author: WERLEIN, Justice. WERLEIN, Justice.

text:
    The STATE of Texas et al., Appellants, v. SOUTH MAIN BAPTIST CHURCH et al., Appellees.
    No. 13885.
    Court of Civil Appeals of Texas. Houston.
    Oct. 11, 1962.
    Rehearing Denied Nov. 15, 1962.

      Joe Resweber, County Atty., Charles F. Mitchell, Edward J. Landry, Asst. County Attys., Houston, for appellants.
    Vinson, Elkins, Weems & Searls, M. C. Chiles, F. Russell Kendall, Jarrel D. McDaniel, Houston, for appellees.
   WERLEIN, Justice.

This suit was brought by the State of Texas and Harris County, appellants, against South Main Baptist Church and its trustees, and other parties not involved in this appeal, to condemn for highway purposes three tracts of land belonging to the Church in Houston, Texas. The first tract sought to be condemned consists of 38 square feet in Block 13; the second tract, 9374 square feet in Block 12; and the third tract, 20,409 square feet in Block 7, all in the James Bute Addition in the City of Houston, Harris County, Texas. To the award of $82,045.00 by the special commissioners appointed by the court, appel-lees filed their objections in the trial court, and upon a trial by jury were awarded a judgment in the sum of $211,348.00, from which judgment appellants have duly perfected their appeal.

The three tracts of land actually taken herein will be referred to as Tract 1, Tract 2 and Tract 3. The jury allowed for Tract 1 $114.00 and $7500.00 damages to the remainder of the Church property in Block 13; for Tract 2, which was entirely taken, $35,152.50; for Tract 3, $80,183.75 and $31,593.00 damages to the remainder of the Church property in Block 7; and damages in the sum of $56,804.75 for decrease in the intrinsic value of Tract 4 due to the taking of Tracts 1, 2 and 3.

Tract 4, upon which is situated the Church sanctuary and an educational building, like Tracts 1, 2 and 3, is a separate and isolated tract of land non-contiguous to any one of the other tracts.

We here insert a map of a portion of the James Bute Addition, being Appendix I to appellants’ brief, showing the tracts in question.

EXHIBIT

KEXs Tracts 1, 2 and y are indicated on the map. The remainder is.shown hy horizontal lines.
Map a portion of the James Bute Addition, Houston, Harris County, Texas
Scale 1" equals 200'

Appellants contend that the finding by the jury of $7500.00 damages to the remainder of the tract from which Tract 1 was severed, is so against the great weight and preponderance of the evidence as to be manifestly unjust. Tract 1 contains only 38 square feet near the rear of the tract of land upon which is situated appellees’ recreation building. Appellees in seeking damages to the remainder of the tract of land from which Tract 1 was severed, rely principally upon the fact that the Southwest Freeway, for which purpose the condemnation in question was undertaken, now passes near the rear of said recreation building and exposes its rear to public view. They claim that as a result thereof they have been damaged to the extent of what it will cost to make the rear of the building look like the front of the building. The east and south walls of the recreation building, and a little turn-around near the rear, are constructed of a buff-faced brick, whereas the rear of said recreation building, which is now more exposed to view because of the Freeway, is constructed of what is commonly known as pink or reddish common brick. Between the Freeway and the building is a service road and ample room for a sidewalk, as shown on Plaintiffs’ Exhibit 19. The Richmond Avenue exit from the Freeway permits leaving the Freeway just south of Richmond Avenue and continuing on such exit road in a northerly direction across Richmond, thus permitting direct access to the recreation building on Colquitt Avenue.

We think that the evidence wholly fails to show that the use or utility of the recreation building has been injuriously affected by taking as a part of the service road or sidewalk the small tract of 38 square feet. The rear walls of such building are substantial brick walls and no change whatever has been made therein by the construction of the Freeway, or the taking of the 38 square feet. The inserted map shows that the rear of such building was exposed to view by people on Bute and Colquitt Streets and perhaps on West Main Street prior to the taking, except as their vision was obscured by buildings on such streets. Witness Lee testified that he thought there was some damage to the recreation building and that such damage would be the amount that it would take to make the rear of the building look like the front of the building. This was substantially tthe testimony of Witness Clawson also.

It is our view that since no change whatever was made in the building itself by appellants, they are not responsible for the fact that the public may have a little better view of the rear of the recreation building now than they had prior to the taking and the construction of the Freeway. Witness Allen, who qualified as an expert realtor and appraiser, testified as to the value of the 38 square foot triangle that was taken, and also testified that such taking just barely nipped off the corner of the tract on which the recreation building is located, and that he did not include the improvements because the improvements were not affected at all. Lloyd Fadrique, another. qualified realtor and appraiser, also testified as to the value of Tract 1 taken, andi testified that he felt that the remainder was-not damaged by the taking of the small portion of land which was not being used! and which was taken off of the rear of the site upon which the educational building' was constructed and which would not damage its use or utility. Mr. Finley, a real estate agent and appraiser, testified that the value of the remainder from which Tract 1 was severed, was the same before and after the taking. Dust, noise and traffic hazards, if any, incident to the use of the Freeway cannot be considered as they are common to all the buildings and homes located near the Freeway. The cost of beautifying the recreation building when it is structurally sound and nothing has been done to change or mar its appearance in any way whatever, does not constitute a proper element of damages. Furthermore, the testimony of Witnesses Lee and Clawson with respect to such alleged damage as the result of the taking of Tract 1, consists merely of conclusions. As stated in Tennessee Gas and Transmission Co. v. Zirjacks, Tex.Civ.App., 244 S.W.2d 837, error dism., in the opinion of Justice Norvell: “One claiming damages to land must show the nature of the damage, the effect upon various portions of the tract and the relationship of the same to market value. A mere conclusion as to market value is insufficient for this purpose.”

Basing our holding on the entire record, it is our view that the finding of damages by the jury of $7500.00 to the remainder of the tract of land from which Tract 1 was taken is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have read the statement of facts and have concluded that the jury’s findings that Tract 1 had a value of $114.00, that Tract 2, all of which was taken, had a reasonable market value of $35,152.50, that Tract 3, which was taken, had a reasonable market value of $80,183.75, and that the remainder of the tract from which Tract 3 was taken was damaged to the extent of $31,593.00, find support in the evidence. The jury also allowed, however, $56,804.75 for the loss of the intrinsic value of Tract 4. No part of Tract 4 was taken for Freeway purposes, nor is the Freeway contiguous thereto. West Main Street separates Tract 4 from Block 7, from which Tract 3 was taken, and Brandt Street separates Tract 4 from the tract of land in Block 13 from which Tract 1 was taken, although the evidence shows that there is a tunnel connecting Tract 4 with the recreational building situated on Block 13.

Appellants in their second point assert that the court erred in submitting Special Issue No. 8 inquiring as to whether Tract 4 had a market value since appellees in their pleadings and testimony judicially admitted that such tract did have a market value. Appellees on the other hand contend that this point should not be considered by the court because not raised in appellants’ motion for new trial. We agree that the point is not sufficiently raised in appellants’ motion for .new trial. It is our view, however, based upon the entire record that ap-pellees did not judicially admit in their pleadings or testimony that Tract 4 had a market value. We think there was ample evidence to support the jury findings that Tract 4 did not have a market value but did have an intrinsic value on May 18, 1959, the date of taking. It was not error, therefore, for the court to submit Special Issues Nos. 10 and 11 relating to the intrinsic value of Tract 4 before and after the taking of Tracts 1, 2 and 3, nor was it error for the trial court to overrule appellants’ motion to disregard such findings. We cannot say that such findings are so against the great weight and preponderance of the evidence as to be manifestly unjust.

In their fifth point appellants complain that the trial court erred in submitting issues relating to compensation for the decrease in market value of the individual remainders of the tracts of land from which Tracts 1 and 3 were severed, since under the unity of use theory of appellees, the issue of compensation for the decrease in value resulting from the taking of Tracts 1, 2 and 3 should specify and embrace the decrease in value of the whole of appellees’ property, and not merely the individual tracts of land from which Tracts 1 and 3 were severed.

We agree with appellees that appellants’ Point V cannot be considered because it was not raised in appellants’ motion for new trial, and for the further reason that appellants in their objections and exceptions to the court’s charge, did not object or except to the submission of the issues relating to damages to the remaining tracts of land from which Tracts 1 and 3 were severed on the ground that the decrease in value of appellees’ property as a whole should have been submitted under the unity of use theory. It is true that in their motion for new triral and in their objections and exceptions to the submission of Special Issue No. 11 in the court’s charge, appellants pointed out in a general way that the submission of such issue relating to the decrease in value of Tract 4 would result in giving appellees double damages, but, as stated, there is no objection or exception or allegation in the motion for new trial to the effect that the submission of the first seven issues would result in double damages or that the case should have been submitted on the unity of use theory. Moreover, at the commencement of the trial appellants consented to the submission of the special issues relating to damages to the remainders of the separate tracts of land from which Tracts 1 and 3 were severed.

We think the undisputed evidence shows that the tracts of land belonging to appellees constituting the Church property, were being devoted to a unity of use that united them into an entity of use, so that they should have been considered as such entity for purposes of estimation of damages to the remaining lands of the Church as a whole upon the taking of Tracts 1, 2 and 3. Rayburn, Texas Law of Condemnation (1st ed.), Ch. V-E, Sec. 160(1), pp. 455-459. In McLennan County v. Stanford, Tex.Civ.App., 350 S.W.2d 208, the court stated:

“Where separate, but contiguous tracts are integral parts of an entity under common ownership in such physical and functional relationship that they are joined by unity of use by the same proprietor into a single property, they will be treated as a whole in assessing damages to the remainder in the taking of a part.” (Citing authorities.)

