author: BATEMAN, Justice.

text:
    Horace SHUFF et al., Appellants, v. Jack McKNIGHT et al., Appellees.
    No. 16663.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 18, 1966.
    Rehearing Denied March 18, 1966.
    L. F. Sanders, Canton, for appellants.
    Enoch G. Fletcher, Grand Saline, for ap-pellees.
   BATEMAN, Justice.

The appellants Alice Newsom Shuff and Frances Newsom Barlow, joined by their husbands, sued Jack McKnight to partition fourteen acres of land, alleging that Mrs. Shuff, Mrs. Barlow and McKnight each owned an undivided one-third interest therein. McKnight answered by general denial and the three, five and ten year statutes of limitation. He also impleaded Dorothea F. Farris and her husband, alleging that they had conveyed all of the land to him by general warranty deed, and that if all he received from them was a one-third interest he should have judgment over against them for two-thirds of the $800 he had paid for the land, plus interest and $250 for valuable improvements. The Farrises answered by general denial and a plea of “not guilty.” McKnight died and the other appellees were brought in as defendants in his stead. They answered by a plea of “not guilty” and specifically denied that appellants had any interest in any land owned by them. They also pled the five and ten year statutes of limitation, laches and, as against the Farrises on the cross-action, for two-thirds of the consideration paid for the land and for improvements in the event the plaintiffs should recover.

On the trial, when the plaintiffs (appellants) rested the court instructed the jury to return a verdict for the defendants. From the “take nothing” judgment rendered thereon the appellants seek reversal on three points of error.

Before discussing these points we deem it proper to say that after carefully studying the entire record we conclude that the directed verdict was correct and that we should affirm the judgment. Although appellants sue for partition of land which they say is owned by the parties in undivided portions, the appellees in their answer deny that appellants own any interest whatever in the land. Recognizing that their asserted ownership had been challenged, the appellants in a motion for a survey alleged that “by the pleadings of defendants this suit has now become in the nature of a trespass to try title suit.”

Whether the suit be one for partition or in trespass to try title, appellants’ alleged ownership of an interest in the land became an issue on which the appellants had the burden of proving joint ownership and equal right to possession with the other alleged joint owners. Banks v. Blake, Tex. Civ.App., 143 S.W. 1183, no wr. hist.; Lane v. Hughes, Tex.Civ.App., 228 S.W.2d 986, no wr. hist.; 32 Tex.Jur., Partition, § 16, p. 160. They failed to carry this burden. Appellants proved that a tract of 320 acres in Van Zandt County was patented to Henry Creagle in 1854; that in 1921 Uly Clifford and wife conveyed a tract of four acres and a tract of ten acres in the H. Creagle Survey, Van Zandt County, to Mrs. Dorothea Francis Dyer, who died in 1922 having been married only once and then to George H. Dyer, who died in about 1936; that the Dyers had only one child, Maude Mae Dyer, who married only once and then to Henry L. Newsom; that the only children born to that union were the appellants, Mrs. Shuff and Mrs. Barlow, and the cross-defendant Mrs. Farris.

It would appear in the absence of evidence to the contrary that the land became community property of George and Dorothea Dyer. Whether either of them devised this land by will or whether either of them died intestate is not shown. Neither is there any evidence that George Dyer did not remarry after Dorothea Dyer’s death, or that he did not beget or adopt other children. Certainly, there is no evidence that their daughter, Maude Mae Newsom, ever acquired or claimed any interest in the property.

The record is likewise silent as to whether Henry L. Newsom died or is still living, or as to whether he or his wife, Maude Mae, died testate or intestate, or as to whether Jack McKnight died, testate or intestate, or whether there was administration, or necessity for administration, on any of the estates of Mr. or Mrs. Dyer, or Mr. or Mrs. Newsom, or Jack McKnight.

There were several tax certificates and receipts and redemption receipts introduced showing payment of taxes on tracts of 14 and 24 acres in the Creagle Survey for years 1950-1957, some paid by Jack McKnight, some by B. M. Barlow, some by Frances Barlow and some by Dorothy Cran-ford, but these were not shown to refer to the land in question.

Appellants contend that a former trial of the case resulted in a judgment dated August 2, 1958 awarding to them a two-thirds interest in the land, which judgment recited appellees’ notice of appeal; that the order of October 4, 1958 vacating this judgment came too late, that the judgment became final at the end of thirty days and that the court erred “in failing to recognize and honor” it. There is no merit in this contention. The motion for new trial was timely filed on August 9, 1958 and thereafter, on September 19, 1958, the written agreement of the parties, postponing the decision of the motion to a day certain specifically set out in the agreement, was filed with the clerk and approved by the judge. All of this was in compliance with Rule 329-b, Texas Rules of Civil Procedure. Appellants therefore have failed to demonstrate that the order setting aside the 1958 judgment was void or that they have any rights under it.

Moreover, appellants gave no notice by their pleadings that they were relying upon the 1958 judgment but, on the contrary, elected to try the case anew on Its merits. Any rights they may possibly have had under the former judgment were therefore waived.

All of appellants’ points of error are overruled and the judgment is

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    DeWitt BROWN, Appellant, v. GRAYSON ENTERPRISES, INC., et al., Appellees.
    No. 16658.
    Court of Civil Appeals of Texas. Dallas.
    March 11, 1966.
    Rehearing Denied April 8, 1966.

      G. H. Kelsoe, Jr., Dallas, for appellant.
    Douglas E. Bergman and John W. Clark, Jr., Dallas, for appellees.
   BATEMAN, Justice.

Our former opinion is withdrawn and the following substituted for it.

The appellant DeWitt Brown sued the appellees Grayson Enterprises, Inc. and Theodore Shanbaum for damages for the breach of an alleged lifetime employment contract. The corporate defendant (hereinafter called Grayson) filed a counterclaim against appellant on a note. The trial court rendered summary judgment that appellant take nothing as against either defendant and that Grayson recover against appellant on its counterclaim. We affirm.

The summary judgment was pursuant to Rule 166-A, Vernon’s Texas Rules of Civil Procedure, and our review of it must be within certain guidelines laid down by our Supreme Court and summarized in Great American Reserve Ins. Co; v. San Antonio Plumbing Supply Co., Tex.Sup. 1965, 391 S.W.2d 41, 47, in substance as follows:

1. Summary judgment is authorized only when it is shown that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

2. The burden of proof is on the movant to establish the absence of any such issue.

3. All conflicts in the evidence are disregarded, and the court must view the evidence in the light most favorable to the party opposing the motion, accepting as true all evidence which tends to support his position.

