author: DENTON, Chief Justice.

text:
    Ila MABERRY v. FIRST NATIONAL BANK OF LITTLEFIELD, Texas et al.
    No. 7076.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 25, 1961.
    Rehearing Denied Nov. 6, 1961.

      Dudley D. McCalla, Austin, for appellant.
    Potter & Gowdy, and Jerome W. Kirby, Littlefield, for appellees.
   DENTON, Chief Justice.

This suit was instituted by the First National Bank of Littlefield against Art E. Davis, J. D. Flagler and appellant Ila Ma-berry, on a promissory note dated March 9, 1959 in the amount of $2,000 and for the foreclosure of the chattel mortgage executed by Davis of even date, securing the payment of said note. The chattel mortgage pledged certain tire recapping equipment as security for the note. Hagler was the owner of the building which housed the mortgaged property, and by cross action seeks recovery of his landlord’s lien under a written rental contract. Mrs. Maberry seeks recovery of the property by virtue of a bill of sale dated April 11, 1959 from one Gordon Allen, and in addition she alleged she was assignee of a chattel mortgage on the same property from a Victoria bank. She further alleged she sold this equipment to Davis on April 11, 1959, and in return received a note and chattel mortgage on the property. The trial court without the intervention of a jury held Hagler’s landlord lien was the superior lien; that the Littlefield bank’s note and mortgage constituted a second lien, and after the foreclosure and sale of the property the remaining proceeds of the sale, after satisfying the two named liens above, would be awarded to Mrs. Maberry. Findings of fact and conclusions of law were timely filed by the trial court.

Prior to February of 1959, Gordon Allen was the undisputed owner of the tire recapping equipment. The equipment was located at Victoria, Texas, in a buijd-ing owned by Mrs. Maberry and was subject to various chattel mortgages held by the Victoria Bank and Trust Company. Although neither Allen nor Art Davis appeared to testify, it is undisputed that Davis went to Victoria on or about February 25, 1959 for the purpose of negotiating for the purchase of the equipment from Allen. Thereafter Davis took possession of the equipment and had it transported to Lit-tlefield. Allen arrived in Littlefield shortly thereafter for the purpose of installing the equipment and instructing Davis and his employees in its operation. There is evidence to support the trial court’s finding the Victoria bank, through one of its officers, gave its consent to the removal of the equipment. Lee Hawkins, friend and representative of Mrs. Maberry, had a conversation with Davis in Victoria concerning the purchase, and he was also present at the time the equipment was taken by trucks from the Maberry building and was informed it was being delivered to Davis in Littlefield. The Victoria bank’s mortgages were never recorded either in Victoria or Lamb Counties. Allen spent some six weeks in Littlefield supervising the installation of the tire .recapping equipment. On March 9, 1959, some 12 days after he brought the equipment to Littlefield, Davis executed the $2,000 note and chattel mortgage to the First National Bank in Littlefield. This mortgage was duly recorded in Lamb County on March 24 of that year.

At the request of Mrs. Maberry, Hawkins made several trips to Littlefield for the initial purpose of collecting $3,600 past-due rent owed to Mrs. Maberry by Allen for the rental on the Victoria building. It became obvious to Hawkins that Allen would be in a position to pay this debt only if and when the equipment was sold. The record further indicates Davis was able to borrow only the $2,000 above referred to. The record is completely silent as to what disposition Davis made of the money. Apparently Hawkins had no knowledge of the note and mortgage executed by Davis to the Littlefield ■ bank. Mrs. Maberry purchased the Victoria bank’s unrecorded chattel mortgage on April 7; took a bill of sale for the equipment from 'Gordon Allen on April 11 and on the same date was the payee of a note signed by Davis and his wife for the sum of $7,750 as a purported sales price of the equipment. Testimony referred to a chattel mortgage in favor of Mrs. Maberry which Davis and his wife executed simultaneously with the note, but the mortgage was never introduced into evidence. It is apparent that Mrs. Maberry, acting through Hawkins, entered into the April 7 and April 11 transactions in order to protect her rental claim against Allen.

It is appellant’s contention the lien held by the First National Bank of Little-field was invalid and inferior to that held by appellant on the ground there was no evidence and, in the alternative, insufficient evidence to support the trial court’s finding that Allen sold the mortgaged equipment to Davis. Appellant takes the position the purported sale was never consummated and therefore Davis had no interest in the equipment at the time he executed the note and mortgage to the Littlefield bank. It is fundamental that a mortgagor must be the owner of the interest mortgaged. Rhea Mortgage Co. v. Lemmerman (Tex.Com.App.) 10 S.W.2d 690; Tips v. Gay (Tex.Civ.App.) 146 S.W. 306.

We must therefore determine whether or not under the existing circumstances Davis had such an interest in the tire recapping equipment to give effect to the bank’s mortgage. As we view it, the priority of the various liens is not the real issue. The Littlefield bank’s mortgage was taken at a time when no liens were of record in either Victoria or Lamb Counties, and it is undisputed that the Littlefield bank’s mortgage was given and recorded prior to the purported purchase and sale by Mrs. Maberry of the equipment in April. She had legal notice of the bank’s mortgage at the time she purchased the Victoria bank’s mortgage and also at the time she took the bill of sale from Allen.

We must therefore look to the evidence presented to determine Davis’ interest at the time he executed the mortgage to the Littlefield bank. It can not be disputed that a sale from Allen to Davis was contemplated and negotiated. Hawkins knew of this from his conversation with Davis in Victoria prior to the time the equipment was taken to Littlefield. The equipment was then placed in the building Davis had previously rented from appellee Hagler. Although Allen spent some six weeks supervising the installation and operation of the equipment, several witnesses testified Davis informed them he had purchased the equipment, and further testimony clearly indicated Davis operated it as his own in connection with his previously established tire business. It is well settled that possession of personal property carries with it the presumption of ownership. Bullard v. Oatman (Tex.Civ.App.) 271 S.W. 422 (no writ history); Sloan v. Sloan (Tex.Civ.App.) 32 S.W.2d S13 (no writ history); Chenoworth v. Flannery (Tex.Civ.App.) 202 S.W.2d 480 (no writ history); Smith v. Briggs (Tex.Civ.App.) 168 S.W.2d 528 (writ refused w. o. m.).

Davis’ possession of the equipment was required with the knowledge and consent of both Allen and the Victoria bank officers. Mrs. Maberry was informed of Davis’ possession almost simultaneously with his taking possession. In addition the testimony supports the trial court’s finding that Mrs. Maberry and the Victoria bank were aware of the fact Davis would be required to obtain a loan in order to purchase the equipment. It is undisputed that the Littlefield bank had no knowledge of any other claim against the equipment at the time the note and mortgage were executed by Davis. An examination by the bank of the lien records of Lamb County revealed no such claim. We conclude Davis exercised a degree of possession and'control over the equipment in question so as to acquire such an interest to give effect to the chattel mortgage executed to the Littlefield bank: Having-reviewed the evidence presented we are of the opinion the trial court’s findings in connection with the sale from Allen to Davis are supported by the evidence and the inferences which can be reasonably drawn therefrom.

We are also of the opinion the facts of this case bring it within the provision of Article 6645, Vernon’s Ann.Civ. St. as amended. After providing that chattel mortgages shall be filed in the county in which the property shall remain, the Statute further provides:

“ * * * and if afterwards the person claiming title under such deed, mortgage, or other writing, shall permit any other person in whose possession such property may be to remove with the same, or any part thereof, out of the county in which the same shall be recorded, and shall not, within four (4) months after such removal, cause the same to be recorded in the county to which such property shall be removed, such deed, mortgage, or other writing for so long as it shall not be recorded in such last-mentioned county, and for so much of the property aforesaid as shall have been removed, shall be void as to all creditors and purchasers thereof for valuable consideration without notice; ⅝ ⅝ ⅜».

Two basic elements must be present in order to invoke this Statute: (1) the property must be moved from the county in which it was located; (2) the mortgagee must have consented to the removal of the property. Spikes v. Brown, (Tex.Civ.App.) 49 S.W. 725; Thos. Goggan & Bros. v. Synnott (63 Tex.Civ.App. 530) 134 S.W. 1184. All parties agree the equipment was moved from Victoria County to Lamb County. The evidence supports the conclusion the Victoria bank, through one of its officers, gave its consent to the removal of the equipment to Little-field.

When Mrs. Maberry purchased the bank’s chattel mortgage, she stood in the same position as the Victoria bank. In addition she had actual knowledge of the property’s removal. This mortgage was not recorded in Lamb County within the prescribed 4 months after such removal. We therefore conclude Mrs. Maberry’s lien as evidenced by the Victoria mortgage is void as to the Littlefield bank’s mortgage, who were purchasers of their note and chattel mortgage for valuable consideration without notice of the Victoria lien.

By points 3 and 7, appellant attacks the Hagler landlord lien. She first contends the trial court erred in finding that Hawkins, while acting as Mrs. Ma-berry’s agent, entered into a binding contract with Hagler to the effect that if Hagler would permit the equipment to remain in the building until the various claims had been disposed of, Mrs. Ma-berry would pay the monthly rental therefor. Although the trial court made such a finding, the judgment as entered for Hag-ler for the rent due did not impose a personal judgment therefor against Mrs. Ma-berry. Instead, the judgment gave Hagler a superior lien against the equipment with a foreclosure of the said lien. The judgment specifically provided that no personal judgment should exist against either Mrs. Maberry or Davis. Under such circumstances, appellant can not complain of such finding. Such finding did not cause the rendition of an improper judgment and the error is harmless under Rule 434, Texas Rules of Civil Procedure.

Appellant next attacks Hagler’s landlord lien on the ground the trial court erred in finding Mrs. Maberry had notice of Hagler’s lease contract on April 11, 1959 because the notice of a contract and past-due rent thereunder was not filed for record by Hagler until April 23, 1960. Davis entered into a written lease contract with Hagler on February 3, 1959 for a period of one year for a .rental of $85 per month. This lease contract was not filed of record. Davis paid the monthly rentals through the month of July, 1959. Article 5238, V.A. C.S., gives the landlord a lien on the property of a tenant located in a leased building. All other claimants of interest in the tenant’s property are held to have constructive notice of this statutory lien of the landlord. Stoma v. Filgo (Tex.Civ.App.) 26 S.W.2d 1100 (no writ history); Shwiff v. City of Dallas (Tex.Civ.App.) 327 S.W. 2d 598 (refused N.R.E.).

