author: CLAUDE WILLIAMS, Justice.

text:
    Edward O. STEINE, Appellant, v. HILLCREST STATE BANK OF UNIVERSITY PARK, Appellee.
    No. 16999.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 22, 1967.
    Rehearing Denied Jan. 26, 1968.
    G. H. Kelsoe, Jr., of Kelsoe & Stone, Dallas, for appellant.

      Harless R. Benthul, of Estep, Waters, Benthul & McCrea, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Appeal from summary judgment. Rule 166-A, Vernon’s Texas Rules of Civil Procedure.

On February 21, 1964 Edward O. Steine executed an automobile lease agreement, as lessee, in which he agreed to lease a 1964 Chrysler Imperial automobile, described in a contemporaneously executed delivery receipt, from Triple A Automobile Leasing Corporation, lessor, for a period of twenty-four months at a stipulated monthly rental fee of $160.42. Pursuant to the provisions of the lease the automobile had an agreed cost of $5,729.38 and it was therein stipulated that there would be an agreed monthly depreciation reserve of $103.13. The lease contained, inter alia, the following provision :

“4. Rate calculation and adjustment. The rate for each vehicle shall be calculated on the Base Price of said vehicle, such Base Price being the total cost of each vehicle to TRIPLE A including the purchase price, all original-purchase taxes and licenses, and all other expenses, if any, incurred in the purchase and delivery of each vehicle to Lessee. A specified part of each monthly payment shall be considered as depreciation reserve, said amount of monthly reserve to be designated on the Lease Order. Upon the return of each vehicle the total rate applicable shall be adjusted, based on the depreciated balance of said vehicle. The depreciated balance may be calculated by subtracting the accumulated monthly depreciation reserve from the Base Price. TRIPLE A shall sell the returned vehicle at the highest price obtainable. Should the sale price exceed the depreciated balance, the difference shall be refunded to Lessee. Should the depreciated balance exceed the sale price obtained by TRIPLE A, Lessee shall immediately pay TRIPLE A the additional rental so calculated. Reasonable expenses of reconditioning and sale incurred by TRIPLE A, if any, shall be deducted from the gross proceeds of sale to arrive at sale price. TRIPLE A shall sell the vehicle as soon as possible not to exceed 30 days from date returned from lease. Each vehicle shall remain in all respects subject to the terms of this lease until all proceeds whatsoever are received by TRIPLE A. Amounts of purchase and sale prices shall be subject to prior approval by Lessee. At such time that the depreciation reserve calculation shall equal the Base Price of the vehicle, additional monthly charges for such reserve shall not be assessed and the monthly rate shall be reduced accordingly. Should Lessee elect to alter the original term of the lease as provided in the Lease Order with respect to any vehicle leased hereunder, an additional flat charge of $ None shall be paid by Lessee for each month of unexpired lease term.”

On March 12, 1964 Triple A Automobile Leasing Corporation executed a written assignment to Hillcrest State Bank of University Park of all its right, title and interest in and to said lease agreement.

This action was instituted by the bank against Steine in which it was alleged that pursuant to the terms of said agreement Steine made twenty-four payments thereby creating a total depreciation reserve of $2,475.12 (being $103.13 times 24). It was further alleged that after deduction of said total depreciation reserve from the agreed capitalized cost of said automobile there (was a balance due of $3,254.26 under said lease agreement. The bank further alleged that pursuant to the terms of said lease, Steine was duly notified that he could purchase said automobile for said amount but that Steine refused to do so. It was alleged that upon the failure of Steine to purchase the automobile same was sold by the Bank for a total consideration of $2,225 leaving a deficiency balance of $1,029.26. Plaintiff bank sought judgment against Steine for this amount in accordance with the terms of the agreement.

In his amended answer Steine alleged that prior to executing the lease agreement an agent and representative of Triple A Automobile Leasing Corporation represented to Steine that he was executing a twenty-four month lease with a monthly rental of $160.42; that at the end of a twenty-four month period he would be entitled to surrender the car without further liability or obligation on the lease, or he could purchase the car for its then depreciated value, whichever he, Steine, chose to do in his discretion. Steine alleged that he believed this representation, relied thereon, and but for such representation he would not have entered into the leasing agreement. He said that at the end of the twenty-four month period he chose to return the car but was advised that he would not be released, as represented to him, at the time he signed the lease. He said that this was the first time he realized and knew that the representations which had been made to him, and which induced him to sign the lease, were false and therefore the lease agreement was procured by fraud and should be declared invalid.

The bank filed its motion for summary judgment attaching thereto the lease, the delivery receipt and the assignment to the bank. Also attached was a ledger sheet showing payments made and balance due after giving credit for the sale of the automobile. Steine answered the motion again alleging that he had been induced to sign the lease by false representations on the part of an agent for the leasing corporation. In his affidavit, attached to his answer, Steine again related the representations made to him and asserted that he believed said representations, relied upon same, and would not have entered into the leasing agreement had such representations not been made. He stated that he learned the representations were false when he tried to return the car at the end of the twenty-four month period.

The trial court sustained the motion for summary judgment and rendered judgment in favor of tbie bank against Steine for the sum of $1,029.26.

By his two points of error, briefed together, appellant contends that the trial court erred in rendering summary judgment against him for the reason that the issue of fraud in the inducement of the execution of the written lease agreement is clearly raised by the verified answer, and supporting affidavit. Appellant argues that fraud may be a complete defense to an action for the enforcement of a contract where the fraud is shown to have induced the execution of said agreement. In support of this rule he relies upon Carson v. Taylor, 238 S.W. 261 (Tex.Civ.App., Fort Worth 1922); Free Sewing Machine Co. v. Atkin Furniture Co., 71 S.W.2d 604 (Tex.Civ.App., Austin 1934); and Southern Rock Island Plow Co. v. Williams, 80 S.W.2d 340 (Tex.Civ.App., Amarillo 1934).

It is an established rule of law that “Where an agreement has been finally reduced to writing and the instrument appears on its face to be complete and certain and to import a legal obligation, the court, in the absence of fraud, accident, or mistake, will conclusively presume that the instrument evidences the entire agreement of the parties. Consequently, under the extrinsic evidence rule, the court will exclude extrinsic evidence of any prior or contemporaneous negotiations, conversations, statements, or representations concerning the same subject matter that may be submitted for the purpose of adding to or varying the terms of the instrument.” 23 Tex.Jur.2d, Evidence, § 345, p. 508.

The record does not reveal whether Steine read the lease agreement before he signed the same. If he did read its admittedly unambiguous provisions he is bound to know that if he did not purchase the car under the conditions related he would be held responsible for any deficiency. Under such contingency, absent fraud, accident or •mistake, parol evidence which would seek to vary the terms of the lease would not be admissible. If Steine did not read the lease then he will not be heard to complain now of his failure to do so unless his failure was due to coercion, fraud or mistake.

Inasmuch as appellant makes no contention that the lease agreement is ambiguous or uncertain and since he does not say that his signature thereon was obtained due to accident, coercion or mistake, the question is narrowed as to whether the record demonstrates an issue of fact concerning fraud.

Actionable fraud exists where one makes a false representation of a material fact with the intention of inducing another to rely on it to his pecuniary injury, and the other person, acting with reasonable prudence, is thereby deceived and induced to rely thereon to his damage. 25 Tex.Jur.2d, Fraud and Deceit, § 13, p. 628. The representation made must ordinarily concern a past or existing fact in order to be actionable. Representations as to future or contingent events are in general not to be deemed fraudulent though the prophesied fact does not occur. 25 Tex.Jur.2d, Fraud and Deceit, § 42, p. 679; 51 A.L.R. 46; 125 A.L.R. 879. Moreover, it has been held that the failure to discharge a promise of something to be done in the future is not fraud even though the promise is, without any excuse, subsequently broken. 25 Tex. Jur.2d, Fraud and Deceit, § 44, p. 682, and cases therein cited.

An exception to the rule thus announced is that “A promise made with a preconceived intention not to perform may amount to actionable fraud if the misrepresentation is material and is relied on by the other party to his injury.” 25 Tex.Jur.2d, Fraud and Deceit, § 45, p. 684; Russell v. Industrial Transportation Co., 113 Tex. 441, 251 S.W. 1034, 258 S.W. 462, 51 A.L.R. 1 (1923); Manziel v. Williams, 262 S.W.2d 437 (Tex.Civ.App., Texarkana 1953).

