text:
    Alberto CASTILLEJA, Appellant, v. Severa CAMERO, Appellee.
    No. 173.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 31, 1966.
    See also Tex.Civ.App., 402 S.W.2d 272.

      W. G. Perkin, F. B. Godinez, Jr., Pharr, for appellant.
    E. G. Henrichson, of Henrichson & Bates, Edinburg, for appellee.
   GREEN, Chief Justice.

This’ case involves a contest between the parties over the ownership and rights to proceeds of a winning ticket No. 33870 in the Mexican National Lottery of September 15, 1964. The suit was originally brought by appellee as plaintiff, against Famelisa Castilleja and her husband Jose Castilleja as defendants. By amended petition, appellant Alberto Castilleja was included as defendant. At the close of the evidence, plaintiff took a non-suit as to defendants Famelisa and Jose, leaving Alberto as the only defendant. All of the above named parties are residents of Edinburg, Hidalgo County, Texas.

On or about September 11, 1964, appellee gave to Famelisa $2.00 for the purpose of buying for appellee in Reynosa, Mexico, a one-half (½) interest in a $4.00 ticket in the Mexican National Lottery to be decided September 15, 1964, Famelisa to buy the other half for herself, with the agreement that the two of them were to “make a vaca,” i. e., a partnership, in the ticket. (Famelisa testified that appellee gave her only $1.00, but the testimony supported the jury’s finding that appellee gave her $2.00.) Famelisa went to Reynosa that same day and purchased several tickets, including Nos. 33870 and 38512. On her return to Edinburg, she gave appellee a written memorandum with the number 33870 on it, stating that was the number of the ticket in which appellee owned a one-half interest.

Famelisa testified that on the following day, and before the drawing, she discovered that she was mistaken about the number of the ticket in which appellee owned a one-half interest, and that she went to appellee’s house and told her of such mistake, stating to appellee that the number of the ticket in which the two of them had “made the vaca” was 38512 and not 33870. Famelisa further testified that appellee wrote such number on a piece of paper, and “said it was all right.” According to Famelisa, ticket No. 33870 was purchased for her son, Alberto, defendant and appellant in this case. Ticket No. 38512, introduced in the evidence by defendant, had the word “Vaca” on the reverse side, written, according to Famelisa, by the man who sold her the tickets.

Appellee testified that she had given Fa-melisa $2.00 to buy for her a one-half interest in a $4.00 lottery ticket in the Mexican lottery, and that Famelisa was to buy and to own the other half. She further stated that after Famelisa had given her the written memorandum that the interest in the ticket purchased for appellee was in ticket No. 33870, she never thereafter stated anything to appellee about any other lottery ticket until several days after the drawing, and after all parties knew that ticket No. 33870 was the winner of the net sum after taxes due the Republic of Mexico of $34,000.00. ' According to appellee, on or about September 22nd she saw Famelisa, and demanded her half of the money and that then for the first time Famelisa denied that appellee owned any part of the winning ticket, and stated that such ticket was bought for her son Alberto, appellant herein, and was owned by him. Appellee has not received any part of the money won on the ticket.

Witness Nieto testified that on September 16th, he heard Famelisa say that she owned the winning ticket in partnership with another lady.

Appellant Alberto Castilleja testified that he gave his mother money to buy him a ticket; that he considered the number 33870 his lucky number, and as proof of his favoritism for such number produced several tickets bearing the number 33870 which he said he had purchased at prior lotteries. He corroborated the testimony of his mother that such ticket was bought by her for him with his money and as his property. He said that on September 16th, the day after the drawing, his mother gave him ticket No. 33870, and he went to Banco Longoria in Reynosa, Mexico and cashed said ticket, receiving therefor the sum of $34,000.00, which he deposited to his own account in said bank.

Upon the trial, neither Jose nor Famelisa Castilleja claimed any part of this money. They testified that the winning ticket No. 33870 was purchased for appellant with his money. Appellee, on the other hand, contended that she had a one-half interest in the winning ticket, that appellant had no title or claim to the money and that he wrongfully held one half of the money as agent or bailee of appellee; that he had wrongfully converted appellee’s money to his own use, and that appellee was entitled to recover the sum of $17,000.00 from appellant.

The jury, in answer to the two issues submitted, found that (1) Famelisa Castille-ja purchased ticket No. 33870 for the benefit of the plaintiff Severa Camero, and the defendant Famelisa Castilleja, and (2) that the amount paid Famelisa by plaintiff was $2.00.

On the basis of the evidence and jury verdict, the court rendered judgment for plaintiff-appellee against defendant-appellant for $17,000.00. In the judgment, the court expressly found that appellee had a $17,000.00 interest in the sum on deposit in the Banco Longoria, and enjoined appellant from assigning, removing, dissipating, secreting or hiding said sum of money.

Appellant by a number of points of error raises the proposition that the entire alleged cause of action as shown by plaintiffs pleadings, the evidence, and the special issues submitted to the jury, was based on a transaction which was illegal, contrary to public policy, and unenforceable in Texas courts. The proposition of the illegality of the transaction and of the contract between appellee and Famelisa was raised in the trial court by appellant by special exceptions to the petition, by motion for summary judgment, by motion for instructed' verdict dictated into the record after plaintiff had rested, by motion for judgment notwithstanding the verdict, and by motion for new trial. These same contentions are raised on appeal by appellant’s points 1, 2, 3, 4, 5 and 9.

Appellant’s first point, that the trial court erred in overruling his special exception to the Second Amended Original Petition, is overruled. The record does not show that such special exception was ever brought to the trial court’s attention, or that he made any ruling thereon. Rule 90, T.R.C.P.; Marshall v. Huron, Tex.Civ.App., 274 S.W.2d 572; Tarkington v. Continental Casualty Company, Tex.Civ.App., 341 S.W.2d 490, writ ref., n. r. e.

Appellant’s second point, that the trial court erred in overruling his motion for summary judgment, is overruled. This is not a point for consideration on appeal from a judgment rendered on a trial of the merits of the case. Stewart v. Lomax, Tex.Civ.App., 395 S.W.2d 82, writ ref., n. r. e.

Appellee’s answer to the points of appellant raising the question of the illegality of the agreement between appellee and Fa-melisa is that appellant was not a party to such agreement; that he owned no interest in the money; that he received the money as either an agent, bailee, or third party stranger to the title thereof, and that as between appellee and appellant, it was not necessary for appellee to rely on an illegal or unenforceable contract or transaction to establish her cause of action.

According to the testimony of appellee, appellant owned no interest in the winning ticket, and no interest in the money here involved. This is the effect of the jury’s answer to Special Issue No. 1. If, as contended by appellee and found by the jury, the winning ticket was the property of ap-pellee and Famelisa, appellant when he was given the winning ticket by his mother to collect the proceeds was as a matter of law acting on behalf of the true owners in collecting and holding the proceeds. If such be the true facts, when, after depositing the money in the Mexican bank, he refused to recognize appellee’s claim, and asserted ownership to the money, he converted same to his own use and benefit, and is in no position to raise the plea of illegality of the original contract between his mother and appellee.

“It is settled law that the courts will not enforce gambling contracts, but will leave the parties where they are found. But it has been determined with equal clearness that the fruit of a gambling venture is property about which the parties will be allowed to litigate. The courts will enforce no wagering contract, nor render any judgment based upon its terms. But when a wagering contract has been executed, and its fruits paid to the agent of the winner, the agent can not hold it against his principal. Floyd v. Patterson, 72 Tex. [202] 205, 10 S.W. 526, 13 Am.St.Rep. 787, and authorities cited.” Russell v. Kidd, 37 Tex.Civ.App. 411, 84 S.W. 273.

From Hartford Fire Ins. Co. v. Galveston, H. & S. A. Ry. Co., Tex.Com.App., 239 S.W. 919, 923, opinion approved by Supreme Court, we copy as follows:

“It frequently happens as a result of the execution of an illegal contract that in consideration thereof some new title to property or some new property right vests in one of the parties to such contract. When such contract has been fully executed, and suit is brought, not for the enforcement thereof, but for a recovery upon or enforcement of the new title or right thus acquired relief will not be denied. Hall v. Edwards (Tex.Com.App.) [222] S.W. 167; Wegner v. Biering, 65 Tex. 506; Floyd v. Patterson, 72 Tex. 202, 10 S.W. 526, 13 Am.St.Rep. 787; De Leon v. Trevino, 49 Tex. 88, 30 Am.Rep. 101; Brooks v. Martin, 2 Wall. 70, 17 L.Ed. 732.
******
“The general rule is that the defense of illegality is confined to the parties to the contract and is not available to third parties to defeat a just claim against themselves, (citing authorities).”

See, also, City of Garland v. Texas Power & Light Co., Tex.Civ.App., 295 S.W.2d 925.

The contract between Famelisa and appellee to have a vaca, or partnership in the lottery ticket was contrary to law and public policy, and unenforceable between the parties thereto, even though the lottery was not unlawful in Mexico, where it was held and where the tickets were bought. Crutchfield v. Rambo, 38 Tex.Civ.App. 579, 86 S.W. 950, writ ref. Appellee is not attempting to enforce a partnership agreement, for she concedes that as between her and Famelisa she would have no legal rights in court to recover on such illegal contract. But the situation between appellee and appellant is quite different. There was no evidence that appellee and appellant were jointly interested in the winning ticket; appellant’s claim of ownership was of the entire ticket, 100%, and permitted no partnership with anyone. Hence the jury’s findings that ticket 33870 was purchased for the benefit of appellee and Famelisa excluded appellant from any legal claim whatever to the money.

