text:
    Elizabeth SPROLES et vir, Appellants, v. L. J. SHARP HARDWARE, INC., Appellee.
    No. 16963.
    Court of Civil Appeals of Texas. Dallas.
    July 28, 1967.
    Rehearing Denied Sept. 29, 1967.

      Ely Straus, Bowyer & Thomas, Dallas, for appellants.
    Edward E. Crowell, Jr., of Gardere, Porter & DeHay, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Plaintiffs appeal from a take nothing judgment following the sustaining of defendant’s motion for summary judgment. Mrs. Elizabeth Sproles and husband, Earl Sproles, brought this action against L. J. Sharp Hardware, Inc., seeking damages for personal injuries sustained by Mrs. Sproles when she slipped and fell on the floor of defendant’s store. Plaintiffs alleged that Mrs. Sproles fell shortly after she entered defendant’s store; that she slipped on a substance described as wax or other chemical substance which defendant had applied to the floor. Plaintiffs contended that defendant corporation was negligent in failing to properly inspect the floor; in failing to properly apply the wax or other chemical substance to the floor; and in failing to warn Mrs. Sproles of the slippery condition of the floor. In its answer defendant alleged that Mrs. Sproles was guilty of contributory negligence in failing to keep a proper lookout for her own safety and that such negligence was a proximate cause of the incident in question. Defendant also alleged that the condition of the floor in question was open and obvious to Mrs. Sproles and that she therefore voluntarily exposed herself to the danger of walking upon such surface.

Defendant filed its motion for summary-judgment alleging the nonexistence of issuable facts and in support of such motion attached the depositions of Mrs. Elizabeth Sproles and Mr. Raymond P. Smith, manager of defendant’s store. Plaintiffs countered this motion with their verified answer to which was attached an affidavit of Mrs. Sam T. Smith.

The facts contained in the depositions and affidavit are practically without dispute. The material portions thereof may be fairly summarized as follows:

Mrs. Sproles, 72 years of age, testified that on December 9, 1964 she entered the Sharp hardware store with a friend, Mrs. Sam T. Smith, for the purpose of doing some shopping. Her eyesight was perfectly all right for seeing at a distance and she only wore glasses for reading. She had been in this same store frequently as a customer on prior occasions. Mrs. Smith preceded her into the store and as she was following Mrs. Smith her left foot slipped and she fell to the floor. At the time of this incident the premises were well lighted and she had no difficulty seeing objects in the store. She was wearing shoes with leather soles and a one and one-half inch heel with a rubber tip. She did not know exactly how many .steps she had taken inside the store before she fell but it was only a short distance. As she entered the store and before she fell she did not look at the floor and therefore does not know what its appearance was at the time. She testified she didn’t pay any attention to it saying “You just don’t look at things like that. Ordinarily everything in stores is nice, well kept.” She stated that she did not look at the floor either before she fell or after she fell. She testified that she did not know what caused her to fall. She never made an inspection of the floor to determine what caused her to fall because, following her fall, she was suffering too much pain.

Raymond P. Smith testified that he was manager of the Sharp hardware store and had occupied this position for several years. He supervised seven employees, including a porter. The floors in the store were constructed of asphalt tile. Concerning cleaning the floors he related that the floors were swept each morning and mopped once a week. The floors were waxed twice a year with a "tree-wax” which did not require any buffing. He remembered the occasion when Mrs. Sproles fell on the floor and testified that the floor had been waxed a day or two before this occasion. In addition to the waxing the floor had been swept about two hours prior to Mrs. Sproles’ fall with a sawdust mixture with an oil base. He said that the floors “might have a little, gloss” on them when they were clean or swept. He did not actually see Mrs. Sproles fall but his attention was directed to her on the floor. She was some ten or twelve feet inside the front door of the store on the floor. Following her fall he “kicked his foot around in it on the floor” and said that it was not any more slippery than “usual”. He observed no marks or scratches on the floor where Mrs. Sproles fell. He testified in answer to a question that he did not warn anyone about the floor being recently waxed and that no one had ever fallen or slipped on the floor before that time. He also said that he did not inspect the floor where Mrs. Sproles fell either before or after-wards but that he had walked over the floor several times during the two-day period following the waxing process and was familiar with the condition the floor was in at the time.

Mrs. Sam T. Smith executed an affidavit in which she related that she was with her friend Mrs. Sproles on the occasion; that she, Mrs. Smith, preceded Mrs. Sproles into the store on the morning in question. She said she was walking about ten feet inside the store when she “noticed and felt that the floor was unusually slippery under foot and felt that it had been newly waxed or in the process of being waxed.” She related that she was “about to turn around and warn Mrs. Sproles about the condition of the floor when I heard Mrs. Sproles say ‘Oh’ and Mrs. Sproles had fallen to the floor.” She aided in assisting Mrs. Sproles to the hospital and while at the hospital she said she noticed “something on the heel of one of her shoes. I removed the shoe from her foot and found that it had a substance on the heel which resembled floor wax. I smelled the substance and it smelled like floor wax.”

OPINION

Appellants, in five points of error briefed together, contend that the trial court was in error in granting the motion for summary judgment filed by appellee corporation in that the record before the court demonstrated the issuable facts, i. e., (1) that appellee had breached its duty to Mrs. Sproles, a business invitee, by failing to properly inspect the waxed floor and to warn her of its slippery condition; and (2) that the question of whether the condition of the floor was open and obvious to Mrs. Sproles presented an issue of fact. Appellee, in its responding brief, contends that the record demonstrates conclusively (1) no duty on the part of appellee corporation to Mrs. Sproles; and (2) that Mrs. Sproles was guilty of contributory negligence as a matter of law which proximately caused her injuries.

In determining whether the trial court was correct in sustaining a motion for summary judgment our path of appellate review is well lighted by established principles enunciated by our Supreme Court in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (1965). These rules, simply stated, are (1) the burden of proof is on the movant, and all doubt as to the existence of a genuine issue as to a material fact is resolved against him; (2) the evidence must be viewed in the light most favorable to the party opposing the motion; (3)if the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted; and (4) all conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true.

Guidelines for determining the liability of an owner or occupant of premises to an invitee are also clearly delineated.

While an occupier of the land or premises is not held by the law to be an insurer of the safety of invitees such occupier is required to keep his land or premises in reasonably safe condition for invitees, and has the duty thereunder to inspect and discover dangerous conditions, and if dangers are not open and obvious he has the duty to take such precautions as reasonably prudent persons would have taken to protect such invitees therefrom and to warn them thereof. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963); Strakos v. Gehring, 360 S.W.2d 787 (Tex.Sup.1962); Harvey v. Seale, 362 S.W.2d 310 (Tex.Sup.1962); J. Weingarten, Inc. v. Tyra, 381 S.W.2d 215 (Tex.Civ.App., Tyler 1964); 40 Tex. Jur.2d, § 58, p. 532 et seq.

Ordinarily a guest or invitee upon premises has the right to presume that such premises are kept in safe condition for his use and is under no legal obligation to search out defects. Blanks v. Southland Hotel, Inc., 149 Tex. 139, 229 S.W.2d 357 (1950); Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); City of Fort Worth v. Barlow, 313 S.W.2d 906 (Tex.Civ.App., Fort Worth 1958, writ ref’d n. r. e.). The liability of the owner or occupant for failure to render the premises safe for an invitee, or to warn him of dangers thereon, must be predicated on knowledge thereof which is superior to that of the invitee. Camp v. Kirkpatrick Co., 250 S.W.2d 413 (Tex.Civ.App., San Antonio 1952, writ ref’d n. r. e.) ; Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963).

The “no duty” doctrine relied upon by appellee was clearly enunciated by the Supreme Court in Halepeska v. Callihan Interests, Inc., supra:

“The ‘no duty’ doctrine is this: the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. [Citing cases.] His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them ‘no duty’ to warn or to protect the invitees. This is so, the cases say, because there is ‘no duty’ to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof. [Citing authorities.]
“So in a suit by an invitee against the occupier, the invitee must not only prove that he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm, but he must also prove, as part of the plaintiff’s case, that the occupier owed him a duty to take reasonable precautions to warn him or protect him from such danger, i. e., the plaintiff must negative ‘no duty.’ ”

Justice Greenhill, the author of the opinion in the Halepeska case, discusses the question as to the actual knowledge and appreciation of danger on the part of the plaintiff, as distinguished from what the plaintiff should have known and appreciated, in an article in the Texas Bar Journal, Vol. 28, No. 1, p. 62, dated January 22, 1965:

“In McKee v. Patterson it was said that the Plaintiff could not recover if he knew of the conditions, and appreciated the danger, or should have known and appreciated the danger. The particular language which caused the difficulty was the statement that under some conditions, it might be an issue of fact for the jury as to whether the plaintiff-invitee should have known of the danger. In the Halepeska opinion, the Court reconsidered the ‘should have known’ and ‘should have appreciated’. It narrowed the factual inquiries to knowledge and appreciation of the danger as distinguished from ‘should have known and appreciated’. The Court reasoned that a person could not make any sort of intelligent choice if he did not know of the danger or appreciate the extent of it. Perhaps a plaintiff, as a prudent person, should have known and appreciated the danger, but he did not. That question, however, is one of contributory negligence and may be separately submitted along with proximate cause. What the Supreme Court did in the recent Halepeska case was to be more certain that the plaintiff did know of the danger and did appreciate the risk. These, with knowledge of the conditions, are the basic ingredients.”

