text:
    PURE ICE & COLD STORAGE COMPANY, Appellant, v. EXCHANGE BANK & TRUST COMPANY, Appellee.
    No. 16791.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 7, 1966.
    Rehearing Denied Nov. 18, 1966.
    Biggers, Baker, Lloyd & Carver and John C. Biggers, Dallas, for appellant.

      Bailey, Williams, Weber & Allums and Lawrence R. Maxwell, Jr., Dallas, for ap-pellee.
   DIXON, Chief Justice.

Appellant Pure Ice & Cold Storage Company seeks to hold appellee Exchange Bank & Trust Company liable on a check payable to appellant drawn on appellee as drawee bank. Appellant’s claim is based on the undisputed fact that appellee, after refusing payment of the check because of insufficient funds, failed to return the dishonored check within the time prescribed in Art. 342-704 Vernon’s Ann.Civ.St., the Texas Banking Code.

The parties have stipulated that on Friday September 21, 1962, appellant received a check drawn on appellee as drawee bank, payable to appellant in the amount of $4,-500.00 and signed by James O. Calvin, doing business as Mid-West Meat Company. On Monday September 24, 1962 appellant deposited the check to its account in the Mercantile National Bank at Dallas. On Monday September 24, 1962 the Mercantile Bank forwarded the check through clearing house channels to appellee. On Tuesday September 25, 1962 appellee received the check. On Thursday September 27, 1962 appellee returned the check to the clearing house dishonored because of insufficient funds. Mercantile Bank, in accordance with appellant’s instructions, again placed said check in the usual course of banking channels through the clearing house on two other separate occasions following September 27, 1962. On each of said two other occasions appellee, the drawee bank, within the time prescribed by law returned the check dishonored because of insufficient funds.

It is undisputed that on October 6, 1962 appellant accepted Calvin’s demand note in the amount of $28,700.00 bearing ten per cent interest from maturity and providing for ten per cent attorney’s fees. The principal amount of $28,700.00 covered not only the check here in controversy, but other bad checks dated from October 21, 1962 to October 28, 1962 received by appellant from Calvin.

A jury returned a verdict finding in substance that (1) the authorized agents of appellant did not know and should not have known that appellee had held the check in excess of twenty-four hours; (2) appellant, acting through its agents, accepted return of the check on September 27, 1962; (3) in accepting the return of the check, and (4) in “re-clearing” the check and (5), (6) in accepting a promissory note from Calvin appellant did not waive appellee’s acceptance of the check by holding it in excess of twenty-four hours; (7) appellant at the time it originally accepted the check from Calvin did not know that Calvin did not have funds on deposit with appellee sufficient to pay the check; and (8) appellant by accepting delivery of the check did not waive the acceptance of the check by appellee Bank under the Statute.

Appellant filed a motion for judgment on the verdict. Appellee filed a motion for judgment non obstante veredicto. Appel-lee’s motion was sustained and judgment was rendered accordingly that appellant take nothing against appellee.

S. A. Kadane, appellant’s President and owner of fifty-eight per cent of the corporation’s shares of stock, testified in behalf of appellant. For several years Calvin had been a tenant of appellant in the latter’s warehouse building. His credit was not good. Sources of his meat supply would not accept his check. They would accept appellant’s check. S. A. Kadane liked Calvin and wanted to help him financially.

Kadane described the plan which had been devised to enable him to help Calvin. The latter would write his check payable to appellant, drawn on appellee as drawee bank. At the same time appellant’s check signed by Kadane as President payable to Calvin and drawn on Mercantile National Bank at Dallas would be issued to Calvin, who would pay cash for meat, using appellant’s check.

This controversy had its origin in one of the above transactions. According to Kadane appellant and Calvin had exchanged checks more than a hundred times over the years, and none of Calvin’s checks had been returned unpaid until the return of the check here in controversy and the return of Calvin’s other checks signed between September 21, 1962 and September 28, 1962.

The record shows that on September 27, 1962 Calvin signed and delivered to appellant three of his checks, one for $3,800.00, one for $4,300.00 and one for $4,000.00. On the same date appellant delivered to Calvin three checks in like amount signed by Ka-dane as President of appellant. Two of appellant’s checks were dated September 27, 1962. The third check, according to Ka-dane, was delivered to Calvin on September 27, 1962, but was post-dated to the next day, September 28, 1962. The record shows that two of these checks were cashed by Calvin at the Mercantile Bank on September 27, 1962, the other on September 28, 1962.

Kadane claims that if he had known on September 26, 1962, that Calvin’s check for $4,500, dated September 21, 1962 had been returned unpaid because of insufficient funds, he would not have issued appellant’s three checks to Calvin on September 27, 1962 in exchange for three of Calvin’s checks which were later returned unpaid because of insufficient funds.

In four points on appeal appellant in substance complains of the error of the Court in (1) overruling appellant’s motion for judgment on the verdict; (2) in granting appellee’s motion for judgment non ob-stante veredicto; (3) in overruling appellant’s motion for instructed verdict, filed prior to the submission of the charge to the jury; and (4) in submitting any special issues to the jury, the material facts being undisputed.

We agree with appellant that it was error for the court to overrule appellant’s motion for judgment on the verdict and error to grant appellee’s motion for judgment non obstante veredicto and that we should therefore reverse the trial court’s judgment and render judgment in favor of appellant. See State Bar of Texas “Appellate Procedure in Texas”, Section 18.17(4) and cases cited.

Since this is a judgment non ob-stante veredicto it must be reversed unless it is determined that there is no evidence on which the jury could have made the findings relied on by appellant. Leyva et vir. v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550. We are of the opinion that the record discloses ample evidence to support the jury’s material findings.

It is undisputed that appellee is the drawee bank and that it faile’d to return the dishonored check in controversy within the time prescribed by the statute. The statute itself has been upheld. Carder et al. v. Tyler Bank & Trust Co., D.C., 132 F. Supp. 49S, aff. 5 Cir., 224 F.2d 687, cert. denied 350 U.S. 913, 76 S.Ct. 197, 100 L. Ed. 801; Tyler Bank & Trust Co. v. Saunders, 159 Tex. 158, 317 S.W.2d 37, 40; College Station State Bank v. Fulcher et al., Tex.Civ.App., 296 S.W.2d 953, 955, no writ, hist.; City State Bank in Wellington v. National Bank of Commerce, Altus, OkL, Tex.Civ.App., 261 S.W.2d 749, ref. n. r. e.

In the Saunders case, above cited, our Supreme Court held that the Bank was not liable under the statute because it was acting as a collecting bank for Saunders, not as a drawee bank. However, the opinion contains this significant statement:

“ * * * The solution of such issue necessarily requires this Court to determine whether under the record in this case the Tyler Bank is a drawee bank within the meaning of Article 342-704, supra. If it is, then without question under the facts in this case, it is liable.” (Emphasis ours.)

We do not agree with appellee when it says in its second counterpoint that there is no evidence in the record that appellant exercised its election to hold appel-lee liable under the statute. The fact that appellant has filed this suit, to which Calvin is not a party, and has prosecuted the suit to judgment is itself evidence that appellant has elected to hold appellee liable. State v. Compton, Tex.Civ.App., 174 S.W.2d 977; Payton v. Travis County, Tex. Civ.App., 129 S.W.2d 361, error dis. Judg. correct; Gerard et ux. v. National Bond & Mortgage Corp., Tex.Civ.App., 86 S.W.2d 74, error ref.; National Surety Co. et al., v. Odie et al., Tex.Civ.App., 40 S.W.2d 876, no writ, hist.; Rick et al. v. Farrell et al., Tex.Civ.App., 266 S.W. 522, no writ, hist.; Marshall et al. v. Mayfield et al., Tex.Com. App., 227 S.W. 1097, opinion adopted; Biard & Scales v. Tyler Building & Loan Ass’n, Tex.Civ.App., 147 S.W. 1168, no writ, hist.; Sanger Bros. v. Corsicana National Bank, Tex.Civ.App., 87 S.W. 737, 739.

Neither do we agree with appellee when it asserts in its third and fourth counterpoints that appellant as a matter of law waived the acceptance by appellee of the check in question; and that there is no evidence of probative value to support the jury’s answers to Special Issues Nos. 3, 4, 6 and 7.

In its brief appellee concedes that the court in its charge correctly defined waiver as “A voluntary or intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right.” (Emphasis ours.)

Our Supreme Court has held that waiver is a question of fact where it is a matter of inference. Ford et al. v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865. The evidence in this case is such that the jury might well infer, and obviously it did infer, that appellant had not waived its right to hold appellee liable.

In circumstances like those present here the question of intention is a very important and necessary element in establishing waiver. Ford v. Culbertson, supra. See also Stowers v. Harper, Tex.Civ.App., 376 S.W.2d 34, 40, ref. n. r. e.; Staples et al. v. Railroad Commission of Texas, Tex. Civ.App., 358 S.W.2d 706, ref. n. r. e.; Ferrantello et al. v. Paymaster Feed Mills, Tex. Civ.App., 336 S.W.2d 644, 647, ref. n. r. e. ; Dewitt v. Kent County et al., Tex.Civ.App., 148 S.W.2d 213, 217, no writ. hist. In the Stowers case, above cited, it is said; “Intention is a prime factor in determining the question of waiver. The acts, words or conduct relied upon to establish intention must be such as to manifest an unequivocal intention to no longer assert the right.” With the court’s definition of waiver before it the jury plainly made an implied finding that appellant did not intend to waive its right.

Appellee leans heavily on statements made by Kadane on cross-examination as follows:

“Q. And you were attempting to get payment of this check?
"A. Right.,
* * * * * *
“Q. Did you at this time intend for this check to be paid by anybody other than the Mid-West Meat Company ?
“A. No, I had nobody to look to on it.
* * * * * *
“Q. * * * I assume you mean by that that the Mercantile went back and debited your account, or they charged the checks back to your account or took the money out of your account?
* * * * * *
“A. What else were they going to do with it? Going to throw it out the window ?
“Q. Now, what did you do?
“A. I just took it on the chin. What else could I do?
“Q. Well, didn’t you go see Mr. Calvin yourself ?
“A. Oh, yes, I have talked to him several times.
“Q. Well, didn’t you get him to sign a promissory note ?
“A. Yes, sir.”
* *****

However Kadane also testified as follows:

“Q. Mr. Kadane, when did you first know that you had a cause of action against the Defendant, Exchange Bank?
“A. After I got the — all the checks— some of the checks had been returned, I first went to the District Attorney’s office and talked to Henry Wade * * *.
“Q. * * * following your conversation with District Attorney Wade, did you contact our law firm?
“A. Yes, sir, then I went to you.
“Q. And then did you subsequently file this lawsuit against the Exchange Bank and Trust Company?
“A. Yes, sir, I asked you to prepare it. * * * »

From the above testimony it might be inferred that at the time in question appellant was not aware of its right — therefore it could not have waived a known right. In any event the above quoted testimony together with other evidence in the record raises a fact question as to intention — a. necessary element in waiver in this case.

