author: PHILLIPS, Chief Justice.

text:
    Harry Lee CARTER, Appellant, v. Margaret M. DAVIS et al., Appellees.
    Nos. 11569, 11570.
    Court of Civil Appeals of Texas. Austin.
    Feb. 28, 1968.
    Rehearing Denied March 20, 1968 on Cause No. 11570.
    Cofer, Cofer & Hearne, John D. Cofer, Austin, for appellant.
    Murfee & Hoover, William L. Durham, Houston, for Gladys Nichols.
    Crawford C. Martin, Atty. Gen., George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., John R. Grace, and Marietta McGregor Payne, Asst. Attys. Gen., Austin, for State of Texas.
   PHILLIPS, Chief Justice.

These two appeals are from the same suit in intervention and will be disposed of in this opinion.

Appellant sought to intervene in a statutory suit filed under the Protest Tax Statute of the State of Texas, Tex.Rev.Civ. Stat.Ann. Art. 7057b. The latter suit was brought to recover an alleged overpayment of inheritance taxes. On the motion of both parties to the statutory tax suit appellant’s intervention was stricken by the court.

We affirm.

Appellant has appealed both from the order striking his intervention and also from the final judgment in the case carrying forward the order to strike. His point of error is that of the district court in holding that he, Harry Lee Carter, the legal and equitable owner of the alleged overpayment of inheritance taxes by the Independent Executrix of the Frank T. Brady Estate, assessed against the devisee, Gladys Nichols, who became her assignee and subrogee after the institution of the suit, was not entitled as intervenor to assert his rights and title in this suit, and in striking his intervention on motion of the State of Texas and Gladys Nichols.

We overrule this point.

The parties hereto (the State excluded) have been engaged in extensive litigation for quite some period of time, the details of which are set out in an opinion by the San Antonio Court of Civil Appeals styled Carter v. Brady, 423 S.W.2d 946, filed November 8, 1967.

The case out of which the two appeals arise was filed April 10, 1959 by appellees, Margaret M. Davis and Gladys Nichols, devisees of the estate of Frank T. Brady, deceased, against the proper officials of the State of Texas under Tex.Rev.Civ. Stat.Ann. Art. 7057b, to recover excess inheritance taxes alleged to have been paid by Lady P. Brady, independent executrix of the estate. The executrix paid the sum of $175,517.95, and the appellees, Davis and Nichols, contended that only $147,657.64 was due. The excess tax paid, it is alleged, amounted to $27,860.31. The dispute arose out of the method of calculating the tax.

The State of Texas made the independent executrix, Lady P. Brady, a party cross-defendant to the suit.

Appellant contends that under the construction of the will of Frank T. Brady, deceased, in Brady, executrix v. Nichols et al., 308 S.W.2d 100, (Tex.Civ.App. San Antonio 1957, no writ) 158 Tex. 382, 312 S.W.2d 381 (1958), the property devised to Gladys Nichols in the will was entitled to have the mortgage lien against it at the time of Frank T. Brady’s death exonerated; that is, paid off and satisfied from the residuary estate. That if anything remained in the residuary estate, under the will and its construction, Lady P. Brady was the residuary legatee. That the charge upon the residuary estaté resulting from the right of exoneration was $621,615.30. That any excess tax paid, and recovered in this suit would go to exonerate the debt against the Brady Building in San Antonio because the residuary estate was insufficient to pay off the mortgage lien indebtedness against the building at the time of Frank T. Brady’s death.

Appellant further contends after Frank T. Brady’s death he acquired a junior lien against the interest of Gladys Nichols in the building, and that in order to protect this junior lien from a forced judicial sale under the senior lien, he paid the senior lien against the property, subject to the right of exoneration of such lien from the residuary estate. That he subsequently purchased the Brady Building from Gladys Nichols by sheriff’s deed under foreclosure of his junior lien, and acquired Nichols’ equity of redemption and fee simple title to the building. That he is entitled to recover from the residuary estate all sums in the residuary estate that were charged to pay off the senior lien which he paid to protect his junior lien.

Consequently, appellant contends that his intervention should lie as Gladys Nichols did not pay the inheritance tax chargeable to her by virtue of her status as a devisee of the Frank T. Brady Estate, but said tax was paid by the residuary estate of Frank T. Brady by Lady P. Brady, independent executrix of the estate, and that any recovery in the case at bar should be for the benefit of the abovementioned residuary estate, to be accounted for by Lady P. Brady to the proper owner and recipient of the residuary of the estate. That appellant is the sole owner, legal and equitable, of the balance of the funds in the residuary estate of Frank T. Brady and that he is the sole legal and equitable owner of all sums due by the State of Texas for excess payments made by Lady P. Brady, independent executrix by virtue of the devises and legacies in the abovementioned will to Gladys Nichols.

Appellant has cited numerous cases to uphold his right to intervention here. Due to the nature of the original proceeding before us, they are not in point.

We hold that Tex.Rev.Civ.Stat. Ann. Art. 7057b, Chapter 1, Title 122,— Taxation, is jurisdictional and that the intervention of Appellant is precluded by its terms.

Section 1, Article 7057b provides that “Any person * * * who may be required to pay to the head of any department of the State Government any * * * privilege tax * * * and who believes or contends that the same is unlawful and that such public official is not lawfully entitled to demand or collect the same shall, nevertheless, be required to pay such amount as such public official charged with the collection thereof may deem to be due the State, * * Appellant was not required to pay any tax involved in this case.

Section 1 further provides that the taxpayer “shall be entitled to accompany such payment with a written protest, setting out fully and in detail each and every ground or reason why it is contended that such demand is unlawful or unauthorized.”

Section 2 provides, in part, as follows: •

“Sec. 2. Upon the payment of such taxes or fees, accompanied by such written protest, the tax-payer shall have ninety (90) days from said date within which to file suit for the recovery thereof in any court of competent jurisdiction in Travis County, Texas, and none other. Such suit shall be brought against the public official charged with the duty of collecting such tax or fees, the State Treasurer and the Attorney General. The issues to be determined in such suit shall be only those arising out of the grounds or reasons set forth in such written protest as originally filed. The right of appeal shall exist as in other cases provided by law.”

The protest which accompanied payment of the taxes involved in this suit was made on behalf of Margaret M. Davis and Gladys Nichols. It sets out fully and in detail the grounds upon which their cause of action is based. Thus, the original plaintiffs are limited in this suit to the grounds alleged in the protest. Neither the trial court nor this Court has jurisdiction to consider any issue which was not raised in this letter of protest.

The order striking and dismissing appellant’s intervention was interlocutory and no appeal could be taken from it before rendition of a final judgment in the suit. Appeal and Error, 3 Tex.Jur.2d, Sec. 96. Cause No. 11,569 is such an attempted appeal. Such appeal is dismissed. Cause No. 11,570, herein, was an appeal from the final judgment. We affirm the action of the trial court in striking and dismissing appellant’s intervention.

Appeal in Cause No. 11,569 is dismissed.

Judgment in Cause No. 11,570 is affirmed.

      . Two appeals were filed in order to eliminate the question as to whether the order striking the intervention and dismissing appellant from the suit was, as to him, a final judgment.

      . Graves v. Hall, 27 Tex. 148; Great American Indemnity Co. v. McMenamin, 134 S.W.2d 734 (Tex.Civ.App. San Antonio 1939, writ dis’m judgm’t cor.) ; Atlantis Dev. Corp., Ltd. v. United States, et al., 5 Cir., 379 F.2d 818; Hunt Oil Co. v. Federal Power Commission (5th Circuit) 334 F.2d 474; Traders & General Insurance Co. v. Richardson, 387 S.W.2d 478 (Tex.Civ.App. Beaumont 1965, writ ref’d) among others.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    AIRCRAFTSMEN, INC., Appellant, v. Jay KIRKMAN, the Estate of Anne Slade Kirkman, Deceased and the Estate of J. U. Kirkman, Deceased, Appellees.
    No. 7786.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 19, 1968.
    Stokes, Carnahan & Fields, Amarillo, O. P. Fields, Jr., Amarillo, of counsel, for appellant.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, R. A. Wilson, Amarillo, of counsel, for appellees.
   NORTHCUTT, Justice.

This suit was brought by Aircraftsmen, Inc. against Jay Kirkman et al. to set aside as fraudulent two deeds conveying property which may for convenience be designated as the 4th Street property and the Bonham Street property. Since Aircraftsmen, Inc. has abandoned its claim against the Bon-ham Street property as being homestead property, we will hereafter consider only the 4th Street property. The case was tried before the court without a jury. The court found all issues in favor of the defendants and judgment was rendered in favor of the defendants. From that judgment Aircrafts-men, Inc. perfected this appeal.

Hereafter Aircraftsmen, Inc. will be referred to as appellant and Jay Kirkman et al. as appellees. Jay Kirkman, as Independent Executor under the will of his father, J. U. Kirkman, deeded the 4th Street property to the Estate of Anne Slade Kirk-man in satisfaction of certain indebtedness owed by the Estate of J. U. Kirkman to the Estate of Anne Slade Kirkman.

Appellant held a judgment against Jay Kirkman and contended Jay Kirkman would have become owner of the property in a short time but for the transfer to the Estate of Anne Slade Kirkman and that such transfer was fraudulently executed and delivered to defeat the appellant’s judgment.