The wagering contract had been executed, and the fruits thereof had been paid to the one who, under the jury’s findings, was not authorized to keep them as against appellee. The illegality of the original transaction between the parties thereto does not taint or vitiate the rights of the principals to sue a third party recipient of the fruits of the illegal transaction. Hartford Fire Ins. Co. v. Galveston H. & S. A. Ry. Co., supra; Russell v. Kidd, supra. It was not necessary in order for appellee to establish her cause of action against appellant that appellee rely upon the illegal agreement with Famelisa that the proceeds of the ticket, if any, be split between them, even though such contract did appear incidentally in explanation of other facts in the case. Floyd v. Patterson, supra; Beer v. Landman, 88 Tex. 450, 31 S.W. 805; Norman v. B. V. Christie & Co., Tex.Civ.App., 363 S.W.2d 175, writ ref., n. r. e.; Annotation in 50 A.L.R., 293 et seq. Appellee’s cause of action was based on her ownership of an interest in the ticket and consequently the money. In so far as rights between her and appellant are concerned, any agreement between Famelisa and appellee became incidental to her claim. Appellant was not a party to the original transaction between appellee and Famelisa and under the facts of this case cannot defend on the ground of illegality of the original transaction. Hartford Fire Ins. Co. v. Galveston H. & S. A. Ry. Co., supra; City of Garland v. Texas Power & Light Co., supra.

We hold that regardless of whether appellant received and holds the money as agent, trustee, bailee implied in law, or naked stranger to the title the defense that the original transaction between Fam-elisa and appellee was illegal and contrary to public policy is not available to him against the claims of appellee. His points 3, 4, 5, and 9 are overruled.

Appellant’s points six and seven allege error as to the form and wording of Special Issue No. 1. The transcript does not show that any objections were made by appellant to the court’s charge, or to the special issues, in the trial court. Hence, the asserted error was waived under Rule 274, T.R.C.P. Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979; Gale v. Spriggs, Tex.Civ.App., 346 S.W.2d 620, writ ref., n. r. e.; Grabes v. Reinhard Bohle Machine Tools, Inc., Tex.Civ.App., 381 S.W.2d 395, writ ref., n. r. e.

Point of Error No. Eight reads:
“The Honorable Trial Court erred in failing to submit a jury issue or issues requested by the Defendant, which were plead by the Defendant as a matter of an affirmative defense, and supported by the evidence.”

Point Seven, which is duplicitous as to this, also raises this contention.

The point is too general and duplicitous to require consideration. Appellant requested four special issues, all of which were refused by the trial court, but the point does not specify to which requested issue it applies. ' However, we shall consider the matter of the alleged error in refusing such requests. They were as follows :

Requested Special Issue No. 1

“Do you find from a preponderance of the evidence that the Defendant Fame-lisa Castilleja did not purchase ticket No. 33870, for the joint benefit of the Plaintiff Severa Camero and the Defendants Famelisa Castilleja, Jose Cas-tilleja and Alberto Castilleja.
“Answer ‘Yes or No.’ ”

Requested Special Issue No. 2

“Do you find from a preponderance of the evidence that the Defendant Famelisa Castilleja did not purchase Ticket No. 38512 for the joint benefit of the Plaintiff Severa Camero and the Defendant Famelisa Castilleja on or about Sept. 11, 1964?
“Answer Yes or No”

Requested Special Issue No. 3

“Do you find from a preponderance of the evidence that the Defendant Alberto Castilleja did not own ticket No. 33870.
“Answer ‘Yes’ or ‘No’ ”

Requested Special Issue No. 4

“Do you find from a preponderance of the evidence that the Defendant Alberto Castilleja did not own any interest in Ticket No. 33870 for the National Lottery of Mexico held on September 15, 1964—
“Answer ‘Yes or No’”

A defendant is entitled to an affirmative submission of his defensive issues made out by his pleadings and supported by the evidence when appropriate special issues are duly requested by him. Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951; Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528; Simpson v. Barham, Tex.Civ.App., 292 S.W.2d 874. But the failure to submit an issue is not reversible error unless its submission in substantially correct language has been requested in writing and tendered by the party complaining of the judgment. Rule 279, T.R. C.P.

Requested Issue No. 1 was merely the negative of the first issue as given, except that it added the names Jose and Alberto Castilleja. There is no evidence that the ticket was purchased for the joint benefit of Alberto and anyone else. In fact, he denied any such joint enterprise as to himself, relying on evidence that he owned 100% of ticket 33870. This issue was properly refused.

Appellant would have been entitled to a special issue inquiring as to his ownership of 33870, had he requested such issue in substantially correct language. This, as stated by appellant in his point of error, was an affirmative defense. The burden was on appellant to prove by a preponderance of the evidence that he was the owner of such ticket. The same is true as to the defense that the ticket in which appellee had an interest was No. 38512. Since appellee was not claiming an interest in that ticket, the burden was on appellant to show that she had such interest. The requested issues 2, 3, and 4, each misplaced the burden of proof on appellee, to show by a preponderance of the evidence the negative of appellant’s defense.

The tender of an issue which misplaces the burden of proof is not tender of an issue in substantially correct language, and the refusal to give such issue is not reversible error. Rule 279, T.R.C.P., McDonald, Texas Civil Practice, Vol. 3, Sec. 12.33, p. 1152; Mitchell v. Mills, Tex.Civ.App., 264 S.W.2d 749, writ ref., n. r. e; Superior Insurance Company v. Burnes, Tex.Civ.App., 278 S.W.2d 934, writ ref., n. r. e.; Benefit Association of Railway Employees v. Hutson, Tex.Civ.App., 321 S.W.2d 607, writ ref., n. r. e.; Schad v. Williams, Tex.Civ.App., 398 S.W.2d 603.

Points 6, 7 and 8 are overruled.

Appellant’s last three points, 10th, 11th and 12th, allege error of the trial court in entering the judgment for appel-lee because of the lack of evidence of any relationship, contractual or otherwise between appellant and appellee, and the absence of any jury finding of such a relationship between them. Such points do not reflect reversible error, and are overruled.

Appellant secured the money involved by reason of Famelisa delivering to him the winning ticket for collection after the drawing had been announced. Since the effect of the jury verdict was that appellee owned one half of the ticket, and that appellant owned no interest therein, there need be no contractual relationship between appellant, the possessor of the money, and appellee, except that which is implied in law from the fact of a third party re-eeiving money which rightfully belongs to another. This has been discussed in this opinion under other points raised by appellant. The points of error are overruled..

Judgment affirmed.

      . The word “vaca” in Spanish means cow. However, as explained to us by counsel in oral argument, as applied to a Mexican lottery, it signifies a partnership in a lottery ticket, each person putting up a portion of the purchase price, with an agreement that the co-owners split the winnings, if any, in proportion to the amount contributed to the cost of the ticket.


source: Caselaw Access Project

author: GREEN, Chief Justice.

license: Public Domain

text:
    Alberto CASTILLEJA, Appellant, v. Severa CAMERO, Appellee.
    No. 207.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 31, 1966.

      W. G. Perkin, F. B. Godinez, Jr., Pharr, for appellant.
    E. G. Henrichson, of Henrichson & Bates, Edinburg, for appellee.
   GREEN, Chief Justice.

In cause No. B-22,984 in the 93rd District Court of Hidalgo County, Texas, between these same two parties, appellee on March 4, 1965, recovered judgment against appellant for $17,000.00. The trial court in his judgment in that case expressly found that appellant had on deposit in the Banco Longoria, of Reynosa, State of Tamaulipas, Republic of Mexico, a fund of money in which appellee’s interest was $17,000.00, and that appellee’s interest was a specific portion of said deposit in said bank. The court found appellant was threatening to dissipate, waste, or remove and secrete the same, and permanently enjoined and restrained him from assigning, removing, dissipating, secreting, or hiding said sum of money, except that he was allowed to assign the same to the district clerk of Hidalgo County, Texas, to serve as supersedeas bond in the event of appeal. Appellant did not assign any portion of the fund to the district clerk under this provision of the decree. The judgment was this day affirmed by this Court in Castilleja v. Camero, our No. 173, 402 S.W.2d 265.

On September 14, 1965, while said cause was pending on appeal to this Court as our No. 173, appellee filed the present case No. B-23,409 in the 93rd District Court of Hidalgo County, Texas, alleging the facts concerning the entry of the decree in No. B-22,984, and the appeal from said judgment without supersedeas bond, and further alleging that execution had issued and been returned nulla bona, the insolvency of appellant, the deposit by appellant of the money in Banco Longoria in Reynosa, Tamaulipas, Mexico, out of the jurisdiction of Texas courts, and appellee’s specific interest in the funds represented by said deposit, that appellant threatened to remove himself from the jurisdiction of the court so as not to be available for punishment for violating the injunction against him, and other facts. Appellee prayed that after due hearing, the court issue its writ of mandamus requiring appellant to transfer the sum of $17,000.00 belonging to appellee by virtue of the judgment in cause No. B-22,984, to the district clerk of Hidalgo County, Texas, to be held by him conditioned that appellant prosecute his appeal in said cause to effect, and that said sum be paid out of the registry of the court in accordance with the final terms of the judgment in said cause No. B-22,984, serving while said case was on appeal in the nature of a supersedeas bond. Said petition was duly sworn to.

