author: MURRAY, Chief Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. ELMORE & STAHL, Appellee.
    No. 13937.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 12, 1962.
    Rehearings Denied Oct. 10, 1962.

      Sharpe & Hardy, Brownsville, Hutche-son, Taliaferro & Hutcheson, Houston, for appellant.
    North, Blackmon & White, Corpus Christi, for appellee.
   MURRAY, Chief Justice.

Our original opinion, filed June 27, 1962, is withdrawn and this opinion substituted in its place.

This suit was instituted by Elmore & Stahl as shipper against Missouri Pacific Railroad Company as carrier, for alleged damages to four shipments, three of which were of honeydew melons originating at Rio Grande City, Texas, and one of green peppers originating at Pharr, Texas, with destination points of the melons at Chicago, Illinois, and Boston, Massachusetts, and of the green peppers at Indianapolis, Indiana.

The trial was to a jury and resulted in judgment in favor of plaintiff on all four counts contained in the petition, from which judgment Missouri Pacific Railroad Company has prosecuted this appeal.

Appellee’s petition contained four separate counts, and each of these counts, in effect, is a separate lawsuit. The first count relates to 640 crates of honeydew melons, loaded in Car ART 35042; the second relates to 640 crates of honeydew melons, loaded in Car ART 33450; the third relates to 560 crates of honeydew melons, loaded in Car ART 51395; and Count IV relates to 700 baskets of green peppers, loaded in Car ART 52223.

The cause was submitted to the jury upon nine special issues as to each count in the petition, and these issues are very similar as to each of the four counts. They vary only as to the peculiar facts of each count.

Appellant’s Point Number One is as follows :

“Judgment should have been rendered in favor of the Carrier on Count I of the petition because:
“(a) The jury finding on Special Issue Number Three establishing that the carriers performed without negligence the transportation services as provided by the terms of the bill of lading and as instructed by the shipper and in a reasonably prudent manner as to matters not covered by the bill of lading or the shipper’s instructions, constituted a complete defense where the shipper relied upon a prima facie case, and the carrier was not further required to prove the specific cause of the loss. ■ . i ;
“(b) The responsibility assumed by a carrier of perishables is fixed by the agreement contained in the bill of lading in accordance with published tariffs and regulations, which are binding upon the shipper and carrier and may not be waived or varied; the tariff provisions have the force of law and constitute part of the contract between the shipper and carrier, and the effect of same is to limit and define the contractual undertaking of the carrier to carrying out the shipper’s instructions and performance of transportation services without negligence.
“(c) The correct rule applicable to shipments of perishables is the same as that involving shipments of livestock, that is, the carrier is exonerated from liability upon showing compliance with the shipper’s instructions and performance without negligence of transportation services; and the carrier is not required to additionally prove the cause of the shipper’s loss or damage.
“(d) At common law, the carrier was under no duty to furnish special protective services such as refrigerator cars, icing or ventilation, and any duty, obligation or liability of the carrier concerning such matters depended upon the agreement between the shipper and the carrier and was entirely distinct from and could not be based upon its general liability as a common carrier.”

The jury found, in answei to Special Issue No. 1, that the honeydew melons referred to in Count I were in such condition at the time the bill of lading was signed that, based upon the orders given by the shipper to the carrier for their transportation, and the reasonable performance of those orders by the carrier, they would have been reasonably expected to arrive at destination in good merchantable condition.

In answer to Special Issue No. 2, the jury found that such melons were in worse condition than would reasonably have been anticipated, based upon the condition in which they were at the time the bill of lading was signed, the orders given by the shipper to the carrier for their transportation and reasonable performance of those orders by the carrier.

Under the provisions of the Interstate Commerce Act, 49 U.S.C.A. § 20(11), which provides in part as follows:

“Any common carrier, railroad, * * receiving property for transportation from a point in one State or Territory or the District of Columbia to a point in another State * * * shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered * *

and under the evidence and findings of the jury, the shipper made out a prima facie case of liability against the carrier. 13 C.J. S. Carriers § 71, p. 131; Panhandle & S.F. Ry. Co. v. Trautmann Bros., Tex.Civ.App., 341 S.W.2d 504; Missouri-Kansas-Texas R. Co. v. Noble, Tex.Civ.App., 271 S.W.2d 146; Rogers v. Crespi & Co., Tex.Civ.App., 259 S.W.2d 928; Railway Exp. Agency v. Hueber, Tex.Civ.App., 191 S.W.2d 710; Panhandle & S. F. R. Co. v. Wilson, Tex.Civ.App., 135 S.W.2d 1062.

It is the contention of the shipper that the carrier can only defend against this prima facie cause of action by showing that the damages were due to one or more of the excepted causes at common law; viz., (1) an act of God, (2) the public enemy, (3) the act of the shipper, (4) the inherent nature of the goods themselves.

The jury found, in answer to Special Issue No. 3, that as to the honeydew melons described in Count I, the carrier performed without negligence the transportation services as provided by the terms and conditions of the bill of lading and as instructed by the shipper and in a reasonably prudent manner as to matters not covered by the bill of lading or the shipper’s instructions.

In answer to Special Issue No. 4, the jury found that as to the honeydew melons described in Count I, the worsened condition on arrival was not caused by the failure of the carrier to comply with the instructions of the shipper and furnish all services provided by the terms and conditions of the bill of lading.

The jury further found, in answer t<. Special Issue No. 5, that the worsened condition of the melons on arrival was not in any part caused by the failure of the carrier to transport and care for the melons in a reasonably prudent manner as to all matters not covered by shipper’s instructions and the bill of lading.

In answer to Special Issue No. 6, the jury found that the worsened condition of the honeydew melons referred to in Count I, at the time of their delivery at destination, was not due solely to an inherent vice existing at the time the melons were received by the carrier at Rio Grande City, Texas.

The jury further found, in answer to Special Issue No. 7, that the worsened condition of the melons at destination was not caused solely by the carrier carrying out the instructions given by the shipper to the carrier for handling this shipment.

In answer to Special Issues Nos. 8 and 9, the jury established the loss in market value of the melons due to the worsened condition at destination.

It is the contention of appellant carrier that the jury’s answers to the Special Issues show that the carrier carried out the instructions of the shipper and was not otherwise' negligent, and that this is a complete defense to the prima facie case established by the shipper. While it is the contention of appellee shipper that the only defense to the prima facie cause of action established by it is to show that the loss was due to one of the excepted causes set out above.

It is conceded by the parties that where an interstate shipment is involved, the liability of the carrier and the measure of damages are determined by the Interstate Commerce Act and the decisions of the Courts of the United States, construing it. See Missouri Pacific Railroad Co. v. Duncan, Tex.Civ.App., 353 S.W.2d 315; Missouri-Kansas-Texas R. Co. v. Noble, supra.

There are a great many authorities discussing the question here presented, and we are of the opinion that, by the great weight of authorities, the contention of the appellee shipper is sustained. Panhandle & S. F. Ry. Co. v. Trautmann Bros., Tex.Civ.App., 341 S.W.2d 504; Missouri Pac. R. Co. v. Trautmann Bros., Tex.Civ.App., 301 S.W.2d 240; Thompson v. Bob Tankersley Produce Co., Tex.Civ.App., 289 S.W.2d 840; Thompson v. A. J. Tebbe & Sons Co., Tex.Civ.App., 241 S.W.2d 627; Schnell v. The Vallescura, 293 U.S. 296, 307, 55 S.Ct. 194, 197, 79 L.Ed. 373; Lehigh Valley R. Co. v. State of Russia, 2 Cir., 21 F.2d 396; Compania de Vapores Insco S. A. v. Missouri Pac. R. Co., 5 Cir., 232 F.2d 657; Reider v. Thompson, D.C., 116 F.Supp. 279; Secretary of Agriculture v. United States, 350 U.S. 162, 76 S.Ct. 244, 100 L.Ed. 173; Yeckes-Eichenbaum, Inc. v. Texas Mexican Ry. Co., 263 F.2d 791, cert. den., 361 U.S. 827, 80 S.Ct. 75, 4 L.Ed.2d 70; California Packing Corp. v. The Empire State, D.C., 180 F.Supp. 19; Southern-Plaza Empress, Inc. v. Nerville, 5 Cir., 233 F.2d 264; U. S. v. Mississippi Valley Barge Line Co., 8 Cir., 285 F.2d 381; California Packing Corp. v. States Marine Corp. of Del., D.C., 187 F. Supp. 540; Interstate Commerce Act, Title 49 U.S.C.A. § 20(11); 13 C.J.S. Carriers § 71, p. 131, § 79, p. 151. Tariff Rules Nos. 130 and 135, in no way affect the rules laid down in the above cited authorities. We refuse to follow Southern Pacific Co. v. Itule, 51 Ariz. 25, 74 P.2d 38, 115 A.L.R. 1268, wherein it is held that the carrier’s liability with relation to the transportation of vegetables is the same as for livestock, because such holding is contrary to the above cited cases.

This brings us to a consideration of Count II of appellee’s petition. Appellant’s Point Number Two is as follows:

“Judgment should have been rendered in favor of the carrier on Count II of the petition because:
“(a) There was no evidence, or, at least the evidence was insufficient, to establish the condition, particularly the good condition, of the honey dew melons at origin.
“(b) There was no evidence, or, at least the evidence was insufficient, to establish the market value of the commodity at destination, even if the shipment had arrived without any damage; and there is not a sufficient basis for ascertainment of damages if appellee is entitled to recover the same.”

We sustain this point. The evidence is insufficient to support the finding of the jury that the melons were in good condition at the point of origin. The shipper relied upon the recital in the bill of lading to the effect that the melons were in apparent good condition, and the testimony of John Fillpot. The recital in the bill of lading relates only as to the condition of the outside of the crates, and this rule is not changed even though honeydew melons are so crated that a part of each melon can be seen without opening the crates. Hoover Motor Express Co. v. United States, 6 Cir., 262 F.2d 832.

