author: CROSS, Judge. PER CURIAM.

text:
    Willie S. SAMUELS and Alma Jean Samuels, Plaintiffs-Respondents, v. ILLINOIS FIRE INSURANCE COMPANY, a corporation, Defendant-Appellant.
    No. 23364.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1961.
    On Motion for Rehearing Feb. 5, 1962.

      George W. Meyer, Meyer, Smith & Shute, Kansas City, for appellant.
    Lillie Knight, Kansas City, for respondents.
   CROSS, Judge.

Plaintiffs, husband and wife, sue defendant insurance company to recover damages for breach of its duty to complete repairs on their dwelling house which was damaged by fire. Defendant appeals from a judgment entered on a jury verdict awarding plaintiffs damages in the sum of $7,667.00.

On December 9, 1955, defendant issued a fire insurance policy in the amount of $5000.00 on plaintiffs’ four room bungalow for a term of five years. On April 8, 1959, and while the policy was in force, the house was partially destroyed by a fire. Plaintiffs duly notified defendant of the fire and entered into negotiations with defendant for payment of their loss.

At the request of defendant, plaintiffs furnished two estimates of the cost of repairs, amounting to $4,475.00 and $4,485.50, respectively. Defendant secured a contractor’s bid in the amount of $1719.00 and an additional estimate in the sum of $1838.00, and informed plaintiffs it would not pay more than the first named amount for the repairs. Plaintiffs were also informed that they would have to employ the contractor. Plaintiffs refused the offer and the negotiations ended.

On April 24, 1959, plaintiffs gave defendant notice in writing to repair the building in accordance with the provisions of Section 379.150, V.A.M.S., which reads as follows:

“Whenever there is a partial destruction or damage to property covered by insurance, it shall be the duty of the party writing the policies to pay the assured a sum of money equal to the . damage done to the property, or repair the same to the extent of such damage, not exceeding the amount written in the policy, so that said property shall be in as good condition as before the fire, at the option of the insured”.

Defendant thereafter employed B. E. Baer, a contractor, to repair the house at a cost of $3143.00. Baer took over the property and began the repairs during the week of July 21, 1959, but discontinued after working a few days, and abandoned the property. No further repairs were ever made.

Plaintiffs filed this suit on August 4, 1959. In their amended petition they allege that defendant was not diligent in repairing the house; that with reasonable diligence the repairs could have been completed by June 24, 1959, and at a cost not to exceed $5000.-00; that defendant, after employing its contractor to do the work in July, 1959, stopped the repairs after a few days and refused to proceed further with them; that defendant abandoned and left the house open and without protection from the weather, permitting the entry of snow and rain; that the action of those elements, during the long delay that ensued without completion of the repairs, caused the repairable portion of the house which survived the fire to become weakened, deteriorated, irreparable, and unfit for use and beyond repair, and made it necessary to tear down and remove the remaining portion of the house and to build a new structure. Plaintiffs claim damages amounting to the cost of tearing down and rebuilding the house, and their loss of its rental value.

The principal issue of fact in this case is whether it was possible to repair the damaged structure as it stood at the time of trial, so that it would be in as good condition as before the fire. Defendant so contends — plaintiffs to the contrary. Plaintiffs claim it was not possible to use any of the damaged building (except the foundation, sewer and excavation), but that it was necessary to tear down and rebuild the standing portion in order to restore it to as good condition as it was in before the fire.

The house is of frame structure, with stucco exterior, containing three rooms on the first floor and a fully finished bedroom with a large closet on the second floor. It has a full basement which contains a sleeping room, a full bathroom, a hot water tank and .a furnace. The first and second floor walls are lath and plaster. The roof is covered with asphalt shingles. The house has two porches, front and rear. A witness for plaintiffs estimated the age of the house at 20 years. Defendant’s witness estimated the house to be from 35 to 40 years old. It was agreed between the parties that the house was rented for $50.00 per month, at the time of the fire. For the previous nine years it had been leased and occupied by the same tenants.

The fire caused considerable damage to the millwork, walls and decorations in the three rooms on the first floor and in the second floor room. All the wood trim around the windows and doors was burned, and the floors and stairway to the second floor were scorched and blistered. The fire burned through the lath in many places on the walls. One exterior wall had a hole burned through it to the outside. All the windows were broken out. There were large holes in the ceilings of the first floor. The ceiling of the front porch was blistered and burned. The outside doors were burned and the guttering was destroyed. The outside stucco surface of the house was damaged and discolored by smoke.

It was plaintiffs’ testimony that soon after the fire they cleaned up the debris and boarded up the windows and doors, but that shortly after August 1,1959, they discovered that the boards had been removed and that all the windows in the house were open except those opening onto the porches, that some new window frames had been made and installed, but that the work had been abandoned. It appears that the house remained open and exposed to the weather until the date of trial, October 24, 1960.

Plaintiffs produced three witnesses who testified that the standing damaged structure was unsuitable for use in restoration of the house. Leon Maslan, an architect and consulting engineer, examined the building on October 20, 1960. He found: the windows were all out; the basement door was open; upstairs, all the windows were open; the plaster on the ceilings and walls was falling off; the floors sagged, “it was quite obvious that the water had been standing on the floors”; what remained of the light fixtures were rusted; the furnace was completely rusted out and the ducts had fallen out; freezing and thawing had destroyed the electric wiring; the plumbing pipes had rusted out; the bathroom fixtures were rusty from exposure to the weather; moisture had rusted the metal stucco support and the stucco was loosened; the studs, floors and floor joists had deteriorated, sagged and become unusable as a result of exposure to snow, rain, heat, cold, and moisture in the air; freezing and thawing had caused the mortar between the cement blocks in the foundation to deteriorate and powder out and it would take considerable work to restore the foundation; the roof was usuable. but the expense of shoring it up while the studs and flooring were replaced would be prohibitive, and it would not be possible to match the color of the shingles. The witness stated that the excavation and the main sewer could be used in rebuilding; that the cheapest construction possible is $10.00 per square foot, and that it would cost $6000 to rebuild the house, making use of the excavation, foundation and main sewer. Claude A. Bloomer, a building contractor, inspected the building in May, 1960. He testified that: the foundation was cracked and deteriorated but it could possibly be used if repaired ; the main sewer could be used in rebuilding the house; the remaining portion of the house could not be used in rebuilding because the floor joists, floors and studs would have to be removed and replaced; the interior walls and floors were not usable; a house damaged by fire and left open to the weather and moisture for 18 months would deteriorate so that the wood in the structure would not be suitable for use. The witness stated that a house could not be built for less than $10.00 a square foot and that it would cost between $6000 and $7500 to tear down and remove the unusable portion of the building and rebuild it. Robert F. Coleman, an experienced house builder, also testified that the standing portions of the house could not be repaired and used, and that it would “now” cost between $6500 and $7500 to rebuild the house.

Defendant introduced testimony to the effect that the damaged house could be repaired without being torn down and rebuilt. William G. Nelson (the contractor who submitted the original bid of $1719.00) examined the house four times. He stated that there was no deterioration in the joists, walls, studding, steps, rafters and the entire structure; and, that he could repair the building “right now” for $3792.00 and put the house back in first class condition. The witness testified that if the foundation and main sewer were the only usable parts of the building it would cost $6871.00 to rebuild the house. B. E. Baer, testified for defendant that it had employed him to make the repairs on plaintiffs’ home for an agreed price of $3143.00, that he began and performed repairs of a value of $133.40, but discontinued the work, at defendant’s request. The witness testified that he closed the windows and doors when he left the property and stated that in his opinion the house was structurally sound and could be repaired. C. P. Conway, a foreman employed by B. E. Baer, also testified on defendant’s behalf. He was in charge of the repairs which Baer started to make on plaintiffs’ house. He testified that when the work was closed down a few days later the windows and doors were boarded up and that in his opinion the house was repairable at the time of the trial. R. O. Cope, a building contractor, testified that at defendant’s request he submitted an estimate of the cost of repairing the damaged house in the sum of $1838.00. He stated that the repairs could have been made in 30 days.