After a non-jury trial, at which both parties duly appeared in person and by counsel of record, the trial court, finding that appel-lee should be awarded the writ of mandamus, signed and entered its order reading in part as follows:

“It is accordingly ORDERED, ADJUDGED and DECREED that a peremptory writ of mandamus issue directing and commanding the Respondent, Alberto Castilleja, to within ten (10) days from this day pay into the registry of the 93rd District Court, the sum of Seventeen Thousand & No/100 ($17,000.00) Dollars, which are funds adjudged to be property of the Relator by virtue of final judgment in Cause No. B-22,984 and to be held by the said Clerk of this Court, K. C. Boysen, conditioned that the Respondent prosecute his appeal in said cause to effect, and that said sum be paid out of the registry of this court in accordance with the final mandate on said judgment, and that the same serve hs a supersedeas bond therein, and it is further ORDERED, ADJUDGED and DECREED, that Relator recover her costs in this behalf expended and that she have her execution for the same.
“WHEREUPON, in open court, the Respondent gave notice of appeal to the Court of Civil Appeals, 13th Supreme Judicial District, State of Texas, sitting at Corpus Christi, Texas, and requested this Court to fix the amount of superse-deas bond required herein, and the Court, after consideration, does hereby set the amount of the supersedeas bond required herein at the sum of Eight Thousand Five Hundred & No/100 ($8,500.00) Dollars.”

This appeal is from said order granting the writ of mandamus.

Appellant bases his appeal on three points of error, as follows:

"POINT ONE:
The Honorable Trial Court erred in allowing the Appellee to enter in evidence the judgment in Cause Number B-22984, styled SEVERA CAMERO vs. ALBERTO CASTILLEJA, because said judgment had been appealed and was not a final judgment at the time same was sought to be introduced into evidence.
"POINT TWO:
The Honorable Trial Court erred in granting the Writ of Mandamus in that the Appellant was under a permanent injunction in Cause Number B-22984, and said Writ of Mandamus as issued was in effect an attempt to compel the Appellant to make a supersedeas bond in a separate and distinctive cause, namely Cause Number B-22984.
"POINT THREE:
The Honorable Trial Court erred in granting the Writ of Mandamus for the reason that the Honorable Trial Court had no authority to grant such a Writ in support of a money judgment.”

In support of his first point, appellant relies on the opinion in Texas Trunk R. Co. et al. v. Jackson et al., 85 Tex. 605, 22 S.W. 1030. There the court held that while an appeal or application for a writ of error is pending in an appellate court, whether prosecuted under a cost or super-sedeas bond, the judgment is deprived of that finality of character necessary to make it admissible in evidence in support of the right or defense declared by it, or as the basis of a plea in bar. In the hearing of the present case, appellee did not offer the judgment in the first case in final support of the rights declared by it, or as the basis of a plea in bar of any contention of appellant. She did not make any claim that, so long as the case was on appeal, the judgment was final. Such judgment was proper evidence of the existence of a claim of hers against specific property, to-wit, $17,000.00 of the money on deposit in appellant’s name in the bank in Mexico, in the event the judgment was affirmed, and of the necessity that to protect such claim, the relief sought would need'to be granted subject to the action of the appellate courts. We feel that the language of the Texas Supreme Court in Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938, 943, is decisive of this matter, when, through Justice Culver, it said:

“Additionally Preston complains of the enforcement of this order for the reason that the adjudication of the divorce and division of the community property has not become final because he says that case is on appeal. We think that fact is not significant. It is to be noted that the court’s order directed the payment of the money not to Mrs. Preston but to the Clerk. She would hardly be entitled to its possession until the judgment of the divorce becomes final. The fact that the case is on appeal without any showing of a supersedeas bond would, if anything, make it more imperative that the rights of Mrs. Preston be protected in this manner. Ex parte Klugsberg, 126 Tex. 225, 87 S.W.2d 465; Ex parte Wrather, 139 Tex. 47, 161 S.W.2d 774.”

Additionally, a trial court will take judicial notice of the proceedings in an ancillary or related suit. 23 Tex.Jur.2d, Evidence, p. 48. It is well recognized that a trial court may take judicial notice of its own records in a related cause involving the same subject matter between the same, or practically the same, parties. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274.

The first point is overruled.

Appellants second and third points are likewise overruled. The injunction granted in No. B-22,984 was only a negative or preventative order, and could not, even if obeyed by appellant, serve to bring the money to the court, or to appellee provided her judgment should ultimately become final. In this connection appellant, as a witness at the trial of the present cause No. B-23,409, testified under oath that he did not intend to pay appellee even if he lost the case (No. B-22,984, our No. 173) in the appellate courts. The injunction was, therefore, clearly an inadequate remedy. An affirmative order requiring appellant to do something was necessary if appellee was going to get any aid from the courts to obtain what-was legally hers.

While the trial court may not have had any jurisdiction over the bank in Rey-nosa, State of Tamaulipas, Mexico, it did have jurisdiction over the person of appellant. Roberts v. Stewart Farm Mortgage Company, Tex.Civ.App., 226 S.W. 1108. In his opinion, Judge Fly stated:

“Where the necessary parties are before a court of equity it is immaterial that the subject of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal. It can compel the defendant to do, according to the lex loci rei sitae all that he could do voluntarily to give full effect to the decree against him.”

We agree with appellant that the courts can not require a party appealing from a money judgment to enter into a su-persedeas bond, and that the filing of such bond to secure the protection from enforcement of the terms of the judgment by execution or other means while the case is on appeal is optional with an appellant. Rule 364, Texas Rules of Civil Procedure. However, the judgment in the first case, No. B-22,984, did more than grant appellee a money judgment for $17,000.00 against appellant. It recited the deposit by appellant of a specific fund of money in the Banco Longoria, and expressly found that appellee owned a specific interest of $17,000.00 in said deposit. The order in the present case expressly found that the money ordered to be paid by appellant into the registry of the court are funds adjudged to be the property of appellee by the judgment in the first case. To require a party to deposit in court property specifically decreed to belong to the other party in a law suit, subject to the action of the appellate courts, is not requiring one to give a supersedeas bond pending appeal under Rules 364, 435, T.R.C.P., although such may serve the same purpose.

We feel that under the specific findings of the trial court, appellant does not occupy merely the position of a debtor in relation to appellee, but is constructively a trustee in holding the share of the sum on deposit that has been adjudicated to be the property of appellee, and that the trial court was authorized, in order to protect its jurisdiction and its judgment, to issue the writ of mandamus. Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938; Ex parte Klugsberg, 126 Tex. 225, 87 S.W.2d 465. Although the opinion in Preston developed from an order issued in connection with the division of community property in a divorce suit, it will be noted that the out of state authorities cited in support of its holding were, for the most part, other than divorce cases, when the court said:

“ •* * * There is no question, we think, about the right of the court to hold a trustee in contempt of court for willfully refusing to obey an order to pay over funds held in his hands to the one rightfully entitled thereto. Tegtmeyer v. Tegtmeyer, 292 IIl.App. 434, 11 N.E.2d 657, later appealed 306 IIl.App. 169, 28 N.E.2d 303; Caswell v. Bathrick, 54 R.I. 30, 169 A. 321; Potter v. Emerson-Steuben Corp., 251 App.Div. 841, 296 N.Y.S. 684; Com. ex rel. Di Giacomo v. Heston, 292 Pa. 63, 140 A. 533. Contempt proceedings have even been held proper where an attorney has refused to pay over funds received from the sale of his client’s property. Smith v. Lapeer Circuit Judge, 251 Mich. 126, 230 N.W. 905.”

The necessity for the issuance of the writ of mandamus in protection of the authority of the courts is definitely shown by the following sworn testimony of appellant:

“Q. Do you intend to pay Mrs. Camero if you lose that case up there?
“A. No.”

The judgment of the trial court is in all things affirmed. A supersedeas bond in the amount of $8,500.00 as authorized by the trial court, with appellant as principal and Raul Vecchio and Jack R. Marvin, both of Pharr, Texas, as sureties, was duly filed with and approved by the district clerk, and is included in the transcript of this cause. As provided by Rule 435, T.R.C.P., judgment is rendered against appellant and the sureties on such bond for the performance of the judgment herein to the extent of the amount of liability set forth in the bond, this, however, not limiting appellant’s liability under the trial court’s decree. Hayes v. Hayes, Tex.Civ.App., 378 S.W.2d 375, 381, writ dism.; Reed v. Fulton, Tex.Civ.App., 384 S.W.2d 173, 179, writ ref. n. r. e.

Judgment affirmed.

      . Referring to the appeal of cause No. B-22,984, our No. 173.


author: MASSEY, Chief Justice.

text:
    HILLCREST STATE BANK OF UNIVERSITY PARK, Appellant, v. EVIS-SOUTHWEST, INC., Appellee.
    No. 16724.
    Court of Civil Appeals of Texas. Fort Worth.
    April 1, 1966.
    Rehearing Denied May 6, 1966.

      Fanning, Billings, Harper, Pierce & Gil-ley, and William F. Billings, Dallas, for appellant.
    Andress, Woodgate, Richards & Condos, and Wm. Andress, Jr., Dallas, for appellee.
   MASSEY, Chief Justice.

Defendant below, Hillcrest State Bank of University Park, paid forty checks with forged signatures aggregating $9,472.81 for which its depositor, plaintiff Evis-South-west, Inc., sued. Plaintiff further sought interest upon each check from the date of payment on the various dates applicable, between July 22, 1959, and June 24, 1960. On July 22, 1960, plaintiff delivered formal notification of its claim under Vernon’s Ann.Tex.Civ.St., Title 16, “Banks and Banking, Ch. 7, “Definitions, Collections, Depository Contracts”, Art. 342-711, “Forged, Unauthorized, Raised and Altered Items,” of the forged checks and wrongful charges against its account, and made claim to said items charged to its account as having occurred within the period of one (1) year from the time the bank paid same.