A classic illustration of the application of the rule is found in Collier v. Bankston-Hall Motors, Inc., 267 S.W.2d 898 (Tex.Civ.App., Dallas 1954), wherein Chief Justice Dixon, speaking for this court, said:

“Fraud because of misrepresentation is usually limited to misrepresentation as to past or present existing facts. Failure to perform contractual agreements to do certain things in the future does not ordinarily constitute fraud. In order to do so it is necessary to prove that at the time the promisor gave his promise he did not intend to perform it. When the promise is uttered he must have had a design then in his mind to receive and cheat the promisee by failing to carry out his agreement. Chicago, T. & N. C. Ry. v. Titterington, 84 Tex. 218, 19 S.W. 472; Turner v. Biscoe, 141 Tex. 197, 171 S.W.2d 118; Stuard v. Vick, Tex.Civ.App., 9 S.W.2d 494, dismissed.”

See also the opinion of this court in Hayden v. Dunlap, 84 S.W.2d 306 (Tex.Civ.App., Dallas 1935).

While it is undoubtedly the law that promises made without intention of fulfillment in order to induce others to make contracts are as culpable and as harmful as are willful misrepresentations of existing facts, it is well established that the burden is cast upon the person seeking to avoid such written agreement to both allege and prove that the representation or promise, when made, was false and made with fraudulent intent not to perform. This court in Rawdon v. Garvie, 227 S.W.2d 261 (Tex.Civ.App., Dallas 1950), had before it a similar contention and Chief Justice Bond, speaking for the court, said:

“In a purchaser’s action against a vendor for breach of contract it must be alleged and shown that the contract and breach thereof were made with fraudulent intent on the part of the vendor not to perform. The burden rests upon the plaintiff or purchaser to allege and prove in such an action that the promise, when made, was fraudulent and made with the intention not to perform it. El Jardin Immigration Co. v. Karlan, Tex.Civ.App., 245 S.W. 1043. Breach of contract does not, of itself, show fraud. Pool v. Joy, Tex.Civ.App., 61 S.W.2d 581.”

In Turner v. Biscoe, 141 Tex. 197, 171 S.W.2d 118 (1943), Judge Hickman of the Commission of Appeals, reviewed the applicable law concerning fraudulent statements and said that while the false promise may be established by circumstantial evidence taken in connection with the breach of the agreement, it could not be established by showing the breach of the agreement alone.

In Medina v. Sherrod, 391 S.W.2d 66 (Tex.Civ.App., San Antonio 1965), the court said:

“Failure to perform a promise to do an act in the future constitutes fraud only when it is proved that the promisor, at the time he made the promise, did not intend to perform. Mere proof of nonperformance will not support an inference of fraudulent intent. Collier v. Bankston-Hall Motors, Tex.Civ.App., 267 S.W.2d 898, no wr. hist.; Johnston v. Bracht, Tex.Civ.App., 237 S.W.2d 364, no wr. hist.; Urso v. City of Dallas, Tex.Civ.App., 221 S.W.2d 869, wr. ref.; Cassel v. West, 98 S.W.2d 437, wr. ref.”

Thus we think it may be fairly said to be the law that where knowledge of falsity and intent to deceive are essential elements of the charge of fraud the person making such claim has a burden to show not only that the representation was false but also that the party making it was aware of the falsity and made the representation for the purpose of deceiving the other party. 26 Tex.Jur.2d, Fraud and Deceit, § 117, p. 87, and cases cited.

Applying the law to the factual situation presented to the trial court and to us it appears that the sole basis for the contention that the lease agreement was obtained by fraud is the statement made in the answer to the motion for summary judgment and also contained in the affidavit in support thereof, that some person in authority and connected with Triple A Automobile Leasing Corporation advised appellant that at the expiration of twenty-four months he would have the option of either turning the automobile back to the company or of purchasing it at an agreed price. This representation, taken in its most favorable aspect, is nothing more than a promise or statement concerning something that would happen in the future. It has nothing to do with an existing fact or a past fact, such as illustrated in the cases relied upon by appellant. This being true it was incumbent upon appellant to both allege and prove by summary judgment evidence that the person referred to not only made the statements relating to a future promise but that when he did so he knew that the statements were false and had no intention of complying with them, all to appellant’s detriment. Appellant made no such allegations either in his pleadings or in his affidavit in opposition to the motion for summary judgment. It is not alleged nor is an effort made to prove the falsity of the statement at the time it was made nor the intent not to carry the same into effect. As the cases above cited demonstrate, the mere fact that the contract may have been breached, as contended by appellant, is not of itself evidence of false intent at the time such alleged representations were made. We feel, therefore, that appellant has wholly failed to either plead or prove by competent summary judgment evidence sufficient facts which would bring into existence issuable facts concerning fraud and thereby defeat the summary judgment.

Appellant’s points are overruled and the judgment of the trial court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Charles WHALEY, Appellant, v. ANGELINA CASUALTY COMPANY, Appellee.
    No. 17002.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 29, 1967.
    Rehearing Denied Jan. 26, 1968.
    Roy B. Johnson, of Gallagher, Wilson, Berry & Jorgenson, Dallas, for appellant.
    Royal H. Brin, Jr., of Strqsburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

In this workmen’s compensation case the sole question on appeal is whether the trial court erred in failing to grant appellant’s motion for mistrial and motion for new trial because of allegedly fatal conflicts in the jury’s answers to certain special issues.

The parties stipulated in open court that appellant’s average weekly wage prior to injury was $64.13. The court submitted the case to the jury upon special issues covering the affirmative and defensive theories of total and partial disability. In connection with partial disability the court defined the term as meaning:

“‘PARTIAL INCAPACITY’ means any degree of incapacity less than total whereby an employee by means of an injury sustained in the course of his employment suffers a depreciation or reduction in his earning capacity, that is to say, he is only able to perform part of the usual tasks of a workman, but, nevertheless, is able to procure and retain employment reasonably suitable to his physical condition and ability to work, or is only able to perform labor of a less remunerative class than he performed prior to his injury.”

The jury found that appellant had suffered total disability for a period of five weeks. The jury also found that appellant had sustained partial incapacity for a period of six weeks and two days. In answer to Special Issue No. 11 the jury found that the average weekly wage earning capacity of appellant during such period of partial incapacity was $64.13, being the stipulated average weekly wage.

The verdict of the jury having been examined by the court and counsel in the court’s chambers, it was proposed by the court that the jury be retired for further deliberations with instructions to resolve what the court considered a conflict between the answers finding partial disability and finding the average earning capacity during such period equal to the stipulated average weekly wage. Thereupon appellant’s counsel moved for a mistrial and also objected to the court’s retiring the jury for further deliberations for the purpose of resolving the possible conflict. Appel-lee’s counsel stated to the court that it was his position that the possible conflict should be called to the attention of the jury and that the jury be given an opportunity to reconcile the answers, but that appellee would, in open court, judicially admit that appellant’s average weekly wage earning capacity during the period of partial disability was such that he would be entitled to the maximum $35 a week benefit for such period.

On the basis of such judicial admission, the court accepted the verdict and awarded judgment for appellant for five weeks’ total incapacity at $35 a week and six weeks’ and two days’ partial incapacity at the rate of $35 a week, with credit for the amount previously paid by appellee. Appellant appeals contending, in one point of error, that the trial court should have granted his motion for mistrial or motion for new trial based upon irreconcilable and fatal conflicting findings of the jury.

Our Supreme Court, in 1961, was confronted with two cases, very similar in nature, and dealing with the question of fatal conflict of jury findings concerning partial disability and average weekly wage earning capacity during such period of partial incapacity being the same as the average wage agreed upon. In Indemnity Ins. Co. of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830, the Supreme Court held that there was no fatal conflict. The court based its finding upon its construction of the definition of the term “partial disability” as given in that particular case and which dealt with the placement of commas within the definition. In Employers Reinsurance Corp. v. Holland, 162 Tex. 394, 347 S.W.2d 605, the Supreme Court, again construing the definition of “partial incapacity” as given by the court in that case, and also involving the fact that a comma was omitted in such definition, held that there was a fatal conflict and that mistrial was properly entered.

In the case under consideration the trial court utilized a definition of the term “partial incapacity” which, while containing the same general terms, was rearranged in such a manner as to leave no doubt that by such term is meant that an employee by means of an injury sustained in the course of his employment suffers a depreciation or reduction in his earning capacity. This phrase was placed at the beginning of the definition, rather than at the end thereof as in the two cited cases decided by the Supreme Court. In Holland, supra, the Supreme Court said that under the definition there given, “The jury thus found that the plaintiff had suffered ‘a depression or reduction of his earning capacity’ ”. We think the same statement is applicable here, especially in the light of the definition utilized which leaves no doubt in sentence structure (as in the cases presented to the Supreme Court) concerning the meaning of the court. So, we conclude that as the verdict was returned to the court in this case it did present a conflict of jury findings. The trial court thought so and wanted to send the jury back for further deliberations. Appellee’s counsel was of the same opinion. Appellant’s counsel, on the contrary, objected to such procedure and moved for a mistrial. It was at this juncture that appellee’s counsel made the judicial admission which, we believe, eliminated from the case the question of irreconcilable conflict in jury findings to special issues. Such admission had the legal effect of eliminating the necessity for the submission of and jury answer to the issue relating to average weekly wage earning capacity. Traders and General Ins. Co. v. Rockey, 278 S.W.2d 490 (Tex.Civ.App., Amarillo 1955, writ ref’d n. r. e.); Griffin v. Superior Ins. Co., 161 Tex. 195, 338 S.W.2d 415 (1960).