The unity of use rule may also be applied where an owner’s land devoted to a single use or purpose is divided by long established public streets or highways. See 6 A.L.R. 2d 1212 — 1227; Trustees of Boston University v. Commonwealth (1934), 286 Mass. 57, 190 N.E. 29; Texas Electric Service Company v. Linebery, Tex.Civ.App., 327 S.W.2d 657, 662, writ dism.; 22 Tex.Jur.2d, p. 246, § 152, Eminent Domain.

Under the circumstances of this case, however, it was not error to submit the first seven issues on the theory that Tract 2 and the tracts from which Tracts 1 and 3 were severed, were separate, isolated tracts. The error was in the submission of issues with respect to damages to Tract 4 on a unity of use basis after appellees with consent of appellants had elected to treat the other tracts as isolated tracts of land. If the case had been submitted under the unity of use rule, then damage to Tract 4 and the other tracts as a whole remaining after Tracts 1, 2 and 3 were taken, might have been considered by the jury. We find no authority, however, which would permit a combination of the non-unity of use rule and the unity of use rule under the facts of this case. The error, however, cannot be said to be fundamental error.

Appellants failed to level objections and exceptions to the submission of damages to Tract 4 under the unity of use rule after the court had impliedly found that the non-unity of use rule was applicable in the submission of the first seven issues, and also failed to raise such point in their motion for new trial. They do not have any point in their briefs covering such error, although in the statements and arguments in their briefs they now complain for the first time that it was error to submit the first seven issues on the non-unity of use theory and then submit the issue of damages to Tract 4 on the unity of use theory. Hence appellants by their failure to object or except to the court’s charge or to submit special issues now claimed by them to be the proper issues, have waived their right to complain of the manner in which such issues were submitted. Rules 274 and 279, Texas Rules of Civil Procedure; Frozen Foods Express v. Odom, Tex.Civ.App., 229 S.W.2d 92, writ ref., n. r. e., and cases cited; Lloyd’s Casualty Insurer v. Castle, Tex.Civ.App., 268 S.W.2d 498, writ ref., n. r. e.; Southwestern Settlement & Development Corp. v. State, Tex.Civ.App., 282 S.W.2d 78, writ ref., n. r. e.; U. S. Liability Ins. Co. v. Baggett, Tex.Civ.App., 285 S.W.2d 804, writ ref., n. r. e.; Stone v. Williams, Tex.Civ.App., 358 S.W.2d 151; Seymour v. Texas & N. O. Ry. Co., Tex.Civ.App., 209 S.W.2d 814, error ref.; Texas Employers Insurance Ass’n v. Texas Steel Erection Co., Tex.Civ.App., 344 S.W.2d 457, writ ref., n. r. e.

If appellees will file herein a remittitur of $7500.00 on or before October 15, 1962, the judgment of the Trial Court will he reformed accordingly, and, as reformed, affirmed; otherwise, the judgment of the Trial Court will be reversed and the cause will be remanded for new trial.

BELL, C. J., disqualified and not sitting.

On Filing of Remittitur

WERLEIN, Justice.

On September 27, 1962, we indicated by an opinion in writing that if appellees would file a remittitur of $7500.00 on or before October 15, 1962, the judgment of the trial court would be reformed, and, as reformed, would be affirmed; otherwise the judgment of the trial court would be reversed and the cause remanded. Appellees have filed the suggested remittitur of $7500.00.

Accordingly, as of this date, the judgment of the trial court is reformed by deducting the amount of $7500.00 from the judgment recovered by appellees, and, as so reformed, is affirmed, Chief Justice Bell disqualified and not sitting.

Motion for rehearing may be filed by either party within fifteen days after this date.


source: Caselaw Access Project

author: RICHARDS, Justice.

license: Public Domain

text:
    GULF INSURANCE COMPANY, Appellant, v. Victor VELA, Appellee.
    No. 11033.
    Court of Civil Appeals of Texas. Austin.
    Nov. 7, 1962.
    Rehearing Denied Nov. 21, 1962.

      Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellant.
    Harris, Ball & Jones, Arlington, for ap-pellee.
   RICHARDS, Justice.

Victor Vela, appellee, sued Charlie Barnes for damages for personal injuries received by him while driving his automobile which was involved in a collision with an automobile owned by Frede E. Timmons and driven at the time of the collision by Charlie Barnes with the permission of the owner. Judgment was rendered in favor of Vela and against Barnes for recovery of $15,000.

Appellee then instituted this suit against Gulf Insurance Company, appellant, alleging that at the time of the accident there was in force a policy of automobile liability insurance issued by appellant to Frede E. Timmons covering the automobile driven by Barnes as a permissive user at the time of the collision which contained a policy limit of $5,000 insurance for bodily injury to any person injured in an accident arising out of the ownership of the automobile in question. Appellee sought a recovery against appellant for $5,000 based upon the terms of the insurance policy.

Appellant answered alleging that the policy of insurance issued to Timmons did not inure to the benefit of Barnes since the automobile covered by the policy had been sold to Barnes prior to the time of the accident, and that no recovery could be had against appellant on the policy since there had been no “actual trial” in the case of “Vela v. Barnes” as required by the terms of the insurance policy. The case was tried before a jury which found in answer to the only special issue submitted that Barnes on the date of the accident was not the owner of the automobile involved.

Appellant presented motion for an instructed verdict and motion non obstante veredicto, both of which were overruled. The Trial Court rendered judgment in favor of appellee against appellant for $5,-000.00 together with interest and costs. Appellant thereupon filed motion for new trial, which was overruled and this appeal was perfected.

Appellant’s first four points of error are directed to the error of the Trial Court in submitting to the jury, at the request of appellee over appellant’s objections, the instruction defining the term “owner” in connection with Special Issue No. 1 which was:

“Do you find from a preponderance of the evidence that Barnes on January 16, 1960, at the time of the collision with Plaintiff Vela, was the owner of the automobile in question?”

to which the jury answered “No.’’

The instruction complained of is as follows :

“You are instructed that the term ‘owner’ as used in this charge is one who has the immediate right to the use and possession of the automobile and who is in possession of said automobile under a specific agreement of purchase as distinguished from a mere borrowing the automobile for temporary use.”

The errors assigned are that the Court failed to instruct the jury that: (1) there could be a purchase of an automobile by verbal agreement and that it did not have to be in writing; (2) there could be a valid purchase of an automobile even though the purchase price was to be paid at a later date; (3) there could be a valid purchase of an automobile even though the Certificate of Title was not to be delivered until the automobile had been paid for; and (4) there could be a valid purchase of an automobile even though it was not paid for in cash.

Rule 272, Texas Rules of Civil Procedure, provides, in part, that the Trial Judge “shall so frame his charge as to distinctly separate questions of law from questions of fact, and not therein comment on the weight of the evidence, and so as to instruct the jury as to the law arising on the facts, and shall only submit controverted questions of fact.” Rule 277, T.R.C.P., also provides that in submitting special issues, the Court shall submit such explanatory instructions and such definition of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on the issues.

The testimony of appellant’s witness Timmons, the insured under the insurance policy issued by appellant, and Barnes, the defendant in the first suit brought by ap-pellee, as to whether there had been an actual agreement entered into between the parties prior to January 16, 1960, the date of the accident, for the sale of the automobile by Timmons to Barnes was conflicting. Timmons stated on cross examination that prior to January 16, 1960 he had not signed the Certificate of Title to the automobile in any form nor had Barnes on his part paid him any amount of money nor had he entered into any type of written contract with Barnes as to the car, nor did Barnes either give him any checks or sign any notes payable to him.

Appellant urges that the failure of the instruction to state that the title to the automobile could pass as a matter of law without the execution of the Certificate of Title would tend to confuse the mind of the jurors in answering the Special Issue. Neither the Trial Court nor this Court is gifted with telepathic powers to peer into the minds of the jurors to determine their mental processes in arriving at their decision.

The sufficiency of explanations and definitions as to form is largely in the discretion of the Trial Court and the test is the reasonable clearness of the definitions to enable the jurors to understand the word or phrase. Texaco Country Club v. Wade, Tex.Civ.App., 163 S.W.2d 219 (N.W.H.). The inclusion of the phrases “immediate right to the use and possession” and “agreement of purchase” in the instruction avoids any decision by the jury as to whether transfer of the Certificate of Title or immediate or future payment of the purchase price constitutes a prerequisite for the passing of title to the automobile. In our opinion, the Court’s instruction would not tend to confuse the minds of the jurors in arriving at a decision as to who was the “owner” of the automobile.

If in the definition of “owner”, the Trial Court had instructed the jury that there could be a purchase of an automobile by contract even though the agreement was verbal or even though the Certificate of Title was not to be delivered until the purchase price had been paid, or even though such price was not paid in cash, the instruction would have been a comment upon the weight of the evidence since the inclusion of any or all of these elements as sumes the truth of such fact or facts. As was stated in Hale v. Barnes, Tex.Civ.App., 155 S.W. 358, 361 (N.W.H.):

“ * * * a judge has no more right to tell the jury that certain evidence does not prove a particular fact than he has to tell them that certain other evidence does prove such fact.”