4. The court must resolve all doubts as to the existence of a genuine issue of a material fact against the movant.

5. If the motion involves the credibility of affiants or deponents, or the weight of their statements, or a mere ground of inference, the motion should be denied.

Appellant does not attack that part of the judgment against him on the counterclaim, but appeals from the remainder of the judgment on eight points of error contending that there were genuine issues of facts (1) as to whether a lifetime employment contract was made between appellant and Grayson, (2) as to whether Shanbaum had as a personal undertaking promised appellant a job for life with Grayson, (3) as to estoppel of Grayson to deny the existence of the contract, (4) on delegation of authority to officers by the board of directors for the making of such contracts, (5) as to actual and apparent authority of officers to make the contract, (6) as to ratification of the contract by Grayson’s board of directors, (7) as to waiver by the board of directors of its right to approve or make such contracts, and (8) as to fraud.

Appellant alleged that he had been an employee of Grayson Enterprises, Inc. for several years and, with the knowledge and consent of Grayson, also operated his own bookkeeping and accounting business in his home in Wichita Falls, Texas, deriving from such separate business an average annual income of $7,500; that in consideration of his abandoning this separate business and moving to Lubbock, Texas, the ap-pellees orally promised him lifetime employment.

Appellees’ verified motion for summary judgment alleged, inter alia, that Grayson could not be held to the alleged promise because the pleadings, exhibits and depositions showed that it was not authorized, approved, ratified or confirmed by either Grayson’s directors or stockholders.

In his affidavit opposing the motion and in his deposition appellant made the following sworn statements: He was employed by Grayson as a bookkeeper from 1955 to July 31, 1963, at Wichita Falls until December 1961, when he was transferred to Lubbock. He was transferred to Dallas in February 1963 and back to Lubbock in May 1963. Until April 1963 Grayson’s operations were handled and managed exclusively by Sidney Grayson, who used the title of President, and Nathan Levine, who used the title of General Manager, both of whom were also shareholders and directors of the company and hired and fired all employees and set their salaries, which responsibility was left entirely to them; and their exercise of the authority was never questioned by the other directors. These men had apparent authority to hire and fire anyone they chose, and appellant relied on this apparent authority, having been told nothing to the contrary. During his employment in Wichita Falls and Lubbock appellant and his wife operated a separate bookkeeping business in Wichita Falls under express authority from Levine, but shortly after moving to Dallas in February 1963 Levine asked him to give up this outside business so as to have more time for the affairs of the company. When he explained to Levine that he needed this outside business for economic security Levine assured him that he could count upon a job with the company for the rest of his life and therefore would no longer need the outside business. Wholly in reliance upon this assurance appellant agreed to give up the outside business, and would not have done so without the assurance.

In April 1963 there was some conflict between the shareholders and directors of the company, and Shanbaum became Chairman of the Board and Chief Executive Officer, retaining also his position as Treasurer. Sidney Grayson continued as President and Levine as Vice-President. Shortly thereafter appellant told Shan-baum that he was concerned about his future with the company, and Shanbaum assured him he had nothing to worry about, that his future with the company was assured and that he had a job with the company as long as he wanted it. A few days later Shanbaum asked him to transfer back to Lubbock, to which he agreed subject to being satisfied about his position and future with the company. In reply, Shanbaum promised him a job for the rest of his life; and in addition Shanbaum told him that he would be his (Shanbaum’s) personal representative in Lubbock, looking out for his interests there, and would report directly to him. In reliance upon these statements he agreed to return to Lubbock, and would not have done so except for such statements. He believed Shanbaum was being truthful and honest in making these representations and had full authority to do so on behalf of Grayson. In July 1963 he was fired by Shanbaum, “arbitrarily and summarily,” and without any action by the board of directors. Appellant was 61 years of age when his deposition was taken November 17, 1964.

Shanbaum in his deposition denied having even discussed appellant’s employment status with him, but in accordance with the foregoing rules, we disregard this conflict and accept appellant’s sworn statements of facts as true. Even so, it is obvious that if Shanbaum made the statements attributed to him by appellant he was doing so on behalf of the corporation, and not offering to employ appellant to work for him personally, and that appellant so understood it. For this reason we think the trial court correctly sustained Shanbaum’s motion for summary judgment. Appellant’s second point of error is overruled.

Appellant contends that the corporations should be held bound by the alleged contract on the grounds of estoppel, waiver and ratification. However, for the corporation to be estopped to repudiate the contract, or to have waived its right to do so, or to be held to have ratified it, the corporation must have had knowledge of it. Unless the corporation can be found to have knowingly caused or permitted appellant to suffer an injury or detriment in reliance upon the contract, it cannot properly be said to be estopped to deny its liability under it. Thompson v. Crim, Tex.Civ.App., 103 S.W.2d 855, affirmed 132 Tex. 586, 126 S.W.2d 18; Richey v. Miller, 142 Tex. 274, 177 S.W.2d 255, 170 A.L.R. 832; Hallmark v. United Fidelity Life Ins. Co., 155 Tex. 291, 286 S.W.2d 133.

On the same principle, it cannot be said to have ratified a contract it knew nothing about. General Paint Corp. v. Kramer, 10 Cir., 57 F.2d 698, cert. den. 287 U.S. 605, 53 S.Ct. 10, 77 L.Ed. 526, wherein it was said: “ * * * the cornerstone of ratification is knowledge of all material facts.” At least, there should be such evidence as to justify the presumption that the corporation did have such knowledge. Almar-York Co. v. Fort Worth National Bank, Tex.Civ.App., 374 S.W.2d 940, wr. ref. n. r. e. And unless one’s right is known to him he cannot be said to have waived it. As there was no such evidence, these contentions are overruled.

Our above statement, that we would be compelled to accept appellant’s sworn statements as true, is subject to the qualification that, as set forth in subdivision (e) of Rule 166-A, T.R.C.P., statements made in support of or in opposition to motions for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” In the light of this limitation, we conclude that appellant’s sworn statement that Grayson’s officers had “apparent authority” to hire and fire employees as they chose, is a legal conclusion rather than a statement of fact and would not be admissible in evidence. Moreover, it was not shown affirmatively that appellant was competent to testify thereto. Therefore, the statement was properly disregarded by the trial court. Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, wr. ref.

Moreover, appellant would not be entitled to rely on such “apparent authority” unless he could also show that the alleged contract in question was one usually made by such officers in the ordinary course of the corporation’s business. In other words, under the law, the general authority of such officers to employ embodies only the right to make contracts of a usual and reasonable sort. There is no evidence in the record before us to justify an ordinary competent person, familiar with the situation and with the ordinary methods of business, considering the matter in the light of everyday experience, to say that the making of this contract by either Levine or Shanbaum formed a natural and ordinary part of the management of the corporation’s affairs. Babicora Development Co. v. Edelman, Tex.Civ.App., 54 S.W.2d 552, 555, wr. dism.