Plaintiffs submitted the case on a single instruction, which is as follows:

“INSTRUCTION NUMBER ONE.
“The Court instructs the jury that when the plaintiffs gave notice to the defendant 'to repair the property in question on April 24, 1959, it was the duty of the defendant to repair said property within a reasonable time, to the extent of the damage done by said fire, not exceeding the amount of said insurance, so that said property would be in as good condition as before the fire, and the defendant became liable in damages to the plaintiffs for any damage they may have suffered as a direct result of defendant’s failure to complete said repairs, even though said damages exceed the amount of said insurance.
“You are therefore instructed that in determining the amount of plaintiffs’ damages -you should allow them such sum as you find and believe from the evidence would reasonably compensáte them for whatever damages they have suffered as a result of defendant’s failure to complete said repairs, and in this connection you may take into consideration the amount it will now cost to rebuild said property, so that it will be in as good condition as before the fire, and the reasonable rental value of said property for the loss of the use of same from the date on which you find said repairs could have been reasonably completed, to this date."

Defendant says the court erred in giving plaintiffs’ instruction because it permitted the jury to award plaintiffs’ damages, in “the amount it will now cost to rebuild said property so that it would be in as good condition as before the fire”. Instead, defendant argues, the instruction should have told the jury “the damages must be proved by the difference in the value (of the house) before and after the injury or the cost of restoration, whichever (sum) is less”. Under the facts in this case we cannot rule that the jury should have been so instructed. Defendant rests its argument for the proposition on authority of Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158. That case (which arose in Illinois and was tried under Illinois law) was brought to recover for permanent damages directly inflicted upon plaintiff’s real estate by the actual physical trespass of defendant, who wrongfully dug a ditch partly on plaintiff’s land. Water seeped from the ditch and damaged plaintiff’s building. There was no contract or statutory duty involved in the case and no contractual relationship between the parties. Defendant was not sued for breach of contract, but for the commission of a tort. The court there held that the proper measure of plaintiff’s recovery was not “the reasonable value of the repairs necessary to restore plaintiffs’ building”, but that plaintiff’s damages were to be gauged by the general rule that the measure of damages to real estate caused by trespass or negligence is the difference in value of the land before and after the injury, applied together with the rule that “where damaged land or a building thereon can be restored to its former condition, at a cost less than the diminution in value, the cost of restoration may be recovered”. The foregoing measures of recovery apply in cases involving damage to real estate arising from trespass and negligence. They have no application here.

This action, unlike the Curtis case, is based on the defendant’s violation of its statutory duty. When plaintiffs elected to have defendant repair their property, under an option provided by Section 379.150 V.A.M.S., the policy became, in effect, a contract for repairs — a building contract imposed by law. It was a new and independent undertaking enjoined upon defendant, by plaintiffs’ election under the statute to restore the house to its former condition. Thereby, defendant became a “building contractor” (as an insurer was held to be in Cussler v. Fireman’s Insurance Co., 194 Minn. 325, 260 N.W. 353). And, as said in Zalesky v. Iowa State Insurance Co., 102 Iowa 512, 70 N.W. 187, 71 N.W. 433 “this case should be considered the same as though the contract between the insurance company and the plaintiff were a contract to repair and rebuild this property”. See 6 Appleman, Insurance, Sec. 4003. From the foregoing, it necessarily follows that plaintiffs’ damages in this case are to be gauged by the measure of damages applicable in building contract cases wherein a defendant contractor has breached his contract. That measure is clearly defined by general authority and by Missouri courts. Corbin on Contracts, Sec. 1089, states the rule as follows ; “For a breach by defective construction, whether it is partial or total, and for a total breach by refusal and failure to complete the work, the injured party can get a judgment for damages measured by the reasonable cost of reconstruction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste (destruction of usable property). Sometimes the defects in a structure cannot be physically remedied without tearing down and rebuilding”.

In 25 C.J.S. Damages § 74 (Note 46) the following is stated; "Building and Construction Contracts. (1) In case of failure to perform, the measure of damages is the difference between the contract price and the fair cash market price or value of the doing of the work contracted for. * * * (2) As otherwise stated, plaintiff is entitled to recover the difference between the contract price and the actual cost of doing the work. * * * (6) Damages recoverable by a mortgagee for breach of a building contract guaranteeing completion of buildings is the cost of completion”.

The following is quoted from 9 C.J., Building and Construction Contracts, page 812, (cited with approval in Noonan v. Independence Indemnity Co., 328 Mo. 706, 41 S.W.2d 162, 167, 76 A.L.R. 931, and Pioneer Construction Co. v. Schmidt, Mo.Sup., 192 S.W.2d 859):

“In case of failure to perform, the measure of damages is the difference between the contract price and the fair cash market price or value of the doing of the work contracted for, together with loss of rents for such reasonable time after the time . the building should have been completed under the contract as will permit the owner to complete the building. * * Where the builder defaults, as in failing to complete the work within the time specified without a sufficient excuse therefor, or in unjustifiably abandoning the work before completion, or otherwise, the owner may generally take possession of the work and complete it himself or employ another so to do, and charge the builder with the necessary expense thereof; *

In Pioneer Construction Co., v. Schmidt, Mo.Sup., 192 S.W.2d 859, the Supreme Court defined the measure of damages for the breach of a construction contract to be “briefly, the reasonable cost of completion”. Also see: Wright v. Sanderson & Sims, 20 Mo.App. 534. In view of all the foregoing, we rule that the court incorporated the proper measure of damages in the instruction.

As a further complaint against plaintiffs’ instruction, defendant says that it erroneously permitted the jury to return a verdict in excess of the policy limit and also in excess of the amount of defendant’s liability for repairs as limited by Section 379.150 V.A.M.S., both of which are $5000.00. The case, Payne v. Bankers’ & Shippers’ Ins. Co. of New York, 229 Mo.App. 901, 77 S.W.2d 183, is directly in point and controlling on the present question. We find no other Missouri case with similar facts. In the Payne case plaintiffs also sustained a partial fire loss. They elected and demanded of their insurer that it repair their house in compliance with present Section 379.150. The insurer refused to make the repairs which admittedly could have been done in 30 days at a cost not to exceed the policy amount. Plaintiff filed suit to recover the cost of repairs and additional damages alleged to have resulted from insured’s failure to repair. Upon trial the jury awarded plaintiffs a sum in excess of the policy amount. Sustaining the verdict and judgment this court said:

“Much stress is laid upon the fact that the total judgment is for a larger amount than the amount specified as the sum for which defendant agreed to insure.
“The amount assessed for damages caused by the fire is less than the amount of specified insurance therefor, and the damage caused by defendant’s failure to repair is not limited to the amount of specified insurance. Even in states which do not have a statute obligating the insurance company to repair at the option of the insured, it is held that an agreement or election to repair obligates the company to complete the repairs, even though the cost thereof exceeds the amount of the policy. Henderson v. Crescent Ins. Co., 48 La.Ann. 1176, 20 So. 658, 35 L.R.A. 385; Morrell v. Irving Fire Ins. Co., 33 N.Y. 429, 88 Am.Dec. 396; Fire Ass’n v. Rosenthal, 108 Pa. 476, 1 A. 303.”

The foregoing portion of the Payne opinion is consonant with the general rule stated in Appleman, Insurance Law and Practice, Sec. 4003, as follows:

“Where the insurer elects to rebuild, the amount of money indemnity stipulated under the alternative clause of the policy ceases to be the measure of damages, but the insurer’s liability for a breach of the rebuilding agreement may be more or less than the total insurance”.

Also see Fire Association v. Rosenthal, 108 Pa. 474, 1 A. 303; Keystone Paper Mills Co. v. Pennsylvania Fire Ins. Co., 1927, 291 Pa. 119, 139 A. 627; Hartford Fire Ins. Co. v. Peebles’ Hotel Co., C.C.A.Tenn. 1897, 82 F. 546, 27 C.C.A. 223; Morrell v. Irving Fire Ins. Co., 1865, 33 N.Y. 429, 88 Am.Dec. 396; Henderson v. Crescent Ins. Co., 1896, 48 La.Ann. 1176, 20 So. 658, 35 L.R.A. 385.