We are of the opinion that the record in this case in all respects justifies the findings of fact made by the trial court. For complete understanding of the facts and conclusions of law as found by the trial court, such findings of fact and conclusions of law are set out here in full as follows:

“FINDINGS OF FACT

1. On the 31st day of December, 1965, the defendant, Jay U. Kirkman, executed a deed, dated December 31, 1965, which he thereafter filed for record on the 14th day of January, 1966. This deed is recorded in the Deed Records of Potter County, Texas, in Volume 1026, at Page 190. It

(a) names as grantor the Estate of J. U. Kirkman, Deceased,
(b) names as grantee Estate of Anne Slade Kirkman, Deceased,
(c) is executed in the name of Estate of J. U. Kirkman, Deceased, by Jay U. Kirkman, Independent Executor,
(d) conveys an undivided one-half interest in and to certain property in Potter County, Texas, described as the East Eighty Feet (E.80') of the South Fifteen Feet (S.15') of Lot Number Four (4) and the East Eighty Feet (E.800 of Lot Number Five (5), all in Block Number Thirty-one (31) of the Glidden and Sanborn Addition to the Town of Amarillo, Texas, this being the property ordinarily referred to in the evidence and in these findings as the 4th Street property, and
(e) recites a consideration in this language: ‘One Dollar and other good and valuable consideration, in hand paid, the receipt of which is hereby acknowledged, and further the full payment, discharge and extinguishment of certain claims, demands and indebtedness heretofore due and payable to the ESTATE OF ANNE SLADE KIRK-MAN, DECEASED, hereinafter called Grantee, by the ESTATE OF J. U. KIRKMAN, DECEASED, and the Grantee expressly acknowledges payment in full of all said claims, demands and indebtedness up to and including the date of this Deed.’

2. On the same 31st day of December, 1965, the defendant, Jay U. Kirkman, executed a deed, likewise dated the 31st day of December, 1965, which he filed for record on the 14th day of January, 1966, and is recorded in the Deed Records of Potter County, Texas, in Volume 1026, Page 191. This deed

(a) names as grantor Estate of Anne Slade Kirkman, Deceased,
(b) names as grantee Estate of J. U. Kirkman, Deceased,
(c) is executed by the defendant, Jay U. Kirkman, as Independent Executor and Trustee of the Estate of Anne Slade Kirkman, Deceased,
(d) conveyed an undivided one-half interest in and to certain property in Potter County, Texas, described as being all of Lot Number One' (1) and the North Fifty Feet (N.50') of Lot Number Two (2) in Block Number Fifty-four (54) of Bivins No. 2 Addition to the Town of Amarillo, Texas, this being the property ordinarily referred to in the evidence and in these findings as the Bonham Street property, and
(e) recites a consideration in this language: ‘One Dollar and other good and valuable consideration, in hand paid, the receipt of which is hereby acknowledged, and further, the assumption and agreement to pay and discharge the unpaid balance, including interest and all other charges accrued or to accrue on that certain Note payable to SECURITY FEDERAL SAVINGS AND LOAN ASSOCIATION, Amarillo, Texas; dated August 8, 1949, in the original principal sum of Ten Thousand Dollars ($10,-000.00) and secured by DEED of TRUST of record in Volume 207, page 429, of the . Deed of Trust Records of Potter County, Texas, by the ESTATE OF J. U. KIRKMAN, DECEASED, Hereinafter called Grantee.’

3. The plaintiff, Aircraftsmen, Inc., is a judgment creditor of the defendant, Jay U. Kirkman. By judgment of this court entered January 26, 1965, plaintiff recovered from said individual defendant $2,162.07, with interest and costs, and an abstract of this judgment was filed for record on January 29, 1965, and on February 2, 1965, was duly recorded in the judgment records of Potter County, Texas, and properly indexed. This judgment is now final. Plaintiff is not shown, and it does not claim, to have been a creditor of either J. U. Kirkman or Anne Slade Kirkman, both now deceased, or of the Estate of either of 'these decedents. It is disclosed by the evidence that a number of other judgments have been abstracted against the individual defendant, Jay U. Kirkman, but it is neither shown nor claimed that any judgment creditor abstracting a judgment against the individual defendant, Jay U. Kirkman, was a creditor of J. U. Kirkman or Anne Slade Kirkman, both now deceased, or of the Estate of either of these decedents. Plaintiff brings this suit

(a) to set aside the deed to the 4th Street property as being a fraudulent conveyance and void otherwise, and
(b) to assert its judgment lien against both the 4th Street property and the Bonham Street property.

4. J. U. Kirkman is the deceased father of the defendant, Jay U. Kirkman. He died on the 11th day of January, 1955, leaving a will dated February 3, 1954, which was thereafter duly admitted to probate by the County Court of Potter County, Texas. This will described the 4th Street property as owned one-half by J. U. Kirkman and one-half by his sister, Georgia Kirkman. It left decedent’s one-half interest in the 4th Street property, as well as his estate otherwise, to his wife, Anne Slade Kirkman, for life, with no power to sell or make disposition of decedent’s one-half interest in the 4th Street property but with power to sell or make disposition of decedent’s estate otherwise, with remainder to American National Bank, Amarillo, Texas, as Trustee for the defendant, Jay U. Kirkman. This trust was to exist for a period of ten years from the death of Anne Slade Kirkman, after which the trust properties would vest in the defendant, Jay U. Kirkman, and it embraced spendthrift provisions, pursuant to which the trust properties should not be subject to debts of the defendant, Jay U. Kirkman. The J. U. Kirkman will named Anne Slade Kirkman as Executrix with the provision that in event of her death the defendant, Jay U. Kirkman, should act as Executor, it directed that no bond should be required, and it provided for an independent administration, that is to say, an administration free from the control of the Probate Court. Ann Slade Kirkman qualified as Executrix of the Estate of J. U. Kirkman, Deceased; but thereafter she died on January 17, 1956, after which the defendant, Jay U. Kirkman, qualified as Eexcutor of the Estate of his deceased father, J. U. Kirkman, and letters testamentary issued to him March 23, 1956.

5.Anne Slade Kirkman is the deceased mother of the defendant, Jay U. Kirkman. She died January 17, 1956, leaving a will dated October 11, 1955, which will was likewise duly admitted to probate by the County Court of Potter County, Texas. This will left all of the Estate of Anne Slade Kirk-man, to the defendant, Jay U. Kirkman, but as Trustee only. The beneficiaries of the trust were identified as the grandchildren of Anne Slade Kirkman, being the issue and bodily heirs of the defendant, Jay U. Kirkman, share and share alike. The duration of the trust is fixed as being from the death of Anne Slade Kirkman to April 30, 1981, at which time the estate vests in the grandchildren thus identified. The will vests broad powers in the defendant, Jay U. Kirkman, as Trustee, including the power to pay himself reasonable compensation and commission, and it directs that as Trustee he shall act without bond. The will also names the defendant, Jay U. Kirk-man, as Executor, directs that in this capacity also he shall act without bond, and provides for an. independent administration, that is to say, an administration free of control of the Probate .Court.

6. The record identifies clearly the beneficiaries of the trust created by the will of Anne Slade Kirkman, deceased. They are the six children of the defendant, Jay U. Kirkman, the three younger children being by defendant’s present marriage and the three older children being by his prior marriage.

7. At some time after the death of his mother in January of 1956, the defendant, Jay U. Kirkman, began the use of the Bon-ham Street property as his family’s home, and it had constituted homestead for some years when plaintiff acquired its judgment against the individual defendant.

8. On December 31, 1965, the Estate of J. U. Kirkman, Deceased, was indebted to the Estate of Anne Slade Kirkman, Deceased. This indebtedness had its origin in the acquisition in August, 1949, of Lot Number One (1) in Block Number Fifty-Four (54), this being the Bonham Street property as originally acquired. Lot One was conveyed to J. U. Kirkman and wife, Anne S. Kirkman, by Dewey A. Hicks and wife by a deed dated August 8, 1949, at which time the Kirkmans conveyed to Mr. Hicks a property described in the evidence as the Taylor Street property, which was the separate property of Mrs. Kirkman, and borrowed $10,000.00 from Security Federal Savings and Loan Association. J. U. Kirk-man and his wife, Anne Slade Kirkman, treated this transaction as vesting the ownership of the Bonham Street property in their community estate with an obligation on the part of J. U. Kirkman to repay Anne Slade Kirkman the one-half part of the value of the Taylor Street property. This indebtedness increased during the lifetimes of J. U. Kirkman and Anne Slade Kirkman by reason of the circumstance that payments on the Security Federal loan were made by Anne Slade Kirkman, with the result that, when the defendant, Jay U. Kirk-man, qualified as Executor of both estates in early 1956, the indebtedness of J. U. Kirkman to Anne Slade Kirkman approximated $7,850.00, and thereafter the indebtedness of the Estate of J. U. Kirkman, Deceased, to the Estate of Anne Slade Kirk-man, Deceased, continued to increase because payments on the Security Federal indebtedness continued to be made out of the Estate of Anne Slade Kirkman, Deceased. If on December 31, 1965, the value of a one-half interest in the 4th Street property actually exceeded the amount of the indebtedness due from the Estate of J. U. Kirkman, Deceased, to the Estate of Anne Slade Kirkman, Deceased, the excess was not great.

9.The deeds described in paragraphs 1 and 2 of these findings are, therefore, not without consideration as claimed by plaintiff but upon a completely adequate consideration, and no fact is revealed by the record which would give plaintiff any standing at all to challenge the act of the Executor of the J. U. Kirkman Estate in conveying property of that estate for the purpose of satisfying an indebtedness actually due by that estate.

CONCLUSIONS OF LAW

1. The deeds in question are not subject to be set aside as fraudulent conveyances.

2. The deeds in question are not subject to be set aside on account of any claimed lack of authority of the Executor to act. Since the indebtedness of the Estate of J. U. Kirkman, Deceased, to the Estate of Anne Slade Kirkman, Deceased, still existed, the Executor of the J. U. Kirkman Estate still had authority to act, despite the lapse of time, and, if there be any question at all about his authority to act as Executor, the deed to the 4th Street property would pass the inherited title of the defendant, Jay U. Kirkman, so that in any event the deed to the 4th Street property vests the title to that property in the grantee named in the deed.