While our Texas courts do not seem to have passed directly on this question, as it relates to lifetime employment contracts, we think the weight of authority is to the effect that, in the absence of express authority, corporate officers and agents lack the power or authority to hire employees for life. See the extensive annotation in 28 A.L.R.2d 929, and Pioneer Specialties, Inc. v. Nelson, 161 Tex. 244, 339 S.W.2d 199. The power, authority and responsibility for handling the business affairs of corporations generally are conferred and imposed by law upon the board of directors. Art. 2.31, Texas Business Corporation Act, V.A.T.S. The owners of the corporation, the shareholders, have the right to know that the board of directors will not delegate to the officers authority to make extraordinary contracts, which are not usually made in the ordinary course of the corporate business.

We agree with the reasoning of the Court of Appeals of Maryland in Chesapeake & Potomac Tel. Co. of Baltimore City v. Murray, 198 Md. 526, 84 A.2d 870, 872, 28 A.L.R.2d 920, which was a case involving an alleged employment contract for life, wherein the court said:

“We have announced the rule that a general manager or a managing agent of a corporation ordinarily has implied authority to hire employees when the employment is usual and necessary and within the scope of the corporate purposes. Atholwood Development Co. v. Houston, 179 Md. 441, 445, 19 A.2d 706. But it is also accepted that an officer of a corporation ordinarily has no implied authority to bind it by a contract of employment for life. The law contemplates the right of stockholders to change the management of the- affairs of their corporation periodically by providing for the election of a board of directors. If corporate officers could enter into contracts giving persons of their selection employment for life, the directors might be deprived' of their authority. To justify the Court in finding such an employment, there must be proof that there was definite authority, by by-law, action by the board of directors, or otherwise, to make such a contract. Accordingly, when an employee of a corporation claims that he has been employed on a lifetime basis, he must show either (1) that the officer who made the contract of employment acted on behalf of the corporation with authority for that purpose, or (2) that the contract was ratified by the corporation or its fruits were accepted with full knowledge of the circumstances of their acquisition.”

In Leak v. Halaby Galleries, Tex.Civ. App., 49 S.W.2d 58, wr. ref., the plaintiff contended that he had been employed as office manager by the defendant corporation, acting by and through its president, who owned nearly all of the stock. The contract was in writing and provided employment of the plaintiff for nearly four years, and this court held that, even though the president owned substantially all of the stock of the corporation and was given power of supervision over the affairs and other officers of the corporation, with authority to sign stock certificates, written contracts and checks of the corporation, and to perform such other duties incident to his office, he had no authority, express or implied, to make the contract for three years and eight months. We said: “The general supervision over the affairs of the corporation given the president related to the usual and ordinary matters and contracts, but did not authorize him to bind the corporation to the performance of the unusual contract under consideration.”

Appellant does not seriously contend that either Levine or Shanbaum had actual authority from the board of directors or under the bylaws to make the alleged contract, and the affirmative showing made by appellees clearly established that they had no such actual authority. Appellant having relied solely upon the alleged apparent, ostensible, or implied authority of these officers to make the lifetime employment contract on behalf of the corporation, and since we have held that under the facts in the record before us this corporation would not be liable under such an extraordinary, unusual contract on the doctrine of implied, ostensible or apparent authority, and since there was no evidence raising fact issues as to estoppel, ratification, waiver or fraud, it must follow that there was no genuine issue as to any material fact and that the trial court did not err in sustaining the motions of both ap-pellees for summary judgment.

The judgment appealed from is accordingly

Affirmed.


author: HIGHTOWER, Chief Justice.

text:
    Ernest REUTER, Jr., d/b/a Reuter’s Building Material and Supply, and Caesar Parker, Appellants, v. Charles R. GILBREATH, Appellee.
    No. 6674.
    Court of Civil Appeals of Texas. Beaumont.
    March 10, 1966.
    Rehearing Denied April 6, 1966.

      John H. Benckenstein, Beaumont, for appellants.
    Richard McDaniel, Winnie, for appellee.
   HIGHTOWER, Chief Justice.

This lawsuit, brought to recover personal injury and property damages, arose out of a collision in Woodville, Texas, between an automobile driven by appellee and a cement mixer truck being driven by one of the appellants, Caesar Parker. Both vehicles were proceeding in the same northwesterly direction on State Highway 287. Parker was an employee of the other appellant, and was acting within the course and scope of his employment at the time of the collision. Trial was to a jury and resulted in a judgment for appellee in the amount of $5,550.00. The parties will be referred to as they were in the trial court or by name.

Defendants first brief and argue their points of error 2 through 5 together. They refer to the answer of the jury to Special Issue No. 25 which was predicated upon an affirmative answer to Special Issue No. 24, which inquired of the jury as to whether the plaintiff drove his automobile to the left side of the roadway in an attempt to pass the truck when he was approaching within 100 feet of the intersection of Highway 287 and Myrtle Street. The jury’s answer to said issue was “We do”. Special Issue No. 25 was the causation issue, to which the jury answered “We do not”.

In its first series of points defendants contend (2) the court erred in refusing their motion to disregard the answer to Special Issue No. 25, (3) in refusing its motion for new trial because of no evidence, (4) insufficient evidence, and (5) the finding was against the great weight and preponderance of the evidence so as to be manifestly unjust.

Several of defendants’ other points also complain of the court’s error in overruling their motion to disregard several other findings of the jury, and by their first point, which they have briefed last, they complain of the court’s error in refusing their motion non obstante veredicto. We shall treat certain aspects of these latter contentions in the latter part of the opinion after first treating contentions relating to the evidence to support all jury findings complained of.

We summarily overrule defendants’ points of no evidence and insufficient evidence to support the answer to Issue No. 25 because, by first determining the contention of whether the answer of the jury is against the great weight and preponderance of the evidence so as to be manifestly wrong, we must consider all the evidence, favorable and unfavorable to the answer of the jury, and after such consideration, we feel it is self-evident that said points are without merit.