Suit was filed on January 5, 1961, and trial on the merits was held before the court, without intervention of a jury. Judgment was rendered on June 11, 1965. Plaintiff was awarded judgment against the bank in the sum of $1,637.07, plus interest from June 24, 1960. In general the occasion for the amount of the judgment was not because the forged checks did not amount to $9,472.81 (indeed that said amount was a proper figure was stipulated for purposes of trial) but because the plaintiff had received the benefit of most of the proceeds obtained through the forgeries. Both parties appealed.

Affirmed.

By the bank’s first point of error it is contended that plaintiff should not have been awarded any judgment because it failed to examine the monthly bank statements and cancelled checks within a reasonable time and to report the forgeries promptly to the bank. The point of error is overruled. By the statute a depositor is given the period of one year, as a sort of statute of limitation. For that period, at least, a depositor is under no duty to examine the statements and cancelled checks and would not be negligent in failing to discover the forgeries. There is no doubt but that the trial court was entitled to conclude from the evidence in the case that the bank’s officers, before paying the forged checks, could by proper care and skill have detected the forgeries. Necessarily, it is to be implied that the trial court so found. Therefore the bank was not entitled to found its defense on plaintiff’s negligence in this respect even though the plaintiff omitted all examination of its account. Fultz v. First National Bank in Graham, 388 S.W.2d 405 (Tex.Sup., 1965).

By the bank’s second point, presented as an alternative, it claims that the trial court erred in granting judgment for an amount which necessarily included non-damaging checks. The bank contends that the total of the checks forged, the proceeds from which plaintiff received no benefit, amounted to only $448.33. The bank claims that the judgment should have been in said amount.

Concededly there were two checks, total-ling $600.00, which were forged, but were involved in transfers from the plaintiff’s account to Petro-Fluid Corporation. The bank says that they were “intercompany transfers” and that there was no evidence whatsoever that the amount was used by or for the benefit of the forger, nor that Petro-Fluid Corporation did not have the full benefit of such checks. For purposes of the opinion we will agree with the bank’s contention about the state of the evidence. The trouble is: the burden of proof, i. e., the obligation to introduce evidence if credit should properly be given upon the amount of the liability owing by the bank, lay upon the bank and not the plaintiff in the case. Absence of such evidence does not benefit the bank. To the contrary, the absence of the evidence left the trial court free to convict the bank of liability for the $600.00. Incidentally, the record is in such condition that we cannot be certain that the trial court necessarily did this.

The bank says that $2,410.00 in checks were transfers to the plaintiff’s ‘"'payroll account”. This was established in the evidence and that said account belonged to plaintiff as well as its “general account” on which the forged items were made the part of the proof. Were it not for the fact that there was evidence that the forger was authorized to sign checks on the “payroll account” and that it was an account on which it was not necessary for him to forge checks once he effected a transfer of funds into it out of the “general account”, plus testimony to the effect that the forger “had taken” $5,004.00 he was not entitled to take out of the “payroll account”, it is to be observed that the plaintiff’s prima facie case was made out as to the $2,410.00. The burden of going forward with the evidence to show that plaintiff did indeed receive the benefit of the $2,410.00, if not the burden of proof in discharge of its claim of set-off, thus devolved upon the bank. It introduced no evidence in discharge of such obligation, thus leaving the trial court at liberty, as the fact finder in the case, to convict the bank of liability for the $2,410.00. Incidentally, the record is in such condition that we cannot be certain that the court necessarily did thus convict the bank, at least in the total amount.

In respect to the other checks, total-ling a minor amount, the same rules of law left the trial court free to convict the bank of liability for the total amount for which the trial court rendered judgment. Essentially, the bank was obligated to introduce evidence in discharge of its burden of proof, or, the bank had the burden of going forward with the evidence shifted to it by the proof adduced by the plaintiff, but declined to do either. The condition of the evidence left the trial court free to calculate the amount of the bank’s liability by including the amounts of the checks about which there was dispute, or such portions thereof as the court deemed proper to award plaintiff.

The plaintiff has a cross-point of error. It reads: “The parties having stipulated that forty checks aggregating $9,472.81 were forged on appellee’s account paid by the Bank and charged to that account, ap-pellee is entitled to recover that amount with interest on each item from date of payment.”

Of the forty checks the bank objected to admission of certain of them. Evidence in the record presented a basis for the court to disallow some or all of them as part of the plaintiff’s recovery. Some of the checks do not appear in the statement of facts. As to some which do appear there was evidence that the plaintiff received the benefit thereof for they were applied to settle its valid obligations to persons, firms and corporations with which it did business, and to the United States.

In the state of the record presented to us it is impossible to determine the state of the account (as between the plaintiff and the forger) since no findings of fact were filed by the trial court and the nature of the judgment rendered does not reveal which checks (or portions thereof) were credited to the total of all forged checks as a set-off in favor of the bank. Plaintiff would not be entitled to judgment against the bank for the total of all forged checks free and clear and in disregard of credits proper to be applied because of those checks (or portions thereof), the proceeds from which inured to its benefit in the retirement of its just obligations. As to those the bank would be entitled to credit if it were sought. As we construe the bank’s pleadings such was sought. If not it was certainly a matter cast in issue without objection by the parties before the court, the bank’s case having been tried upon that defensive theory.

Plaintiff may not be heard to complain because the trial court refused to allow interest on the amount it recovered dating from the payment of the individual forged items, as and when they were made on the many dates within the one year’s period antedating the notification by plaintiff on July 22, 1960. Plaintiff’s damages were resolved into an unliquidated demand under the evidence introduced and issues tried in the court below. The bank has made no complaint because the interest was allowed on the principal amount of damages awarded beginning at a time earlier than the date of judgment.

All points of error are overruled and judgment is affirmed.


text:
    HUNTER-HAYES ELEVATOR COMPANY, Appellant, v. Genevie WILLIAMS et al., Appellees.
    No. 16716.
    Court of Civil Appeals of Texas. Fort Worth.
    April 22, 1966.
    Rehearing Denied May 6, 1966.

      Cantey, Hanger, Gooch, Cravens & Scarborough, and Howard Barker and Sloan B. Blair, Fort Worth, for appellant.
    T. W. Roper, Rumph, Ivy & Karpenko, and Evans J. Karpenko, Fort Worth, for appellees.
   MASSEY, Chief Justice.

At material times plaintiff Genevie Williams was an employee of Meacham’s. Meacham’s Workmen’s Compensation Insurer was Liberty Universal Insurance Company. In Meacham’s store building maintenance of the elevators, including the freight elevator, was attended by defendant Hunter-Hayes Elevator Company, under an independent contract with Mea-cham’s.

On February 1,1962 plaintiff, acting within the scope and course of her employment, was riding and operating the freight elevator. She intended to stop at the top floor of the building — and to accomplish such objective she operated the elevator control handle which was a part of the control apparatus designed to shut off the lifting force and apply a breaking force so as to bring the elevator to a halt. Although under normal conditions plaintiff’s actions would have brought the elevator to a stop with the floor thereof even with the floor on which she intended to leave the elevator, such was not the case on this occasion. The “brakes failed”. At least they failed to hold securely, allowing the elevator to “slide” on past the top floor. Such failure allowed the top of the elevator to “bump” against what might be termed the “bumper” at the top of the elevator shaft. In turn this set up a vibration. The agitation of the elevator resulted in the jarring loose of the “escape hatch cover” in or on the elevator and this fell to the interior of the elevator and onto plaintiff — resulting in her injuries. The “escape hatch cover” was not fastened or bolted, but fitted into a groove so that its weight and the force of gravity held it in place. It was not the practice to fasten or bolt it before the accident, though such practice was subsequently initiated. Oftentimes it was necessary to the transportation of freight that the cover be removed so that long articles (such as carpet, etc.) could be carried in the elevator.

After plaintiff was injured she settled her claim under the Texas Workmen’s Compensation Act with her employer’s insurance carrier. Afterward she and such carrier brought suit against the defendant in tort, alleging that her injuries proximately resulted from the negligence of defendant’s employees. A defective part in the operating mechanism of the elevator called an “elevator relay” was shown to have been in existence on and prior to date of January 31, 1962 — on which date defendant’s employees serviced the same and discovered the defect, but failed to correct it.

On trial before a jury findings were made in answer to special issues submitted, upon which a judgment for plaintiff and the Workmen’s Compensation insurer was rendered against the defendant.

Affirmed.

The jury found from a preponderance of the evidence that the failure of the employees of the defendant to adjust the elevator relay and its contact prior to the time of plaintiff’s injury was negligence, and a proximate cause of the injuries she sustained. Damages flowing therefrom were found, but of this no complaint is made on the appeal. A finding was also made that the injuries sustained by the plaintiff were not the result of an unavoidable accident. No complaint is made thereof.

From our examination of the statement of facts we find ample evidence supporting the jury findings of negligence and proximate cause, and such findings were not contrary to the overwhelming weight and preponderance of the evidence. Under the court’s definition of the term “proximate cause” the element of foreseeability was fully included, and in arriving at the conclusion that there was ample evidence to support such jury findings, etc., we have at all times borne in mind the requisite that the event or injury sustained by the plaintiff, or some similar event or injury, was required to be reasonably foreseeable by persons in the position of the employees of the defendant in the light of the circumstances attendant when they serviced the elevator on January 31st, 1962. We are of the opinion, and hold that “foreseeability” in this case was a question of fact and not of law.