In its first counterpoint appellee says that .there is no evidence to support the jury’s answer to Special Issue No. 1. This issue asked the jury to find from a preponderance of the evidence whether on September 27, 1962 the authorized agents of appellant knew or ought to have known that appellee had held the check in question in excess of twenty-four hours. The jury answered “No”.

The above issue and the answer to it are evidentiary; and in the light of the jury’s answers to the other issues, Special Issue No. I and the answer to it are immaterial.

Even if appellant or its agents knew on September 27, 1962 that appellee had held the check in excess of twenty-four hours, or if the jury had so found in answering Special Issue No. 1, such knowledge or finding would not have negatived and would not have been in conflict with the jury’s other implied findings that appellant had not intentionally waived a known right. Under such circumstances it did not make any difference whether appellant knew or did not know that appellee had held the check in excess of twenty-four hours. Consequently the jury’s answer to Special Issue No. 1, even if unsupported by evidence, should have been ignored by the trial court in rendering judgment on the verdict and will be ignored by this Court. American Mutual Liability Ins. Co. v. Parker et ux., 144 Tex. 453, 191 S.W.2d 844, 848; Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607, 615; Miller v. Miles, Tex.Civ.App., 400 S.W.2d 4, ref. n. r. e.; Houston Lumber Supply Co. et al. v. Wockenfuss et ux., Tex.Civ.App., 386 S.W.2d 330, 337, ref. n. r. e.; Kelley v. Goodrum, Tex.Civ.App., 378 S.W.2d 935, 938, no writ, hist.; Owens v. State, Tex.Civ.App., 342 S.W.2d 183, 184, no writ hist.; Robertson Transport Company v. Hunt, Tex.Civ.App., 345 S.W.2d 293, 295, no writ, hist.; Texas Employers Ins. Ass’n v. McDowell, Tex. Civ.App., 278 S.W.2d 444, 447, ref. n. r. e.; Brown et al. v. O’Meara, et al., Tex.Civ. App., 206 S.W.2d 122, 125, no writ, hist.; Dunning v. Popular Dry Goods Co., Tex. Civ.App., 146 S.W.2d 835, 837, writ. Dism.; Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335, not writ, hist. Therefore, we deem it unnecessary to pass on appellee’s first counterpoint and we do not do so.

Appellant’s first point on appeal is sustained. Its other points are overruled.

The judgment of the trial court is reversed and judgment is here rendered that appellant recover judgment for its damages. The amount of the judgment is to include as damages the principal sum of $4,500.00 plus interest at the rate of six per cent per annum from September 27, 1962 to January 28, 1966, the latter being the date when the judgment was signed by the trial court. Watkins v. Junker, 90 Tex. 584, 40 S.W. 11; Houston Gas & Fuel Co. v. Perry et al., 127 Tex. 102, 91 S.W.2d 1052, 1056 (Tex. Com.App. opinion adopted); Statier Hotels v. Herbert Rosenthal Jewelry Corp., Tex.Civ.App., 351 S.W.2d 579, 585 (ref. n. r. e.); De Leon v. Aldrete, Tex.Civ.App., 398 S.W.2d 160, 164 (ref. n. r. e). The judgment so rendered will bear interest at the rate of six per cent per annum until paid. All costs are taxed against appellee.

Reversed and rendered.

       The provisions of the statute, material here, are as follows:
      “ * * * items presented to a drawee bank shall be received by it, * * * shall be conditional and subject to revocation during the day on which the item is presented * * * or until midnight of the banking day after the day of presentment, exclusive of Sundays and holidays, if it is finally determined that the drawee bank was not at the time of presentment * * * obligated to pay the item, and if the drawee bank shall within that time refuse payment and return the item, * * *:
      “2. If the item is presented through a clearing house, the drawee bank shall, within the time prescribed, return the item to the clearing house presenting it.
      “3. * * * If the drawee bank in refusing payment of any item fails to comply with the provisions of this Article within the time above prescribed it shall, at the election of the owner of the item, be deemed to have accepted the item, and shall be liable for the amount thereof.” (Emphasis ours).
      The 1957 amendment to the statute substituted “or until midnight of the banking day after the day of presentment” for “or within twenty-four (24) hours after presentment”. Both parties in this case have nevertheless tried the case as if the twenty-four hour provision were still in effect. It probably is immaterial for the fact is undisputed that the check was not returned before midnight of the banking day after the day of presentment.


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    K. H. DuBOSE et ux., Frankie DuBose, Appellants, v. PARKDALE PLAZA COMPANY and Warehouse Liquor Store, Inc., Appellees.
    No. 227.
    Court of Civil Appeals of Texas. Corpus Christi.
    Oct. 27, 1966.
    Rehearing Denied Nov. 17, 1966.

      John C. North, Jr., and Jack R. Black-mon, of North, Blackmon & White, Corpus Christi, for appellants.
    W. N. Woolsey, of Lewright, Dyer & Redford, M. W. Meredith, Jr., of Keys, Russell, Watson & Seaman, Corpus Christi, for appellees.
   OPINION

SHARPE, Justice.

This appeal is from a summary judgment in favor of appellees, defendants below, that appellants, plaintiffs below, take nothing by their suit.

K. H. DuBose and wife, Frankie DuBose, on January 21, 1964 brought this suit for damages against Parkdale Plaza Company and Warehouse Liquor Store, Inc., alleging that Mrs. DuBose suffered personal injuries on January 22, 1962, when she slipped and fell upon a sidewalk adjacent to Warehouse Liquor Store, Inc., lessee of Parkdale Plaza Company, the owner and operator of a shopping center in Corpus Christi, Texas. The defendants each answered by way of general denial, and thereafter filed separate motions for summary judgment which were granted by the court.

The summary judgment evidence consists of a deposition given by Mrs. DuBose on July 28, 1964, sworn to by her on August 20, 1964, and an affidavit by her dated and filed March 4, 1965, the day prior to the hearing of said motions.

Appellants, by three points, assert that the trial court erred in granting the summary judgment because (1) appellees had a duty to exercise reasonable care to keep the premises in a safe condition for their customers and invitees, and fact issues were raised with respect to the breach therof, (2) appellees created or caused to be created a dangerous condition in which the outside of the large plate glass windows of the Warehouse Liquor Store had been washed, and fact issues were raised with respect to whether appellees knew or should have known of the creation of such condition, and (3) defendants had a duty to remove any dangerous condition or to warn customers of the same, and fact issues were raised with respect to the breach thereof.

We agree with appellees’ position that the deposition and affidavit of Mrs. DuBose considered in the light most favorable to appellants do not raise any genuine issue of material fact as to liability of appellees, and that the judgment should be affirmed.

The material facts developed by the deposition of Mrs. DuBose will be briefly summarized. On the morning of January 22, 1962, Mrs. DuBose was walking along a sidewalk within Parkdale Plaza Shopping Center adjacent to Warehouse Liquor Store No. 6, on the way to a beauty salon located two doors away. It had rained the night before and the sidewalk was wet and contained puddles of water in places. She was wearing rubber-soled shoes and was walking in a careful manner. She had not noticed the sidewalk being slippery. As she walked along the sidewalk adjacent to Warehouse Liquor Store No. 6, she saw a puddle of water and detoured or walked to her left in order to avoid it, placing her nearer to the windows of the Liquor Store, •about four feet from the same. At that time, she slipped on the wet sidewalk and fell, landing in the puddle of water around which she had been detouring. She did -not see anything on the sidewalk but water, •and did not see any suds or foam on the water into which she fell. She did not see anyone washing the windows at the shopping center that morning, but after the accident had seen windows washed there with a soapy and foamy substance which was allowed to run down on the sidewalks. She guessed that the Liquor Store windows had been washed that morning since they were clean enough to see through them. This was just a guess on her part, and the windows if cleaned could have either been “squeegeed” off or washed. She further testified that assuming there was detergent or something of that nature in the water into which she fell, she did not know how it got there or how long it had been there. Six days after she fell, Mrs. DuBose said she placed her dress in a sink of cold water to soak, noticed bubbles in the water, and concluded that the substance which came out of the water was a detergent of some type from window washing, based upon what she had observed at the shopping center since the accident.

The subsequent affidavit by Mrs. Du-Bose, filed in opposition to the motions for summary judgment, is generally in accord with her deposition concerning the manner in which she slipped and fell. However, the affidavit also contains the following statements:

“Although the sidewalk area appeared wet, there was nothing to indicate anything more than wetness due to the rain. However, the windows on the Warehouse Liquor Store in question had been washed that morning, and some kind of a detergent had been used, and allowed to splash or wash down onto the sidewalk where I was walking and detouring away from the puddle of water in the middle of the sidewalk area. There was nothing to indicate the presence of soap or detergent or anything slick in this sidewalk as I walked up to it and over it. The slickness was not apparent to me, and the presence of the detergent or whatever soap or cleaning agent the window-washing water used contained was not obvious or even apparent. I know it was some kind of a detergent because I put my dress in cold water soak a few days later and the water filled with all sorts of bubbles and suds from that which had been soaked up by my dress in the fall.”

Even if we assume that appellees were shown to be owners or occupiers of the premises where the accident occurred, and that Mrs. DuBose was an invitee, in order to raise issues of fact as to the liability of appellees, the summary judgment record must reflect evidence of probative force tending to show either (1) that appellees put the foreign substance on the sidewalk, or (2) that the appellees knew the foreign substance was on the sidewalk and negligently failed to remove it, or (3) that the foreign substance had been there long enough that it should have been discovered and removed by appellees in the exercise of ordinary care. Sherwood v. Medical & Surgical Group, Inc., 334 S.W.2d 520 (Tex. Civ.App., 1960, writ refused), and cases therein cited.

