $3000. found by the jury in answer to Issue 11a to have been its worth on completion; and rendered plaintiff $10,860 additional judgment.

The contract price for the air condition system for plaintiff’s apartments was $25,821.70. Plaintiff testified he asked Mr. Stinnett of Active Air Conditioning, for a breakdown on the cost, and was told by Stinnett that the duct work was $13,860; the power unit was $6835, and the controls were $1165. Defendant requested such breakdown testimony be limited to the case against Active Air Conditioning. The trial court overruled such motion. The testimony as to the cost of the duct system, power unit, and controls is hearsay and as such inadmissible as to defendant Gas Company. Without such evidence judgment could not properly be rendered for the diminution in value of the power unit, the controls, or the duct system. The $900. item for extraordinary repairs was likewise an improper element under the record.

Defendant’s 4th contention is sustained; and plaintiff’s 1st cross-point is overruled.

Plaintiff’s 2nd cross-point asserts the trial court erred in discharging defendant Lippert on motion for instructed verdict. Lippert admitted he did not do the engineering, despite his representations to the contrary. We think Lippert liable under such facts. Foix v. Moeller, CCA, Er. Ref., 159 S.W. 1048. Plaintiff’s 2nd cross-point is sustained.

The issues as to whether Lippert was agent for the Gas Company, and whether the false representations are actionable are, we think, severable from the damage issue. See Rule 434 Texas Rules of Civil Procedure; Durham v. Scrivener, Tex.Com.App., 270 S.W. 161. Durham, supra, holds:

“The issue as to whether these deeds should be canceled by reason of fraud * * * is clearly severable from the issue as to what relief should be awarded the defrauded parties * * *.
“After a fair and impartial trial has been had in the trial court on the issue involving the cancellation of the deeds, it would indeed be unfortunate if the rules of procedure governing appellate courts were such that, without any apparent reason therefor, the trial court should again be required to determine this issue.”

We hold defendants Gas Company and Lippert liable; and reverse and remand for new trial of the damage issue alone.

Costs of appeal assessed one-half each against plaintiff and defendants Gas Company and Lippert.

Reversed and remanded.

      I. See: Morriss-Buiek Co. v. Pondrom, 131 Tex. 98, 113 S.W.2d 889, pt. 1; Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 440, 128 A.L.R. 757, for measure of plaintiff’s damages.


text:
    SOUTHWESTERN MOTOR TRANSPORT COMPANY, Inc., Appellant, v. VALLEY WEATHERMAICERS, INC., Appellee.
    No. 4173.
    Court of Civil Appeals of Texas. Eastland.
    May 26, 1967.
    Rehearing Denied June 16, 1967.

      Muse, Currie & Kohen, Ralph W. Cur-rie, Dallas, Hardy, Galindo & Sharpe,. Thomas G. Sharpe, Jr., Brownsville, for appellant.
    Orrin W. Johnson, Harlingen, for appel-lee.
   GRISSOM, Chief Justice.

Valley Weathermakers, Inc., sued Southwestern Motor Transport Company, Inc.,, for the value of labor and material furnished by the plaintiff in repairing and replacing air conditioning equipment which the-plaintiff had shipped in interstate commerce with the defendant as the initial carrier and which equipment was damaged by a connecting carrier. The plaintiff sought recovery under an alleged contract with the defendant. It also sued for reasonable-attorney’s fees. In a trial to the court, judgment was rendered for the plaintiff for the reasonable value of the labor and material so furnished and for attorney’s fees. Southwestern Motor Transport Company,. Inc., has appealed.