Two points of error presented by the defendant contend that there was no evidence that it breached any legal duty owing to the plaintiff in connection with the circumstances attendant to her injuries, and that under the undisputed evidence the defendant did not owe to plaintiff the duty to adjust the defective elevator relay and contact on the occasion when it serviced the apparatus. The theory under which these contentions are made is that any duty otherwise existent and obligatory upon defendant and its employees to correct the said condition ceased to exist because the owner of the premises, Meacham’s, demanded that defendant’s employees release the elevator for use. When this occurred one of the defendant’s employees informed Meacham’s official (who requested the release of the elevator) that he was “tying their hands”, and that there were problems that needed to be taken care of in connection with the servicing of the elevator which would be foreclosed if it was released for use. Nevertheless the elevator was released to Mea-cham’s for its use. No employee of the defendant attempted to reobtain its control for completion of servicing activity between that time and the afternoon of the day following, when the accident occurred.

In this connection the evidence showed that the day before that on which the servicing operations were conducted an employee of Meacham’s had notified the defendant that the elevator in question was “creeping”, i. e., was going on past the point where normal operation of the elevator by one using it and manually turning the handle which controlled it would expect it to stop. This made it difficult to cause the elevator to stop at a point where the floor of the elevator would be even with the floor at which one desired to cause it to stop. Within ten (10) minutes of the time the defendant’s employees arrived at Meacham’s to service the elevator the cause thereof was discovered. It was recognized as a matter which should be corrected. The carbon of a carbon-to-copper contact surface on what is termed the “H relay” had deteriorated so that there was not as good a contact as would be requisite to proper functioning, therefore resulting in what might be called “weak brakes” on the elevator. The “weak brakes” allowed the elevator to slide on past the point where “good brakes” would have brought it to a stop.

Defendant’s employees had the equipment at hand to repair the “H relay”, and the evidence showed that it could have been repaired within ten (10) minutes of the time it was discovered. However, the employees left same unrepaired and proceeded to do maintenance work of a character designed to prolong life of the machinery in general, such as cleaning, oiling, etc., leaving the repair on the “H relay” undone. They did intend to repair it, but not until they were finished with the other maintenance work. Therefore it had not been done when Mea-cham’s official sought and obtained the release of the elevator some thirty (30) to forty (40) minutes after servicing operations commenced. Obviously the defendant’s employees considered that no harm would likely come from leaving the repair of the “H relay” until a later time, and that if Meacham’s wanted to continue to use the elevator while it was “creeping” it would he an inconvenience to Meacham’s and not to defendant. Their state of mind was no doubt somewhat similar to one who puts off having automobile brakes tightened or relined a little while longer than the day on which the poor brakes thereon result in a collision.

At no time did the defendant or its employees consider that yielding to the demands of Meacham’s and releasing the elevator to it for use amounted to a breach of the elevator service contract on the part of Meacham’s. Nothing was ever said about such. Almost immediately after plaintiff’s accident occurred the defendant reappeared on the scene, assumed dominion over the elevator and excluded Meacham’s until the defective condition had been corrected. Thereafter Meacham’s and the defendant proceeded to perform under the maintenance contract in the same manner as before.

Furthermore neither Meacham’s nor any of its employees were ever informed of the nature of the defect discovered by the defendant. Neither was any warning transmitted. Certain it is that Meacham’s received the elevator, restored to service, as one which was in normal safe condition, albeit somewhat inconvenient in that it was still “creeping”.

The principles of law applicable in such a case are to be found in Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517 (1922). Therein it was held that a defendant taking over the control and repair of the elevators in a building became charged with the common law duty to one rightfully using them to exercise ordinary care to maintain them in a condition of reasonable safety for use; and this irrespective of any contract between the defendant and the owner of the building. The court said: “The general principle underlying our decision is laid down in volume 1, Street’s Foundations of Legal Liability, p. 92, as follows: ‘In every situation where a man undertakes to act or to pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another just as if he had bound himself by an obligatory promise to exercise the required degree of care.’ ”

This general principle (quoted from other authority by the Supreme Court) effectively negates the validity of the defendant’s rather ingenious argument, unsupported by any cited authority. The argument warrants our quoting it: “By contrast in the instant case, it is undisputed that defendant’s control of the elevator, if it ever existed under the contract with Meacham’s, was taken from defendant by the owner before defendant’s employees had completed the service and repair of the elevator, and over their protest that they had not finished their work. It is, therefore, undisputed in this record that, despite its contractual obligations, defendant in fact had neither the right to control nor actual control of the elevator in the face of the owner’s demand for possession and control. It can hardly be seriously contended that defendant’s employees should have insisted, or had any right to insist, upon retaining control of the elevator. The maintenance called for by the contract was for the benefit of Meacham’s. If Mea-cham’s did not want the maintenance, defendant was hardly in position to insist upon rendering it anyway. In other words, the fact that defendant had agreed to maintain the operating machinery did not give defendant the right to do so, or the right of control, when confronted with the owner’s insistence upon using the equipment.”

We are confident that the proposition advanced, in so far as plaintiff’s case is concerned, could avail defendant nothing. Mea-cham’s is not a party to the suit. We therefore must disregard a discussion of the law which might come to mind relative to contentions which might be appropriate were there a dispute between it and the defendant.

The trial court submitted Special Issue No. 4, which read: “Do you find from a preponderance of the evidence that the act of Meacham’s employees in allowing personnel to be transported in the elevator in question after the morning of January 31, 1962, without first permitting the completion of the servicing of the elevator by Hunter-Hayes Company was the sole proximate cause of the injuries sustained by the plaintiff on the occasion in question?” In answer thereto the jury found: “It was not the sole proximate cause.”

The defendant did not object to the issue so submitted but it did file the following specially requested special issue, submission of which was refused by the court: “Do you find from a preponderance of the evidence that the conduct of the plaintiff’s employer, Meacham’s, in allowing the service elevator to be used for transporting personnel before its controls had been serviced and with the escape hatch cover not bolted or fastened down was the sole proximate cause of the plaintiff’s injuries on the occasion in question?”

The trial court did not err in refusing to submit the defendant’s specially requested issue. Texas Rule of Civil Procedure 279 provides in part: “Where the court has fairly submitted the controlling issues raised by such pleading and the evidence, the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issue.” Former Chief Justice James P. Alexander dealt with the question here posed in a Lecture before the Judicial Section of the State Bar of Texas, July 3, 1941. The statements he made relative thereto are to be found in the “Commentaries” under Vernon’s Annotated Rules of Texas Civil Procedure. It appears therefrom that the controlling issue on “sole proximate cause” as a defense available to defendant in the instant case was Meacham’s allowing the use of the elevator when it had not permitted the defendant to complete its servicing operations. Indeed, the jarring loose of the hatch, which fell onto plaintiff’s head, was an effect rather than a cause; and its unbolted condition before the failure of the elevator mechanism merely furnished the pre-existent static condition by which the particular injury sustained by plaintiff was made possible as the result of the elevator mechanism failure— just as the “bumper” against which the rising elevator struck furnished the condition of vibration which made possible the injury. Furthermore, the specially requested issue would have been subject to objection by the plaintiff had it been allowed by the court. The point of error is overruled.

Judgment is affirmed.


author: CHAPMAN, Justice.

text:
    Roy Arval SIEWART, Appellant, v. Elizabeth Aileen SIEWART, Appellee.
    No. 7609.
    Court of Civil Appeals of Texas. Amarillo.
    April 18, 1966.

      Carleton P. Webb, Post, for appellant.
    Nelson, McCleskey & Harriger, Lubbock, James A. Walters, Lubbock, of counsel, for appellee.
   CHAPMAN, Justice.

This is an appeal by Roy Arval Siewart from an order of the trial court sustaining a plea of privilege of his former wife, Elizabeth Aileen Siewart, to be sued in the county of her residence.

In September 1957 a divorce from appellant was granted to appellee in the District Court of Garza County, custody of the two minor children was awarded to her, and appellant was required to contribute $30 per month to the support of each minor child until each child reached eighteen years of age.

In August 1965 by verified petition filed in Garza County appellee sought to enforce the original child support order of the child still under eighteen years of age by application to adjudge appellant in contempt. Said petition did not seek to change, alter, modify or increase any rights awarded in the original divorce case but only to enforce that part of the decree requiring support.

Appellant filed a counter-claim to the petition seeking enforcement of support payments, alleging a change of condition which he asserted required the custody of Kerry Orville Siewart, a boy then twelve years of age, be awarded to him. Appellee filed her plea of privilege to have the custody hearing moved to the county of her residence, Bailey County. Such plea was controverted by allegations that appellee in filing her petition seeking enforcement of support payments, submitted herself to the jurisdiction of the District Court of Garza County for litigation of the custody of the child. We hold the trial court was correct in sustaining the plea of privilege.

That part of the judgment in the divorce proceedings in September 1957 was res judicata of the question of the child’s best interests and custody at that time. Thus, allegations of a subsequent material change of conditions represented by appellant’s suit here brings into being a new and independent cause of action, Goldsmith v. Salkey, supra, and is controlled by the general laws of venue. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Wilson v. Wilson, 137 Tex. 528, 155 S.W.2d 601.