The deposition of Mrs. DuBose fails to present evidence of probative force as to any of such grounds of liability. At most, a conclusion or guess on her part as to such matters is involved. Her affidavit, however, purports to state as facts that the windows of the Warehouse Liquor Store had been washed on the morning of the accident; that some kind of detergent had been used, which had been allowed to splash or wash down onto the sidewalk; that Mrs. DuBose knew it was a detergent because when she soaked her dress in cold water several days later, the water filled with bubbles and suds from that which had been soaked up by the dress in the fall. The affidavit fails to meet the requirements of Rule 166-A, Texas Rules of Civil Procedure. The statement made in the second paragraph thereof that she has “personal knowledge of every statement herein made and am fully competent to testify to the matters stated herein” does not alone amount to an affirmative showing of her competence to testify concerning the matters just mentioned. Even if she made such a statement on the witness stand at a trial, it would not make admissible her testimony relative to the washing of the windows and the use of a detergent unless she could testify that she saw the same or that the facts concerning the same had been stated to her by way of admission against the defendants. The affidavit here does net meet the test in summary judgment cases “that affidavits must be made by competent affiants with personal knowledge of the statements in them, which statements must be so werded that if given on the witness stand they would be admissible as evidence.” Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 399. See, also, Heath v. City of Abilene, 337 S.W.2d 180 (Tex.Civ.App.1960, n. w. h.); Gaston'v. Copeland, 335 S.W.2d 406 (Tex. Civ.App.1960, wr. ref. n. r. e.); Westfall v. Lorenzo Gin Co., 287 S.W.2d 551 (Tex. Civ.App., 1956, n. w. h.)

In any event, even if we assume that the affidavit and deposition of Mrs. DuBose are sufficient to establish that a detergent or other foreign substance was on the sidewalk, they are not sufficient to show that the same came from the window in question or was attributable to conduct on the part of either appellee.

The judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    Mattie S. COLBORN, Appellant, v. G. T. BAILEY, Appellee.
    No. 11455.
    Court of Civil Appeals of Texas. Austin.
    Nov. 2, 1966.
    Rehearing Denied Nov. 23, 1966.

      Fanning, Billings, Harper, Pierce & Gil-ley, L. Vance Stanton, Dallas, for appellant.
    McCulloch, Ray, Trotti & Hemphill, Ross H. Hemphill, Thomas W. Oliver, Dallas, for appellee.
   ARCHER, Chief Justice.

This is an action brought by the appellee to enjoin appellant from parking her automobile on her driveway easement which crosses appellee’s premises. The court interpreted the words “for driveway purposes” in the easement across appellee’s premises, as meaning the “ * * * easement is to be used solely for ingress and egress * * * ” and, therefore, enjoined appellant from parking her car thereon.

The appeal is founded on one point of error and is:

The trial court erred in finding that an easement “for driveway purposes” does not include the right of appellant to park thereon in a manner that does not unreasonably interfere with the appellee’s use thereof.

Appellee is the owner in fee simple of the West one-half of Lot 22 in Block Number 13/2028 of University Place, an addition to the City of Dallas, Texas. Appellant is the owner in fee simple of the East one-half of the same lot. The two tracts of land are equal size, and the appellant is entitled to an easement for driveway purposes over and across a portion of appellee’s premises.

The above mentioned easement was created in the conveyance by Warranty Deed of the tract of land now owned by appellee, dated July 28, 1936, from Hercules Life Insurance Company to J. F. McNamara, at a time when Hercules Life Insurance Company owned all of Lot 22. It was the intention of Hercules Life Insurance Company at the time the easement was created to provide the owners and occupants of the remaining one-half of Lot 22, now owned by appellant, a means of ingress and egress due to the fact that there was no driveway on said land. Following the conveyance to McNamara, Hercules Life Insurance Company conveyed by deed to George A. Ripley, dated September 21, 1936, the remaining one-half of Lot 22, that being the East one-half. The identical language describing the easement that was used in the deed to McNamara was used in the deed to Ripley, to-wit: “an easement for driveway purposes.”

Appellant began parking her automobile in the easement around May, 1964. She has parked her automobile “all over”, the easement, both during the daytime and nighttime, and has parked thereon almost every day since May, 1964. Appellant has often parked her car in the easement at night, then awakened at five or six o’clock in the morning in order to move her car to enable her tenant to drive out by way of the easement. By parking in the easement across appellee’s property at any time she sees fit, the appellant has lowered the resale value of appellee’s property. Appellant, who is a licensed real estate agent, admitted that “I am sure it doesn’t enhance the value of it.”

The easement is one for driveway purposes.

Volume 13A of Words and Phrases, at page 43, defines “driveway” as follows:

“A ‘driveway’ is a passage way, a travel way, a way of ingress and egress. Fru-min v. May, 251 S.W.2d 314, 319, 36 Tenn.App. 32
The word ‘driveway,’ in its natural and ordinary sense, means a passage along which carriages or animals may be driven. Picerne v. Botvin, 71 A.2d 773, 776, 76 R.I. 422.”

Appellant cites and in the main relies on the case of Baer v. Dallas Theater Center, Tex.Civ.App., 330 S.W.2d 214, ref., n. r. e.

We do not believe the decision in the Baer case to be controlling in this instant case. In the Baer case the grantor conveyed by deed, certain real estate and included therein was the grant of an easement “co-ordinate and equal with that reserved by the Grantor * * * for use as a private road for pedestrian and vehicular traffic, it being expressly understood that Grantor and Grantee shall have equal rights of user of said easement.”

In discussion of the parking question, the Court stated:

“As to the right to park vehicles, the nature and quality of the easement in question must be regarded. It is an express grant. It is not limited to mere right of ingress and egress. Its declared purpose is ‘for use as a private road for pedestrian and vehicular traffic.’ * * * It is undisputed that appellant knew at that time that a building to cost at least $450,000 to be used as a dramatic school and theater was to be constructed on the site; and that large numbers of patrons, students, artists and employees would use its facilities. The terms of the grant indicate a recognition of the necessity for ‘vehicular traffic’ in this use. Both parties obviously contemplated existence of parking facilities.
******
‘In determining the scope of a grant, the language used, the situation of the parties, the purposes of the grant and the nature of the subject matter, may all be considered.’ ”

The trial court made findings of fact and conclusions of law that both plaintiff and defendant owned in fee simple their respective tracts; that defendant is entitled to an easement for driveway purposes over and across a portion of the premises owned by plaintiff and described as being a strip 12 feet wide, which was created in a deed from Hercules Life Insurance Company to McNamara at a time when the company owned both tracts, which are of equal size, and that it was the intention of the company, at the time the easement was created to provide the owners and occupants of defendant’s land a means of ingress and egress due to the fact that there was no driveway on said land.

The court found that defendant has been parking her automobile in the easement.

The court concluded as a matter of law that the easement created in favor of defendant grants her the right to travel over plaintiff’s land as a means of ingress and egress to her property, but does not grant to her the right to park her automobile, or any other motor vehicle on the land owned by the plaintiff.

A permanent injunction was granted the plaintiff enjoining defendant from parking her automobile or any other motor vehicle in the easement.

We believe the court was justified in granting the injunction as prayed for.

The two owners in this case have a common easement over the driveway for ingress and egress and neither owner has an absolute right to park vehicles on the driveway. 37 A.L.R.2d 945 and 946; Penn Bowling Recreation Center v. Hot Shoppes, 86 U.S. App.D.C. 58, 179 F.2d 64, 16 A.L.R.2d 602; Keeler v. Haky, 160 Cal.App.2d 471, 325 P.2d 648.

The judgment of the trial court is affirmed.

Affirmed.


author: CLAUDE WILLIAMS Justice.

text:
    A. V. STEELMAN et al., Appellants, v. Marshall ROSENFELD et al., Appellees.
    No. 16636.

    Court of Civil Appeals of Texas. Dallas.
    Oct. 7, 1966.
    Rehearing Denied Nov. 4, 1966.

      Saner, Jack Sallinger & Nichols and H. Louis Nichols, Dallas, for appellant.
    Strasburger, Price, Kelton, Miller & Martin and Robert H. Thomas, Dallas, for ap-pellee.
   CLAUDE WILLIAMS Justice.

For a statement of the nature of this case as well as essential facts reference is made to our previous opinion in this case. Steel-man v. Rosenfeld, Tex.Civ.App., 397 S.W.2d 906. See also the opinion of the Supreme Court wherein the case was returned to us for consideration of the points of error presented in appellants’ brief. Rosenfeld et al. v. Steelman et al., 405 S.W.2d 301.

Appellants Steelman and Vince, by their first point of error, contend that the judgment of the trial court, rendered following a nonjury trial, must be vacated because there is no evidence to show that the area in question is territory where the sale of alcoholic beverages has been prohibited under the laws of the State of Texas. This point is lacking in merit and must be overruled for several reasons.

This action was brought in the nature of a declaratory judgment suit in which the court was asked to determine and declare whether alcoholic beverages may be lawfully sold on such land in. Dallas County, held by appellants as lessees. The sole contested issue before the trial court was the correct location of White Rock Creek in the early 1930’s when Prohibition was repealed. White Rock Creek marks the boundary between Precinct 1 and Precinct 4 of Dallas County. It is undisputed in this record that Precinct 1 of Dallas County, Texas is “wet” territory, or an area where alcoholic beverages may be sold. The land in question is located close to White Rock Creek at the present time and all of the parties took the position that if the land was located north and west of White Rock Creek, as it was located in the early 1930’s it is in a “wet” territory, or Precinct 1; and if it was south and east of White Rock Creek, as it is today, it would be located in “dry” territory and the sale of alcoholic beverages would be illegal. According to the maps and plats introduced in evidence White Rock Creek flows southerly toward the Trinity River and crosses Second Avenue near Rosen-feld’s “First and Last Stop Liquors” store. It then flows in a generally southeasterly direction parallel to Second Avenue and a number of tributaries flow into it. One of these tributaries crosses Second Avenue at the place where appellants leased the land in question. It was appellants’ contention that the main channel of White Rock Creek came right up adjacent to Second Avenue in the early 1930’s where the tributary flowed under it. The trial court heard numerous witnesses who testified both pro and con concerning the location of the questioned premises in 1930. After hearing twelve witnesses and considering nineteen exhibits the trial court, by implication, found that the land was truly located in “dry” territory, or Precinct 4 of Dallas County, Texas and therefore ruled that alcoholic beverages could not legally be sold on said premises.