So that no confusion arise regarding this court’s views on the effect of the limitation set by Section 379.150 in the words “not exceeding the amount written in the policy”, we deem it advisable to state them. Under Section 379.150, upon demand of the policyholder, an insurer has the absolute duty to repair property partially destroyed by fire, so that it shall be in as good condition as before the fire— limited to the expenditure of the amount of insurance provided by the policy. It is clear that the statute requires the insurer which enters into the performance of this duty to expend no more for repairs than the amount of the policy. So long as the insurer complies with the statute by performing its duty, it rests within the limiting protection the enactment affords. However, we read nothing in the statute that purports to limit or define the amount of damages for which the insurer is liable when it breaches its statutorily mandated duty. In the event of such breach, we look to the general law to find the appropriate measure of damages flowing from that dereliction. It is a fundamental principle of law that when a contract duty is breached, the party suffering the wrong is entitled to that for which he bargained — he should not be compelled to accept less. 17 C.J.S. Contracts, § 458, p. 943. In accordance with that principle and the authority heretofore cited and quoted, we have made our determination that the proper measure in this case is the cost of restoring plaintiffs’ house to its former condition.

A review of the evidence discloses convincingly that no violation of the statutory limitation was occasioned by the jury verdict and judgment exceeding the policy amount. The evidence of both plaintiff and defendant establishes that immediately after the fire the house could have been repaired and replaced in as good condition as before the fire for less than the policy amount of $5000.00. At defendant’s direction, plaintiffs procured two estimates of total repair cost in the respective amounts of $4475.00 and $4485.50. Defendant procured estimates in the amounts' of $1719.00 and $1838.00. Defendant admits that it actually started to make repairs and then abandoned the work in a few days. Defendant’s own evidence discloses that the firm contract price agreed upon with the contractor it had engaged to restore the house to its former condition was in the sum of $3143.00. Thus it is clear that had defendant complied with its statutory duty, its liability would have been less than the policy amount of $5000.00.

Obviously, the legislature in enacting Section 379.150 did not intend that an insurer performing its statutory duty in good faith should be held liable to expend more than the policy limit. In the case at bar, the situation is vastly different. Defendant, for no explained reason, has ignored its statutorily imposed obligation to repair, thereby causing plaintiff to suffer additional damages, consisting of materially increased repair costs and loss of rentals, as shown by the evidence, for which defendant alone is responsible under all the testimony. The jury’s verdict and the judgment are fully supported by the evidence. We find no error therein as contended.

It has been suggested by appellant in its reply brief that the Payne case should be disapproved because it permits an award of damages in excess of the amount for which an insurance policy is issued. We decline to disturb the Payne case because we believe it properly declares the law. It is our opinion that the Payne case does not impose any obligation on an insurer to expend more than the policy amount when the insurer faithfully observes its duty to repair pursuant to the insured’s election under the statute. The Payne case does declare that when the insurer fails in the observance of its duty to repair by violating Section 379.150, that statute ceases to limit insureds’ ¡recovery to the policy amount. We reaffirm the principles declared in the Payne case and still consider them controlling on the issues herein.

Defendant insists that it was reversible error to submit the case “solely under an intruction on the measure of damages”. We must rule against defendant on this point because its premise is not factually correct. The trial court did not instruct solely on the measure of damages. The jury was instructed comprehensively on the issues in the case by the effect of plaintiffs’ single instruction. The first paragraph is actually a verdict directing instruction in a strictly literal sense. That part of the instruction (essentially) informs the jury (1) that it was defendant’s duty to repair the property (defining the manner of performance) and (2) that defendant became liable in damages for its failure to complete the repairs. Those legal conclusions are supported by the .record and foreclosed from dispute. The first paragraph submits nothing for the jury to find on the question of defendant’s liability. It correctly informs the jury that as a matter of law, under the evidence, and as determined by the court, defendant was in fact liable for damages. No further instruction (essential to plaintiffs’ case) was necessary, except on the measure of damages, to which the second paragraph is devoted.

Defendant complains that the jury was not required to find on the controverted issues of fact — in particular, whether, at the time of trial, the building was structurally sound and could be .repaired, or whether it was unusable for repairs and had to be torn down — since those issues were not mentioned in plaintiffs’ instruction or contained in any accompanying instruction. We find no merit in the complaint. Plaintiffs’ instruction told the jury to “take into consideration the amount it will now cost to rebuild said property so that it will be in as good condition as before the fire”. It was not possible for them to determine that sum without first deciding whether or not the house was repairable. According to plaintiffs’ evidence the damaged structure was not usable for repairs, as of the time of the trial. Under defendant’s evidence it could be so utilized. The instruction permitted the jury to find the existence of either state of facts and to make its award accordingly. The jury’s verdict is in a sum that, as shown by the evidence, would be necessary to pay the cost of tearing down and rebuilding the house. The verdict itself gives rise to a presumption that the jury found that the house could not be repaired as it stood at the time of trial. We are permitted to presume, in support of the verdict and judgment, that the jury properly and fairly understood, weighed and considered all matters which it was their duty to consider and regard in arriving at their verdict. 5 C.J.S. Appeal and Error § 1562; Haycraft v. Haycraft, Mo.App., 154 S.W.2d 617.

The trial court of its own motion gave the form of verdict instruction which reads in part as follows: “The Court further instructs you that under the evidence in this case your verdict must be for the plaintiffs for some amount”. Defendant contends that the above instruction and plaintiffs’ instruction, as read together, are misleading, amount to a direction to the jury to return a verdict based solely on the cost of building a completely new house, and foreclose consideration of defendant’s contention that the house could be repaired as it stood, because, defendant argues, the word “rebuild” as used in plaintiffs’ instruction connotes the building of a completely brand new house after razing the damaged building. We consider the point to be without merit, in view of the following alternate definition of the word “rebuild” stated in Funk & Wagnalls New Standard Dictionary, Unabridged: “To make extensive repairs or alterations on”.

Next assigned as error is the trial court’s refusal to give Instruction No. 13, at defendant’s request. It is argued that defendant was thereby deprived of a defense and of its right to have the jury consider evidence in its favor. The instruction reads as follows:

“The Court instructs the jury that in assessing the damages, if any, you may find and believe the plaintiffs are entitled to, you may consider the cost of using the dwelling in the condition it now is, as shown by the evidence. And you may also consider the cost of repairing said dwelling so that it will be in as good condition as you may find and believe it was in before the fire. And if you find it can be repaired in its present condition, you will disregard all evidence of the cost of completely rebuilding the same”.

Defendant’s specific complaint is that the court’s refusal of the instruction denied defendant the right to have the jury determine whether the house could be repaired without tearing it down (at the time of trial) and to have the jury disregard the cost of completely rebuilding the structure if they found it could be repaired (as submitted in the instruction). It is true, as defendant argues, and as stated in Jackson v. Farmers Union Live Stock Commission Co., 238 Mo.App. 449, 181 S.W.2d 211, that each of the parties has a right to have his view of the law presented in a form acceptable to him; that a party has a right to an instruction placing before the jury, in plain and direct terms, every legal phase of the case which is justified by the evidence; and, that a party is entitled to an instruction based upon evidence which favors him, even though such evidence may conflict with evidence offered by the opposing party. However, we believe the proffered instruction does not conform to the foregoing and generally observed standards. It contains terms-which are not plain and direct, and language which is vague and ambiguous. The statement, “you may consider the cost of using the dwelling in the condition it now is, as shown by the evidence”, is, in our opinion susceptible of at least two interpretations by the jury. They could have construed “using the building” as meaning either (1) using it as a building per se or (2) using it as a basic structure for repairs. There is more serious fault in the following sentence contained in the instruction: “And if you find it can be repaired in its present condition, you will disregard all evidence of the cost of completely rebuilding the same”. The foregoing sentence, an integral unit of language, complete within itself, is a positive misdeclaration of the law amounting to error. Absent from it is the critical qualification “so that the property shall be in as good condition as before the fire”. The fact that the missing element appears earlier in the instruction does not cure the vice. Instead, it creates an ambiguity. The instruction as offered was potentially misleading and confusing. The trial court committed no error by refusing it. Kelley v. United Mutual Insurance Ass’n, 236 Mo.App. 748, 149 S.W.2d 905. There is no duty on the. court to instruct the jury from defendant’s standpoint unless properly requested to do so. Douglas v. Whitledge, Mo.App., 302 S.W.2d 294. It is not error to deny a request for an instruction unless it is correct in all respects. Trustees of Christian University v. Hoffman, 95 Mo.App. 488, 69 S.W. 1. c. 476. The language of an instruction should be so plain that no doubt can arise 'as to 'its meaning. Morris v. Morris, 28 Mo. 114, 118. Instructions should be clear declarations of the law applicable to the facts and if open to two or more constructions, one of which is at variance with the law, the instructions should be refused. Instructions should be substantially correct in both form and circumstances. McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907, 910; Roberson v. Loose-Wiles Biscuit Company, Mo.App., 285 S.W. 127, 130 Dunn v. Dunnaker, 87 Mo. 597, loc. cit. 602; 88 C.J.S. Trial § 408. Also see Schipper et al. v. Brashear Truck Co., Mo., 132 S.W.2d 993, 125 A.L.R. 674.