3. The deeds in question are not subject to be set aside by reason of any claimed deficiency in the identification of grantees because the record plainly identifies the beneficiaries of both estates.

4. The homestead character of the Bon-ham Street property defeats plaintiff’s claim of judgment lien against that property, and plaintiff’s judgment lien does not attach to the 4th Street property.

5. Plaintiff is not entitled to any relief sought in its suit, and judgment should be for the defendants.”

It is appellant’s contention that the evidence conclusively shows that the deed executed by Jay Kirkman conveying the 4th Street property from the estate of his father to the estate of his mother was not executed and delivered as a bona fide act of administration of the estate of his father, but was instead a conveyance to delay, hinder and defraud the judgment creditors of Jay Kirkman personally. Appellant further contended that the court erred in holding that the administration still existed under the Estate of J. U. Kirkman and that Jay Kirkman had the authority to act so that the conveyance was a bona fide act of administration under such estate, and that the Estate of J. U. Kirkman was indebted to the Estate of Anne Slade Kirkman as to constitute a valid and sufficient consideration.

The case was tried before the trial court without a jury and such findings were found by the court. There is ample evidence in the record to support the controlling issues about which appellant complains and the findings of the trial court in such matters are, therefore, conclusive. Higginbotham Bros. and Co. v. Callaway, Tex.Civ.App., 170 S.W.2d 333; Holden v. Boynton, Tex.Civ.App., 170 S.W.2d 323; Smith v. Prater, Tex.Civ.App., 161 S.W.2d 361; Burks v. Brinkley, Tex.Civ.App., 161 S.W.2d 316; O’Connor v. Ryan, Tex.Civ. App., 159 S.W.2d 531; Sansing v. Bricka, Tex.Civ.App., 159 S.W.2d 142; Hood v. First National Bank of Panhandle, Tex.Civ.App., 410 S.W.2d 449 (n. r. e.); Klein v. Palmer, Tex.Civ.App., 151 S.W.2d 652; Temple Trust Co. et al. v. Haney, 133 Tex. 414, 126 S.W.2d 950; Postal Mutual Indemnity Co. v. Greene et al., Tex.Civ.App.,. 180 S.W.2d 220 (writ refused); and numerous other authorities.

The appellant herein never at any time had any claim against J. U. Kirkman Estate. Neither is there any proof of any other indebtedness due anyone other than the Estate of Anne Slade Kirkman. We think the record is clear as found by the trial court that the Estate of J. U. Kirkman was indebted to the Estate of Anne Slade Kirk-man and that Jay Kirkman, as Independent Executor of the Estate of J. U. Kirkman, had the right to proceed as he did in paying the indebtedness owed to the Estate of Anne Slade Kirkman.

It is stated in Schmidt v. Greenwade et al., Tex.Civ.App., 129 S.W.2d 324 as follows :

“It is settled law in this state that a creditor may receive payment of an honest debt in property of his debtor, though he may know at the time that the debtor’s intent in making payment is to prefer him and to place the property beyond the reach of other creditors, provided that no more property is taken than is reasonably necessary to pay his debt. Every payment of a debt by an insolvent, whether the payment be made in money or property, tends, in a popular sense, to hinder, delay or defraud other creditors in the collection of their respective debts. The intent to hinder, delay or defraud creditors in the sense inhibited by the provision of our statutes avoiding fraudulent conveyances (Vernon’s Ann.Civ.St. arts 3996, 3997) can not exist when the purpose and effect of the transfer of the property is to apply it at its fair valuation to the satisfaction of a just debt and it is so received by the creditor. Adams v. Williams, 112 Tex. 469, 248 S.W. 673, 676, par. 3, and authorities there cited. The rule so announced applies as well to preference of a creditor wife or child as to other classes of creditors. 20 Tex.Jur. p. 377, sec. 14; Id., p. 443, sec. 80; Karr v. Cockerham, Tex.Civ.App., 107 S.W.2d 719, 723, par. 7, and authorities there cited; Lester v. Robinson, Tex.Civ.App., 101 S.W.2d 1038, par. 1; Brod v. First Nat. Bank of Cameron, Tex.Civ.App., 91 S.W.2d 772, part. 5.”

See also Martin v. Cage et al., Tex.Civ. App., 135 S.W.2d 151 and Chauncey v. Gambill et al., Tex.Civ.App., 126 S.W.2d 775 (judgment correct). Judgment of the trial court is affirmed.


author: BELL, Chief Justice.

text:
    FIRST PASADENA STATE BANK, Appellant, v. George C. MARQUETTE, Jr., Appellee.
    No. 15028.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Jan. 25, 1968.
    Rehearing Denied March 21, 1968.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Austin C. Wilson, Houston, Bas-kin & Fakes, Stanley D. Baskin, John M. Fakes, Pasadena, for appellant.
    Bryan, Suhr, Bering & Bailey, William G. Fox, Houston, for appellee.
   BELL, Chief Justice.

This is an appeal from a judgment against appellant in the amount of $55,101.22, based on breach of contract implied in fact. $35,-658.58 represents the principal amount found by the jury to be due because of the contract, and $19,442.64 represents interest thereon to the date of judgment.

In September, 1954, appellee entered into a written contract with Deer Park Independent School District to furnish all labor and material for the construction of a junior high school building, and of a shop addition to the High School. On October 19, 1954, Lonnie Wallace, owner of Allen Plumbing Company, by written contract with appel-lee, agreed to furnish all material and labor in performing a designated portion of the contract. Under the contract Wallace, as subcontractor, was to receive payment on the 15th of each month for 85'% of the work done and materials furnished during the previous month.

Each month, beginning in November, 1954, Wallace would compile a written estimate of what was due from appellee for work done the previous month. The first estimate in November was presented by him directly to appellee, and after it was verified by appellee’s estimator and after the School District had paid appellee his estimate, he paid Wallace. After this estimate, however, Wallace arranged with appellant to finance his work on the job. The financing was effected by Wallace’s assigning his estimate each month to appellant. The appellant would send an executed copy of the assignment together with the estimate to appellee. After each estimate was verified by appellee’s estimator and after the School District had paid appellee his estimate, ap-pellee would pay the estimate by check payable to Allen Plumbing Company (Wallace) and appellant. The check was transmitted to appellant, who cashed it and thus was repaid the loan it had made Wallace on the estimate plus interest. Each assignment by Wallace gave authority to appellant to endorse checks payable to Wallace.

Appellant’s connection began with Estimate #2, dated December 3, 1954. Wallace executed an assignment of it to appellant. The assignment, as did all others, contained the language, “and within the knowledge of the undersigned such account, claim or demand is just and true and there are no just and lawful offsets, payments or credits to be allowed thereon. * * * ” The assignments were sworn to by Wallace. Appellant through its then president, Mr. Reed, would transmit a copy of each assignment and estimate to appellee. The letter of transmittal, after reciting the transmittal of the assignment, would contain the direction, “You will please be governed according to the terms of this assignment.”

It should be noted that the estimates assigned contained an enumeration of work done and material furnished, but, with two or three exceptions, contained no information concerning who the suppliers of the materials were.

The last assignment paid was in July, 1955. It had come to light in June that Wallace had not been paying for all the materials. Appellee subsequently had to pay the suppliers, and this suit against appellant resulted.

Trial was on appellee’s Sixth Amended Original Petition. The petition recited in substance what we have stated above: detailed the various estimates that included materials and work contained on them that had allegedly been paid for but which were not paid for, and asserted that together with Wallace’s sworn account and the appellant’s transmittal letter, these constituted a representation by appellant that such work and mateiral had been paid for or would be paid for. He alleged that he, in reliance upon such representations, paid in full the amounts shown by the estimates to appellant.

The petition further alleged that Mr. Reed, acting for and with the authority of appellant, as an inducement for appellee to pay the money to the appellant, agreed with appellee that appellant would agree that the amounts shown on said estimates would be paid for in consideration of appellee’s paying to appellant the total amount of the estimates when presented. In reliance on such representation and agreements by appellant, it is alleged, appellee made such payments in full and he was damaged, as above stated, as a result of appellant’s failing and refusing to carry out its agreements and breaching its contract with appellee. The alleged representation, assurance and agreements by Mr. Reed were that all amounts specified in the estimates would be paid to the suppliers and appellee would suffer no damage or harm by paying the estimate to the appellant.

In the alternative, appellee relied on the theory of fraud by appellant in making the representations.

Appellant in its answer, apart from a special exception which seems to have been waived because not acted on, pled a general denial, various special denials, the statute of limitation and the statute of frauds, Article 3995, Subdivision 2.

The court submitted the case to the jury on special issues encompassing the theory of liability because of a contract implied in fact and on the theory of false representations by Mr. Reed that payments of all amounts shown to be due on each estimate had been made.

The jury answered as to each issue based on false representations, separate issues being submitted as to each estimate, that it did not find from a preponderance of the evidence that Mr. Reed represented to ap-pellee, prior to payment by appellee, that payment of all amounts shown to be due on the estimate had been made. This exonerated appellant from liability on this theory.

Appellee had paid appellant six estimates that included claims by Wallace for work and material done or furnished. It later developed that as to such estimates some of the suppliers of the material had not been paid. The court submitted an issue as to an implied agreement between appellee and appellant that appellant would pay for any such unpaid items. An illustration of the issue submitted as to each estimate is Issue No. 1, reading as follows: “Do you find from a preponderance of the evidence that at the time Plaintiff made payment to the bank the amount shown to be due on estimate no. 2, said bank, acting through M. F. Reed, impliedly agreed to apply the proceeds to the payment of the work described in the estimate ?”

There was then an issue following inquiring as to the amount of the estimate that had not been paid by the bank or Wallace.