Appellant’s points of error Nos. 1, 2, 3 and 4 are overruled.

For its 5th and 7th points of error appellant contends that by the use of the word “specific” before the words “agreement of purchase” the Trial Court placed a heavier burden on appellant than is permitted by law since the only requirement for the sale of a used automobile is that there be an agreement of purchase and that in failing to instruct the jury that by the word “specific” the Court did not mean that the agreement must necessarily be in writing since all that was required was that there had been an agreement as to the purchase and sale of the automobile.

Did the inclusion of the word “specific” before the words “agreement of purchase” place a heavier burden on appellant than was required by law? The word “specific” as an adjective is defined as meaning “definite”, “particular” and “precise”, 81 C.J.S. p. 400. Webster’s International Dictionary (2d Ed.) also defines the word “specific” as meaning “definite”, “of a definite nature”, and “explicit”. Clearly, to constitute an agreement between the parties for the sale of the automobile in question, there must have been a definite agreement or understanding, since unless there was a definite understanding or agreement between the parties there could not have been a valid contract or agreement for the sale of the automobile.

Although we feel that the definition of “owner” as submitted by the Court could have been clarified without commenting on the weight of the evidence, nevertheless the inclusion of the word “specific” before the words “agreement of sale” did not place any heavier burden on the appellant as a matter of law, and its inclusion in the definition was surplusage and therefore harmless. Appellant’s 5th and 7th points of error are overruled.

Appellant’s 6th point of error is directed to the Trial Court’s refusal to give appellant’s special requested instruction as follows :

“You are instructed that the term ‘owner’ as used in this charge is one who has the immediate right to the use and possession of the automobile and who is in possession of said automobile under an agreement of purchase.
“You are further instructed that a person who has the immediate right to the use and possession of the automobile under an agreement of purchase (even though such agreement is verbal) is the owner thereof even though he is to pay the purchase price at a later date and is to receive the Certificate of Title at the time of payment.”

While the first paragraph of the requested instruction is correctly stated, it is apparent that the second paragraph contains statements such as “even though such agreement is verbal”, and “even though he is to pay the purchase price at a later date and is to receive the Certificate of Title at the time of payment” which we have previously held to constitute comments on the weight of the evidence.

But appellant argues that even if its requested instruction was not letter perfect and correct, it did call the vital matter to the attention of the Trial Court and if there was anything partially wrong with the form of the requested instruction, it became the duty of the Trial Court to give a correct definition with reference to the points involved. This contention is based upon that part of Rule 279, T.R.C.P., which provides that failure to submit a definition shall not be deemed a ground for reversal unless a substantially correct definition has been requested in writing and tendered by the party complaining of the judgment.

Since the original definition of the word “owner” as given by the Court was objected to by appellant in accordance with Rule 274, T.R.C.P., Rule 279 is inapplicable. As stated in Texas Employer’s Insurance Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1002:

“Rule 279 applies when there is a failure to submit a definition, while Rule 274 applies when a definition is actually contained in the charge, but the complaining party objects to it because it is thought to be erroneous. When the court fails to define a term which a litigant is entitled to have defined Rule 279 is applicable; but when, as here, the court’s charge does contain a definition, but same is unsatisfactory to the litigant, Rule 274 is applicable.”

Appellant’s 6th point of error is overruled.

Point of error No. 8 complains of the error of the Trial Court in refusing to instruct a verdict for appellant since under the undisputed evidence there was no actual contested trial on the merits of the suit brought by appellee against Charlie Barnes and hence there could be no recovery on the policy issued by appellant until the amount of the insured’s obligation to pay had been .finally determined by a judgment against the insured after “actual trial.”

In the policy of insurance upon which appellee sought recovery there appears under the general heading “CONDITIONS”, (para. 6, Part 1) the following:

“ACTION AGAINST COMPANY
“No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.”

The foregoing condition was asserted as a defense in appellant’s answer and was also presented to the Trial Court in its motion non obstante veredicto.

After the accident Timmons, the assured in the policy, notified appellant, who made an investigation. When suit was filed by appellee against Barnes appellant refused to defend upon the ground that Barnes was not the permissive user but was the owner of the automobile. Upon the trial appellee and his doctor both testified in answer to questions by both his attorney and the Trial Judge. Barnes, the defendant in that action, testified as appellant’s witness in the instant case that when he was sued he talked to appellant’s agent about it and was advised that appellant would not defend since the automobile was owned by Barnes and not by Timmons, after which he consulted a lawyer but did not appear at the trial either in person or through an attorney.

Based upon these facts it is our opinion that there was an “actual” trial of the case of Vela v. Barnes which resulted in the judgment in favor of Vela in the sum of $15,000.00. Russom v. United Services Automobile Ass’n (D.C.W.D.Tex.), 143 F.Supp. 790, 795. Since appellant refused to do what it had promised, we do not believe that it could complain that Barnes did not do it since the interests of both were the same. St. Louis Dressed Beef & Provision Co. v. Maryland Casualty Co., 201 U.S. 173, 183, 26 S.Ct. 400, 50 L.Ed. 712. The factual situation in Wright v. Allstate Insurance Co., Tex.Civ.App., 285 S.W.2d 376, cited by appellant, is clearly distinguishable from the instant case and is not in point. Appellant’s 8th point of error is overruled.

The judgment of the Trial Court is affirmed.

Affirmed.


author: DENTON, Chief Justice.

text:
    John W. LANDERS, Administrator, et al., Appellants, v. B. F. GOODRICH COMPANY, Inc., et al., Appellees.
    No. 7185.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 29, 1962.
    Rehearing Denied Nov. 26, 1962.
    Kolander, Moser & Templeton, Amarillo, for appellants.
    Gibson, Ochsner, Harlan, Kinney & Morris, Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellees.
   DENTON, Chief Justice.

John W. Landers and Lee Harris Stephens, administrators respectively of the Estates of Guinn E. Landers, deceased, and Feme Larrhue Landers, deceased, filed this suit to recover for damages to an automobile, medical and funeral expenses and the cost of grave markers from appellees, B. F. Goodrich Company, Inc., and Robert Boyett Bohanan. These alleged damages resulted from an automobile collision on November 20, 1959, which caused the deaths of Guinn and Feme Landers. Upon a motion by appellees, the trial court granted a summary judgment on the ground a former suit between the same parties was a bar to a recovery in the present suit. The administrator of the Estate of Guinn E. Landers duly perfected this appeal but no appeal was perfected by the administrator of Feme Landers.

The three prior suits, which were consolidated, were actions for damages under the wrongful death statute, to-wit: Articles 4671 et seq., Vernon’s Ann.Tex.St. These causes of actions grew out of the same collision referred to above. These suits were instituted by the deceased’s minor son, by and through appellants, John W. Landers and Lee Harris Stephens, as next friends and as parents of Guinn and Feme Landers. After this cáse had been tried before a jury, a substantial settlement was reached. The settlement was duly approved by the trial court and was reduced to judgment. Subsequently, the two administrators named above were duly appointed and they filed the present suit shortly thereafter. It is undisputed that recovery in the original case was limited to damages for the wrongful deaths of Guinn and Feme Landers and for personal injuries received by their minor son, Roger Dale Landers.

Appellants concede, and we think correctly so, that the items of damages being sought in. this case could have been properly included in the wrongful death action. But appellants take the position the present suit does not constitute a splitting of a cause of action. This contention is based on two grounds: (1) There are two separate and distinct causes of actions, to-wit: a statutory cause of action for wrongful death, and a common law action brought by the administrator to recover expenses; (2) The plaintiffs here are different plaintiffs from those in the original suit in that they were acting in different capacities. The record shows that all of the heirs of appellants’ decedents, including the appellant who sues here as an administrator, were parties to the prior consolidated cases. Despite the technical differences between the statutory cause of action of wrongful death and the common law action for property damages and other expenses accruing from the common negligent acts complained of, we are not prepared to hold this distinction removes this case from the majority rule that where a single wrongful act simultaneously causes harm to the property and person of an individual, only one cause of action arises. This majority rule has been followed in this state. Cormier v. Highway Trucking Company (Tex.Civ.App.), 312 S.W.2d 406, (NWH); Garrett v. Mathews (Tex.Civ.App.), 343 S.W.2d 289, (NWH); and 62 A.L.R.2d, page 982.

In our opinion, the reasoning and conclusions reached in the Cormier and Garrett cases are controlling in the instant case. We, therefore, conclude the trial court properly sustained the plea of bar and granted a summary judgment that plaintiffs below take nothing as against the defendants. The judgment of the trial court is affirmed.


author: COLLINGS, Justice.

text:
    Tom E. STEWART et al., Appellants, v. Mrs. Laura VALENTA et al., Appellees.
    No. 3703.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 2, 1962.
    Rehearing Denied Nov. 23, 1962.

      W. R. Smith, Edward Penshorn, San Antonio, for appellants.
    Edward W. Halbardier, Morriss, Mor-riss, Boatwright & Lewis, Carl Wright Johnson, W. Pat Camp, William C. Church, Jr., Bill Finck, San Antonio, for appel-lees.
   COLLINGS, Justice.