By brief, appellant concedes Hagler is entitled to a superior lien for the last six months’ rent due under the lease contract. Hagler complied with Art. 5238 by filing an affidavit securing his landlord’s lien on April 23, 1960. No time is prescribed in the Statute within which such an affidavit shall be filed. Industrial State Bank v. Oldham, 148 Tex. 126, 221 S.W.2d 912. The landlord’s lien is thus secured even though the affidavit is filed subsequently to the six-month period if it is filed prior to the time other claimants’ rights have intervened. Although appellant pleaded that Davis executed a chattel mortgage to her on April 11, 1959, such mortgage was not introduced into evidence and therefore was not considered by the trial court and can not be considered by this Court. Having complied with Art. 5238 by filing the rental affidavit, Hagler clearly protected himself against Maber-ry’s interest in the equipment in question.

We must now consider whether or not Hagle-r’s landlord lien is effective for rent due after the expiration of the lease. Davis apparently abandoned the equipment and building sometime between July 7, 1959 and September 14 of the same year. No rent was paid after July, 1959 and the equipment remained in the building through the end of the rental contract period, February 2, 1960, and it remained in the building at the time of the trial in June, 1960. The court, in General Motors Acceptance Corp. v. Bettes (Tex.Civ.App.) 57 S.W.2d 263 (writ refused), held a landlord’s statutory lien for rents attaches to personal property placed on the premises after the expiration of the lease where the tenant continues to hold over. Here the equipment was placed on the premises during the term of the lease, but the equipment was allowed to remain on the premises long after the expiration of the lease. Once Hagler’s lien attached for the six-month period due under the lease contract by filing of the affidavit, we are of the opinion and so hold that a lien also attached to the same property for the period it remained on the premises after the expiration of the lease.

Appellant challenges the trial court’s finding that the $750 paid to Mrs. Maberry by Art Davis should be credited to the balance due on the notes originally executed to the Victoria bank by Gordon Allen and later assigned to Mrs. Maberry. As we view the record, we think it is clear that Davis’ three payments of $250 each were to be applied to the note he executed to Mrs. Maberry on April 11, 1959. This note is in evidence and we fail to find even an inference that these payments were to be applied to the Victoria bank’s notes. However, the trial court’s error in this respect is harmless in view of our holding of the superiority of the Hagler and Littlefield bank liens, and the absence of a holding in the trial court’s judgment carrying, out this finding of fact complained of by appellant.

The trial court made the further finding that Mrs. Maberry had no mortgage from Davis as against the appellees because such alleged mortgage was not introduced into evidence. Appellant contends this is error in view of the fact the mortgage was attached to appellant’s pleadings and it was referred to during the course of the trial. Rule 59, T.R.C.P., permits the attachment of written instruments to the parties’ pleadings but neither this Rule nor any other rule we have been able to find provides that such exhibits shall be considered as evidence by the mere attaching the exhibit to the pleadings. It was incumbent upon appellant to offer the alleged mortgage in evidence in order for it to be considered by the trial court.

Although we have not specifically passed on all points brought forward by the appellant, they have all been considered and are hereby overruled. Finding no reversible error, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    Robert James McBRIEN, Jr., Appellant, v. Allie ZACHA, Appellee.
    No. 15925.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 20, 1961.
    Rehearing Denied Nov. 10, 1961.

      Burt Barr, Dallas, for appellant.
    William W'. Looney and Lawrence E. Ackels, Dallas, for appellee.
   WILLIAMS, Justice.

Robert James McBrien, Jr. filed suit for divorce against Rosemary McBrien wherein he also sought a division of the community property and asked for custody of a minor child, Patrick McBrien. Rosemary McBrien filed a cross-action for divorce and also sought custody of the minor child. Mrs. Allie Zacha, maternal grandmother of said minor child, filed a plea of intervention seeking an order granting to her custody of the minor child. At the conclusion of a non-jury trial the court granted a divorce to Robert James Mc-Brien, Jr.; entered a decree concerning division of the property; and awarded the custody of the minor child to the inter-venor, Allie Zacha, the language of the decree being as follows:

“It is further ordered that the defendant is unfit for custody of the minor child at the present time and although the plaintiff is found to be not unfit at the present time, it is in the best interests of the minor child for the custody not to be given to the father, but because it is in the best interests of the minor child, the care, custody and control of the minor child, Patrick Timonthy McBrien, is given to the maternal grandmother, Mrs. Allie Zacha, intervenor herein.”

From this decree the mother does not appeal. The father Robert James McBrien, Jr., appellant herein, inveighs against the trial court’s decree in two points of error (1) that the trial court erred in awarding custody of the minor child to a third party when the court found that the father was a fit and proper person, and (2) that the trial court erred in permitting the maternal grandmother to intervene and seek custody of the minor child. We will dispose of these points in inverse order.

Appellant’s objection to the filing of the plea of intervention by appellee herein, orally presented, was that such plea was untimely filed and that “said maternal grandmother has no justiciable interest in said child.” With reference to the time of filing of said plea, appellant sought no continuance either verbally or in writing. The trial court was correct in permitting the filing of the plea of intervention. Our Constitution, Art. 5, sec. 8, Vernon’s Ann. St., specifically provides that the District Court, in divorce proceedings, may award custody of a child to a third person, who intervenes and asks therefor. The grandmother obviously had an interest in the welfare of the child. Appellant’s first point is overruled. Noble v. Noble, Tex.Civ.App., 185 S.W. 318; Mitchell v. Mitchell, Tex.Civ.App., 168 S.W.2d 702; Haynes v. Haynes, Tex.Civ.App., 191 S.W.2d 81.

No challenge is presented on this appeal concerning the unfitness of the mother to have custody of the child. The chief question presented by this appeal is the propriety of the trial court awarding custody of the minor child to the maternal grandmother rather than to the natural father. Appellant vigorously contends that in the absence of a finding that he was unfit to have custody of the child that he had a paramount right to have the child awarded to him. Appellant cites many cases to the effect that the law presumes that the best interests of the child will be subserved by allowing it to remain in the custody of the natural parents. Legate v. Legate, 87 Tex. 248, 28 S.W. 281; Sims v. Cole, Tex.Civ.App., 264 S.W.2d 185; Swift v. Swift, Tex.Civ.App., 37 S.W.2d 241; Valentine v. Valentine, Tex.Civ.App., 203 S.W.2d 693; Sawyer v. Bezner, Tex.Civ.App., 204 S.W. 2d 19; Luman v. Luman, Tex.Civ.App., 231 S.W.2d 555; 27 Tex.Law Review 387. We agree with appellant that this is a correct statement of the general rule concerning such legal presumption. However, appellant, with equal candor, admits that this rule has certain qualifications. Thus in Dunn v. Jackson, Tex.Com.App., 231 S.W. 351, the court said that such legal presumption is subject to be overcome by a person other than a natural parent. In Luman v. Luman, Tex.Civ.App., 231 S.W. 2d 555, the court, while recognizing the presumption of paramount right also stated that such presumption is subject to be overcome by evidence which is clear and convincing and presents a solid and substantial ground to authorize the courts to sever the hallowed ties which mutually exist between a child and its parents. Stutts v. Stutts, Tex.Civ.App., 177 S.W.2d 294; Binion v. Mathis, Tex.Civ.App., 171 S.W. 2d 512. In Fleming v. Honeycutt, Tex.Civ.App., 205 S.W.2d 137 the court recognized a superior natural right of the parent to the custody and control of his child but stated that such right is not an absolute one, but one under some circumstances is subject to judicial review. In Meek v. Taylor, Tex.Civ.App., 269 S.W.2d 545, subsequently reversed on other grounds in Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, the Court of Civil Appeals correctly stated the Rule that it is to be presumed that it is to the best interests of the child that its parents have the custody unless it is affirmatively demonstrated that the best interests of the child requires that the parents be deprived of its custody. The Supreme Court in the later appeal of Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 reiterated this rule, citing Taylor v. Taylor, Tex.Civ.App., 42 S.W.2d 455, p. 456 where the court said: “The presumption is that the best interest of the children will be subserved by awarding them to the natural parent, but this is a rebuttable presumption, and it is not necessary that the respondents prove that the natural parent is disqualified by immorality or misfortune.”

Appellant, in his brief, also frankly admits that the primary question here is whether the trial court abused her discretion in finding that the best interests of the child would be subserved by awarding it to the maternal grandmother. Our Supreme Court has held that abuse of discretion in an award of custody, is a question of law requiring an appraisal of the facts. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787. See also the recent opinion of this Court in Gillespie v. Gillespie, Tex.Civ.App., 343 S.W.2d 281.

With these rules in mind we have carefully considered the entire record in this case. The minor child, two and one half years of age at the time of the trial, had been in the custody of appellant’s foster father and mother, who live on a ten-acre tract of land near Grand Prairie, Texas. Appellant works five days per week. He leaves home about 7:30 or 8 o’clock in the morning and comes back home at 5:15 or 5 :20 in the afternoon. About once a month he works on Saturday and two or three nights a week he goes out bowling as a member of a bowling team. Appellant’s foster mother, age 68, is rather hard of hearing and utilizes a hearing aid. She also depends largely upon lip reading in order to communicate. A lake is situated on the property and the foster parents often fish in the lake, using a boat. The young child is tied in the boat with a rope to prevent him from falling out. The foster mother cannot swim. Appellant’s plan for taking care of the child in the future is rather vague and indefinite, depending, as he says, upon the disposition of the community property. When asked by the court if he had a definite plan concerning securing a housekeeper to take care of the child, or whether he was going to leave the child with his foster parents, he stated that he had not reached a decision as to just what would be best for him to do. On the other hand, the appellee, the maternal grandmother, 71 years of age, testified that she was able and capable of spending her full time in caring for the child in her home in Dallas. She had previously cared for the child when its mother was unable to look after him. The trial court had ample opportunity to view and observe the respective parties and to evaluate their opportunities for taking care of this child. The trial judge was fully aware of the well-established rule, grounded on bedrock of reason and common sense, that the best interests of the child is paramount in cases of this kind. The trial judge was of the opinion, based upon all of the evidence, that while the natural father was not unfit at the'present time, yet, .the best interests of the child would be best served by placing it in the custody of the maternal grandmother. In the light of the above testimony, as well as all of the testimony which we have carefully reviewed, we are certainly not able to say that the trial judge abused her discretion in awarding custody to appellee. There is ample evidence in this record to justify such findings by the trial judge.

Judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    FRANKLIN LIFE INSURANCE COMPANY, Appellant, v. Arch C. DURHAM et al., Appellees.
    No. 3913.
    Court of Civil Appeals of Texas. Waco.
    Oct. 26, 1961.
    Rehearing Denied Nov. 16, 1961.

      Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.
    Fenley & Fenley, William Drew Perkins, Lufkin, for appellees.
   TIREY, Justice.

This is an appeal from a summary judgment. The action is one to recover the face amount of a life insurance policy brought by the devisees and legal representative of the beneficiary. The company defended on the ground that the insured effectively terminated the policy for surrender before his death. The court denied the motion for summary judgment filed by the company and granted the motion filed by the plaintiffs. The court held that appellees were ¿¿titled to recover the full face value of the policy of $5000 plus $600 penalty, and fixed ^he attorney’s fees at one-third of the face of the policy, $1666.67, and decreed accordingly. The company seasonably perfected its appeal to the Beaumont court and the cause is here on transfer.

The judgment is assailed on three Points. They are to the effect that the court .erred:

(1) In holding the policy was in''force at the time of the insured’s death, because the insured had effectively exercised his option to surrender the policy;

(2) Alternatively, in the event the court holds the policy was in force at the time of the insured’s death, then, the court erred in awarding statutory penalty and attorney’s fees, because appellees demanded more than would have been due under the policy;

(3) Alternatively, in the event the court holds the policy was in force at the time of the insured’s death, then the court erred in failing to give appellant credit for the amount paid to the insured.

Appellees’ counter-points are substantially to the effect:

(1) That the court correctly held that the policy was in force at the death of the insured, because there had been no mutual agreement to terminate the contract of insurance ; ,

(2) That the court was correct in awarding statutory penalty and attorney’s fees, because appellees sued for the face of the policy after any liability on it had been denied by appellant;

(3) Appellees recognize that appellant as a lien holder is entitled to repayment of the amount of principal and accrued interest on the loan secured by the policy.

A statement is necessary. On November 26, 1952, Leslie Louie Biggs paid the initial premium of $159.63 on a life insurance policy with the appellant, and the policy was issued on December 10th, 1952. The policy provided for the principal sum of $2500 with a double benefit of $5000 in certain contingencies. His wife, Annetta C. Biggs, was named as primary beneficiary, and his sister, Velma W. Biggs, as first contingent beneficiary. The policy provided that the first policy year begins November 26, 1952. While the policy was in force the insured, joined by his wife, on the 30th day of January 1959, executed an instrument which stated: “Loan Agreement and Assignment of Policy.” We quote the pertinent provisions of this instrument:

“Pursuant to the provisions of Policy Number 1121729 issued or assumed by The Franklin Life Insrtrance Company of Springfield, Illinois, on the life of Leslie Louie Biggs, (The Insured), in consideration of a loan of Full Cash Value Dollars ($-) by said Company, the receipt of which is hereby acknowledged, the undersigned hereby pledges, assigns, and transfers to said Company, its successors and assigns, said Policy and all rights and benefits thereunder, to secure the payment of said loan and the interest thereon and any other indebtedness to the Company on said Policy.
* * * * * *
“And it is hereby warranted that no petition in bankruptcy, voluntary or involuntary, has been filed by or against the undersigned since the date of said Policy, and that unless otherwise stated ■ .below, neither said Policy, nor any interest therein is now in any manner pledged, transferred or assigned, except to said Company.
“Any Exception to above warranty must be here stated.
“The Full Cash Value is Requested. * *

The foregoing instrument and the policy of insurance were placed in the hands of the local agent of appellant, and was by him sent to the Home Office, and was received by the company on February 23, 1959. On February 26, 1959, the company sent the insured a check for $177.91, that sum being the cash value at that time, less interest on a loan of that amount at 5% per annum for the remainder of the policy year ending November 26, 1959, and enclosed the policy endorsed with the loan. The check was accepted and cashed by the insured. Thereafter, on March 4, 1959, the insured wrote appellant as follows: (We quote the pertinent parts)

“Recently papers were sent to you by the local agent of the Franklin Life Insurance Company requesting the complete cash value on policies listed as follows:
“Policy 1,121,729 — 907, 929-1,173,-311 and 907,930. I have received checks drawn by you dated February 26, 1959, for certain amounts less interest.
“In my request I plainly stated that this was not to be a loan but was to be a cash surrender of these policies. Therefore I am . stopping payment from the Lufkin National Bank on your drafts against these policies and request that you send me a check for $19.09 which is the interest you had charged against these policies which was not in accordance with my request. Upon receipt of this check, I will return these policies to you.”

Thereafter, on March 12, 1959, appellant wrote the insured as follows: (We quote the pertinent parts)

“To complete the cancellation of these policies, the enclosed Receipt and Release forms should he signed as indicated in the presence of a witness. These forms should then he returned, along with the policies, within two weeks. As soon as these items are received, our checks will be mailed, and all protection will stop. The amount of the checks will be equal to the amounts previously deducted from your loans.
“We here at Franklin, want to serve you, and we welcome the opportunity to furnish you with helpful information or advice about your life insurance program.”

The insured died on March 16, 1959, without executing the release form, and without returning this policy for cancellation. The beneficiary died shortly after the insured died, and the beneficiary’s dev-isees and legal representative brought this suit for the face of the policy, interest, penalty and attorney’s fees. Under the Non-Forfeiture Clause of the policy, we have the following provisions pertinent here:

“1. Automatic Extended Insurance: This Policy will, without action of the Insured or payment of further premiums, be continued as non-participating paid-up term insurance, without loan values, for the principal sum insured, increased during such part of the paid-up term period as falls within the double benefit period specified on the first page hereof by an additional sum equal to the principal sum insured, for such a period reckoning from the due date of the unpaid premium as the then cash value of this Policy will purchase at the insured’s then attained age at net single .premium rates by the Commissioners 1941 Standard Ordinary Mortality Table with interest at the rate of 3% per annum. If this Policy is being continued as extended insurance which become effective at the end of the third or any subsequent policy year, then the Company will pay, upon legal surrender of this Policy within thirty days after the end of any policy year, a cash surrender value equal to the full reserve according to the mortality table and interest rate specified in this paragraph for the unexpired period of such paid-up term insurance.
“2. Paid-up Insurance: In lieu of the paid-up term insurance provided for in paragraph 1 above, upon the Insured’s written request and legal surrender of this Policy within sixty days from the due date of the unpaid premium, the Company will issue a non-participating paid-up life policy for such amount as the then cash value of this Policy will purchase at the Insured’s then attained age at net single premium rates by the Commissioners 1941 Standard Ordinary Mortality Table with interest at the rate of 3% per annum. For any paid-up life insurance which is issued under this provision at the end of the third or any subsequent policy year, the Insured may obtain a loan of an amount not greater than the reserve for such paid-up life insurance, subject to the loan provisions thereof, 'or may surrender such insurance within thirty days after the end of any policy year for its reserve according to the mortality table and interest rate specified in this paragraph and less any indebtedness thereon.
“3. Cash Surrender Value: In lieu of the paid-up term insurance provided for in paragraph 1 above, upon the Insured’s written request and legal surrender of this Policy within sixty days from the due date of the unpaid premium, the Company will pay the cash value hereinafter specified. If this Policy shall have become paid-up by completion of all premium payments, then upon the Insured’s written request and legal surrender of this Policy within thirty days after the end of any policy year, the Company will pay the cash value hereinafter specified.”
(4. Relates to Basis of Cash Value, not pertinent here.)
(S. Relates to Explanation of Table of Non-Forfeiture and Loan Value, not pertinent here.)

Under the foregoing undisputed factual situation, Did the Trial Court err in holding that the policy was in force at the time of the insured’s death? We think not. Appellant contends that the policy gave the insured the exclusive option to terminate it and receive the cash surrender value; that when the insured, as he did here, elects to exercise such an option by un-qualifiedly notifying the company to that effect, that the obligation of the company thereupon becomes a matured indebtedness to the insured for the amount of the cash surrender value, and any contingent liability in the event of the death of the insured thereby comes to an end; that the company had no right to reject such an unconditional notification of the exercise by the insured of such right of surrender; that the policy provisions here constitute a continuing offer on the part of the insurer, and when such offer is rtnconditionally accepted by the insured, the rights of the parties become fixed, and are not affected by any subsequent change such as the death of the insured before actual payment of the cash surrender value. Appellant relies on the following cases to sustain its contentions: Pequot Mfg. Corp. v. Equitable Life Assurance Society, 253 N.Y. 116, 170 N.E. 514; Lipman v. Equitable Life Assurance Society (CCA 4th) 58 F.2d 15; Mutual Life Insurance Company v. Kaiser, 193 Miss. 581, 10 So.2d 766; Mercantile Nat. Bank at Dallas v. The Franklin Life Ins. Company (CCA 5th) 248 F.2d 57; Pacific States Life Ins. Co., v. Bryce (CCA 10th) 67 F.2d 710, 91 A.L.R. 1446; Cockrill v. Southwestern Life Ins. Co., (Tex.Civ.App.1937), 103 S.W.2d 399; Flatonia State Bank v. Southwestern Life Ins. Co., 133 Tex. 243, 127 S.W.2d 188; Lovell v. St. Louis Mutual Life Ins. Co., 111 U.S. 264, 4 S.Ct. 390, 28 L.Ed. 423; Manhattan Life Ins. Co. v. Allison, 100 Colo. 1, 64 P.2d 1265; Day v. Metropolitan Life Ins. Co., 11 Cal.App.2d 681, 54 P.2d 502; Murphree v. Nat. Life & Accident Ins. Co., 168 Miss. 667, 150 So. 534, 151 So. 748. 3 Appleman, Insurance Law and Practice, 353, Sec. 1752, p. 370, Sec. 1757. The Franklin Life Insurance Company v. Smithers, 5 Cir., 285 F.2d 875.