Appellant presents twenty-one points, of. error. The first one being that the court erred in trying the case on the-theory of an oral contract to repair and replace such equipment because the only contract between the parties was the Bill of Lading for shipment of said equipment in interstate commerce because said Bill of Lading was cumulative of all rights of the parties and said Bill of Lading incorporated all provisions of the Interstate Commerce Act and relevant tariffs. The second point is that the court erred in trying the case on the theory of an oral contract because in so doing it stripped the defendant of all defenses it had under federal law pursuant to the contract for the shipment of said goods in interstate commerce; that this was solely a question of federal law and the defenses would have been:

A. Fault of the shipper.
B. Inherent vice of the commodity.
C. Act of God.

The third point is that the court erred in applying the Texas law applicable to formation of the contract because said cause arose out of an interstate shipment and was controlled by Federal Law. Other points present the contention that there was no evidence or insufficient evidence to support the finding of $9,854.56 as the reasonable value of the work done and material furnished in repairing and replacing said damaged equipment. Appellant also contends that the parties with whom the plaintiff allegedly contracted for the repair and replacement of the damaged equipment had no authority to make such a contract and that the court erred in awarding plaintiff attorney’s fees, because attorney’s fees were not recoverable under Article 2226, because plaintiff’s suit was on a special contract.

It is undisputed that plaintiff shipped in interstate commerce air conditioning equipment manufactured by it; that it was damaged by a connecting carrier and that defendant was the initial carrier who issued the bill of lading. There is no question but that under this record the court had the right to find that under the Interstate Commerce Act the defendant, the initial carrier in interstate commerce, was liable to the plaintiff for damage caused by its connecting carrier. Plaintiff’s evidence was to the effect that when the defendant notified it of the damage to its equipment that it was the only concern in that general area capable of replacing and repairing it; that it contracted to repair and replace the damaged equipment and the defendant impliedly agreed to pay plaintiff the reasonable value of the labor and material furnished and that the reasonable value of the labor done and the material furnished was the amount found by the court.

With due deference to the excellent brief and argument of the appellant, we have concluded that the case is not controlled by federal statute; that this is simply a suit upon a contract to recover the reasonable value of the labor done and the material furnished by the plaintiff under a contract and that the evidence is sufficient to support the findings of the trial court and the judgment therefor and that the controlling findings are not contrary to the overwhelming weight and preponderance of the evidence.

There was evidence to the effect that the defendant’s agent at the place of shipment and the general claim agent made the contract alleged by the plaintiff; that the damaged equipment was returned by the defendant from the place where it was damaged to the plaintiff’s place of business in the town from whence it was shipped to be replaced and repaired by it, because plaintiff was the only concern in the general area that was capable of making such repairs and replacements; that the defendant returned it to the plaintiff for the purpose of having it replaced and repaired; that it had knowledge of the repairs and replacements being made and inspected them while the work was being done. While the contract was somewhat indefinite and consisted of a letter and telephone conversation and contained no agreement as to the amount to be paid plaintiff, nevertheless, the entire record supports the court’s conclusion that such contract was, in fact, made by defendant’s authorized agents. With reference to the matters just mentioned we think plaintiff properly states that the question presented is where equipment was shipped interstate by the plaintiff and wrecked in transit by a connecting carrier and replaced and repaired by the shipper at the request of the initial carrier under an implied agreement that it will pay the reasonable value thereof, may such initiating carrier, after the work has been done and the material furnished, under such circumstances avoid its obligation to pay therefor, the plaintiff’s bill admittedly being just and reasonable in amount ?

Before undertaking to do any of the repair work plaintiff wrote the defendant on September 13, 1965, outlining the work which would have to be done and the charges to be made. Plaintiff, through its President, also had a telephone conversation with defendant’s local manager, who authorized the plaintiff to proceed to make the repairs, it having been returned to the plaintiff by the defendant in its damaged condition for that purpose. There is evidence that the defendant knew for several weeks that the plaintiff was doing the repair work and that the defendant inspected such work as it progressed. When the repair work was finished a bill was submitted to defendant in accord with such agreement. There was little controversy about whether the charges were necessary and reasonable. The defendant, apparently, is basing its defense and appeal upon the theory that it is not liable for the labor done and the material furnished by the plaintiff because the Interstate Commerce Act excuses it from liability under such an agreement. Without discussing all the ramification of this contention so ably presented, we cannot agree that the federal law has that effect. The Interstate Commerce Act does impose liability upon the initial carrier for damages to an interstate shipment caused by a connecting carrier. It does not, however, deny such a plaintiff recovery against the defendant upon a contract to pay for labor done and material furnished in repairing the damaged goods. Such act, 49 U.S.C.A. § 20(11), provides that:

“ * * * no contract * * * of any character whatsoever shall exempt such common carrier * * * from the liability imposed * * *.”