Mrs. Laura Valenta and certain other lot owners out of an approximately 19.69 acre tract of land brought this suit against SO other owners of lots therein, including Tom E. Stewart, and against 7 lien holders, to set aside, cancel and hold void the restrictive covenants contained in deeds from a common grantor of such 19.69 acre tract. Nineteen of the named defendants filed answers contesting the cancellation of such restrictive covenants. Other defendants either intervened and sought affirmative relief in accord with that sought by plaintiffs or disclaimed any interest therein. Upon a trial before the court without a jury, judgment was rendered cancelling, setting aside and declaring null and void and of no force and effect the restrictive covenants in controversy. The contesting defendants have appealed.

The trial court filed findings of fact and conclusions of law. Appellants urge points contending that the court erred:

1. In finding that the common grantor of the 19.69 acre tract did not intend any uniformity or scheme of covenants and restrictions covering the entire tract; 2. In finding that there was no agreement between the common grantor and its grantees as to any uniformity or overall scheme or plan of covenants or restrictions applying to the 19.69 acre tract; 3. In finding that there was no general uniform plan or scheme of covenants and restrictions applying to all the 19.69 acres which would run with the titles conveyed by the common grantor; 4. In finding that there has been a manifest general change in the neighborhood to commercial use; 5. In finding that the higher per front foot value of the 19.69 acre tract for business purposes relative to the lower value if restricted to residential uses only is confiscatory and unreasonable; 6. In finding that the highest and best use of the 19.69 acres is for commercial purposes; 7. In finding that the balance of hardships favors ap-pellees and that no money damage would result to any property in value by removal of the restrictions; 8. In finding that the covenants and restrictions were merely personal between the common grantor and its immediate grantees and did not run with the titles; 9. In finding that there is no privity of estate, contract or mutuality of enforcement of the restrictions as between the present owners of the 19.69 acre tract; 10. In concluding that the restrictions and covenants are invalid and unenforceable and, 11. In entering judgment nullifying such restrictions and covenants.

The 19.69 acre tract in question is located on the west side of San Pedro Avenue in San Antonio and is bi-sected by Veda Mae Drive. The original 'owner and common grantor was South Texas Properties Company. In a period of slightly more than two years the common grantor divested itself of title to the entire tract by a series of 8 conveyances. The first instrument executed by such grantor was a conveyance to York which covered a 4 acre tract. It contained a provision that if prior to improvements being built on such 4 acres the grantor should place restrictions on the adjoining property, then the grantee should be bound by the identical restrictions. The adjoining property was described as the remainder of the 19.69 acre tract. Appellees, Mrs. Laura Valenta and Mrs. Laura Miller, are owners of the 4 acre York tract and no improvements have ever been made thereon. One of the conveyances by the common grantor covered a .74 acre tract for a public road which is known as Veda Mae Drive. Each of the other 6 conveyances contained identical provisions concerning restrictions on the use of the property conveyed. The provisions in each of the deeds in this respect were in substance that the property conveyed should not be used for other than residential purposes and that no structure should be permitted other than single family dwellings with garage for not more than 3 cars and servants’ quarters and laundry room; provisions for spacing of buildings relative to the front line and side streets; provisions for the size and area on any subdivision or lot upon which a residential structure could be built and that no dwelling costing less than $8,000.00, exclusive of garage and servants’ quarters, should be permitted; that the ground floor area of the main structure, exclusive of open porches and garages, should not be less than 1500 square feet, and certain other provisions and restrictions concerning the use and occupancy of the property conveyed. The York deed conveying the original 4 acre tract contained no provisions for the enforcement of restrictions except the provision to the effect that the grantee therein should be bound by the restrictions, if any, placed on adjoining property. The last conveyance by the common grantor was the Shearer deed covering a 4.28 acre tract. This deed contained no provision concerning enforcement. The enforcement provisions in the other deeds were identical and were as follows:

“Invalidation of any of these restrictions shall not affect in any manner any of the other provisions thereof, which shall remain in full force and effect. If the grantee, his heirs or assigns, violates or attempts to violate any of the restrictions herein contained, it shall be lawful for any other person or persons owning any real property situated in the tract of land now owned by grantor out of which the above described tract is hereby conveyed, to prosecute any proceedings at law or in equity against the person or persons violating or attempting to violate any such restrictions, either to prevent the violation thereof or to recover damages or other compensation for such violation.”

Such deeds, except the conveyance to Shearer, also contained a reservation in the grantor of a right to omit restrictions from unsold portions of the 19.69 acre tract as follows:

“The restrictions herein contained shall apply only to the property hereby conveyed, and grantor shall not be under any obligation, either express or implied, to subject the remainder of the property which grantor owns in the vicinity to such restrictions or any part thereof.”

The deeds, except the Shearer deed, also contained a provision reserving to the grantor the right to release the restrictions which is as follows:

“Grantor reserves to itself, and its successors, the right to release any or all of the above described restrictions as to any or all of such property.”

Restrictions on the use of property are not favored and when they appear in instruments involving realty they are construed strictly in favor of the grantee and against the grantor, resolving any ambiguity in favor of the free use of the land. Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465. Such restrictions to be effective must have a contractual basis “arising out of a contract imposing on the grantor and the grantee the obligation to observe the restrictions.” 26 C.J.S. Deeds § 162(1), p. 1084.

In the instant case there was no contractual relation which imposed upon both the grantor and the grantees in the deeds in question the obligation to observe the restrictions therein set out. No instrument of dedication indicating an intention to impose restrictions upon all the property involved was executed and filed of record by the common grantor. ( The restrictions sought to be enforced are rormd-only in the separate deeds as above indicated. Each of the deeds provided that the restrictions should apply _onlv — te-the property conveyed and that the grantor should not be obligated to subject the, remainder of the property to said restrictions. \ Each ofjthe deedjj_specific£ffy — reseEtedriri the., grantor the right to release the restrictions as to any or all of the property involved. See the grantor in each of such deeds was er no obligation the restrictions set out therein were not effective under a general plan, applicable, beneficial and binding alike to each and all of the purchasers. I The restrictions were merely personal between the common grantor and the immediate grantee. Green v. Gerner, Tex.Com.App., 289 S.W. 999. In 26 C.J.S. Deeds § 167(2), at page 1151 it is stated that:

“A provision that restrictions in deeds might be changed and that other lots may be sold without restriction has been held to refute the idea of a general plan to be exacted alike from all purchasers for the benefit of each purchaser * * *.”

In 19 A.L.R.2d at page 1282 it is stated that:

“The weight of authority supports the rule that a reservation by the common grantor of a general power to dispense with the restrictions on particular lots negatives the purpose of uniform development from which the mutuality of right among lot owners in a platted subdivision is deemed to arise. Accordingly, where such a power is reserved, one lot owner cannot enforce the restrictions as against another lot owner even though the dispensing power of the common grantor has not been exercised.”

In the case of Rose v. Jasima Realty Co., 218 App.Div. 646, 219 N.Y.S. 222, it is aptly stated, that a covenant which the grantor may cancel at will cannot be for the benefit of any one but himself. Also see Keith v. Seymour, Tex.Civ.App., 335 S.W.2d 862 (N.R.E.); Davis v. Congregation Shearith Israel, Tex.Civ.App., 283 S.W.2d 810 (N.R.E.); Gray v. Lewis, Tex.Civ.App., 241 S.W.2d 313 (N.R.E.); Pierson v. Canfield, Tex.Civ.App., 272 S.W. 231.

Appellant particularly urges that the right retained in the common grantor in this case to modify the restrictions does not negative the uniformity of the restrictions over the entire tract and render such restrictions unenforceable. In this connection appellant particularly urges the holdings in Hooper v. Lottman, Tex.Civ.App., 171 S.W. 270 and Norwood v. Davis, Tex.Civ.App., 345 S.W.2d 944. Those cases are distinguishable from the instant case in that in each of them the common grantor, either by an instrument of dedication or by resolutions of a board of directors imposed restrictive covenants to preserve the residential character of the property in a subdivision and the deeds in those cases were insubstantial compliance with the instrument of dedication. In the instant case the 19.69 acre tract was not subdivided by the common grantor. There was no instrument of dedication filed of record nor was there any resolution adopted by a board of directors providing for building restrictive clauses in deeds conveying such property. As heretofore indicated the restrictions sought to be enforced are found only in the separate deeds executed by the common grantor.

None of the deeds by the common grantor provided that the grantee had the right to enforce the restrictions against the grantor or any other owner of the land in question. The only enforcement provision concerning the restriction was to the effect that the grantor or subsequent grantees could enforce them against the grantee of that particular deed. The provision was “any other person * * * owning any real property situated in the tract * * * now owned by grantor”, should have the right to an appropriate legal or equitable remedy against the grantee if he violated the restrictions set out in his deed. The “other person” owning such real property in the tract would necessarily be a subsequent grantee of the common grantor. When this provision is considered in connection with the further provision in the deeds that “grantor reserves to itself and its successors the right to release any or all of the * * * restrictions” it is difficult to see how there could be any mutuality of the right of enforcement of any such restrictions.

In our opinion the court did not err in finding (1) that the common grantor, South Texas Properties Company, did not intend a uniform plan or scheme of restrictive covenants; (2) that there was no agreement between the common grantor and its grantees as to an over-all scheme or plan of restrictive covenants; (3) that there was no general uniform plan or scheme of restrictive covenants which would run with the titles; (4) that the covenants and restrictions set out in said deeds are merely personal between the common grantor and its immediate grantees; and, (5) that there was no privity of estate, contract or mutuality of enforcement as between present owners of the entire tract.