While it is an established rule of law that conflicting findings destroy each other and leave no findings on the issues involved it is also recognized that a party may waive a finding in order to resolve a conflict. This is classically illustrated in the opinion of the Supreme Court in Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955 (1940). The jury verdict in the compensation case there under consideration was admittedly in conflict. However, the employee waived his right to a favorable finding to one of the issues and agreed to accept a judgment based on a lesser amount. The Supreme Court held that under such conditions there was no conflict in the verdict and a judgment could be rendered thereon.

In Thorn v. Stanford Sanitorium, 297 S.W.2d 862 (Tex.Civ.App., Dallas 1957), this court was confronted with a situation where appellant declared that the trial court should have ordered a mistrial because of irreconcilable conflict between jury answers to material issues. The defendant in that case waived the inconsistency of jury answers, acquiescing in a plaintiff’s judgment for a reduced amount. We held that in such state of the record the plaintiff was not in a position to complain on appeal and that judgment was proper. It is significant to note that in that case no claim was made of the inadequacy of the jury award and none is expressed in the instant case.

See also Van Deventer v. Gulf Production Co., 41 S.W.2d 1029 (Tex.Civ.App., Beaumont 1931, writ ref’d); Texas General Indemnity Co. v. Villa, 297 S.W.2d 231 (Tex.Civ.App., Eastland 1957, writ ref’d n. r. e.); Commercial Casualty Ins. Co. v. Strawn, 44 S.W.2d 805 (Tex.Civ.App., Waco 1932, writ ref’d); Maryland Casualty Co. v. Foote, 139 S.W.2d 602 (Tex.Civ.App., Eastland 1940, writ ref’d); Houston Fire & Casualty Ins. Co. v. Brittian, 392 S.W.2d 604 (Tex.Civ.App., Beaumont 1965).

The case of Eubanks v. Winn, 420 S.W.2d 698, decided by the Supreme Court November 15, 1967, relied upon by appellant is factually distinguishable and the ultimate decision of the court in that case, is, in our opinion, not controlling here. The Supreme Court in Eubanks reaffirmed its prior decision in Fidelity & Casualty Co. v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955 (1940), in which a resolution of a conflict in jury answers was solved by a party waiving a particular favorable finding.

The conflict of jury answers having been eliminated the judgment was properly based upon the judicial admission together with the answer of the jury to the question as to the number of weeks of partial incapacity sustained by appellant. Appellant has not brought forward to this court a statement of facts so we therefore presume that the answer of the jury to the issue as to the number of weeks of partial disability is supported by competent evidence which will support the judgment. Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102 (1942); Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549 (1946); Insurance Co. of St. Louis v. Bellah, 373 S.W.2d 691 (Tex.Civ.App., Fort Worth 1963).

Appellant has completely failed to demonstrate that any error committed by the trial court amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case. Rule 434, Vernon’s Texas Rules of Civil Procedure. The judgment awarded to him the maximum that he could have possibly recovered under the Workmen’s Compensation Law based upon the answer of the jury to the number of weeks of partial incapacity. No harm could have resulted to appellant by appellee’s action in judicially admitting a figure which resulted in a computation of an amount to be the maximum which he could possibly obtain. Thus, in effect, any possible error concerning the judgment based upon the issue of amount of average weekly wage earning capacity during the period of partial incapacity militates in favor of appellant who is in no position to complain on appeal. Frazier v. Crews, 255 S.W. 673 (Tex.Civ.App., San Antonio 1923); Stuyvesant Ins. Co. v. Driskill, 244 S.W.2d 291 (Tex.Civ.App., Fort Worth 1951); and Lone Star Life Ins. Co. v. Kunath, 322 S.W.2d 673 (Tex.Civ.App., Dallas 1959).

Finding no reversible error reflected in this record appellant’s point of error is overruled and the judgment of the trial court is affirmed.

Affirmed.

       Article 8306, Section 11, Vernon’s Ann. Civ.St., provides:
      “While the incapacity for work resulting from the injury is partial, the association shall pay the injured employee a weekly compensation equal to sixty per cent (60%) of the difference between his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity, but in no case more than Thirty-five Dollars ($35) per week.”


author: NORTHCUTT, Justice.

text:
    Mrs. Pauline STEEN, a Feme Sole, Appellant, v. Jess PRINCE and wife, Emme Prince d/b/a Prince Real Estate, Appellees.
    No. 7764.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 18, 1967.

      Herbert C. Martin, Amarillo, for appellant.
    Culton, Morgan, Britain & White and Donald E. Jackson, Amarillo, for appel-lees.
   NORTHCUTT, Justice.

This is an appeal from an instructed verdict granted plaintiffs below, Jess Prince and wife, Emme Prince, d/b/a Prince Real Estate, in a suit against Mrs. Pauline Steen, a feme sole, defendant below. Hereafter, Mrs. Steen will be referred to as appellant and Mr. and Mrs. Prince as appel-lees.

Appellees sued appellant for a real estate commission in the sum of $2,040.00 being six percent of $34,000.00. Appellant gave appellees a written listing of the property in question for sale at a price of $34,000.00. Appellees secured Charles E. Briggs and wife, Patricia Briggs as purchasers for said property and a sales contract was made and entered into by them and Mrs. Steen. The first agreement as to terms of sale could not be complied with by the purchasers and a new sales contract was made and entered into on March 4, 1966, and being the contract here involved. The sales contract price to be paid was as follows: $1,500.00 cash, $24,618.48 assumed by Briggs of a first lien against the property and the balance in the sum of $7,881.52 was to be paid in installments, the first six monthly installments were to be in the sum of $500.00 each being due and payable April, May, June, July, August and September. The balance was to be paid in three annual installments and the $1,500.00 was paid and received by appellant. No other payments were made and appellant had to take action to recover her property.

Appellant pleaded that originally she was unwilling to sign the listing agreement unless she received $5,000.00 and advised ap-pellees that she could not and would not sell without realizing payment therefor in that the realty commission would take the funds derived from the home without benefiting appellant. The appellant further pleaded that by such representations and statement to appellant the plaintiff procured her signature on the listing on which they sued. Appellant further pleaded that appellees procured appellant and Charles E. Briggs and wife, Patricia Briggs to execute an unlawful and invalid contract on the 13th day of February, 1966. It was this sales contract that it later developed that Mr. and Mrs. Briggs could not carry out. That sale will not be considered any further herein as it was never completed.

Appellant further pleaded that after Mr. and Mrs. Briggs were either unwilling or unable to comply with such original sales contract that appellees withdrew the original contract and induced the appellant to execute the sales contract here involved by representing and agreeing that appellant was to receive the first $3,000.00 paid by Mr. and Mrs. Briggs before any commission would be paid to appellees and that appellees’ commission would be payable out of the subsequent payments made by Mr. and Mrs. Briggs and not out of the first $3,000.00.

Appellant further pleaded appellees procured appellant’s signature to the sales contract by representing, stating and agreeing that no commission would be paid by appellant until appellant had received the sum of $3,000.00 in cash and then their commission would be paid out of the next $2,000.00 paid by the purchasers.

The main point relied on for reversal is that the trial court erred in granting ap-pellees’ motion for instructed verdict because appellant’s evidence was sufficient to create a fact issue for the jury’s determination if not for a directed verdict in favor of appellant.

In passing upon this question, the Supreme Court of Texas in Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935, 938, has held:

“(5) In determining in any case whether or not error has been committed by a trial court in instructing a verdict, the testimony must be considered in the light most favorable to the losing party. Conflicts in the testimony must be disregarded, and every intendment reasonably deducible from the evidence must be indulged in favor of such party and against the verdict. Charles v. El Paso Elec. Co., Tex.Com.App., 254 S.W. 1094; Keely v. Carpenter, Tex.Civ.App., 67 S.W.2d 328, writ of error dismissed; 3 Tex.Jur., pp. 1049, 1051.”

See also Speights v. Deon, Tex.Civ.App., 182 S.W.2d 1016, writ refused and the cases there cited; White v. White, 141 Tex. 328, 172 S.W.2d 295 and the cases there cited.