The rule is different concerning child support payments. In this part of the judgment the court which granted the original divorce decree has exclusive, continuous venue and jurisdiction to enforce or alter orders concerning child support. Article 4639a, Vernon’s Ann.Tex.Civ.St.; Ex Parte Roberts, 139 Tex. 644, 165 S.W.2d 83, 85. This is necessary in order for the court to issue contempt proceedings to enforce child support payments, one trial court not having authority to act as agent of another to inflict punishment for contempt. Ex Parte Gonzalez, 111 Tex. 399, 238 S.W. 635.

Therefore, appellee had no choice of the forum through which she could enforce the support payments. She had to go back into the original court which granted the original decree.

The San Antonio intermediate appellate court in Yeagle v. Bull, Tex.Civ.App., 235 S.W.2d 226 (N.W.H.) speaking through Justice Pope in 1950 held: “Change of custody, on the other hand, is treated as a new and independent cause of action with the venue placed in the county of respondent’s (appellee here) residence.” (Parenthetical statement ours.) The San Antonio court further held:

“ * * * the Legislature, by including within Article 4639a, provisions relating to changed orders for support and excluding provisions relating to the complementary matter of custody, manifests, as has been frequently held, a legislative intent to treat the proceedings as disconnected, separate, unrelated and independent.”

The difference in the facts in Yeagle and our case are not material enough to make a distinction in applying the law there announced to the instant case. There the father filed suit in the court that had tried the original divorce, seeking to reduce payments and for change of custody. The mother lived in another county and her plea of privilege was sustained as to the custody hearing. We find no fault in Yeagle with the reasoning applied to the conclusions reached to the effect that the party out of whom custody was sought to be changed was entitled to be sued in the county of her residence. If the San Antonio court was correct we believe that case is decisive of ours here.

Appellant relies on Hughes v. Hughes, Tex.Civ.App., 211 S.W.2d 785 (mand. ref). That case is easily distinguishable from the Yeagle ease and our case. There a comprehensive suit was filed seeking many grounds of relief, some not exclusive to the original court. That court held by filing the comprehensive petition in the District Court of Taylor County appellant submitted to the jurisdiction of that court as to all matters growing directly out of the subject matter of her suit and thereby waived her right to assert the privilege of being sued for custody of the child in the county of her residence. Appellee here sought no change or modification whatever of the original decree, but only that right which gave her no choice of the forum. (Emphasis added.)

In his Point No. 2 appellant contends the question of counter-claim is not a venue question, that a plea of privilege should be limited to cases in which the original defendant or a new cross-defendant is added, and that a plea of privilege is not a protection for the party who has originally sought the good offices of the court in which the cross-action is filed.

Appellant cites no case which he claims sustains his contention on his second point. We believe the following authorities refute his contentions: Green v. Spell, Tex.Civ.App., 191 S.W.2d 92; Spell v. Green, 144 Tex. 535, 192 S.W.2d 260; Goodman v. Goodman, Tex.Civ.App., 236 S.W.2d 641, 643 (N.W.H.); Yeagle v. Bull, supra; Taylor v. Taylor, Tex.Civ.App., 348 S.W.2d 226 (N.W.H.) and cases there cited.

Accordingly, the judgment of the trial court is affirmed.

      . Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293.


text:
    DALLAS COUNTY HOSPITAL DISTRICT, Appellant, v. PIONEER CASUALTY COMPANY, Appellee.
    No. 16721.
    Court of Civil Appeals of Texas. Fort Worth.
    April 1, 1966.
    Rehearing Denied May 6, 1966.
    Allen, Bowles & Rogers, and John C. Rogers, Dallas, for appellant.
    Akin, Vial, Hamilton, Koch & Tubb, and James A. Knox, Dallas, for appellee.
   MASSEY, Chief Justice.

The decision in this case turns upon an interpretation of the clause relating to assignment of interest under the “Medical Payments” coverage provision of Texas Standard Form automobile insurance policies. The clause reads: “Assignment of interest under this policy shall not bind the company until its consent is endorsed * * * »

An insured under an automobile insurance policy issued by Pioneer Casualty Company was provided “medical payments” coverage to the extent of $1,000.00. Although coverage is more extensive, it is generally thought of as that which provides for payment of the medical and hospital bills of one injured as the driver or passenger of the vehicle insured regardless of any question of negligence.

Such an insured assigned her rights under the policy to Dallas County Hospital District. On the date of the execution of the assignment instrument there was an accrued liability to the assignee, on the part of the insured, of approximately $400.00. By the time the instrument was served on Pioneer Casualty Company said amount had grown considerably greater than the $1,000.00 maximum liability for medical and hospital expenses.

Pioneer Casualty Company never did consent to the assignment. It paid the amount of $1,000.00 direct to its insured. Naturally it was expected that the insured would apply the $1,000.00 on medical and hospital expenses. However, in disregard of an amount owing for such expenses at another hospital where emergency treatment had been given before the injured was moved to the Dallas institution and also in disregard of the amount owing to the Dallas County Hospital District, said insured accepted the payment and departed for places unknown. It is interesting to note that her name was-Swindler.

Dallas County Hospital District brought suit direct against Pioneer Casualty Company. Suit was founded on the contract, and because of the company’s payment of the $1,000.00 direct to its insured in dishonor of her assignment. The company contended that it had discharged all its liability under the policy. With this contention as a premise it moved for judgment. The trial court granted summary judgment and the Hospital District appealed.

The question, therefore, is whether the company was obliged to honor the assignment, or was within its rights when it proceeded to act in discharge of its liability under “medical payments” coverage by payment direct to the insured. Such payment discharged policy liability unless the company was legally bound by the assignment.

Prior to the enactment of Vernon’s Ann. Tex.Civ.St. Art. 569, “Instruments may be assigned”, the policy of the law in Texas forbade an assignment such as that considered in the present instance. By such statute it was provided: “The obligee or as-signee of any written instrument not negotiable by the law merchant, may by assignment transfer all his interest therein to another.” It is to be noticed that the language of the statute is permissive, granting an assignor the privilege of assignment in the event he would have such right except for inhibition of law. However, the statute has been authoritatively construed in a case where it was held: “The statute is very general, but a proper construction would limit it so as not to include the classes of contracts which are by their terms or in their nature not assignable * * Reef v. Mills Novelty Co., 126 Tex. 380, 89 S.W.2d 210 (1936). (See note 175 A.L.R. 1120)

Nowhere in the law do we find any provision that such holding would not be applicable to contracts of insurance in this state. We consider it controlling under the facts of the instant case. Despite decisions to the contrary, cited as rendered in other states, the policy of the law in Texas permits the parties to a contract to bind themselves to each other as they see fit, so long as no statute is infringed. Reef v. Mills Novelty Co., supra.

Pioneer Casualty had the right to contract, by its policy of insurance, as it saw fit. Its insured agreed to the provisions of the policy contract by acceptance of the same. Therein it was provided that any assignment made or attempted by the insured would not be binding on the company in the absence of its consent. It did not consent. Adverting to the pleadings of the Dallas County Hospital District it is to be observed that the facts in the case foreclose recovery under the cause of action pleaded. Summary judgment in favor of the insurance company was proper in this instance.

All points of error are overruled.

Judgment is affirmed.


author: DENTON, Chief Justice.

text:
    Albert CABLA, Appellant, v. W. J. SHOCKLEY, Appellee.
    No. 7602.
    Court of Civil Appeals of Texas. Amarillo.
    April 4, 1966.
    Rehearing Denied May 9, 1966.
    R. H. Munsterman, Levelland, for appellant.
    Willard G. Street, Jr., Littlefield, for ap-pellee.
   DENTON, Chief Justice.

Appellant, Albert Cabla, sought a mandatory injunction which would require W. J. Shockley, appellee, to completely remove an earthen dike or dam built and maintained by appellee along the common boundary line of the parties’ property. Appellant alleged the dike interfered with the natural flow of surface water from Cabla’s land and that as a result of such interference his land suffered continuing damage. Two special issues were submitted to the jury and the jury found the dike did not obstruct the natural flow of the surface water from appellant’s land so as to impound such water. The damage issue, conditionally submitted, was not answered. Based upon a verdict of the jury the trial court denied the injunctive relief.

Cabla was the owner of a quarter section in Lamb County and Shockley owned a quarter section adjoining the Cabla land to the west. They had a common boundary line running north and south. Land in both tracts was fairly flat but Cabla’s land sloped gradually to the west and south. A licensed surveyor surveyed the premises and testified Cabla’s land sloped approximately .1 of a foot per 100 feet. The northern half of the Cabla land slopes slightly more than the southern part of the tract. The dike lies along the parties’ boundary line but is actually located on Shockley’s land. Although it lies near the boundary line, the record does not reveal the exact location. Testimony of the dike’s height varied from twelve inches to twenty inches. A lake is situated in the northwestern corner of Shockley’s land. It is this lake that ultimately receives a portion of the water flowing over the land in question. There is a high point in the approximate center of the north-south boundary line. Water flowing over the northern half of Cabla’s property tends to flow north and into the lake in Shockley’s tract; while water running to the south of the high point tends to flow south into a barrow ditch of a county road. Cabla did not seek relief in the form of monetary damages, but only asks for equitable relief in the form of a mandatory injunction for the removal of the dike.

The jury found the dike did not obstruct “the natural flow of the surface water from the Cabla land in such manner as to impound such water”. Along with the issue the trial court gave the following definition:

“To impound surface water is to hold or collect the same, by means of human alterations of the natural flow of such water.”