John Fillpot did not inspect the melons at point of origin. He was asked the direct question whether he could say that he saw “a single one of the melons involved in this case.” He answered, “I cannot.” He was in general charge of gassing and cooling the melons, but the man who actually did this work did not testify. There was no other testimony as to the condition of the melons at origin than the general statements by Fillpot. We reverse the judgment of the trial court on Count II.

Appellant’s Point Number Three is as follows:

“Judgment should have been rendered in favor of the carrier on Count III of the petition because:
“(a) The jury finding on Special Issue Number One, establishing that the honeydew melons involved were not in good condition at origin, that is, they would not reasonably have been expected to arrive at destination in good merchantable condition, based upon the orders of the shipper and the reasonable performance of same by the carrier, prevented judgment for the shipper, where the shipper relied solely upon a prima facie case.”

The finding of the jury on Special Issue No. 1, on Count III, precluded any recovery by the shipper on Count III. Missouri Pacific R. Co. v. Trautmann Bros., Tex.Civ.App., 301 S.W.2d 240; Thompson v. Bob Tankersley Produce Co., Tex.Civ.App., 289 S.W.2d 840; Albers Milling Company v. Hauptman, 9 Cir., 95 F.2d 286.

Appellant’s Point Number Four is as follows:

“Judgment should have been rendered in favor of the carrier on Count IV of the petition because:
“(a) There was no evidence, or, at least the evidence was insufficient, to establish the market value of the commodity at destination, even if the shipment had arrived without damage; and there is not a sufficient basis for ascertainment of damages, if appellee is entitled to same.
“(b) The jury award is excessive.”

We sustain this point. Appellee in attempting to establish the market value of the peppers relied entirely upon the testimony of Ed Baker. There were no United States Department of Agriculture Market Reports introduced in evidence as to the peppers, and there were no other market reports introduced. Baker admitted that he did not know the market price of U. S. No. 1 peppers on January 26, 1958, in Indianapolis. He based his opinion as to the market value of these peppers upon the account of sales showing that some of them sold for the sum of $4.00 per basket. In the recent case of Missouri Pacific Railroad Co. v. Duncan, Tex.Civ.App., 353 S.W.2d 315, the Austin Court, speaking through Associate Justice Richards, had this to say:

“It is a general rule of law than an account of sales alone is incompetent to establish the reasonable cash market value of a shipment in the condition and on the date of its arrival. Rio Grande & E. P. R. Co. v. T. A. Austin, supra, Tex.Com.App., 25 S.W.2d 306, 307; Thompson v. A. J. Tebbe & Sons Co., Tex.Civ.App., 241 S.W.2d 627, 632; Reider v. Thompson (U.S.C.A. 5th) 197 F.2d 158, 160.”

Appellee’s motion for a rehearing will be overruled, and appellant’s motion for a rehearing will be granted in part and overruled in part in keeping with this opinion.

Our judgment heretofore rendered herein is set aside and judgment entered in accordance with this opinion; i. e., the judgment of the trial court is affirmed as to Count I, and reversed and remanded as to Counts, II, III and IV. The costs of this appeal are taxed one-fourth against appellant and three-fourths against appellee.


source: Caselaw Access Project

author: MASSEY, Chief Justice. BOYD, Justice RENFRO, Justice

license: Public Domain

text:
    Frances KRAYER, Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee.
    No. 16349.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 21, 1962.
    Rehearing Denied Oct. 19, 1962.
    McEntire & Murad, and Rex McEntire, Fort Worth, for appellant.
    Cantey, Hanger, Johnson, Scarborough & Gooch, Howard Barker and John Mc-Bryde, Fort Worth, for appellee.
   MASSEY, Chief Justice.

The suit was brought by the appellant Frances Krayer, a widow, hereinafter referred to as plaintiff, against the appellee The Prudential Insurance Company of America, hereinafter referred to as the company, to recover on a policy of basic life ($5,000.00), term ($10,000.00), and accidental death ($5,000.00) insurance. The policy insured plaintiff’s deceased husband, Kenneth Krayer, who died on or about May 1, 1958, within two years of the effective date of the policy contract. In view thereof and by reason of contractual provisions of the policy, the benefits otherwise payable would not be owed if death was the result of suicide.

Following a trial before a jury, answers returned in the verdict were against suicide, on which theory the company defended the suit, but the company’s motion for judgment notwithstanding the verdict was sustained and judgment was entered for the company and that the plaintiff take nothing by her suit. From said judgment the plaintiff appealed.

Judgment reversed and cause remanded. Basically, the author’s premise for the propriety of such disposition is the want of any evidence warranting the jury’s conclusion that death was due to “accident”, and the insufficiency (against the great weight and preponderance) of the evidence to support the (negative) jury finding that death was not the result of “suicide”. Such a decision does not reject the proposition that violent death must necessarily have resulted from “suicide” or “accident” but exalts the importance of a discharge of the burden of proof where a plaintiff must establish “accident” in order to recover one type of insurance death benefits and where the defendant must establish “suicide” to defeat recovery of such plus another type of death benefits also provided by the same policy contract.

We will initially consider the policy benefits provided to be paid in the case of accidental death. On February 7, 1962, by unanimous opinion, the Supreme Court of this state filed its opinion in the case of Combined American Insurance Company v. Blanton, Tex., 353 S.W.2d 847. Therein it was stated that though there is a presumption of law against suicide the slightest rebutting evidence by way of facts showing suicide eliminates the presumption. From the opinion of the Supreme Court and the Court of Civil Appeals in the Blanton case it is clear that the evidence showing the fact of suicide may be entirely circumstantial. When the presumption against suicide is so eliminated the plaintiff who would establish liability under a policy of insurance, as to which the defense of suicide is interposed, has the burden of pleading and proving that death resulted due to a cause which was a hazard contemplated by the parties as reflected by the insurance contract. Benefits of the policy under consideration in the Blanton case were payable only upon loss of life from bodily injuries effected by accidental means. As we understand it the essence of the holding was that “suicide” was not a proper ultimate issue in the case but that “accidental means” was the only issue, that the “negative of suicide” was an clement thereof (in the nature of inferential rebuttal), that there was no evidence of death by “accidental means”, that the burden of proof was upon the claimant of insurance, and that since there was no evidence which discharged the burden judgment for the insurance company was compelled.

In the instant case the facts were primarily circumstantial as in the Blanton case. The deceased had a history of mental illness, but in connection with the particular problem we here consider the evidence bearing thereupon would be merely a part of the whole picture and certainly not controlling. The type of illness shown was that which causes a sufferer therefrom to attach erroneous or pathological significance to ordinary, everyday occurrences and feel that these things refer to him. On an occasion in 1957, about a year prior to that on which he met his death, the deceased had found it a source of extreme agitation that his wife’s former husband had not maintained on a current basis support payments for the child of the former husband and his wife. The child was living with the deceased. Apparently deceased attached erroneous or pathological significance to the situation, for because of agitation over the failure of the ex-husband to pay child support he purchased a pistol and ran away from home with the threat that he was going to kill himself. He returned about a week later, however, explaining that “he did not have the guts to end it all”. (It is suggested that this condition of fact, once established, is presumed to persist, but we believe that under the evidence such a presumption would not be treated of having persisted. Surely it would vanish along with the presumption against suicide.)

On April 18, 1958, the deceased was laid off his job at a manufacturing plant in Fort Worth. By this time he and his wife had one small child in addition to the child of the wife by the former husband. His wife was expecting another child. Regular obligations were accruing on house and automobile payments. He made efforts to locate another job, but was unsuccessful. He tried to sell encyclopedias for a few days but did not like it and quit. He disappeared the night of April 24-25, 1958. It was later discovered that he had purchased a .22 caliber pistol two days before his disappearance.

On the night of his disappearance his wife retired at about 11:30 P.M. He was in another room watching television and did not retire. His wife awoke at 4:30 A.M. on April 25, 1958, to find that he had left the premises. Some of his clothes and personal effects were gone as was the family automobile. He left a handwritten note which stated, “I think it best that I do it this way. Remember that I love you no matter what happens”.

Undoubtedly the date of death was on or about May 1, 1958, some six days after deceased’s disappearance. His body was discovered on May 8, 1958. It was in the family automobile in wooded country outside Phenix City, Alabama. The clues concerning his whereabouts in the period between the time he left home and the date of death consisted in an automobile repair order from a garage in Denton, Texas, showing that on April 25, 1958, the garage employees tightened a bolt on the automobile, and the stub of a theater ticket purchased on the same day, between 1:15 P.M. and 2:00 P.M., at a theater in Denton. The repair order and the theater ticket stub were found in deceased’s billfold lying on the seat of the automobile beside his body. In her statement to the police of Fort Worth reporting the disappearance of her husband the plaintiff had stated that deceased left with about $109.00. There was a $1.00 bill in the pocketbook and something less than $1.00 in change in deceased’s pockets when his body was discovered. His gold wrist watch was on his body when found. His diamond ring was on his body or among the personal effects in the automobile. On the seat alongside the billfold lay small billfold photographs of the plaintiff, the deceased’s stepdaughter, and the baby boy of deceased and his wife. The windows of the automobile were closed, and the doors, other than that at the driver’s left, were locked. There was no evidence of the presence of any third person in the vicinity of the place where the deceased was found prior to the time of discovery. There had been one or more rains during the week before discovery.