An application of the facts presented in this case to the law above recited impels us to the conclusion that the “no duty” doctrine relied upon by appellee cannot be invoked to support the trial court’s judgment. We think there was clearly a duty imposed upon appellee to exercise ordinary care as an occupier of premises to keep such premises in a reasonably safe condition for invitees, such as Mrs. Sproles. Pursuant to such duty appellee had the duty to inspect and discover conditions which are dangerous and to take prudent steps to warn invitees of such conditions. Under the undisputed facts here the waxing of the floor in question was only performed twice a year. The fact that the floor was slippery is established by the testimony of Mrs. Smith to the effect that the floor was “unusually slippery under foot.” We must accept this evidence and ignore any contrary evidence of appellee. The fact that the floor was “unusually slippery” being established it necessarily follows that appellee knew or should have known of such condition. H. E. Butt Grocery Co. v. Quick, 396 S.W.2d 541 (Tex.Civ.App., San Antonio 1965, no writ); Robert E. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (Tex.Sup.1954). Appellee says that the slippery condition was open and obvious to Mrs. Sproles. There is no evidence that Mrs. Sproles actually knew of the condition of the floor. As the court said in Western Union Tel. Co. v. McDavitt, 257 S.W.2d 319, 323 (Tex.Civ.App., Austin 1953, writ ref’d n. r. e.), “It is undeniable of course that the floor itself was obvious to appellee but it is not undeniable that the slippery * * * condition of the floor was open and obvious to her.”

Mrs. Smith says she “noticed and felt that the floor was unusually slippery under foot” which might reasonably carry the implication that she saw as well as felt the condition. However, as the court said in Vanlandingham v. First Savings & Loan Ass’n, 410 S.W.2d 218 (Tex.Civ.App., El Paso 1966, writ ref’d n. r. e.), which involved a very similar state of facts, we are not entirely satisfied that Mrs. Sproles could determine by visual observation alone that the floor was slippery. As the court there says, “slippery” is a condition better determined by the sense of feel, rather than sight. “It is not something which, in the words of the comic-strip character, ‘any fool could plainly see’ ”. The court, in considering the identical contention raised as to knowledge of the person who slipped, after discussing the Halepeska decision, said:

“The question is as to the actual knowledge and appreciation of this plaintiff, as distinguished from what she should have known and appreciated. She could not intelligently choose to encounter a risk of which she did not actually know, even if she should have known.”

So, as Justice Greenhill explained, perhaps Mrs. Sproles, as a prudent person, should have known and appreciated the danger, but she did not. This resolves itself into a question of contributory negligence.

Having concluded that the “no duty” doctrine does not apply to the factual situation here presented, we move to the remaining question, to-wit, if there was a duty on the part of appellee to properly inspect and to warn, was Mrs. Sproles guilty of contributory negligence as a matter of law in failing to keep the proper lookout for her own safety on the occasion in question?

Proper lookout is ordinarily a question of fact to be determined by a court or a jury. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958). In determining whether a person was guilty of contributory negligence as a matter of law in failing to keep a proper lookout for the approach of a train in the face of undisputed testimony concerning flashing signal lights, as well as other warning devices, the Supreme Court in Texas & Pacific Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332 (1946), said:

“Contributory negligence barring a recovery as a matter of law is a conclusion sometimes compelled by the evidence, but such cases are relatively rare. Ordinarily this question is for the trier of facts and only becomes a matter of law for the court when but one reasonable conclusion can be drawn from all the testimony. [Citing cases.] It is obvious that had Day been more cautious, he would not have been injured. But whether the precautions he took amounted to due care was properly left to the jury.”

Again the Supreme Court in Blanks v. Southland Hotel, Inc., 149 Tex. 139, 229 S.W.2d 357 (1950), quoting from the opinion of the Supreme Court in Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585 (1948), said:

“It is elementary that the question of contributory negligence is generally, by reason of the very nature of the defense, one of fact for the jury to decide. [Citing cases.] According to the authorities above cited and many others * * * ‘In order that an act shall be deemed negligent per se, * * * it must appear so opposed to the dictates of common prudence that we can say, without hesitation or doubt, that no careful person would have committed it.’ ”

The Supreme Court in Blanks v. Southland Hotel, supra, pointed out that the defendant in that case invited the public, including the plaintiff, to come through the entrance of the store, thereby impliedly representing that it was safe for them to do so. In this case Mrs. Sproles had frequently been in the store in question but there is no evidence that she had ever been there soon after the floor had been waxed as on the occasion in question. Admittedly she did not look down at the floor either before or after she fell but, as pointed out above, a trier of fact might easily and logically conclude that the condition was discoverable more by feel than by sight. The record does not convince us without “hesitation or doubt” that the action on the part of Mrs. Sproles on the occasion in question was so opposed to the dictates of common prudence that no careful person would have acted as she did under the circumstances. We believe that the question of her failure to keep a proper lookout for her own safety, and whether such failure was a proximate cause of her injuries, must be determined by a trier of fact.

Being of the opinion that the motion for summary judgment was improvidently granted, the judgment of the trial court must be reversed and remanded.

Reversed and remanded.

       Parker Food Stores, Inc. v. Pierce, 374 S.W.2d 699 (Tex.Civ.App., Fort Worth 1964, writ ref’d n. r. e.); J. Weingarten, Inc. v. Tyra, 381 S.W.2d 215 (Tex.Civ.App., Tyler 1964).


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    Jewel Fay BELL et al., Appellants, v. W. W. FORE et al., Appellees.
    No. 7817.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 12, 1967.
    Rehearing Denied Oct. 10, 1967.

      Harry Friedman, Harkness, Friedman & Kusin, Sidney Lee, Texarkana, for appellant.
    Stephen Oden, Bun L. Hutchinson, Atch-ley, Russell, Hutchinson & Waldrop, Tex-arkana, Jack N. Price, Atkinson & Price, Longview, for appellee.
   FANNING, Justice.

This is a suit for damages for the deaths of William Payton, Jr., and John Homer Bell, and for personal injuries received by Frank T. Bransford. A take nothing judgment was rendered by the trial court. The judgment of the trial court is affirmed.

STATEMENT OF THE CASE

Bill Purdy’s store is located on the south side of U. S. Highway No. 67 and about five miles west of Texarkana in Bowie County, Texas. Defendant Addie Campbell, sometimes called Addie Campbell Sharp, stopped at this store about 6:00 p. m. of Saturday, November 14, 1964, to purchase some supplies. At this time, a light rain was falling. After defendant Campbell had completed her purchases, she drove her pickup truck back onto the roadway of the highway and was proceeding in a westerly direction toward her home when a motor vehicle, being driven by defendant Marshall and pulling a trailer containing a horse, struck her motor vehicle in the rear. The trailer containing the horse thereupon overturned and came to a stop on the roadway of the highway.

Shortly thereafter, while William Payton, Jr., appellant Estella Payton’s husband, and others were attempting to remove the trailer and the horse in it from the roadway, another motor vehicle being driven by W. W. Fore westward along the highway struck the trailer, and thereby William Payton, Jr., and John Homer Bell sustained personal injuries of which both died, Payton on February, 26 1965, and Bell immediately. Also injured, but not fatally, were Bill Purdy and Frank T. Bransford, who, together with Bell and Payton were also trying to remove the trailer from the roadway and thereby to “prevent a serious accident”.

Thereafter, appellant Jewel Fay Bell filed suit individually and as next friend for the minor children of herself and decedent John Homer Bell against W. W. Fore and Myrtle Fore, his wife, who was riding with Fore as a passenger in the Fore motor vehicle at the time of the collision, Thomas J. Marshall, Addie Campbell Sharp, and Ed Sharp, the husband of appellee Addie Campbell Sharp, to recover damages for the wrongful death of John Homer Bell. Appellant Frank T. Bransford intervened in the suit filed by appellant Jewel Fay Bell and sought recovery of damages from the same defendants for his personal injuries.

Appellant Estella Payton and five of her adult children, such children being joined by their husbands and wives, also filed suit against Woodrow W. Fore, Myrtle Fore, and Addie Campbell Sharp, Ed Sharp, and Thomas J. Marshall seeking to recover damages for the wrongful death of William Payton, Jr.

Thereafter all plaintiffs in both suits moved for and were granted non-suits against W. W. Fore and Myrtle Fore, but the Fores continued as parties in the two suits at the instance of the defendants who sought contribution from the Fores in the event recovery should be made against them.

Since the two suits involved common questions of law and fact, they were consolidated for the trial which was to a jury. The trial judge signed a judgment for the appellees upon the jury’s verdict and in accordance with the appellees’ prayers. Estella Payton, Jewel Fay Bell and other plaintiffs Bell and intervenor Frank Brans-ford have appealed.

The verdict of the jury found Mrs. Sharp guilty of certain acts of negligence proximately causing the first collision in question, absolved the defendant Marshall from any acts of negligence proximately causing the first collision in question, found the defendant W. W. Fore guilty of several acts of negligence proximately causing the second collision and the injuries to John Homer Bell, William Payton, Jr., and Frank T. Bransford, found that the way and manner in which W. W. Fore was driving his vehicle immediately before the second collision was a new, independent and intervening cause of such second collision, found that John Homer Bell, William Payton, Jr., and Frank T. Bransford assumed the risk of a dangerous condition existing upon the roadway and knew and appreciated the nature and extent of the danger attendant to assisting in the removal of the trailer from the roadway and voluntarily exposed themselves to such danger immediately before the second collision, and found that at the time of the second collision John Homer Bell, William Payton, Jr., and Frank T. Bransford were attempting to rescue W. W. Fore and his vehicle from danger, and were attempting to rescue and remove from danger the participants in the first collision.