It is undisputed that appellant received the $1,500.00 paid as the sales contract provided. The sales contract provided that Briggs was to pay $500.00 in April, $500.00 in May and $500.00 in June. These three $500.00 payments added to the $1,500.00 would make the $3,000.00 appellant claims she was to receive before appellees were to receive any commission. The next $500.-00 payment was to be paid in July. Mr. Prince testified as follows:

“Q. Well, now, you got up there, and you said you couldn’t make the first contract, and then you got up another one, didn’t you?
A. Yes, sir.
Q. Now, didn’t you represent and state to Mrs. Steen before she ever signed that second agreement that she was to get the first three thousand dollars of the purchase money?
A. No, not in that way, no sir.
Q. And that your two thousand dollars would come out of the next payment by Mr. Briggs?
A. No, sir. Our commission was supposed to have started payments on it in July.
Q. And that was out of Mr. Briggs’ payments, wasn’t it?
A. If he had kept them up, yes.”

The further following proceedings were had and Prince testified as follows:

“Q. Now, then, you are going to deny that you ever agreed for her to get the first three thousand dollars that was to be paid by Briggs ?
A. Yes, sir.
Q. And you to get $2000 then out of this payment?
A. Yes, I do deny it.
Q. All right, are you going to deny that in my office I drew an agreement to that effect?
A. Yes, sir, I do.
Q. I say, do you deny it ?
A. No, sir — you drew the agreement up and I signed it—
Q. And you and I had that agreement—
Mr. Jackson: We object to that as altering the terms of the contract—
The Court: I sustain the objection.”

This is not in any manner offering the listing contract as to the right of a commission but only as to how the commission was to be paid. Prince there testified that such agreement was drawn up as contended by the appellant and that he signed the same but the court sustained an objection to that testimony.

While Mrs. Steen was testifying, the following proceedings took place:

“Q. Mr. Martin) Now then, this first contract, I will ask you whether or not you signed that with the understanding you would get five thousand dollars before any commission would be paid, the commission to be paid out of that cash?
A. Yes, sir.
Q. And did you rely on that ?
A. Yes, sir.
Q. Now, Mrs. Steen, that contract never was completed, was it?
A. No, sir.
Q. Now, after they got Mr. Briggs on that contract and he couldn’t complete it, then what happened ?
A. Well, I thought I had five hundred dollars in escrow, and I supposed he knew — that I thought he knew that the check wasn’t any good; I didn’t know that I didn’t have any money in escrow, but he let it out one day and he said he thought he had told me; and I said, “Well, I called Mrs. Prince, and she has my house tied up, and no money down, and that she said I would get the money, just to be patient, and I said I can’t be patient, $205.00 a month is more than I can pay on the place.” I had no income other than social security from my husband.
Q. Now then, but anyway Briggs was not able to carry out that first contract?
A. No, sir.
Q. What did the Princes do with reference to the deal then ?
A. They called me and they said that Bryon Singleton had changed it around; they were real upset with him; said he didn’t know Briggs’ financial condition, and I says, “Well, the second contract only gives me three thousand dollars at time I give possession;” I says, “Mr. Prince, I can’t move out of the house with only three thousand dollars unless you want your commission in the next payments, — next four payments”; and he said that- would be fine with him—
Mr. Jackson: Object to this three thousand dollars matter—
The Court: Sustain the objection. Now, this has been repeated two or three times, and I think in view of that I need to tell the jury that they will not consider that question nor the answer; that this three thousand dollar deal has nothing to do with the contract they signed.
Mr. Martin: Note our exception.”

The law appears settled in this state that “ * * * it is in the province of the jury to resolve conflicts and inconsistencies in the testimony of a witness or between witnesses”. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359; East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613; Minugh v. Royal Crown Bottling Co., Tex.Civ.App., 267 S.W.2d 861, writ refused; and Volkmer v. Curlee, Tex.Civ.App., 261 S.W.2d 870, writ refused. See also Pritchard Rice Milling Co. v. Ellis, Tex.Civ.App., 266 S.W. 233, writ dismissed and Postal Mutual Indemnity Co. v. Penn, Tex.Civ.App., 165 S.W.2d 495, writ refused, holding “ * * * where witness contradicts his former testimony it is the province of the jury, and not the court, to determine whether the first or last testimony is true.”

The appellees here had a listing of the property for sale. No commission would be earned until the sale was consummated. Mr. Prince, in his testimony above set out, testified he agreed that he was to receive his commission from the payments to be made by the purchaser Briggs and in other parts of his testimony, he attempts to deny that fact. It is stated in Lynch Oil Co. v. Shepard, Tex.Civ.App., 242 S.W.2d 217, writ refused, as follows:

“Where there is a conflict in the testimony of a witness, it is for the jury to determine which portion of the testimony is correct”.

See also the many cases there cited. We are of the opinion, and so hold, there was sufficient evidence herein that should be passed upon by the jury especially since Prince acknowledged he signed a written agreement to take his commission from the future payments to be paid by Briggs. Judgment of the trial court is reversed and remanded.


author: MASSEY, Chief Justice.

text:
    GARVEY ELEVATORS, INC., Appellant, v. EAGLE MOUNTAIN-SAGINAW INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 16869.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 12, 1968.
    Elvin E. Tackett, Fort Worth, for appellant.
    Morgan, Gambill & Owen, and Cecil A. Morgan, Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

The question is the proper amount of 1966 taxes.

On December 21, 1966, being dissatisfied with the assessment of ad valorem taxes upon certain of its grain elevators, Garvey Elevators filed suit to have such invalidated as to any excess above $31,975.03, which sum Garvey paid into the registry of the court on the filing of suit, and sought to enjoin collection of any amount in excess of such sum.

The amount of taxes assessed for 1966 on the subject property was $70,856.10. Such assessment was made after rendition of the subject property for taxes by the School District tax assessor-collector, Garvey having failed to render the same. There was proper procedure which followed, through appointment of and discharge of duties by a Board of Equalization. Included in the discharge of duties was the reduction of taxes rendered on the subject property. This was by reason of Garvey’s request to delete a storage tank as part of the property assessed, it having been destroyed in 1965. No other request was made of the tax authorities and no other complaint of any kind was registered until suit was filed.

Both adversaries filed motions for summary judgment. That of the School District was granted, upholding its assessment of $70,856.10, and (under appropriate pleadings and proof) as part of its order authorized levy of execution for taxes.

Affirmed.

Birth of the instant controversy lay in a change in policy of the Federal Government relative to grain storage. It appears that by January 1, 1966 only a small percentage of the facilities of privately owned elevators, of which that of Garvey was one, was used for the storage of the government’s reserve supply of grain, though in earlier years a substantial use was thus made of such elevators for government purposes. Common sense indicates that in the case of such an elevator, the operators of which are unable to successfully obtain other storage customers and thus fill the void created by the loss of the former government business, there would likely be a reduced “market value” as applied thereto. We do not, however, state that a reduction in market value is a necessary and inevitable result, though it would certainly constitute an appropriate element to be taken into consideration in any property evaluation upon being brought to the attention of the agency conducting action designed to enable such.

The contradictory statements made in briefs by Garvey and the School District point up the fact that what Garvey considers to have amounted to an excessive tax as the result of unlawful discrimination against it—in the assessment of taxable value of its grain elevators—the School District considers proper both in amount and by method used in arriving at such amount. In any event—according to the School District—the Board of Equalization made a bona fide effort fairly and honestly to assess such, and other properties, at a fair, just, equal and uniform valuation for taxing purposes,—-hence— though it might have erred in arriving at the exact market value of the grain elevators, its action is not subject to review by the courts. 54 Tex.Jur.2d 287, “Taxation”, the sections under Ch.XI, “Assessment and Valuation”, Sub. F “Review of Assessment by Court.”

The evidence before the court—on motion for summary judgment—demonstrated that the Board of Equalization did attempt to ascertain the true and full value of the property in money, i. e., the cash market value, as a basis for the assessment of taxes. Their failure in said respect, according to Garvey, resulted because of the fact and circumstance of reduced use of the property for grain storage.

The failure of consideration of such a factor by a Board of Equalization in valuing property—other than a type where that factor is usually and customarily essential of consideration in its valuation—would not be illegal, arbitrary, capricious, or necessarily resultant in an excessive valuation upon which no proper assessment could be based. Especially would this be true where no one ever brought facts and circumstances to the attention of the Board demonstrating the reduced use of the property as a storage facility and the resultant effect upon market value.

No such information was ever presented to the Board of Equalization and therefore there could have been nothing arbitrary or capricicms in its procedure. Garvey concedes this, yet contends that the Board’s failure to take into consideration that same element in arriving at a value amount results in an arbitrary and improper value.