The spectacles of the deceased were lying beside him on the seat by the billfold and photographs. In his left hand lay the revolver purchased two days before leaving Fort Worth. Deceased was ambidextrous — he wrote with his left hand. The shell chamber of the revolver held nine cartridges and when the body was found it contained one fired cartridge and eight unfired shells. The deceased’s body was in a sitting position, lying back, but with the shoulders of the body in position as though the upper half had slipped to the left. The right hand was on the seat, but the left was cushioned against his abdomen and against the lower part of the steering wheel. In the left hand was cradled the revolver, with the barrel pointing to the left, toward the left elbow, and with the butt upward. Neither the index nor other finger was caught in the trigger-guard, and the revolver was free in the hand. The “balance” of the revolver is such that if one holding it should release the fingers on the butt and raise the thumb high it will spin into the position in which it was found, though usually with the trigger finger within the guard. Unless the thumb is raised high the revolver “cock” will catch on the thumb.

Counsel for plaintiff argues that the position of the revolver in the hand constituted evidence which entitled the jury to conclude that it had been fired by someone other than the deceased and then placed in his hand. The company, demonstrating the movement of the revolver upon releasing the fingers and raising the thumb while dropping the hand, argues that the only reasonable conclusion is that the revolver was fired by the hand in which it was found. The wound from which the deceased died was caused by a bullet from the revolver in question which entered the head immediately back of the outer corner of the left eye on the line of the side-frame of the deceased’s spectacles, or where such would have been but for the removal of these glasses to their position on the seat.

It is our conclusion that the presumption of law against suicide was eliminated in this case by the introduction of the circumstantial evidence showing suicide. We believe we should disregard the jury finding against suicide as having any application to this phase of the case, although, if it did have effect it would be a finding against the great weight and preponderance of the evidence as will be discussed in another part of this opinion. It is our further conclusion that there is a complete want of proof that the death was by accident or by the hand of any third party, i. e., there was no evidence that the death resulted from a hazard contemplated by the parties as reflected by the policy contract. Though applicable to this phase of the case, the issue of “accident”, found in plaintiff’s favor by the jury, was never raised by the evidence in the case except upon the pre-existent presumption against suicide which must be treated as having vanished and become obviated. Under the law as established in Combined American Insurance Company v. Blanton, 1962, Tex., 353 S.W.2d 847, plaintiff’s right to recover under the accident feature of the policy is foreclosed because there was no evidence that death resulted from accident and it was the obligation of the plaintiff to produce evidence warranting a conclusion that it did.

We do not mean to say that the evidence forecloses the right to recover under the coverages in the policy other than as applied to accident. Such phase of the case is not affected by what we have stated above. The defense thereto of suicide was plead by the company, and the burden of proof was upon it in regard thereto. The converse of what we have said concerning the coverage of accidental death would obtain and it would be the obligation of the company to produce evidence on its affirmative defense of suicide. The plaintiff would not be required to introduce any evidence of accident or of suicide.

In order to prevent a recovery under the basic and term life insurance coverage the company’s obligation would be to establish by a preponderance of the evidence that the deceased did meet his death as the result of suicide. The jury finding was against such contention. The jury refused to find suicide by a preponderance of the evidence. In view thereof the plaintiff was entitled to a judgment unless the deceased was a “suicide” as a matter of law. By cross-assignment the company contends, in the event of a reversal of the judgment notwithstanding the verdict, that such finding was so against the great weight and preponderance of the evidence as to be manifestly unjust and wrong and such as to require a removal of the case for another trial rather than the entry of a judgment for the plaintiff. In our opinion the court erred in rendering the judgment notwithstanding the verdict of the jury. However, in view of the whole of the evidence in the .record we are of the opinion that the company’s cross-assignment of error is good and that the judgment should be reversed and the cause retried.

In the case of Grand Fraternity v. Melton, 1909, 102 Tex. 399, 117 S.W. 788, a judgment for the plaintiff based upon a similar type of case was reversed and judgment rendered for the company. In that case the deceased died from a self-inflicted gunshot wound under circumstances inhibiting a possibility that he might have been shot by a third person. Witnesses were able to talk with the deceased before time of death. The court held that proper construction of the statements of the deceased, coupled with other physical and circumstantial evidence, established facts consistent with suicide and inconsistent with accident. It was further held that the evidence established to a moral certainty that the deceased shot himself with the intent to destroy his life and that therefore judgment for the company was compelled.

In the case of Texas Life Ins. Co. v. Childress, 1918 (Tex.Civ.App., Fort Worth), 204 S.W. 1035, error refused, a judgment for the plaintiff based upon a similar type of case was reversed and rendered for the company. In that case death resulted from the deceased having drunk carbolic acid in his own home under circumstances foreclosing any possibility of foul play by third parties. The deceased was already dead when discovered, but he left a set of letters written either the first or second day before that of his death concerning directions for his burial, the selection of pallbearers at his funeral, the payment of a current grocery bill out of proceeds from his insurance, and the payment of other debts out of insurance to be collected by reason of his death. The court held that the circumstantial and physical evidence conclusively proved intentional suicide.

Mutual Life Ins. Co. v. Tillman, 1892 (Tex. Com. of Appeals), 84 Tex. 31, 19 S.W. 294, was a case wherein the opinion was not adopted by the Supreme Court but did order judgment entered in accord with the recommendation of the Commission of Appeals. In that case the court held that from statements made by the deceased after injury but before he died, coupled with other evidence in the case, established by a preponderance of the evidence not only that the deceased did take his own life with suicidal intent, — but further that it excluded all reasonable doubt that he died from the effects of morphine or opium poison administered by himself. Nevertheless, the judgment was one of remand rather than rendition.

In the case of American Nat. Ins. Co. v. Williams, 1940 (Tex.Civ.App., Dallas), 144 S.W.2d 662, there was an eyewitness to the act of suicide, and the court stated that the evidence in the case established to a moral certainty that the insured intentionally shot herself, inflicting a wound from which she died. There was nothing in the record to rebut the evidence upon which the statement was made. Nevertheless the court remanded the cause for another trial, with the statement that it was not altogether impossible that plaintiffs might be able to strengthen the testimony in their behalf upon the occasion of another trial.

While we are not entirely satisfied as to the propriety of the action taken in the Tillman and Williams cases mentioned, we are of the opinion that the case before us is not one in which rendition would be proper in the state of the evidence, especially since the jury returned findings against the contentions of the company. There is no direct evidence that the deceased actually did intend to destroy his own life at the time and place in question, — and did in fact accomplish such intent by shooting into his own head with his own hand the bullet which caused the wound from which he died. The evidence is circumstantial, albeit of great force. Certainly the evidence was not conclusive nor did it foreclose every reasonable hypothesis other than suicide. We have found no case in which an appellate court, on facts such as those before us and where suicide was relied upon as an affirmative defense, has not only set aside the verdict of the jury for a claimant, but gone further and rendered judgment in behalf of the defendant company. Contrarily, in instances presenting facts and circumstances much more favorable from the standpoint of the company appellate courts have concluded that the proper order would be to remand rather than to render judgment. We are of the opinion, therefore, that a proper judgment would be one reversing the judgment entered below with the cause remanded for another trial.

It stands self-evident that a complaining party who has been unable to persuade the jury to return an affirmative or “yes” answer to a special issue upon which he carried the burden of proof, and who presents the complaint that the jury’s negative or “no” finding is against the great weight of the evidence (or finds insufficient support in the evidence) is burdened with greater difficulty than would be the case were he making like complaint becartse of an affirmative or “yes” answer returned on an issue as to which the burden was carried by his opponent. Indeed, the author of this opinion once expressed a belief that the application of the law would foreclose any ability to sustain such a contention. See North Texas Producers Association v. Stringer, 1961, Tex.Civ.App., 346 S.W.2d 500, writ ref. n. r. e. He is presently convinced that the belief so expressed in said case was erroneous, and that circumstances could exist such that a negative or “no” finding would be “clearly unjust” (i. e., against the great weight of the evidence or not supported by sufficient evidence), particularly in instances where such would be a finding against the complaining party rather than a mere “refusal” to find for him. The case under consideration on the instant appeal appears to be one where the negative answer of the jury would constitute a mere “refusal” to find the fact of suicide, and is nevertheless one in which we conclude a remand for another trial will be required because the negative finding returned is against the great weight and preponderance of the evidence.

Although admitting that the trial court did not found its judgment (notwithstanding the verdict of the jury) upon the theory that such material misrepresentations of fact attached to and made a part of the policy were made by the deceased at time of issuance as would entitle the company to avoid liability, as by a recision of the contract, the company contends that judgment should be affirmed upon such theory. Concerning the matter of the deceased having theretofore been a patient in the Buffalo State Hospital in the State of New York, and having been previously treated for or having had a known indication of a nervous or mental disorder, the jury found that the deceased did make misrepresentations of fact material to the risk insured against upon which the company relied and was induced to issue its policy of insurance. However, the jury refused to find that said misrepresentations were made “willfully and with the intent to induce The Prudential Insurance Company of America to issue the policy of life insurance”. The statements in question were made in connection with the application of the deceased for the policy and also to the physician who examined him for the company. Sec. 4 of Art. 3.44 of the Texas Insurance Code, V.A.T.S. provides: “That all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties.”

We hold against the contention of the company that the answers returned by the jury would serve to support a judgment on the verdict in its behalf. They constituted representations, not warranties. A warranty enters into and forms a part of the contract itself, defining the limits of the obligation beyond which no liability arises, while a representation made before or at time of the contract presents the elements on which the risk to be assumed is to be estimated. To establish fraud which would entitle one party to a contract to a recision on account of a false representation he must plead, prove and obtain a fact finding that the representation was a material one, upon which he relied and was induced to act, and that it was made with the intent to induce his entry into the contractual relation. Clark v. National Life & Accident Ins. Co., 1947, 145 Tex. 575, 200 S.W.2d 820, and cases cited. It is to be noted that the company does not contend that it is entitled to such a finding as a matter of law. We do not agree with the company’s argument (with authorities cited), that jury findings that the misrepresentations were material to the risk eliminated any necessity to obtain the finding that they were with the intent to induce the contract.