The trial court in its judgment, after reciting the various findings of the jury, stated in part as follows:

“The verdict was duly received by the Court as the verdict of the jury and the Court having considered the verdict, in which the jury found the Defendant Thomas Jerry Marshall free from any negligence causing the first collision in question in this suit, but found the Defendant Addie Campbell Sharp guilty of certain acts of negligence proximately causing the first collision in question, but there being no finding of any act of negligence on the part of the Defendant Addie Campbell Sharp proximately causing the second collision or the injuries or damages to the Plaintiffs Bell and Plaintiffs Payton, or Intervenor Bransford, and the jury further finding the deceased Bell and deceased Payton and Intervenor Bransford guilty of assumption of risk and voluntary exposure to a known and appreciated danger immediately prior to the second collision in question, and further finding several acts of negligence on the part of the Defendant W. W. Fore proximately causing the second collision in question and that the acts of negligence on the part of W. W. Fore were a new and intervening and independent cause of the second collision which caused the injuries and damages complained of by the Plaintiffs Bell and Plaintiffs Payton and Intervenor Bransford, and also finding that immediately prior to the second collision the deceased Bell and deceased, Payton and Intervenor Bransford were undertaking to rescue the Defendant W. W. Fore as well as the participants in the first collision, the Court is of the opinion that judgment should be rendered that all Plaintiffs take nothing; the Plaintiffs Bell, Payton and Intervenor Bransford should take nothing because the Court is of the opinion that the acts of negligence on the part of the Defendant Addie Campbell Sharp which contributed to cause the first collision in question were but passive acts and were not continuing active causes of the second collision in question, but the negligence of the Defendant W. W. Fore was the primary and active cause of the second collision in question, and if the Court be mistaken in this as a matter of law, then the jury has so found by its verdict and its answers to the special issues submitted; additionally, Plaintiffs Bell and Payton and the Intervenor Bransford should take nothing because the rescue doctrine does not apply as a matter of law, and the deceased Bell and deceased Payton and Intervenor Brans-ford voluntarily exposed themselves to the risks and danger which was known and appreciated prior to the second collision, but if the Court be mistaken and the rescue doctrine does apply, then by virtue of the specific findings of negligence on the part of those whom the deceased Bell and Payton and Intervenor Bransford were purportedly undertaking to rescue, said Plaintiffs Bell, Payton and Intervenor Bransford are barred from recovery by imputed negligence.”

Appellant Estella Payton presents 79 points on appeal. Appellants Bell and appellant Bransford present 55 points on appeal. Having concluded that the trial court rendered a correct judgment we will write upon what we deem to be the controlling reasons why the judgment of the trial court should be affirmed.

QUESTION OF LIABILITY OF ADDIE CAMPBELL SHARP

The trial court refused to submit requested issues of plaintiffs inquiring as to whether certain acts on the part of defendant Addie Campbell Sharp were negligence and proximate causes of the deaths of Bell and Payton and of the injuries received by Bransford. Appellants assign as error the failure of the trial court to submit such issues of negligence and proximate cause, contending that issues of fact were raised warranting the submission of such issues. Appellants also contend to the effect that the jury’s finding to special issue No. 19 to the effect that the manner and way of W. W. Fore’s driving was a new, independent and intervening cause of the second collision should not be allowed to stand because the undisputed evidence showed that the way and manner in which W. W. Fore was driving his motor vehicle was not a new, independent and intervening cause of the second collision, but, at most was only a concuring or cooperating cause thereof. Among the authorities cited by appellants on the concept of concurrent negligence are the following: Texas Power and Light Co. v. Holder, 385 S.W.2d 873 (Tex.Civ.App. 1964, Affirmed per curiam 393 S.W.2d 821); McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442 (1941); Reeves v. Tittle, 129 S.W.2d 364 (Tex.Civ.App. 1939, writ ref’d); Williams v. Rodocker, 84 S.W.2d 556 (Tex.Civ.App.1935, no writ); Torts Restatement, Vol. 2, p. 1184, § 439; Gulf, C. & S. F. Ry. Co. v. Ballew, 66 S.W.2d 659 (Comm.App.1933); Robert R. Walker, Inc. v. Burgdorf, 244 S.W.2d 506 (Sup.Ct.1951); Texas Public Service v. Armstrong, 37 S.W.2d 294 (Tex.Civ.App. 1931, writ ref’d); and Baker v. Corse, 120 S.W.2d 817 (Tex.Civ.App.1938, writ dism.).

It is the view of appellee Campbell that not only was the answer of the jury to special issue No. 19 warranted and required by the evidence, but that the trial court, although noting the jury’s answer to issue 19, correctly held as a matter of law under the undisputed evidence that no negligent act of Addie Campbell Sharp was a proximate cause of the second collision and the deaths of the two men and injuries to the other man.

Proximate cause “embraces at least two distinct concepts, both of which must be present: (1) there must be a cause in fact, — a cause which produces an event and without which the events would not have occurred; and (2) foreseeability.” Baumler v. Hazlewood, 162 Tex. 361, 347 S.W.2d 560 (1961).

There were two collisions. Mrs. Addie Campbell Sharp was involved in the first collision and after it she was no longer directly involved as a participant. At the time of the second collision her vehicle was clear of the roadway and was not causing an obstruction. The horse trailer attached to the rear of the Marshall vehicle was partially obstructing the lane of travel for west bound traffic. W. W. Fore at a high rate of speed, disregarding signals of warning, failing to keep a proper lookout and being negligent in various particulars, negligently caused the second collision resulting in the deaths of Payton and Bell and the injuries to Bransford. (As we view the record, Fore’s negligence was almost to the point of being wanton).

The trial court by its judgment found, in effect, that the condition resulting as the aftermath of the first collision was not a concurrent cause, but simply a condition which made the second collision possible. This was tantamount to holding as a matter of law that the way and manner in which Fore operated his vehicle was a new, independent and intervening cause of the second collision, which is also in accord with the jury’s finding to special issue 19. The trial court, while taking cognizance of the jury’s finding to special issue 19, further concluded as a matter of law that none of the actions of Addie Campbell Sharp could be a proximate cause of the second collision under the undisputed evidence in the case.

Causal connection must be established beyond conjecture. Bowles v. Bourdon, Tex., 219 S.W.2d 779 (1949); Hopson v. Gulf Oil Corporation, 150 Tex. 1, 237 S.W.2d 352 (1951).

In this case, Mrs. Campbell would have been required to foresee, from her act of pulling onto the highway in front of Purdy’s Store as the jury found, without keeping a proper lookout, that: (1) she would be struck from the rear by a vehicle pulling a trailer, (2) that the trailer would come unhitched from the other vehicle and obstruct the highway and be difficult to remove therefrom, (3) that persons would attempt to remove the trailer from the highway, and (4) that a driver of another vehicle (who may have been drinking), would negligently ignore a flagman’s signal and drive directly into the trailer, injuring and killing those attempting to remove the trailer.

A prior or remote cause cannot be made the basis for an action for damages if it does nothing more than furnish the condition or give rise to the occasion which makes the injury possible, if such injury is the result of some other cause which reasonable minds would not have anticipated, even though the injury would not have occurred but for such condition. Phoenix Refining Co. v. Tipps, Comm.App., 125 Tex. 69, 81 S.W.2d 60 (1935); Baughn v. Platt, Comm.App., 123 Tex. 486, 72 S.W.2d 580 (1934).

In Baughn v. Platt, supra, the act of an ice company in tying ice on a running board of a customer’s vehicle was held to be too remote to be the proximate cause of the injuries to a pedestrian when the block of ice came loose and struck him, though the ice company employee created the condition which resulted in the injury. Such condition simply made the injury possible and the manner in which the customer drove was the direct producing cause and thereby became an intervening cause as a matter of law.

In Bruce v. Denton County Electric Coop., Inc., Texas Civ.App., 377 S.W.2d 722, wr. ref., n. r. e. (1964), it was held that the negligence of an electric company in having its lines too low was a prior or remote cause for which recovery could not be had where the building of a barn under the line and the act of a construction worker coming into contact with the line was not reasonably foreseeable.

In Watkins v. Davis, Tex.Civ.App., 308 S.W.2d 906, wr. ref., n. r. e. (1958), it was held that the failure to have a concrete curb in front of a drive-in store was not a proximate cause of damages resulting when a truck of a third party rolled into the store and injured a customer and the store was held not liable.

In Moody v. Clark, Tex.Civ.App., 266 S.W.2d 907, wr. ref., n. r. e. (1954), it was held that the negligence of a defendant in allowing debris, lumber, etc., to pile up on a sidewalk and in front of a store was not a concurring cause of damages resulting when an automobile, using the debris and lumber as a rampway, went over the curb into a store front, striking and injuring a pedestrian on the sidewalk in front of the store.

It is our view that the negligence of Mrs. Addie Campbell Sharp in proximately causing the first collision was not a “cause in fact” of the second collision, and was not concurrent negligence in causing the second collision, but was merely a prior remote condition which made the second collision possible. It is our further view that the trial court correctly concluded as a matter of law that the manner in which W. W. Fore negligently drove his automobile in proximately causing the second collision was a “new, independent and intervening cause”, which precluded any finding that the negligence of Mrs. Addie Campbell Sharp in causing the first collision was in any way a proximate cause of the second collision.

It is our further view there was no evidence of probative force to support a finding that Mrs. Addie Campbell Sharp could have foreseen that the injuries resulting from the second collision would result from her negligence in the first collision. In this connection see the following authorities: Texas & Pacific Railway Co. v. Bigham, 90 Tex. 223, 38 S.W. 162 (1896); City of Dallas v. Maxwell, Tex.Comm.App., 248 S.W. 667, 27 A.L.R. 927 (1923); Missouri-Kansas-Texas Ry. Co. of Texas v. McLain, 133 Tex. 484, 126 S.W.2d 474 (1939); Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962).