We have read very carefully the authorities cited by appellant, and we are of the view that none of the authorities cited by appellant is applicable to the peculiar factual situation here before us.

Going back to the request made by the insured on the 30th day of January 1959, we find that the first paragraph says:

“Pursuant to the provisions of Policy Number 1121729 issued or assumed by The Franklin Life Insurance Company of Springfield, Illinois, on the life of Leslie Louie Biggs, (The Insured), in consideration of a loan of Full Cash Value Dollars ($-) by said Company, the receipt of which is hereby acknowledged, the undersigned hereby pledges, assigns, and transfers to said Company, its successors and assigns, said Policy and all rights and benefits thereunder, to secure the payment of said loan and the interest thereon and any other indebtedness to the Company on said Policy.”

Regardless of what the insured intended, the instrument definitely made an application for a loan for the full cash value. The Company so construed it, and promptly gave the insured the benefit of such loan value and made an endorsement of the loan on the policy and returned the policy together with the check to the insured. When the insured received this check and the policy endorsed with the loan, he had full notice .of what the company .had done, and accepted the check, endorsed it and cashed it on March 4, 1959. In so doing he ratified the action of appellant in granting him a loan and the policy thereby became duly charged with the amount of the loan with 5% interest.

It is true that on March 4, 1959, the insured wrote the company in part: “In my request I plainly stated that this was not to be a loan, but was to be a cash surrender of these policies.” That statement by the insured has no support m the record and is in irreconcilable conflict with the instrument he executed dated January 30, 1959, which we have heretofore set out. It is our view that the record is without dispute that the appellant had no notice whatever to .the effect that the insured desired to cancel his policy until it received his letter of March 4, 1959. It is true that under the foregoing letter the insured stated: “I am stopping payment from the Lufkin National Bank on your drafts against these policies,” and the insured did so notify the bank; however, one draft drawn by appellant on insured was paid by the Lufkin bank on March 3, 1959, and this paid the premium to March 26, 1959. It, therefore, appears to us that the insured, by actually applying for a loan and accepting .the loan agreement, placed himself in such position that the company had a right to take such precautions as it deemed necessary for its protection. In so doing, it advised the insured by its letter of March 12th, “To complete cancellation under these policies, the enclosed Receipt and Release forms should be signed as indicated in the presence of a witness. These forms should be returned along with the policies in two weeks. As soon as these items are received our checks will be mailed and all protection will stop/ (Emphasis added.) Four days later the insured died without taking any action whatever. The insurance company, in its letter of March 12th in the last paragraph stated: “We here at Franklin want to serve you, and we welcome the opportunity to furnish you with helpful information or advice about your life insurance program.” Since the insurance company advised the insured that its protection did not stop until the foregoing papers were executed and returned to it, we are of the view that the insured had a right to rely on that statement. See Equitable Life Assurance Society of the U. S. v. Ellis, 105 Tex. 520, 147 S.W. 1152. At any rate, no one knows whether he desired to continue his policy or just what he intended to do. He had two weeks time limit in order to accept or reject the appellant’s proposal. We think the foregoing factual situation distinguishes this cause from the authorities above cited on which appellant relies That leads us to say that we are of the view that the trial court correctly held that the policy was in force at the death of the insured, as there had been no mutual agreement to terminate .the contract of insurance. Such was the view and the construction placed on the contract by appellant as disclosed by its letter of March 12th, which we have previously quoted.

But appellant contends that under the non-forfeiture clause Of the policy, the insured’s letter to it of March 4, 1959, effectively cancelled the policy. We are not in accord with this view. The non-forfeiture clause on which it relies provides In part:

“In the event of default in the payment of premiums one of the following benefits shall apply: No. 3, (in part is): Cash Surrender Value: In lieu of the paid-up term insurance provided for in parapraph 1 above, upon the insured’s written request and legal surrender of this policy in 60 days of the due date of the unpaid premium, the company will pay the cash value hereinafter specified.”

It is true that the insured did request cancellation in his letter of March 4, 1959, but he did not legally surrender the policy as provided for under the above provision. The insured had previously completed the loan agreement under the terms of the policy, and had accepted the benefits of such loan, and the policy was in full force and effect at the time he made the request for cancellation. Since the insured did not legally surrender the policy, as provided for under the above instructions, and did not do so after he was requested to by the company, it is our view that the non-forfeiture provision does not apply here. We are of the further view that the insured had the right under this undisputed factual situation to change his mind about the cancellation of his policy, and this he could do by failing and refusing to execute the papers required by the company and by refusing to return the policy for cancellation, and under the record that is exactly what he did. The letter of March 12th from the company to the insured fully advised the insured of the company’s attitude toward him, and if he changed his mind and decided to keep the policy under the loan agreement as theretofore made, no notice of such decision to do so to the company was required and the company’s position was not changed and it suffered no detriment by his failure to so notify it.

Both appellant and appellees assert that they have been unable to find any Texas cases dealing directly with the exact factual situation here before us, and we have found none. Appellant and appellees both cite and discuss two cases that are directly in point, they are, namely: Landy v. New York Life Ins. Company, 170 Misc. 942, 11 N.Y.S.2d 622, and Fidelity Mutual Life Insurance Company v. Heltsley, 254 Ky. 453, 71 S.W.2d 1017. In the Landy case the insurance contract was substantially the same contract as we have in the case at bar, and in that case the court held that there could be no cancellation because there was no default in the premium payment. Under the undisputed factual situation which we have here detailed, we do not believe we have to go that far to sustain the trial court’s judgment.

We are of the further view that the court was correct in awarding statutory penalty and attorney’s fees, because appellant denied any liability. It is true that the plaintiffs made demand for more than what was due under the policy, because the demand did not take into account the loan outstanding against the policy, but this seems to have been overlooked by both plaintiffs and defendant. The question of penalty and attorney’s fees is controlled by the pronouncement made in Nat. Life Ins. Co. v. Mouton, 113 Tex. 224, 252 S.W. 1040, (Opinion adopted, Com. of Appls.,). See also Mercury Life Ins. Co. v. Mata, Tex.Civ.App., 310 S.W.2d 130, (Writ ref.).

It is true that the trial court in its judgment failed to credit the amount due on the policy as evidenced by the loan agreement between appellant and the insured, but as we have above stated, this matter seems to have escaped the attention of the appellant and appellees, and was not called to the attention of the trial court. Appellees in their brief say that they “here now respectfully tendering a remittitur, in accordance with Rule 439 TRCP., in the amount of $199.25, which represents the amount of principal and interest due on the loan made to the insured and its pro-rata amount of the statutory penalty.” This remittitur is granted and the judgment entered by the trial court is credited with the amount of $199.25. Accordingly, the judgment is credited with $199.25, and as so credited is reformed and affirmed. We have considered each of appellant’s points and each is overruled. We are of the further view that under the factual situation here good cause exists to tax all costs of appeal against appellant. See Rule 448 Texas Rules of Civil Procedure, and Lone Star Gas Company v. Childress, Tex.Civ.App., 187 S.W.2d 936, and cases there cited.

Reformed and affirmed.


author: YOUNG, Justice.

text:
    Katherine S. HOYT, Appellant, v. William Willard F. HOYT, Appellee.
    No. 15868.
    Court of Civil Appeals of Texas. Dallas.
    Aug. 4, 1961.
    Rehearing Denied Oct. 20, 1961.
    James P. Donovan, Dallas, for appellant.
    David Wuntch, Dallas, for appellee.
   YOUNG, Justice.

The appeal is from denial of a Bill of Review seeking to set aside the property settlement part of a judgment of divorce rendered September'28, 1959. At request of appellant the trial court made and filed findings of fact and conclusions of law.

Specifically as to nature of suit, appellant states that the action was to “set aside a judgment of divorce, granted to appellee, her former husband; to the extent that such judgment divided the net assets of the community, valued at $29,686.81, awarding to the husband-appellee $27,789.81 and to the appellant-wife $1,897.00”; the trial court upon hearing rendering judgment denying the relief sought.

Points of appeal in material part are: Court error (1) “in sustaining; a judgment, ■void on its face for want of jurisdiction to divide community property on the basis of an illegal and void post-nuptial agreement (2) “in sustaining a judgment showing on its face an abuse of judicial discretion through an unfair and inequitable division of community property;” (3) “because the findings of fact upon which the judgment was based are not supported by the evidence and the conclusions of law derived therefrom are wholly in error.”

A résumé of material facts as gleaned from appellant’s brief will now-be detailed. This division of community property made by the court in the divorce action was based upon a property settlement agreement between husband and wife under date of July ■23, 1959, some three days after Hoyt had filed his petition for divorce; and the provisions thereof as to division of property were incorporated in the divorce decree with court approval thereof. The divorce was granted on a waiver of citation (no appearance by appellant or attorney at the trial) and upon the sole testimony of plaintiff-husband that the settlement as to community property was fair and equitable. This agreement contained no statement as to value óf the various items of property involved. At the prior trial no record was made of the testimony but the attorney for Hoyt testified-at the present trial: “I introduced the agreement through him (the plaintiff) and asked him if he signed it and if his wife signed it, and did he ask the Court to divide the community property in accordance with this agreement; that is my usual way of presenting a property settlement agreement to the court.” Testimony in the present action now shows that the value of the community property at time of divorce was $29,686.81; -of that total under the divorce decree Hoyt received assets of the amount of $27,789.81 and Mrs. Hoyt of assets of plaintiff’s note for $1,500 and a 1957 Chevrolet car under mortgage. The instant suit to set aside the earlier decree as to division of property is predicated upon charges of duress in procuring execution of the settlement agreement, fraud and concealment of the true value of the estate in the divorce action; and fraud upon the court in procuring a decree upon a waiver that was not sworn to, and a property settlement agreement that was not acknowledged as required by law in making a partition of property between spouses during existence of the marriage.