Appellants, by their trial amendment, specifically sought an affirmative declaration of legality of the sale of alcoholic beverages on their leased premises. They contended in pleadings and proved by witnesses that the land in question was originally located in what is now Precinct 1, Dallas County, Texas, admittedly “wet” territory. By seeking affirmative relief appellants necessarily assume the burden of proving that the land in question was located in “wet” territory. During the trial of the case no contention was raised by any party, or any witness, that any other area of Dallas County other than Precinct 1, was “wet”. During the trial of the case the trial court inquired of counsel whether there was any question but that the “wet” area of Dallas County was Precinct 1. No one interposed a contrary position and the case proceeded upon that theory.

It was only in an amended motion for new trial that appellants, for the first time, present the question which they now raise. We believe that an examination of the record demonstrates clearly that the parties tried the issue of “wet” and “dry” areas by implied consent so that any error (and we do not say that there was error) was waived.

Furthermore, there is abundant evidence in this record to overcome appellants’ contention of “no evidence” on the issue in question. That the line (White Rock Creek) between Precincts 1 and 4 was the dividing line between “wet” and “dry” areas was testified to by Marshall Rosenfeld, as follows:

“Q. And why is this the first chance or the last chance ?
“A. Well, because it is the closest one to the wet and dry line, which happens to be White Rock Creek; it’s the last stop going out and it’s the first stop coming into town.”

The witness Cecil Ridgell, a former Texas Liquor Control Board employee, testified that the land lying on the east of White Rock Creek is “dry”:

“Q. All right, Mr. Ridgell, where is the wet and dry boundaries of Dallas, do you know?
“A Yes, sir.
“Q. How do you know, Mr. Ridgell?
“A. Well, I retired from the Liquor Control Board and I had charge of this District for approximately four years.
“Q. Was it a part of your responsibility to know where the wet and dry boundary line of Dallas County was?
“A. Yes.
“Q. And in your, performance of that responsibility, did you acquaint yourself with where the wet and dry boundary line of Dallas County was ?
“A. Yes, sir.
“Q. And what is the wet and dry boundary in this general area?
“A. Well, on the east, it’s White Rock Creek.
“Q. All right, and if a piece of property is east of White Rock Creek, it’s—
“A. Dry.
“Q. Dry?
“A. Yes.
“Q. And if it’s on the west side of White Rock Creek—
“A. It’s wet from there to the river.
“Q. To the Trinity River?
“A. Yes.
“Q. All right now, with that information, Mr. Ridgell, do you have an opinion as to whether or not the piece of property by the Gas Company property was the wet side or the dry side of White Rock Creek ?
“A. I would say it’s dry.
“Q. And have you had occasion to be a Liquor Control Enforcement Officer in that general area down in those bottoms ?
“A. Yes, sir. I have stopped a many a one out there.
“Q. All right, and before you arrested them, you made sure you knew where you were?
“A. Yes, sir.
“Q. And if you had arrested anybody on that piece of property right there by the Gas Company’s property, would that have been in a wet area or a dry area?
“A. It would have been in a dry area and he would have paid a fine.”

By their second point appellants contend that the judgment of the trial court is contrary to the great weight and preponderance of the evidence in that the testimony is overwhelming in demonstrating that the area in question is located within the limits of Justice of the Peace Precinct 1 of Dallas County, Texas, a “wet” area. We have carefully examined the record in considering this “insufficient evidence” point in the light of the well established rule pronounced by the Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Having done so we cannot say that the judgment of the trial court is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust.

The witness J. M. Iley testified that he had been familiar with the tract of land in question for about fifty years; that he owned part of it and was lessee of a portion of it for about ten or fifteen years. He testified that during the last fifty years he had been personally acquainted with the main channel of White Rock Creek and that during this fifty years such channel had been no closer than 300 to 350 feet from the tract of land in question which meant that the disputed area was definitely in “dry” territory.

The witness Cecil Ridgell testified that he was thoroughly familiar with the land in question for many years. He had recently retired from the Liquor Control Board and had been in charge of this district for about four years. As such it was his responsibility to know where the “wet” and “dry” boundary line of Dallas County was and in the performance of that responsibility he had acquainted himself with the location of the “wet” and “dry” boundary line which was White Rock Creek. He testified that the tract of land in controversy was on the “dry” side of White Rock Creek.

Appellants’ witnesses testified to the contrary and certain exhibits introduced by appellants tended to show that the territory was in “wet” territory.

It is sufficient to say that the testimony was sharply conflicting on the only issue of fact before the court, that is, the true location of the property in question. The trial court observed the witnesses and examined the exhibits and concluded that the area was not in “wet” territory as contended by appellants. No findings of fact or conclusions of law were filed by the trial court and therefore all facts necessary to support the judgment are presumed to have been found in favor of the judgment. The court impliedly found, based upon sufficient evidence, that the land in question lay on the east side of White Rock Creek at the time Prohibition was repealed. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

By their third point appellants say that the trial court committed error in granting appellees any relief because there is no evidence in the record that appellees have any interest in the property in question and therefore the trial court was without jurisdiction to grant appellees relief absent a justiciable controversy between appellants and appellees. We find no merit in this contention and overrule same.

The action was originally filed by Rosen-feld and Coleman, owners of a liquor store on Second Avenue approximately three-quarters of a mile from the property in question, seeking a declaratory judgment of the district court that the area in question was an area where the sale of alcoholic beverages was prohibited by the laws of the State of Texas. The suit named as defendants, Steelman and Vince as well as Harold Shank, City Secretary of the City of Dallas, and the County Clerk of Dallas County. The City Secretary, by answer, prayed the court to declare the rights and status of the land in question. During the trial of the case the district judge raised the question as to whether or not there was a justiciable controversy between appellants and appellees whereupon, leave of court being obtained, appellants filed a trial amendment alleging their interest in the real estate in question and that a bona fide controversy existed between appellants and the City Secretary and the County Clerk of Dallas County in that the City Secretary and County Clerk had declined to certify the area in question as being an area where the sale of alcoholic beverages was authorized and that appellants were entitled to a determination of such rights. At the conclusion of the testimony the court entered judgment declaring that alcoholic beverages may not legally be sold on the land in question. Obviously, the judgment entered by the court did not award specific relief to any parties but merely decreed that the sale of alcoholic beverages is not lawful on the subject land. The court did specifically deny the relief prayed for by' Steel-man and Vince.

Without dispute or controversy there is a justiciable controversy between appellants and the City Secretary of the City of Dallas and the County Clerk of Dallas County. The trial court settled this controversy by judgment. We find that the trial court had jurisdiction to render the judgment and we have jurisdiction to hear appellants’ appeal from such judgment.

By their fourth point of error appellants complain of the trial court’s action in refusing to admit in evidence certain maps, being Exhibits 4 and 10, said maps being used by the Commissioners Court of Dallas County, Texas and the Building Inspector’s Office of the City of Dallas in determining the location of “wet” and “dry” areas in Dallas County, Texas. Exhibit 4 was a map from the Clerk of the Commissioners Court of Dallas County which shows the boundary of Precinct No. 1 as the division between Precinct 1 and Precinct 4 along White Rock Creek. Appellants offered this map in evidence under the provisions of Art. 3731a, Vernon’s Ann.Civ.St., as being part of the official records of the County Clerk of Dallas County. Exhibit 10, a map from the office of the Building Inspector of the City of Dallas, was offered in evidence as part of the official records of the City of Dallas. This map indicated the “wet” areas in Dallas County. The court refused to admit either exhibit in evidence.

We have carefully examined the record in connection with the tender of these exhibits and find that there is sufficient doubt cast upon the accuracy of the maps in question to justify the trial court’s exclusion of same. Moreover, appellants have not demonstrated to us that the refusal on the part of the trial court to admit such exhibits probably resulted in the rendition of an improper judgment. Rule 434, Vernon’s Texas Rules of Civil Procedure.

Finally, appellants urge reversal of the trial court’s judgment because of the refusal of the judge to grant a new trial based upon newly discovered evidence. In their amended motion for new trial appellants allege that since the trial of the cause and “after considerable difficulty, these defendants have located a John Shilling who resides at 3521 Alta Vista Drive in Waco, Texas who, as an employee of Austin Road Company, was in charge of the work in connection with relocating the main stream of White Rock Creek for the Highway Department of the State of Texas in 1949 and that such witness would be able to identify the maps which have been offered as evidence and to testify that the location of White Rock Creek was as shown on said maps and work plans prepared by the Highway Department of the State of Texas, and that White Rock Creek at that time was located as shown on such maps. That the testimony of this witness was not available at the time of the trial of said cause because his whereabouts was not known and the failure to locate him was not caused by the lack of diligence on the part of these defendants.” No affidavit of the missing witness, or anyone else, was attached to the motion for new trial. The witness was not called to testify at the hearing of the motion for new trial. While not alleged in the motion for new trial appellants, in their argument and statement under this point of error, contend that the witness, if present, would have identified defendants’ exhibits introduced during the trial of the case, and being maps and plats made by the Highway Department of the State of Texas in connection with the acquisition of certain right of way for the widening of Highway 40, as well as other changes in the terrain in connection with the change of the highway, all of which would have supported appellants’ contention that the area in question was in truth and in fact located in Precinct 1 rather than in Precinct 4.

Appellants’ point is without merit for several reasons. In the first place, it is well settled that a motion for new trial on the grounds of newly discovered evidence must be supported by an affidavit of the missing witness. Associates Investment Co. v. Lenz, Tex.Civ.App., 288 S.W.2d 857. This is true even though the motion is verified and not controverted. Hammer v. City of Dallas, Tex.Civ.App., 273 S.W.2d 646. Here there was neither an affidavit on the part of the missing witness nor was the motion verified by appellants’ attorneys or anyone else. Furthermore, not only must the motion be accompanied by an affidavit of the person by whom the expected proof is to be made, but such witness must be called to testify on the hearing of the motion. Southern Motor Lines v. Creamer, Tex.Civ.App., 113 S.W.2d 624; 41 Tex.Jur.2d, § 194, p. 417. Considering appellants’ amended motion for new trial in its most favorable light we are convinced that the testimony of the absent witness would have amounted to nothing more than cumulative evidence of other testimony in the record. 41 Tex.Jur.2d, § 122, p. 310. We find no abuse of discretion on the part of the trial court in overruling appellants’ amended motion for new trial based upon the newly discovered evidence of the witness Shilling.

Having carefully examined all of appellants’ points and finding the same to be without merit they are overruled and the judgment of the trial court is affirmed.

Affirmed.


author: DIXON, Chief Justice.

text:
    The MUTUAL LIFE INSURANCE CO. OF NEW YORK et al., Appellants, v. AL D. ANDERSON, Appellee.
    No. 16765.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 23, 1966.
    Rehearing Denied Nov. 4, 1966.