We do not agree with the contention of Garvey. In the existent situation Garvey is without any such right of complaint as he might have had if an attempt had been made to have its property values lowered by the Board of Equalization. Without such the case indisputably appears as one wherein the Board of Equalization made a bona fide effort, fairly and honestly, to do its duty in assessing the subject property for tax purposes. The Board was clothed with jurisdiction and at no time acted in excess of its powers. It did not adopt a method of valuation which would be illegal, arbitrary, or fundamentally wrong,— and its valuation of the Garvey property was not grossly excessive in comparison with other property similarly situated. All this affirmatively appears of record as well as the absence of a fact issue thereupon. The nature of Garvey’s action would be a collateral attack on the quasi-judgment of the Board of Equalization. No more than “error of judgment” by the Board could be said to appear, and this will not suffice as a basis for avoiding the Board’s action. City of Fort Worth v. Fort Worth Radiator Mfg. Co., 278 S.W.2d 184, 188 (Fort Worth Civ.App., 1955, writ ref. n. r. e.).

Garvey asserts error in that the trial court failed to consider certain depositions on file at time of the hearing of the motion for summary judgment. We fail to observe where the record positively establishes the fact that the trial court failed to consider the depositions. However, if it did it would not have failed to receive any information which failure would have made the summary judgment erroneous. Error, if in fact existent, was harmless.

The response of the School District included its action (cross-action) to collect the taxes assessed in full. Its motion for summary judgment was filed on January 25, 1967 and judgment for the taxes was sought. Judgment was rendered April 14, 1967. Appellant contends that since taxes do not become delinquent until February 1st of the year following that for which payable, the cross-action against it was premature.

The error, if any, is certainly other than fundamental. Actually, we are of the opinion that contention of error in said respect is frivolous. Surely appellant should not be heard to contend he does not owe taxes assessed and to attempt — in the same suit — to prevent judgment against him for such taxes in the event the decision should go against him.

All points of error have been severally considered and are overruled.

Judgment is affirmed.


author: SELLERS, Justice.

text:
    H. J. WATSON, Appellant, v. E. J. WARD, Appellee.
    No. 273.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 7, 1967.
    Rehearing Denied Jan. 11, 1968.

      White, McElroy & White, B.- Thomas McElroy, Dallas, Saunders & Caldwell, Tyler, for appellant.
    Richard W. Fairchild, Nacogdoches, for appellee.
   SELLERS, Justice.

This is a personal injury and property damage suit brought by E. J. Ward, appel-lee, against H. J. Watson, appellant. The suit is the result of a collision between two pickup trucks owned by the respective parties. The collision took place south of Palestine in Anderson County. There is ample evidence to support the alleged negligence of appellant and no question is raised on this appeal with reference thereto.

The appeal involves the sufficiency of the evidence to support the jury’s findings to Issue No. 14 and Instructions 5 and 6 in connection therewith. The issue is as follows :

“What sum of money, if any, do you find from a preponderance of the evidence, if paid now in cash, will fairly and reasonably compensate E. J. Ward for his damages, if any, directly and proximately caused by the injuries, if any, sustained by E. J. Ward in the collision in question ?
“Answer by stating the amount, if any, in dollars and cents.
“ANSWER: $45,000.00.
“In arriving at your answer to the foregoing Issue, you are instructed that you may take into consideration such of the following elements of the damages which you may find from a preponderance of the evidence, and none other:
* * *
“(5) Diminished capacity, if any, of E. J. Ward to work and earn money to the time of this trial, directly and proximately caused by the injuries, if any, sustained by him in the collision in question.
“(6) The disminished capacity, if any, of E. J. Ward to work and earn money which he will in reasonable probability suffer in the future, directly and proximately caused by the injuries, if any, sustained by him in the collision in question.”

Appellee makes the point that the assignment brought forward by appellant was not raised in the trial court and therefore, this court cannot consider same on this appeal.

Appellant has called our attention to a recent decision by the Supreme Court which in our opinion causes the point raised by appellee to be without merit. Rosas v. Shafer, Tex.Civ.App., 411 S.W.2d 809.

The big objection to the evidence made by appellant is the fact that the only medical evidence offered on the trial was that of Dr. Thomas, a chiropractor who, in the opinion of appellant, was not qualified to give evidence as to the extent of appel-lee’s injuries, which he freely gave on the trial of the case to the jury. The objection does not dispute that the doctor is qualified to practice his profession, but that a chiropractor is not qualified to testify that the injury to appellee is permanent, and that opinions of future disability must be based on reasonable medical probability, and not on the opinion of a chiropractor.

The doctor diagnosed the appellee’s injury as that commonly known as a whiplash, involving only the muscles, blood vessels, nerves and vertebrae in and around the neck. The doctor is not qualified to operate on the human body, nor is he qualified to write prescriptions for medications. The only treatment given appellee by the doctor was the manipulation of the vertebrae and affected parts with his hands, and the application of heat treatments.

We are of the opinion that the doctor’s evidence is admissible. The rule controlling is set out in A.L.R.2d, Volume 52, page 1385, as follows:

“It is a general rule that a chiropractor is competent to testify in a personal injury action as an expert or medical witness, concerning matters within the scope of the profession and practice of chiropractic.”

This rule has been followed in Texas in the case of Maryland Casualty Company v. Hill, Tex.Civ.App., 91 S.W.2d 391.

Appellant’s next point of error is that the trial court erred in not sustaining appellant’s objection to the amount of the court’s judgment ($48,051.80), as being excessive, and this court after considering all of the evidence is of the opinion that the trial court should have so held.

The collision between the two trucks took place on a narrow road, and appellee saw the appellant coming toward him. Appellant’s truck struck the left hand side of ap-pellee’s truck near the driver, who was not the appellee. Appellee was seated in his truck on the right hand side. Appellant’s truck struck appellee’s truck while sliding sideways a glancing blow, doing damage to appellee’s truck in the agreed amount of $759.80. Appellee’s truck was driven on into Palestine after the collision. There were two other parties in appellee’s truck besides him, one of whom was driving and neither received injury from the collision. Appellee testified that he was jostled around in the truck and received his injuries; that he did not know what his head hit or how he received this injury but that it knocked him blind for a few minutes; that he got out of his truck and went to someone’s house nearby and called the Sheriff’s office in Palestine to send a highway patrolman out to the scene of the accident, which they did. After the telephone call, appellee returned to the scene of the accident and engaged the appellant in conversation and found that appellant was drunk. Appellee got close enough to appellant to smell liquor on his breath. The appellee’s wife came out to the scene of the accident and furnished the appellee two aspirin tablets. The highway patrolman came and made an examination after which appellee went to his home in Palestine. This collision took place on July 26, 1964. The only doctor to examine the appellee was Dr. Thomas, the chiropractor, who made his examination on July 29, 1964, and found a subluxation, a departure from the normal curve of the spine and narrowing of disc space. He testified that appellee’s neck was swollen and that he had other symptoms which the doctor called a whiplash; that he treated appellee from then until the trial many times; that the appellee had reached his maximum recovery some time before the trial and that his injury was permanent and would prevent the appellee from ever doing manual labor as a carpenter which was the kind of work ap-pellee was engaged in prior to the accident. There is no contention that any bones were broken in appellant’s body and it is admitted that he never went to a hospital for treatment and whatever pain he suffered, he took no medication to ease the same but said he just “toughed it out.” The fifth day after the accident, appellee was back at the scene of the accident with an investigator from his attorney’s office, making measurements on the ground. While ap-pellee had in 1961 a low back injury for which he was treated by Dr. Thomas, he had fully recovered from the same before this collision and there is no claim that this injury aggravated the low back injury.

The record shows that appellee did some work after the collision but that it caused him pain. His doctor advised him against surgery as being too expensive and also for fear the surgeon’s knife might by accident cut nerves which might make bad matters •worse. Besides being a carpenter, the ap-pellee testified that he was an ordained minister of the Pentecostal Holiness Church; that he had been preaching since 1960, but had been ordained for about one year; that he had preached at Glad Tidings Assembly of God and the Full Gospel Church, both in Anderson County.

We are of the opinion that this judgment should be reduced to the sum of $20,000.00. There are many cases reported where much worse injuries were received and the verdict and judgment of the court reduced, but it would serve no useful purpose to cite the same here, as every case must be judged by its own facts. However, the following cases give this Court some comfort for our opinion. Henwood v. Moore, Tex.Civ.App., 203 S.W.2d 973; Graham v. Morris, Tex.Civ.App., 366 S.W.2d 792.

We will therefore affirm the judgment for the amount of $20,000.00, should the ap-pellee grant a remittitur of $28,051.80 within fifteen (15) days from this date; otherwise, the judgment of the trial court will be reversed and the cause remanded.