The evidence favorable to defendants is:

The collision occurred at the intersection of Myrtle Street and U. S. Highway 287 within the city limits of Woodville, Tyler County, Texas, at about 1:00 p. m. At that point Highway 287 runs approximately southeast and northwest, and Myrtle Street runs approximately north and south. Highway 287 at said intersection is paved with a center stripe, 20 feet wide, with shoulders on each side wide enough for a car to get on; Myrtle Street intersects said highway, approximately at right angles and it is about the bottom of the hill and level at the intersection. There is a street sign there that says “Myrtle Street” about IS feet from the edge of the intersection; the sign is about IS feet west of Myrtle Street and about 42 feet from the hard surfaced highway. The sign is 6 inches wide and 20 inches long. There are no branches or anything else to keep one going west from seeing the sign “Myrtle Street”. There are homes along that area. It had been raining before the accident; the streets were wet, and slippery. The defendant Parker was driving a cement mixer truck, more fully described hereinafter, taking concrete from the plant near the depot in Woodville, Texas, to a house foundation on Myrtle Street. The cement mixer truck was green and the drum was orange. The truck was equipped with mechanical turn signals to indicate the direction the truck would turn — blinker lights on each side, located in front and in back on each side; on the front they were mounted on the tops of the fenders; on the rear of the truck the signal lights were between the dual wheels. Just prior to the collision Parker was driving approximately 20 m. p. h., on his right, the north lane. Parker saw the plaintiff’s car before the collision at the top of the hill southeast of Myrtle Street, towards Woodville, about 300 feet away — in his rear view mirror. He was approximately 300 feet from Myrtle Street when he put his signal lights on, indicating a left turn. The light buttons on the inside showed that the signal lights were burning, blinking, and he could see the signal light on the left front fender burning and blinking. He continued to watch plaintiff’s car behind him; it made no move to pass; and when Parker was about 20 feet from the intersection, he looked ahead and seeing no traffic, he began to make his left turn from the highway into Myrtle Street when the collision occurred — about S or 6 feet from the intersection. At, the time of the collision defendants’ truck was in the right lane, ready to make the left turn, when it was hit, appellee’s car knocked him right into the intersection. At that time he was going 4 to 5 m. p. h. Plaintiff did not see any red lights on the back of defendants’ truck, indicating that the track was applying its brakes. The impact of plaintiff’s car with defendants’ truck was with such great force that the front end of the truck reared up — and kind of jumped.

Plaintiff was driving a 1959 Oldsmobile on a Friday, en route to Fort Worth, Texas, from Fort Polk, Louisiana, on a three-day pass. He did not stop for lunch; he picked up some cakes from a service station. He was traveling by himself. He was coming from the northeast and was driving in a northwesterly direction, on a sort of straight-away, straight on each side of the intersection where the collision occurred, for about a quarter of a mile, on a smooth black topped highway. The truck was in the highway ahead of him, going in the same direction — northwesterly, and he saw it about 300 yards ahead of him. At that time he and the truck were in the right hand lane. He didn’t know how fast he was driving. The truck was going slower than he and he was overtaking the truck. He had just come over the hill; he guessed that he was on top of the hill; and as he started down the hill, he saw the truck down the hill. He was not meeting any traffic; his left lane was clear, and the only thing that he could see in his right lane was the truck. There was nothing about the weather that interfered with his view. He speeded his car up to go around the truck. He guessed he was going about 45 m. p. h. when he stepped on the gas to pass the truck. He couldn’t say for sure that before the collision the truck had crossed the centerline or any part of it. When plaintiff did apply his brakes, he slid. The road was like glass, and he applied his brakes when he was about two car lengths away, and his car didn’t slow down. Immediately after the accident the signal lights on the left front fender of the truck were still burning, still blinking; the signal lights on the rear of the truck were knocked off; the mud -flaps and the license plates on the rear of the truck were knocked off; and the frame of the truck was knocked out of alignment. There were no marks on the side of the truck; it was not hit broadside; the only marks on the truck were on the rear of it. The Chief of Police investigating the collision found, when he arrived at the scene, defendants’ truek sitting in the middle of Myrtle Street and the plaintiff’s car in the ditch. He found dirt on each side of the centerline of the highway and skid marks on each side of the centerline. Most of the skid marks were in the left lane. There were some in the right lane which started there but none at the point of impact. All of the skid marks were within 100 feet of said intersection. Inside of plaintiff’s car was a ^package of cinnamon rolls or some kind of sweet rolls, a pint size of pasteboard carton of milk that had been opened and some of it spilled in the car; there was a coke bottle on the floorboard with some coke in it, and food was sprayed across the windshield.

The evidence favorable to the answer of the jury to Issue No. 25 is: The two vehicles involved in the collision were both proceeding in a northwesterly direction on Highway 287 a few seconds before the collision. Myrtle Street runs approximately north and south, and it intersects Highway 287 on the southwestern edge of said highway. Myrtle Street does not traverse the highway. A vehicle traveling in a northwesterly direction on said highway that turned into Myrtle Street would have had to make a very sharp turn, the angle being approximately 135 degrees. The truck which defendant Parker was driving was a cement mixer truck. It had 10 wheels, was approximately 24 feet long and was 7 feet 10½ inches wide. The truck itself weighed about 18,000 pounds empty, and the wet cement it carried weighed about 4,500 pounds per cubic yard. Mr. Reuter said the truck probably had 4 or 5 yards of cement on it. He also testified that it had to be driven at an extremely slow rate of speed to make a sharp turn because it was top-heavy. The plaintiff was a soldier who was stationed at Fort Polk, Louisiana. He was not familiar with the highways and streets in Woodville, and did not know that Myrtle Street intersected Highway 287 at said point. The sign “Myrtle Street”, of the dimensions hereinabove stated, is located 42 feet from the southwestern side of the hard surface 'of Highway 287 and 15 feet west of said Myrtle Street. The sign is under a large liveoak tree, the limbs of which, heavy with foliage, hung down behind the sign. The Plaintiff’s attention was on the highway and truck ahead of him. The truck appeared to him to be stopping in the right hand lane of traffic and nearer to the right hand edge of the highway than it was to the centerline. It gave no signal that it was about to make a left turn. Plaintiff attempted to avoid striking the truck by attempting to go around the truck on its left, since there was no traffic approaching from the other direction, and since there had been no signal from the truck driver that he intended to turn left. Plaintiff laid down about 60 feet of skid marks with his car immediately before the collision, and at the time the skidding started all four wheels of the plaintiff’s car were in the right hand lane of the highway in the direction in which he was going. There were approximately 25 feet of the skid marks in the right hand lane and then approximately 35 feet of skid marks in the left hand lane. There is a clear inference that the plaintiff might have been in the left hand lane prior to the time the brakes took effect, but at the time the brakes took effect he was definitely in the right hand lane in the direction in which he was traveling. The car was sliding on the right hand pavement at the time he crossed into the left hand lane. The truck’s rear wheels left smear marks at the point of impact and these smear marks indicated that the right rear wheels of the truck were in the right hand lane and the left rear wheels were in the left lane at the time of the impact. There were no street or highway signs or markers to indicate a “no passing” zone. The plaintiff had just passed a highway marker which indicated a speed limit of SO m. p. h. for this zone. The defendant Parker gave no signal of his intention to turn left but appeared to plaintiff to be merely stopping in the right hand portion of the right hand lane. From the testimony of Parker, it is apparent that he practically stopped, and the testimony of Mr. Reuter indicates that he would have had to almost stop in order to make the sharp turn to the left at an angle of 13S degrees.