The court gave the following definition of “impliedly agreed” ¡ “ * * * by the term impliedly agreed is meant where the intention in regard to the subject-matter is not manifest by explicit or direct words, but is gathered by implication or necessary deduction from the circumstances, the general language and conduct of the parties.”

Appellant complains that neither the pleadings nor the evidence support recovery under the theory of implied contract and the court erred in submitting the definition and issues on such theory, Too, it says in any event, recovery is barred by the statute of frauds.

We are of the view that appellee’s pleading, though somewhat inarticulately drawn, sufficiently, in the absence of special exception, states a cause of action based on contract implied in fact. We feel the reasonable inference may be drawn from the pleading, considering all the allegations, that there was an implied agreement that if the full amount of the estimates was paid to appellant, it would pay any suppliers of the materials out of the proceeds of the estimates, if any, that had not been paid. While the term “impliedly” is not used, such is not essential. The use of the term “agreed”, depending on all the other facts and circumstances alleged, will support a recovery based on implied contract or express contract. Ricks v. Smith, 204 S.W.2d 12 (Tex.Civ.App.), Ref., n. r. e. Here the petition when construed as a whole shows appellee was relying on the estimate, the assignment, the letter of transmittal by the bank, the demand for payment of the full amount of each estimate and Mr. Reed’s representations and agreement that all amounts specified in the estimates would be paid to the suppliers and appellee would suffer no harm or damage by paying the estimates to the bank.

The objection to the submission of the issues on the ground that there was no pleading of implied contract is overruled.

However, we are of the view that there was no evidence of probative force to evidence an implied agreement that appellant would apply the amount of the proceeds of the estimates to the payment of any work described in said estimates. The objections to the submission of said issues were, therefore, good.

We have above stated the evidence with regard to the assignments, the estimates and the letter of transmittal. There is certainly nothing in them to evidence an intent that if any suppliers had not been paid the appellant would pay them. In fact who the suppliers were was not shown on the estimate except for two. The estimates really described the work done on the job and what was due from appellee. The assignment directed payment to the appellant which had bought the assignment. It did contain the affidavit of Wallace which was a representation to the bank that there were no offsets. The bank then sent the executed assignment or copy to appellee. However, these, and the transmittal letter, were merely a claim to the payments assigned to it.

There was oral testimony from Mrs. Marquette who handled all the bookkeeping. Also Mr. Marquette testified briefly.

Mrs. Marquette testified that when she got the first assignment (Estimate No. 2), she called Mr. Reed whom she had known since she was a small girl. She had never seen an assignment of this nature and she asked him, “What was the type of this assignment?” He told her not to worry, the estimate and everything on it was paid and appellee owed nobody but the bank and there were no lawful offsets and if ap-pellee did not pay the bank it would have a lien on the job. He told her that three or four times. She said when he told her the bank had bought “these” and that “they” were paid for she believed him and “from then on it would be the same thing all the way through.” In reliance on what Mr. Reed told her, she sent the check for tfie estimate. When the January 14, 1955, assignment came she didn’t remember whether she called or not, but she paid it according to what Mr. Reed said the first time. She called Mr. Reed again in February and discussed “these assignments that were coming in.” “He again told me that he was buying these assignments from Lonnie Wallace. I owed nobody but the bank. That the hank was seeing that the bills were being paid and they were advancing the money to Mr. Wallace so that he could take the discount and make himself some extra money and he said from now on every time I send one in with that letter and this assignment I had to make it to the hank.” If payment was not made to the bank Mr. Reed said, “The bank will have a right to file a lien against your job because you owe us the money. We have advanced him the money and bought this assignment and you owe us the money.” (emphasis ours)

When Estimate No. 9 came in in June, there was a claim for some “Amervent” heaters. She knew Mr. Reed had already told her * * * he was buying and paying for the assignments. She told him the heaters were not on the job and she could not put the estimate through for payment. He told her he had bought and paid for the estimate and he would see that all the hills were paid when the heaters got on the job. He assured her he would see that the heaters got on the job. He told her when she got the money from the School System to send the bank a check.

On cross-examination, Mrs. Marquette stated that in the conversation with Mr. Reed when Estimate No. 2 came in, he told her the bank had already paid Allen Plumbing the estimate money.

Mr. Marquette testified he talked to Mr. Reed in June about the heaters not being on the job. Mr. Reed said he would see they got on the job and would see that they were paid for. Mr. Marquette told Mr. Reed he had been depending on the bank letters and the assignments that said everything had been paid. Reed said, “Don’t worry, George, everything will be paid.” (Emphasis added.) If Mr. Reed had not said that, he would never have released the •check for this June estimate.

Mr. Kirschke, the estimator for appel-lee, was not present at trial, but part of his testimony given at a previous trial was read. He believed he talked to Mr. Reed in December, 1954, about the letter from the bank. Mr. Reed told him the bank had loaned money to Wallace so Wallace could discount various bills on the job. Further Reed said the bank had advanced the money to Wallace; that the bills had been discounted and that Marquette at that time owed the bank.

Mr. Reed testified Wallace applied for a loan and was to use the estimates from the appellee to secure the loan. The money was advanced by the bank at the time the assignment was made. The bank would send the assignment to appellee and would get the money about a month, later...,..This., would repay the money advanced with interest. He had several conversations with Mrs. Marquette, the first, as he recalled, was in December, 1954, when the first assignment was made. He told her about the assignment and about sending the money to the bank. As he recalled, he told her they had paid Wallace the money and for her to send the money to the bank. He denied that he told her the bank would see that Allen Plumbing Company’s bills were paid. He knew nothing of what people Wallace owed money to or “who the bills were paid to.” When he sent the assignment, the estimate and letter of transmittal, he intended to request payment from ap-pellee. The bank received payment. He never knew who the suppliers of the materials were. In fact, the estimates showed only Bell and Gossett. He was relying on what Wallace told him about there being no offsets.

Of course, there may be in law a contract that will be implied in fact where under all facts and circumstances the reasonable mind would conclude that the parties had mutually agreed for a consideration that one or both of them would do a particular thing. The real difference between such an implied contract and an express one is in the manner of proof. In an express contract there are words expressly used by the parties that expressly agree what each will do. In a contract implied in fact there are no express agreements, but from all facts and circumstances an intention to agree may be found. The principles are discussed in the following authorities: 17 C.J.S. Contracts § 4b, p. 557 et seq.; 13 Tex.Jur.2d, Sec. 5, p. 113 et seq.; Stone Company, Inc. v. Carminati, 317 S.W.2d 78 (Tex.Civ.App.), n. w. h.; Biggs and Co. v. Lokey, 62 S.W.2d 665 (Tex.Civ.App.), dism.; First National Bank of Kosse v. Shaw, 260 S.W. 309 (Tex.Civ.App.), n. w. h.

Appellee, through his agents, knew the appellant advanced money and took the assignment-of the amounts due under the estimates to repay itself. It relied on the affidavit of Wallace that there were no offsets due. Even under the testimony of ap-pellee’s witnesses the most, under all the circumstances, that could reasonably be implied is that if there were any offsets because of unpaid bills that the bank would see that they were paid. It may not be reasonably implied that the bank would pay the bills out of the proceeds of the estimates because all parties knew the bank was looking to the proceeds to repay itself the money it had advanced Wallace.

If it can be said it can be implied that the bank agreed to pay the bills if Wallace didn’t, it is nothing more than an agreement to answer for the debts, defaults and miscarriage of another, and is within the statute of frauds, Article 3995, Vernon’s Ann.Tex.Civ.St. There is no finding as to whether there was any other implied agreement and none is established as a matter of law, but such would, if established, be unenforceable because of the statute of frauds.

The case of Hacker v. Whitney Dam Lumber & Construction Co., 225 S.W.2d 225 (Tex.Civ.App.), writ ref., is distinguishable because there the contract clearly was that the owner, at the time of the agreement, still owed the contractor enough to pay for additional materials and would pay out of such funds for the materials to thereafter be delivered.

The judgment of the Trial Court is reversed and judgment is rendered that the appellee take nothing.


author: CLAYTON, Justice.

text:
    Billy Charles CARPENTER et al., Appellants, v. Celsa JONES nee Esparza et al., Appellees.
    No. 5920.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 21, 1968.
    Rehearing Denied March 20, 1968.

      Edwards, Belk, Hunter & Kerr, El Paso, for appellants.
    Lee Chagra, James L. Gallagher, Scott, Hulse, Marshall & Feuille, El Paso, for appellees.
   OPINION

CLAYTON, Justice.

Suit here was brought by Celsa Jones nee Esparza, plaintiff-appellee, against Julia Sue Glover Mottinger, one of the ap-pellees herein, and Billy Charles Carpenter and Employers Casualty Company, appellants herein. Appellants’ statement of the nature and result of the case has been accepted by all parties. It reads as follows:

“Appellee, CELSA JONES, nee ES-PARZA, as plaintiff, sued appellants, BILLY CHARLES- CARPENTER and his employer, EMPLOYERS CASUALTY COMPANY, together with appel-lee, JULIA SUE MOTTINGER, as defendants, as the result of a three-way collision claimed by plaintiff to have been caused by the joint negligence of all defendants.
“CARPENTER and EMPLOYERS CASUALTY COMPANY alleged that the damages were caused solely by the negligence of JULIA SUE' MOTTIN-GER against whom they asked for indemnity by way of cross-action.
“JULIA SUE MOTTINGER claimed all damages were occasioned solely by reason of the negligence of CARPENTER for whose conduct EMPLOYERS CASUALTY COMPANY was responsible on the doctrine of respondeat superior.
“The case was submitted to the jury on special issues and purporting to be based on their answers, the court rendered judgment for a total sum of $8,585.00 jointly and severally against CARPENTER and EMPLOYERS CASUALTY COMPANY alone and denied them any recovery against JULIA SUE MOT-TINGER.
“The judge overruled their motion for new trial after amending the judgment to show voluntary remittitur by plaintiff of $200.00 occasioned by the jury’s answer to Question No. 22A without any evidence to support it.
“CARPENTER and EMPLOYERS CASUALTY COMPANY timely filed their supersedeas bond payable to both plaintiff and JULIA SUE MOTTIN-GER and the case is now before this court.”