SUPPLEMENTAL OPINION

In our opinion delivered and filed on December 7, 1967, this Court suggested that if appellee would file a remittitur in the sum of TWENTY EIGHT THOUSAND FIFTY-ONE AND 80/100 DOLLARS ($28,-051.80) within fifteen days, the judgment of the trial court in favor of appellee would be reformed and, as reformed, affirmed. Ap-pellee filed in writing the suggested remit-titur on December 21, 1967.

Accordingly, the judgment of the trial court is reformed in conformity with such remittitur and, as so reformed, is affirmed.


author: PEDEN, Justice.

text:
    Hyman E. FINGER, d/b/a Furniture Showcase, Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellee.
    No. 15186.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Jan. 4, 1968.
    Rehearing Denied Jan. 25, 1968.

      Jack Lapin, Clarence E. Mayer, Jr., Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Newton Gresham, Tom Connally, Houston, for appellee.
   PEDEN, Justice.

Appellant, the insured, brought suit against the insurer on a fire insurance policy covering stock in a furniture store. The policy limit was $100,000.00, but an endorsement required the insured to file monthly reports of inventory and provided that if the first such report was delinquent when a loss occurred, the limit of liability would be $75,000.00. The policy provides for premiums to be based on the inventory of the insured as reflected by the required reports. The policy was issued on October 1, 1964, and on December 6, 1964, the first report was delinquent by six days when the stock was destroyed by fire; the $75,000.00 was paid by appellee company without prejudice to the rights of the parties, and appellant has filed this cause seeking to recover $25,000.00 more.

The trial court granted defendant company’s motion for summary judgment. Insured’s appeal is based on three general propositions:

1. Appellant did not have a duty to report his inventory.

2. The reporting requirement was actually or substantially complied with.

3. The reporting form requirement does not apply if the insured does not file any report or only files a report after the loss has occurred.

The eight points of error which appellant groups under the first of the general propositions set out above raise the theories of waiver, estoppel and reformation; in addition, appellant asserts that he is not bound by the terms of the policy because it had not been delivered and he had no notice of its terms. Paragraph 9 of the endorsement, Reporting Form “A”, provides:

“VALUE REPORTING CLAUSE— It is a condition of this policy that the insured shall report in writing to this Company not later than thirty (30) days after the last day of each calendar month, the exact location of all property covered hereunder, the actual cash value of such property at each location and all specific insurance in force at each of such locations on the last day of each calendar month. At the time of any loss, if the insured has failed to file with this Company reports of values as above required, this policy, subject otherwise to all its terms and conditions, shall cover only at the locations and for not more than the amounts included in the last report of values less the amount of specific insurance reported, if any, filed prior to the loss, and further, if such delinquent report is the first report of values herein required to be filed, this policy shall cover only at the respective locations specifically named herein and for not exceeding 75% of the applicable limit of liability of this Company specified in the Limit of Liability Clause.”

Appellant asserts in his petition and in his answer to defendant’s motion for summary judgment that he “acquired” a policy providing for a total coverage of $100,000.-00, and that he did not request a reporting form type of insurance policy. Further, he states that the policy had not been delivered and that no notice, either actual or implied, had been given to him or his agents, servants or employees, as to the fact that reports are required under the policy that was issued. Appellant also says that the reporting type of insurance is not the type customarily used in the furniture business and that it was not the type he had at his other furniture store. He next states: “The failure on the part of the Plaintiff to report according to the requirements as set out in insurance policy was as a direct result of the neglect, concealment or fraud on the part of the insurance company. If reporting was necessary according to the terms and conditions of the insurance policy then the Defendant, Insurance Company, has waived or is es-topped from claiming the requirement of reporting.”

We will first consider whether the pleadings, the affidavit and appellant’s admissions raise any fact issues as to waiver or estoppel. Appellant cites California Insurance Co. v. Bishop, 228 S.W. 1010 (Tex.Civ.App., 1920, n.w.h.), to show that under Texas law an agent can waive the reporting requirements of a similar policy, and the cited case does so hold, despite a policy provision to the contrary. The holding in that case is based on the agent’s having agreed before the policy was sold that he would make the reports himself; no such contention is made here.

Appellant contends that appellee’s conduct constitutes a waiver or estoppel and that to deny recovery would constitute a forfeiture. Appellee contends that the question involved is one of coverage and that appellee had neither waived nor was it estopped to rely on the provisions in the reporting form to limit appellant’s recovery under the policy.

We hold that the matter is one of coverage and that the doctrines of waiver and estoppel do not apply.

In Great American Reserve Insurance Co. v. Mitchell, 335 S.W.2d 707 (Tex.Civ.App., 1960, writ ref.), it was held that “Waiver and estoppel may operate to avoid a forfeiture of a policy, but they have consistently been denied operative force to change, re-write and enlarge the risks covered by a policy. In other words, waiver and estoppel can not create a new and different contract with respect to risks covered by the policy.” Washington National Insurance Co. v. Craddock, 130 Tex. 251, 109 S.W.2d 165, 13 A.L.R. 854 (Tex.Com.App., 1937, opinion adopted). A number of cases so holding are cited at 113 A.L.R. 857 and 1 A.L.R.3d 1139.

As to the doctrine of reformation, we find nothing in the record to raise a fact issue as to there having been a meeting of the minds concerning the terms of the policy and that once such meeting of the minds had been reached the policy as issued failed to comply with the parties’ understanding; no facts are alleged which would raise an issue as to whether Reporting Form A was made a part of the insurance contract as a result of a mutual mistake or of a mistake on the part of one party and fraud on the part of the other. In his brief, appellee asserts, “In our case the insured, Hyman E. Finger, requested $100,000.00 worth of insurance * * *” (emphasis added) but no such allegation was before the trial court in any form. Rather, the language used was that he “acquired” the insurance.

We find that the doctrine of reformation is not applicable. St. Paul Fire and Marine Ins. Co. v. Culwell, 62 S.W.2d 100 (Tex.Com.App.); Cranfill-Reynolds Co. et al. v. Security Insurance Co., 67 S.W.2d 258 (Tex.Com.App., 1934).

Appellant asserts that since the insurance contract was not delivered and he had no notice of its terms, he is not bound by it. The record is silent as to why the policy in question had not been delivered when the fire occurred, some 66 days after the issuance of the policy. Appellant puts his failure to report squarely on appellee when he alleges such failure “was a direct result of the neglect, concealment or fraud on the part of the insurance company,” but the allegations of fact by which he prefaces such legal conclusions do not support them, and he does not explain what acts constitute them. Appellant asserts that he was not told about the reporting form, but he does not allege that he made any inquiry and received a false answer.

It is well settled in Texas law that legal conclusions in affidavits are insufficient to warrant the overruling of a motion for summary judgment. Mason v. Mid-Continent Supply Co., 374 S.W.2d 922 (Tex.Civ.App., 1964, ref., n. r. e.).

Appellant has brought this suit on the policy and has already recovered $75,000.-00, so he cannot be seeking cancellation of the policy. We assume that by his point of error asserting that he is not bound by the contract he means that he seeks a reformation of it in part only. We overrule this point for the reasons stated above.

In his second general proposition, appellant says the reporting requirement was actually or substantially complied with. He bases this primarily on the uncontrovert-ed allegation in his pleadings and his affidavit that an agent of appellee was present in appellant’s store on the day of the fire. He assumes that the agent must have known the value of the merchandise was over $100,000.00 and must have reported this to appellee because he failed to notify appellant of the necessity for reporting, although no facts are alleged which might give rise to these assumptions. The pleadings and affidavit do allege that the agent had come to the store for the purpose of explaining the mechanics of the reporting form to appellant, but he had found appellant absent and had not discussed the matter with anyone. No allegation is made as to the agent’s qualifications, if any, to estimate the value of a stock of furniture, nor is it alleged that he inspected it.

The Bishop case and the case of American Eagle Fire Insurance Co. v. Burdine, 200 F.2d 26 (10th Cir., 1952), are both cases in which it was held that the insurer’s agent had by his conduct waived the reporting requirements of the policy.

The allegations of appellant in the instant case raise no such fact issue. We hold that appellant’s second proposition is not well taken.

In his third and last general proposition, appellant says that the reporting form requirement does not apply if the insured does not file any report, or only files a report after the loss has occurred.

This proposition is based on his contention that Paragraph 9 of Reporting Form A is ambiguous. We have set out such paragraph earlier in this opinion; we believe that its meaning is clear and that appellant has already recovered all the contract entitles him to receive.

For the reasons stated, we find that appellant’s pleadings, affidavit and admissions do not raise any fact issues which would warrant the overruling of appellee’s motion for summary judgment.