We also overrule appellants’ points urging that the court erred in finding a manifest general change in the neighborhood to commercial use; that the highest and best use of the 19.69 acres is for commercial purposes; that the higher per front foot value of the tract for business purposes relative to the lower value if restricted to residential purposes only is unjust, inequitable and unreasonable and that the balance of any hardships favors appellees and that no money damage would result to any property value by removal of the restrictions. The evidence supports these findings and the judgment based thereon.

In 26 C.J.S. Deeds § 171, at page 1177 and 1178, it is indicated that equity will not ordinarily take cognizance of a violation of a restriction where there has been such a change in the character of the neighborhood that “it would be oppressive, purposeless, unjust, or inequitable to give the restriction effect * * *.” It is indicated that in such cases a party seeking enforcement “is relegated to the action at law for damages.”

The trial court found upon sufficient evidence that the 19.69 acre tract is surrounded on three sides by business property. The tract is two blocks long north and south facing on San Pedro and is one block in depth. At the north end of the tract across Oblate Drive is the Town and Country Motel, with its east front on San Pedro Avenue and extending about two blocks west on Oblate Drive. On the south of the 19 acre tract across the Jackson Keller Road is a filling station. San Pedro Avenue runs north and south along the east side of the 19 acres in question. This avenue had previously been a two-lane road but has been made into a four-lane highway, being United States Highway 281. On the east side of San Pedro directly across the street from the property in question there is commercial and business property. Prior to August, 1950, the tract in question was outside the city limits of San Antonio but at that time it was annexed and taken into the city. The northern portion of the property has been rezoned by the city as a local retail district.

There is evidence to the effect that the property in question if restricted to residential use has a value of between $40.00 and $50.00 per front foot, but that its value for business purposes would be between $200.00 and $300.00 per front foot; that the highest and best use of all of such property is commercial. The 19.69 acres is two blocks in length facing on San Pedro Avenue on the east and facing Grotto Street on the west and is only one block in depth. The distance between the two streets is about 369.20 feet on the north end and 381.48 feet on the south end. There was evidence to the effect that many businesses suitable to the area require a depth more than 200 feet, such as large community centers which sometimes use up to 600 feet. The 19 acre tract extends two long blocks north and south and there is ample evidence to the effect that the highest and best use of both of these blocks is commercial; that the use which is most suitable to the owners from a profit and investment standpoint and which would return the greatest gain to the property owners is a commercial use.

Within the 19.69 acre tract, itself, one house on San Pedro is used in the operation of a nursery school and one house on Grotto Street is a triplex. Other than this, no property within the tract in question is now put to commercial use. The actual use of the property within this tract does not of itself show a change of conditions which would support an annulment of valid deed restrictions.

The fact that the tract has been annexed and taken into the city indicates a certain change of conditions but does not necessarily show a change in its residential character. Even the zoning ordinance in the city is ineffective in itself to destroy valid restrictions set out in a deed, although it is some evidence of a change of conditions involving the residential character of the area. It is held that changes in surrounding territory alone does not justify the destruction of valid restrictions. It is also held that a change of conditions of a relatively small portion of a restricted area, making such portion more valuable as business property than it would be for the restricted residential use, is not sufficient to relieve such property from the restrictions. Abernathy v. Adoue, 49 S.W.2d 476. Each of these facts, however, is material and evidentiary in determining the question of whether there has been such a radical change in the character of a neighborhood that the enforcement of the restrictions would be oppressive or inequitable. The radical change in the neighborhood and the detrimental effect of imposing the restrictions is further evidenced by the fact that the owners of most of the land either desire or do not object to a cancellation of the restrictions. The findings and action of the trial court in this respect are not as contended by appellants in conflict with the holding of our Supreme Court in Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943. On the contrary the judgment is in accord therewith in refusing to enforce restrictions when there has been such change of conditions in a restricted area that it is no longer possible to secure in a substantial degree the benefits sought to be realized thereby.

The evidence shows that “the highest and best use of all” the property in question, even that facing west on Grotto Street, is commercial and that such commercial use will return the greatest gain to the property owners from a profit standpoint. The evidence as a whole, in our opinion, supports the finding of a manifest general change in the neighborhood to commercial use. It shows a change which is so radical “as practically to destroy the general or essential objects and purposes” of a restrictive covenant. 26 C.J.S. Deeds § 171, p. 1178; Scanlon v. Dewhurst, Tex.Civ.App., 197 S.W.2d 518.

For the reasons stated appellants’ points are overruled and the judgment of the trial court is affirmed.


text:
    N. L. NEWTON, Appellant, v. HIGHLAND PARK INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 11028.
    Court of Civil Appeals of Texas. Austin.
    Oct. 24, 1962.

      E. D. Forbes, Dallas, for appellant.
    C. L. Chance, Austin, for appellee.
   RICHARDS, Justice.

Highland Park Independent School Dis-trict, appellee, brought suit in County Court at Law No. 1 of Dallas County, Texas, .against N. L. Newton, appellant, for the -recovery of delinquent taxes, penalties and interest on personal property owned by appellant located within the limits of the School District. The trial was had before -the Court without a jury and judgment was rendered for appellee as prayed for. On -motion of appellant the Trial Court filed findings of fact and conclusions of law.

From the adverse judgment appellant has -perfected this appeal based upon six points of error as follows: The error of the Trial 'Court in finding as a fact (1) that appellee is a legally qualified and municipal taxing .authority situated in Dallas County, Texas, which made a proper prima facie case by - introducing certified copies of the appropriate tax rolls and delinquent tax records; . (2) that taxes were assessed against appellant by appellee’s Tax Assessor-Collector on personal property owned by him which was situated within the School District; (3) that the taxes so assessed were delinquent; (4) that appellant did not render any of the property for taxation as required by law for any of the years 1942 through 1958, inclusive; (5) that such taxes, penalties and interest are due and owing by appellant and that no part thereof has been paid; and (6) that the Trial Court erred in not complying with appellant’s request for additional findings of fact.

Appellant’s defenses to the suit are based upon (1) non-ownership of a 1950 Pontiac automobile, the taxes upon which were assessed against him for the years 1951 and 1952; (2) failure of appellee to allow credit for the $250.00 exemption on personal property under Art. 7150, Sec. 11, Vernon’s Civil Statutes, and (3) the alleged payment of the taxes sued for except the taxes on the 1950 Pontiac automobile and the taxes on a 1949 Oldsmobile for the years 1950 through 1952, non-payment of which was admitted by appellant.

The Trial Court found as a fact that the appellee is a legally qualified and municipal taxing authority situated in Dallas County, Texas and had made a proper prima facie case by introducing certified copies of its appropriate delinquent tax records which revealed that taxes were assessed by ap-pellee’s Tax Assessor-Collector against personal property owned by appellant which was situated within the School District for the years 1942 to 1958, inclusive, which taxes, together with penalties and interest aggregated $208.79, and that the assessment made by appellee’s Tax Assessor-Collector was duly approved by appellee’s Board of Equalization after hearing and considering evidence bearing on the value of each item so assessed.

The Trial Court further found as a fact that appellant did not render any of the property for taxation as required by law for any of the years 1942 through 1958 and that the amount of taxes due upon such property as shown by the delinquent tax records were computed after allowance of the statutory exemption provided in Art. 7150, Sec. 11, V.C.S., and that such taxes were due and owing by appellant but no part of the same have been paid.

Appellant contends under his first point of error that there is no evidence or at least insufficient evidence to support the finding that appellee is a legally qualified and existing municipal taxing authority and made a prima facie case by introducing certified copies of its tax rolls and delinquent tax records.

By the introduction of certified copies of appellee’s appropriate delinquent tax records, a presumption was raised that there was a valid levy and assessment of the taxes in question made by a legally constituted taxing authority and that all conditions precedent to such assessment and levy had been performed. Art. 7326, V.C. S.; Art. 7328.1, Sec. 6, V.C.S.; State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 572; Stone v. City of Dallas, Tex.Civ.App., 244 S.W.2d 937, 943, error dism. Appellant’s first point of error is overruled.

For his second point of error appellant asserts that the Trial Court erred in finding that he was the owner of the 1950 Pontiac automobile on which taxes were assessed by appellee for the years 1951 and 1952. Appellant properly pleaded his defense of non-ownership of the Pontiac automobile under the provisions of Art. 7329(1), V.C.S., thereby assuming the burden of proof of such defense in rebuttal of the prima facie case made by appellee. The only evidence offered by appellant in his behalf was his uncorroborated testimony that from 1949 through 1958 he only owned one automobile, a 1949 Oldsmobile, which was wrecked in December, 1951, and thereafter he had not owned any automobile continuously but that there had been an automobile at the household during such years belonging to an organization which he owned but which was not his property. Appellee was an “interested" witness.

It is the general rule that the un-contradicted testimony of an interested witness such as a party to the suit only raises-a fact issue to be determined by the Trial! Court or the jury. But where the testimony of the interested witness is not contradicted' by any other witness and is clear, direct and positive, free from contradiction, inaccuracies and circumstances tending to cast: suspicion upon it, it is taken as true as a. matter of law. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908. Evidently the Trial Court, disregarded the uncontradicted testimony of appellant concerning the ownership of" the automobile in question because of its-ambiguity and contradiction and relied upon: appellee’s prima facie case. Stone v. City of Dallas, supra. We see no reason to disturb the Trial Court’s finding and appellant’s second point of error is overruled.