      Locke, Purnell, Boren, Laney & Neely and Larry M. Lesh, Dallas, for appellants.
    Woodruff, Hill, Bader & Kendall, Dallas, for appellee.
   DIXON, Chief Justice.

Appellee Al D. Anderson instituted this suit against appellants The Mutual Life Insurance Company of New York, hereinafter called Mutual, and J. David McConnell, a soliciting agent for Mutual. Appellee bases his suit on an alleged hospitalization and medical insurance contract. In a nonjury trial judgment was rendered in his favor against both appellants for $1,118.05; plus penalty damages, attorney’s fees, interest and costs.

EVIDENCE

Until January 14, 1964 appellee Anderson was employed by an advertising firm called Arma. While with that company he had a group policy with Great American Reserve Insurance Company. This policy provided that if an individual employee’s coverage terminated because of the termination of his employment, his insurance might be converted without evidence of insurability.

On or about the above date Anderson went to work as manager for an advertising firm called Ad-PR, Inc., which firm carried its group insurance program with Mutual.

Some time in January 1964 appellant McConnell explained to appellee that Mutual’s hospitalization policy could go into effect immediately, but its medical policy could not go into effect until appellee had been employed ninety days with Ad-PR, Inc. Appellee desired coverage during the ninety-day waiting period. McConnell offered him a policy which could give coverage for the ninety days. Appellee on January 24, 1964 signed an application for insurance for his wife, his son and himself.

Appellee was so busy with the duties of his employment that he did not take time to fill in the application form. By agreement McConnell later telephoned appellee’s wife, who gave answers which McConnell wrote into the form appellee had signed. Not all of the blank spaces were filled in.

Appellee’s employer, Ad-PR, gave McConnell its check for $29.86, the amount of the first premium payment. Half of this sum was paid by Ad-PR itself as its share of the premium. The other half was charged against appellee’s salary account. McConnell then attached his own check to the application. He did this to expedite the processing of the application, as Mutual would not accept an application until the first premium payment had cleared.

When McConnell received the check for $29.86 from Ad-PR he gave Ad-PR a “Conditional Receipt”. This receipt acknowledges the sum of $29.86 “in cash intended to be the first premium on proposed Select Hospital & Major Med. policy(ies) under which Al D. Anderson & family is to be insured * * *. Insurance will become effective under this receipt only as provided in (a) or (b) below * * *. (a) If the Company at its Home Office is satisfied after such investigations and medical examinations as it may require that, on the later of (i) the date of the application and (ii) the date of the last of any such examinations, each person to he insured under a policy referred to above was under the Company’s rules an acceptable insurable risk for such policy without change in the applied for plan, amount, coverages or premium rate, such policy shall be effective from such later date.” (Emphasis ours.)

Up to this point the facts are undisputed. But here begins a conflict in the testimony. Three witnesses, one of them appellee Anderson, testified that on January 24, 1964, the same day the application was signed, they heard McConnell inform ap-pellee that he was now covered. McConnell testified that he told appellee in substance that in the light of the information in the application appellee was coverable.

Appellee testified that in reliance upon the above representations of McConnell he refrained from exercising a conversion privilege contained in the group hospitalization policy issued to his former employer, Arma.

The application signed by appellee contained this provision:

“It is Mutually Agreed: (1) No one but the Company’s President, a Vice-President, or Secretary has authority to accept information not contained in the application, to modify or enlarge any contract, or to waive any requirement. (2) Except as otherwise provided in any conditional receipt issued, any policy issued shall take effect as of its Policy Date, provided its delivery and payment of the first premium are made while each person to be insured is living. Due dates of later premiums shall be as specified in the policy.”

On February 18, 1964 appellee was hospitalized for several days. He then went home for a few days, but was soon hospitalized again. On March 13, 1964 he was discharged from the hospital. On March 12, 1964 he applied to McConnell for proof of claim forms. McConnell then informed him for the first time that his application had been rejected. There was never any physical delivery of either a hospitalization or a medical policy covering appellee.

McConnell testified as to procedures followed by Mutual in processing applications. The applications are forwarded to Mutual’s principal office in New York. There an underwriter looks over the preliminary information submitted. If he judges it to be a worthy application, a potential policy number is assigned. Then while further necessary information is being collected the policy is actually put into the processing or assembly work. Sometimes the policies are even sent to the Dallas office pending the completion of the investigation and before the decision is made to accept the application.

Referring to the two policies in controversy, hospitalization and medical, appeb lant McConnell testified:

“They were sent to Dallas but they were not privileged to be released as policies to the insured. So, our Underwriting Department had determined at one point that this was a worthy application, just as I had in the beginning, and they set up the machinery for the issuance of the policy. Then, when all of the information was in, the medical exam, the inspection reports and so forth, they decided they would not issue the policy to Mr. Anderson, * *

McConnell further testified that the policies were never issued and were never delivered to appellee.

The record includes the depositions of Albert A. Bingham, Mutual’s Director of Health Insurance. They were taken in New York in answer to written interrogatories. Bingham testified that Anderson applied for a hospital and surgical policy and also a major medical policy. In the application questions were asked whether appellee had ever been treated or had any indication of chest pain, high blood pressure, diabetes, ulcer, colitis or any stomach, intestinal, gall bladder or liver disorder, prostate disorder, impaired vision or hearing or any other injury or illness.

With the exception that the application disclosed that appellee had been treated for ten days in 1962 by Dr. Norris Wimberley of Tyler, Texas for non-infectious hepatitis the answers to the above questions were all in the negative.

In the application appellee signed there is a clause whereby he waived all provisions of law forbidding any physician who had attended or examined him from disclosing any knowledge or information thereby acquired.

Upon request from Mutual Dr. Wimber-ley sent a written report in regard to ap-pellee. This report, which is attached to the deposition as an exhibit, stated that ap-pellee had suffered from left lens opacity in April, 1957; that he had been hospitalized in September 1958 for fatigue and intermittent vertigo, when a diastolic blood pressure reading of 108 had been taken and a diagnosis of diabetes mellitus was made and appellee was instructed to lose weight; that he was seen again in November and instructed to lose more weight, that in September 1959 he had a urinary tract infection and was seen by Dr. Fred Warren, who made a diagnosis of prostatitis and cystitus; that he was hospitalized in 1959 with prosta-titis, that contrary to the statement in the application that the May 1962 hospitalization was for non-infectious hepatitis, that hospitalization was actually for gastroenteritis, and at the time the hospital confirmed a suspected diagnosis of a small hiatal hernia and a small diverticulum of the second portion of the duodenum, and appel-lee had the same abnormal diastolic blood pressure reading of 108 and was experiencing morning chest pains.

After receipt of the above report from Dr. Wimberley, Mutual decided to reject appellee’s application for insurance. Mutual’s Dallas office was so instructed. The actual written instruction, dated February 25, 1964 reads, “Cancel policy #6410-27-79 and #6410-28-05. Regret we must exclude applicant as he does not meet MONY’S Underwriting Standards. Individual policies on wife approved and released.”

On March 23, 1964 McConnell informed appellee that though appellee’s application had been declined, upon execution of an amended application McConnell was authorized to deliver hospitalization policies covering appellee’s wife. Appellee executed the amended application and McConnell delivered to appellee the two policies covering appellee’s wife.

The amended application executed by ap-pellee contains this provision:

“It is understood and agreed that Al D. Anderson will be considered as not having been named in the application; that he will not be a covered member under the Policy; and that an Individual Hospital Policy naming Jeanne L. Anderson as the Insured has been issued.” (Emphasis is ours.)

A change was then made whereby the $29.86 paid by Ad-PR, Inc. as the first premium payment on a policy for appellee Al D. Anderson was applied as the first premium payment on the policy issued to his wife, Jeanne L. Anderson.

FINDINGS OF TRIAL COURT

Among the findings and conclusions made by the court were the following: (1) Upon receipt of appellee’s application at its home office in New York, Mutual issued two policies covering appellee and mailed them to its office in Dallas, thereby accepting the application of appellee Al D. Anderson in accordance with the terms of the conditional receipt issued to him when the first payment of $29.86 was made. (2) McConnell, Mutual’s agent, had authority to notify a customer of the acceptance or rejection of insurance coverage, or if not, he had apparent authority to do so. (3) Al D. Anderson relied on statements made to him by McConnell that he was “covered” and in reliance thereon permitted his coverage in Great American Insurance to lapse. (4) By failing to return the $29.86 first premium payment to appellee, Mutual is estopped to deny coverage. (5) Insurance coverage of appellee was in full force and effect at all times relevant thereto. (6) At all times material to this controversy McConnell was a soliciting agent for Mutual, with authority as limited and defined in Article 21.04, Texas Insurance Code, V.A. C.S. (7) Pursuant to instructions from Mutual, McConnell advised appellee that ap-pellee’s application had been declined, but upon execution by appellee of an amended application McConnell was authorized to deliver hospitalization policies covering ap-pellee’s wife. (8) On March 23, 1964 ap-pellee executed the amended application, whereupon McConnell delivered two policies of insurance on appellee’s wife and applied the $29.86 received from Ad-PR, Inc. on January 27, 1964 to the first premium payment due on such policies.

OPINION

Appellee does not allege or claim fraud in connection with his execution of the application for insurance, or the alleged representations of McConnell. The basis of his suit is that Mutual accepted his application, thereby consummating the contract, and that McConnell had actual, or at least apparent, authority to represent that he, appellee, was covered.

In its first five points on appeal Mutual asserts that there is no evidence, or there is insufficient evidence, that Mutual accepted appellee’s application, that there is no evidence or insufficient evidence that appellee’s application was accepted within the terms of the conditional receipt, that there was neither actual nor constructive delivery of the policies in question, therefore the court erred in concluding that Mutual did accept appellee’s application.

We sustain appellant Mutual’s first five points. It is undisputed that the policies were never delivered to appellee. They were sent to Mutual’s Dallas office to be held pending the completion of the investigation by the home office as to whether Mutual was satisfied that appellee was acceptable as an insurance risk under the company’s standards. By the terms of the application delivery was made a condition precedent of the inception of the policies— a valid requirement. American Casualty & Life Ins. Co. v. Parish, Tex.Civ.App., 355 S.W.2d 781, 784 (no writ hist.).