On the other hand, appellant testified that a few days prior to their separation she had discussed with her attorney and later, before final decree was granted, matters relative to a property settlement; and that she was at no time prevented from seeing an attorney. The • property settlement in question was first presented to' Mrs. Hoyt for signature by the attorney for Hoyt, who stated that she read the contents, her only objection then being that custody of the minor son, Don, was there placed with the father. Parenthetically, there wfere two children of the marriage; Willard Junior, the older one, being past 18 and married; and Don, the younger, choosing to live with his father, such custody was agreed upon, and, so also the property settlement. The court’s findings of'facts (many of which were challenged by appellant as not based on the evidence) were to effect that Mrs. Hoyt had “agreed to and approved the settlement voluntarily, and no fraud or coercion was practiced on the plaintiff by the defendant; that the plaintiff Katherine S. Hoyt was not activated by any fear of threats by the defendant but by a desire to obtain a divorce and marry” á third party, naming him.

An item of the divorce settlement agreement was the homestead of the parties, awarded to Hoyt as his separate property. Appellant asserts that the provisions of the 1948 Amendment of Art. 16, § 15, “State Constitution” Vernon’s Ann.St. (Art. 4624a, Vernon’s Ann.Civ.St.) were not followed; the court being without jurisdiction to thus divide community property on basis of an illegal and void postnuptial agreement. The point is overruled.

The 1948 Constitutional Amendment relates to a partition of community property between spouses without reference to divorce; while here the trial court was fully authorized to approve a property settlement under Art. 4638, V.A.C.S., providing: “The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any.” Professor Huie in his Article on “The Community Property in Texas”, clearly pointed out this distinction. See Vol. 13, V.A.C.S. p. 31. Speaking of these statutes is the statement that: “Emphasis should be given two differences between a property settlement on permanent separation and a voluntary partition under the 1948 Amendment to the Constitution and the recent statute, which is possible when the spouses are still living together. In the first place, a partition is merely a division between co-owners along lines of ownership, an equal division in the case of community property, whereas, a property settlement on permanent separation need not be along lines of ownership; the only requirement is that it be fair and equitable. The division of community property on separation therefore does not have to be equal; if the wife needs it for her support, for example, it might be fair and equitable for her to receive the bulk of the community estate.” See also Williams v. Williams, Tex.Civ.App., 319 S.W.2d 777 (err. dism.), 325 S.W.2d 682.

The balance of community property, so divided, consisted of stocks, insurance policies, automobile, household furnishing's and small amounts of cash and Government bonds; appellant receiving a note of $1,500 and automobile under mortgage of the agreed value of $800. As a reason for this decided imbalance in settlement of property rights, we find testimony of the desire of both parents to put these sons through college; the younger one now attending private school. The trial court is vested with wide discretion as to division of community property in suits for divorce. Mayo v. Mayo, 268 S.W.2d 495; and aside from this an inequitable settlement of property is not sufficient ground for new trial after the judgment has become final. Carver v. Huff, Tex.Civ.App., 283 S.W.2d 317, 318. The Amarillo Court there quoted from Harding v. W. L. Pearson & Co. (Com.App.), 48 S.W.2d 964, the general rule applicable to hearings on Bills of Review: “(1) The rule is well established in this state that to obtain a new trial after the expiration of the term something more than that injustice has been done must be shown. It must appear: (1) That the former judgment was not caused by any negligence on him. who seeks to set it aside, but that diligence was used t.o prevent it; (2) that he had a good defense to the action, which he was prevented from making by fraud, accident, or the acts of the opposing party, wholly unmixed with any fault or negligence of his own; (3) that there is good cause to believe that a different result will be obtained by a new trial; and (4) the pleadings and issues of the former suit, and its result, must be set forth distinctly and clearly. It has also been established that bills seeking relief from final judgment, solemnly rendered in the due and ordinary course of the administration of justice by courts of competent jurisdiction, are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted. Johnson v. Templeton, 60 Tex. 238; Nevins v. McKee, 61 Tex. 412; Sharp v. Schmidt, 62 Tex. 263; Plumphrey v. Harrell, Tex.Com.App., 29 S.W.2d 963; Empire Gas & Fuel Co. v. Noble, Tex.Com.App., 36 S.W.2d 451.” (Emphasis ours.)

Appellant is placed squarely within purview of above-quoted rule of law by the court’s findings of fact, for which we find support in the record: “That the Plaintiff herein, Katherine S. Hoyt had full opportunity to present and to be represented by an attorney of her choosing in the divorce proceeding and that her failure to do so was of her own choice.”

Points of error on appeal are accordingly overruled and judgment of the trial court is affirmed.

WILLIAMS, J., not sitting.

On Motion for Rehearing

It will be noted that Associate Justice WILLIAMS did not choose to participate in above decision, having been the trial judge, although not legally disqualified thereby. Appellant now raises the point that our Constitution provides for a three judge Court of Civil Appeals for a review or determinations made by the trial court; and that an affirmance by two of the judges of this Court of the action taken by the third judge while a trial judge is unconstitutional, illegal and void. Art. 1812, V.A.C.S., provides that each Court of Civil Appeals shall consist of a Chief Justice and two Associate Justices and that a majority shall constitute a quorum for the transaction of business, and the concurrence of two Justices shall be necessary to a decision. Art. 1815, V.A.C.S., states after all or any two members of any Court of Civil Appeals shall be disqualified to determine any cause in such court, that fact shall be certified to the Governor, who shall immediately commission the requisite number of persons, learned in the law, to try and determine said cause. It has long been a settled law that Art. 1815 is not in conflict with the Constitution, Art. 5, § 11; and the fact that one member is alone disqualified (not true in the instant case) does not prevent the other members from lawfully proceeding therewith. Nalle v. City of Austin, 85 Tex. 520, 22 S.W. 668.

Appellant challenges as without support in the record the statement in our opinion: “ * * * appellant testified that a few days prior to their separation she had discussed with her attorney and later, before final decree was granted, matters relative to a property settlement * * * The point is overruled. See statement of facts pages 58, through page 62. We inadvertently failed to pass expressly on appellant’s point three in brief. Same has been duly considered and is also overruled.

Motion for rehearing is accordingly in all respects overruled.


author: NORTHCUTT, Justice.

text:
    Jimmy D. CASTLEBERRY, Appellant, v. LEVINE’S INC., Appellee.
    No. 7083.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 9, 1961.

      Ray,& Knudtson, Amarillo, for appellant.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellee.
   NORTHCUTT, Justice.

This is a suit brought by Jimmy D. Cas-tleberry, hereinafter referred to as plaintiff, against Levine’s Inc., hereinafter referred to as defendant, seeking to recover damages for certain injuries received by his wife, Evelyn Castleberry. Plaintiff alleges that his wife went to the store of defendant to do some shopping and as she was leaving the store she proceeded to step off of the concrete or cement porch to the gravel parking lot, and as she did so, she fell on the gravel parking lot in such a manner as to suffer severe injuries to her person. Plaintiff alleged several acts of negligence in maintaining the parking lot where his wife was injured.

The case was tried to a jury upon special issues. Several of the issues were answered and some were not answered. The jury answered there were no damages caused by defendant’s negligence and that Mrs. Cas-tleberry’s fall was the result of an unavoidable accident. The judgment of the court did not set out the special issues and the answers thereto but stated the verdict was for the defendant and ordered that the plaintiff take nothing. From that judgment the plaintiff perfected this appeal.

The plaintiff presents this appeal upon the following two points of error:

“Point of Error No. 1 — The Trial Court erred in sustaining the Defendant’s Special Exceptions 1, 2, and 4 to the Plaintiff’s Pleadings, for the facts do show that a cause of action does exist, that the Defendant owed a duty to its customers to protect them from bodily harm and injury; that the Defendant invited the Plaintiff to come to his store, when the store and premises were in fact in an unfinished state of construction; that Appellee was aware that a hugh volume of people would come to his store and that injury might occur as a result of the unfinished state of construction. The Defendant stated that the said store was new, that they were having their “Grand Opening” and implied or warranted that the construction of the premises had been completed; and the Pleadings would further show that the Plaintiff’s injuries were proximately caused by the unfinished state of construction of the Defendant’s premises.
“Point of Error No. 2 — The trial court erred in refusing Plaintiff’s Requested Issues, and in modifying and conditioning the Special Issues of Plaintiff’s that the Court did submit to the Jury.”

Although we agree with the contention of defendant that the plaintiff in his points of error does not state separately the points attempted to be presented according to the rules, we will discuss the assignments as we understand the contention of the plaintiff.

We presume the court entered judgment upon the findings of the jury that there was no damage caused by the defendant’s negligence and that the fall was the result of an unavoidable accident, and further that the jury found that defendant was not negligent in conducting the grand opening of the new store before the parking lot provided for the customers had been covered by the black-top or cement, and that if there was any hazard attached to the condition of the parking area, it was open and obvious to the extent that Mrs. Castle-berry either appreciated, or in the exercise of ordinary care should have appreciated, its existence.

We can not agree with the plaintiff’s contention that because defendant had stated the store was new and they were haying their “Grand Opening” warranted that the premises so far as a parking lot was concerned had been completed.

There is no contention by the plaintiff that he was in any manner prohibited from introducing any testimony concerning the accident. Even if it be true, as contended by plaintiff, that defendant warranted the premises had been completed, it was obvious that the parking lot had not been completed and Mrs. Castleberry, according to the findings of the jury, either appreciated, or in the exercise of ordinary care should have appreciated, its existence and could see it had not been completed. There is nothing in this record to show that Mrs. Castleberry could not and did not see the condition of the premises she was approaching.

The owner or occupant of the premises owes to an invitee or business visitor the duty to use reasonable care to keep the premises in reasonably safe condition so that he will not be injured. The owner or occupant of the premises does not owe to the business invitee the duty to protect him against dangerous conditions that are obvious and reasonably apparent, or as well known to the person injured as they are to the owner or occupant. Hall v. Medical Building of Houston, 151 Tex. 425, 251 S.W.2d 497, by the Supreme Court and authorities there sighted.

We are of the opinion the court submitted the proper issues involved in this suit, and did not err in refusing to give to the jury plaintiff’s requested special issues. Finding no reversible error herein, the judgment of the trial court is in all things affirmed.


text:
    TRAVELERS INSURANCE COMPANY v. Nell BREWER.
    No. 7084.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 16, 1961.

      Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant.
    Merchant, Fitzjarrald, Poole & Merchant, Amarillo, for appellee.
   DENTON, Chief Justice.

Nell Brewer, appellee, surviving wife and beneficiary of F. M. Brewer, deceased, brought this suit against appellant, The Travelers Insurance Company, for accidental death benefits and medical and hospital expenses under a group insurance policy. Trial was to a jury and based on the jury’s answer to the one special issue submitted, the trial court entered judgment for the plaintiff below.