For his 3rd, 4th and 5th points of error appellant urges that the Trial Court erred in finding that the taxes as assessed’, were delinquent and that the accrued penalties and interest had been correctly alleged and proved by appellee, and that appellant did not render such property for taxation as required by law for any of the years 1942 through 1958 inclusive and therefore such taxes, penalties and interest are-due and owing by appellant and that no-part thereof has been paid.

The only evidence offered by appellant, consisted of tax receipts on the real property owned by him at 4500 Potomac including improvements thereon for the years. 1942 through 1953, inclusive. These receipts do not show any assessed valuation of personal property or tax levied thereon. Appellant also introduced an unpaid statement of personal property taxes amounting - to $6.30 due for the year 1958 on personal property valued at $450.00, together with a . letter signed by appellee’s Assessor-Collector dated January 20, 1959 returning appellant's check for $2.80 offered in payment of his 1958 personal property tax for the - reason that the personal property tax as de- - termined by appellee’s Board of Equalization amounted to $6.30 and requesting payment in full. Appellant also testified that .although he paid all of the taxes on the real property owned by him at 4500 Potomac he could have received appellee’s statements for taxes due on personal property but that if he had received such statements, he did not pay them and that the only payments which he made to appellee were the taxes assessed upon his real property. Appellant thereby failed to sustain the burden of proving his defenses under Art. 7329(2) and (3), V.C.S., that the taxes sued for had been paid or that the taxes sued for were in excess of the limit allowed by law.

Appellee’s tax assessor-collector testified that all exemptions authorized by Art. 7150 V.C.S. had been credited on the assessed valuations of the personal property so taxed. The 3rd, 4th and 5th points of error are overruled.

The 6th point of error is directed to the error of the Trial Court in failing to comply with appellant’s request for additional findings of fact. At the request of appellant the Trial Court made findings of fact and conclusions of law. Appellant then excepted and objected to the findings of fact theretofore made by the Court and requested the Court to make 10 additional findings of fact. The transcript of record is devoid of any requested additional findings of fact and therefore it may be presumed that the Trial Court failed to comply with appellant’s request. However, the record also failed to reveal that appellant filed any bill of exception to the Trial Court’s failure to make the additional requested findings of fact. Appellant’s 6th point of error is without merit and is overruled. Steppe v. O’Day, Tex.Civ.App., 315 S.W.2d 599, 603, error ref. N.R.E.

The judgment of the Trial Court is affirmed.

Affirmed.


author: NORTHCUTT, Justice. DENTON, Chief Justice. CHAPMAN, Justice.

text:
    PLAINS TRANSPORT, INC., Appellant, v. John Clarence ISAACS et ux., Appellees.
    No. 7187.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 29, 1962.
    Rehearing Denied Nov. 26, 1962.

      Crenshaw, Dupree & Milam, Lubbock,, for appellant.
    Key, Carr, Carr & Clark, Lubbock, for appellees.
   NORTHCUTT, Justice.

John Clarence Isaacs and wife, Gertrude-Pearl Isaacs, sued Plains Transport, Inc. for injuries sustained by them. The parties will be referred to as plaintiffs and defendant as in the trial court. Upon findings made by the jury, judgment was rendered in plaintiffs favor and from that judgment, the defendant perfected this appeal.

Plaintiffs alleged and the jury found that; defendant’s employee was negligent in failing to keep a proper lookout and that such-failure was a proximate cause of the collision in question; that said employee was-following plaintiffs’ automobile more closely than was reasonable and prudent having' the regard for the speed for such vehicle,, the traffic, and the conditions of the highway ; that this was negligence and a proximate cause of the collision in question. The-jury further found that said employee failed to apply his brakes in time to avoid the collision in question but that such failure-was not negligence. The jury further found that said employee was not driving at an-excessive speed under the circumstances, and conditions then and there existing. The jury found that Mrs. Gertrude Pearl Isaacs immediately, before the collision in* question, suddenly stopped the automobile-being driven by her but that the same was-not negligence. The jury also found Mrs. Isaacs failed to keep a proper lookout but that such failure was not a proximate cause-of the collision.

The accident occurred on U. S. Highway 87, which is a divided highway with two-lanes of travel for south-bound traffic. Pri- or to the accident, the plaintiffs and defendant were traveling the same direction* (south), defendant behind the plaintiffs. The accident occurred at a point where a» dirt road intersected the highway on which plaintiffs and defendant were traveling. 'The intersection was under construction. 'There was a dump truck obstructing the west lane for south-bound traffic. There were two lanes for south-bound traffic and both plaintiffs and defendant were in the •inside lane for south-bound traffic at the time the accident occurred. Cars ahead of plaintiffs’ car had passed on through the •intersection without being stopped or stopping. There was a dump truck in the west or outside lane for south-bound traffic, which was or had been moving slowly and there was a man standing somewhere near the truck.

The plaintiffs testified that when they were within twenty or thirty feet of the intersection, the flag boy flagged them and Mrs. Isaacs stopped immediately. Mr. Isaacs testified the car ahead of them had been flagged by and that the truck got past the center of the south-bound lane of traffic. Mr. Price, defendant’s driver, testified 'he never saw a flagman but there was a ■man standing by the truck guiding it where •to unload gravel. Both parties testified as to the manner of Mrs. Isaacs stopping.

It is contended by defendant’s first point ■of error that the trial court erred in overruling defendant’s objections and exceptions to the court’s charge because of the failure of the court to include the element •of new and independent cause in the definition “a proximate cause” and of the further failure of the trial court to define new and independent cause as requested by defendant. The defendant presented its requested instruction and definition to the court but the same was denied.

When the evidence raises an issue of new and independent cause, it is error for the trial court to refuse to include the element in its definition of proximate cause in the court’s charge and to give a definition of new and independent cause, and both parties agree that is correct. It is stated in Southland Greyhound Lines, Inc. v. Cotten, 126 Tex. 596, 91 S.W.2d 326 (Sup.Ct.) as follows :

“It is reversible error, in a cause in which the testimony tends to prove the injury resulted from a new independent cause, not to submit a definition of ‘proximate cause’ embodying that term, or a similar term, together with a definition of same. Phoenix Refining Co. v. Tips (Tex.Com.App.) [125 Tex. 69], 81 S.W.(2d) 60; Orange & N. W. R. Co. v. Luther Harris et al. (Tex.Sup.) [127 Tex. 13], 89 S.W.(2d) 973 not reported [in State report]; Dixie Motor Coach Corporation v. Galvan et ux. (Tex.Com.App.) 86 S.W.(2d) 633; Greer v. Thaman et al. (Tex.Com.App.) 55 S.W.(2d) 519; Blanch v. Villiva et al. (Tex.Civ.App.) 22 S.W.(2d) 490; Thomas v. Goulette (Tex.Civ.App.) 12 S.W.(2d) 829; Robertson & Mueller v. Holden (Tex.Com.App.) 1 S.W.(2d) 570.”

See also Texas Motor Coaches v. Palmer et ux., 132 Tex. 77, 121 S.W.2d 323 (Sup.Ct.); Southern Ice & Utilities Co. v. Richardson et al., 128 Tex. 82, 95 S.W.2d 956 (Sup.Ct.).

Considering the evidence that other cars had passed where the work was being done and had not been stopped; that no signal had been given for the parties to stop until plaintiffs were within twenty or thirty feet of the work being done; the gravel truck backing onto the inside lane immediately in front of the plaintiffs; and flagman stopping plaintiffs immediately, we are of the opinion the evidence was of such a nature as to raise the issue of new and independent cause; and the court should have included and defined the term in its charge.

Defendant assigns as its second assignment of error that the court erred in admitting into evidence the testimony of the plaintiffs to the effect that defendant’s driver, Bobby Price, stated to them that the accident was his fault; and if he had been three feet further back, he could have avoided the accident. Then by defendant’s third assignment of error complains of the plaintiffs’ attorney’s argument to the jury (on three occasions) that Price stated it was his fault. We are of the opinion that admission of this evidence was error and if it was error, the attorney, by calling it to the jury’s attention on three different occasions, did make the error more serious as the jury would probably think, since Price acknowledged it was his fault and the court admitted the testimony into evidence, there was no question but what it was true. The testimony was not a statement of fact but at most was a conclusion. Before such statement would be admissible, the facts must bring them clearly within the limitations of the hearsay rule. We do not believe this was done in this case. It is stated in the case of Le Sage v. Pryor, 137 Tex. 455, 154 S.W.2d 446 (Sup.Ct.) as follows :

“Declarations of an agent or employee are admitted against the principal or employer as an exception to the hearsay rule and to make them admissible the facts must bring them clearly within the limitations of the exception. Not only must such declarations be made within the course of the employment, but they must bear close relation to the performance of an authorized duty or act in connection with which they are made. They must not be purely voluntary or made merely in casual conversation. Hinson v. Ely Walker & Co., 65 Tex. 103; Southern Surety Co. v. Nalle & Co., Tex.Com.App., 242 S.W. 197; McCormick & Ray’s Texas Law of Evidence, pp. 658-662, Sec. 508.”

Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651 (Sup.Ct). We think the case of Red Arrow Freight Lines, Inc. v. Gravis, Tex.Civ.App., 84 S.W.2d 540 is directly in point here. Romo et ux. v. San Antonio Transit Co. et al., Tex.Civ.App., 236 S.W.2d 205 (NRE). See also Deaton & Son, Incorporated v. Miller Well Servicing Co., Tex.Civ.App., 231 S.W.2d 944 for full discussion on this matter. Defendant’s points of error two and three are-sustained.