An alternative cross-assignment is that the jury’s negative findings or refusal to find that the misrepresentations aforementioned were wilfully made with the intent to induce the issuance of the policy were against the great weight and preponderance of the evidence. Were the company’s contention sustained the result could only occasion a remand of the cause were the judgment for the plaintiff upon a phase of the case which we have already determined should be retried for other reasons. However, we will state that we have examined the contention and the cross-point made thereupon and overrule it.

Other contentions of the company by cross-points, even if sustained, could only occasion a remand of the cause for another trial. It would seem unnecessary to pass upon them. They concern the matter of evidence contended to have been erroneously admitted and the argument to the jury bearing thereupon, and also the matter of evidence excluded that the company believes should have been admitted. In view of the necessity of another trial we will state that we have examined the contentions of the company and reached the conclusion that no reversible error is reflected thereby.

Although we are of the opinion that plaintiff would not be entitled to recover on the accident feature of the policy under the evidence in the record before us we do not believe it would be proper to affirm the trial court’s judgment notwithstanding the verdict in such respect. We treat the whole case as embodying an indivisible cause of action and the controversy as a unit and inseparable. 4 Tex.Jur.2d, p. 459, “Appeal and Error — Civil”, sec. 874, “Severability of judgment or issues”. Despite the fact that the appeal is from a judgment notwithstanding the verdict the appellee company has presented by means of cross-points such error as would have prevented an affirmance of the judgment had same been entered in harmony with the verdict. Hence the proper order would be to remand the cause for a new trial rather than merely to the trial court with instructions to enter judgment and then hear a motion for new trial. Happ v. Happ, 1942 (Tex.Civ.App., San Antonio), 160 S.W.2d 227, 231, writ ref. w. m., interpreting Texas Rules of Civil Procedure, rule 324 “Prerequisites of Appeal”.

Judgment reversed and cause remanded for another trial.

BOYD, J., concurs.

RENFRO, J., dissents.

BOYD, Justice

(concurring).

I agree to the reversal ordered by the court, but in part for reasons other than those assigned by Chief Justice MASSEY.

RENFRO, Justice

(dissenting).

In my opinion suicide is the only reasonable hypothesis that is consistent with the evidence in the case. On authority of Supreme Court decisions, including Combined American Insurance Company v. Blanton, 353 S.W.2d 847, and Grand Fraternity v. Melton, 102 Tex. 399, 117 S.W. 788, I would sustain the trial court’s judgment to the effect that the evidence established conclusively that the insured’s death resulted from suicide, and that there was no evidence of probative force that his death resulted from accidental bodily injuries.

I would affirm the judgment.


author: GRISSOM, Chief Justice.

text:
    MRS. BAIRD’S BAKERIES, INC., Appellant, v. Bobby Lewis ROBERTS et al., Appellees.
    No. 3684.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 21, 1962.
    Rehearing Denied Oct. 12, 1962.

      McMahon, Smart, Sprain, Wilson & Camp, Abilene, for appellant.
    Scarborough, Black & Tarpley, Abilene, L. H. Welch, Breckenridge, for appellee.
   GRISSOM, Chief Justice.

On September 5, 1959, at about 1:00 o’clock in the afternoon, Bobby Lewis Roberts, age thirteen, was riding his father’s motorcycle east on Highway 180 and Walker Street in the City of Breckenridge. Mr. Pennington, an employee of Mrs. Baird’s Bakeries, Inc., had parked said company’s bakery truck and trailer, about 45 feet in length, in front of the company’s warehouse on the south side of Walker Street. This was Pennington’s last bread delivery for the day and he was in a hurry to return to Abilene. The truck was facing east. About 60 feet to the west there was a street intersection and a block east of that intersection there was another. Pennington saw Bobby riding the motorcycle east when Bobby was six or seven hundred feet west of the parked truck. Thereupon, Pennington drove the truck to his left, in the middle of the block, north and slightly west across said street and highway and across two solid yellow lines 4 feet apart at the center of the highway. While Pennington was in this position, with the truck turning toward the west on the north side of the highway and the trailer occupying all but about ten feet of the south side of the highway, Bobby drove the motorcycle out of a lower portion of said highway to the west and ran into the trailer. The motorcycle was demolished and Bobby suffered severe injuries. Bobby and his father sued Mrs. Baird’s Bakeries, Inc., for damages.

Pennington testified, in effect, that he saw Bobby when he was six or seven hundred feet to the west as Pennington started turning across the highway; that he did not see Bobby again until Bobby was two hundred feet away and approaching the truck at 60 miles per hour and that there was nothing he could then do to avoid the collision. The paved portion of the highway is one hundred feet wide. At the place of the collision and for about two miles through the city the highway was marked with two solid yellow stripes painted on the highway four feet apart at its center with the lines unbroken except at street intersections. There was no material dispute about what Pennington did. Plaintiffs’ testimony was to the effect that Bobby was approaching the truck at about thirty miles per hour while defendant’s testimony is that he was driving about sixty miles per hour.

A jury found that (1) Pennington attempted to turn the truck to his left across the yellow stripes on the highway; that (2) Pennington’s failure to turn at an opening or dividing section, instead of across the yellow stripes, was negligence (3) and a proximate cause of the collision; that (4) Pennington failed to keep a proper lookout, (5) which was a proximate cause of the collision; that (6) Pennington attempted to turn left without giving a signal of his intention to do so and that (7) this was negligence and (8) a proximate cause of the collision; that (9) prior to the collision Bobby was in a perilous position; that (10) before Pennington commenced turning left he saw Bobby approaching on his motorcycle; that (11) Pennington knew, or should have known, of Bobby’s perilous position before he commenced turning left; that, (12) having due regard for his own safety and the safety of the truck, Pennington could have avoided the collision by the exercise of ordinary care; that (13) Pennington failed to exercise ordinary care to use the means at hand to avoid the collision and that (14) such failure was a proximate cause of Bobby’s injury; that (IS) the collision was not the result of an unavoidable accident; that (16) $5,000.00 would compensate Bobby’s father for the damages suffered by him; that (17) $40,000.00 would compensate Bobby for his injuries; that (18) Bobby was not driving the motorcycle at an excessive rate of speed; that (21) Bobby did not fail to keep a proper lookout; that (23) immediately prior to the collision Bobby turned to his left but that (24) this was not negligence; that (26) Bobby did not drive across the center line of the highway; that (29) Bobby was not operating the motorcycle with the consent of his parents; that (35) Bobby’s father and mother failed to equip the motorcycle with a device to prevent him from taking it without their consent but that (36) such failure was not negligence. The court rendered judgment in accord with the verdict and the defendant has appealed.

The defendant alleged that Pennington was not making a U-turn, but was driving across the highway for the purpose of making a left-hand turn; that where the accident occurred the blocks along the highway are very long and that it was customary for the defendant and other drivers whose businesses were located on both sides of the highway, or their patrons, to drive across the highway for the purpose of making a left turn. Plaintiff excepted to the allegations of custom because, if true, they did not constitute a legal justification for a violation of the law. The defendant asked the court to instruct the jury that in determining whether Pennington was guilty of negligence it could consider such custom. It offered evidence of custom. The court struck said pleading, refused to permit the introduction of proffered evidence relative to custom and refused to submit the tendered instruction. Appellant’s points 1 and 3 complain of the striking of said pleading and the refusal to submit said instruction. Point 2 complains of the refusal to permit the Chief of Police to testify that it was customary for motorists patronizing business establishments on both sides of the street to cross the yellow stripes ■when turning either left or right, without going to an intersection, and further that it was not considered by the police to be a violation of the law and no tickets were given therefor. Appellees answer the contention that said rulings constitute reversible error by saying thtat there was no allegation that the custom was known by Bobby or Pennington and because appellant proved that the yellow stripes in the center of the highway continued for several miles through Breclcenridge and were broken only at intersections and that any one making a U-turn in the middle of a block was violating the law. Appellees also contend that Pennington’s act in turning left in the middle of the block and driving across the solid yellow lines in the center of said street and highway was a violation of the statutes and, therefore, that the proffered testimony was not admissible because evidence of a custom which is in violation of a statute is not admissible. The general rule is to that effect. 172 A.L.R. 1142; 25 C.J.S. Customs and Usages § 10, p. 91; Wood v. Melton, 179 Kan. 128, 293 P.2d 252; Robinson v. Wichita County, Tex.Civ.App., 106 S.W.2d 769, 772, (Writ Dis.); Peaslee-Gaulbert Corporation v. Hughes, Tex.Civ.App., 79 S.W.2d 149, (Writ Ref.). Points 1, 2 and 3 are overruled.

Article 6701d, Section 62, Vernon’s Ann. R.C.S. provides:

“Whenever any highway has been divided into two (2) roadways by leaving an intervening space or by a physical barrier or clearly indicated dividing ■section so constructed as to impede
vehicular traffic, every vehicle shall be driven only upon the right-hand roadway and no vehicle shall be driven over, across, or within any such dividing space, barrier, or section, except through an opening in such physical barrier or dividing section or space or at a crossover or intersection established by public authority.”

No cases are cited which hold that the space enclosed by the two solid yellow lines in the center of said street and highway constitutes an intervening space or dividing section within the meaning of said statute and we have found none. We think it does. See Coleman v. Manuel, Tex.Civ.App., 244 S.W.2d 256, 257, (Ref. N.R.E.); Jessee Produce Company v. Ewing, Tex.Civ.App, 213 S.W.2d 750; Wood v. Melton, 179 Kan. 128, 293 P.2d 252, 255.