The agreement sued on could not by the wildest stretch of the imagination be construed as an attempt to exempt the carrier from liability fixed by said statute. The statute made the defendant liable. It did not exempt it from liability for a contract to pay for the labor and material furnished under a contract to replace and repair material so damaged while in transit. The court correctly held the defendant liable to pay the reasonable value of the labor done and the material furnished under agreement made by and through its local manager Herzing, who, with the addition of the general claim agent, was the only persons plaintiff dealt with in connection with the shipment, the return of the damaged goods by defendant to plaintiff for repair and the alleged contract in relation thereto. We think it was sufficiently shown that defendant’s said agents had authority to and did employ plaintiff on behalf of Southwestern Motor Transport Company, Inc. to furnish the material and do the labor requisite to repairing and replacing the damaged equipment.

The next question is whether the court correctly awarded plaintiff attorney’s fees under Article 2226. We think the court correctly held that the plaintiff, who took all requisite procedural steps under said article, was entitled to recover attorney’s fees, because this was a suit for labor done and material furnished under an agreement with the defendant. Article 2226 provides that any person having a valid claim against a corporation for personal services rendered, labor done, material furnished, damaged freight, etc., may present the same to such corporation or to any duly authorized agent, and if, at the expiration of thirty days thereafter, the claim has not been paid, and he should finally obtain judgment for any amount thereof as presented for payment, he may recover, in addition to his claim and costs, a reasonable amount as attorney s fees. Under such statute, as interpreted in such cases as Gateley v. Humphrey, 151 Tex. 588, 254 S.W.2d 98; J. H. Hubbard & Son, Inc. v. Greer, Tex.Civ.App., 255 S.W.2d 389; Williamson v. Acosta, Tex.Civ.App., 257 S.W.2d 772; Southwest General Const. Co. v. Price, Tex.Civ.App., 267 S.W.2d 855 and Ginther v. Southwest Workover Co., Tex.Civ.App., 286 S.W.2d 291, authorizes recovery of the attorney’s fees awarded here. See also Dueitt v. Barrow, Tex.Civ.App., 384 S.W.2d 214, 216; Ferrous Products Co. v. Gulf States Trading Co., Tex.Civ.App., 323 S.W.2d 292, 297, affirmed 160 Tex. 399, 332 S.W.2d 310, 313; Nolen v. RigTime, Inc., Tex.Civ.App., 392 S.W.2d 754, 757, ref. n. r. e.; Ferrier Brothers v. Brown, Tex.Civ.App., 362 S.W.2d 181, 188, ref. n. r. e.; 14 Am.Jr.2d “Carriers”, Sec. 658, p. 165, defendant was liable for the reasonable attorney’s fees awarded by the trial court.

We conclude that reversible error is not shown. All of appellant’s points are overruled. The judgment is affirmed.


author: WALTER, Justice.

text:
    Melissa Elizabeth BUNTING et al., Appellants, v. Nola Eiian CHESS, Appellee.
    No. 4121.
    Court of Civil Appeals of Texas. Eastland.
    May 26, 1967.
    Rehearing Denied May 26, 1967.

      Mayfield, Broaddus & Perrenot, El Paso, Richard B. Perrenot, El Paso, Pearson & Speer, El Paso, James M. Speer, El Paso, for appellants.
    Bert Williams, El Paso, for appellee.
   WALTER, Justice.