Defendant assigns as its fourth and fifthi assignments of error that the court erred in permitting plaintiffs’ attorney to question-Bobby Price regarding a traffic ticket received by him and the improper argument by the attorney concerning the ticket received by Bobby Price. Price, in answer to-questions propounded by plaintiffs’ attorney, testified he received a ticket for traffic violations given to him by the highway patrolman that investigated the accident and that the ticket was for driving too closely. Price testified he paid the ticket and presumed he was pleading guilty when he paid the ticket. The attorney made the following argument:

“Now it is significant to me, and I hope it is to you, that he got a ticket from the Plighway Patrol. The only man that came up now that was impartial at that time, in any way, representing the State of Texas in deciding who was right and who was wrong, was the Highway Patrolman. He came up and saw it. Now he had an advantage over you and me. He was there on the-scene. He saw where the cars were. He saw the tracks I imagine. I don’t. know what happened. But a Highway Patrolman is an investigating officer. What did he do ? He gave the truck driver ticket for following too closely. Is that unreasonable then to think that the truck driver told these folks at that time. Tf I just had three more feet between me and you I wouldn’t have hit you.’ He got a ticket for following too-closely. So he was wrong, wasn’t he,, in following too closely ? The Highway-Patrol apparently thought he was.”
“Now here for example is Special Issue No. 3. If you find from a preponderance of the evidence that on the occasion in question Bobby Price was following the plaintiffs’ automobile more-closely than was reasonable and prudent having due regard for the speed of •the vehicle, the traffic and the condition of the highway. That is an easy one. I submit to you there is very little argument on that. Was he following more •closely than was reasonable and prudent? He admitted it himself, Tf I had just three more feet, I wouldn’t have hit you.’ He was following too ■closely. The police officer said, ‘You were following too close.’ And when he went down he admitted, T was following too close,’ and he paid $20.00 for following too close. That is the history of this thing. That is the facts.”

"It is not shown that Price or his attorney ■ever entered in open court and pled guilty. Price lived in Lubbock and the ticket was paid in Tahoka. There is no proof how or when the ticket was paid, whether in person •or by mail, and none of the court records where the ticket was paid were introduced into evidence. It is not shown Price was working for the defendant when the ticket was paid, and any admission or declaration "by Price must have been made in regard to • a matter within the scope of his authority. Deaton & Son, Incorporated v. Miller Well Servicing Co., Tex.Civ.App., 231 S.W.2d 944. Under this record we do not believe this testimony was admissible and that the ■argument made was highly prejudicial. Article 518, Vernon’s Ann.Tex.Code of Crim.Proc.; Mooneyhan et ux. v. Benedict, Tex.Civ.App., 284 S.W.2d 741 (NRE); Texas Department of Public Safety v. Williams, Tex.Civ.App., 356 S.W.2d 848.

Defendant’s assignments of error six and •seven deal with the argument of counsel. Plaintiffs’ attorney, in his opening argument, made the following argument:

“We have spent a lot of your time in going into detail on that because we wanted you to live the life this man has lived since he was run into from the rear. That is the only way you can understand another man or another woman’s troubles. It is kind of like the old Navajo Indian use to say, ‘Never let me judge another until I have walked in his moccasins for ten days.’ That sort of helps you, and we wanted you to live this life that this man has lived so that you might better understand what happened to him, 70 days in the hospital, wearing a collar here for his neck condition, living several days with a traction pulling his head with a several pound weight this way, going to Mayo’s where they tie this around him, put cloth in his mouth so that when they lift him off the floor by his neck it will not break his dentures, and everything grows red as the blood follows into his head because of his pressure. We want you to live that with him, you see, because you can better understand what Mr. Isaacs is going through these days as a result of this accident.”

Then in his closing argument made the following argument:

“Give them the same hearing that you would want to have if you stood in their place and they sat in yours, and when you have done that I can assure you because I know the Isaacs that whatever decision you make you will still be their friend. I hope you will be my friend. I hope we will see each other again, and I hope when you do that you will come up and speak to me and we can talk about this case or something. You have been wonderful jurors, and I say that no matter how your decision comes out, Mr. and Mrs. Isaacs and I and Wagner thank you all.”

This seems to be an appeal to the jury to view the matter from the standpoint of the plaintiffs, which would necessarily be a partisan attitude, inconsistent with the duties of the jury, and also how they would feel when meeting the attorney. We cannot say under this record that the error complained of did not amount to a denial of the rights of the appellant. In the case of Texas Coca Cola Bottling Co. v. Lovejoy, Tex.Civ.App., 112 S.W.2d 203 (writ dismissed), referring to the Richardson case, it is said,

“The Supreme Court’s opinion in the Richardson Case must, therefore, we think, be regarded as foreclosing the question that the argument is of a nature calculated to prejudice, regardless of objections and admonitions not to consider the same.”

Southern Ice & Utilities Co. v. Richardson et al., 128 Tex. 82, 95 S.W.2d 956 (Sup.Ct). A writ being dismissed by the Supreme Court seems to us would be approving the holding that the question had been foreclosed.

We will not discuss the remaining assignments of error as they may not arise in another trial. With the reasons herein stated, we hold the case should be reversed and remanded for a new trial. Judgment of the trial court is reversed and remanded.

DENTON, Chief Justice.

I concur in the result reached by the majority opinion, but I am unable to agree with the disposition made of several of appellants’ points of error.

After carefully reviewing the record, it is my opinion the facts and circumstances of this case raised the issue of new and independent cause. In the final analysis, this question must be determined from the pleadings and evidence of each individual case. The facts pleaded by the plaintiffs below reveal the relevancy of the act of the flagman in stopping the plaintiffs’ automobile to the negligence alleged to have been committed by the defendant’s truck driver, which allegedly caused the collision. Plaintiffs’ first amended petition alleges: “That at a point in said highway where an unimproved road running in an east and west direction crosses said highway, said repair work was in progress and a flagman signaled the plaintiff Gertrude Pearl Isaacs to stop, that in obedience to said signal the plaintiff Gertrude Pearl Isaacs did stop, and that after said automobile had come to a complete stop, it was-struck with great force and violence froim the rear by the above-mentioned truck-tractor owned by defendant and driven by the employee of the defendant.” Not only did the plaintiffs’ pleadings recognize that am agency other than the acts of the parties-entered into the collision, but this allegation! is supported by the evidence offered by the’ plaintiffs below. The fact issue as to whether some new and independent cause intervened between defendant’s alleged negligent acts and the injuries sustained by plaintiffs was clearly raised. As stated in the majority opinion, when such an issue, is raised, it is reversible error to submit a definition of “proximate cause” which does-not include the element of a new independt-ent cause.

I disagree with the majority opinion in sustaining the points of error dealing' with the statement of the defendant’s driver' made after the collision. The statement attributed to the driver was testified to in rebuttal by both Mr. and Mrs. Isaacs after the driver had denied being at fault in his direct-examination. Both plaintiffs testified that the statement was made to them at the-scene immediately following the collision.. Mr. Isaacs testified as follows: “Well, sir,, he came up to me and he said, T don’t believe it was anybody’s fault’. He stood'there a second or two and he said, ‘Well, I know it was my fault, and if I had had', three feet further back I could have missed' you.’.” Mrs. Isaacs’ testimony corroborated'this testimony. Clearly, the statement was apart of the res gestae and as such is admissible; nor is the statement subject to the-objection it was a conclusion rather than a-statement of fact. The truck driver’s; statement obviously included facts which were directly connected with the collision. Rowe v. Liles (Tex.Civ.App.), 226 S.W.2d 253, (Writ Refused); City of Austin v. Johnson (Tex.Civ.App.), 195 S.W.2d 222, (Refused), (NRE); Firestone Tire & Rubber Co. v. Rhodes, (Tex.Civ.App.), 256 S.W.2d 448, (NWH); J. H. Robinson Track Lines v. Raymondville Independent School Dist. (Tex.Civ.App.), 237 S.W.2d 359, (NWH). A jury argument which is based on admissible evidence is obviously proper. I would overrule appellants’ points of error Numbers 2 and 3.

The rule is well settled that when a prior criminal prosecution and a subsequent civil action are based on the same transaction, a plea of guilty by the accused in the criminal action is admissible against him as an admission in the subsequent civil suit. Mooneyhan et ux. v. Benedict (Tex.Civ.App.), 284 S.W.2d 741, (Refused), (NRE); Canales v. Bank of California (Tex.Civ.App.), 316 S.W.2d 314, (Refused), (NRE); Carrick v. Hedrick (Tex.Civ.App.), 351 S.W.2d 659, (NWH). However, for such a plea of guilty to be admissible in the subsequent civil suit, the plea of guilty must be validly entered. Mooneyhan et ux. v. Benedict, supra, and Johnson v. Woods (Tex.Civ.App.), 315 S.W.2d 75, (Refused), (NRE). Therefore, the question to be determined here is whether or not the plea of guilty of appellant’s truck driver was validly entered. Mr. Price, the truck driver, testified on cross-examination as follows:

“Q Mr. Price, is it your thinking and are you telling this jury that you were not at fault in any way in connection with this accident ?
“A I don’t feel like I was at fault, sir.
“Q You feel the accident was wholly the fault of the Isaacs?
“A Yes, sir.
“Q Mr. Price, did you receive a ticket for a traffic violation ?
“A Yes, sir.
“Q By the Highway Patrolman that investigated the accident?
“A Yes, sir.
“Q Was it for following too closely?
“A Yes, sir.
“Q Did you plead guilty to it?
“A I paid the ticket.
“Q You plead guilty to it?
“A I paid the ticket.
“Q Well, you knew when you paid the ticket you were pleading guilty, didn’t you ?
“A I presumed I was, sir.”