In Genell, Inc. v. Flynn, supra, it was held that it could not be reasonably foreseen that the negligence in maintaining an improper door adjustment would cause a young girl to accidentally thrust her arm through the glass portion of the door and injure herself.

In Texas & Pacific Ry. Co. v. Bigham, supra, it was stated: “[N]othing short of prophetic ken could have anticipated the happening of the combination of events which resulted in the injury of the person of the plaintiff”.

We hold that the trial court correctly held as a matter of law that the negligence of Mrs. Addie Campbell Sharp in causing the first collision was not a proximate cause of the second collision and the injuries resulting therefrom.

QUESTION OF LIABILITY OF MARSHALL

The jury failed to convict the defendant Marshall of any negligence proximately-causing the accident in question. The jury further found that the negligence of the defendant Addie Campbell Sharp was the sole cause of the first collision. The jury further found that defendant Marshall was in an emergency and that he did all that an ordinary and prudent person would have done under the same or similar circumstances. The jury also found that the manner in which defendant W. W. Fore was driving his vehicle immediately before the second collision was a new, independent and intervening cause of the second collision.

We have carefully examined the entire record in the cause and find that such findings of the jury are supported by evidence of probative force, that the evidence to support such findings is amply sufficient, and that such findings are not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Appellants’ points complaining of such findings are overruled.

The above findings absolve defendant-appellee Marshall of negligence proximately causing the accident sued upon and under such findings defendant-appellee Marshall was entitled to the judgment discharging him from liability.

Appellants’ contentions to the effect that the trial court erred in refusing to submit certain requested special issues to the jury inquiring as to whether Marshall was guilty of negligence in various manners and whether each was a proximate cause of the second collision and resulting injuries therefrom have been considered and are overruled. We think the trial court fairly submitted the controlling issues raised by the pleadings and evidence and was not required to submit other and various phases and different shades of the issues submitted.

Furthermore, even if the jury had found Marshall guilty of negligence proximately causing the second collision and resulting deaths and injuries, it is our view that such findings would not warrant a judgment for any of the appellants under the undisputed evidence in this case, and that Marshall would have been entitled to judgment as a matter of law, because there would have been no evidence of probative force to support any finding of proximate cause under the authorities cited hereinbefore with respect to the question of liability of Addie Campbell Sharp.

We hold that the trial court correctly rendered a take nothing judgment in favor of defendant Marshall.

CONCLUSION

We have carefully considered the numerous other points urged by appellants and are of the opinion that none of them present reversible error under the record in this cause.

Finding that the trial court entered a correct judgment under the record in this cause, the judgment of the trial court is affirmed.


author: COLLINGS, Justice.

text:
    C. T. McLAUGHLIN, Appellant, v. Ralph W. BALL, Appellee.
    No. 4192.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 29, 1967.
    Rehearing Denied Oct. 27, 1967.

      Nunn, Griggs & Beall, Sweetwater, for appellant.
    Cade & Bowlin, Lubbock, for appellee.
   COLLINGS, Justice.

Ralph W. Ball brought suit against C. T. McLaughlin seeking damages for breach of contract. Ball alleged that he secured certain oil and gas leases in the State of Colorado and subsequently assigned such leases to defendant McLaughlin; that each of such assignments provided that if the defendant elected to exercise his right to surrender the leases by failing to pay delay rentals he would give plaintiff written notice thereof sixty days prior to the rental payment date and would reconvey said leases to Ball if demanded to do so within thirty days from Ball’s receipt of McLaughlin’s notice of the exercise of his right to surrender. The case was tried before a jury which in answer to a single special issue found that the market value of the leases during the period in which such notice should have been given was $5.00 per acre. Based upon the verdict judgment was rendered for the plaintiff in the sum of $6,400.00. C. T. McLaughlin has appealed.

The record shows that prior to November 27, 1962, appellee Ball was the owner of certain oil and gas leases covering three non-contiguous tracts in the State of Colorado. The three tracts total 1360 acres in area but due to the existence of a small interest in one of the tracts which was not covered the total acreage under lease amounted to 1280 acres. On November 27, 1962, appellee assigned the leases to appellant McLaughlin and each assignment contained the following clause:

“Assignee shall always have the right to release and surrender the lease hereby assigned, provided that before releasing or surrendering, and at least sixty days prior to the next rental due date, he shall first notify assignor in writing of his intention so to do, and upon demand by assignor, if made within thirty days from the receipt of such notice, assignee shall reassign to assignor the rights and interests which he has indicated in his notice that he desires to release or surrender.”

Each of the leases was for a primary term of ten years except one partial lease dated December 19, 1961 which would expire in the absence of production on November 8, 1967. The ten year leases were dated in November and December of 1961. Each of the leases provided for delay rental payments of $1.00 per acre payable upon the anniversary dates of the leases.

Each of the assignments from appellee to appellant contained a provision that:

“The Assignor herein hereby expressly excepts, reserves, and retains title on an undivided 1% of 100'% of all oil, gas, and casinghead gas produced, saved, and marketed from the above described land under the provisions of the aforesaid lease, or any extension or renewal thereof, an overriding royalty, free and clear of any cost and expense of the development and operation thereof, excepting taxes applicable to said interest and the production therefrom.”

After receiving the assignments appellant held the leases without development for a period of more than one year but with the approach of the time for delay rental payments for the period of 1964-1965 he elected not to renew or extend the leases by paying further delay rentals and the leases were allowed to lapse. Through a clerical error appellant failed to notify ap-pellee of his intention not to pay such delay rentals. It is undisputed that appellant failed to comply with the contractual provision of the assignments. The only issue in the case is the amount of damages which appellee is entitled to recover. The parties are agreed that the measure of damages in such cases is the value of the leasehold estate lost. This issue as heretofore indicated was submitted to the jury which found that the fair market value of the leases during the period in question was $5.00 per acre.

Three witnesses testified concerning the value of the leases. These witnesses were appellee Ralph W. Ball, appellant C. T. McLaughlin, and Arthur M. Guida, who testified that he was active in dealing in oil and gas properties in Washington County, Colorado where the leases in question were situated. Appellee Ball testified that he was familiar with the value of oil property in the vicinity, and that in his opinion the value of the leases at the time in question was $5.00 per acre. He also testified that in arriving at this figure he took into consideration the value of the 1% override created in the assignment from appellee to appellant. Appellant McLaughlin testified that when he acquired the leases by assignment from appellee he paid $1.50 per acre therefor but that out of this sum appellee was required to pay the $1.00 delay rentals which were then becoming due; that appellant during his ownership of the leases in 1963, contributed 50⅝⅜ a foot amounting to about $2500.00 to the drilling of an offsetting well to one of the leases in question and that in his opinion the resulting dry offset well completely condemned at least one of such leases. Appellant stated that he could have perpetuated the leases by payment of the $1.00 per acre delay rentals but that he declined to do so and his decision was made after securing geological advice from persons familiar with the area. Appellant testified that in his opinion the leases had a market value of less than $1.00 per acre at the time inquired about in special issue number 1. The witness Arthur M. Guida testified that he was a dealer in oil and gas properties in the area in which the leases in question are situated and that in his opinion leases in the general vicinity of the leases in question at the time inquired about had a market value of $1.00 per acre.

Appellant presents points of error contending that the court erred (1) in admitting testimony concerning the value of the overriding royalty interest created in the assignment of the leases from Ball to McLaughlin, (2) in admitting testimony concerning events and overriding royalty transactions which were unrelated to the leases here involved and to their value at the time of the alleged breach of contract, (3) in accepting the verdict of the jury and entering judgment for appellee because there was no evidence to support the verdict, (4) in accepting the verdict and entering judgment thereon because there is insufficient evidence to support the verdict and the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust.

We overrule appellant’s points bearing on the lack, insufficiency and great preponderance of the evidence. Appel-lee’s testimony stating the opinion that the leases had a value of $5.00 per acre at times material hereto was some evidence of such value. The record indicates in effect that appellant paid appellee 50^ per acre for the leases plus a 1% overriding royalty. The leases, except one, were for ten year terms and there was evidence showing that they were in a “hot” area which was surrounded by three oil fields and that for several years there was always as many as four or five wells being drilled in the county. Appellee further testified that after appellant failed to reassign the leases he, appellee, soon thereafter sold less than a 1% overriding royalty in an adjoining tract for $15.00 per acre; that a short time thereafter a well was drilled about four and one-half miles from one of the leases in question. As heretofore noted there was testimony by appellant and his expert witness concerning the value of the leases. Their testimony was contrary to and in conflict with that of appellee. Additional facts and circumstances were shown by appellant which were inconsistent with appellee’s testimony concerning the value of the leases. This conflict presented a question of fact which the jury found in favor of appellee. The evidence was sufficient to support the verdict and the verdict was not against the great weight and preponderance of the evidence.

We are also of the opinion that there was no error, and certainly no reversible error, in the action of the court in admitting testimony concerning the value of the overriding royalty interest created in the assignments of the leases from appel-lee to appellant and the value of an overriding royalty interest in an adjoining tract. Appellee testified that in his assignment to appellant of the leases he reserved a 1% overriding royalty therein and that the value of such overriding royalty interest was considered by him in calculating the value of the leases. He also testified that he sold for $15.00 per acre less than 1% of an overriding royalty reserved by him under one of the leases here involved but covering land adjoining a portion of the property in question which had been assigned to a third party. It is true, as urged by appellant, that he had the absolute right to surrender the leases and was not liable for damages because of his failure to pay delay rentals. Appellant’s liability was based, solely, on his inadvertent breach in failing to tender the leases in question back to appellee. He was not liable to appellee for the loss of the overriding royalty as such because even if the leases had been reassigned by appellant to appellee as contemplated in the assignments, the overriding royalty interest would have been dissolved. Appellant would then have owned no overriding royalty as such but would have owned the entire leasehold interest whch he had theretofore assigned to appellant. This is not to say, however, that evidence concerning the value of an overriding royalty interest in the leases or similarly situated property at times material was an improper consideration in determining the value of the leases. The overriding royalty interest of appellee was by the assignment to appellant retained and withheld from the leasehold interest. It reserved a portion of the production which otherwise belonged to the owner of the leases. The value of the leases was less because of the reservation. The value of the overriding royalty reserved was therefore a proper consideration in calculating the value of the leases.