We overrule appellant’s point 4 in which it contends the court erred in refusing to admit testimony with reference to Bobby’s reckless conduct with the motorcycle on occasions wholly disconnected from the one in question. Glass v. Houston Singing Soc., Tex.Civ.App., 192 S.W.2d 300; Mayton v. Sonnefield, Tex.Civ.App., 48 S.W. 608; Chuppe v. Gulf Iron Works, Tex.Civ.App, 306 S.W.2d 177.

Appellant’s points 5, 6 and 7 are that the court erred in overruling its objections to issues 1, 2 and 3. Appellant objected to issue 1 because it was immaterial and inquired about an undisputed fact, there being no dispute about the fact that Pennington drove the truck across the yellow stripes; because the submission of such undisputed issue was made “solely for the purpose of prejudicing the jury” against appellant, in that, the jury would have to answer issue 1, “Yes”, and “they will answer all subsequent issues against the defendant.” It objected to said issue because it was a comment on the weight of the evidence and amounted to an instruction that driving across the yellow stripes was a violation of the law. We agree with appellant that issue 1 submitted an undisputed fact. It was undisputed that Pennington drove across the yellow stripes. When this case was tried there was no decision applying facts similar to the material facts in this case to Article 6701d, Section 62. Further, the court had to determine whether said statute was designed to prevent such an occurrence. We think it was. Issue 1 should not have been submitted but we do not think that its submission was harmful to appellant. Appellant says that such submission constituted a comment on the weight of the evidence and amounted to an instruction that Pennington violated the statute in driving across the yellow stripes. Under our interpretation of said statute, there being no evidence excusing such violation, Pennington was guilty of negligence per se. Mundy v. Pirie-Slaughter Motor Company, 146 Tex. 314, 206 S.W.2d 587, 588. We do not think the effect of the submission of issue 1 was to cause the jury to answer other issues in favor of the plaintiff or that it was a comment on the weight of the evidence. Appellant’s remaining objections to the submission of said issues are substantially answered by our interpretation of said statute. We do not think that such submission was reasonably calculated to cause or that it probably did cause the rendition of an improper verdict. We have considered appellant’s authorities and, where otherwise applicable, have concluded that they may be distinguished by a difference in the facts.

Appellant says the judgment should be reversed because the court refused to submit its requested issues inquiring whether at the time the truck driver saw Bobby the second time he was acting in an emergency and whether after the emergency arose its driver did what an ordinary prudent person would have done. We recognize the established rule that such a person as the truck driver who by the negligence of another, such as Bobby, and not by his own negligence, is suddenly confronted by an emergency and compelled to act instantly to avoid a collision is not guilty of negligence if he makes such a choice of alternative courses of action available to him as a person of ordinary prudence placed in such a position might make, although he did not make the wisest choice. However, we think the issue of sudden emergency at the time inquired about was not raised. Where the issue of sudden emergency is raised, the jury in determining the propriety of the actor’s conduct may take into account the fact that he was in a position where he must make a speedy decision "between alternative courses of action’’ available to him and that, therefore, he has no time to make an accurate forecast of the effect of his choice. Restatement of the Law of Torts, Section 296, page 796; 80 A.L.R.2d 16, 17; Frangos v. Edmunds, 179 Or. 577, 173 P.2d 596, 609; Christensen v. Bergmann, 148 Cal.App.2d 176, 306 P.2d 561, 567; Connor v. Pacific Greyhound Lines, 104 A.C.A. 930, 232 P.2d 500, 506; Johnson v. Barnes, 55 Wash.2d 785, 350 P.2d 471, 474. There was no contention that appellant’s truck driver, at the time he says he saw Bobby 200 feet away travelling at a speed that would cause him to strike appellant’s truck in less than three seconds, saw Bobby in time to prevent the collision by making a choice of alternative courses of action available to him, either of which might have avoided the collision. Under such circumstances he could only have tried to do one of two things, stop or continue moving. Neither could have avoided the collision. The real issue as to the truck driver’s responsibility is determined by reference to his action which brought about the dangerous situation when, in violation of a statute intended to prevent such a happening, seeing Bobby driving a motorcycle in his direction six or seven hundred feet to the west, he turned his truck to the left in the middle of the block across the yellow stripes and blocked much of the highway. His responsibility is not to be determined by what he did when he saw Bobby emerging from a low place in the highway, as he says, two hundred feet away and travelling sixty miles per hour. The truck driver testified that when he saw Bobby the second time that he could then have done nothing which would have prevented the collision. No one contends to the contrary. No one contends that if he could then have stopped, with less than three seconds intervening, that he could have avoided the collision. He then had no choice of alternative courses of action that might have avoided the collision. In addition, the alleged sudden emergency, if any, was created by his own tortious act in illegally turning across the highway and yellow stripes in the center of the block in violation of the statute knowing that Bobby was six to seven hundred feet west driving a motorcycle toward him. There are other reasons why failure to submit defendants requested issues on emergency do not constitute reversible error. In Stephens v. McCarter, Tex.Civ.App., 355 S.W.2d 93, 95, a jury found that defendant failed to timely apply his brakes and failed to keep a proper lookout. But, it also found that immediately prior to the collision the defendant was acting in an emergency and that after the emergency the defendant did all that a prudent person would have done to avoid the collision. The defendant contended that the findings that defendant was negligent in failing to timely apply his brakes and in failing to keep a proper lookout were in conflict with the findings on emergency. The court said “Where the jury has found defendant guilty of negligence proximately causing a collision, a finding of emergency is not in conflict with the findings of primary negligence, and absent findings that the emergency constituted the sole proximate cause of the collision, the specific findings of negligence override the general emergency finding, and the emergency issue will be disregarded in rendering judgment.” The decisions in Booker v. Baker, Tex.Civ.App., 306 S.W.2d 767 (Ref. N.R.E.) and City Transportation Co. of Dallas v. Vatsures, Tex.Civ.App., 278 S.W.2d 373, (Writ Dis.) are to the same effect. If the court had submitted said issues and the jury had answered same in favor of the defendant it would not have affected the judgment.

We have considered all of appellant s points and have concluded that reversible error is not shown. The judgment is affirmed.


author: COLEMAN, Justice.

text:
    CITY OF HOUSTON et al., Appellants, v. RIVER OAKS GARDEN CLUB, Appellee.
    No. 13967.
    Court of Civil Appeals of Texas. Houston.
    July 12, 1962.
    On Motion for Rehearing Sept. 20, 1962.
    Second Motion for Rehearing Denied Oct. 11, 1962.

      R. H. Burks, City Atty., Homer T. Bouldin, Senior Asst. City Atty., Houston, for appellant.
    Butler, Binion, Rice & Cook, Tom Alexander, Robert B. Reynolds, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from the judgment of the District Court of Harris County that certain property owned by appellee was exempt from taxation by appellants, City of Houston and Houston Independent School District.

The trial court filed findings of fact and conclusions of law, to which appellants properly preserved objections. After a careful consideration of the evidence, we find that the findings of fact are properly supported by competent testimony.

Appellee claims exemption from taxation by reason of the provisions of Sections 14 and 20 of Article 7150, Vernon’s Ann.Civ. St., providing as follows:

“14. Art Galleries, etc.- — All property belonging to Art Leagues and Societies of Fine Arts, whether incorporated or not, which are devoted wholly and without charge to the promotion of education and learning, including Art Galleries and exhibits therein contained, the land upon which the same are situated, which is devoted exclusively to such purposes, and also all land, money, pictures and other works of art and all other personal property which may be necessary and in actual use for the purpose of carrying out said educational feature. * * * ”
“20. American Legion and other Veterans’ Organizations.— * * *, or any non-profit organization chartered or incorporated under the Texas Statutes for the purpose of preserving historical buildings, sites and landmarks, not leased or otherwise used with a view to profit, shall be exempt from taxation in this State. ⅝ *

This portion of Sec. 20 is attacked as being unconstitutional.

Section 2 of Article 8 of the Constitution of Texas, Vernon’s Ann.Civ.St. provides that the legislature may by general law exempt from taxation certain property, including all buildings used exclusively and owned by persons or associations of persons for school purposes. The Constitution also provides that this power to exempt from taxation may be exercised in favor of “institutions of purely public charity”.

In Benevolent & Protective Order of Elks Lodge No. 151 v. City of Houston, Tex.Civ App., 44 S.W.2d 488, error ref., the court stated:

“In the above constitutional provision, the word ‘purely’ is intended to modify the word ‘charity’ and not the word ‘public,’ so as to require the institution to have a wholly altruistic quality and exclude from it every private or selfish interest or profit or corporate gain. City of Houston v. S.[cottish] R.[ite] B.[enev] Ass’n, 111 Tex. 191, 230 S.W. 978. In law, the word ‘purely’ is used in the sense of and the equivalent to ‘only,’ ‘wholly,’ ‘exclusively,’ ‘completely,’ ‘entirely,’ and ‘unqualifiedly.’ 51 C.J. 100. Therefore, for an institution to be one of ‘purely public charity,’ it must be one whose property is used wholly and exclusively for charitable purposes.”

The general classes of charitable purposes were set out in Powers v. First Nat. Bank of Corsicana, Tex.Civ.App., 137 S.W.2d 839, aff’d 138 Tex. 604, 161 S.W.2d 273, as follows:

“A public charity or trust is one for the benefit of the public at large or some substantial and indefinite portion of it. Charitable purposes include (a) the relief of poverty; (b) the advancement of education; (c) the advancement of religion; (d) the promotion of health; (e) governmental or municipal purposes; and (f) other purposes the accomplishment of which is beneficial to the community. Restatement of the Law of Trusts, p. 1140, sec. 368; 10 Amer.Jur. 621; 14 C.J.S., Charities, page 439, § 12; Scott on Trusts, 1972; Perry on Trusts & Trustees, Vol. 2, p. 1184.”