Price’s answers to the repeated question as to how he plead were obviously unresponsive. On redirect examination Price explained he was living in Lubbock at the time he paid the ticket in Tahoka; that the fine was $20.50; that the ticket was paid in Tahoka; that it would have cost him more money to defend the case than it would have cost to “pay it off”; and that he did not feel guilty when he paid the ticket. Under the authorities listed above and the evidence presented in this case, I am convinced the plea of guilty was validly entered and conclude the trial court did not err in admitting the evidence. It follows that the jury argument referring to such evidence was not improper.

In my opinion, the jury argument set out in the majority opinion was not so improper as to amount to a denial of the rights of appellant. The cases cited in the majority opinion were rendered prior to the adoption of the rales of civil procedure and, therefore, are of little value. The rule is now well settled that before a judgment will be reversed because of argument of counsel, the argument must be improper and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause rendition of an improper judgment in the case. Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596. Even though portions of appellees’ counsel’s argument may be said to have been improper, no objections were made at the time such arguments were made. In my opinion, the arguments were not so improper as to being beyond correetion by means of a timely objection and a proper instruction. In view of the above well-settled rules and the circumstances of this case, I am of the opinion the arguments complained of were not so improper as to require a reversal of the judgment.

The point of error concerning a statement of a prospective juror to the effect, “I have always observed it is easier to make premium payments than to collect a claim.”, is, in my opinion, without merit. The statement was not in response to a question asked by appellees’ attorneys. Under the circumstances, such a statement did not call for a mistrial.

Appellant’s last two points complain of the trial court’s refusal to submit requested special issues and instructions which were calculated to separate and distinguish incapacity and pain and suffering of appel-lees from that caused by pre-existing physical conditions and that caused by the collision in question. The trial court confined and limited appellees’ recovery to those damages suffered as a result of the “accident in question”. This was the correct method of submitting the damage issue. Yellow Cab and Baggage Company v. Mrs. Jewell Green, 154 Tex. 330, 277 S.W.2d 92.

Due to the error of the trial court in failing to include the element of new and independent cause in its definition of “proximate cause” as requested by appellant, I agree that the case should be reversed and remanded.

CHAPMAN, Justice.

I concur in the concurring opinion.

ON MOTION FOR REHEARING

PER CURIAM.

Appellees’ motion for rehearing indicates they are under the impression that the original opinion herein is concurred in by a majority of this court. The record does not so reflect. The court is unanimous in its conclusion that the trial court was in error in its failure to include in its definition of “proximate cause” the term, “new and independent cause.” The majority agreed with the trial court’s disposition of the other questions discussed in the concurring opinion, as shown by the statement in the opinion of one of our justices that: “I concur in the concurring opinion.” A discussion of the questions in the concurring opinion was for the purpose of furnishing a guide to the view of the majority on the questions discussed in the event of another trial.


author: WALTER, Justice.

text:
    TRAVELERS INDEMNITY COMPANY, Appellant, v. SNYDER NATIONAL BANK, Appellee.
    No. 3752.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 26, 1962.
    Rehearing Denied Nov. 11, 1962.

      Gay & Meyers, Austin, for appellant.
    Sentell & Rosser, Snyder, for appellee.
   WALTER, Justice.

In a non-jury trial, Snyder National Bank recovered judgment against the Travelers Indemnity Company for $9,385.88, and Travelers was denied a recovery on its cross action against the bank. Travelers has appealed.

The City of Austin entered into a contract with J. H. Chastain for paving, curbing and guttering certain streets. Travelers wrote Chastain’s payment and performance bonds. The Snyder bank financed Chastain’s contract and Chastain made an assignment to the bank of the proceeds of his contract with the city and Travelers subordinated its rights and equities to those of the bank.

When Chastain defaulted, he had completed work of the value of $9,385.88, which was not then due and payable but was being held by the city as retainage. Travelers completed the contract through another construction company. In its settlement with the city, Travelers received credit for the $9,385.88 earned by Chastain.

Travelers contends the court erred in rendering such judgment for the bank because there is no evidence to support such judgment in that Chastain’s assignment to the bank covered only “funds and payments due and to become due” under his contract with the city and at the time of default all amounts due under the contract had been paid. Travelers also has a cross point by which they complain of the court’s failure to render judgment for them on their cross action against the bank.

The material facts are not disputed and the parties stipulated the following: That the City of Austin and Chastain entered into such contract on July 1, 1960; that Travelers Indemnity Company was surety on Chastain’s performance and payment bonds; that Snyder National Bank agreed to lend Chastain the funds necessary to perform the contract up to the contract price of $84,-254.95; that Chastain assigned the proceeds of said contract to the bank, and Travelers subordinated all its claims, demands and equities for and against funds which might be and become payable to Chastain to the claims and demands of the bank; that the city accepted notice of such assignment and paid the Snyder National Bank $47,807.81 ; that Chastain undertook the performance of his contract and worked thereunder during the months of July, August and September, 1960; that between July 10, 1960 and September 19, 1960, the bank loaned Chas-tain $83,300.00; that representatives of Travelers were advised of each advance made by the bank to Chastain; that Chas-tain defaulted on September 21, 1960, and notified the city of such default on September 22, 1960; that the City of Austin advised Travelers of the default and requested Travelers under its bond commitments to complete the job; that Travelers obtained Giesen and Latson, contractors, who submitted a bid to complete the work; that the City of Austin and said contractors entered into a contract covering the work to be performed and the prices to be paid therefor in the completion of the work left unperformed by Chastain; that at the close of work on September 21, 1960, Chastain had performed work in the amount of $9,-385.88, for which the City of Austin had not and has not paid either the bank or Chastain; that Giesen and Latson completed the work at_ a bid price of $11,978.28 more than such work would have cost had Chastain completed performance; that in the performance of its obligation under the bond Travelers was required to pay the city the excess between the cost of completion by Giesen and Latson over the cost had the contract been performed by Chastain, ($11,-978.28), less the amount of work completed by Chastain but not paid for by the City of Austin ($9,385.88), which was the sum of $2,592.40; that Travelers was required to pay to laborers and materialmen, who labored and furnished material to Chastain the sum of $52,484.56; that at the time of trial Chastain was indebted to the bank for an amount in excess of $9,385.88, by reason of advances made to Chastain.

The material portions of Chastain’s assignment to the bank are as follows: “does by these presents assign to the Snyder National Bank, Snyder, Texas, all funds, together with all my right, title and interest in and to the same, and the right to receive funds and payments due and to become due under and by reason of said Contract dated July 1, 1960, from The City of Austin, Texas, as and when such funds and payments become due and payable.”

The material portions of Travelers’ subordination agreement are as follows: “the said The Travelers Indemnity Company does hereby subordinate all of its claims, demands, rights and equities to, for and against funds which may be and become payable to J. H. 'Bud’ Chastain and Sons under and by reason of said contract with the City of Austin, Texas, to the claims and demands of the Snyder National Bank.”

Pending completion of the job, no money was due or payable except on monthly estimates and upon completion of the units. It is not contended by either party that any money was due and payable to Chastain under either of these methods of payment at the time of his default.

Article 5160, Subdivision E, of Vernon’s Texas Civil Statutes provides as follows:

“In the event any contractor, who shall have furnished the bonds provided in this Statute, shall abandon performance of his contract or the awarding authority shall lawfully terminate his right to proceed with performance thereof because of a default or defaults on his part, no further proceeds of the contract shall be payable to him unless and until all costs of completion of the work shall have been paid by him. Any balance remaining shall be payable to him or his surety as their interest may appear, as may be established by agreement or judgment of a court of competent jurisdiction.”

The bank contends that upon completion of the contract by Travelers, after default by Chastain, the retainage money in the hands of the city became payable to the bank as assignee of Chastain.

After considering all of the pertinent provisions of the contract, the assignment, the subordination agreement and the statute, we are compelled to hold that the bank was not entitled to recover. Chastain could not qualify for this retainage under Article 5160 because he abandoned performance and defaulted and the costs of completion were not paid for by him.

The bank had no greater right to the disputed funds than Chastain had. “It appears to be settled that when there is an assignment of a particular fund the as-signee takes the title of the assignor to that which is assigned, but he obtains no greater right in or to the fund than exists in the assignor.” O’Neil Engineering Company v. First National Bank, Tex.Com.App., 222 S.W. 1091. Chastain could not have recovered because when he defaulted no money was due him. The bank stood in the shoes of Chastain under their assignment. This conclusion is supported by City of Dallas v. Conley, Lott, Nichols Machinery Company, Tex.Civ.App., 172 S.W.2d 989 (Writ Ref.), and United Tile Company v. Kermit Independent School District, Tex.Civ.App., 273 S.W.2d 434 (Writ Ref. N.R.E.).

We have considered appellant’s cross point wherein it complains of the action of the court in failing to enter judgment for it on its cross action. We find no merit in this point and it is overruled. The judgment awarding the bank a recovery is reversed and here rendered that the bank take nothing against Travelers; in all other respects the judgment is affirmed.