Brewer had been a motor grader operator for Gilvin-Terrill, Inc., a construction company, for several years. Travelers issued group insurance policy No. GA 22738 to Gilvin-Terrill for certain benefits to its employees. Monthly premiums were paid to the insurance company by the employer based upon the number of its employees during that payment period. Brewer was discharged by his employer on April 4, 1960, and was killed in an automobile collision on April 22, 1960. Brewer was an insured employee of Gilvin-Terrill under the group policy above referred to at the time he was discharged. These material facts are either admitted by answers to requests for admissions or uncontroverted. In response to the only special issue submitted, the jury found Brewer was totally disabled by bodily injury or disease so as to prevent him from engaging in any occupation or employment for remuneration or profit from April 4, 1960 until his death on April 22 of the same year. Appellant by brief now accepts this jury finding as true for the purposes of this appeal.

The controlling question to be deter' mined is whether or not Brewer was insured under the group policy in question from the time he was discharged to the date of his death. To decide this question we must look to the material provisions oi the policy. These material provisions are as follows:

“Article III — Termination Of Insurance
“Section 1. Employee And Dependents Insurance:
“(I) Except as hereinafter provided in this Article, all insurance on any Employee covered hereunder shall terminate at the earliest time specified below:
«a> * * *
“¾. * * *
“c. When he shall leave the service of the Employer, be dismissed therefrom, or be pensioned or retired.
“(II) Subject to the payment of premium by the Employer, insurance may be continued in force during the continuance of the group policy as follows :
“a. In any case where an Employee at the time of cessation of active work shall be insured and shall be wholly disabled and prevented by bodily injury or disease from engaging in any occupation or employment for remuneration or profit, all insurance may be continued during the continuance of such disability.
"b. * * *
“Article IV — Premiums
“Section 1. Premium Rates * * *
“Section 5. Grace Period
“If the Employer has not given written notice to the Company that the policy is to be discontinued, a grace of Thirty-one days during which the policy will remain in full force will be allowed for the payment of any premium after the first, provided that if the Employer shall fail to pay such premium, the Employer shall pay a pro rata premium for the period between the last premium due date and the date of written notice by the Employer that the insurance will not be continued, or for the days of grace if the Employer shall fail to give such notice before expiration of the days of grace.”

Appellee takes the position the lower court’s judgment is correct on the ground Brewer’s total disability from the date of his discharge until his death extends the coverage to the latter date under Art. Ill, Sec. I and Sec. 11(a) of the policy; and for the additional reason his death came within the thirty-one days grace period set out in Art. IV, Sec. 5. On the other hand, appellant contends that under these same provisions of the policy the insurance terminated as to Brewer and his beneficiary on the date of his discharge, and that the grace period provision has no application in the instant case.

The thirty-one days grace period provided for in the policy cannot be construed to extend the coverage as to Brewer’s beneficiary. That section simply prevents the lapse of the policy for the nonpayment of premiums by the employer for a period of thirty-one days. The policy contains no provision whereby the employee may convert the insurance into an individual policy. We are not concerned with a case of the lapse of the policy for the non-payment of premiums, but a termination of the insurance as to one employee under the group policy.

The overwhelming majority of the cases, have held that a clause in a group insurance policy, the coverage of which ceases upon termination of employment, which prescribes a grace period of specified duration for the payment of premiums does not extend the coverage of an employee insured under such policy after the termination of his employment. 68 A.L.R.2d, Sec. 78, p. 127 explains this rule in the following language :

“The above rule is not affected by an additional statement in the provision for a grace period that during such period the policy shall remain in-force. This is so because, according to the reasons given by the courts, the provision for a grace period is personal to the employer and does not have the effect of extending the insurance of the employee for such time, its purpose being only to extend the time for paying of premiums and not to extend the period of coverage after the termination of employment.”

Texas courts have consistently adopted this view. Lewis v. Connecticut Gen. Life Ins. Co. (Tex.Civ.App.) 94 S.W.2d 499 (writ refused) ; Schooley v. Metropolitan Life Ins. Co. (Tex.Civ.App.) 77 S.W.2d 886 (no writ history) ; De Pauw v. Aetna Life Ins. Co. (Tex.Civ.App.) 268 S.W.2d 734 (no writ history). We therefore conclude the thirty-one days grace period provided for in Art. IV, Sec. S is not applicable and does not extend the insurance coverage to the appellee.

Being of the opinion the grace period has no application in supporting appel-lee’s claim, we must look to the material provisions of Art. Ill of the policy to determine whether or not the insurance had terminated. It is uncontradicted that Brewer’s employer paid the insurance premiums on a monthly basis, and that the last premium period while Brewer was an employee was for the period from March 8, 1960 until April 8, 1960. Brewer’s coverage under the policy was cancelled by his employer on April 9. This procedure was carried out by the employer making certain notations on an appropriate employee card and by the contents of its monthly report to the insurance company. The policy expressly provided that the policy’s coverage would terminate at the earliest time specified. One of these contingencies was the dismissal of an insured employee from the employer’s service. That Brewer, was discharged for drinking on the job on April 4, 1960 is not contradicted. Coverage under the policy would therefore terminate on April 4 unless Subdivision 2 of Sec. 1, Art. Ill of the policy applies. That Subdivision provides that coverage may be continued after the dismissal of the employee if two requirements are met: (1) if the employer pays the premium and (2) if the discharged employee is wholly disabled to the extent he is prevented from engaging in any employment for remuneration or profit. If both of these conditions'are met the insurance may be continued during the period of such disability. Although Brewer was found to be wholly disabled from the date of his discharge until his death eighteen days later, it is uncontradicted that the employer did not pay the premium to provide coverage to Brewer after his discharge and during the period of his disability. This conclusion is borne out by the fact the employer reduced the number of employees insured under the policy when it submitted its next monthly report to Travelers. The premium payment was accordingly reduced to conform to the number of employees reported for the period from April 8 ’to May 8, 1960. ■ It is ’therefore clear that the employer elected to terminate Brewer’s coverage under the group policy. These factors when taken in connection with the unambiguous language of the material provisions of the policy leads us to the conclusion the insurance coverage terminated as to the deceased and his beneficiary on the last day of the premium payment period — April 8, 1960. Mr. Brewer’s death and the hospitalization and medical expenses occurred after this time, therefore the insurance company cannot be held liable for such benefits.

The judgment of the trial court is therefore reversed and judgment is here rendered for the appellant. Reversed and rendered.


author: POPE, Justice.

text:
    PURETEX LEMON JUICE, INC., Appellant, v. S. RIEKES & SONS OF DALLAS, INC., Appellee.
    No. 13817.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 18, 1961.
    Rehearing Denied Nov. 15, 1961.

      Matthews, Nowlin, Macfarlane & Barrett, F. W. Baker, _ Richard E. Goldsmith, San Antonio, Strickland, Wilkins, Hall & Mills, Mission, for appellant.
    Carl Wright Johnson, Alfred Offer, William R. Simcock, Sail Antonio, for appellee.
   POPE, Justice.

Plaintiff, Puretex Lemon Juice, Inc., sued S.Riekes & Sons of Dallas, Inc., for breach of an oral implied warranty of suitability with respect to some metal bottle caps. The trial court rendered a take-nothing judgment for the defendant on the grounds that plaintiff’s pleadings affirmatively showed that the action was barred by the two-year limitation statute. We have only the pleadings and judgment before us. The procedure which led to the judgment is not in question. The only point preserved on appeal is whether the implied warranty was breached at the time of sale or at a later date. . '•

Puretex Lemon Juice, Inc., alleged that it bought some metal bottle caps from S. Riekes & Sons on November 10, 1956. Puretex used the caps for bottling several thousand jugs of lemon and lime juice, and sold the product. About November 1, 1957, Puretex for the first time discovered, from its customers, that the bottle caps were rusting and that this deterioration had ruined the juice. Puretex alleged that Riekes & Sons knew the purpose for which the caps were to be used, Puretex also alleged that it could not have discovered the latent and inherent defects in the caps prior to the time they rusted and caused damages to plaintiff. See, Truslow & Fulle v. Diamond Bottling Corporation, 112 Conn. 181, 151 A. 492, 71 A.L.R. 1142.

The two-year limitation statute is applicable. Smith v. Fairbanks, Morse & Co., 101 Tex. 24, 102 S.W 908. If the period of limitation began to run at the time of the sale on November 10, 1956, plaintiff’s 'action was barred because it was filed on July 27, 1959. The statute itself states that limitation begins to run “after the cause of action shall have accrued.” Art. 5526, Vernon’s Ann.Tex.Stats. Courts have given the phrase a realistic instead of a theoretical or hypothetical meaning. City of San Antonio v. Talerico, 98 Tex. 151, 81 S.W. 518. It has been held that a cause of action does not exist until facts arise upon which one can assert a claim for relief-in a court of competent jurisdiction. Linkenhoger v. American Fidelity & Casualty Co., 152 Tex. 534, 260 S.W.2d 884; Williams w Pure Oil Co., 124 Tex. 341, 78 S.W.2d 929; 1 Am.Jur., Actions, § 60; 1 Tex.Jur.2d, Actions, § 41. This means that there must not only be a right to sue, but facts must exist upon which a person can sue. Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025; American Nat. Ins. Co. v. Hicks, Com.App., 35 S.W.2d 128, 131, 75 A.L.R. 623; Stanley v. Schwalby, 85 Tex. 348, 19 S.W. 264, 266; Condor Petroleum Co. v. Greene, Tex.Civ.App., 164 S.W.2d 713.