For the purpose of this opinion and in the interest of brevity, appellee Celsa Jones, nee Esparza, will be hereinafter referred to as “Celsa Jones”; appellant Billy Charles Carpenter will be referred to as “Carpenter”; and appellee Julia Sue Glover Mot-tinger will be referred to as “Julia Sue Mottinger”.

Specifically, the facts are that appellee, Julia Sue Mottinger, a student at Texas Western College, was driving in her car to the dormitory. She was proceeding south on Mesa Avenue in the City of El Paso, Texas, and stopped at a red signal light at the intersection of Mesa with College Avenue. When the signal turned green, she was the first car in line and turned right on College Avenue toward the College. College Avenue, at all points relevant to this case, was a through street controlled by stop signs at the other intersections, one of which was Oregon Street. Traffic was proceeding toward her in an easterly direction along this street and also going in the same direction as she, toward the college. Appellant Carpenter was stopped at the intersection of Oregon Street with College Avenue on the south side of the intersection, waiting for traffic to clear so he could cross the intersection. He had been proceeding in a northerly direction to return to the office of the Employers Casualty Company, where he was employed. Celsa Jones was stopped on the north side of Oregon Street at the intersection, also at a stop sign. She was a nurse and also a student at Texas Western College. Carpenter was stopped parallel to the car on his right which apparently had stalled at the intersection. It had been raining lightly and the pavement was wet. He started up and proceeded to attempt to cross the intersection, but misjudged that he had time to cross, and his car was struck about the middle of the intersection by the car driven by appellee Mottinger. The Mottinger vehicle stopped at about the point of collision, but the car of appellant Carpenter proceeded on across the intersection, forward and to his left, and struck the car in which Celsa Jones was seated. All cars were damaged. Julia Sue Mottinger and a passenger of hers got out of her vehicle and went over to the vehicle where Celsa Jones was seated. At that time Celsa Jones stated that she did not feel that she had been hurt, although she complained that she had been thrown against the steering wheel of her car.

A short time after the collision an employee of the appellant Employers Casualty Company appeared on the scene and requested all parties involved in the collision to come to the office of the company and give statements concerning the manner in which the collision took place. This the witnesses proceeded to do, and gave statements on the dictaphone as to their versions of the cause of the collision. After Julia Sue Mottinger had given her statement at the office of the Employers Casualty Company, they agreed to, and ultimately did, pay her $178.00 for damages to her vehicle and also agreed to pay rental on an automobile for her to use while she was waiting for repairs to be made on her car. In her version of the incident she said that she was on College Avenue about half way between the intersections of Mesa and Oregon Streets, or perhaps a little closer to the Oregon Street intersection; that she was traveling about 20 miles an hour, the streets were damp, and because of oncoming cars she did not see the Carpenter vehicle until it was about in the middle of the intersection; that another car coming from Carpenter’s left had to swerve around him to his rear, to avoid hitting him; that she laid down about 30 feet of skid marks before striking the Carpenter vehicle on the right rear between the rear tire and the rear of the car. Her car was towed away from the scene of the accident.

Suit was tried to a jury on special issues. Their .findings were as follows: (1) that defendant Carpenter failed to- keep a proper lookout on the occasion in question, and (2) that this constituted a proximate cause of the collision; (3) that defendant Carpenter failed to apply his brakes as a person of ordinary prudence would have done, and (4) that this was a proximate cause of the collision; (5) that Carpenter was driving at an excessive rate of speed under the circumstances, and (6) that this constituted a proximate cause of the collision. (7) that Carpenter failed to> yield the right of way to Mottinger, and (8) that this constituted negligence, and (9) was the sole proximate cause of the collision involved. In the charge to the jury, the term “sole proximate cause” was defined as “the only proximate cause and if there is more than one proximate cause of an event, then no single proximate cause can be the ‘sole proximate cause’ thereof.” Question No. 10 was unanswered, since it was predicated upon a negative answer to Question No. 9. Question No. 11 inquired whether Julia Sue Mottinger failed to keep a proper lookout. The jury answered in the negative and therefore did not answer Question No. 12 which was predicated upon an affirmative answer to the preceding question. The jury replied negatively to No. 13, inquiring whether Mottinger failed to apply her brakes as a person of ordinary prudence would have under the circumstances, and therefore did not answer Question 14 which was predicated upon an affirmative answer to the preceding question. The jury further replied in the negative to Question No. 15 as to whether Mottinger was driving at an excessive rate of speed under the circumstances, and did not answer Question 16 which was predicated upon an affirmative answer to Question No. 15. It also answered in the negative to Question 17 as to whether Mottinger failed to yield the right of way at the time, and therefore did not answer No. 18, which was predicated upon an affirmative answer to the preceding question. The jury did answer Question 19 in the negative, although it was predicated upon an affirmative answer with regard to failure to- yield the right of way. As to Question No. 20, they answered that failure to yield the right of way was not a proximate cause of the collision. In answer to Question 21, they stated that $385.33 was the reasonable cost of repairs to the Celsa Jones automobile, and in answer to Question No. 22, subdivision A, the jury answered that Jones had suffered damages of $200.00 for medical services and therapy to the time of the trial. This amount was remitted by appellee Jones, since it was in excess of the evidence given at the trial. Under Subsection B, the jury awarded Celsa Jones the amount of $3,000.00 for physical and mental pain and suffering up to the time of trial; and in Subsection C the jury awarded $5,000.00 for mental and physical pain and suffering which she would in all probability experience in the future. The court entered judgment in favor of Celsa Jones in a total amount of $8,585.00 against Carpenter and Employers Casualty Company and denied them any recovery against Julia Sue Mot-tinger.

This case comes before us on an appeal from the judgment of the court, and is presented to us in ten points of error. The first is that the judgment in this case is unsupported by a verdict and, secondly, that the closing argument of plaintiff’s counsel was so prejudicial as to require reversal of the case or at least a great reduction in the amount of damages awarded against the defendant-appellants. The third and fourth points of error attack the jury’s finding of $3,000.00 in answer to Question 22B on the grounds that it was grossly excessive and so contrary to the weight of the evidence as to be clearly wrong. The fifth point of error states that there is no evidence to support the jury’s finding of $5,000.00 as compensation to plaintiff for future pain and suffering in response to Question No. 22C, and the sixth point of error contends that the jury’s finding of $5,000.00 was so contrary to the weight of the evidence as to be clearly wrong. The seventh point of error is that this answer was so grossly excessive as to indicate prejudice against appellant as an insurance company. Point of Error No. VIII is that the jury’s finding that Carpenter’s failure to yield the right of way to Mottinger was the sole proximate cause of the collision is so contrary to the evidence as to be clearly wrong, and in Point of Error No. IX, that the jury’s failure to answer that Mottinger’s failure tO' yield the right of way was contrary to the weight of the evidence and was clearly wrong, as was the jury’s failure (Point X) to answer that Mottinger was traveling at an excessive rate of speed under the circumstances. It is the position of the appellants that the jury’s answers to Questions 7, 8 and 9 — that Carpenter failed to yield the right of way to Mottinger, that this was negligence, and that such negligence was the sole proximate cause of the collision complained of, whereas in answer to Questions 1, 2, 3, 4, 5 and 6 they found that other acts of negligence of Carpenter were also proximate causes of the collision — created a conflict which nullified the verdict and left the cause without any proper jury’s verdict and required reversal of the case. The alleged error complained of was probably caused by the wording of the issue in which the phrase “the sole proximate cause” of the collision was inadvertently used.

Appellants cite us to various decisions, the latest of which is Fort Worth & Denver City Ry. Co. v. Burton, 158 S.W.2d 601 (err. dism.) which was a 1942 Court of Civil Appeals decision in which it was held, on page 606, as follows:

“In response to one issue submitted the jury found that the collapse of the railroad bridge was the sole proximate cause of the death of Burton and Griggs. The appellant asserts such finding was in irreconcilable conflict with all the findings of the jury on proximate cause based upon appellant’s negligence, thus nullifying the same and resulting in a judgment unsupported by a verdict. The appellant has properly preserved this point as vitiating the judgment. Although a single act or omission may constitute both the sole and a proximate cause of an event, it is equally true that there can be but one sole proximate cause of an injury. The very term ‘sole proximate cause’ impels this conclusion. The finding that the collapse of the bridge was the sole proximate cause of the injury might be reconciled with the finding of proximate cause in connection with the alleged improper construction of the bridge since its purported faulty construction and its collapse might have been coincident in nature in producing the injury, but such is not true with reference to the findings of proximate cause as to the failure to notify the deceased trainmen of the extent of the watershed and of the rainfall. Since these findings may not be reconciled with the finding on sole proximate cause, and particularly in view of the above holding as to the error in the submission of the issue as to the improper construction of the bridge, we are compelled to sustain this assignment.” (Citing cases).