An expert witness in forming an opinion as to the value of property may properly consider and testify to all relevant surroundings and circumstances which indicate or tend to increase or diminish the current market value of the property under consideration. An expert witness is permitted not only to state an opinion as to the value of the property but also to state facts upon which his opinion is based. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 201. Sales of similar property in the same locality constitute a basic fact for consideration by a witness in arriving at his opinion concerning the value of the property.

Appellant’s points are overruled.

The judgment is affirmed.


author: WILSON, Justice.

text:
    MAGNET COVE BARIUM CORPORATION et al., Appellants, v. Raymon L. BROWN et ux., Appellees.
    No. 4639.
    Court of Civil Appeals of Texas. Waco.
    Sept. 28, 1967.
    Rehearing Denied Oct. 19, 1967.
    Bradley & Geren, Groesbeck, Richard Owen, Walter Fortney, Fort Worth, for appellants.
    McCulloch, Ray, Trotti & Hemphill, Ross H. Hemphill, Thomas W. Oliver, Dallas, for appellees.
   OPINION

WILSON, Justice.

Appellee’s action against appellants sought reformation of deeds to Magnet Cove Barium Corporation (Magcobar), alleging that by mutual mistake the conveyances omitted a reservation to appellees of a royalty interest, future bonuses and delay rentals. Alternatively appellees asserted a trespass to try title count. Judgment was rendered on a jury verdict reforming the deeds as prayed for, and decreeing recovery in trepass to try title with merger of estates.

The jury found that it had been agreed that the deeds would reserve ½ of the usual ⅛ royalty and ½ of future bonuses and delay rentals on oil and gas that may be produced from the land described in ap-pellees’ deeds to Magcobar, and that the reservation was omitted by mutual mistake.

Magcobar’s first group of points complains of admission in evidence of two mining leases, two deeds and an option to purchase executed by third persons to Mag-cobar, as contravening the evidence rules concerning res inter alios acta.

In 1961, and again in 1962, appellees granted Magcobar options to purchase 320 acres. These options recited there was excepted and reserved to appellees’ predecessor, Killam, “]/2 of the usual ⅛ royalty” on oil and gas, that “acreage is to be determined by survey,” and payment “is to be based on actual acreage,” at $145 an acre. Magcobar exercised the option, sending ap-pellees a warranty deed describing the 320 acres, and a special warranty deed describing 378.60 acres (which included a 58.60 excess developed by survey). Both deeds excepted “a ¼6⅛ undivided interest in and to the oil and gas located in, on and under the tract or parcel of land herein described.” These deeds were executed and delivered by appellees.

The parties agree that after the results of the survey became known they conferred to determine the course of the closing. Ap-pellees contend that “at this time the agreement was made” that in exchange for the excess 58.6 acres appellees “would retain 1/2 of the usual ⅛ royalty and ½ of the bonuses and delay rentals on oil and gas in and under the total 378.6 acres.” Appellant also says there was an oral modification of the option agreement, but denies there was any further agreement concerning royalty, bonuses or delay rentals. Its position on trial was that the consideration for the conveyance of the excess of 58.6 acres was its agreement to pay a $1200 vendor’s lien indebtedness owing to appellees’ grantor, Killam. Appellees urged it was improbablé and not reasonable to believe that they accepted a $1200 obligation in lieu of a promised cash payment of over $8,000 for the 58.6 acres.

Appellant relies upon the maxim of irrelevancy of res inter alios acta under which evidence of contracts, acts and transactions between one of the parties and others are excluded. The decisions in Texas are the subject of a comment and a case note: Starling Thomas Morris, 24 Tex.L.Rev. 351, (1945) ; Frank B. Sheppard, id., 95. No arbitrary or categorical rule governing admissibility has emerged from the Texas decisions.

McCormick & Ray, Texas Law of Evidence, Sec. 1523, p. 370, lists some decisions in which contracts between a party and third persons have been excluded, and states: “It is believed, however, that there is no sound basis for excluding such evidence as a class.” In II Wigmore, Evidence (3d ed. 1940) Sec. 377, p. 307, it is said that “no technical rule or general policy obstructs such evidence”, noting: “the only question can be whether the instances produced do have any real probative value to show a system or plan or habit”. See I Jones, Evidence, (4th ed. 1938), Sec. 141, p. 250; Texas Digest, Evidence, Key Nos. 138, 139.

Appellees seek to sustain admission of five instruments between Magcobar and third persons as establishing a plan, design or pattern by Magcobar by which oil and gas rights were consistently reserved to their grantors in transactions similar to that with appellees.

Magcobar was to “build a plant to process kaolin, sand and rock minerals.” It was “not in the oil and gas business.” The site it acquired comprised four tracts, including appellees’; and the instruments complained of all related to lands constituting the site. They consisted of (1) and (2) two 1962 mining leases authorizing removal by Mag-cobar of sand, silica, kaolin and other minerals “except oil and gas”, (3) a 1963 purchase option which reserved oil and gas with (4) the conveyance thereunder, and (5) a special warranty deed dated October, 1963 excepting and reserving oil and gas.

In our opinion the trial court was authorized to conclude that these instruments were of some probative value on the issue of mutual mistake in the inadvertent omission of the reservation alleged.

Magcobar says the court erred in admitting appellees’ testimony of an oral agreement concerning retention of oil and gas rights which varied the terms of the deeds because he introduced them without limitation. Magcobar contends also that the testimony contravenes the statute of frauds and the parol evidence rule.

The position overlooks the fact that this is an action for reformation of the two deeds, and obviously it was incumbent on appellees to offer in evidence the instruments they sought to reform, and which they had pleaded were the result of a mutual mistake. In order to overthrow what they claimed was a straw man they had first to show what the target was; and they are not thereby precluded from reformation. The cases cited by appellant are not apposite to a reformation action.

Appellees’ action included a legal count in trespass to try title as well as the equitable prayer for reformation. In the Texas blended system the court could grant relief on both counts, enforcing and reforming in one judgment. Totton v. Smith, 131 Tex. 219, 113 S.W.2d 517; 49 Tex.Jur.2d, Reformation of Instruments, Sec. 4, p. 604-607. The deeds were admissible in the trespass to try title action as evidence of title.

In the equitable action to reform an instrument which fails to express the real agreement due to mutual mistake, parol evidence is admissible to show the true agreement, and a court of equity “will open the written contract to let in matters arising from facts perfectly distinct from the sense and construction of the instrument itself,” notwithstanding the parol evidence rule. Pegues v. Dilworth, 134 Tex. 169, 132 S.W. 2d 582, 585. See Olvey v. Jones, 137 Tex. 639, 156 S.W.2d 977, 982.

The Statute of Frauds, Art. 3995, Vernon’s Ann.Civ.St., is not an impediment to parol evidence to establish an agreement for a mineral interest in an action for reformation based on mutual mistake. Gilbert v. Smith, Tex.Com.App., 49 S.W.2d 702, 86 A.L.R. 445.

We have fully considered each of appellants’ points, including that raising jury misconduct. In our opinion they do not present reversible error. The judgment is affirmed.

      . “No one doubts that the existence of a design or plan to do an act is of some probative value on the question whether or not.that act was done, or that a pattern, system or course of conduct is of some probative value in tending to establish that the controverted act was done in accordance with that system.” —P. 357, and see p. 359.


author: STEPHENSON, Justice.

text:
    Fred J. PATTERSON, Appellant, v. Elouise E. PATTERSON, Appellee.
    No. 6926.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 7, 1967.
    Rehearing Denied Oct. 25, 1967.

      F. Warren Hicks, Houston, for appellant.
    M. Michael Gordon, Houston, for appel-lee.
   STEPHENSON, Justice.

This is an action for divorce including the custody of two children and division of the property. Trial was before the court and the divorce was granted to the plaintiff, Mrs. Patterson. The parties will be referred to here as they were in the trial court.

There is no complaint as to the granting of the divorce to plaintiff, nor to the awarding custody of two minor children to her. All of the points of error are in reference to the division of the property. The judgment entered contained the following: An 80 acre tract in Fort Bend County was found to be the separate property of defendant. A 9.61 acre tract in Harris County was found to be community property, and the proceeds of the sale held in escrow, in the amount of $29,280.81 was awarded to plaintiff. (All of the points of error concern this 9.61 acre tract.) That the household furniture, furnishings and a 1965 model Cadillac automobile were a part of the community estate and were awarded to plaintiff subject to the existing debts against such personal propérty. A lot in San Jacin-to County was community property and awarded to defendant subject to any indebtedness against such lot. That the bank account in the Bank of Almeda, a 1966 Dodge automobile, a 1962 Ford pickup truck, a 1966 Ford tractor, miscellaneous carpenter tools, and all other personal property were all a part of the community estate and awarded to defendant subject to any indebtedness existing against such personal property. Plaintiff recovered $1,250.-00 as her attorney’s fee from defendant.