The court’s charge was submitted without objection. The appellant attacks the sufficiency of the evidence to support the jury verdict with the contention there is no evidence and insufficient evidence to support the finding.

The dike was constructed in December, 1963. The area received unusually heavy rains in June, 1964 and June, 1965. There was testimony to the effect the dike backed up water on the Cabla land on these two occasions for several feet; and that water stood on his land for several days. There is no evidence water stood on the Cabla land on any other occasion. The dike was referred to as an “open-end” embankment which was described as open at each end which permitted water to flow around either end of the dike. On the two occasions when large rains came there is evidence water did flow around the dike. The testimony was that the water flowing from the northern portion of the Cabla land flowed into Shockley’s lake as it did prior to the time the dike was constructed. The water flowing from the southern part of his land flowed into the barrow ditch along the country road.

The licensed surveyor testified the dike would change the direction of the flow of the water, but it would not change where the water “would wind up” — that is, in the lake or barrow ditch. There was testimony of an obstruction along Cabla’s northern boundary line. Some witnesses described it as a ditch while others referred to it as a small dike. The evidence is by no means clear as to what effect this obstruction, whatever it might be, would have on water flowing on to the Cabla property. The only evidence that Shockley’s dike held or collected water on Cabla’s property was his own testimony and that of his employee that water stood for some three days after the first large rain. The latter testified the second large rain, which came some two weeks prior to the trial date, did not cause the water to back up. The main objection to the dike seemed to be the tenant farmer could not cultivate that strip of land for several days after a rain because it was too wet to move the farm machinery upon it. A neighboring farmer could see no difference in the crops on Cabla’s land near the dike and the crops on the other portions of the same tract. Shockley testified he built the dike along his eastern boundary to prevent water from flowing from Cabla’s land across his land; but permit the water to drain at each end of the dike. There is evidence this was accomplished.

The narrow questions presented here are whether or not there is any evidence or sufficient evidence to support the jury finding that the dike did not “obstruct” the water flow so as to “impound” such water. It is uncontradicted water flowed from either end of the dike. Some went north into the lake and some flowed south into the county road ditch. There is no evidence this water caused any substantial damage to Cabla’s land. The fact some of the water was detained at the dike is not sufficient to set aside the jury verdict. This is especially true in the light of the testimony that the damage done by the standing water was slight. We conclude there is sufficient evidence to support the jury verdict.

Appellant takes the position that since Shockley admitted, and other testimony corroborated the fact, that the dike changed the direction of the flow of the water after it reached the dike; and that since some of the water was backed up on Cabla’s land after heavy rains, he is entitled to a mandatory injunction as a matter of law under the provisions of Article 7589a, Vernon’s Annotated Civil Statutes. We do not agree with this contention. Even though it may be said Shockley violated Article 7589a by diverting the natural flow of surface water, the granting of injunctive relief must be had only upon equitable principles. Nolte Irrigation Co. v. Willis (Tex.Civ.App.) 180 S.W.2d 451 (Ref. W.M.) was also a case in which a mandatory injunction was sought to require the removal of dams and embankments affecting the natural flow of surface water. The court there stated the applicable rule in the following language:

“The question for determination then resolves itself into whether or not the violation of the terms of the statute by the appellee, causing even a slight injury to the appellant, entitles the appellant to the benefits of a mandatory injunction commanding the abatement of the entire conditions causing such injuries. The terms of the statute do not expressly provide for the remedy of mandatory injunction as a matter of right, but the injured party is expressly accorded ‘remedies * ⅜ * in equity,’ as well as damages. We construe this to mean, however, that a remedy in equity shall be granted only upon equitable principles. The authorities are uniform in holding that the extraordinary remedy of permanent mandatory injunction compelling the alteration, destruction, or removal of property should be granted with great caution and should not be granted unless serious injury is being inflicted or, in all probability, will be inflicted.”
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“ * * * We are of the opinion, however, that, inasmuch as the statute upon which the appellant relies does not specifically direct the granting of an injunction in the event surface waters are diverted or impounded in such a manner as to damage the property of another, the appellant is subject to the general rules of equity as above set out and must show serious injury or threatened injury before he would be entitled to the extraordinary remedy which he seeks. The statute merely guarantees to the appellant the right to recover damages if he can show damage, and the right to equitable relief if he establishes facts which will bring him within the purview of the equitable rules authorizing equitable relief.”

See also Piwonka v. Hall (Tex.Civ.App.) 376 S.W.2d 912 (Ref. N.R.E.). Dallas Independent School District v. Daniel (Tex.Civ.App.) 323 S.W.2d 639 (Ref. N.R.E.). First State Bank and Trust Co. of Rio Grande City v. Starr County (Tex.Civ.App.) 306 S.W.2d 246. In our opinion the facts of this case fail to show damages of such a nature to justify the granting of a mandatory injunction.

There being no reversible error, the judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    SOUTH TEXAS BUILDING COMPANY, a Partnership, et al., Appellants, v. IDEAL ENGINEERING, INC., Appellee.
    No. 14750.
    Court of Civil Appeals of Texas. Houston.
    March 17, 1966.
    Rehearing Granted in Part and in Part Overruled April 7, 1966.
    Second Rehearing Overruled May 5, 1966.

      Sam L. Sterrett, Jr., Houston, for appellants.
    Billy B. Goldberg, Houston, for appellee.
   COLEMAN, Justice.

This is a suit by a sub-contractor against the prime contractor and the owner to recover the balance due under a construction contract. The trial was to the court without a jury. No findings of fact were requested. There is no statement of facts.

The parties entered into certain stipulations of fact in the trial court, which have been included in the transcript. The judgment entered in favor of the sub-contractor recited that evidence was heard and considered.

South Texas Building Company contracted to construct for Twelve Oaks Properties a nursing home project on Lots 7, 8, 11 and 12, Block 2, Reynolds Acres Addition in Houston, Texas. Pursuant to a published invitation to bid Ideal Engineering, Inc. approached South Texas’ building superintendent and discussed with him the possibility of effecting a saving on the total cost of the project, and Ideal was requested by the superintendent to submit its suggestions to the engineer employed by the owner’s architect. Ideal was furnished a copy of the job specifications by South Texas. Ideal discussed with the engineer the substitution of certain items required by the specifications, and then submitted a proposal to South Texas based on the use of the substituted items. Thereafter Ideal and South Texas entered into a contract. Among the substituted items were a cooling tower and certain pumps. These items were installed by Ideal after securing prior written approval of the engineer employed by owner’s architect to which Ideal had been referred by South Texas’ building superintendent.

Payments were made to Ideal by South Texas periodically. On February 10, 1964, a payment of $20,000.00 was made, leaving due under invoices previously presented the sum of $9,009.00. After this payment was received Ideal was advised by the superintendent that the F.H.A. would not approve the cooling tower and two pumps. Ideal offered to remove the tower and pumps and to substitute equipment which would be approved if South Texas would pay the additional cost of the equipment of approximately $3,000.00. This offer was rejected by South Texas.

On April 10, 1964, Ideal attempted to hook up the cooling tower and was advised by the superintendent that it could not do so and would not be permitted on the job any further since the cooling tower had been rejected by the FHA. Other than this, involving three days’ work by two men, the contract, including the equipment approved by the engineer, had been completed by Ideal. On that date patients were in the nursing home. The cooling tower and pumps were subsequently put into use and were used up to the date of trial.

Ideal contends that the sum of $17,219.80 is due under the contract. On March 26, 1964, Ideal caused a lien to be filed against the property recorded in Vol. 97, page 302, Mechanics’ and Materialmen’s Lien Records, Harris County, Texas. There was no prayer for foreclosure of this lien in the plaintiff’s petition, and no foreclosure was granted by the judgment.

The contract recites that the project was to be erected with funds obtained pursuant to a commitment from the Federal Housing Commissioner for insurance of a loan. The FHA required the removal of the tower and pumps in controversy and their replacement with different equipment. To insure that this requirement will be met South Texas has deposited with FHA the sum of $6,000.00.

Among the various provisions of the contract between Ideal and South Texas, those most pertinent to this controversy follow:

“2. The materials to be furnished and work to be done by Subcontractor hereunder are:

“A COMPLETE HEATING, VENTILATING AND AIR CONDITIONING SYSTEM IN ACCORDANCE WITH PLANS AND SPECIFICATIONS. ANY DEVIATION FROM PLANS AND SPECIFICATIONS MUST BE ACCEPTABLE TO F. H. A., ARCHITECT, ENGINEER AND OWNER.
“NOTE: INDEMNITY BOND FOR $64,000.00 REQUIRED.”

“4. A Carroll Broadnax, Architect & Associates will have general supervision of the work and will have authority to stop the work if necessary to insure its proper execution. The Afchitect will pass on all matters pertaining to progress, compliance and completion, including but not limited to the certification of the date of final completion of the project, for all purposes set forth herein-

“6. It is specifically understood and agreed that no payment or draw shall be due under this Contract until and unless the work has theretofore satisfactorily met all inspections that may be required .by the Architect, the F.H.A., the City or other governmental agency, and if any of such work shall fail to pass such inspections, Subcontractor shall remedy the defects at his expense and pay all other damages occasioned Contractor by reason thereof, including all reinspection fees; and in the event or recurring defects or delay by Subcontractor in making defects good, Contractor may correct defects without Subcontractor’s assistance and charge the expense thereof to Subcontractor and Contractor may in such case cancel this entire contract.