' Defendant contends that the trial court erred in refusing’ defendant’s offer to prove the purchase price paid for the property by plaintiffs in 1955. Defendant argues that the amount paid for the property was competent “as shedding some light on the value of the property before the fire”. The trial court properly refused the offer. There is no issue in this case relative to the value of the house prior to the loss.

Defendant further contends that the trial court also erred in excluding policy' clauses offered in evidence providing that in case of loss the insured shall “protect' the property from further damage”. Defendant says that under those provisions if was not obligated to repair or pay for dámage caused by “vandalism” committed between the date of the fire and the date plaintiffs gave insurer notice to repair. The “vandalism” charged is the alleged theft of the hot water heater, wash bowl and kitchen sink. Defendant offered no evidence tending to establish that the theft occurred because of any duty omitted by plaintiffs. There was no evidence of anything that could or should have been done by insured to prevent the theft of plumbing fixtures from the property which had been so extensively damaged by fire as to be exposed to entrance and theft. In the absence of such evidence, the policy provisions were immaterial. The trial court’s exclusion of them from the evidence was not error.

For final consideration, we have reserved defendant’s point (1) that the verdict is so grossly excessive as to shock the conscience, and (2) is excessive “because of the erroneous measure of damages”. The assignment is without merit.

The amount of the verdict, $7667.00 is fully supported by the evidence. There was testimony from which the jury could find that plaintiffs lost the rental value of their house for at least fourteen months, in a total sum of $700.00. Under plaintiffs’ evidence, the jury could find that the cost of tearing down and replacing the house would be in a sum as much as $7500.00. Defendant’s testimony shows that cost to be the sum of $6871.00. It is therefore apparent that the verdict is well within the evidence on the damage issue.

Although the measure of damagq instruction has been discussed at length, further brief comment is in order. We are not suggesting in this opinion that plaintiffs’ instruction is a model of perfection or that it should be adopted as a pattern for imitation. We do rule, however, that it is a correct statement of the law as applied to the facts in this case, that it contains no misstatement or misdirection of law, and that it enabled the jury to understanding^ arrive-at a just verdict. Furthermore, it is the rule that “Where an instruction on the measure of damages, though general, is not erroneous in its general scope, its generality does not constitute error, and if the defendant fears such instruction may be misunderstood, he must submit an explanatory or modifying instruction or he will not be heard to complain”. Raymond, Missouri Instructions, Sec. 132; Brunk v. Hamilton-Brown Shoe Co., 334 Mo.Sup. 517, 66 S.W.2d 903. Defendant, therefore, having submitted no- correct qualifying, supplemental or limiting instruction, cannot be heard to complain of plaintiff’s instruction on the measure of damages. Since we regard that instruction as a proper declaration to the jury, it is also our opinion that it had no improper hearing on the jury’s verdict.

In the absence of error committed by the trial court against the defendant, materially affecting the merits of the case, it is our duty to affirm the judgment. Civil Rule 83.13(b), V.A.M.R.

Accordingly, the judgment is affirmed.

All concur.

ON MOTION FOR REHEARING

PER CURIAM.

In appellant’s motion for rehearing or in the alternative for transfer to the Supreme Court, it is contended for the first time that plaintiff’s Instruction I (relative to the measure of damages) is erroneous because it places no limitation on the amount plaintiff could recover for loss of rentals and allowed the jury to assess damages in a sum representing the reasonable rental value of the property from the date repairs could have been reasonably completed to the date of the trial. Defendant argues that the instruction should have limited the award to the sum of $500.00 — the amount stated in the petition as the total amount of lost rentals up to the date of its filing.

The foregoing assignment comes too late for consideration. No specific objection was made to Instruction No. I for the reasons now urged, either at the trial or in defendant’s motion for a new trial, and no-point concerning the alleged error was contained in defendant’s brief or made in oral-argument. For those reasons, we now decline to consider the assignment. The motion otherwise is considered and overruled.

      . Citing: In re Carrier, D.C.Mass., 21 F.2d 589; Bertram v. Bergquist, 153 Ill.App. 43; Leslie v. Billingsley, 176 Minn. 402, 223 N.W. 456; Noonan v. Independence Indemnity Co., 41 S.W.2d 162, 167, 328 Mo. 706, 76 A.L.R. 931; Simons v. Wittmann, 133 Mo.App. 357, 88 S.W. 791; Feroe v. B. H. Brooke Co., 219 App.Div. 107, 219 N.Y.S. 97. affirmed Feroe v. B. H. Brooks Co. 247 N.Y. 590, 161 N.E. 194; Mechanics’ Trust Co. v. Fidelity & Casualty Co. of New York, 304 Pa. 526, 156 A. 146; Huskey Mfg. Co. v. Friel-McLeister Co., 84 Pa.Super. 328.

      . Citing: Elias v. Wright, C.C.A.N.Y., 276 F. 908; Brady v. Oliver, 125 Tenn. 595. 147 S.W. 1135, 41 L.R.A.,N.S., 60; Clem Lumber Co. v. Marty, Tex.Civ.App., 23 S.W.2d 319. error refused.

      . Citing: Trainor Co. v. Aetna Casualty & Surety Co., Pa., 290 U.S. 47, 54 S.Ct. 1, 78 L.Ed. 162, reversing C.C.A. 62 F.2d 487, affirming D.C., 49 F.2d 769, certiorari granted 289 U.S. 718, 53 S.Ct. 659, 77 L.Ed. 1070.


source: Caselaw Access Project

author: GREENHILL, Justice.

license: Public Domain

text:
    Ex Parte Rufus LINDLEY.
    No. A-8708.
    Supreme Court of Texas.
    Jan. 24, 1962.
    Rehearing Denied March 14, 1962.
    Joe N. Chapman, Sulphur Springs, for relator.
    Woodrow Edwards, Mt. Vernon, Howard Smith, Sulphur Springs, for appellee.
   GREENHILL, Justice.

Rufus Lindley was the temporary administrator of an estate. The probate court which had appointed him entered an order removing him and appointing another in his place. The order directed Lindley to turn over the estate to his successor. He declined to do so, appealed to the district court, and posted bond. It was his contention that upon the appeal and the posting of bond, the order of the probate court was vacated and superseded. The probate court disagreed. Upon Lindley’s refusal to comply with the order, he was held to be in contempt of court. Hence this habeas corpus proceeding. The question here is whether Lindley’s appeal did supersede or vacate the ’order removing him. If it did, the probate court was without power to adjudge him in contempt.

The pertinent facts, as we understand them from the briefs and oral argument, are these: Sallie Lindley was the aged mother of Rufus Lindley and the grandmother of J. G. Lindley and Juanita Lindley Irons. Sallie Lindley died, and the grandchildren (who were adults) presented her will for probate. Rufus Lindley was dissatisfied with his mothers’ will. (He was left $1.00.) So he and others contested the will. Meanwhile, the probate court appointed Rufus temporary administrator (with limited powers) of his mother’s estate.