In most cases our courts have always held that the question of proximate cause is a fact question for the jury’s determination. Proximate cause means not only cause in fact, but the element of foreseeability is equally important. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560.

Plaintiff was a stranger unacquainted with the layout of the streets in the City of Woodville. The jury could, and inferentially did, conclude that the small Myrtle Street sign was difficult to see and would not have been observed by an ordinarily prudent person under the circumstances in this case; that a prudent person would have been watching the highway and the truck, as the plaintiff was doing. The absence of a “no passing” zone, the position of defendants’ truck and the testimony that there was no left rear signal light burning on the truck was evidence which would reasonably tend to strongly influence the minds of a jury. They could reasonably have concluded that it appeared to plaintiff that Parker had stopped his truck with no intention of making a left turn and that there was nothing that would have caused a reasonably prudent person to have thought that by going to the left of the truck a collision would occur; that attempting to turn left appeared to plaintiff to be the best way to prevent a collision and that at such time it appeared to him that a collision would occur if he didn’t go to the left. Then again, we have the physical evidence that the skid marks showed that plaintiff’s car had skidded into the left lane. As in most cases, the evidence was conflicting and it was the jury’s prerogative and duty to determine such conflict, they being the judges of the facts and of the credibility of the witnesses. Defendants’ points 2 through 5 are overruled.

Relative to defendants’ points of error 6 through 9, the jury found in answer to Special Issue 12 that plaintiff “immediately before the collision in question failed to give an audible warning with his horn of his intention to pass defendants’ truck”. They also found that such failure was not negligence. The causation issue predicated on affirmative finding to the negligence issue was not answered. Defendants’ points 6 through 9 are in substance: (6) that the court erred in not disregarding the jury answer to Special Issue 13; (7) that plaintiff’s failure to sound his horn was negligence per se; (8) the evidence was insufficient to support said answer; and (9) the same was against the great weight and preponderance of the evidence.

Again, we relegate a determination of defendants’ contentions relating only to pure questions of law to the latter part of the opinion and presently deal only with the contentions relating to the sufficiency of the evidence.

As we did in treating defendants’ points of error relating to Special Issue No. 25, we summarily overrule their points of no evidence and insufficient evidence to support the jury’s answer to Special Issue 13 for the same reason we did in treating such contentions relative to Special Issue 25. We first set forth the evidence favorable to defendants, omitting that which has been herein-above referred to:

Plaintiff admitted that before making an attempt to pass the truck he did not sound his horn nor give an audible warning of his intention to pass defendants’ truck proceeding in the same direction in his right lane.

Again, omitting evidence which has been hereinabove referred to, we allude to the evidence most favorable to the jury’s answer to Special Issue 13:

The defendant Parker testified that, contrary to statute, he moved the truck to the right hand edge of the right hand lane in preparation for making his turn to the left. The statute recognizes that a left turn be made from near the centerline; Vernon’s Ann.Civ.St. Art. 6701d, § 65(b) and § 68. Plaintiff was in his own lane of traffic when he applied his brakes and then slid into the left lane. Under all the evidence and reasoning hereinbefore set out, the jury could reasonably have concluded that it appeared to the plaintiff at first that the truck was pulling over to the right hand side of the highway to a stopped position but that when plaintiff suddenly concluded that it was about to make a left turn across the highway and block both lanes of traffic, he used his foot to brake the car and used both hands in trying to steer the car in order to avoid a collision; he was able to keep his car on the highway, but in doing so he had to use both hands on the wheel and had no way of blowing the horn and that there was no time for cool, calm deliberation.

In answering the negligence issue the jury was authorized to determine whether or not the plaintiff’s actions met the standards of the ordinarily prudent man under the circumstances. We conclude that in answering Special Issue 13 the jury did not abuse its discretion or prerogative and that said answer is not against the great weight and preponderance of the evidence. Accordingly, all the defendants’ points relating to the evidence are overruled. Ft. Worth & D. Ry. Co. v. Barlow, Tex.Civ.App., 263 S.W.2d 278.

In answer to Special Issue 17 the jury found plaintiff did not fail to keep a proper lookout as that term was defined in the charge. The causation issue (18) was not answered. By points of error 10 through 12 the defendants contend: no, insufficient, and against the great weight and preponderance of the evidence.

Again, we refer to all the evidence here-inabove set forth and conclude that the same presented a fact issue on proper lookout and that the jury’s answer to Issue 17 was supported by and was not against the great weight and preponderance of the evidence.

In answer to Special Issue 19 the jury found that plaintiff did not fail to have his automobile under proper control. The usual instruction on proper control was contained in the. charge. The causation issue (20) was conditioned on an affirmative answer to Special Issue 19 and was unanswered. By points of error 13 through 15 defendants contend there was no evidence to support said answer; the evidence was insufficient; and against the great weight and preponderance of the evidence.

We again refer to all the evidence favorable to defendants hereinbefore set out. Additionally, there is evidence in the record that plaintiff saw defendants’ truck about 300 yards ahead of him as he came over a hill; the truck was slowing down and he was overtaking it; he was about two car-lengths from the truck when he applied his brakes. Plaintiff testified that at the time of the impact the truck was in the right lane, and that after he started around the truck he put his brakes on and at that time he was in the left lane and his tires started skidding right then. He struck the left rear corner of defendants’ truck.

We have heretofore set out the testimony with reference to the skid marks of plaintiff’s car at the scene which were testified to by the Chief of Police of Woodville. The jury was entitled to believe that the skid marks more accurately portrayed what actually happened than was portrayed by the testimony of the plaintiff from memory at the time of trial. Considering all the evidence, both favorable and unfavorable to defendants, we hold the jury’s answer to Special Issue 19 was not against the great weight and preponderance of the evidence. Accordingly, defendants’ other points regarding the evidence are overruled.