In answer to appellants’ contention, appellee Mottinger cites, among other cases, a 1960 Supreme Court case, Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772, in which a similar situation was discussed, and in which the court analyzed the cases of A.B.C. Stores, Inc. v. Taylor (1941), 136 Tex. 89, 148 S.W.2d 392, and Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949) which appeared in conflict with each other. In the Bradford case the Supreme Court repeated the rule laid down in the Little Rock case as the following:

“ ‘To apply this test, the court must consider each of the answers claimed to be in conflict, disregarding the alleged conflicting answer but taking into consideration all of the rest of the verdict, and if, so considered, one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict. It is essential that the party seeking to set aside a verdict on the ground of conflict must be able to point out that one of the conflicting answers of the jury, in connection with the rest of the verdict except the issue with which it conflicts, necessarily requires the entry of a judgment different from that which the court has entered.’ ”

The court further said:

“The result of a strict application of the Little Rock test to the jury findings in the case before us is that in three situations a judgment for the defendant would be required, but in the fourth situation no judgment could be rendered for either party. In the fourth situation, the only order that could be rendered would be one of mistrial. It is true that under no conceivable application of the test could a judgment be rendered for the plaintiff, and it may be conceded that in approving the test announced in Howard v. Howard in the Little Rock case, the court was of the opinion that an application of the test would always result in resolving the findings so that in all instances a judgment could be rendered either for the plaintiff or the defendant. The instant case presents jury findings which clearly indicate that this particular concept was unsound. To that extent the Little Rock rule must be qualified, for we cannot permit a verdict to stand when the findings are in such conflict that an application of the Little Rock rule revelops a situation in which a judgment could not be entered for either party.
“We conclude, therefore, that A. B. C. Stores, Inc. v. Taylor, was not overruled by Little Rock Furniture Mfg. Co. v. Dunn, and that consequently the decision here is ruled by the A. B. C. Stores case.” (Emphasis supplied).

In passing upon the A. B. C. Stores, Inc. v. Taylor case, the Supreme Court (1941) made the following observation:

“Ordinarily such finding of contributory negligence would require a rendition of judgment in defendant’s favor. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334.
“The record shows, however, that the jury’s finding, in effect, upon the issue of unavoidable accident was that the occurrence upon which recovery was sought was an accident. This finding, carrying with it, as it does, the further finding that neither plaintiff nor defendant was guilty of negligence, is in conflict with the finding that plaintiff was contribu-torily negligent, as well as with the finding that defendant was negligent.
“The trial court should have sustained plaintiff’s motion to return the jury to its room for further consideration of the charge, pointing out in this connection (without comment) the issues the findings to which are in conflict; and should have denied defendant’s motion to render judgment in its favor.”

In applying the foregoing rules to the case at hand, we find that if we disregard the jury’s answer of “sole proximate cause” (to Question No. 9), and consider the answer of the jury to other questions, of “a proximate cause”, with which the answer to Question No. 9 is allegedly in conflict, no different judgment than that rendered by the court would be required. We therefore overrule the first point of error and hold that the judgment is supported by the verdict in favor of the plaintiff.

The argument of plaintiff’s counsel, which is the basis for appellant’s second point of error, as set out by the court in its Bill of Exceptions was as follows:

“Please remember that I will be back in this court in the future in other cases, and so will Mr. Edwards, but this is the last time that my client will be in court in connection with her injuries. She cannot recover any more than you will give her in the case regardless of whether her injuries prove to be more serious than now thought to be. If you should not give her enough the court cannot raise it, but if you give her a verdict that is too large the court can reduce it.”

The court, after setting out the argument (which was not recorded by the court reporter) further observed that no objection was made to any of the argument of plaintiff’s counsel. It occurs to us that consideration of this argument by the jury could have been eliminated under instructions of the court, had an objection to this argument been made at the time, and that appellant’s silence waived the point or eliminated the possibility of remedying the error, if such it was. Appellant’s Point of Error No. II is overruled, and requires no reduction in the amount of damages awarded.

In Point of Error No. Ill we fail to find that the award, by the jury, of $3,000.00 as compensation to plaintiff for pain and suffering is grossly excessive. Point of Error No. IV is that this award is so contrary to the weight of the evidence as to be clearly wrong. In passing on this point we are guided by the directions contained in the Law Review article, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error”, 36 Texas Law Review 361, April 1960, in which the now Chief Justice of the Supreme Court, Robert W. Calvert, states: “If the finding of the existence of the fact, considering all of the evidence, is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust, the court should sustain the point and order a new trial; otherwise, the court should overrule the point and affirm.” Under these instructions, we find that the holding of the jury does not require reversal, and therefore Points of Error Nos. Ill and IV are overruled.

In treating Points of Error Nos. V and VI, relating to the jury’s finding of $5,000.00 for future pain and suffering, the same observations may be made, and these points are overruled. It should be observed that in Point of Error No. V, it is asserted that “There is no evidence to support jury’s finding of $5,000.00 as compensation to plaintiff for future pain and suffering * * * ” With reference to this point of error, the Law Review article of Chief Justice Calvert states that it is the duty of an appellate court to view the evidence in its most favorable light in support of the finding of a vital fact, considering only the evidence and the inferences which support the finding and rejecting the evidence and the inferences which are contrary to the finding. We have followed this rule in reaching the conclusion above stated in Point of Error No. V.

Point of Error No. VII claims that the total verdict for the plaintiff is so grossly excessive as to indicate prejudice against appellant as an insurance company. We do not find from the record any merit in this contention and therefore overrule Point of Error No. VII.

Point of Error No. VIII attacks the finding of the jury that appellant Carpenter’s failure to yield the right of way to appellee Mottinger was the sole proximate cause of the collision, stating that this finding is so contrary to the evidence as to be clearly wrong. We have previously observed that this finding was the result of the wording of the charge to the jury, and also that this finding may be ignored, considering the further findings of the jury in which it is claimed that this finding is in conflict. Point of Error No. VIII is therefore overruled.

Point of Error No. IX complains that the jury’s failure to answer that ap-pellee Mottinger did not keep a proper lookout is so contrary to the weight of the evidence as to be clearly wrong. Applying the rule laid out in Chief Justice Calvert’s Law Review article, cited above, we find no basis for this contention, and it is also overruled.

The same applies to Point of Error No. X, that the jury’s failure to answer that ap-pellee Mottinger was traveling at an excessive rate of speed under the existing circumstances, is so contrary to the weight of the evidence as to be clearly wrong. This point of error is also overruled.

Having treated all points of error presented to us by appellants and having overruled the same, the judgment of the trial court is accordingly affirmed.


author: BARRON, Justice.

text:
    Wesley D. WALKER et ux., Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee.
    No. 1.
    Court of Civil Appeals of Texas. Houston (14th Dist).
    Feb. 14, 1968.
    Rehearing Denied March 13, 1968.

      John H. Holloway, Bill Howell, Houston, for appellants.

      L. S. Carsey, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for ap-pellee.
   BARRON, Justice.

This is a damage suit resulting from a rear-end collision. Appellants, Wesley D. Walker and wife, Marilyn Walker, sued Missouri Pacific Railroad Company for damages sustained in an automobile accident on January 31, 1964. Appellants were stopped for a left turn at Almeda and Mow-ery Streets in Houston, Texas, when a 1960 Chevrolet station wagon struck them hard from the rear. The vehicle of defendant, Missouri Pacific Railroad Company, was being operated at the time by James Douglas Hope, an employee of the appellee, who was at the time within the scope of his employment by the railroad.

The jury found that Hope failed to keep a proper lookout for traffic in front of him and found that he was driving his car at a rate of speed in excess of that at which a car would have been operated by a reasonably prudent person in the exercise of ordinary care under the same or similar circumstances. The jury found that each act was a proximate cause of the accident and assessed damages at $3,000.00 in favor of Mrs. Walker and $800.00 in favor of Mr. Walker. On the verdict of the jury, the trial court rendered judgment for appellants in the amount of $3,800.00. From the judgment below, Mr. and Mrs. Walker have properly perfected an appeal, attacking the judgment of the trial court on essentially four points of error, all of which were properly preserved.

The first point complains that the trial court erred and abused its discretion in admitting in evidence a letter signed by plaintiffs’ attorney to Dr. Bruce Cameron, acknowledging that the attorney would be responsible for medical expenses furnished to plaintiffs. The objection is that the jury was improperly prejudiced by receiving testimony that the doctor’s bill would be guaranteed by the attorney and that the admission of the letter violates the purpose and intent of the collateral source rule. It is generally true that evidence of receipt of payments from another source, such as insurance or other compensation, is inadmissible, and that such payments cannot inure to the benefit of the tortfeasor and may be considered neither as a defense nor in mitigation of damages in favor of the wrongdoer. Kainer v. Walker, 377 S.W.2d 613, 617 (Tex.Sup.); see City of Fort Worth v. Barlow, 313 S.W.2d 906 (Tex.Civ. App.), writ ref., n. r. e.; 17 Tex.Jur.2d 102. But here there was no collateral payment. Appellants’ attorney guaranteed payment of the bill, which was shown to be for medical services to be rendered to appellants. Dr. Cameron was placed on the witness stand by appellants. On cross examination of an adverse witness, anything may be shown which might affect the witness’ credibility, such as bias, interest and prejudice, and a wide latitude is allowed in such matters. Traders & General Ins. Co. v. Robinson, 222 S.W.2d 266, 269 (Tex.Civ.App.), writ ref.; McCormick and Ray, Texas Law of Evidence, Sec. 676, p. 517. We see no reason why a jury should be prejudiced or damages affected by the above evidence. Moreover, the record fails to show any objection by appellants to the admission of the letter for the limited purpose for which it was received — to show how Mrs. Walker first came to Dr. Cameron to be examined and treated. The trial court so limited the testimony by instruction. There is no reversible error. Rule 434. We overrule appellants’ contention.

Appellant complains that the trial court erred in giving the following instruction in connection with special issue number 11, the damage issue pertaining to Mrs. Walker:

“In connection with this Special Issue you are instructed that you will not consider as an element of damages, nor allow anything for, any physical pain or mental anguish, if any, or loss of earnings or loss of earning capacity, if any, or medical expenses, if any, or reduced capacity to perform the work of a housewife in and about the home, if any, because of any condition or disability which was not proximately caused by the collision made the basis of this suit, except insofar as such condition or disability may have been or may in the future in reasonable probability be aggravated by such collision.” (Emphasis added)

Appellants contend that the instruction was a comment by the trial court that Mrs. Walker suffered from some condition or disability before and after the collision which was not associated with the injuries sustained in the collision by refusing the insert “if any” after “because of any condition” and after “disability” in the above charge. It is further contended that there is no evidence that Mrs. Walker suffered from any previous condition which contributed to her disability from the accident and that there were no pleadings or proof to warrant such charge.