We conclude that the purpose of preserving historical buildings under the restrictions imposed by Section 20 is “a purpose the accomplishment of which is beneficial to the community” and, therefore a “purely charitable purpose” and that an institution formed for that purpose as well as for the purpose of promoting education and learning in the field of fine arts would be an institution of purely public charity. Section 20 purports to exempt from taxation all buildings, together with the lands belonging to and occupied by “ * * * any non-profit organization chartered or incorporated under the Texas Statutes for the purpose of preserving historical buildings,” provided that such buildings and lands are not leased or otherwise used with a view to profit.

The constitutional provision relating to institutions of purely public charity has no specific requirement that the use made of the property for which tax exempt status is claimed be the same as the charitable purpose or purposes for which the organization was formed. Section 14 of Article 7150, V.A.C.S., however, makes this requirement. The trial court found that several organizations used the property for meetings of an educational nature. The use made of the property was controlled by appellee, but the organizations themselves were not affiliated with appellee or under its control. We think the statute does not require that the use of the premises be exclusive in the organization owning the property so long as the property is used solely for the purpose of promoting education and learning.

However, the Supreme Court of Texas in Morris v. Lone Star Chapter No. 6, R. A. M., 68 Tex. 698, 5 S.W. 519, determined that the constitutional provision under consideration should be read “all buildings used exclusively and owned by institutions of purely public charity,” and further stated: “the exclusive use meant being the actual and direct use for the purposes of the association, * * Although the language of the constitutional provision has been broadened, this interpretation of these particular words has been restated in many subsequent cases. City of Houston v. Scottish Rite Benev. Ass’n, 111 Tex. 191, 230 S.W. 978; State v. Settegast, Tex.Com.App., 254 S.W. 925; Benevolent & Protective Order of Elks Lodge No. 151 v. City of Houston, supra; Little Theatre of Dallas, Inc. v. City of Dallas, Tex.Civ.App., 124 S.W.2d 863.

In the case of Santa Rosa Infirmary v. City of San Antonio, Tex.Com.App., 259 S.W. 926, the court said:

“The constitutional requirement is twofold; the property must be owned by the organization claiming the exemption; it must be exclusively used by the organization, as distinguished from a partial use by it, and a partial use by others, whether the others pay rent or not.”

The courts have refused exemptions where part of the property was leased to others and the proceeds used for the institution’s charitable purposes. State v. Settegast, supra; City of Longview v. Markham-McRee Memorial Hospital, 137 Tex. 178, 152 S.W.2d 1112.

In City of Houston v. Scottish Rite Benev. Ass’n, supra, the court said:

“So no building comes within the exemption authorized by the Constitution to ‘institutions of purely public charity’ unless it is both owned and used exclusively by such an institution. * * * The actual, direct use must be exclsuive on the part of such an institution as is favored by the constitutional provision.”

In Benevolent & Protective Order of Elks Lodge No. 151 v. City of Houston, supra, the court said: “Under the law, for the property of appellant to be exempt from taxation, it must not only be owned, but also be used exclusively, by an institution of purely public charity.”

Appellee succinctly states its position in these words:

“The requirement is that the Garden Club use the premises exclusively for the promotion of education and learning, without charge. The fact that other organizations of the same purpose and use-pattern are allowed to assist in fulfilling that purpose, under the control of the Garden Club, meets the letter and the theory of Section 14 and Article 8, Sec. 2 of the Constitution, as construed by our Courts.”

In support of this position it cites Morris v. Lone Star Chapter No. 6, Royal Arch Masons, 68 Tex. 698, 5 S.W. 519, where the Supreme Court said: “the exclusive use meant being the actual and direct use for the purposes of the association, * * Appellee further contends that the Supreme Court, in City of Houston v. Scottish Rite Benev. Ass’n, supra, apparently attached little significance to the stipulated fact that the building was used as a meeting place by various Masonic organizations. Appellee’s principal reliance, however, rests on the case of Santa Rosa Infirmary v. City of San Antonio, Tex.Com.App., 259 S.W. 926. In this case the Sisters of Charity of the Incarnate Word, an organization incorporated for purely charitable purposes, conveyed a hospital, which it had previously operated, to another corporation organized for a purely charitable purpose, the Santa Rosa Infirmary. The latter corporation was controlled by the former. The Santa Rosa Infirmary operated the hospital in the usual manner and at a profit. Appellee particularly stresses the following quotation :

“No question is raised here of the ownership of the property, and it seems to us that the exclusive use of it by the Sisters of Charity of the Incarnate Word is equally as indisputable. It was a hospital enterprise, and as such necessarily presupposed patients, surgeons, drugs, nurses, surgical equipment, clinics, and the usual accompaniments of such an institution. Notwithstanding the presence of all these in and about the premises the hospital was exclusively used by its owners for its avowed purpose of a general hospital, just as effectually as a hotel could be said to be exclusively used by its proprietor, notwithstanding guests who paid for their rooms occupied them.
“There is no claim here that any part of the hospital building was leased out in the ordinary sense, but it is insisted that, because the major part of the rooms in the hospital were used to take care of pay patients, and because surgeons, not themselves engaged wholly in a charitable work, were permitted to use the operating rooms for certain fixed charges imposed upon their patrons able to pay, and because a certain ward was devoted to the charitable work of St. Luke’s Clinic, and because the dispensary or small drug store in the building sold drugs to its pay patients for a profit, the use of the property by the Sisters of Charity became thereby nonexclusive by them, and also deprived the organization of its characteristic as a purely public charity. The Constitution does not in terms require a charitable institution, if it may claim exemption from taxation, to use its buildings exclusively for charitable purposes, as it does require in the case of educational institutions that they be used exclusively for educational purposes, but the requirement is only that the buildings be used by the charitable institution, as heretofore pointed out.”

However, the court further stated:

“St. Luke’s Clinic was wholly charitable, and was conducted by the very same Sisters who controlled and operated all the remaining part of the hospital activities. It was the same owner under a separate designation merely treating eye, ear, nose, and throat troubles of charity patients exclusively, as distinguished from the remaining general hospital work of the institution for both its pay and charity patients. The operation of the drug store in the building seemed in its net result to be a losing rather than a profitable venture. It furnished drugs only to the patients of the hospital, for pay and profit to those able to pay, and free to its charity patients. It was also operated exclusively by the same Sisters conducting the general enterprise.”

In view of the admonition found in many cases that “Exemptions from taxation are never favored, and in the construction or interpretation of a law extending exemption to any citizen or class of property all doubts are resolved against the exemption. * * * ” (Markham Hospital v. City of Longview, Tex.Civ.App., 191 S.W.2d 695), we have reluctantly reached the conclusion that the use of the property in question by other organizations, even though such organizations have similar purposes and use patterns since these organizations cannot be said to be the “same owner under a separate designation,” renders the use by appellee nonexclusive and destroys the tax exempt status of the property. While the Supreme Court in the case of Harris v. City of Ft. Worth, 142 Tex. 600, 180 S.W.2d 131, said:

“If the language used in the Constitution or in an Act leaves its intent obscure, the courts may resort to certain aids in the construction of same, such as the purpose sought to be accomplished, the history of the legislation, the public policy of the State in regard thereto, etc. 39 Tex.Jur. p. 176, § 93, p. 232, § 124; 9 Tex.Jur. p. 438, § 26. * * *
“The Constitution and the Statutes of this State evince a liberality in the exemption from taxation of property for educational or religious purposes.”

neverthless we are of the opinion that we cannot depart from the well established rule that the use of property devoted to charitable purposes must be exclusive in the owner.

We find it unnecessary to discuss other questions raised by appellants’ brief.

The judgment of the trial court is reversed and judgment is here rendered that the property in question is not exempt from taxation by appellants.

Appellee’s motion for rehearing is sustained in part and this opinion shall be substituted for our original opinion, which is hereby withdrawn.


author: DIXON, Chief Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Guy William DAWSON, Jr., Appellee.
    No. 16130.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 28, 1962.
    Henry Wade, Dist. Atty., and John J. Orvis, Asst. Dist. Atty., Dallas, for appellant.
    Will Wilson, Atty. Gen., and F. R. Booth, Asst. Atty. Gen., amicus curiae.
    Cookston & Wise, Dallas, for appellee.
   DIXON, Chief Justice.

This is an appeal from a judgment of a County Court reversing and setting aside an order of the Texas Department of Public Safety suspending the automobile driver’s license of appellee, Guy William Dawson, Jr. pursuant to Art. 6701h, Vernon’s Ann.Civ.St. The Statute is known as the Safety Responsibility Law.

On October 6, 1961, a car driven by Dawson ran into and injured Herbert H. Man-gum on a street in the City of Dallas, Texas. On October 16, 1961, Dawson mailed his report of the accident to the Department of Public Safety at Austin, Texas.

The car driven by Dawson was registered in the name of his wife, Hiltrud E. Dawson. Neither Dawson nor his wife carried liability insurance. Neither of them within twenty days filed evidence as provided by Sec. 5(a) of the Statute, of a release from liability, or of an adjudication of non-liability, or of a written agreement to pay claims for damages arising out of the accident. The Department determined that the sum of $2000.00 should be deposited as security as provided by Sec. 5(b) of the Statute. Dawson and his wife were so notified, but they failed to deposit the said sum as security.

Thereafter the Department by notice dated December 19, 1961, informed Dawson that his driver’s license would be suspended as of January 9, 1962. Also, by notice addressed to Mr. Hiltrud E. Dawson, Dawson’s wife was informed that her registration certificate as owner of the automobile was suspended.