Sallie Lindley’s will was admitted to probate. Rufus appealed. Upon the will contest in the district court, the jury was unable to agree on the issues of testamentary capacity and undue influence. The contest ended in a mistrial.

The grandchildren thereupon requested the probate court to remove Rufus as temporary administrator. The probate court did remove Rufus for three reasons: (1) he had failed to file an inventory and ap-praisement within 60 days; (2) he had failed to file an annual account; and (3) it would be to the best interest of the estate if a disinterested person, one not engaged in the will contest, were temporary administrator.

In the same order, the court appointed H. J. Mahaffey temporary administrator, again with limited powers of collecting certain moneys due the estate, paying its operating expenses, renting properties, and doing other acts necessary to preserve the estate. The order also directed Rufus to turn over the records and assets of the estate and to file an accounting.

Rufus excepted to the order and gave notice of appeal to the district court. The court fixed his bond at $1,000. Pursuant to Rule 332 of the Texas Rules of Civil Procedure, the conditions of the bond were that Rufus Lindley “shall prosecute said appeal to effect and perform the decision, orders, decree or judgment which the district court shall make thereon in case the cause shall be decided against him.”

Notwithstanding the notice of appeal and the posting of the bond, the probate court directed Rufus to comply with his order to turn over the estate to Mahaffey. As stated, he refused. After notice and hearing, Rufus was held in contempt and this habeas corpus proceeding followed.

Section 28 of the Texas Probate Code, V.A.T.S. begins: “Any person who may consider himself aggrieved by any decision, order, decree, or judgment of the court shall have the right to appeal therefrom to the district court of the county.”

Unquestionably, therefore, Rufus, had the right to appeal his removal. The question is whether he has the right to continue to act pending the appeal. Section 28 continues:

“Pending appeals from orders or judgments appointing administrators or guardians or temporary administrators * * * the appointees shall continue to act as such and shall continue the prosecution of any suits then pending * * *. If on appeal from the county court, a different administrator or guardian is appointed, he shall be substituted in such suits.”

If this portion of Section 28 is viewed from the standpoint of an original appointment of a temporary administrator, it is clear that Section 28 means that the appointment shall not be superseded on appeal. It states that “pending appeals * * * the appointee [s] shall continue to act as such * * *.” There is good reason why this order should not be superseded: if the court has appointed a temporary administrator and exception is taken to the appointment, the court would be left with no temporary administrator if the appointment were appealed and superseded.

The statute does not purport specifically to deal with the removal of a temporary administrator and the appointment of a successor. Did the Legislature intend that Section 28 have two different applications: (1) that an order originally appointing a temporary administrator may not be superseded, but (2) an order removing him and appointing another may be superseded and held for naught pending appeal? We think not.

Counsel for Rufus Lindley argues forcefully that where Section 28 says “pending appeals * * * the appointee[s] shall continue to act,” it must mean here that the original appointee shall continue to act because since the successor trustee has not -yet acted, he could not “continue to act.” The argument has logic. It and the fact that the bond is worded like a supersedeas bond caused us to set this case down for oral argument. But we have concluded that it was the legislative intent that the order removing Rufus Lindley ' and appointing a successor was not subject to being vacated and superseded by appeal. This is consistent with the ' directive in Section 28 that the order originally appointing a temporary administrator shall not be superseded (“he shall continue to act upon appeal”), and it is in harmony with other general policies fixed by the Legislature with regard to the probate court and its ■relationship to temporary administrators.

As .we' view these statutes, we conclude that it is the general legislative intent that the temporary administrator is hut an officer or agent of the court to assist the court in the temporary administration of estates. Thus, in Section 131 of the Probate Code, the court is authorized to appoint a temporary administrator whenever it appears to the court that one is necessary. He gives the appointee such limited powers as may be required. Subsection (c) of that Section provides that the order making the appointment shall continue “for stick period of time as the court shall deem in the best interest of the estate”; or until the appointment is made permanent. This evidences an intent that the court shall have control over the appointment and the tenure of a temporary administrator.

Section 133 also evidences a general intent that the probate court should have the power to control the temporary administration of estates and the temporary administrator that he appoints. That section says that the temporary administrators shall “have and exercise only such rights and powers as are specifically expressed in the order of the court appointing them * * *. Any acts performed by temporary administrators that are not so expressly authorized shall be void.”

Thus the temporary administrator is a creature of the statutes with only such limited powers as the court deems necessary. His powers are shaped by the probate court to fit the needs of each particular case. He has no vested interest or right in the position. His principal object is to preserve the estate until it can pass into the hands of a person fully authorized to administer it for the benefit of creditors, heirs, devisees and legatees. Dull v. Drake, 68 Tex. 205, 4 S.W. 364 (1887) ; Fenimore v. Youngs, 119 Tex. 159, 26 S.W.2d 195 (1930). As we read the statutes, the policy of giving the probate court power to control estates and the administrator during a temporary administration outweighs the asserted right of a temporary administrator to maintain himself in office during the appeal of an order removing him for cause and appointing his successor. Our conclusion is that “the appointee” who shall continue to act pending appeal is the appointee, whether original or subsequent, who is the current choice of the probate court.

There is language in Crouch v. Stanley, 348 S.W.2d 543 (Tex.Civ.App.1961) which would indicate a contrary conclusion. That case did not reach this court, and we are not persuaded by that opinion. Any language in the Crouch opinion contrary to this opinion is disapproved.

Rufus Lindley is remanded to the sheriff of Hopkins County.

CALVERT, C. J., and GRIFFIN, J., dissenting.


author: PER CURIAM.

text:
    Mildred K. BRIDGES, a Widow, Individually and as Next Friend of Joe Wallace Bridges, III, and Suzanne Bridges, Minors, Petitioners, v. CITY OF RICHARDSON and Ray F. Smith & Son, Respondents.
    No. A-8682.
    Supreme Court of Texas.
    Jan. 31, 1962.
    Rehearing Denied March 14, 1962.

      Woodgate, Richards & McElhaney, Dallas, for petitioners.
    Strasburger, Price, Kelton, Miller & Martin, Dallas, for respondents.
   PER CURIAM.

The opinion of the Court of Civil Appeals is reported in 349 S.W.2d 644.

We approve the judgment entered by the Court of Civil Appeals, but we are not satisfied that the opinion of the court “in all respects has correctly declared the law.” Normally that conclusion would call for no other action on our part than the stamping of the application for writ of error, “Refused. No Reversible Error”. See Rule 483, Texas Rules of Civil Procedure. But some of the general holdings of the Court of Civil Appeals, express and implied, which we regard as erroneous are so far-reaching that we deem it wise to disapprove them specifically lest they be regarded by lawyers, trial judges and judges of the Courts of Civil Appeals as having our tacit approval.

. The holdings to which we refer and our views with respect thereto are:

1. That in order to complain successfully on appeal of the erroneous admission of evidence, a party must have filed a proper motion in limine to suppress the evidence or to instruct counsel not to offer it.

. The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case or on the rights of the parties to the suit. It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, not the prejudicial effect of the evidence itself, which a motion in limine is intended to reach. A proper objection made at the time evidence is offered is sufficient to preserve right of review of error committed in admitting it, and a motion in limine is not a necessary predicate for complaint on appeal that the admission of the evidence was error and that the error was prejudicial.

2. That in order to complain successfully on appeal of the erroneous admission of evidence, a party must have requested that the jury be retired until the judge had heard and ruled upon the admissibility of the evidence,

A request to retire the jury while evidence is being offered cannot be a necessary predicate to the right to complain on appeal of a trial court’s error in admitting evidence over proper objection. The purpose in retiring a jury is to prevent prejudice through development of questionable evidence in the presence of the jury if the evidence is later excluded, or to permit the perfecting of a bill of exceptions after the evidence has been excluded.