Also, we have observed that in addition to the general issue on proper control, the trial court, at the request of defendants, submitted various shades of the same issue separately and in answer to each of them the jury failed to find: that plaintiff was operating his car at an excessive speed; that plaintiff was following the truck too closely; that plaintiff’s failure to turn his car to the right immediately before the collision was negligence; the failure of plaintiff to stop his car was negligence. Defendants have not complained on appeal with reference to any of these answers by the jury and we accept them as correct. Taken together, they fairly presented to the jury the issue of proper control under the circumstances, thus depriving defendants of any advantage in complaining of the jury’s answer to the general issue on proper control.

In answer to Special Issue 1 the jury found that the driver of the truck, Parker, failed to keep a proper lookout and that (2) such failure was a proximate cause, etc. By points of error 16 through 18 defendants contend that the court erred in overruling their motion to disregard said answer; that there was no evidence to support the same, and that the same is contrary to the great weight and preponderance of the evidence.

Presently treating the evidence points only, we look for additional evidence favorable to defendants’ contentions. Parker was operating his truck at approximately 20 m. p. h. in his right lane of traffic. He first saw plaintiff’s car before the accident at the top of the hill behind him. He observed through his rear view mirror that plaintiff was driving in the same direction and in his right lane of traffic. He continued to watch plaintiff’s car which made no move at that time to pass the truck. When Parker was within 20 feet of the intersection of said highway and Myrtle Street, he looked ahead and, seeing no traffic coming toward him, he was getting ready to make a turn to the left when plaintiff ran into his left rear end.

With reference to the evidence unfavorable to defendants’ contentions, we refer to all the foregoing evidence which we have heretofore held presented fact questions for the jury, i. e., it appeared to plaintiff defendant Parker was traveling at a very low rate of speed preparatory to making his left hand turn; it appeared to plaintiff he was coming to a stop nearer to the right hand edge of the highway than it was to the centerline; it gave no signal that it was about to make a left turn, and other evidence favorable to the jury’s answer to be found under our summarization of the sqme discussing the jury’s answer to Special Issue 25 hereinbefore. The evidence presented a fact issue for the jury’s determination and defendants’ points of error relating to the evidence are overruled, it being our opinion that the jury’s answer to Special Issue 1 was not against the great weight and preponderance of the evidence so as to be manifestly unjust.

In answer to Special Issue 3 the jury found that Parker turned the truck across the centerline of the highway when such movement could not be made with safety. No negligence issue was submitted. The causation issue (4), predicated on an affirmative answer to Special Issue 3, was answered affirmatively. By points of error 19 through 21 defendants complain that the court erred in refusing their motion to disregard the answer to Special Issue 3; that the evidence was conclusive that turning the truck across the centerline (if he did so) could be made safely and that said answer was against the great weight and preponderance of the evidence. In their briefs, defendants only argue that Parker started to make his left turn when such move could be made with safety.

We think that all the foregoing evidence and reasoning, particularly that relating to defendants’ contentions that Parker did not fail to keep a proper lookout, sufficiently disposes of defendants’ evidence points and they are overruled in the opinion that the answer to Special Issue 3 is not against the great weight and preponderance of the evidence.

In answer to Special Issue 5 the jury found that Parker failed to signal his intention to turn left; that such failure was negligence; such failure was negligence and a proximate cause of the collision. Defendants contend that the court erred in overruling their motion to disregard the jury’s answer to Special Issue S; that there was no evidence to support said answer; that if there was, the same was insufficient and against the great weight and preponderance of the evidence.

We believe that we have sufficiently set out the conflicting evidence in the record upon which the jury could have found favorably or unfavorably on the liability issues relating to the defendants. They simply used their prerogative to give full credibility to the evidence unfavorable to the defendants. We hold that the jury’s answer to Special Issue 5 was not contrary to the great weight and preponderance of the evidence and all of the defendants’ points relating to the evidence are overruled.

In the fourth paragraph of this opinion we have previously stated that after a determination of defendants’ points of error relating to the evidence, we would determine certain other facets of defendants’ points later, which we now proceed to do. These facets consist of errors complained of in defendants’ motion to disregard certain of the jury’s answers; their motion non obstante veredicto; and their motion for new trial. They relate to contentions in plaintiff’s original brief that he had proved that he was reasonably excused of the statutory violations which the jury had found he had committed, an example being the jury’s answer to Special Issue 25, which answer was that plaintiff drove his automobile to the left side of the roadway in an attempt to pass the truck when he was approaching within 100 feet of the intersection of Highway 287 and Myrtle Street. This is clearly in violation of Art. 6701d, § 57(a) 2. It has been noted that the jury also found plaintiff guilty of several other statutory violations but failed to find negligence or causation involved. In disposing of the arguments relating to these various statutory violations, we will confine our discussion solely to the answer of the jury to Special Issue 25.

In reply to plaintiff’s contention that he had proved he was reasonably excused of such violation, we quote from defendants’ second supplemental brief regarding same:

“Under Appellee’s Counter Points 2 through 7 inclusive, page 12 of his brief, he argues that ‘His being on the left side of the road was reasonably excused. This would apply even if a penal statute had been violated.’ On said page 12 and elsewhere the Appellee argues that the trial court did not submit, nor was he requested to submit an issue to have determined if the plaintiff’s being on the left side of the road was negligence and that under the evidence of the case such a finding was necessary to establish defendants’ purported defense, and there being no such finding and no request for such an issue to be determined, it is to be presumed that the trial court found for the plaintiff on the matter. Further that an act under statute would ordinarily be negligence per se may not be even ordinary negligence at common law under the particular circumstances of a particular case. In answer to such argument made by Appellee, Appellants call the Court’s attention to the following: (1) Appellants specifically plead the various acts of contributory negligence on the part of Appellee; (2) Appellee did not plead excuse; (3) Appellee’s pleadings gave no notice that he was relying upon excuse as a justification for the claimed violation; and (4) Appellee did not request the submission of a special issue on excuse or a special issue on common law negligence in respect to the claimed acts of statutory violations.”

Defendants then refer to the decision of Rash v. Ross, Tex.Civ.App., 371 S.W.2d 109, ref. n. r. e., and argue that such decision is authority that plaintiff must have pleaded and requested the submission of a special issue on excuse or on common law negligence in respect to the acts of statutory violations.

First we observe that in the case at bar that the plaintiff had pleaded that the wreck was proximately caused by various acts and omissions of negligence of the truck driver, some of which were turning the truck in front of plaintiff’s car without adequate warning; turning the truck from a straight line when such movement could not be made with safety; and failing to signal his intention to turn. There were no exceptions before us which were leveled at these pleadings and there are no exceptions before us which were leveled at the submission of the various liability issues against defendants. Therefore, the issues of justifiable excuse are deemed to have been tried by consent. Of these, there are many other than the ones of which defendants have complained. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, at page 984, in the third paragraph of Chief Justice Alexander’s concurring opinion.