Appellee’s application was an offer to enter into contract of insurance. To consummate the contract there must have been an unconditional acceptance of the application. Republic Nat’l Life Ins. Co. v. Hall, 149 Tex. 297, 232 S.W.2d 697; American Life Ins. Co. v. Nabors, 124 Tex. 221, 76 S.W.2d 497.

In his verified supplemental pleading appellee alleges that the conditional receipt formed no part of the contract, that he did not execute, accept or agree to the conditional receipt, and that the receipt was unilateral, without consideration and mutuality. These allegations constitute admissions which are conclusive against ap-pellee. Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102; Rose v. Baker, 138 Tex. 554, 160 S.W.2d 515. Therefore, a judgment in favor of appellee based on the conditional receipt cannot be supported. Appellant’s sixth point is sustained.

The substance of appellant’s seventh, eighth and ninth points is that the court erred in concluding that appellant is estopped from denying coverage. The court’s conclusion is based on a finding that Mutual, after rejecting appellee’s application, did not refund the $29.86 paid by Ad-PR, Inc. for appellee as the first premium payment. We agree with appellant. The evidence is undisputed that when appellee signed the amended application on March 24, 1964 the $29.86 was applied as the first premium payment on the policy which was issued to appellee’s wife pursuant to the amended application. The said points are sustained.

Appellant’s tenth, eleventh and twelfth points are that there is no evidence, or there is insufficient evidence, to support the court’s finding that McConnell possessed apparent authority to represent to appellee that appellee was covered by the insurance for which he was applying, therefore the court erred in concluding that appellee was entitled to rely on said representations.

Again we agree with appellant. At the time McConnell is alleged to have made the representations the policies had not been delivered and Mutual had not completed its investigation. The alleged representations were directly contrary to the terms of the application and the conditional receipt. The court found that McConnell was a soliciting agent. Under the circumstances the alleged representations were beyond McConnell’s authority to make. Southland Life Ins. Co. v. Statler, 139 Tex. 496, 163 S.W.2d 623; Debenport v. Great Commonwealth Life Ins. Co., 324 S.W.2d 566 (Tex.Civ.App., writ ref. n. r. e.); Southwestern Life Ins. Co. v. Evans, 262 S.W.2d 512 (Tex.Civ.App.); Indianapolis Life Ins. Co. v. Powell, 133 Tex. 547, 127 S.W.2d 172 (Tex.App., opinion adopted); American Nat’l Ins. Co. v. Huey, 66 S.W.2d 690 (Tex.Com.App.).

In order to have sustained a finding of apparent authority there must have been some evidence that the principal, Mutual, by its conduct led appellee reasonably to believe that the agent, McConnell, had authority to bind Mutual by the representations in question. Glens Falls Indemnity Co. v. Roberson, 282 S.W.2d 438 (Tex.Civ.App., no writ hist.); Bankers Protective Life Ins. Co. v. Addison, 237 S.W.2d 694 (Tex.Civ.App., no writ hist.); Great American Casualty Co. v. Eichelberger, 37 S.W.2d 1050 (Tex.Civ.App., writ ref.). We find no evidence that Mutual clothed McConnell with the indicia of authority beyond his authority as a soliciting agent. Appellant’s tenth, eleventh and twelfth points are sustained.

In its fifteenth point appellant contends that appellee accepted the counteroffer of appellant as indicated in the amended application he signed, thereby excluding himself from coverage. This point is well taken. Appellee admits that he executed the written amended application which by its terms expressly excluded him from coverage. Republic Nat’l Life Ins. Co. v. Hall, 149 Tex. 297, 232 S.W.2d 697; Legal Security Life Ins. Co. v. Ward, 373 S.W.2d 693 (Tex.Civ.App., no writ hist.); John Hancock Mutual Life Ins. Co. v. Brennan, 324 S.W.2d 610 (Tex.Civ.App., ref., n. r. e.); Amarillo Nat’l Life Ins. Co. v. Brown, 166 S.W. 658 (Tex.Civ.App., no writ hist.). The fifteenth point is sustained.

In its nineteenth, twentieth and twenty-first points appellant alleges that the court erred in concluding that appellee was covered by basic hospitalization and medical insurance which was in full force and effect at all times relevant hereto because there was no evidence, or insufficient evidence, to sustain such conclusion and the pleadings and evidence show the contrary. Said points are sustained.

In other points appellant complains that the court erred in rendering judgment for $1,118.05, said judgment being based on an incorrect measure of damages; in allowing penalty and attorney’s fees; and in failing to make certain requested additional findings. In view of our sustaining others of appellant’s points we have concluded that we must reverse and render the trial court’s judgment. Consequently we see no necessity to pass on the other points above referred to.

Appellee in a counterpoint contends that Bingham’s testimony as given in his deposition is hearsay and ought not to be considered. If the testimony had been offered to prove the truth of the statements made in Dr. Wimberley’s report it would be hearsay. But it was not offered for that purpose. It was offered to explain why Mutual was not willing to accept appellee’s application. When considered for that purpose it is not hearsay. McCormick & Ray, “Texas Law of Evidence”, Vol. 1, pp. 558— 560.

The judgment of the trial court is reversed and judgment is here rendered in favor of appellants that appellee take nothing against them.

Reversed and rendered.


text:
    Robert Lee ALLEN, Petitioner, v. The Hon. Charles E. LONG, Jr., Respondent.
    No. 16903.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 21, 1966.
    Rehearing Denied Nov. 4, 1966.
    Marvin Menaker and David M. Kendall, Jr., Dallas, for petitioner.
    Gardere, Porter & DeHay and Gordon H. Rowe, Jr., Dallas, for respondent.
   DIXON, Chief Justice.

Petitioner Robert Lee Allen has filed a sworn application for a writ of mandamus directing Hon. Charles E. Long, Jr., District Judge, to enter judgment in petitioner’s favor in a workmen’s compensation suit styled Robert Lee Allen v. Liberty Mutual Insurance Company.

Petitioner as plaintiff filed suit against the insurance carrier as defendant to set aside an award of the Industrial Accident Board. A jury answered special issues, finding that plaintiff while in the course and scope of his employment sustained an injury which resulted in permanent partial incapacity.

However, the jury answered “No” to Special Issue No. 18, which inquired whether Liberty Mutual Insurance Company or Collins Radio Company, plaintiff’s employer, had received notice of plaintiff’s injury, if any, within thirty days from September 9, 1964. The jury was unable to answer Special Issue No. 19, which inquired whether plaintiff had good cause for not reporting his injury within said thirty days.

Following return of the jury verdict the defendant insurance carrier filed a motion for judgment on the verdict and a motion for a mistrial. Plaintiff filed a motion for judgment and an amended motion asking the trial court to disregard the answer to Special Issue No. 18 and to render judgment for plaintiff in accordance with the other findings of the jury.

The court overruled plaintiff’s motions and sustained the defendant’s motion for a mistrial.

The basis for plaintiff’s motion to disregard the jury’s answer to Special Issue No. 18 is that the defendant failed to comply with the requirements of Art. 8307b, Vernon’s Ann. Civ. St., and Rule 93 (n), Vernon’s Texas Rules of Civil Procedure. Both the statute and the rule provide that in the trial of any case appealed from the Industrial Accident Board notice of injury, if pleaded, shall be presumed to be true and “have been done and filed in legal time and manner, unless denied by verified pleadings * * It is also provided that such denial may be made in original or amended pleadings; but, if in amended pleadings, the same must be filed not less than seven days before the case proceeds to trial.

It is undisputed that on April 30, 1966 defendant filed a verified amended answer “that Plaintiff failed to notify his employer of his alleged accidental injury within the time required by law * * *, and that Plaintiff did not have good cause for such failure * *

On June 20, 1966, the day the trial began plaintiff filed a motion to strike the above pleadings on the ground that they did not negative the possibility that plaintiff had notified the defendant insurance carrier, or that the defendant had received actual notice from some other source.

On the above date defendant was permitted to file a second verified amended answer in which it alleged that plaintiff had not notified either his employer or the defendant insurance carrier of his injury.

Plaintiff objected to the new allegations on two grounds: (1) they violated the rule that required the verified denial to be filed in not less than seven days before trial; and (2) since said pleadings did not negative the possibility that defendant .or the employer had received actual notice from some other source than plaintiff, the denial was insufficient to raise issues of timely notice, or good cause for failure to give timely notice.

Plaintiff later objected to the submission of Issues Nos. 18 and 19, contending that Art. 8307b, V.A.C.S. and Rule 93 (n), T.R.C.P. are mandatory; hence defendant’s insufficient denial raised no issues of notice and good cause.

The respondent in his reply to the application for mandamus says that plaintiff himself testified that he did not give notice of injury within thirty days; and in explanation of his failure stated that he himself did not know that he had sustained a hernia until two months after the accident. Therefore lack of good cause for failure to give notice was properly raised under the verified denial and the evidence; and because of the jury’s inability to arrive at an answer to Special Issue No. 19 the court properly declared a mistrial.

We have concluded that under the facts as presented by the record before us we must deny petitioner’s application for a writ of mandamus.

Our Supreme Court, in Johnson v. Court of Civil Appeals, 162 Tex. 613, 350 S.W.2d 330, says that it is the general rule that an appellate court will not review by mandamus an action of a trial court in granting a new trial while it still has jurisdiction of the cause. The court further said that the broad language of Art. 1733, V.A.C.S. gives the Supreme Court power to correct abuses of discretion where there is no remedy by appeal, but Courts of Civil Appeal have no such authority.

Here we have a case involving an order declaring a mistrial, not the granting of a new trial. Mistrial and new trial are not the same. But it has been held that the similarity between them is sufficient to-bring mistrial within the rule laid down by the Supreme Court in the Johnson case. Meyer v. State ex rel. Lefler, 372 S.W.2d 764 (Tex.Civ.App.); L. B. Foster Steel Co. v. Moorhead, 382 S.W.2d 280 (Tex.Civ.App.). See also Crofts v. Court of Civil Appeals, 362 S.W.2d 101 (Tex.Sup.Ct.); Carnes v. Cunningham, 350 S.W.2d 59 (Tex.Civ.App.). The record before us is silent as to any statement by the trial court specifying the grounds upon which he based his order of mistrial, so we are not in position to determine same. It is our opinion that we do not have authority to grant petitioner’s application for a writ of mandamus.

The application is denied.


text:
    Paige B. BAYOUD, Appellant, v. H. B. NASSOUR, Jr., Appellee.
    No. 16793.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 7, 1966.
    Rehearing Denied Nov. 4, 1966.
    Akin, Vial, Hamilton, Koch & Tubb and James C. Tubb, Dallas, for appellant.
    Strasburger, Price, Kelton, Miller & Martin, .Royal H. Brin, Jr., and Waller M. Collie, Jr., Dallas, for appellee.
   DIXON, Chief Justice.