3. That an objection that proffered evidence is “immaterial and irrelevant” is not sufficient to preserve right of review of error committed in admitting it.

The rule stated is a correct general rule but there is a limitation on or an exception to the rule: When the evidence is not relevant to any issue in the case and can have no material bearing thereon, a general objection that it is immaterial and irrelevant is sufficient to preserve right of review of error committed in admitting it. 1 McCormick & Ray, Texas Law of Evidence, 2d ed., § 25, p. 24; 1 Wigmore, Evidence, 3d ed. § 18, p. 336.

4. That a conclusion that the erroneous admission of evidence was not reasonably calculated • to cause and probably did not cause an improper judgment leads to the further conclusion that “no error resulted in [from] the admission of the evidence.”

If evidence is erroneously admitted, error exists; if its admission was not reasonably calculated to cause and probably did not cause an improper judgment, it is still error but is not reversible error. The question of whether a particular error is reversible error depends upon whether it was reasonably calculated to cause and probably did cause an improper judgment and presupposes the existence of error. Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596.

In pointing out the foregoing errors in the opinion of the Court of Civil Appeals we are not to be understood as approving all other holdings and statements in the opinion.

The application for Writ of Error is “Refused. No Reversible Error”. Rule 483, Texas Rules of Civil Procedure.


author: SMITH, Justice.

text:
    P. J. HAGINAS et ux., Petitioners, v. MALBIS MEMORIAL FOUNDATION, Respondent.
    No. A-8713.
    Supreme Court of Texas.
    Feb. 28, 1962.

      Ellis F. Morris, Houston, for petitioners.
    Bracewell, Reynolds & Patterson, Houston, Robt. I. Peeples, Houston, with firm, for respondent.
   SMITH, Justice.

The question presented on this appeal is whether or not the County Court on an appeal from the Justice Court in a forcible entry and detainer suit has the authority and jurisdiction to render a judgment in excess of $1,000 for damages suffered for the withholding or defending possession of the premises during the pendency of the appeal from the Justice Court to the County Court.

On October 13, 1959, in the Justice Court of Harris County, Texas, a judgment of forcible entry and detainer and costs was awarded to Malbis Memorial Foundation against P. J. Haginas and wife concerning the possession of real property. Haginas and wife perfected an appeal to the County Court at Law of Harris County, Texas, on October 16, 1959, by the timely filing of an appeal bond.

Haginas and wife filed no written pleas, either in the Justice Court or in the County Court at Law.

On May 12, 1960, Malbis Memorial filed its First Amended Original Petition in the County Court at Law alleging, for the first time, damages incurred by Malbis Memorial during the pendency of the appeal from the Justice Court. It was alleged that the damages for the wrongful withholding of possession of the premises during appeal amounted to $5,880.00 and that the expense incident to the prosecution of the suit in the County Court was the sum of $1,500.00.

On May 26, 1960, judgment was entered by the County Court at Law awarding possession of the real property and a money judgment in favor of Malbis Memorial for the sum of $2,400.00 and costs.

The judgment of the Court reflects that the Court based its judgment, awarding this aggregate sum of money in damages, on the findings that the sum of $1,750.00 jwas shown to be the reasonable rental market value of the premises during the pendency of the appeal from the Justice Court to the time of the trial of the case in the County Court; that the sum of $400.-00 was incurred by Malbis Memorial as reasonable attorney’s fees for the prosecution of the suit and the further finding that the sum of $250.00 was shown to have been the reasonable additional expenses incurred by Malbis Memorial in the prosecution of the suit in the County Court. The agreed statement of facts on file in this cause reflects that the parties have agreed and stipulated that the evidence adduced at the trial in the County Court was sufficient to support the judgment entered.

The Court of Civil Appeals has affirmed the judgment of the County Court at Law. 349 S.W.2d 957.

Haginas and wife contend that the amount of damages allowable under Rule 752, Texas Rules of Civil Procedure, is limited to a sum of money within the jurisdictional amount set forth in Article 5, Section 16, of the Texas Constitution, Vernon’s Annotated Statutes, and that any judgment for a sum in excess of $1,000.00 rendered in the County Court would be void.

Malbis Memorial contends that the jurisdictional limit stated in Article 5, Section 16, supra, refers only to the amount in controversy at the time the suit is filed and that the monetary limit provided in the Constitution has no application to the appellate jurisdiction of the County Court. It is argued that when Article 5, Section 16, supra, of the Constitution and the applicable statutes and rules are read together, it is evident that the damages contemplated under Rule 752, supra, are not limited to the jurisdictional limit prescribed for the original jurisdiction of the County Court. We agree with this contention.

An action of forcible entry and detainer is a special proceeding and as such is governed by the special statutes and rules applicable thereto. See Lowe and Archer, Texas Practice, Injunctions and Extraordinary Proceedings (1957), Section 121; Rules 738 through 755, Texas Rules of Civil Procedure; Ringgold v. Graham, Com.App., 13 S.W.2d 355 (1929); Simmons v. Brannum, Tex.Civ.App., 182 S.W.2d 1020 (1944), no wr. hist.; Ragsdale v. Ward, Tex.Civ.App., 173 S.W.2d 765 (1933), no wr. hist. Under the provisions of Article 3973, Vernon’s Annotated Civil Statutes, an action of forcible entry and detainer must be instituted in the Justice Court. Forcible entry and detainer is an action for possession and the question of right of possession is the only issue involved in the Justice Court. It is true, however, that Rule 738, Texas Rules of Civil Procedure, permits the plaintiff to join with his action of forcible entry and detainer, a suit for rent, but the rule specifically limits the amount of rent which may be recovered in the Justice Court to the jurisdictional limit placed on the Justice Court by Article 5, Section 16, supra. Under Rule 749, Texas Rules of Civil Procedure, an appeal can be taken only to the County Court from a judgment of the Justice Court. This rule provides in effect that either party may appeal to the County Court by filing a bond payable to the adverse party on the condition he will prosecute his appeal with effect or pay all costs and damages which may be adjudged against him. The form of the bond set out in Rule 750 conforms to the conditions required under the Rules. Neither Rule 749 nor 750 state or imply that the appealing party’s bond is to be conditioned that the appealing party will prosecute his appeal with effect and pay all costs and damages not in excess of $1,000.00. We note that there is absent from Rule 752, supra, any specific reference to or implication of any limitation that is to be placed upon the amount of damages that may be awarded by the County Court under the rule. We attribute the absence of such limitation to the fact that the jurisdiction of the County Court in a forcible entry and detainer suit is appellate as opposed to original based on any amount in controversy. The County Court acquired appellate jurisdiction over the subject matter of this case and the subject matter was the primary issue of possession. It is the general rule that once jurisdiction is lawfully and properly acquired, no subsequent fact or event in the particular case serves to defeat the jurisdiction. See Isbell, et al. v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762. This case, while not a case dealing with forcible entry and de-tainer, sustains, in principle, our holding here. The Isbell case was filed in the County Court for the recovery of a drag-line bucket, or its value, alleged to be $750.-00. Prior to the trial of the case, plaintiff amended its petition in which a like recovery as prayed for in the original petition was sought, and, in addition thereto, the reasonable rental value of bucket during the time the bucket remained in the hands of the defendant by virtue of a replevy bond. Judgment was rendered in plaintiff’s favor against defendants for $750.00 as the value of the bucket and for $1,047.50 as damages for rents plaintiffs were entitled to for the “detention of the bucket”.

The question presented in the Isbell case was: Did the County Court have the power to render judgment for a sum in excess of $1,000.00? This Court, in holding that the County Court was clothed with such power, announced the general rule that where jurisdiction is once lawfully and properly acquired, no subsequent fact or event in the particular case serves to defeat that jurisdiction. The Court reasoned that:

“Ordinarily the very conferring of jurisdiction upon a court, with nothing further said, empowers it inherently to use statutory and recognized means of enforcing its jurisdiction without regard to the value, the amounts, or the subject-matter involved in the process. * * *

“It is characteristic of inherent, auxiliary, and exceptional jurisdictions that it is not confined by the provisions that limit the scope of ordinary jurisdiction.”