Moreover, we feel that plaintiff’s pleadings gave adequate notice of justifiable excuse under the circumstances. In the very recent opinion of the Supreme Court by Justice Pope of W. J. Hammer, Jr., v. Dallas Transit Company, Texas Supreme Court Journal, Vol. 9 No. 12, Jan. 8, 1966, several earlier opinions dealing with the present subject are analyzed and distinguished. It is there made clear that an offender who relies upon justifiable excuse of a statutory violation must show that the violation was not the result of his own negligence. It appears that plaintiff herein has done this (see the résumé of evidence favorable to plaintiff in our treatment of defendants’ points of error 2-5, supra) and that sufficient special issues which, as we have said, were tried without objection, are supported by such proof. It is said in the Hammer Case, supra:

“It is not every statutory violation that will carry with it the additional element of negligence. * * * If it is such a statute, however, an offender may go forward with the evidence and show excuse or justification for the violation. * * * When he does so, he thrusts upon the other party the burden to obtain a finding that the violation was negligence under the common-law standard.”

Thus, plaintiff went forward with the evidence and showed excuse for his intended attempt to pass defendants’ truck in violation of Art. 6701d, Sec. 57(a) 2, supra. When he raised the question he thrust the burden upon defendant to submit, and obtain a finding on common law negligence as a component, or subsidiary part, of Special Issues 24 and 25. Having failed to so do, they cannot complain of the presumed finding by the court in favor of plaintiff on said omitted issue. Travelers Ins. Co. v. Booker, Tex.Civ.App., 368 S.W.2d 54.

In answer to the damage issue (No. 32) the jury awarded plaintiff the sum of $5,000.00. The trial court in this issue, in substance, instructed the jury that in answering said issue they were to take into consideration the following elements of damage, if any.

(a) Such sum or sums of money, if any, as plaintiff has lost as a result of lost time from his work, if any, as a direct result of his injuries, if any, directly and proximately caused by the collision in question, from the date of said injuries down to the date of said trial.

(b) The present cash value of such money as plaintiff will in all reasonable probability lose in the future beyond the date of trial because of diminished earning capacity to work and earn money in the future, etc.

(c) Physical pain and mental suffering from the date of the collision to the date of the trial as a direct result of his injuries, etc.

(d) The present cash value of such physical pain and mental suffering which in all reasonable probability he will suffer in the future beyond the date of trial, etc.

Under points of error 26-30 defendants contend there is no evidence and insufficient evidence that the plaintiff suffered any damages within the purview of the foregoing instructions; that if he did, the finding of the jury is excessive and against the great weight and preponderance of the evidence so as to be manifestly unjust or wrong. (Defendants also contended under their first point that the court erred in overruling their motion non obstante veredicto in connection with the damages awarded by the jury.) We dispose of defendants’ contentions by determining whether the answer of the jury was against the great weight and preponderance of the evidence so as to be manifestly unjust by first setting forth the evidence favorable to the defendant:

Dr. Garner, called by plaintiff, was the only medical witness to testify about plaintiff’s personal injuries. He had attended plaintiff during his hospitalization period in Woodville, Texas, only. He stated that he couldn’t say that plaintiff complained of pain during the time that he was in the hospital; he didn’t believe he called for any sedatives; he didn’t find any damage to his lungs per se; he had very little trouble with his breathing; he felt plaintiff would recover from his chest injury with no aftereffects at all. It was his opinion that when plaintiff was discharged he would recover completely from, the accident and would have no permanent disability from it. Sedatives were available for him but he didn’t call for any; he didn’t appear to be worried about anything; he had shortness of breath for only one day.

Dr. Garner’s testimony favorable to plaintiff was:

When he first saw him in the emergency room he was in a state of confusion, had very low pressure and was kind of semiconscious and was really unable to answer questions much of the time; he was bordering on a state of shock; pictures showed he had some injury of his chest, they were a kind of crushing type of injury, apparently he had had a blow across his chest; he had two cracked ribs and probably cartilage between his ribs had been pulled loose to some extent; he more than likely had some bruising or contusion of his lungs; he was kept with his head raised somewhat and his knees flexed to make breathing easier; he was given morphine for pain, if needed; he was given oxygen after he arrived at the hospital about 2:10 p. m. until 6:00 that evening; he was given nutol, which is a sleep medicine, and he was given a capsule containing codeine each day he was in the hospital; he was mentally confused all the time he was in the hospital; his left arm was painful above his left elbow so that he hesitated to move his hand, it hurt him to move his left arm around — he didn’t complain about it but he did say it was uncomfortable to try to move it. The type of injury to his chest is generally calculated to cause pain, it is usually uncomfortable. Although he felt plaintiff would recover from his chest injury with no after effects, usually there are other prolonged things; it takes a little while to get over them but usually they clear up with time. He was still mentally confused at the time he left the hospital in Woodville.

Testimony by plaintiff favorable to his personal injuries:

He had to be propped up in bed to breathe in the Woodville hospital “and there wasn’t too much breath either. It was a rough deal, I will tell you for sure. I don’t want to go through it again.” After he left Woodville, he was sent to Camp Polk hospital where he stayed for some time. He was then sent to Fort Sam Houston hospital. All together, he stayed in hospitals about S months. Although there were no broken bones or injury to his arm or hand, he couldn’t use or move it for about 3 weeks, after which it gave him no more trouble. He was more nervous after the wreck than he had been before and worried about his condition. He had so much trouble breathing at times that at one time in the hospital he tried to hold his breath to commit suicide.

“Q. Well, why did you do that; tell the jury why you did it.
“A. It was so dadgummed hard to breathe I couldn’t get enough air. I don’t know, I hope I never have to go through that again.”

At Comp Polk a needle was inserted into his side and 3 pans of blood were drained from his side, after which he could breathe better. He lost 3 of his front teeth and 2 others were cracked. The lost teeth were replaced by a partial bridge, which caused him embarrassment because he had to take them out when eating, as they hurt him. Asked if he had pain in the hospital at Woodville, he answered:

“Yea, I guess it’s like you would say a caterpillar on your chest, you were trying to breathe and it was crushing you and you couldn’t get enough air into you — ■ well, like you normally would.”

Since the collision plaintiff testified that, whether in the wreck or not, he has had spots on his lungs, “and that is the reason that I have been in the hospital so long, I guess”; he didn’t know whether the wreck had anything to do with that kind of trouble.