Nola Elian Chess’ second motion for rehearing is overruled. Bunting’s second motion for rehearing is granted. Our original opinion of March 17, 1967, and our opinion on motion for rehearing dated April 14, 1967, are withdrawn and the following is substituted therefor. Our former judgment is set aside and judgment now rendered denying a recovery of the $3,000.00 guardian ad litem fee to Williams and in all other respects, the judgment is affirmed.

This suit was originally brought by Melissa Elizabeth Bunting in the County Court of El Paso County for partition and distribution of the estate of Elliot Chess, deceased. Florence Chess, Nola Elian Chess, a minor, and Elaine Hemley, the mother of Nola Elian Chess, were served with notices of the application. Elaine Hemley filed a disclaimer. In a non jury trial, the court found that Elizabeth Bunting and Florence Chess, aunts of the deceased, were his sole heirs and that Nola Elian Chess was not his daughter. The court awarded a fee to the guardian ad litem of the minor and an attorney’s fee to the court appointed attorney for Elaine Hemley, a non resident, to be paid out of the estate. All parties were dissatisfied with the judgment. Bunting and Chess objected to that part of the judgment awarding guardian ad litem’s fees and attorney’s fees to be paid out of the estate. Nola Elian Chess objected to the judgment because it failed to find that she was the daughter of Elliot Chess, deceased.

In a non jury trial in the District Court, judgment was rendered that Nola Elian Chess was not the daughter of Elliot Chess and that Bunting and Chess were the sole heirs at law of Elliot Chess, deceased. The court allowed Bert Williams, the guardian ad litem for the minor, a fee of $3,000.00. All parties were dissatisfied with the Dis-rict Court’s judgment.

The minor contends that the findings of the court that her mother was not married to Elliot Chess and that she is not the lawful issue of Elliot Chess are against the great weight and preponderance of the evidence. She also asserts that the court erred in admitting and excluding certain evidence.

The minor alleged that she was the daughter of Elliot Chess who died intestate in El Paso, Texas, December 27th, 1962. She alleged that she was the only child of the deceased and was entitled to his estate. Melissa E. Bunting, a maternal aunt, and Florence Chess, a paternal aunt, asserted* they were the only heirs at law of Elliot Chess.

Elaine Gottlieb Hemley, the mother of the appellant. Nola Elian Chess, testified substantially as follows: I married Elliot Chess-September IS, 1946, in Ajiji, Mexico, and lived with him until on or about November 16, 1946. Elliot did not make an application for a marriage license in the Republic of Mexico. I have no written evidence that I was married to Elliot. It wasn’t that kind of marriage. I said to him, “I take thee Elliot to be my lawful wedded husband” and he said to me, “I take Elaine to be my lawful wedded wife.” I did not sign a civil registry of our marriage in the Republic of Mexico. Neither Elliot nor I appeared before any public official, by proxy or otherwise, to be married. On November 17th I boarded a train for Mexico City. Elliot kissed me goodbye at the hotel early that morning and that was the last time I saw him. I returned to New York and the appellant was born on July 3rd, 1947. Elliot Chess is the father of Nola Elian Chess. I am presently married to Cecil Hemley. Before I married Mr. Hemley, I filed a suit for annulment of my marriage to Elliot. He filed a verified answer and asserted that he was never married to me. The annulment suit was still pending when I married Mr. Hemley. When Mr. Hemley and I applied for a marriage license, I used the name of Elaine Gottlieb. The birth certificate of Nola Elian was introduced in evidence and shows that Elliot Chess is her father.

We have considered the entire record and hold that the court’s findings that Elliot Chess and Elaine Gottlieb were never married and that Elliot Chess had no lawful issue are not against the great weight and preponderance of the evidence. In re King’s Estate, ISO Tex. 662, 244 S.W.2d 660.