It will be observed that Dawson’s suspension order was not made by the Department within the sixty day period provided in Sec. 5(b) of the Statute. The order was made on the sixty-second day after receipt by the Department of Dawson’s report of the accident.

Dawson appealed to County Court at Law No. 1 pursuant to Sec. 2(b) of the Statute. His wife did not appeal. On February 9, 1962, the Court entered an order staying the suspensions until trial of the case.

On March 9, 1962, judgment was entered in Dawson’s favor setting aside the Department’s suspension order and decreeing that he retain possession of his driver’s license. Hiltrud E. Dawson had been named as a party in the pleadings, but she was dismissed as a party since she had not perfected an appeal. The stay order as to her was dissolved.

The constitutionality of the Safety Responsibility Law has been upheld. Gillaspie v. Department of Public Safety, 152 Tex. 459, 259 S.W.2d 177.

The principal question to be decided on this appeal is whether the 60-day period provided in Sec. 5(b) of the Act is mandatory or directory — that is, whether the Department, if it suspends an operator’s license, must do so within sixty days after receiving the report of an accident, and is prohibited from doing so thereafter.

The trial court filed findings of fact and conclusions of law. One of the court’s conclusions was as follows:

“The requirements of article 670 lh, Section 5(b) which requires that ‘the Department shall, within 60 days after the receipt of such report * * * suspend a license of each operator * * * ’ is mandatory and failure of the Department (defendant) to act within the time limit set by said article renders their action in suspending the operators license of Guy W. Dawson Jnr. invalid.”

The above conclusion is attacked by appellant, Texas Department of Public Safety, in its Point of Error No. 4, in a brief filed by Henry Wade, District Attorney of Dallas County. It is also attacked in a brief filed with our permission by Will Wilson, Attorney General as Amicus Curiae. Ap-pellee in his fourth counterpoint asserts that the conclusion is a correct statement of law.

We are of the opinion that the court was in error in reaching the quoted conclusion. The provision in question is directory, not mandatory.

The case which seems to come nearest to being in point with the instant case is McKee v. State, Tex.Civ.App., 318 S.W.2d 113, in which the court construed Vernon’s Ann.P.C. Arts. 725b, Sec. 15, and 725d, Secs. 4(c-e) and 5. The Statute provides for the forfeiture of motor vehicles used in contraband. It contains a provision that the time for hearing of the forfeiture shall be set within 30 days from the date of the filing by the owner of a verified answer. It was held that such provision is directory, not mandatory.

In Janssen v. Texas Department of Public Safety, Tex.Civ.App., 322 S.W.2d 313, 315, referring to the Statute now before us, Art. 6701h, the court said:

“In spite of the erroneous procedure, the license and registrations should be suspended if the admitted facts, as a matter of law, subject Janssens to the penalties of the Safety Responsibility Act.”

The fundamental rule in statutory interpretation is to give effect to the legislative intent. Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943. In applying that rule we are impressed by the caption and the emergency clause of Art. 6701h, which appear in House Bill No. 219 (Texas Motor Vehicle Safety Responsibility Act), 52nd Legislature, Texas Session Laws 1951, pp. 1210 and 1227.

We quote part of the caption:

“An Act to encourage safer use of motor vehicles on the streets and highways of Texas and to deny the privilege of driving to reckless and financially irresponsible persons by requiring security of owners and operators of motor vehicles following accidents and by providing for proof of financial responsibility for the future; defining certain words and phrases; * *

We quote also the emergency clause:

“The fact that thousands of motor vehicles are being operated on the highways of Texas by financially irresponsible owners and drivers who are causing untold loss of life and property and who are failing to pay for the damages thus caused, and the further fact that it is the intent and purpose of this Act to provide a means of protecting the conscientious and thoughtful motorist, thereby benefiting all the citizens of this State, constitutes an emergency * * (emphasis ours)

The language of the Legislature, above quoted, suggests to us that it was not the legislative intent to deny the benefits of the Act to the citizens of the State merely because the Department might fail to act within the thirty day period in question.

Generally provisions regulating the duties of public officers and specifying the time for their performance are held to be directory. This is usually the proper interpretation unless the Statute goes further and denies the exercise of the power after such time. Chisholm v. Bewley Mills, supra; State v. Fox, Tex.Civ.App., 133 S.W.2d 987, 990; Federal Crude Oil Company v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56; Gibson v. Davis, Tex.Civ.App., 236 S.W. 202, 210; City of Uvalde v. Burney, 145 S.W. 311, 312; Taney County v. Empire District Electric Company, Mo., 309 S.W.2d 610; 67 C.J.S. Officers § 114, p. 404.

In Sutherland on “Statutory Construction” 3rd Ed., Vol. 3, p. 102, it is said:

“For the reason that individuals or the public should not be made to suffer for the dereliction of public officers, provisions regulating the duties of public officers and specifying the time for their performance are in that regard generally directory.”

The court found that “ * * * the Dawson car had not left its legal parking spot, and was still legally parked at the time of the injury in question.” This finding is important because it is provided in Sec. 6, par. 2 of the Act that Sec. 5 shall not apply to the operator of a car legally parked.

The court’s finding and conclusion are obviously erroneous, as is shown by the admissions of Dawson himself in his testimony. We quote the pertinent part of Dawson’s testimony on this subject:

“Q. All right, will you tell us what happened in that motor vehicle accident?
“A. I collided with this other car in backing up, I collided with another automobile. * * *
“Q. (By Mr. Orvis) There was a person injured in that motor vehicle accident?
“A. Yes, sir.
“Q. Do you know what his name is?
“A. Herbert Mangum.
“Q. That was caused by the vehicle you were operating colliding with him ? * * *
“A. I had some trouble getting the car started because it was a little chilly and it took a little while to warm it up.
“Q. Did you let the car roll backward?
“A. No, it did not roll, I started it backward.
“Q. You started the engine and had the car in gear?
“A. Yes, sir.
“Q. Well, did you have it in reverse ?
“A. Sir?
“Q. Did you have it in reverse?
“A. It was in reverse.
“Q. Did you, at the time that you were going backward, had you cut your wheels to get out of the parking space?
“A. No, I backed up to cut around a car that was parked immediately in front, I couldn’t cut and pull straight out, so I backed straight out.
“Q. About how far did you back?
“A. About 6 feet I imagine, actually a little bit farther than I needed to, to clear the car.
“Q. And did Mr. Mangum — how was Mr. Mangum’s car situated?
“A. It was parked on the same side of the street that mine was and was facing the opposite direction and I didn’t see him when I got into the car, I don’t know whether he was there or not, I didn’t notice, but he was at the back of the car, opening his trunk to get some tools out.
“Q. And your bumper caught him between his bumper and yours, is that right?
“A. It was at a right angle and his leg was trapped between the two bumpers. * * * ”

Appellee says that only a partial statement of facts has been brought forward, hence all reasonable presumptions will be indulged in favor of the trial court’s judgment. The rule relied on by appellee is not applicable here. Appellee’s own admissions as disclosed in the excerpts from his testimony completely rebut any presumption that the car was parked at the time Mangum was injured. The car was in motion, in reverse gear, with its motor running. It was not “legally parked.” Janssen v. Texas Department of Public Safety, 322 S.W.2d 313, 316.

Appellant’s fourth point on appeal is sustained. Appellee’s fourth counterpoint is overruled.

Appellant’s first, second and third points on appeal raise procedural questions which are immaterial in view of our sustaining appellant’s fourth point. For that reason we shall not pass on said points.

Appellee’s answers to appellant’s requests for submission and his testimony present a full development of the facts in this case. Undoubtedly the State Department of Public Safety properly suspended appellee’s operators license, as provided by Art. 6701h, V.A.C.S., the Safety Responsibility Law. Therefore the judgment of the trial court will be and it is reversed, and judgment is here rendered upholding and affirming the order of the Texas Department of Public Safety suspending the automobile driver’s license of appellee Guy William Dawson, Jr.


author: NORTHCUTT, Justice.

text:
    INTERNATIONAL HARVESTER COMPANY, Appellant, v. C. E. FARIS et al., Appellee.
    No. 7173.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 24, 1962.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellant.
    Douglass, Thompson & Douglass, Pampa, for appellee.
   NORTHCUTT, Justice.

This is a venue case. The plaintiffs, C. E. Faris, et al., will hereafter be referred to as appellees and the International Harvester Company as appellant. Appellees brought this suit in the District Court of Gray County against Utility Oil Company, a Texas corporation, hereinafter called Utility, and International Harvester Company, a foreign corporation, for the wrongful death of J. D. Smithee and wife, Edith H. Smithee, on or about October 28, 1959, when their automobile was struck head-on by an International truck owned by Utility and driven by its employee, Don P. Losher, alleging negligence on the part of both defendants.

Appellant filed its plea of privilege to be sued in Dallas County, the county of its registered office and principal place of business in Texas, and appellees controverted, asserting venue in Gray County under Subdivision 9a and 29a of Article 1995, Vernon’s Tex.Civ.St.

The plea was heard on September 15, 1961, and order overruling the plea was entered on October 13, 1961, and from that order appellant perfected this appeal.

Appellees seek to hold venue under Sections 9a and 29a of Article 1995, V.T.C.S., and probably under Section 4 of Article 1995, V.T.C.S. The reason we say “probably Section 4” is because it is not definitely set out in the controverting plea. We are unable to find any evidence to connect the appellant with this suit other than the fact that the truck in question was an International truck. Section 9a provides as follows:

“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.”