The evidence showed: That plaintiff and defendant were married December 18, 1956. That the 80 acre Fort Bend County tract had a value of $120,000.00 less $10,000.00 indebtedness due against it. That the 9.61 acre tract had been occupied by plaintiff and defendant as their homes until they separated and the tract was sold. That the lot in San Jacinto County was bought in May 1966 for $295.00 down and a note for $2,675.00 upon which $186.00 had been paid. That defendant owed the Bank of Almeda $1,200.00. That a debt of $1,959.00 was owed on the 1966 Dodge. That the 1966 Ford tractor cost $4,700.00 upon which was owed $4,200.00. That the value of such tractor was $4,000.00. That defendant had a contract to furnish the carpenter labor on a building at 50 cents per foot for some 350,000 feet, upon which defendant was afraid he was not making a profit, but had hoped to make $10,000.00 or $15,000.00.

The first series of points raised by defendant are that the trial court erred in holding the 9.61 acre tract of land was community property and awarding to plaintiff the proceeds derived from the sale of such land. Also, that defendant was entitled to be reimbursed for the $24,000.00 paid by him out of his separate estate upon such tract of land.

The evidence shows that defendant bought 120 acres of land in Fort Bend County, upon which he owed $3,300.00 at the time of this marriage. In 1958 defendant borrowed $8,500.00 on such land and paid off the $3,300.00. In 1960 defendant made a loan of $12,000.00 on such property and paid off the $8,500.00. In April, 1964 plaintiff and defendant bought the 9.61 acre tract of land and borrowed $40,000.00, the full purchase price from Mr. Schulman and gave a note secured by a lien on the 9.61 acres. Also during the marriage plaintiff and defendant purchased a 6 acre tract of land at Stafford, Texas. $3,000.00 was paid down on the Stafford tract out of community funds. $12,000.00 was borrowed from Mr. Schulman for which he was given a lien on the Stafford tract, and the money was used to pay off the balance of the purchase price. The Stafford property was sold and the net amount of $18,000.00 obtained which was applied on the Schulman note on the 9.61 acre tract. In 1964 the highway went through the Fort Bend property taking 19 acres for which defendant received $19,000.00 of which $10,000.00 was paid on the 9.61 acre tract, about $3,000.00 or $4,000.00 was used for expenses and the balance was paid to Schulman on the Fort Bend property. Later 20 acres of the Fort Bend property was sold for $26,000.00. By bill of exception, a witness testified that $15,000.00 of this $26,000.00 was paid on the Schulman note.

The law in Texas as to the division of property in a divorce case is set forth by the Supreme Court of Texas in Ex Parte Scott, 133 Tex. 1, 123 S.W.2d 306, 126 S.W.2d 626, as follows:

“By the provisions of Article 4638, R.C.S.1925, the court pronouncing the decree of divorce has jurisdiction, in the divorce action, to decree a division of the estate of the parties in such a way as the court may deem just and right, having due regard for the rights of each party and their children, if any. * * * Also, under this statute the division of the property does not have to be equal. The court can be controlled by what the facts may lead him to believe is just and right. In fact, this divorce court in this divorce action, as between these spouses, can go to the extent of decreeing a trust upon the separate estate of the husband for the benefit of the wife.”

No findings of fact or conclusions of law were requested or filed in this case. We have no way of knowing what value was placed by the trial court upon any of the items awarded by the court. For example, we do not know what value the trial court placed on the contract defendant had to furnish carpenter labor upon which he was afraid he was not making a profit, but had hoped to make $10,000.00 or $15,000.00. In fact, the only evidence as to value of any of the items mentioned was as to the Fort Bend property and the Ford tractor. Viewing the record as a whole, in the light most favorably to sustain the judgment, we cannot say the trial court abused its discretion in dividing the property between the parties as it was done, even though payment had been made out of defendant’s separate property upon the community estate.

The remaining series of points complain of the exclusion by the trial court of certain evidence by defendant that funds derived from the sale of part of his separate property were paid on the community estate note due on the 9.61 acre tract. Also, in excluding testimony of defendant’s bookkeeper, showing the disposition of proceeds derived from various loans and sales of separate property. The testimony of defendant’s bookkeeper is set out in the bill of exception. This testimony shows that $15,-000.00 derived from the sale of the 21 acres of land in Fort Bend County which was a part of defendant’s separate estate, was applied on the Schulman loan on the 9.61 acre tract. Assuming defendant would have testified to the same effect, we have not concluded that these errors complained of amounted to such a denial of the rights of defendant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure.

Judgment affirmed.


author: JOHNSON, Justice.

text:
    Robert C. STUART et al., Appellants, v. CITY OF HOUSTON, Appellee.
    No. 11.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Oct. 4, 1967.
    Rehearing Denied Oct. 25, 1967.
    Presley E. Werlein, Jr., Houston, for appellants.
    William A. Olson, City Atty., and W. Lawrence Cook, Jr., Senior Asst. City Atty., Houston, for appellee.
   JOHNSON, Justice.

This is an appeal from an order of the trial court denying the motion of appellant for judgment nunc pro tunc to reinstate the case on the docket of the trial court that had been dismissed for want of prosecution. The prayer of appellant’s amended motion is as follows:

“WHEREFORE, PREMISES CONSIDERED, Plaintiff ROBERT C. STUART, individually in this cause of action, respectfully prays that the above numbered and entitled cause be reinstated on the docket of this Honorable Court nunc pro tunc in order that justice may be done and in order to allow Plaintiffs their day in Court.”

Appellant’s original petition was filed May 24, 1963, in which he sought to set aside a City of Houston paving lien assessment. This suit, filed in the District Court, was in the nature of an appeal from the action of the City Council levying the assessment as provided in Article 1105b, Vernon’s Ann.Texas Revised Statutes.

After the case had been pending for some three years, and after notice to the appellant’s counsel of record, the trial court entered its judgment of dismissal for want of prosecution on March 9, 1966. Eleven months subsequent to this action, on February 20, 1967, appellant’s “motion to reinstate” was filed. This was amended by a pleading called “amended motion for judgment nunc pro tunc” filed March 6, 1967. The prayer of both the original motion to reinstate and the amended motion for judgment nunc pro tunc was for reinstatement of the case on the docket of the trial court. By written order of March 13, 1967 the trial court denied the motion of the appellant for entry of judgment nunc pro tunc.

Various points of error are assigned by the appellant: that a clerical error had been committed, that there was a variation in the correct spelling of the name of the appellant from the court’s order of dismissal, that the suit was dismissed when same had not been set for trial as provided in Rule 330(b) Texas Rules of Civil Procedure, that the dismissal was made without proper notice to the appellant, that the appellant had been betrayed by his attorney who had received notice, and that the dismissal had been made while the appellant was representing himself and was negotiating settlement of the case. It is clear, however, from the prayer in appellant’s motions that the sole purpose was the reinstatement of the case as a pending suit on the docket of the court.

Appellee’s position is that the trial court had no jurisdiction to grant the original or the amended motion and properly overruled it, since neither motion was filed or acted upon within the 30-day period during which the district court had control over its judgments. Rule 329b T.R.C.P. Bill of review, provided for by this rule, was not utilized by appellants. “A judgment rendered by reason of fraud, accident, or mistake can be corrected after it becomes final only by bill of review.” Mobley v. Rheem Manufacturing Co., Tex.Civ.App., 410 S.W.2d 320, 321 (error ref., n. r. e.)

Appellant has chosen nunc pro tunc proceedings which are permissive, are limited to the correction of clerical rather than judicial errors, and in which the inquiry is what judgment was rendered, not what ought to have been rendered. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040. While the trial court has the right at a subsequent term to correct clerical errors or mistakes by nunc pro tunc proceedings to make the court’s records speak the truth, it should make no attempt to reopen the issues. Conley v. Conley, (1950) Tex.Civ.App., 229 S.W.2d 926 (dismissed). Relief in such manner should be granted only if the evidence is clear, satisfactory and convincing that a clerical error has been made. Stauss v. Stauss, Tex.Civ.App., 244 S.W.2d 518 (no writ history).

In the case at bar the original motion and amended motion of nunc pro tunc request reinstatement of the action which is clearly in the nature of a motion for new trial. Justice Pope, as associate justice of the San Antonio Court of Civil Appeals, succinctly stated:

“A motion to reinstate is in the nature of a motion for a new trial. Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819. When one files a motion for new trial after ten days have expired, it does not operate to extend the court’s jurisdiction over the judgment for a period of more than thirty days from the date of the rendition of judgment. Rule 329b, § 5, Texas Rules of Civil Procedure; Cathcart v. Childers, Tex.Civ.App., 296 S.W.2d 340. Hence, the order of reinstatement on May 13 was made after the court had lost jurisdiction. It had no power to render a ‘take nothing’ judgment. Since there was no timely appeal from the final order of dismissal on April 11, 1960, this Court has no jurisdiction.” Drawe v. McGuffen (1961) Tex.Civ.App., 355 S.W.2d 738 (no writ history).

Final judgment had undoubtedly been entered by the trial court. Mobley v. Rheem Manufacturing Co., supra.

We hold that the trial court had lost jurisdiction to accomplish reinstatement and correctly denied the motion.

The appeal is dismissed.


text:
    TRINITY UNIVERSAL INSURANCE COMPANY, Appellant, v. Nathan HOWETH, Appellee.
    No. 7826.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 3, 1967.
    Rehearing Denied Oct. 31, 1967.

      Brady Coleman, Kenley, Boyland & Hawthorn, Longview, for appellant.
    Vaughan Stewart, Wellborn & Houston, Henderson, for appellee.
   FANNING, Justice.