There is ample evidence in this record to show that Mrs. Walker had other aches, complaints and injuries. She complained of pain over the right hip, and there is evidence to show no connection between this injury and the automobile accident. She was nervous and a psychiatrist was recommended. She had personal problems which lead to additional tenseness and nervousness in the musculature of the neck. She had headaches which were unrelated to the accident. She fell and struck her head and knocked herself out, and she had a bruised arm which was unrelated to the accident. Dr. Cameron referred to Mrs. Walker as a “chronic complainer” and stated that she had been hurt about three times during the course of his observations. It will be noted that the instruction does not refer to preexisting injury or condition, but it does refer to extraneous complaints and injuries not proximately caused by the collision. We believe that it would have been error for the trial court to have refused to give the instruction in view of the existing infirmities of appellant as testified to by her doctor. The various injuries were so intermingled and closely connected that the jury might have been confused and allowed for improper elements of damages in the absence of the limiting instruction. Dallas Railway & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683 (Tex.Com.App.), opinion adopted; Teague v. Washburn, 368 S.W.2d 229 (Tex.Civ.App.), writ ref., n. r. e. The trial court made the instruction contingent or conditional by the use of four “if anys” in its instruction, and we can perceive no error or adverse assumption which should have injured the appellant’s rights by the giving of the instruction. The extraneous conditions and disabilities were clearly in evidence and testified to by Dr. Cameron, appellant’s physician. The portion of the instruction on aggravation was favorable to appellants. The point of error is overruled.

Appellants’ next points of error deal with the alleged inadequacy of damages found by the jury. Complaint is made that $3,000.00 for Mrs. Walker and $800.00 for Mr. Walker are inadequate and so manifestly unjust and against the great weight and overwhelming preponderance of the evidence as to require a reversal of the judgment below. While the evidence is sufficient to warrant a finding of damages at a much greater sum than the jury was willing to assess, we must view the evidence in this case in the light most favorable to the appellee and indulge every legitimate conclusion favorable to appellee which might have been drawn from the facts proved. Olds v. Traylor, 180 S.W.2d 511 (Tex.Civ.App.), writ ref. An appellate court will reverse the judgment of the trial court only if the award falls below a rational appraisal or estimate. See 17 Tex. Jur.2d 480, 481. Dr. Dawson, appellants’ witness, testified that Mrs. Walker had suffered a posterior cervical strain, and that usually recovery is made within about three months. On April 16, 1964, Dr. Dawson examined her and all he could find was a retroverted uterus and he found that her injuries had generally healed by that time. Dr. Bruce Cameron first examined her on June 15, 1964, a month after she had resigned from her position with Prudential Insurance Company, giving her reasons as lack of advancement possibilities and that her future was limited. Dr. Cameron stated that Mrs. Walker was having no real severe pain, and that she described her difficulty as a discomfort; that she improved, “then she would have some things happen to her and then she would get worse, and then she would get better; something would happen and she would get worse. And she has just been a chronic complainer, not bad, for a year and a half or going on two years, and I just told her finally, to really get her over the hump, that we had better go ahead and stabilize her, but just exactly what’s doing it all I can’t be pinned down.” Dr. Cameron further testified that small things would hurt her and that she had been hurt about three times during the course of his observations; that she just seems to keep getting her neck hurt.

There was conflicting evidence as to the nature and extent of the injuries sustained by appellants and as to the necessity for all of the medical treatment rendered in the past and claimed to be needed in the future. Not only was the amount of pain and disability suffered by Mr. and Mrs. Walker a disputed issue, but whether any disability and pain which Mrs. Walker had was the result of injuries sustained in the collision were in question. The record shows that Mrs. Walker had other injuries and personal problems unrelated to the collision and that she did not have continuous difficulty.

The jury’s award of $800.00 to Wesley Walker was supported by the evidence and was not clearly inadequate. He testified that he went back to work a short time after the accident, and the most that Dr. Cameron could find were minimal sprains.

The extent of the injuries suffered by Mr. and Mrs. Walker as a result of the accident, including the amount of the doctor’s and medical expense involved, were exclusively within the province of the jury, and we cannot properly disturb the awards under the evidence in the record. We would not be justified in disturbing the jury’s findings when legitimate inferences from the testimony support them. Marange v. Lew Williams Chevrolet, Inc., 371 S.W.2d 900, 904 (Tex.Civ.App.), writ ref., n. r. e.; Henwood v. Moore, 203 S.W.2d 973, 976 (Tex.Civ.App.), no writ history.

Finally, complaint is made that the court erred and abused its discretion in refusing to hear evidence of jury misconduct. Appellants’ motion was supported by affidavit of their attorney that he had used diligence to secure affidavits from jurors, but that he was unsuccessful. Claim was made generally that the jury was guilty of misconduct in assessing damages. The trial court refused to hear evidence thereon. We regard the exception as properly taken and included in the record. No juror was subpoenaed by appellants for hearing on the amended motion for new trial, and neither the written nor oral testimony of any juror was tendered by appellants at the hearing. The Supreme Court of Texas has held that the affidavit showing jury misconduct should be attached to the motion for new trial, or the motion should disclose a reasonable explanation or excuse for the failure to have such affidavit so exhibited. If the above is not complied with, a refusal to hear testimony from the jurors on the motion is a matter within the sound discretion of the trial judge. Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644 (Com.App.), opinion adopted. Specific allegations of misconduct showing harm must also be made. Smith v. Houston Transit Co., 215 S.W.2d 187 (Tex.Civ.App.), writ ref., n. r. e. The sworn statement of appellants’ attorney did state that due diligence to secure affidavits of jurors had been made, and that he had reason to believe that the jury did not adequately compensate them based on each item submitted, and that the jury failed to consider each item of damage in their deliberations for reasons unsupported by the record. But no specific misconduct was either alleged or shown, and such general allegations, apparently based upon hearsay or suspicion, are inadequate. See Weingarten, Inc. v. Azios, 384 S.W.2d 160 (Tex.Civ. App.), writ ref., n. r. e. Moreover, Rule 226a, effective January 1, 1967, requires an instruction by the trial court to the jury to the effect that each juror is free to discuss or not to discuss matters of jury misconduct, and to give or not to give an affidavit relative thereto. The jury was not required to give any information whatsoever, and the fact that appellants’ attorney was unable to obtain it, is insufficient to show error or an abuse of discretion by the trial court in refusing to hear testimony. Rule 226a, Sec. IV, T.R.C.P. The contention is overruled.

We find no reversible error, and the judgment of the trial court is affirmed.


author: BATEMAN, Justice.

text:
    G. P. SMITH et ux., Lucy W. Smith, Appellants, v. The CITY OF DALLAS, Appellee.
    No. 17010.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 9, 1968.
    Rehearing Denied March 15, 1968.

      C. A. Searcy Miller, of Anderson, Henley, Shields, Bradford & Pritchard, Dallas, for appellants.
    H. P. Kucera, of Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
   BATEMAN, Justice.

This is a suit for damages for personal injuries alleged to have been sustained by appellant Mrs. Lucy W. Smith on April 6, 1964 while she was a passenger on a bus owned and operated by the appellee City of Dallas. Appellee moved for summary judgment on the ground that appellants had not complied with Section 307 of the City Charter, providing that appellee shall never be liable for any personal injury unless notice thereof in writing shall be filed with its City Manager or City Secretary within thirty days, stating where and how the injury occurred and the amount of damages claimed.

Appellants asserted in answer to the motion that there were genuine issues of material facts, not only as to liability, but also as to whether appellee has waived, or is estopped to assert, its rights under said charter provision. They do not attack the validity of the charter provision, and they admit the notice specified therein was not given. They rely wholly upon their pleas of waiver and estoppel. On a former appeal in this case, we held that a municipality may waive its rights under such a charter provision and also be estopped from relying thereon, but that these fact issues could not be summarily disposed of as a matter of law, by sustaining a plea in bar, on affidavits and certified copies of ordinances “as if it were a summary judgment proceeding under Rule 166-A, T.R.C.P.” unless such manner of disposition had previously been agreed to by the parties. Smith v. City of Dallas, 404 S.W.2d 839 (Tex.Civ.App., Dallas 1966, no writ).

Appellee then filed its motion for summary judgment supported by affidavits of its City Manager and City Secretary stating that no notice of the injuries claimed here was ever filed with either of them. The City Manager also swore in his affidavit that from immediately prior to April 6, 1964 until he resigned as City Manager in June, 1966 the City of Dallas did not have a Mr. Walsh in its employ in the maintenance and operation of its bus system, which it purchased as of January 1, 1964, the significance of which will appear in the next succeeding paragraph.

The appellants’ deposition and affidavit testimony was to the effect that on the day of the accident Mr. Smith telephoned the “Dallas Transit Company” to report the accident, and on the next day talked to one R. W. E. Walsh, a claims agent “of either the Dallas Transit Company or Transit Casualty Company,” who subsequently investigated the accident and took a written statement of Mrs. Smith; that Mrs. Smith was hospitalized for her injuries by Dr. Callewart and that during April and May, 1964 copies of medical reports on her were sent to “Dallas Transit Company”; that Walsh met with appellants on more than one occasion for the purpose of investigating and substantiating their claim, representing to them that their claim would be handled in a “Christianlike manner” and subsequently lulled appellants into a sense of security; that they contacted their attorney in May, 1964, when they were told for the first time of the 30-day notice provision of the Dallas City Charter. Walsh did not represent to them that he was an employee or agent of the City of Dallas.