The minor’s points 1 and 2 are as follows:

“POINT ONE
“The Court erred in the finding that ‘no marriage between Elliot Chess and Elaine Gottlieb (also known as Elaine Hemley) was ever entered into at any time or at any place’ inasmuch as this is contrary to the evidence and against the weight of the evidence. Appellees proved the contract of marriage.
POINT TWO
The court erred in the finding that ‘Elliot Chess had no lawful issue’ inasmuch as this is against the weight of the evidence and is not decisive of the infant-claimant’s right to inherit from him. The mother of said infant-claimant believed, from all that had been said and done, that she was actually married to Elliot Chess; and even if said marriage be deemed null in law, the infant-claimant can inherit from her father pursuant to Section 42 of the Probate Code of Texas [V.A.T.S.] that states, ‘The issue also of marriages deemed null in law shall nevertheless be legitimate.’”

She does not say they were intended to present points that the evidence established conclusively or as a matter of law that Elliot Chess and her mother were married and that she was the lawful issue of Elliot Chess, but if that is what she means then we will so consider them in the event we are mistaken. After so considering them, according to the appropriate rule, we find that the record does not conclusively show that Elliot Chess and the mother of the minor were married and that such minor is the lawful issue of Elliot Chess. Renfro Drug. Co. v. Lewis, 149 Tex. 507, 235 S.W. 2d 609, -23 A.L.R.2d 1114, (1950).

The minor’s point that the court erred in receiving in evidence the Civil Code of Jalisco, the opinion of two Mexican lawyers and the decision of the Supreme Court of Mexico cannot be sustained. In Nevarez v. Bailón, 287 S.W.2d 521 (Ct. Civ.App., 1956, writ ref.), the court said:

“It was testified without contradiction that the only valid legal marriage in Chihuahua, Mexico, was one performed by and through the civil authorities, and as one attorney described the situation, those people who entered into merely a religious ceremony, or the state of concubinage without ceremony, have consummated a ‘legal union’ but not a legal marriage. It was further testified that marriages can be proven in Mexican courts only by presentation of a certified copy of the certificate or instrument drawn up in the Civil Authorities’ authorized book. It is clear then that appellant could not have proved a valid marriage in Mexico because she had never entered into any civil ceremony with the deceased. If she could not have proven a valid marriage there, then of course she cannot come into the Texas Courts as a surviving wife, because her standing here must depend on her ability to establish her status as a surviving wife at the place of her residence.”

The minor has other points complaining about the court’s ruling on the admission and exclusion of evidence. We have considered these points and have concluded that the appellant has not discharged her burden of showing that such errors, if any, were reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

We have considered all of the points of the appellant Nola Elian Chess and find no merit in them. They are overruled.

We will now consider the appeal of Bunting and Chess. They contend the court erred in failing to render judgment that Gus Rallis was not entitled to an attorney’s fee to be paid out of the estate for representing Elaine Hemley, a non resident, in the County Court and that Bert Williams was not entitled to a fee to be paid out of the estate for his services as guardian ad litem of the minor in the County Court. They also assert the court erred in awarding a fee to Williams for services as guardian ad litem for the minor in the District Court trial.

Bunting and Chess were aggrieved by the judgment of the County Court awarding the guardian ad litem a fee of $2,000.00 and awarding a fee of $800.00 to the attorney appointed to represent the non-resident, both of said fees to be paid out of the estate of Elliot Chess. Article 28 of the Probate Code V.A.T.S. authorizes any such aggrieved person to appeal to the District Court. Rule 337, T.R.C.P., as amended, provides that such cases shall be tried de novo. The jurisdiction of the district court, after the appeal, was appellate only and confined to a trial of the issues made in the probate court. Marshall v. Hobert’s Estate, 315 S.W.2d 604 (Ct.Civ.App., 1958, writ ref.).

In A & M College of Texas v. Guinn, 280 S.W.2d 373 (Ct.Civ.App. 1955, writ ref. n. r. e.), the Court said:

“The judgment of the District Court in Cause No. 669 is also invalid for a vice which appears upon the face of the judgment record in that the judgment affirmatively discloses that it is but an attempt to review and correct errors committed by the Probate Court. The District Court in the exercise of its appellate jurisdiction in probate matters from the County Court does not have this authority. It must grant and conduct a trial de novo. Rules 334, 350, T.R.C.P. By this is meant that the trial should be conducted as if the suit had been orginally brought in that court and it, the District Court, may neither affirm nor reverse the order of the County Court from which the appeal is taken.”