Plaintiff-appellee Nathan Howeth, on December 31, 1964, filed suit against defendant-appellant insurance company upon an insurance policy to recover damages to plaintiff’s dwelling caused by a sonic boom. Appellee purchased the policy in May, 1961, from appellant and the policy was in full force and effect in September, 1962. In early September, 1962, appellee contended his house was damaged by a sonic boom vibration, causing a crack in the foundation, and causing various damages to his dwelling.

Defendant-appellant resisted the claim on the basis that (1) plaintiff’s damages resulted from foundation settling, an exclusion under the policy, and not sonic boom, which was a covered peril, and (2) that under the policy conditions the plaintiff was barred from asserting his cause of action more than two years and one day after the cause of action accrued. In connection with contention 2 appellant contended that it had denied plaintiff’s claim on September 26, 1962, and that plaintiff’s suit filed December 31, 1964, was barred under the terms of the policy.

In response to submitted special issues, the jury found to the effect: (1) plaintiff’s home was damaged by sonic boom vibration on or about September 1, 1962; (2) and (3), the reasonable cash market values of plaintiff’s dwelling immediately before and immediately after the sonic boom were respectively $15,000.00 and $12,000.00; and (4) the reasonable cost to repair or replace the damage to plaintiff’s dwelling, allowing a proper deduction for depreciation, if any, within a reasonable time after the sonic boom, was $2,250.00; (5) that defendant through its agents represented to plaintiff, either by words, deeds or acts, that plaintiff’s claim would be settled without filing suit; (6) that plaintiff relied upon such representations from the date of damage until suit was filed; (7) that in relying upon said representations plaintiff acted as a reasonably prudent person would have acted under the same or similar circumstances; (8) that the damages to plaintiff’s building, if any, were not caused by the natural process of foundation settling; (9) nor were such damages, if any, caused by the combined effects of sonic boom and foundation settling, etc.; (10) that plaintiff’s claim made the basis of this lawsuit was not finally denied by defendant on or prior to September 26, 1962.

The trial court entered judgment for plaintiff for $2,250.00, plus $247.50 as interest. Appellant has appealed.

Appellant on appeal contends to the effect that plaintiff’s cause of action was barred by policy limitations as a matter of law and that there was no evidence that defendant waived such provisions or was estopped to assert same, that there was no evidence to support the jury’s answers to special issues 10 and 5, that the evidence was insufficient to support the jury’s answer to special issue No. 5, and that the overwhelming preponderance of the evidence is contrary to the jury’s answer to special issue 10. Appellant also makes certain complaints with respect to the submission and form of special issue 5.

The policy of insurance provided in part as follows:

“* * * ACTION AGAINST COMPANY. No suit or action on this policy for the recovery of any claims shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, nor as respects claims under:
“Section 1 — Property section: Unless commenced within two years and one day next after cause of action accrues:”

The alleged loss occurred in early September, 1962. Appellant contends that it (by adjuster Truelove) denied liability on September 26, 1962, and that plaintiff’s cause of action then accrued and was required to be brought within two years and one day thereafter, and that the filing of the suit on December 31, 1964, about 3 months subsequent to the running of the two years and one day provision relied on by the insurance company, was too late.

It was plaintiff’s position that the claim was not finally and conclusively denied by appellant insurance company on September 26, 1962, but that adjuster Truelove and local agent Phillips by their actions led plaintiff to believe that his claim was still being considered and in the process of adjustment and that he was assured by local agent Phillips that he would be paid for his loss and that he believed this up until the time he filed suit. In short, it is appellee’s position that appellant is estopped to rely upon and has waived its rights to rely on the two year and one day limitation provision in the policy.

With reference to the date upon which the two year and one day limitation began to run, the policy states that it is when the insured’s cause of action accrues. It has been generally held that, in such cases that the cause of action accrues when liability is denied by the insurer. See 32 Tex.Jur.2d, § 384, p. 594, and cases cited. We think, however, that this denial should be not merely a tentative denial with the claim still left open and still being negotiated for settlement between the insured and the insurance company.

In 32 Tex.Jur.2d, Insurance, § 399, p. 400, it is stated:

“A policy provision limiting the time within which suit may be brought is for the benefit of the insurer and may be waived by denying liability, by failing to furnish blanks required for proof when requested by the beneficiary, or by continuing to recognize liability after the limitation period has expired. Thus, if the conduct of a fire insurance company after adjusting a loss has been such as to induce the insured to believe that the sum admitted to be due on the adjustment will be paid without suit, and for that reason suit is not brought in the time limited by the terms of the policy, an action on the policy may nevertheless be maintained.” (Emphasis added)

In Gulf, C. & S. F. Ry. Co. v. Trawick, 80 Tex. 270, 15 S.W. 568 (1891) it was stated:

“The question of waiver of similar clauses in policies of insurance has been frequently considered by the courts of our own and other states. While there exist some material differences in its application to the two descriptions of contracts, the principle is substantially the same in both cases. The rule upon the subject stated in the opinion of the supreme court of New York in the case of Ripley v. [Astor] Insurance Co., 29 Barb. [552], 557, meets with our approbation. It is there said: ‘A twelve-months statute of limitations, although assented to by the parties, operates as a forfeiture. It is therefore to be strictly construed. Slight evidence of waiver, as in other cases of forfeiture, will be sufficient to defeat its application.’ ”

In St. Paul Fire & Marine Insurance Company v. McGregor, 63 Tex. 399 (1885) it was held that where a defendant insurance company, by its acts in negotiating for settlement of a claim, has led the insured to believe that he will be paid without suit, the company can not take advantage of the provision in its policy requiring action to be brought within a stated time after loss.

In Burlington Ins. Co. v. Tobey, 10 Tex.Civ.App. 425, 30 S.W. 1111 (1895) it was held that where the agents of an insurance company promised to adjust the loss if plaintiff would come to Texas, and plaintiff did so, and endeavored to effect a settlement, which was evaded by the company’s adjuster, and the agents represented that no advantage would be taken of the delay, and the company acquiesced in the conduct of its agents, such acts will amount to a waiver of the provision in the policy that suit must be brought within six months after the loss, whether plaintiff knew of the limitation of the agents’ authority forbidding them to waive such provision or not.

In London & Lancashire Ins. Co. v. Higgins, Tex.Civ.App., 68 S.W.2d 1056 (1934), the insured filed a proof of loss with the local insurance agency and was told that nothing else needed to be done.

After the time allowed for the filing of a formal proof of loss had elapsed, the insurer complained of the sufficiency of the proof of loss. The insured testified that he called the local agency repeatedly and each time was advised that nothing further was required of him. The court held that the facts and circumstances were sufficient to raise an issue of waiver of strict compliance with the provisions of the policy.

Appellant insurance company never in writing refused appellant’s claim.

Appellee’s only contacts with the insurance company was by his contacts with its adjuster Trulove and its local agent Phillips. Appellee in his brief summarizes the evidence with respect to the limitation and/or waiver of limitation issue as follows:

“We will, at this point quote from that portion of Appellee’s testimony which touches upon the limitations question:
T inspected the damage to my home and then a few days later reported it to my insurance company. I made the report to Mr. Scooter Phillips at his office. I told Mr. Phillips that I had witnessed the damage. Three or four days later, he (Mr. Phillips) and Mr. Truelove, an adjuster, came out to my house. Either Mr. Phillips or Mr. Truelove filled out a “Notice of Loss”. A copy of the “Notice” was mailed to me later. Mr. Truelove checked my house and said he would turn in his report to the company, but it was his opinion that the loss was not covered. A few days later, I went to see Mr. Phillips and told him that I thought I was covered under my policy. Mr. Phillips told me that I was covered for sonic boom and that he would get a re-claim. He explained that a re-claim meant the company would get an adjuster back over. After this, Mr. Truelove came back to my house but I was working and missed him. I finally saw Mr. Truelove again at the Preston Insurance Agency office about two or three months later and he said that he had received additional information from the Dallas office on sonic booms and that he was reevaluating my claim. I kept waiting for Mr. Truelove to contact me and continued to see Mr. Phillips on numerous occasions. Finally Mr. Phillips told me that the company had again refused my claim, but that he would contact the company adjuster in Tyler. I waited for the company adjuster, Mr. Bell, to come to see me, but I was not home when he came. Mr. Phillips then gave me Mr. Bell’s telephone number in Tyler and told me to call him. I tried on thirteen occasions to talk with Mr. Bell on the phone, but I was always told he was out or was on another line. I mentioned this to Mr. Phillips, and he kept assuring me that I was covered for sonic booms. I believed that Mr. Truelove and Mr. Phillips were going to take some further action on my claim, and relied upon what they told me up until I filed suit.’ (emphasis added)
“Mr. Truelove, the adjuster employed by Appellant, testified by deposition and in person. His testimony is rather vague since he admitted that he had forgotten many of the details of investigation; and that the records on this file had been destroyed. However, he did admit that he talked with Appellee on several occasions. He also admitted that Mr. Phillips from the Preston Insurance Agency was with him on the various occasions when he talked with Mr. Howeth.
“Nowhere in the record is there any evidence either by testimony or by document, that Appellant flatly refused to pay the claim.” (Note: Omitted are various references to the Statement of Facts).

As above stated, appellant insurance company never denied appellant’s claim in writing. We think the evidence is subject to the construction that appellant’s adjuster Truelove at first at least tentatively thought the loss was not covered — however, his subsequent statements, actions and conduct and the statements, actions and conduct of the local agent Phillips at least had the effect of lulling appellee to sleep with respect to filing suit, which statements, actions and conduct of appellant’s agents caused appellee to believe that appellant was in good faith seeking to adjust his claim and causing him to believe that appellant insurance company would pay his claim.