“12. Subcontractor guarantees a good workmanlike job according to the plans and specifications, the Architect or Owner’s Superintendent, and according to F.H.A. and City specifications and requirements. Any departure from standard practices or any failure of Subcontractor to meet the Architect’s requirements or any failure by Subcontractor to meet requirements of the plans and specifications, or any failure of Subcontractor to have a full crew and equipment on the job when needed, or any default by Subcontractor under the provisions of this Contract, shall give contractor the option to cancel this Contract and retain all unpaid portions thereof as liquidated damages and to recover from Subcontractor such additional damages as Contractor may suffer, and to employ others to do the work and collect therefor from Subcontractor and charge the cost thereof to the money due Subcontractor under this Contract, or any of said remedies, and Contractor shall also have all other remedies allowed in law or equity. It is especially understood and agreed that all work done hereunder shall be done with the utmost speed and that Contractor shall have perference over any and all other jobs which Subcontractor may have or hereafter take; and any failure of Subcontractor for any reason to have a full crew available when needed shall be reason for cancellation regardless of the reason for such delay.”

Appellant, South Texas, contends that the trial court erred in granting judgment in that (1) there is “no indication in this record of full or substantial compliance with or performance under the terms of the contract by Ideal Engineering, Inc.”; and (2) “it affirmatively appears that Ideal Engineering, Inc. breached such contract when it failed to secure FHA approval of deviation from contractual plans and specifications.”

While it is not clear whether the original plans and specifications were amended in writing, the trial court could have found that such an amendment was made with the consent of the contractor. Since it is stipulated that the work was completed in accordance with the plans and specifications (as modified with the approval of the owner prior to the execution of the sub-contract), with the exception of the connection of the water tower, a finding by the trial court that Ideal had fully performed the contract will be implied unless such a conclusion is prevented by the stipulation that FHA required that the tower and pumps be removed and substituted. Assuming that the specifications were amended, it was impossible for Ideal to completely perform the contract since performance in accordance with the amended specifications was not approved by FHA.

While it appears that to install an FHA approved water tower and pumps will cost a sum between $3,000.00 and $6,000.00, out of a total contract of $64,000.00, in the absence of a statement of facts we cannot say that Ideal failed to substantially perform the contract. We must presume in support of the judgment that the trial court found that Ideal did substantially perform and that his finding was supported by evidence introduced at the trial. Harvey v. State, Tex.Civ.App., 389 S.W.2d 692, ref., n. r. e.; Armstrong v. West Texas Rig Co., Tex.Civ.App., 339 S.W.2d 69, ref., n. r. e.

In 10 Tex.Jur.2d, Building Contracts, § 21, the text reads:

“Substantial performance is regarded as full performance, insofar as the rule that performance is a condition precedent to the right to recover on the contract is concerned ; a contractor who has in good faith substantially performed may sue under the contract.

“Although substantial peí formance does not mean an exact performance in every slight or unimportant detail, it means a performance of all important particulars and permits only such omissions or deviations from the contract as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, and are remediable without doing material damage to other parts of the building in tearing down and reconstructing; when the necessary elements are not present the doctrine is not applicable even though the work is as good or as valuable to the owner as that agreed to be done.”

Paragraph 4 of the sub-contract provides that the architect shall have authority to stop the work if necessary to insure its proper execution and that he will pass on all matters pertaining to compliance and completion “for all purposes set forth herein.” Appellants’ pleading contained only a general denial. There is no allegation that the architect stopped the work nor that he has failed or refused to certify that the contract was completed. There is no pleading that the contract has been cancelled as authorized by the provisions heretofore quoted. Nor was there a counter-claim for damages against the sub-contractor by reason of the breach of the covenant to do the work in accordance with FHA specifications and requirements in a good, workmanlike manner, or for its failure to remedy the defects. There is no allegation that the contractor or the owner has employed others to replace the water tower or pumps.

Apparently appellants relied on that provision of paragraph 6 providing that no payment shall be due under the contract “until and unless the work has theretofore satisfactorily met all inspections that may be required by * * * the F.H.A.” This paragraph further provides that the subcontractor may correct the defects at its expense, or, in the event of delay on its part in doing so, that contractor may correct the defects charging the expense to sub-contractor, or that contractor may cancel the contract.

A consideration of the paragraph in its entirety reflects that it was not the intention of the parties that the defective condition should he permitted to remain and the contractor be authorized to withhold payment indefinitely. It was intended that the condition be corrected without undue delay either by the sub-contractor, or by the contractor, payments due the sub-contractor to be held up in the meantime, or else that the contract be cancelled. The stipulations reflect that the offer made by the subcontractor to substitute approved equipment was conditioned on an additional payment, not specifically provided for in the contract. However thereafter the contractor refused to permit the employees of sub-contractor to come on the premises and thereby effectively denied sub-contractor an opportunity to correct the defects. Bearing in mind our duty to imply findings necessary to support the judgment of the trial court, the failure to secure FHA approval is excused since the sub-contractor may have been wrongfully prevented from correcting the defects by the contractor. 13 Amer.Jur.2d, Building and Construction Contracts, § 40;

It has been stated that there are three reasons for permitting recovery for substantial performance of. a building contract. The owner of the land will necessarily receive the benefits of the contractor’s labor and materials; it is next to impossible for a builder to comply literally with all the minute specifications in a building contract; and the parties are presumed to have impliedly agreed to do what is reasonable under all the circumstances with reference to the subject of performance. 13 Amer.Jur.2d, Building and Construction Contracts, § 41.

The above cited work states that while substantial performance is a relative term and the extent of the non-performance must be viewed in relation to the full performance promised, it may be stated generally that, “there is substantial performance of such a (building) contract where all the essentials necessary to the full accomplishment of the purposes for which the thing contracted for has been constructed are performed with such an approximation to complete performance that the owner obtains substantially what is called for by the contract.” It is further stated that “imperfections in the matters of detail which do not constitute a deviation from the general plan contemplated for the work, do not enter into the substance of the contract, and may be compensated in damages, do not prevent the performance from being regarded as substantial performance.” 13 Amer.Jur. 2d, supra, § 43; Atkinson v. Jackson Bros., Tex.Com.App.1925, 270 S.W. 848, 38 A.L.R. 1377.

The record in this case does not reflect that the trial court erred in entering judgment against the contractor.

The owners, Twelve Oaks Properties and Thomas A. Anderson, Jr., have presented the point that “the record of this cause fails to reveal any duty or obligation of any kind, nature or description” owed by them, or either of them, to Ideal Engineering, Inc. Under certain circumstances Art. 5452 et seq., Vernon’s Ann.Tex.Civ.St, impose a duty on the owners of property on which improvements are being constructed by a contractor, to a sub-contractor. In the absence of a statement of facts we cannot say that the trial court erred in granting appellee a judgment against these appellants.

Appellee has presented the cross-point that the trial court erred in refusing to award attorney’s fees.

It was stipulated that:

“4. On December 30, 1963, Ideal submitted its invoice No. 6965 in the amount of $21,729.00 to South Texas Builders. No payment was received on this invoice in January, 1964. On January 29, 1964, Ideal submitted its Invoice No. 7207 in the amount of $7,280.00, making a total of the two invoices of $29,009.00. In the early part of February, 1964, Caplan called Asha-branner relative to payment of this invoice and Ashabranner indicated that there had been some delay in the draw and asked if the $20,000.00 payment at that time would be satisfactory, to which Caplan agreed. On the 10th day of February, 1964, by Check No. 2435, South Texas Builders paid $20,000.00, leaving the sum of $9,009.00 unpaid. On February 24, 1964, Ideal submitted Invoice No. 7055 in the amount of $582.30. On April 10, 1964, Ideal submitted the Invoice No. 7119 in the amount of $7,-628.50, same being the balance of the contract price. The statement of invoices and payments on the job are attached hereto as Exhibit D.”

This suit was filed more than thirty days after the last invoice was received by the contractor. It was stipulated that none of the $17,219.80 claimed to be due under the contract has been paid to appellee. It was also stipulated that if appellee is entitled to recover attorney’s fees in this suit, a sum equal to 10% of the amount of recovery would be a fair and reasonable figure.

Under these stipulated facts it appears that appellee has complied with the requirements of Art. 2226, V.A.T.S., and is, therefore, entitled to recover $1,810.41 as reasonable attorney’s fees. Langdeau v. Bouknight, 162 Tex. 42, 344 S.W.2d 435; Wyche v. Wichita Engineering Co., Tex.Civ.App., 374 S.W.2d 728; Ginther v. Southwest Workover Co., Tex.Civ.App., 286 S.W.2d 291; Ferrier Bros. v. Brown, Tex.Civ.App., 362 S.W.2d 181, writ ref., n. r. e. An appellee may bring cross-assignments against an appellant without perfecting an independent appeal. Dallas Electric Supply Co. v. Branum Co., 1945, 143 Tex. 366, 185 S.W.2d 427; Bowman v. Puckett, 1945, 144 Tex. 125, 188 S.W.2d 571.

The judgment of the trial court as modified is affirmed.

On Motion for Rehearing

Appellant has pointed out to the Court that while the parties had stipulated that 10% of the recovery would be a reasonable attorney’s fee, they had further stipulated that the attorney’s fee, if allowed, should not exceed Fifteen Hundred ($1500.00) DOLLARS.

The motion for rehearing is granted in part and the judgment of this Court is modified by reducing the amount of attorney’s fee allowed to said sum of Fifteen Hundred ($1500.00) DOLLARS.

In all other particulars the motion for rehearing is denied.