The judgment of the Trial .Court is affirmed.


author: HIGHTOWER, Chief Justice. STEPHENSON, Justice.

text:
    O. Dean COUCH, Jr., d/b/a Couch Mortgage Company, Appellant, v. Leslie BABB and wife, Beatrice Babb, Mrs. R. L. Thornton, and Hartford Accident and Indemnity Company, Appellees.
    No. 6884.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 11, 1968.
    Rehearing Denied Jan. 26, 1968.

      Robert H. Fisher, Houston, for appellant.
    Coker & Coker, Conroe, for appellees.
   HIGHTOWER, Chief Justice.

Plaintiffs, Leslie Babb and wife, brought suit against O. Dean Couch, dba Couch Mortgage Company, and other defendants, for cancellation of a mechanic’s and materi-alman’s lien and deed of trust upon their homestead. Judgment consistent with their pleadings was entered in favor of plaintiffs by the court sitting without a jury. On this appeal, Couch complains of the failure of the trial court to enter judgment consistent with his cross-action. By said cross-action, he sought to recover the face amount of a $2,997.00 promissory note which had been executed by the Babbs evidencing the lien. The judgment only allowed Couch recovery against the Babbs in the amount paid for the note which was $2,096.25. This was error. The note matured November 9, 1964. In the first count of his cross-petition, Couch sought recovery against the makers of the negotiable promissory note, alleging the face amount of $2,997.00 and the balance owing which was $2,997.00. The pleading filed in answer to the cross-petition was an unverified general denial. Leslie Babb admitted execution of the note, and agreement to pay $2,997.00 for the labor and material described in the contract, and his subsequent refusal to pay the said sum.

Every note holder is deemed a holder in due course and no evidence was presented to assail Couch’s position as a holder in due course on the note sued upon. As stated by the Supreme Court in Southwestern Fire & Casualty Company v. Larue, Tex., 367 S.W.2d 162:

Since the execution of the note and its endorsement were not in issue and since the burden was upon Larue to establish payment on the note, the trial court did not err in overruling Larue’s special exception which would have required the company to show what payments had been made and when.
Nor do the allegations of the company’s petition create an ambiguity or an issue of fact. It alleged the face amount of the note and the amount which was due on the note. The company could recover no more than the amount sued for, and the burden was upon Larue to prove payment or release of any further sums.

Since the Babbs admitted executing the note, agreeing to pay the debt evidenced by the note, the failure to pay any part of the debt, Couch should have recovered judgment for the face amount of the note together with interest on the entire amount at the rate of 10% per annum as provided in the note, from date the debt was matured, November 9, 1964.

In the second count of his cross-action, Couch sought recovery against Mrs. R. L. Thornton, the notary public whose signature and seal of office appeared on the contract for labor and material and trust deed executed by Mr. and Mrs. Babb, and against her surety, Hartford Accident and Indemnity Company, for any loss he might suffer in the event it was established at the trial that the notary public had negligently completed this certificate. The trial court found as a fact that representatives of Couch’s assignor had represented to Mrs. Thornton that the Babbs were coming in her place of business momentarily, and that she was awaiting their appearance before completing her notarial act. That the Babbs at no time made their appearance before Mrs. Thornton and shortly after finishing her signature and seal, said representative of Couch’s assignor forcefully took the instrument and left her place of business. That Mrs. Thornton had not voluntarily relinquished possession of the instrument prior to completing her notarial duties.

This finding by the trial court amounted to a finding that Mrs. Thornton was not negligent or derelict in her duties as a notary public on the occasion in question. Moreover, proximate cause is an essential element of negligence. Foreseeability is an essential element of proximate cause. An act of conduct may be held the proximate cause of injury, loss, or damage only when the calamity or injurious occurrence was the natural and probable result of his acts. Texas and Pacific Ry. Co. v. Floyd, 309 S.W.2d 525 (Tex.Civ.App., Ref. n. r. e.). In order to warrant a finding that negligence was a proximate cause of an injury, the injury must have been foreseeable by the wrongdoer at the instant of the wrong. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560. Further, a new and independent cause will serve to break the causal connection between the original negligent act and the resulting injury. Bryant v. Banner Dairies Inc., 255 S.W.2d 271, (Tex.Civ.App., Ref. n. r. e.).

Mrs. Thornton had no way of foreseeing that the said representatives of Couch’s assignor would forcibly take away the purported contract before she had completed her notarial act. In any event, the act of these men constitutes a new and independent cause breaking any causal connection.

By his last point of error, Couch complains of the failure of the trial court to find as a fact: “That defendant and cross-plaintiff Couch relied upon the certificate of the notary public, Mrs. R. L. Thornton, in purchasing the promissory note and contract executed by Cross-defendants Babb.”

The court’s failure to so find was not error under the facts of this record. In the first place, the facts which were requested to be found by the court were undisputed in the record and in such case, no finding thereof was necessary. Secondly, the additional findings requested were not material to any issue in the case. Whether Couch relied on the notary public certificate is immaterial if the notary public was guilty of no negligence as found by the court. No judgment could be sustained against the notary public irrespective to the appellant’s point, if no negligence was committed by the notary public.

Judgment of the trial court denying Couch recovery for the full face of amount of the note against the Babbs is reversed, and judgment is here rendered that Couch recover the face amount of said note in the sum of $2,997.00 with interest thereon at the rate of 10% per annum from the date of November 9, 1964. In all other respects, the judgment of the trial court is affirmed with costs to be assessed between the parties equally.

Affirmed in part and in part reversed and rendered.

STEPHENSON, Justice.

I respectfully dissent:

The appellant’s first point of error, and the only point of error mentioning the amount of the judgment is as follows:

The Court’s error in awarding recovery against makers of the note in the amount for which note was purchased, with interest from date of purchase, rather than for the balance owing and sued for.
Finding of Fact #10 made by the trial court is as follows:
That the balance due and owing on said note by Plaintiffs at the time of the entry of the judgment is $2,306.22.

In my opinion this point of error does not raise a “no-evidence” point in reference to the finding by the trial court that the balance due and owing was the amount for which judgment was entered. Apparently, the appellant did not construe this point of error to be an evidentiary point, as the amount due upon the note according to the evidence is not discussed in the brief. This not being fundamental error, and the appellant’s points or error failing to raise the matter passed upon by the majority opinion, I would affirm the judgment of the trial court.


author: O’QUINN, Justice.

text:
    GAY HARRIS AND SON, INC., Appellant, v. E. H. SCHLATHER & SONS, Appellee.
    No. 11559.
    Court of Civil Appeals of Texas. Austin.
    Jan. 10, 1968.
    Rehearing Denied Jan. 31, 1968.
    L. Alvis Vandygriff, Austin, for appellant.
    Threlkeld, Saegert & Saegert, Joe H. Bruns, Seguin, for appellee.
   O’QUINN, Justice.

Gay Harris and Son, a partnership composed of Gay Harris and his son, Don Harris, operated a feed store in Kyle, Texas, and in 1961 incorporated the business under the name Gay Harris and Son, Inc.

In 1964 the Harris store started buying feed from E. H. Schlather and Sons at Cí-bolo, Texas. In July, 1966, the Harris concern bought a quantity of oats from Schlather and ran up an account of $963.98. The account was not paid, and Schlather brought this suit against the corporation and against Gay Harris and Don Harris individually for the account and attorney’s fees.

Gay Harris and Son, Inc., confessed judgment. But Don Harris and Gay Harris individually resisted the suit by plea in abatement. The gist of the plea was that the purchases had been made for the corporation and that at the time of sale Schlather knew that Gay Harris and Son was a corporation.

The trial court overruled the plea in abatement and entered judgment on sworn account against the corporation, Don Harris, and Gay Harris in the amount of $963.98 and attorney’s fees of $321, and for interest on the judgment.

Gay Harris and his son, Don Harris, have appealed.

When the mercantile firm of Gay Harris and Son became incorporated in 1961 without change of firm name, it was required by statute to give notice of its intention to become incorporated under provisions of Article 1302-2.02, Texas Miscellaneous Corporation Laws Act. (Acts 1961, 57th Leg., p. 408, ch. 205, sec. 1; derived from Vernon’s Ann.Civ.St., Art. 1307)

This statute requires that notice be published at least four consecutive weeks in a newspaper in Austin, the seat of state government, and in the county in which the firm has its principal business office, if the county has a newspaper, and if not, then in some adjoining county.

The final provision of the statute reads as follows:

“Until such notice has been so published for the full period above-named, no change shall take place in the liability of such firm or the members thereof.”

It is undisputed that Gay Harris and Don Harris upon incorporating in 1961 under the same name used by them in the partnership did not comply with the requirements of Article 1302-2.02 of the Miscellaneous Corporation Laws Act.