In order for plaintiffs to hold venue in Gray County under 9a, they had the burden of establishing that an act or mission of negligence occurred in Gray County. Watkins et al. v. Goolsby et al., Tex.Civ.App., 337 S.W.2d 353. There is nothing in the record to indicate that appellant ever did any act in Gray County, and if appellant was negligent in the acts alleged, there is no evidence to indicate it was in Gray County. The record does not show the appellant ever sold the truck to anyone in Gray County. If appellant was guilty of the negligence as pleaded, there is no evidence to indicate where it happened. Furthermore, there is no evidence that Utility Oil Company had its principal office in Gray County. The question of inhabit-ancy must be determined, not by residence of any particular officer, but by the principal office of the corporation. Eastman Kodak Co. v. Boyce Motor Lines, Inc., D. C., 74 F.Supp. 981. Section 29a provides as follows:

“Two or more defendants. — Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto. As added Acts 1927, 40th Leg., 1st C.S., p. 197, ch. 72, § 2.”

No grounds can be considered in support of the venue except such as are set up in the controverting affidavit. Papas v. Harmon, Tex.Civ.App., 263 S.W.2d 269; Victoria Bank & Trust Co. v. Monteith et al., 138 Tex. 216, 158 S.W.2d 63 by Com. of App. and adopted by Sup.Ct.

Since Section 29a is ancillary to other exceptions to Article 1995, we will consider Sections 4 and 29a together. Under Section 4 it was necessary for the appellee to prove that the defendant, Utility Oil Company, had its principal office in Gray County. That was not done. It is stated in the case of Tarrant et al. v. Walker, 140 Tex. 249, 166 S.W.2d 900 as follows:

“Subdivision 29a, supra, is purely ancillary to other exceptions to Article 1995, and can never be invoked to fix venue in a given county independent of some one of those exceptions. It relates only to suits brought in a county where no defendant resides or is domiciled, but which can be maintained there against one defendant under some other exception of that article. Pioneer Bldg. & Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284, supra; Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347.”

There is no evidence that appellant manufactured, sold, or delivered the truck in Gray County, but it is shown the Utility Company purchased the truck from the International Harvester Company in Pampa. There is no evidence in any manner to connect the International Harvester Company in Pampa with appellant. Swift & Co. et al. v. Mackey, Tex.Civ.App., 216 S.W.2d 242.

A necessary venue fact to be shown under Subdivision 4 is that one of the defendants is a resident of the county of the suit. Rains-Talley Funeral Home v. Adams et al., Tex.Civ.App., 231 S.W.2d 999 and the cases there cited. These matters are not made by the introduction of the allegations of the petition or of the controverting affidavits. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 by the Com. of App. opinion adopted by Sup. Ct.

We are of the opinion the necessary facts to hold venue in Gray County were not shown. We reverse the judgment of the trial court and herein render judgment sustaining the plea of privilege of the non-resident defendant, International Harvester Company, and order venue changed as to said company to a district court of Dallas County, Texas.


text:
    W. Plowden VICK, Appellant, v. J. B. McPHERSON, Appellee.
    No. 7171.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 17, 1962.
    Rehearing Denied Oct. 22, 1962.

      Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellant.
    Nelson, McCleskey & Harriger, Lubbock, for appellee.
   NORTHCUTT, Justice.

This is an action brought by plaintiff, W. Plowden Vick, for twenty-five hundred dollars ($2,500) had and received by defendant, J. B. McPherson, paid by the plaintiff in connection with the purchase and sale of an insurance agency owned by defendant. The case was tried to the court without a jury. It was the contention of defendant that there was an oral contract made and entered into between plaintiff and defendant whereby the plaintiff contracted and agreed to purchase said agency from the defendant. The defendant also filed a cross action seeking damages because of the failure of the plaintiff to complete the deal. It was the contention of the plaintiff there was to be no final agreement until a written contract was made and agreed upon. Judgment was entered by the trial court that the plaintiff take nothing as against the defendant and that the defendant take nothing as against the plaintiff by reason of such cross action. From that judgment the plaintiff perfected this appeal. Mr. Vick will hereafter be referred to as appellant and Mr. McPherson as appellee. The appellee did not appeal from the judgment denying him any recovery by his cross action. Appellant presents this appeal upon four points of error, contending the court erred in denying appellant judgment for monies paid to ap-pellee in partial performance of the proposed contract which was never consummated; in permitting unjust enrichment of appellee since no enforcible contract existed between the parties and since appel-lee gave no consideration for the monies had and received; in allowing appellee to retain the monies paid since it was undisputed that the contract made no provision for retention of the deposit by the appel-lee as damages and in allowing appellee to retain the monies paid under the alleged oral contract which was within the statute of frauds and unenforcible.

Appellant testified if negotiations had led to a purchase of the agency, a Mr. Melton who first brought to his attention the agency could be purchased, would be a partner in the agency with a working interest and would be the managing partner of the agency. The' appellee testified they had agreed upon the terms of the sale and that appellant said it was a deal and when appellant gave him the check he said, “Cash the check, it’s a deal, it’s yours.” The check was deposited for collection and when the check was received by the paying bank, there was insufficient funds to pay the check. Appellant testified the check was given but was not to be cashed; but when the bank called the appellant about there being insufficient funds, he went to the bank and deposited sufficient funds for the check to be cashed and the check was paid.

The witness, Peterson, testified he was present when Melton and Vick said that they would take the agency on the basis that they had mapped it all out, and that within the next four or five days, Melton moved into the agency and set up office just like he owned the agency as though he had bought it. Melton then got in contact with the policy holders of the McPherson agency and told them that he and Vick had bought out the McPherson agency. All of this was done to acquaint Melton with the policy holders so as to retain the business and get renewals of the policies.

In determining whether there was an oral contract made and entered into, we must consider what was said and done between the parties. Since the trial judge was the one to pass upon all these matters, we must assume from his holding that he found the contract was made and entered into and that it was breached by the appellant and because he breached the contract, he was not entitled to any relief because of his own wrongs. The question as to whether or not the contract was made where the testimony is conflicting presents a fact issue and if it has been established, the construction of the contract is a law question. Maddox Motor Company v. Ford Motor Company, 23 S.W.2d 333 by the Com. of App. Hegar v. Tucker, Tex.Civ.App., 274 S.W.2d 752 R.N.R.E. and cases there cited.

We are familiar with a rule where the parties agree that a contract entered into by them orally shall be embodied in a formal writing and signed by them before a binding agreement is consummated that there is no binding contract until that has been done, but if they intend their agreement shall be effective from the time when it is made, it will be given effect from that time though they agree or intend that a formal writing embodying its provisions shall subsequently be prepared and signed. 10-A TJ Section 30, page 63 and the cases there cited.

When there was testimony that it was a deal and Melton took the step he did as to contacting policy holders for the purpose of renewing the policies and appellant making the payment of the twenty-five hundred dollars ($2,500) and the court holding appellant was not entitled to recover the twenty-five hundred dollars ($2,500), the court must have held the oral contract was entered into, and there was sufficient evidence to sustain such holding. Under this record, we are of the opinion that the trial court was justified in finding that every material element of the contract with reference to the sale was mutually agreed to and nothing of any material nature was left to he agreed upon. Where parties to a contract presently assent to all essential terms of agreement and intend to be presently hound, mere reference in conjunction therewith to a subsequent written contract does not render the contract entered into unenforcible. However, here the appellee did not attempt to enforce the contract. Vise v. Foster, Tex.Civ.App., 247 S.W.2d 274 R.N.R.E.

No findings of fact or conclusions of law were filed, and it is therefore our duty to uphold the judgment of the trial court, provided the implied findings which the judgment carries with it are supported by the evidence. We are of the opinion the holding and judgment entered justifies a holding that the trial court was of the opinion and so held that there was an oral contract made and entered into and that appel-lee was ready, willing, and able to carry out its terms but was breached by appellant. Fry v. Harkey et al, Tex.Civ.App., 141 S.W.2d 662, writ dismissed judgment correct.

We are of the opinion and so hold that the statute of fraud does not here apply. It is stated in Campbell v. Fair et al., 82 S.W.2d 1038 as follows:

“ ‘Plaintiff had paid part of the purchase price on the contracts, hut having concluded they were not binding on him because they did not comply with the statute of frauds as to the description of the land, he had declined to make further payments; had not demanded any deed. The defendants had not breached the contracts in any way nor threatened to do so, and did not seek in this suit to enforce them. Plaintiff read and was familiar with the contents of the contracts when he executed them, and no fraud nor mutual mistake existed in procuring them from him.’ ”
“These findings are binding upon appellant, and his right to recover the consideration paid appellees for the land is dependent upon the law as applicable to such facts. The law applicable is well settled, and, in our opinion, denies appellant a right to recover. The universal rule seems to be that a vendee may not recover of a vendor money paid as a part of the consideration for land purchased under a contract which is within the statute of frauds, unless he shows a tender of compliance on his part with the contract and a refusal of compliance on the part of the vendor. Cammack v. Prather (Tex.Civ.App.) 74 S.W. 354; Bennett v. Giles (Tex.Civ.App.) 12 S.W.(2d) 843; 27 C.J. § 438, p. 360; 25 R.C.L. § 372, p. 725, and authorities therein cited. In the last-cited authority this language is found: ‘ * * * and a court of equity in such a case will not decree a rescission of the contract and permit the vendee to recover payments made if there has been no default on the part of the vendor and he is able and willing to convey.’ ”

See also Matthewson v. Fluhman, 41 S.W.2d 204 by the Com. of App., where it is stated:

“As said by Chief Justice Cureton in Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. 273, 279, 54 A.L.R. 1397: ‘The general rule is that, where one party to an oral contract has in reliance thereon so far performed his part of the agreement that it would be perpetrating a fraud on him to allow the other party to repudiate the contract and set up the statute of frauds in justification thereof, equity will regard the case as being removed from the operation of the statute, and will enforce the contract.’ ”

We are of the opinion the trial court rendered the proper judgment in this case. The judgment of the trial court is affirmed.