The reasoning of the Court in the Isbell case is equally applicable where the problem is to determine the scope of Rule 752, supra. Article 3990, Vernon’s Annotated Civil Statutes, the source of Rule 752, supra, was enacted by the Legislature for the protection of the winning party in the Justice Court. Specifically applied here, the rule was meant to protect Malbis Memorial and enable it to ultimately recover from Haginas and wife whatever damages it may have suffered by virtue of their withholding possession of the premises, regardless of the amount so long as it can prove such damages. A contrary holding would, in effect, mean that the only damages con^ templated by Rule 752, supra, would be those damages that fall within the jurisdictional limits prescribed in Article 5, Section 16, supra, for the County Court’s original jurisdiction. This untenable position, if adopted, would have the effect of rendering the County Court powerless to render judgment for any amount in the event the damages pending appeal from the Justice Court to the County Court were' less than $200.00.

The primary object of the present forcible entry and detainer suit was to obtain possession of certain real property due to the failure of Haginas and wife to pay rent in accordance with a lease agreement between the parties. Possession has been withheld pending appeal and the amount of damages has been stipulated to be the sum of $2,400.00. The recovery of damages pending the appeal authorized by Rule 752, supra, is ancillary to the cause of action for possession. Since Haginas and wife elected to remain in possession of the premises pending appeal, they subjected themselves to liability under the appeal bond and under Rule 752, supra, for all damages accruing to Malbis Memorial by reason of their wrongfully withholding of the premises. The damages awarded by the trial court was due solely to the wrongful withholding of the premises by Haginas and wife.

The judgment of the Court of Civil Appeals is affirmed.

      . “On October 13, 1039, in the Justice Court of Harris County, Texas, Precinct No. One, a judgment of forcible entry and detainer and costs was awarded to Malbis Memorial Foundation against P. J. Haginas, et ux, concerning the possession of real property. Appeal bond was filed timely, and appeal was perfected ■ to the County Court at Law of Harris County, Texas, on October 16, 1959.
      “P. J. Haginas, et ux, have filed no written pleas, either in the Justice Court or in the County Court at Law.
      “Plaintiff’s First Amended Original Petition was filed on May 12, 1960, in the County Court at Law, alleging damages incurred by plaintiff during the pendency of the appeal from Justice Court and the case was duly called to trial.
      “On May 26, 1960, judgment was entered by the County Court at Law, awarding possession of the real property and a money judgment in favor of Malbis Memorial Foundation for the sum of Two Thousand Four Hundred Dollars (§2,400.00) and costs.
      “It is agreed and stipulated by and between the parties hereto that the evidence adduced at the trial in the County Court at Law was sufficient to support the judgment entered therein.”

      . Rule 752, Texas Rules of Civil Procedure
      “On the trial of the cause in the county court the appellant or appellee shall be permitted to plead and prove his damages if any suffered for withholding .or defending possession of the premises during the pendency of the appeal and also all necessary and reasonable expenses incurred in prosecuting or defending the cause in the county court; provided that only the party prevailing in the county court shall be entitled to recover against the adverse party such damages, expenses, and costs. He shall also be entitled to recover against the sureties on the appeal bond in eases where the adverse party has executed such bond.” (Emphasis added.)


text:
    E. L. FITCH, doing business as E. L. Fitch Trucking Co., et al., Petitioner, v. INTERNATIONAL HARVESTER COMPANY, Respondent.
    No. A-8722.
    Supreme Court of Texas.
    Jan. 31, 1962.

      Murray J. Howze, Monahans, for petitioner.
    McGowen & Magee, Monahans, for respondent.
   PER CURIAM.

The Court of Civil Appeals dismissed the appeal to that Court for want of prosecution. 350 S.W.2d 395. This action was not erroneous. Rules 414 and 415, Texas Rules of Civil Procedure. The appeal having been dismissed, discussion by the Court of Civil Appeals of the merits of the appeal and its affirmance of the trial court’s judgment may be regarded as mere surplusage inasmuch as the judgment of the trial court stands unimpaired upon the dismissal of the appeal therefrom.

The application for writ of error is refused, no reversible error.


author: WALKER, Justice.

text:
    E. M. RUSSELL and P. L. Allen, Petitioners, v. Alma DOBBS, Administratrix of the Estate of J. A. Dobbs, Deceased, Respondent.
    No. A-8564.
    Supreme Court of Texas.
    Feb. 28, 1962.

      Borden & Hand, Weatherford, for petitioners.
    Spurlock, Schattman & Jacobs, Fort Worth, for respondent.
   WALKER, Justice.

This action was brought by E. M. Russell and P. L. Allen, petitioners, against Alma Dobbs, Administratrix of the Estate of J. A. Dobbs, Deceased, respondent, to establish a claim against the Estate. The claim was not presented to the Administratrix in person but was deposited with the County Clerk on August 24, 1957, as authorized by Section 308 of the Texas Probate Code. It was never formally allowed or rejected by the Administratrix, and this suit was instituted on June 10, 1958.

In response to the three special issues submitted, the jury found: (1) that the attorney for the Administratrix by his acts, representations and conduct led petitioners to believe that the Administratrix would approve and pay the claim; (2) that such acts, representations and conduct would have led a reasonably prudent person to believe the Administratrix would approve and pay the claim; and (3) that in reliance thereon petitioners delayed in filing suit until after April 3, 1958. Judgment was entered by the trial court establishing the claim as filed and directing that a copy of the decree be certified to the Probate Court. The Court of Civil Appeals reversed and rendered, holding: (a) that the claim was rejected by operation of law at the end of thirty days after it was filed with the Clerk; (b) that the debt was extinguished when petitioners did not institute suit within ninety days thereafter; and (c) that equitable estoppel could not save petitioners from the consequences of their delay. 347 S.W.2d 796.

Section 308 authorizes claims to be presented by depositing same with the clerk. It also provides that a claim shall be presumed to be rejected in the event the representative fails to act thereon within thirty days after it is filed, and that the failure of the clerk to notify the representative or his attorney shall not affect the validity of the presentment or the presumption of rejection. Petitioners contend that the presumption created by the statute is rebuttable and was overcome in this case by the jury findings mentioned above. We do not agree.

Prior to the adoption of the Probate Code, an executor, administrator or guardian was required to endorse his allowance or rejection on any claim presented to him. The failure to do so operated as a rejection of the claim and authorized the claimant to institute suit. See Articles 3516, 3517, 4242, 4243, Tex.Rev.Civ.Stat.1925. The statutes did not prescribe a time within which the representative must act, and it was held that the claim would be deemed rejected at the expiration of a reasonable time after presentment. See Chandler v. Warlick, Tex.Civ.App., 321 S.W.2d 897 (wr. ref. n. r. e.); Dent v. A. Harris & Co., Tex.Civ.App., 255 S.W. 221 (no writ). What constituted a reasonable time was ordinarily a question of fact, and it was necessary for a creditor to decide that question at his peril. No suit could be instituted more than ninety days after expiration of a reasonable period, while one brought before the representative had a fair opportunity to investigate the claim was subject to being abated. See Burke v. Guilford Mortgage Co., Tex.Civ.App., 161 S.W.2d 574 (wr. ref. w. m.).

Much of the uncertainty as to the timing of the steps that must be taken by a claimant to protect his rights was eliminated by the provisions of the Probate Code. The representative is now required to endorse his allowance or rejection on the claim within thirty days after it is presented to him or filed with the clerk. Section 309. His failure to act within the prescribed period on a claim presented to him constitutes a rejection of the claim, and subjects the representative to liability for court costs and to removal from office if the claim is thereafter established by suit. Section 310. In view of these provisions, we are satisfied that the Legislature did not intend to create merely a rebuttable presumption of rejection when the representative fails to act within thirty days on a claim deposited with the clerk.