Puretex reasons that no facts existed upon which it could have asserted any action based upon the rusted condition until the caps rusted and destroyed the product. That condition did not arise until a year after the sale. Plaintiff alleged that the facts upon which it sued were not only previously unknown, but were undiscoverable. American Nat. Ins. Co. v. Hicks, supra; Sovereign Camp, W.O.W. v. Boden, 117 Tex. 229, 235, 1 S.W.2d 256, 258, 61 A.L.R. 682; Williamson v. Heath, 49 Tex.Civ.App. 254, 108 S.W. 983. Plaintiff filed its action within two years from the time the rust existed as a fact under the allegations of the petition. The Texas decisions are not precise with respect to the exact time that limitation begins to run against a breach of implied warranty. Some of them state that limitation begins at the time the breach is discovered or should have been discovered. Others state that it begins at the time of injury or damage, though that time may be before the full extent of the injury or damage is known. All of the Texas cases which have been called to our attention, however, agree that the time of sale is not necessarily the controlling date. Smith v. Fairbanks, Morse & Co., supra, declared that a breach of an implied warranty about a pump “occurred when the pump was found to be insufficient * * Appellee argues that this is careless language. If it be, it has been carelessly stated more than once. In Cooper-Bessemer Corporation v. Shindler, Tex.Civ.App., 132 S.W.2d 450, it was the discovery of the breach of warranty which accrued the cause of action in the case of latent defects in cotton-gin machinery. In Bishop-Babcock-Becker Co. of Texas v. Jennings, Tex.Civ.App., 245 S.W. 104, it was the discovery of a defect in a carbonatar for use with a soda fountain which set limitations to moving. Accord, Cunningham v. Frontier Lumber Co., Tex.Civ.App., 245 S.W. 270.

In the majority of the jurisdictions, an implied warranty is breached at the time of sale, though the defect is unknown or unknowable. 54 C.J.S. Limitations of Actions § 138; 1 Williston on Sales (Rev. Ed.) § 212a. It does not necessarily follow, however, that the majority rule is supported by the better reason or that Texas should abandon the rule it has been following. In fact, it occurs to us that the Texas rule avoids the needless situation of a wronged person's loss of an action before he was injured, and before he learned or could have learned of the wrong. 2 Frumer and Friedman, Products Liability, § 40.01. Even those who follow the majority rule have devised an escape from its unjustness by creating an exception. See, Note, 75 A.L.R. 1086. That exception is that limitation will commence, not at the time of sale but at the time of the occurrence of a future event when the warranty is about a future event. This is called a prospective warranty. This exception has been applied in Texas in situations where there was no way to know of the breach until future facts came into existence. Smith v. Fairbanks, Morse & Co., supra; Cunningham v. Frontier Lumber Co., supra; Williamson v. Heath, 49 Tex.Civ.App. 254, 108 S.W. 983; accord, Poole v. Functional Construction Co., Cal.App., 7 Cal.Rptr. 391, 395; Aced v. Hobbs-Sesack Plumbing Co., 55 Cal.2d 573, 12 Cal.Rptr. 257, 360 P.2d 897; Southern California Enterprises v. D. N. & E. Walter & Co., 78 Cal.App.2d 750, 178 P.2d 785.

The postponement of the commencement of limitation until one discovers or should discover hidden or unknown facts is no stranger to the law. It is the principle applied to cases of fraudulent concealment of torts, Barnard v. Thompson, 138 Tex. 277, 158 S.W.2d 486, to actions for breach of warranty on the transfer of a certificate for land, which was later learned to be forged, Ripley v. Withee, 27 Tex. 14, to actions for breach of a warranty on the transfer of a certificate for land which is later learned to be fraudulent, Anding v. Perkins, 29 Tex. 348, and to actions for the wrongful conversion by a bailee, Underwood v. Coolgrove, 59 Tex. 164. Underground pollution of fresh water is actionable at the time one discovers or should discover that fact. Gulf Oil Corporation v. Alexander, Tex.Civ.App., 291 S.W.2d 792. Additional analogies could be stated, but these demonstrate that under the law in other areas, blameless ignorance of facts essential to a suit excuses the filing of an action.

Appellee, S. Riekes & Sons, strongly relies upon Houston Water Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36. Puretex, equally as strongly, relies upon the same case. This is understandable, because, as explained in Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336, 337, the Houston Water Works case states two distinct rules. That case concerned damages which developed long after defendant had tortiously severed an arch inside plaintiff’s building. The court ruled that there “was an act wrongful towards the owner of the property, for which an action might have been maintained as soon as the tort was committed.” The act of sawing the arch was a legal injury, however slight the damages, and limitations began to run from the time of the wrongful act. There was a direct invasion of another’s property. 28 Tex.Jur., Limitation of Actions, § 66. This was one rule, and the one applicable to that case. The case then stated a second rule. “When an act is in itself lawful as to the person who bases an action on injuries subsequently accruing from, and consequent upon, the act, it is held that the cause of action does not accrue until the injury is sustained. * * * ” Hence, when the wrongful act is done, limitation begins; when the act is itself lawful, limitation does not begin until an injury is sustained.

Courts have followed the first rule of Houston Water Works Co., when there is a direct invasion of rights. In Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878, a malpractice case, the injury occurred at the time a sponge was left in the plaintiff’s body. The court treated that case as a direct invasion of plaintiff’s rights though he was unaware of the presence of the sponge. But when the act is at first lawful and results in a subsequent injury, courts follow the second rule stated in the Houston Water Works case. In such later group of cases are those in which a dam is lawfully built on one person’s land and water later encroaches upon the complainant’s land. In such cases it is not the original construction but the injury which accrues the cause of action. Tennessee Gas Transmission Co. v. Fromme, supra. In another analogy, one man lawfully dug a ditch on his land and some time later this resulted in the loss of lateral support to his neighbor’s land. The neighbor’s action for damages accrued not at the time the ditch was dug, but when he later sustained injury. Simon v. Nance, 45 Tex.Civ.App. 480, 100 S.W. 1038. In the case of pollution of fresh water by the injection of salt water into the sub-surface, the one whose water was polluted did not even have a cause for complaint until he was injured, though the salt water had been injected into the sub-surface for more than two years before he was injured. Gulf Oil Corporation v. Alexander, Tex.Civ.App., 291 S.W.2d 792; 156 Tex. 455, 295 S.W.2d 901. Because it was lawful for a utility to perform certain pipe line operations on its-own easement, though improperly done, limitation did not begin to run against a neighbor’s action for damages to his buildings until his buildings were damaged some time later, by reason of the faulty work done by the utility. Houston Natural Gas Corporation v. Pearce, Tex.Civ.App., 311 S.W.2d 899; City of Houston v. Parr, Tex.Civ.App., 47 S.W. 393.

It is our opinion, therefore, that the rule in Texas is that limitation commences on a breach of implied warranty when the buyer discovers or should discover the injury. We are convinced that the rule is followed in analogous situations and is supported by the better reasons. The judgment that this action was barred by limitations is therefore reversed and the cause remanded.


author: McNEILL, Justice.

text:
    Marvin B. LATHAM, Appellant, v. ESTATE of William O. MOSLEY, Appellees.
    No. 6493.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1961.
    Rehearing Denied Nov. 15, 1961.
    Fulmer, Fairchild & Badders, Nacog-doches, for appellant.

      Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellees.
   McNEILL, Justice.

This is a venue matter. The parties below will be designated here as they were in the trial court. Plaintiff filed suit in the district court of Nacogdoches County against one Wm. O. Mosley to recover damages for personal injuries sustained by him when struck by an automobile driven by said Mosley on a street in Nacogdoches November 14, 1958. Soon after the suit was filed it was discovered that the said Mosley had died, a resident of Louisiana, and appellant thereupon filed an amended petition making Mosley’s widow, Mrs. Wm. O. Mosley, and his children, Miss Avalon Mosley, Mrs. Flonita Mosley Reeves, and Mrs. Myrtle Mosley Craig and their husbands parties defendant.

It was alleged that the action was brought against the Estate of Wm. O. Mosley, deceased, that said Mosley died intestate, that no administration had been had on his estate and none was necessary, that for several years before Mosley’s death, in February, 1959, he and his widow were man and wife, and that she was his survivor in community, and that the other three named women were his sole surviving heirs and plaintiff sought damages alleged to have been sustained by him against the defendants as the legal representatives of the Estate of Wm. O. Mosley.

Defendants, Miss Avalon Mosley, Carl Reeves and wife, Mrs. Flonita Mosley Reeves, and Mrs. Wm. O. Mosley filed pleas of privilege to be sued in the county of their residence, Jefferson County, Texas. These pleas were not controverted, and on March 30, 1961, the trial court entered an order sustaining such pleas of privilege and ordering the cause transferred as to such defendants to the district court of Jefferson County, Texas.

On March 27, 1961, defendants, Doyle Craig and wife, Mrs. Myrtle Mosley Craig, filed their plea of privilege to be sued in their county of residence, Brazoria County, Texas. This plea of privilege was not controverted; however, on March 31, 1961, the plaintiff filed a motion requesting that the court order the entire cause as to all of the defendants transferred either to the district court of Jefferson County, or to the district court of Brazoria County, because the cause of action asserted against the defendants was not several or severable but joint. On June 5, 1961, the trial court filed his order, dated June 2, 1961, overruling plaintiff’s said motion, sustaining the plea of privilege of the defendants, Doyle Craig and wife, Mrs. Myrtle Mosley Craig, and transferring tire cause as to such defendants to the district court of Brazoria County, Texas. The plaintiff excepted to such order and has appealed therefrom.

Plaintiff asserts that since the action was a joint one against the widow and the three children that the trial court erred in failing to sustain his motion to move the entire case either to Jefferson or Brazoria County. We think the trial court should have sustained the motion.

Article 5525, R.S.1925, Vernon’s Ann.Civ.St. art. 5525, provides that death shall not abate a cause of action for injuries but all such causes of action shall survive against “the person, or persons liable for such injuries and his or their legal representatives, and may be instituted and prosecuted as if such person or persons against whom same accrued were alive.” It is alleged in the petition that there was no administration upon the estate of the deceased and no necessity for any, and that he left no will. Accepting these allegations as true, we must consider who should be considered “legal representatives” of the deceased within the purview of Art. 5525. If the petition had limited plaintiff’s recovery to any community property that might exist, then it would appear under Sec. 160 of the Probate Code, V.A.T.S., that perhaps the surviving widow would be the only necessary party to establish liability, but the petition in this case did not so limit any liability and so the surviving widow does not have the sole right to represent the estate and defend the suit. The action is not one seeking liability against the widow, nor the children, individually. It is actually one against the deceased’s estate as such. The widow and children each has the right to contest the action for the reason that each has a monetary interest in defeating the suit, for under the law of inheritance whatever property Mosley had at his death vested immediately in his widow and children, and each as to the part inherited by her would necessarily be affected by any recovery. The widow and heirs of the said Mosley are his “legal representatives” within the meaning of Art. 5525. The cases next discussed support this conclusion.