Appellants contend on appeal and asserted in their plea in abatement that Schlather knew Gay Harris and Son was a corporation. There is no direct evidence to support this contention. Schlather was exposed to such knowledge by the fact the corporation had the letters “Inc.” after its name on the truck that picked up the oats at Cíbolo. One check sent to Schlather in payment on the account bore the name “Gay Harris and Son, Inc.” But another check, sent after the first was not honored by the bank for want of sufficient funds, indicated it was the check of “Gay Harris and Son,” due to a printing error.

We believe it is immaterial under the facts of this case whether Schlather was exposed to information that might lead to knowledge of the corporate existence. The marking on the truck and on one check did not convey actual knowledge or information to Schlather of the incorporation of appellants, and certainly did not relieve appellants of the duty to publish statutory notice of their incorporation. American Smelting and Refining Company v. Ridgway, 412 S.W.2d 675 (Tex.Civ.App., Houston, writ ref., n. r. e.).

The language of the statute clearly requires publication of notice of incorporation as a prerequisite to release of the firm members. There is no proof that appellants informed Schlather that the Harris firm was incorporated, ar.d, as already observed, appellants did not publish notice in newspapers as required by statute. We find no issue of fact presented as to the individual liability of appellants. Hobbs v. Triangle Supply Company, 378 S.W.2d 726 (Tex.Civ.App., Eastland, no writ).

There is evidence Don Harris actively managed the business of appellants, his father serving principally as an adviser. There is nothing in the record to show that Schlather was notified that Don Harris was acting only as an agent for the corporation in buying oats from Schla-ther. The giving of a check drawn on the corporation did not put Schlather on notice of any such agency. Anderson v. Smith, 398 S.W.2d 635 (Tex.Civ.App., Dallas, no writ).

We think the trial court correctly held Gay Harris and Don Harris individually liable, as well as the corporation, and that the judgment should be affirmed.

Associate Justice Hughes concurs on the sole ground that the failure of Gay Harris and Don Harris to comply with Article 1302-2.02 fixes their liability in this case as a matter of law.

The judgment of the district court is affirmed.

Affirmed.


author: COLEMAN, Justice.

text:
    TEXAS LIQUOR CONTROL BOARD, Appellant, v. Minerva Alanis PENNINGTON, Appellee.
    No. 15127.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Dec. 28, 1967.
    Rehearing Denied Jan. 25, 1968.
    Crawford C. Martin, Atty. Gen., George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., R. L. Lattimore, Douglas H. Chilton, Asst. Attys. Gen., Austin, for appellant.
    Charles M. Leftwich, Houston, for appel-lee.
   COLEMAN, Justice.

This is an appeal from a judgment setting aside an order of the Administrator of the Texas Liquor Control Board cancelling appellee’s wine and beer permit.

The case was tried de novo in the District Court under the substantial evidence rule. It is the duty of this Court to determine whether the order is supported by substantial evidence. In determining that question, the test has been announced in Railroad Commission v. Shell Oil Company, 139 Tex. 66, 161 S.W.2d 1022 (1942): “If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside.”

In Texas Liquor Control Board v. Cervantes, 333 S.W.2d 466 (Tex.Civ.App., San Antonio 1960, n.w.h.), the court stated:

“Under the substantial evidence rule neither the District Court nor this Court may set aside the Board’s order merely because the evidence is conflicting, if there is substantial evidence in reasonable support of the order. Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198; Texas Liquor Control Board v. Redd, Tex.Civ.App., 285 S.W.2d 400.”

Vernon’s Annotated Penal Code, Article 667-19, subd. A. provides as follows:

“The Board or Administrator may cancel or suspend for a period of time not exceeding sixty (60) days, after notice and hearing, any license or any renewal of such license, upon finding that the licensee has:
“(16). Consumed or permitted the consumption of alcoholic beverages on the licensed premises during any time when such consumption is prohibited as provided in Section 4(c) of Article I of the Texas Liquor Control Act; * * *”

Article 1, § 4(c) of the Texas Liquor Control Act [Vernon’s Ann.P.C., Art. 666-4(c)] provides:

“(1) It shall be unlawful for any person to consume any alcoholic beverage in any public place, or for any person to possess any alcoholic beverage in any public place for the purpose of consuming same in such public place, at any time on Sunday between the hours of 1:15 a.m. and 1:00 o’clock p.m. * * * »

Inspector McCarver of the Texas Liquor Control Board testified that oh Sunday morning about 1:35 or 1:40 a.m. he and Inspector Cooper returned to Minerva’s Groceries and Cafe after a previous after-hours visit. They saw five or six cars in front of the place and could hear noises coming from inside although the outside lights were off. He looked through the clear border of a stained glass window at the side of the establishment and saw two men playing pool and two men sitting at the bar with the licensee. He observed each one of them consume something from white styrofoam cups. Finally he saw one of the men walk behind the bar and take a Falstaff beer out of a cooler. He saw him open it and pour the contents into one of the cups. This man then seated himself and began drinking from the cup. He then went in and smelled and tasted each of the cups. He testified that each of the cups contained beer. This testimony was clear and positive. Much of it was not directly denied. It alone constitutes substantial evidence reasonably supporting the order of the Administrator.

The trial court erred in setting aside the order of the Texas Liquor Control Board of February 28, 1967, cancelling the wine and beer retail permit License No. 184587 issued to Minerva Alanis Dodd, Minerva’s Groceries and Cafe, of Monaville, County of Waller, State of Texas.

The judgment of the Trial Court is reversed and judgment is here rendered that said order be reinstated and that Minerva Alanis .Pennington take nothing by her suit.

Reversed and rendered.

PEDEN, J., not participating.


text:
    Roy T. BOSTICK, Appellant, v. H. A. OWENS et al., Appellees.
    No. 16873.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 29, 1968.
    Rehearing Denied Jan. 26, 1968.
    Fannin & Fannin, and Oliver W. Fan-nin, Jr., Fort Worth, for appellant.
    S. G. Johndroe, Jr., City Atty., Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

The appeal is from the granting of a defendants’ motion for summary judgment, with corresponding denial of plaintiff’s motion for similar relief.

Reversed. Summary judgment rendered for plaintiff-appellant.

Roy T. Bostick, plaintiff below and appellant here, initiated suit against H. A. Owens, Chief of the Fire Department of the City of Fort Worth, and the members of the Firemen’s and Policemen’s Civil Service Commission of the City of Fort Worth. Plaintiff, a member of the City’s Fire Department sought to have it declared that he was entitled, as of September 1, 1965, — or, alternatively as of December 10, 1965 — to be promoted to Lieutenant. Such right, according to plaintiff, was — in view of circumstances existent September 1, 1965 — provided by V.A.T.S. Art. 1269m, “Firemen’s and Policemen’s Civil Service Act”, and particularly under Secs. 8, 10 and 14 thereunder.

We hold for plaintiff-appellant on the theory that the intent and purpose of the Act is that the top man on an eligibility list when the vacancy occurs has the primary right to fill the same.

Factual background of the case is not a matter of dispute. The pertinent facts are:

(1) The vacancy for the position of Lieutenant in the Fire Department which appellant contends he was entitled to be promoted to fill occurred September 1, 1965.

(2) At the time this vacancy occurred, there was in existence a Civil Service eligibility list for promotion to the position of Lieutenant in the Fire Department, which eligibility list remained in effect until September 16, 1965, on which date it expired.

(3) Appellant was the top man on this eligibility list from September 1, 1965, when the vacancy occurred, until the list expired.

(4) The vacancy remained in existence (D. A. Atchley being temporary acting Lieutenant) continuously from September 1, 1965, until December 10, 1965, on which date the vacancy was filled by the promotion of D. M. Carr to permanent Lieutenant.

(5) On November 30, 1965, three months after the vacancy occurred and approximately two and a half months after the eligibility .list upon which appellant was top man expired, an examination for a new Civil Service Lieutenant’s eligibility list was given.

(6) A new Lieutenant’s eligibility list based on the November 30, 1965 examination was posted and became effective December 2, 1965, D. M. Carr being the top man on such list.

(7) On December 10, 1965, the vacancy which appellant contends he was entitled to fill was filled by the promotion of D. M. Carr, the top man on the new eligibility list, to the position of permanent Lieutenant.

Our opinion is that under proper construction of the law as applied to these facts plaintiff-appellant was entitled to be promoted to the vacant position of Lieutenant. The latest date for effecting such promotion was 90 days from September 1, 1965, the date the vacancy occurred.

However, it appearing that plaintiff’s prayer for relief as of September 1, 1965 was properly denied, and that alternative prayer requesting the same relief as of December 10, 1965 should have been granted, the order of this court is that plaintiff receive the promotion which he seeks, with all the rights and emoluments attendant thereto, retroactive and effective as of December 10, 1965.

Reversed, summary judgment rendered as prayed for by plaintiff-appellant.