Section 308 was enacted primarily for the benefit of creditors. It provides a method of presenting claims when the representative cannot be located, and also fixes a definite time at which the claimant becomes entitled to institute suit in the event his claim is not allowed. The purpose of the statute would be defeated if an action instituted by the creditor after expiration of the thirty-day period could be abated upon a showing by the representative that the claim had not been rejected in fact. Since the claim is presumed to be rejected even though the clerk fails to notify the representative, it seems clear that the Legislature was attempting to do something more than establish a period that would prima facie constitute a reasonable time for the representative to act. In our opinion the presumption of rejection created by Section 308 is conclusive in so far as the claimant’s right to institute suit and the legal consequences of failure to do so are concerned.

The statute formerly applicable to estates of decedents provided that “when a claim for money against an estate has been rejected by the executor or administrator, either in whole or in part, the owner of such claim may, within ninety ddys after such rejection, and not thereafter, bring suit against the executor or administrator for the establishment thereof in any court having jurisdiction of the same.” Article 3522, Tex.Rev.Civ.Stat.1925. This was not regarded as a statute of limitation in the usual sense. Failure to institute suit within the prescribed period could be raised by general demurrer and was not excused by absence of the representative from the State. Cotton v. Jones, 37 Tex. 34; Poole v. Rutherford, Tex.Civ.App., 199 S.W.2d 665 (wr. ref. n. r. e.); Jaye v. Wheat, Tex.Civ.App., 130 S.W.2d 1081 (no writ). The representative had no power to approve and revive a claim barred by the statute. Burks v. Bennett, 62 Tex. 277.

In some of the cases cited above, Article 3522 was likened to statutes providing for new trials, appeals and writs of error. It was said that compliance with its terms was a qualification upon the right to sue, and that the statute extinguished the right and did not merely bar the remedy. At the same time this Court stated that a suit not brought within ninety days after rejection of the claim was barred “unless some cause supervened to prevent the operation of that statute.” Cotton v. Jones, supra. In another case decided- at the same term, certain claims were presented to an executor, who promised to allow and pay them. They were returned disallowed after being held by the representative until he believed the same to be barred by limitation. At one place in the opinion it was said that a suit brought within three months thereafter was in time. At another point the Court observed that while it was not passing on the conduct of T. W. House, facts making the case a fraud against him would take the case out of the statute of limitation. T. W. House was the plaintiff, and the latter statement evidently was intended to mean that fraud on the part of the executor would prevent the running of the statute. Kyle v. House, 38 Tex. 155.

In enacting the Probate Code, the Legislature chose the wording of Article 4244, Tex.Rev.Civ.Stat.1925, applicable to guardia»ships, rather than the prohibitory language of Article 3522. Section 313 provides that when a claim or a part thereof has been rejected by the representative the claimant shall institute suit thereon within ninety days after such rejection, or the claim shall be barred. This statute is not materially different from Article 3522 in either purpose or effect. It is one of the regulations designed to bring about an early disposition of claims against estates. The presentation of a claim to the representative is the first step in the procedure established for obtaining a judgment which can be enforced in the probate proceedings, and as a general rule the creditor must comply with all statutory requirements.

Most jurisdictions hold that promises or conduct on the part of a personal representative will not suspend or prevent the bar of special nonclaim or administration statutes of limitation. In some states a more liberal rule obtains, but this is generally the result of statutory exceptions. See Annotations 11 A.L.R. 246, 66 A.L.R. 1415. We are not prepared to say at this time that Section 313 extinguishes the right for all purposes, or that there are no circumstances under which a creditor would be entitled to institute suit more than ninety days after rejection. It is unnecessary to decide either of those questions here, because we think that under the facts of this case petitioners as a matter of law were not entitled to rely upon a promise of the Administratrix, express or implied, to approve and pay their claim.

Petitioners knew that their claim had been filed with the clerk, and were charged with knowledge that the same would be deemed rejected by operation of law if no action was taken by the Adminis-tratrix within thirty days. They also should have known that the claim would be barred in the event suit was not instituted within ninety days after such rejection. The statutes contemplate that a creditor will keep himself informed as to the status of his claim and take the steps required by law to reduce the same to judgment. Since the representative must now act within thirty days and is required to endorse a memorandum of allowance or rejection on the claim when he does act, the claimant will ordinarily have no difficulty in ascertaining that his claim has been rejected in time to protect his rights by instituting suit thereon. Petitioners could and should have done so by examining their claim on file in the clerk’s office. They were never told that the claim had been allowed, and the assurances of the Administratrix or her attorney that it would be approved and paid afford no basis, legal or equitable, for suspending the operation of the ninety-day statute.

The judgment of the Court of Civil Appeals is affirmed.

      . Except as otherwise indicated all statutes are referred to by the section num-her under which they appear in Y.A.T.S. Probate Code.


author: CULVER, Justice.

text:
    DEPARTMENT OF PUBLIC SAFETY of the State of Texas, Petitioner, v. Virgil Cline AUSTIN, Respondent.
    No. A-8648.
    Supreme Court of Texas.
    Feb. 28, 1962.

      Alton R. Griffin, County Atty., E. M. Fulton, Jr., Asst. County Atty., Lubbock, Will Wilson, Atty. Gen., Leon F. Pesek and Tom I. McFarling, Asst. Attys. Gen., for petitioner.
    Treadaway & Blumrosen, Lubbock, for respondent.
   CULVER, Justice.

On December 12, 1959, Austin’s chauffeur’s license was suspended for a period of six months pursuant to Article 6687b, § 22, Subsection (b) (4). On May 21st Austin was convicted in the Justice of the Peace Court for speeding. Therefore, he committed not only the offense of “speeding”, but also the offense of “driving while license suspended”, as well. On August 8, 1960, the Department, after an administrative hearing as provided under § 22(a), Article 6687b, Vernon’s Civil Statutes, entered its order again suspending Austin’s license for a period of six months. On appeal the County Court at Law held there was insufficient evidence to support the Department’s order of suspension. On February 24, 1961, the Department renewed the operator’s license. Thereafter the Court of Civil Appeals dismissed the appeal of the Department of Public Safety on the ground that the case had become moot. 348 S.W.2d 854.

In that respect we are of the opinion that the Court of Civil Appeals erred. The Court based its decision on our holding in Boston v. Garrison, 152 Tex. 253, 256 S.W.2d 67. In that case the license had expired and an application for renewal had been refused. Therein lies the distinction. In this case the Department taking note of the judgment of the County Court at Law and pending appeal therefrom, had issued a renewal license to Austin upon his application and thus followed the rule announced in Texas Department of Public Safety v. Azar, 1954, Tex.Civ.App., 274 S.W.2d 911, error refused n.r.e., namely that the only restriction that may be placed on the renewal of a license, according to the statute, is that the department must renew the license without an examination unless it has reason to believe that licensee is no longer qualified. Under the provisions of § 18, Article 6687b, as construed in Azar, the Department had no alternative but to renew Austin’s license

When Austin appealed from the order of the Department suspending his license the suspension of the license was itself suspended until a final judgment was rendered. Article 6687b, § 22(c).

The only reasonable construction of Article 6687b, § 18, is that the original license can be extended from time to time by proper application for a renewal, but where there is no timely renewal then the license expires and a new license is required to enable one to operate motor vehicles legally upon the highways.

In Boston v. Garrison, the appeal was from a judgment of the District Court upholding the suspension. A reversal of that judgment would have accomplished no more than to terminate a suspension that had already terminated by its own terms. In the case here the suspension was set aside by the County Court and the dismissal by the Court of Civil Appeals would result in the suspension being finally made null and void. See Isbell v. Brown, Tex.Civ.App., 196 S.W.2d 691, wr. ref. To hold this case moot would effectively nullify the right of the Department to appeal from such an adverse decision of the trial court, or to enforce a suspension that had been properly ordered due to the lapse of time incident to court procedure.

Incidentally the respondent filed no brief in the Court of Civil Appeals nor one in this Court, nor did he appear by counsel when the cause was submitted. An amicus curiae challenges the jurisdiction of this Court. We have jurisdiction under § 3 of Art. 1728, V.A.C.S., since the case involves the construction of a statute necessary to a determination of the case.

The judgment of the Court of Civil Appeals is reversed and the cause remanded to that court for a decision upon the merits of the appeal.