In Love v. Henderson, 42 Tex. 520, the action was one for damages by Henderson against Love for the latter’s breach of contract. Before the case was tried Love died, leaving a will in which his widow, Margaret Love, was appointed executrix. She was made party defendant, but before trial of the case she died. An affidavit was then filed by plaintiff for citation to the unknown heirs of Love, but no allegation was made in the pleadings that Love left heirs to inherit his estate, or that he died seized of any property. Judgment in the trial court was rendered against those heirs and they through their special guardian appealed. The Supreme Court, in reversing the judgment said: “It was not shown by petition or otherwise, that any estate descended from Josephus Love to his heirs, or even if he left heirs or other representatives to inherit his property, and this ground alone would make it necessary to reverse the judgment if the heirs had been legally cited by publication.” Before re-trial plaintiff alleged, “that at the decease of said Josephus Love he left heirs of his body to whom the above described tracts of land descended, and which said tracts of land are now held, owned, and possessed by said heirs. Said tracts of land are reasonably worth ten thousand dollars.” Judgment again went against the Love heirs who appealed and this time the Supreme Court in McCampbell v. Henderson, 50 Tex. 601 at p. 611 said: “But if there is no administration upon the estate of the defendant, and the facts show that none is necessary or desired by those interested in his estate, * * * and the heirs are in possession of his property, they are in such sense the representatives of their ancestor, that a pending action may be revived or an original suit brought against them.” And at p. 613 the court further says: “The suit is maintainable against them in view of the fact that they stand in his place and are to be regarded as his representatives.” See Buchanan v. Thompson’s Heirs, 4 Tex.Civ.App. 236, 23 S.W. 328; Smith v. Basham, Tex.Civ.App., 227 S.W.2d 853; Allen v. Stovall, 94 Tex. 618, 63 S.W. 863. While the petition in the present case does not directly allege Mosley left an estate, this is its purport. Neither was there a direct allegation that the heirs had taken possession of any of such estate, but Sec. 37 of the Probate Code vests title in them and in order to adjudicate the rights of the parties involved, we think the heirs necessary parties. McDonald’s Texas Civil Practice, Vol. 1, pp. 233-238; 43B Tex.Jur. 452.

The question recurs whether in the trial of this case less than all of the heirs who are subject to the jurisdiction of the court, may represent the estate of the deceased. The question is not easily answered. Though none of the personal parties defendant are liable individually except for such portion of the property of deceased which has come into her possession, or inherited, she would necessarily be affected by any judgment obtained. We do not see how less than all may be sufficient to a complete and final adjudication. If a judgment is obtained establishing a debt against the estate of Mosley then a lien against the property of the estate comes into existence. Jackson v. Hubert, 149 Tex. 451, 234 S.W.2d 414. Before any property could be sold as result of the judgment the court would necessarily take into consideration the most equitable manner in which the property should be sold and the interests of the various heirs therein and make such equitable adjustment as the facts dictate. Horton v. Gibson, Tex.Civ.App., 274 S.W. 292.

Defendants urge that the trial court’s action in disposing of the pleas was proper, and assert that since no controverting pleas were filed to any of the pleas of privilege the trial court had no jurisdiction other than to transfer the case as to the widow and two of the daughters to Jefferson County and as to the daughter residing in Brazo-ria County to that county. No evidence was heard as to the matters involved. However, plaintiff could not have successfully maintained a controverting plea under Rule 86, Texas Rules of Civil Procedure. The last part of this rule reads:

“If such adverse party desires to controvert the plea of privilege, he shall within ten days after he or his attorney of record received the copy of the plea of privilege file a controverting plea under oath, setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending.”

A controverting plea is one filed in order to retain the cause in “the court where the cause is pending.” It is plain that since none of the defendants were guilty of any act or omission “in person” causing the accident, the suit could not have been maintained in Nacogdoches County under any exception of the venue statute. Adams v. McHam, Tex.Civ.App., 289 S.W.2d 319. See Louis v. Spain, Tex.Civ.App., 330 S.W. 2d 478.

We hold plaintiff’s petition shows that it is a joint action and the court should have transferred the entire case either to Jefferson County or Brazoria County. Hickman v. Swain, 106 Tex. 431, 167 S.W. 209; Stedman v. International Harvester Co., Tex.Civ.App., 319 S.W.2d 791; Whitley v. King, Tex.Civ.App., 227 S.W.2d 241. We think this is doubly true since the rights of the parties, both plaintiffs and defendants are so closely related and connected that a multiplicity of suits and trials piecemeal should be avoided. Since the court first sustained the pleas of privilege of those defendants living in Jefferson County, and since neither of the parties indicate any choice of counties, we reverse the judgment of the trial court and sustain plaintiff’s motion and order the entire case transferred to Jefferson County.


author: BARROW, Justice.

text:
    Malvina TABOR et al., Appellants, v. NATIONAL BANK OF COMMERCE OF SAN ANTONIO, Independent Executor, et al., Appellees.
    No. 13831.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 1, 1961.
    Rehearing Denied Nov. 22, 1961.

      W. R. Smith, Michael W. Wagner, San Antonio, for appellants.
    Frederick W. Hanger, Trueheart, McMillan, Russell & Westbrook, San Antonio, for appellees.
   BARROW, Justice.

This is an appeal by Malvina Tabor, Evelyn T. Wagner, joined by her husband, Michael Wagner, and Virginia T. Andrus, joined by her husband, R. J. Andrus, from a judgment of the trial court construing the will of Mattie Tabor Mally, deceased. The will of said deceased consisted of her original will, dated February 16, 1951, and four separate codicils thereafter executed. The suit was brought by National Bank of Commerce of San Antonio as Independent Executor of the Estate of Mattie Tabor Mally, Deceased, named and appointed in the second codicil, in lieu of Hershel H. Cooper, who was appointed independent executor in the original will, and other parties, to construe said will. All heirs at law of said Mattie Tabor Mally, deceased, as well as all beneficiaries under her will, were made parties, either plaintiff or defendant. The facts were stipulated by the parties.

The original will left eighteen special legacies to eighteen different beneficiaries, including one to each of the residuary legatees hereinafter named. The bequests were made by ITEMS 2 to 19, both inclusive. Then followed ITEM 20, which reads:

“After my death, I direct that my Executor, Hershel H. Cooper, sell the real estate of which I may die possessed for the best price obtainable and the cash from said sale, together with any cash remaining after the above bequests have been paid shall be divided equally among Milton Tabor, Melvina Tabor, Evelyn Tabor Wagner and Virginia Tabor Opperman.”

In her second codicil the testatrix mads the following provision:

“Further, I do declare by this second codicil to my said Will, that if any of the beneficiaries named in Item- 2 to' Item 19, both inclusive, in my said Will of February 16, 1951, should not be living at the time of my death, then the bequest to such deceased beneficiary or beneficiaries shall lapse and become a part of the bequest devised to the beneficiaries named in Item 20 of my said Will.”

Milton Tabor, who was one of the persons named in Item 20, and four other persons named as special legatees predeceased the testatrix.

The trial court rendered judgment declaring Item 20 of the original will, and the above quoted paragraph of the second codicil, to be the general residuary clause of said testament, and that Mattie Tabor Mally died intestate as to that portion of the residue of her estate devised and bequeathed by Item 20 of her original will to Milton Tabor, and that such portion passes and vests in the surviving heirs at law of the testatrix.

The appellants, the three survivors of the four persons named in Item 20, contend the trial court erred in holding that the residuary devise and bequest to Milton Tabor lapsed and vested in the heirs at law of the deceased, and the court should have construed the will so that the entire residuary estate passed to the three surviving persons named in Item 20.

The four persons named as beneficiaries of the residuary estate were neither children nor lineal descendants of the testatrix, therefore, Section 68 of the Probate Code, V.A.T.S., has no application.

It is readily apparent from the clear and unambiguous language of Item 20, that the devise or bequest therein made was to the four persons named, as individuals and not as a class. It is equally apparent that the bequest makes no provision for survivorship or substitution. Therefore, the beneficiary, Milton Tabor, having predeceased the testatrix, the bequest to him lapsed and the testatrix died intestate as to that part of the estate, unless, considering the will as a whole, there is some language that can be construed as providing for such survivorship. We find no such language. We think the case falls squarely within the rule stated in Hagood v. Hagood, Tex.Civ.App., 186 S.W. 220, 225, error refused, wherein the Court said:

“The authorities are uniform to the effect that where a devise is made to two or more named persons, and one or more of such persons die before the testator, and there are no words of survivorship in the will, the property, which by the terms of the will goes to such deceased person or persons, lapses and becomes a part of the testator’s undevised estate and descends to his or her heirs, regardless of the terms of the will. In such cases the legatees who survive the testator take only such part of the testator’s estate as is specifically bequeathed to them. It is otherwise, however, when the devise is to two or more persons as a ‘class.’ ”

The Hagood case has often been cited and consistently followed. Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212; Benson v. Greenville National Exchange Bank, Tex.Civ.App., 253 S.W.2d 918, error refused n.r.e.; Casey v. Kelley, Tex.Civ.App., 185 S.W.2d 492, error refused; Ellet v. McCord, Tex.Civ.App., 41 S.W.2d 110, error refused.

Appellants forcefully argue that the language used by the testatrix in the second codicil evidences the intent to provide for survivorship of the beneficiaries named in the residuary clause. They particularly emphasize the words, “the bequest to such deceased beneficiary * * * shall lapse and become a part of the bequest devised to the beneficiaries named in Item 20 of my said Will.” We do not agree. In the first place, the language used in the codicil clearly shows that the testatrix only intended to place any of the specific legacies which lapsed by the death of the beneficiary into the residuary estate. Moreover, we think the language clearly shows the contrary to appellants’ contention. The language used indicates that the testatrix must have understood that any legacy would lapse where the beneficiary died before her own death, and provided for sur-vivorship or substitution in case of the death of any of the specific legatees, but not in case of the death of any of the four beneficiaries of the residuary estate. We think if she had so intended she could easily have so provided. We are of the opinion that the trial court correctly construed the will.

The judgment is affirmed.