This appeal calls for the proper construction and application of Rules 443^148, Vernon’s Texas Rules of Civil Procedure, especially Rule 445.

In 1962 a judgment for $3,543.32 in favor of Dr. Nassour, appellee here was reversed by the Texarkana Court of Civil Appeals and the cause remanded for another trial. Bayoud v. Nassour, 353 S.W.2d 331. Dr. Bayoud’s application for writ of error was “Refused n. r. e.”, and the judgment of reversal became final when the Supreme Court of Texas overruled a motion for rehearing on January 16, 1963.

A mandate was not issued within a year thereafter. The record discloses that on April 29, 1963 appellant Bayoud wrote to the Clerk of the Court of Civil Appeals requesting issuance of the mandate. But on May 1,. 1963 the Clerk replied that mandate could not issue because there were unpaid costs — items of $55.00 and $2.25 representing the cost of the Transcript and the cost of filing a cash deposit in lieu of an appeal bond. Rule 443, T.R.C.P.

On April 11, 1964 pursuant to Rule 445 the Clerk of the Court of Civil Appeals certified that no mandate had been issued within twelve months after the date of final judgment. The Clerk’s certificate was filed in the district court on April 13, 1964.

Subsequent to his letter of April 29, 1963, no further action was taken by appellant Bayoud until December 21, 1964 when he again asked the Clerk of the Court of Civil Appeals to issue a mandate. The Clerk again declined to issue the mandate.

On March 18, 1965 appellant paid the cost items totaling $57.25 and again asked for a mandate.

By letter dated March 20, 1965 the Clerk replied, declining to issue the mandate though the payment of the above item completed payment of all the costs on appeal.

However, on March 25, 1965, upon further request by appellant, the Clerk changed her mind and the mandate was issued. On the same date the Clerk of the Court of Civil Appeals sent the Court’s check for $57.25 to the District Clerk of Dallas County in payment of the cost of the Transcript and the cost of filing the cash deposit in lieu of a bond.

By nunc pro tunc judgment signed April 26, 1966 the trial court as of February 3, 1966 dismissed the pending suit pursuant to Rule 445, T.R.C.P.

In his first and third points on appeal appellant contends that the items totaling $57.25 representing the cost of the Transcript and the cost of filing and approving the cash deposit in lieu of a bond were not costs accruing in the Court of Civil Appeals; and since he had paid all other costs he had in fact complied with the requirement of Rule 443, T.R.C.P. that “all costs accruing * * * in such appellate court” must be paid before a mandate may issue.

We cannot agree. The cost of the Transcript is part of the cost of the appeal. Following a reversal and remand of a cause of action, the costs accruing in the Court of Civil Appeals, which costs must be paid before the mandate may issue, include the cost of the Transcript. It is in effect so provided in the “Order of Supreme Court Interpreting Rule 388-a” as set out in Vernon’s Annotated Texas Rules of Civil Procedure in the volume covering Rules 352 to 736 at pages 193-195. See Rule 448, T.R.C.P.; also Connellee v. Blanton, Tex.Civ.App., 163 S.W. 407 (writ ref.); Baker v. Guinn, Tex.Civ.App., 25 S.W. 141 (no writ hist.); North v. Atlas Brick Co., Tex.Com.App., 16 S.W.2d 519 (no writ hist.).

The cost of a Statement of Facts is not involved in the present controversy. However, we believe that the rule applicable to the cost of a Statement of Facts is also applicable to the cost of the Transcript. And it has been held that the cost of a Statement of Facts is properly chargeable as part of the costs of appeal. Southland Life Ins. Co. v. Statler, 141 Tex. 110, 170 S.W.2d 714 (Tex.S.Ct.); Reaugh v. McCollum Exploration Co., 140 Tex. 322, 167 S.W.2d 727; Janes v. O’Fiel, 299 S.W. 640 (Tex.Com.App.); Irving v. Ft. Worth State Bank, 276 S.W. 899 (Tex.App.). Appellant’s first and third points are overruled.

In four other points on appeal appellant in substance contends that under the circumstances presented in this case he has made a substantial compliance with the rule and it was therefore error for the Clerk of the Court of Civil Appeals to withhold the issuance of the mandate when appellant requested its issuance in April 1963.

The circumstances relied on by appellant are as follows: at the time of perfecting the original appeal appellant, on Septem- . ber 17, 1960, deposited the sum of $300.00 as a cash deposit in lieu of a bond on appeal; thereafter on October 17, 1960 he deposited the sum of $25.00 with the Clerk of the Court of Civil Appeals, as required by Rule 388-A, T.R.C.P.; prior to January 16, 1963 he had already paid to the District Clerk of Dallas County the sum of $257.37 which was in addition to the $300.00 cash deposit made when the appeal was perfected; when he paid the cost of the Transcript of $55.00 and the filing fee of $2.25 for the filing of the cash bond, the money was immediately paid by the Clerk of the Court of Civil Appeals to the District Clerk of Dallas County. Since his •cash deposit of $300.00 was ample to secure the above cost items of $55.00 and $2.25 appellant argues that it would be a vain thing to say that he had not substantially complied with Rule 443, T.R.C.P.

Whatever may be said in favor of appellant’s contention, our courts have repeatedly held that Rules 443 and 445, T.R. C.P. are mandatory and require a dismissal of the case in the absence of the issuance of a mandate within the twelve months’ period. The filing of an appeal bond, or a deposit of cash in lieu of a bond, is not the payment of the costs. It is only security for payment of the costs, and does not constitute a compliance with Rule 443, T.R. C.P. Boothe v. Schultz, Tex.Civ.App., 371 S.W.2d 88 (no writ hist.); Parker v. Bailey, Tex.Civ.App., 286 S.W.2d 651 (no writ hist.); Miller’s Indemnity Underwriters v. Hughes, Tex.Civ.App., 268 S.W. 974 (no writ hist.); Williams v. Creighton, Tex.Civ.App., 147 S.W.2d 274 (dis. judg. correct); Davy Burnt Clay Ballast Co. v. St. Louis SW. Ry. Co., Tex.Civ.App., 32 S.W.2d 209, (writ ref., 119 Tex. 455, 32 S.W.2d 822); Pevito v. Southern Gas & Gasoline Engine Co., Tex.Civ.App., 187 S.W. 1009 (no writ hist.); Watson v. Boswell, Tex.Civ.App., 73 S.W. 985 (no writ hist.); Watson v. Mirike, Tex.Civ.App., 73 S.W. 986 (writ ref.); Scales v. Marshall, 96 Tex. 140, 70 S.W. 945 (Tex.S.Ct.).

In the Scales, Davy Burnt Clay and Watson cases, as in this case, the Clerks of the Courts of Civil Appeals had issued a mandate after the expiration of the twelve months’ period. Nevertheless, it was held proper to dismiss the suit in the trial court.

Among the cases cited by appellant are Wright v. Duval, Tex.Civ.App., 333 S.W.2d 433 (no writ hist.) and Rittenberry v. Capitol Hotel Co., Tex.Civ.App., 69 S.W.2d 491 (writ ref.). Neither of the above cases is in point here.

In the Wright case appellees sought to have the appeal dismissed because the Transcript did not show that an appeal bond had been filed or a cash deposit made in lieu of a bond. It was an appeal from an interlocutory order and the appellate court held that an appeal bond was not necessary because appellant had actually made a cash deposit in lieu of a bond as was shown by a belated certificate ■ of the district clerk.

In the Rittenberry case appellant had filed his affidavit of inability to pay costs, pursuant to Rule 444, T.R.C.P., and had requested a mandate within the twelve months’ period. The Court of Civil Appeals had ordered the Clerk to issue the mandate. There was still about a month’s time before the twelve-month period would expire. But the Clerk was inadvertently one day late in actually issuing the mandate. It was held that appellant had done everything possible to entitle him to issuance of the mandate. The fault lay wholly with the Court of Civil Appeals. The court refused to dismiss the case.

We overrule appellant’s second, fourth, fifth and sixth points.

The judgment of the trial court is affirmed.

Affirmed.


text:
    Bynum Lyle NAUMANN, Appellant, v. Kay A. NAUMANN, Appellee.
    No. 11460.
    Court of Civil Appeals of Texas. Austin.
    Nov. 2, 1966.
    Coffee, Ritter & Goldston, Donald N. Goldston, Austin, for appellant.
    Charles W. Richards and Maxwell B. Stout, Austin, for appellee.
   ARCHER, Chief Justice.

On June 1, 1965 Bynum Lyle Naumann sued his wife Kay A. Naumann for a divorce and for custody of their child, Sheryl Lynn, two years old, in the District Court of Burnet County, Texas.

On June 11, 1966, Kay A. Naumann filed her original answer and cross-answer for a divorce and for custody of the child, on the grounds of cruel treatment.

The plaintiff filed exceptions to the defendant’s cross-plaintiff’s cross-action, alleging that cross-plaintiff had not been a resident of Burnet County for six months immediately preceding the filing of the cross-action and was a resident of Travis County, Texas.

The case was tried with the aid of a jury and on issues submitted without exceptions or objections by either party.

In answer to Special Issue No. 1 the jury found that Bynum Lyle Naumann had not been guilty of excesses, cruel treatment or outrages against Kay A. Naumann of such a nature as to render their further living together insupportable.

Issues Nos. 2 and 3 conditionally submitted were not answered.

In answer to Issue No. 4 the jury found that the custody of the minor child should not be awarded to Kay A. Naumann and in answer to Issue No. 5 the jury found that the custody of the minor child should be awarded to Bynum Lyle Naumann.

The findings of the jury were received, filed and entered of record, and based on the verdict, judgment was entered denying the cross-plaintiff a divorce.

The court reciting that it was without jurisdiction to award custody of the child to any party since all parties had become residents of Travis County, Texas after this suit was filed, made no order concerning the custody of the child.

The judgment recites that “Bynum Lyle Naumann as plaintiff filed his motion to dismiss his cause of action, by way of voluntary non-suit” and which motion was granted without prejudice to file the same at a subsequent point in time.

The appeal is based on three points to the effect that the court erred in not making an award of appellant’s minor child, and in holding that the court did not have jurisdiction to make an award of the child, and in failing or refusing to enter a ruling with respect to the custody of the child.