The record shows, without dispute, that Elaine Hemley made no appearance and was not a party to the District Court proceedings. No evidence was presented in support of the award of attorney’s fees to Gus Rallis. Therefore, in the de novo trial in the District Court, no issue was presented and that court was warranted in failing to award attorney’s fees to Rallis.

No evidence was presented in the District Court in support of the award of the guardian ad litem fee to Bert Williams for services rendered in the County Court. Therefore, that issue was not presented and the court was warranted in failing to award said guardian ad litem fee. We find no authority to support the award of a guardian ad litem fee to Williams in the District Court. That portion of the judgment awarding such fee is reversed. We hold that the guardian ad litem is not entitled to any fee which could be taxed as •cost against the successful parties. The judgment is otherwise affirmed.


text:
    Frank KOVAC et al., Appellants, v. W. Morse HICKS, Jr., et al., Appellees.
    No. 4181.
    Court of Civil Appeals of Texas. Eastland.
    May 26, 1967.
    Rehearing Denied June 23,1967.
    John H. Holloway, Houston, for appellants.
    Guittard, Henderson, Jones & Lewis, O. F. Jones, Victoria, for appellees.
   WALTER, Justice.

Frank Kovac, individually and as next friend for his two minor children, filed suit against Dr. W. Morse Hicks, Jr. and Dr. J. L. Coleman to recover damages for the wrongful death of Mrs. Hilda Kovac. The court rendered a summary judgment for the defendants and the plaintiffs have appealed.

Plaintiffs alleged that Mrs. Kovac became ill and Dr. Hicks instructed them to take her to the hospital. Following surgery by Dr. Coleman, Mrs. Kovac died from a ruptured appendix.

Plaintiffs alleged twenty six specific acts of negligence which they say proximately caused the death of Mrs. Kovac. We will copy the first one:

“In failing to timely perform surgery on the dates of August 21st, August 22nd, August 23rd, or August 24th, and prior to time the actual surgery was performed, under such circumstances and conditions that the defendants knew or should have known, that surgery was necessary. In the alternative only, if defendants did not fail to institute surgery timely, then they were negligent in instituting surgery while her condition was in an advanced stage of deterioration so as to spread the infection process without taking necessary medical standards of care known, or should have been known, to be necessary to wall off the infection.”

Plaintiffs also pleaded breach of contract.

The defendants’ motion for summary judgment was supported by their depositions and the deposition of Dr. Harold Kleiman and two nurses. The appellant, Frank Kovac, filed his affidavit and that of the custodian of the hospital and medical records and copies of the hospital records. Admissions of the defendants were also tendered in opposition to the motion.

We hold that the court was compelled to sustain appellee’s motion for summary judgment because the record shows conclusively that no fact issues were presented when considered in the light of the following authorities: Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, (Tex.Sup.Ct. 1960); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1, (1949). In Bowles v. Bourdon, the court said:

“It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries.”

We have examined all of appellants’ points and find no merit in them. They are overruled. The judgment is affirmed.

On Motion for Findings

Appellants’ motion for findings of fact is overruled because they are not appropriate in summary judgment cases. In Rolfe v. Swearingen, 241 S.W.2d 236, (CCA, writ ref. n. r. e.), the court said:

“And as stated in Barron & Holtzoff on Federal Practice and Procedure, pp. 121— 2: ‘Logically, findings of fact should not be made in disposing of motions for summary judgment. Findings are appropriate only in deciding issues of fact. In granting a motion for summary judgment, however, the court merely rules that there are no material issues of fact; in denying such a motion, the court holds that there are material issues of fact to be tried, but does not decide them.’ ”