It is apparent from the entire record before us and the briefs and oral arguments of the parties that Walsh was a claims adjuster for Transit Casualty Company, appellee’s liability insurer. Viewing the evidence in the light most favorable to appellants and disregarding any conflicts in the evidence and accepting as true all evidence tending to support the position of appellants, in accordance with the rules announced by our Supreme Court in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965), we cannot escape the conclusion that appellee has carried its “negative burden” of showing as a matter of law that it has a complete defense to appellants’ cause of action. It remains, then, to determine whether appellants have shown the existence of a fact issue as to whether appellee has waived such defense or is estopped to assert it.

Appellants’ evidence failed to show that Walsh said or did anything that could be interpreted as a waiver by the City of the notice provision of its charter, even if he had been an employee of the City. It was not even discussed; in fact, the record does not show that Walsh was even aware of the provision. It is generally held that waiver occurs only when one intentionally relinquishes a known right. 60 Tex. Jur.2d, Waiver, § 1, p. 182; Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855 (1958).

Moreover, he was not shown to have had any authority to waive any of the city’s ordinances or charter provisions. It has been held that even the mayor, or city manager, or members of the governing body of a city cannot waive such a charter provision unless they are specifically authorized to do so. Phillips v. City of Abilene, 195 S.W. 2d 147 (Tex.Civ.App., Eastland 1946, writ ref’d); Hallman v. City of Pampa, 147 S.W.2d 543 (Tex.Civ.App., Amarillo 1941, writ ref’d). Certainly Walsh, who had no authority to do anything except investigate and attempt to settle claims for the insurance company which employed him, would have no such power.

Since Walsh had no authority to waive the charter provision in question, the city would not be estopped by anything said or done by him from insisting upon its rights thereunder. Appellants had not right to rely on his statements as in any way binding on the city, or to say now that they were “lulled” by such statements, or by Walsh’s failure to tell them of the charter requirement in question, into refraining from giving the notice, for they admit they knew nothing of the charter requirement, and Walsh owed them no duty to inform them thereof or to advise them to employ an attorney. Phillips v. City of Abilene, supra, and Hallman v. City of Pampa, supra, both of which were approved and followed by the Supreme Court in City of Houston v. Hruska, 155 Tex. 139, 283 S.W.2d 739 (1955). See also Hayes v. Chicago Transit Authority, 340 Ill.App. 375, 92 N.E.2d 174; O’Connell v. City of Cambridge, 258 Mass. 203, 154 N.E. 760; Fisher v. City and County of Denver, 123 Colo. 158, 225 P.2d 828, 23 A.L.R.2d 963.

Our attention has not been called to any Texas decision (and we know of none) involving the specific question of whether a city may be held to have waived the defense of lack of notice, or be estopped to assert it, because of statements made by a claims representative of its insurance carrier. However, the precise question has been determined by appellate courts of other states, and our conclusion herein is supported by those decisions. See Heck v. City of Knoxville, 249 Iowa 602, 88 N.W.2d 58 (1958); Forseth v. City of Tacoma, 27 Wash.2d 284, 178 P.2d 357 (1947); Kirchmann v. City of Anaheim, 289 P.2d 817 (Cal.Dist. Ct. of App.1955); and Town of. Miami Springs v. Lasseter, 60 So.2d 774 (Fla.1952).

Appellants point to certain Dallas city ordinances creating and setting forth the duties, powers and functions of the “Transit Board,” and giving it authority to make its own rules and to “manage and conduct the affairs of the Transit System with the same freedom and in the same manner ordinarily employed by the board of directors of a private corporation.” However, these ordinances throw no light on the subject. There was no showing that the Transit Board empowered Walsh to act for it or for the City, or that any officer or employee of the Board said or did anything which could be interpreted as a waiver by the City of any of its rights, or which could in law estop the City from insisting on those rights.

Appellants cite City of El Paso v. Parish, 293 S.W.2d 201 (Tex.Civ.App., El Paso 1956, writ ref’d n. r. e.), but in that case the judgment for the injured plaintiff was reversed and rendered and the El Paso court held that only the mayor or city council, or someone by their authority, would have authority to waive the provisions of an ordinance requiring notice of injury within thirty days, that any such authorized acts would have to be done with the intent that they would constitute a waiver of the provision, and that for the city to be es-topped from insisting thereon it would be necessary to show that the authorized acts and conduct of the city during the thirty-day period were such as to lead the claimant to believe that there was no need for him to file the written notice, and that in reliance upon such conduct of the city he did not file same. This supports our view. We do not consider any of the other cases cited by appellants to be in point.

For the reasons herein given, we think the summary judgment was correct.

Affirmed.

       Neigut v. McFadden, 257 S.W.2d 864, 868 (Tex.Civ.App., El Paso 1953, writ ref’d n.r.e.).


author: STEPHENSON, Justice.

text:
    PAPPAS REFRIGERATION COMPANY, Appellant, v. Clara PEVETO et al., Appellees.
    No. 6950.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 15, 1968.

      Michael Henry, Houston, for appellant.
    Leyton Jenkins, Orange, for appellees.
   STEPHENSON, Justice.

This is a venue case. Defendants, James H. Pappas and Pete H. Pappas, filed their plea of privilege to be sued in Harris County, the county of their residence. Plaintiffs filed a controverting affidavit and relied upon subdivision 9a of Article 1995 Vernon’s Ann.Civ.St. to maintain venue in Orange County. The plea of privilege was heard and overruled. The parties will be referred to here as they were in the trial court.

According to the petition filed, Clara Peveto, joined by her husband, and Mollie Johnson, joined by her husband, were plaintiffs, and James H. Pappas and Pete H. Pappas, d/b/a Pappas Refrigeration Company, were defendants. It is alleged: that defendant sold an electric Fryolator to Mollie Johnson, which Mollie Johnson sold to Clara Peveto on January 18, 1965 along with a restaurant known as Chicken Villa; that defendant orally agreed to keep the Fryolator in a proper operating state of repair, and had attempted to repair such Fryolator, but on January 18, 1965, the Fryolator caught fire causing the damages complained of; that defendant was negligent in performance of the oral contract; that this was a proper case for the application of the doctrine of res ipsa loquitur; that in the alternative, defendant was guilty of certain acts of negligence which proximately caused the damages complained of.

A plea of privilege was filed on behalf of James H. Pappas and Pete H. Pappas in which it was alleged that each was a resident of Harris County, Texas, and containing the following paragraph:

That James PI. Pappas and Pete H. Pappas are not now and never have been in business in Orange County, Texas, the county in which such suit was instituted, at any time material to such suit, as partners, joint adventurers, or sole proprietors under the name of Pappas Refrigeration Company, and neither of said Defendants is liable unto the Plaintiffs in the capacity in which he is sued upon any theory alleged in Plaintiffs’ Original Petition.

The controverting affidavit filed alleged: that this was a suit against defendant, Pappas Refrigeration Company; that defendant, Pappas Refrigeration Company, committed an act of negligence in Orange County; that such act was that of defendant in person, or that of his servant, agent or representative, acting within the scope of his employment; that venue as to defendant, Pappas Refrigeration Company, was maintainable by reason of subdivision 9a.

See 9a, Article 1995, V.A.C.S., which reads as follows:

9a. Negligence. — A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant’s residence are:
1. That an act or omission of negligence occurred in the county where suit was filed.
2. That such act or omission' was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
3. That such negligence was a proximate cause of plaintiff’s injuries.

One of the points of error raised by defendants is that plaintiffs failed to prove that any act or omission of negligence was committed by defendants or their agent, servant or representative. This point of error must be sustained. Mollie Johnson testified: she bought a Fryolator from Pappas Refrigeration Company. She dealt with someone out of Port Arthur, but bought it in Houston. When it caught fire she called Pappas Refrigeration in Houston and they told her to get in touch with Pappas Refrigeration Company in Port Arthur. They sent a man out to repair it. Clara Peveto testified: the Fry-olator came from Pappas Refrigeration Company. Pappas Refrigeration Company came and repaired the Fryolator for Mrs. Johnson. She knew it was Pappas Refrigeration Company because it had “Pap-pas Refrigeration Company” on the truck they were in. She talked to James Pappas in Houston after the fire, and he told her he was not responsible for it. She didn’t remember whether the repair men told her they were from Pappas Refrigeration Company or not. Travis A. Kirby testified: that he was the accountant — Vice-President of Pappas Refrigeration Company ; that “Pappas Refrigeration Company” is a corporation, which did not operate any place other than Houston; that there had been a corporation, Pappas Refrigeration Company of Beaumont, which was discontinued in 1961; that they did business in Beaumont after 1961 with a sales office only, which was managed by Robert Jenkins. The service of Pappas’ machinery in Beaumont and Orange after 1961 was with a subcontractor. A sales contract was offered in evidence, with the name “Pappas Refrigeration Co.” at the top, and showing a sale of a used Super Chef Fryer to Gene T. Johnson, November 19, 1963. Mrs. Mollie Johnson testified on re-direct examination: that she called Mr. Jenkins several times, and he came out himself many times.

The second venue fact which required proof by plaintiff. under Sec. 9a was that the act or omission complained of was that of the defendants in person, or that of their servant, agent or representative, acting within the scope of his employment. The two defendants sued in this case were James H. Pappas and Pete H. Pappas as individuals, doing business as Pappas Refrigeration Company. The only mention in the evidence as to either defendant was that Clara Peveto called James Pappas in Houston after the fire and he denied any responsibility. There is no evidence that either defendant did anything in person, and no evidence that anyone acting as their agent, representative or servant was guilty of any act or omission in Orange County which amounted to negligence.

The judgment of the trial court is reversed and the cause is transferred to Harris County.