We believe that the trial court had jurisdiction and the duty to have awarded the custody to appellant.

There is no statement of facts and this Court assumes the evidence was sufficient to support the findings of the jury.

The court once having acquired jurisdiction over the parties and the subject matter, possessed the power to determine all disputes involved.

Russell v. Russell, Tex.Civ.App., 199 S.W.2d 858, n.w.h.

Although the divorce sought was denied, the court had the jurisdiction to award the custody of the child to one or the other.

Boggs v. Boggs, Tex.Civ.App., 306 S.W.2d 237, n.w.h.

Ex parte Brown, 382 S.W.2d 97, Sup.Ct.

The judgment of the District Court must conform to the jury’s finding.

Article 4639a (1) Vernon’s Ann.Civ.St., amending Article 4639a, reads in part:

“ * * *; provided, however that the judgment of the court in a jury trial of a divorce case may not contravene the jury’s determination of child custody. * * *»

Welch v. Welch, Tex.Civ.App., 369 S.W.2d 434, n.w.h.

The right to have custody of the child modified or changed upon showing of changed conditions since entry of order by parties, to the Texas Courts is conferred by law.

Clapp v. Clapp, Tex.Civ.App., 393 S.W.2d 412, n.w.h.

The judgment of the trial court is reversed and judgment is here rendered, based on the verdict of the jury, awarding the care, custody and control of the minor, Sheryl Lynn Naumann, to appellant, By-num Lyle Nauman.


author: TIREY, Justice.

text:
    Robert R. COCKE, Appellant, v. Eleanor Bragg COCKE, Appellee.
    No. 4537.
    Court of Civil Appeals of Texas. Waco.
    Nov. 3, 1966.
    Rehearing Denied Nov. 17, 1966.

      See also, Tex.Civ.App., 382 S.W.2d 789.
    William J. McKie, Corsicana, for appellant.
    Mays, Jacobs & Pevehouse, Corsicana, for appellee.
   OPINION

TIREY, Justice.

Appellant brought this suit in the nature of a motion to reduce the support payments for his four minor children, which support orders were granted in a divorce suit that adjudicated the rights of the parties, and which suit had become final and there was no appeal therefrom. At the conclusion of the testimony the court denied appellant all the relief he asked for and, at appellant’s request, filed findings of fact and conclusions of law. We quote the pertinent parts:

“FINDINGS OF FACT
“1. This is a suit, or motion, to set aside and annul a portion of a final judgment entered herein on May 14, 1962, as afterward amended by agreement on August 15, 1962, which granted divorce to the parties herein and set aside certain community property to Eleanor Bragg Cocke and her four minor children.
“2. The May 14, 1962 judgment as well as the August 15, 1962 judgment were agreed judgments. It is a final judgment and time for appeal therefrom has long since expired.
“3. By his motion, Robert R. Cocke seeks a revision of the 1962 judgments to apply the property, set aside to Eleanor Bragg Cocke and her four children, to his own personal benefit.
“4. His ground for seeking a revision of the aforesaid final judgment is based upon ‘a change of conditions’ which make said final judgment, insofar as he is concerned, inequitable.
“5. In his motion, Robert R. Cocke makes no allegation of fraud, accident or mistake; and his petition, or motion, makes no pretense of being an equitable Bill of Review.
“6. In the Final Judgment of May 14, 1962, the community property of this Plaintiff and the Defendant was partially partitioned and Robert R. Cocke, under the partition, received certain specific items of property. In this motion, Mr. Cocke makes no tender of any assets set aside to him in said partition.
“7. I further find that since the date of the aforesaid judgments of May 14th and August 15th of 1962 there has been a change in the financial circumstances surrounding Robert R. Cocke; his income has been largely reduced and his ability to earn money has been greatly diminished, each sufficiently enough to warrant a reduction in support payments, if allowed by law.
“CONCLUSIONS OF LAW
“I find that the 1962 judgment, granting the divorce and partitioning the community property, having become final and Mr. Cocke making no allegation of fraud, accident or mistake therein, and his motion making no pretense of being an equitable review, that this Court has lost the power to set said judgment of divorce and partition aside under the circumstances here stated.
“Mr. Cocke, having received that part of the property set aside to him under the partition decree, is considered as having affirmed said judgment and is not now permitted to complain of any invalidity.
“I further conclude that the contractual provisions in the agreed judgment, setting aside the royalty interest herein sought to be annulled, for the use and benefit of Mrs. Cocke and her four minor children, is not subject to modification by this Court at this time and that part of the original divorce judgment setting aside the royalty interest to Mrs. Cocke and her children is governed by the law of contracts and there is nothing in this record to justify setting the same aside, modifying, or changing the same.
WHEREFORE, judgment should be rendered against Robert R. Cocke that he take nothing.”

The judgment is assailed on two points:

“FIRST POINT
“The trial court erred in rendering judgment for the respondent, Eleanor Bragg Parker, in view of the trial court’s findings and conclusions (Finding No. 7) that ‘since the date of the aforesaid judgment of May 14, and August 15, of 1962 there has been a change in the financial circumstances surrounding Robert R. Cocke; his income has been largely reduced and his ability to earn money has been greatly diminished, each sufficiently enough to warrant a reduction in support payments, if allowed by law’ because in view of such a finding the court did have the power to reduce the child support payments as provided in the judgments of May 14th and August 15th of 1962, and should have proceeded to enter judgment to that effect.
“‘SECOND POINT
“The trial court erred in making its finding to the effect that contractual provisions in the judgment, if any, are not subject to modification since the conclusive evidence is that respondent Eleanor Bragg Cocke has not herself complied with the judgment and thereby has rescinded same.”

We have carefully considered this entire record and we find that the judgment of the trial court denying appellant relief has its foundation upon the uncontested findings of fact which we have heretofore set out. It is also our view that the court’s conclusions of law correctly applied the law to the undisputed factual situation, and that the judgment denying appellant all relief is correct.

Perhaps we should state that appellant was before this court previously wherein he sought to set aside a final judgment entered on March 14, 1962, which was the judgment which granted the divorce to the parties and set aside certain property to the appellee and her four minor children. In that case we said the 1962 judgment was an agreed judgment and denied appellant any relief. See Cocke v. Cocke, Tex.Civ.App., 382 S.W.2d 789.

It is our view that further comment by discussion of this matter would be of no precedential value.

Each of appellant’s points is overruled, and the judgment of the trial court is affirmed.


text:
    Robert M. MOREHEAD et al., Appellants, v. CITIZENS NATIONAL BANK OF WACO, Appellee.
    No. 4531.
    Court of Civil Appeals of Texas. Waco.
    Nov. 3, 1966.
    Rehearing Denied Nov. 17, 1966.
    W. R. Griffitts, Harold Abramson, Dallas, for appellants.
    Phil E. Teeling, Waco, for appellee.
   OPINION

TIREY, Justice.

This is a venue case, nonjury. The factual situation involves the exceptions of subdivisions 5, 12 and 29a of Article 1995, Vernon’s Ann.Tex.Civ.St. The trial court overruled the defendants’ plea of privilege. We affirm. At the request of defendant, Harold Clark, the trial court made Findings of Fact and Conclusions of Law. We quote the pertinent parts:

“FINDINGS OF FACT
“1. Plaintiff, The Citizens National Bank of Waco, proved a prima fade case for debt, evidenced by a promissory-note executed by Robert Morehead, defendant, a resident of Dallas County, Texas, payable to the order of the plaintiff, and for foreclosure of a chattel mortgage lien securing said note.
“2. On March 29, 1965, Robert More-head, defendant, executed a promissory note in the principal sum of $40,000.00, payable to the plaintiff, The Citizens National Bank of Waco, Texas.
“3. Said note is payable at the plaintiff’s office in Waco, Texas.
“4. Said note is secured by a chattel mortgage and lien on certain personal' property listed in the chattel mortgage,, said chattel mortgage having been executed by the defendant Robert Morehead. and in favor of the plaintiff.
“5. This is an action in debt by the plaintiff to collect the balance due on said note and to foreclose its chattel mortgage lien on said personal property.
“6. Said personal property is located in Waco, McLennan County, Texas.
“7. The defendant, Harold Clark, is in possession of said personal property, either in person or by and through his agent.
“CONCLUSIONS OF LAW
“1. There is no evidence before the court that plaintiff was enjoined by the bankruptcy court or any other court, from proceeding in this court against the defendants, Robert Morehead and/or Harold R. Clark.
“2. The defendant Harold R. Clark is a necessary and proper party in this cause, and venue of said action against him is properly in this, the 54th Judicial District Court, McLennan County, Texas, under the provisions of .Article 1995, V. A. T. S.”

The appellee plead that Clark was in possession of the property.

At the outset we think it pertinent for us to state that we have carefully examined the statement of facts and the transcript and that the evidence shown in the statement of facts is ample to sustain appellee’s allegation that Clark was in possession of the property, and each finding of fact made by the trial court. Such being our view this case is ruled by the pronouncement of our Supreme Court in Shaw v. Allied Finance Company, 161 Tex. 88, 337 S.W.2d 107, and the cases there cited.

The judgment is assailed on what appellants designate as five points. They are substantially to the effect that the court erred:

1. In holding that any exceptions to venue in County of Appellant’s residence exists.
2. In its finding of fact that the personal property was in Waco, McLennan County, Texas; there is no evidence of such, or, alternatively, insufficient evidence of such, and such finding is contrary to the record and the total evidence.
3. In excluding appellant’s evidence regarding the payment by appellee to a Dallas Bank in order to extinguish a prior chattel mortgage lien on the furniture involved herein and the possibility of the furniture’s being in Dallas County instead of McLennan County.
4. In admitting Bank's Exhibit 2, being a letter prepared by others than the witness and possibly mailed by others than the witness; there is no proof of mailing or of receipt of same by appellant; further, said exhibit is a rough photocopy which was not properly proven nor predicate laid for introduction.
5. In overruling the plea of privilege of appellant, for, as a matter of law, the suit cannot be sustained, and therefore if the basic cause of action does not exist —venue cannot exist in McLennan County, Texas.

Since appellee plead that appellant was in possession of the property, and since we are of the view that the evidence is ample to sustain each and every finding made by the trial court, the alleged points of error asserted by appellants are overruled. Being of the foregoing view we make no further comment, except to say that this cause is ruled by the pronouncement of our Supreme Court in Shaw v. Allied Finance Company, supra, and the cases there cited.

Each of appellants’ alleged points of error is overruled, and the cause is affirmed.