Since the policy provision limiting the time within which suit may be brought is clearly for the benefit of the insurer, it is a forfeiture provision which should be strictly construed. And, as stated in Trawick supra (80 Tex. 270, 15 S.W. 568): “Slight evidence of waiver, as in other cases of forfeiture, will be sufficient to defeat its application”.

After carefully reviewing the entire record we hold that there was evidence of probative force to support the jury’s answers to special issues 5 and 10; that the evidence to support issue 5 was sufficient, and that the answer of the jury to issue No. 10 was not so contrary to the great and overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We also find no reversible error in the submission and form of special issue 5.

All of appellant’s points are overruled.

The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Oma FITZ, Executrix of the Estate of Byron Buford Fitz, Jr., Deceased, Appellant, v. A. F. TOUNGATE et ux., Appellees.
    No. 11533.
    Court of Civil Appeals of Texas. Austin.
    Oct. 4, 1967.
    Rehearing Denied Oct. 25, 1967.

      Evans & Marshall, Louis E. Marshall, San Antonio, for appellant.
    William H. Crenshaw, Kingsland, for appellees.
   HUGHES, Justice.

This appeal by writ of error is brought by Oma Fitz, executrix of the estate of Byron Buford Fitz, Jr., deceased, from a default judgment rendered on August 2, 1966, wherein A. F. Toungate and wife, appellees, recovered judgment against C. Shimp and wife, Evelyn V. Shimp, B. B. Fitz and Caravan Homes, Inc., defendants, ordering them to deliver to appellees a valid certificate of title of the State of Texas to a Spartan House Trailer, model mobile mansion, serial number 9500320397, purchased by appellees from the parties named, for $200.00 damages and for $1,000.00, attorney’s fees.

Since a default judgment admits only facts which are well pleaded, we will analyze the pleadings of appellee to determine whether they will sustain the judgment rendered. Kothmann v. Lett, 248 S.W.2d 302, Tex.Civ.App., Austin, writ ref. n. r. e.

Appellees alleged that they purchased and fully paid for a trailer house, above described from the defendants, above named; that just prior to the consummation of such sale, appellees were told by Mr. and Mrs. Shimp that they had bought the trailer from Mrs. Shimp’s mother and father; that the trailer was delivered to appellees by Mr. Shimp’s father and another man; that appellees asked for the title papers to the trailer and were informed by Mr. Shimp’s father that Mr. C. Shimp would mail or deliver them in a few days; that such title papers were never delivered to them, although such delivery was often requested. Appellees also alleged that they employed “an attorney to contact the defendants, C. Shimp and Evelyn V. Shimp, in an effort to obtain the title papers to said trailer; that upon doing so, defendant Evelyn V. Shimp advised said attorney that the trailer in question was not owned by them or by the corporation but was owned by defendant B. B. Fitz; that he had been paid by them the proceeds of the sale from plaintiffs and that he had paid the trailer off with a financing company located in Dallas, Texas, and that the title papers would have to be obtained from him; defendant Evelyn V. Shimp further advised said attorney that the business was a partnership at the time of the sale to said plaintiffs and that the partnership had since been dissolved between defendants C. Shimp and Evelyn V. Shimp and defendant B. B. Fitz; that said trailer was never a part of said partnership; that they, C. Shimp and Evelyn V. Shimp, had endeavored to get said B. B. Fitz to deliver the title papers to said trailer to them but that he had failed and refused to do so; that they and defendant B. B. Fitz were no longer in any way associated in business.”

Appellees pleaded that the checks given in payment of the trailer were payable to and endorsed by Caravan Homes, Inc., that the incorporators of Caravan Homes, Inc. were C. Shimp, Evelyn Shimp and B. B. Fitz, and that corporation was extant. Ap-pellees also pleaded that the failure of defendants to deliver such title papers was willful, malicious, wanton and intentional and that they were entitled to recover $10,000.00 in punitive damages, attorney’s fees and costs.

In addition, appellees pleaded that they “have had to expend both time and money in their efforts to obtain such title papers, to their actual damages in the amount of $100.00.” Their prayer was in keeping with their allegations.

In appraising the sufficiency of these allegations to state a cause of action we apply the rule that in order to support a default judgment the petition of plaintiff need not be technically sufficient to state a cause of action and that it is sufficient if its allegations give fair notice.to defendant of the claim asserted and does not affirmatively disclose the invalidity of such claim. Edwards Feed Mill, Inc. v. Johnson, 158 Tex. 313, 311 S.W.2d 232.

It is our opinion that the allegations of appellee’s petition were sufficient to state a cause of action for and to give fair notice to defendants of the nature of their claim for actual and punitive damages and for the other relief granted, except as to attorney’s fees.

It has been held that fees paid attorneys may be considered in fixing the amount of punitive damages in cases involving fraud and malicious conduct. Houston Production Co. v. Taylor, 33 S.W.2d 202, Tex.Civ.App., Beaumont, writ ref.

Here, attorney’s fees were sought in addition to and not as a part of punitive damages. No recovery of punitive damages was allowed. No recovery of attorney’s fees should have been allowed, as no legal basis for their recovery, as such, is shown.

The trial court rendered judgment for $200.00, actual damages, whereas the petition sought recovery of $100.00 actual damages. This was error. Kleiner v. Eubank, 358 S.W.2d 902, Tex.Civ.App., Austin, writ ref. n. r. e.

Since this is a direct appeal by writ of error appellant, who did not actually participate in the trial, is entitled to a full review of the whole case as in cases appealed by parties participating in a trial. It was not necessary that appellant excuse his failure to defend this case in the trial court or to show that he has a meritorious defense. Roberts v. Mullen, 417 S.W.2d 74, Tex.Civ.App., Dallas, and writ granted.

Since, in our opinion, this cause must be reversed and remanded for the indicated errors in the judgment, it is unnecessary for us to determine whether appellant received legal or sufficient notice of the setting of this case for trial.

The judgment of the trial court is reversed and this cause is remanded.

Reversed and remanded.

      . Mr. Fitz died during pendency of this suit in the trial court and Oma Fitz was substituted as a party defendant in his stead.


author: BARROW, Chief Justice.

text:
    Tina VILLANUEVA et vir, Appellants, v. T. L. HARVILLE et al., Appellees.
    No. 14617.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 4, 1967.
    Hector Gonzalez, Beeville, for appellants.
    Lloyd, Lloyd, Dean & Ellzey, Alice, for appellees.
   BARROW, Chief Justice.

This is an appeal from a final judgment denying Tina Villanueva a writ of mandamus to compel the members of the Commissioners Court of Jim Wells County to set aside their order of July 12, 1966, abolishing the offices of Justice of the Peace Precinct 1, Places 1 and 2, and creating the office of Justice of Peace, Precinct 1. In the same order the former Justice of Peace, Place 2, was appointed to the newly created office.

The purpose of the suit was to reinstate appellant, Tina Villanueva, to the office of Justice of the Peace, Precinct 1, Place 1, the post to which she had been re-elected in 1964 for a term to expire December 31, 1968, and to recover compensation due her. A take-nothing judgment was entered after a non-jury trial.

Appellant asserts two points by this appeal: 1. The judgment is against the overwhelming weight of the evidence which established that she was deprived of her office without due process of law. 2. The trial court erred in refusing to admit evidence that the purpose of the order was to satisfy a personal, political vendetta of the members of the Commissioners Court.

Appellant, under her first point, urges that the overwhelming preponderance of the evidence establishes that she was denied the essential elements of due process, to-wit, notice and the opportunity to be heard and defend her property rights in the office in an orderly proceeding. We are unable to review the entire record as required in passing upon this point because of appellant’s failure to comply with Rule 377, Texas Rules of Civil Procedure. The statement of facts filed herein does not contain any of the exhibits introduced in evidence although they are of obvious materiality. Among these exhibits is the order under attack, as well as other minutes and records of the Commissioners Court dealing with the need for two Justices in Precinct 1. Since appellees did not consent to a partial statement of facts, we are required to treat this as an appeal without a statement of facts. Gordon v. Aetna Casualty & Surety Co., 351 S.W.2d 602 (Tex.Civ.App.—Eastland, 1961, writ ref’d).

It is seen from the evidence before us that appellant’s first point is without merit. Appellant was personally present at the meeting and testified fully regarding the resolution before it was adopted. The matter was under consideration by the Commissioners Court for many months and the proposed action was reported in the newspapers. At the hearing of July 12, 1966, appellant presented the Commissioners Court with a petition signed by 925 persons opposing said proposed resolution, which clearly demonstrates that she had notice for some time of the proposed action. Appellant’s first point is overruled.

At the beginning of the trial, the court sustained appellees’ motion in limine and instructed the parties not to offer any evidence other than that bearing upon the question of whether the action of appellees in passing this order served the “convenience of the people.” Appellant offered evidence, by bill of exception, to show that she had worked against appellee Harville in a bitterly contested primary election in his race for re-election as County Judge in May, 1966, and that Harville and one of the Commissioners had made threats against her during that campaign. She also showed that in November, 1965, appellee Harville publicly demonstrated his hostility toward her.

The trial court did not err in excluding this testimony. There was no allegation of fraud and since the official act of ap-pellees was lawful, any improper motive or bad faith in thus acting is wholly immaterial. Guerra v. Weatherly, 291 S.W.2d 493 (Tex.Civ.App.—Waco 1956, no writ); Travis County v. Matthews, 235 S.W.2d 691 (Tex.Civ.App.—Austin 1950, writ ref’d). In any event, in the absence of a complete statement of facts, we could not determine that such action amounted to reversible error. Rule 434, T.R.C.P.; Gordon v. Aetna Casualty & Surety Co., supra.

The judgment of the trial court is affirmed.