Analyzing all the foregoing evidence, we believe it supports the jury award of $5,000.00, and was not against the great weight and preponderance thereof so as to be manifestly wrong. We say this in the belief that the evidence of his pain and mental suffering from the date of collision to the date of trial, standing alone, is sufficient to support the award.

Defendants’ other contentions regarding plaintiff’s loss of time from work, present or future, future pain and mental suffering; excessiveness of the award and refusal o-f the trial court to grant judgment non ob-stante veredicto are all overruled.

Judgment affirmed.

REPLY OF COURT TO APPELLANTS’ REQUEST FOR ADDITIONAL FINDINGS OF FACT, RULES 453 and 455.

No. 1 — Most of the facts requested by appellants are contained in the original opinion.

No. 2 — Appellants’ requests Nos. 6 and 9 have been granted by addition at the end of first paragraph, page 3 of this court’s opinion.

No. 3 — Appellants have requested no other findings of fact relevant or pertinent to the determination of the case.

Therefore, the Court respectfully declines to find additional findings of fact. Appellants’ request for additional findings of fact is overruled this 6th day of April, 1966, as is appellants’ motion for rehearing.

The action of this court in regard to appellants’ motion for findings of fact shall not be construed as a written opinion of this court within the meaning of Rule 458, Texas Rules of Civil Procedure, and no further motion for rehearing by defendants shall be entertained.


text:
    S.J. BIFANO et ux., Appellants, v. ECONO BUILDERS, INC., et al., Appellees.
    No. 16634.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 28, 1966.
    Rehearing Denied March 4, 1966.

      Strasburger, Price, Kelton, Miller & Martin, Robert H. Thomas, Dallas, for appellants.
    William A. McKenzie, Dallas, for ap-pellees.
   BATEMAN, Justice.

The appellants S. J. Bifano and wife sued Econo Builders, Inc., H. Leslie Hill and Gardens Development Company for actual and exemplary damages because of the alleged breach of a lease of certain business property in the City of Dallas. The trial court instructed a verdict in favor of Econo Builders, Inc. and H. Leslie Hill and submitted the case to the jury on special issues as to the defendant Gardens Development Company. The court rendered judgment in favor of Gardens Development Company on the verdict, decreeing that appellants take nothing as to any of the defendants. Appellants present thirty-three points of error on appeal.

Facts

The appellee Hill owned several acres of land abutting Northwest Highway near its intersection with Lemmon Avenue in the City of Dallas, and began the development of a suburban shopping center to be known as Walnut Hill Shopping Center. The portion of the property adjacent to Northwest Highway was divided into three tracts lettered A, B and C. We are concerned here only with Tract C, consisting of 7,051 square feet in an irregular shape. In 1950 Hill leased Tract C to A. T. Bifano and appellant S. J. Bifano. This lease, which we shall speak of as the 1950 lease, explicitly covered all of Tract C, describing it by metes and bounds. The lessor was obligated to construct a building thereon for the lessees with approximate dimensions of 36'x 86'x 8'x 47'x 42', to be occupied as a cafe. The term of lease was ten years beginning January 1, 1951, the rental being $410 per month plus a percentage of gross sales.

In either 1953 or 1954 A. T. Bifano acquired S. J. Bifano’s interest in the restaurant, which was known as The Chef, and in October 1958 he asked Hill to renew the lease for another ten years. Hill wrote a note to his employee who typed the new lease, as follows:

“10/15/58
“Renew this lease for another 10 years from December 31, 1960 for $465.00 per month with the same percentage.
/s/ Hill.”

Hill testified that this note referred to the original 1950 lease. The new lease, which we shall call the 1958 lease, covered the ten-year period to begin on January 1, 1961, and Econo Builders, Inc., which had in the meantime become the owner of the property, was named as lessor and only A. T. Bifano as lessee.

Before the 1958 lease could go into effect, it was rewritten in 1960, in terms identical with those of the 1958 lease except that both A. T. and S. J. Bifano were named as lessees. It was backdated to October 17, 1958 (the date of the 1958 lease) and will be called herein the 1960 lease. S. J. Bifano was named as one of the lessees because he had purchased A. T. Bifano’s interest in The Chef.

In both the 1958 and 1960 leases the property covered was described as follows:

“a building approximately 36' x 86' x 8'x47'x42' located in Tract No. C, consisting of 7,051 square feet (.162 acres, fronting towards Northwest Highway, near the new Lemmon Avenue.”

The 1958 and 1960 leases also provided for a monthly rental of $465 plus a percentage of gross sales. All three leases contained the following printed clause:

“(16) Lessee acknowledges that the Lessor has reserved and retained the sole ownership and control of all walks, drives, parking facilities and areaways of the shopping center; and, Lessee agrees to abide by all of Lessor’s regulations for the control of traffic, parking, cleanliness, and neat appearance of the whole shopping center and to secure observance thereof by his employees.” (Italics ours.)

All three leases also contained the following typewritten provision:

“Lessee agrees that a strip 10 ft. wide adjoining the No. and N.E. boundary lines extending between the West and S.E. boundary lines, and a strip 25 ft. wide adjoining the south boundary line extending between the west and S.E. boundary lines of leased premises shall be used for vehicular traffic and Lessee agrees not to impede or block said traffic-ways or permit same to be impeded or blocked in any degree or manner.” (Italics ours.)

The area comprising the second of the two “strips” mentioned in the last quoted paragraph was paved and used for parking automobiles, there being spaces thereon for the parking of nine vehicles, six in front and south of the restaurant and three on the east side of the building.

S. J. Bifano testified that when he went to Hill’s office to sign the 1960 lease he noticed immediately the difference in the wording in the description of the property and asked Hill the reason therefor, to which Hill replied that one description was required by the lending agency, but that it was no longer required and that there were no differences in the leases. Hill testified that when the 1950 lease was executed Tract C abutted Marsh Lane on the East, but that the City later abandoned Marsh Lane and sold it to Hill, and that this property was contiguous to the east side of the Bifano lease.

All three leases contained a paragraph (19) providing that any increase in the ad valorem taxes assessed “on the demised premises” shall be borne one-half by lessor and one-half by lessee. Hill’s bookkeeper testified, and it was stipulated, that appellants shared in the tax increase on all of Tract C and not just in the tax increase on the building. Hill testified that appellants were charged with the ad valorem taxes on all of Tract C and not simply the ad valorem taxes on the building, and that appellants were paying taxes on more than the demised premises if all they had under the lease was the building.

The building covered by the leases was one of several in a line and was on the corner. There was a sidewalk under the eaves of the building giving access from the central portion of the shopping center, and there was a planter box containing ornamental shrubbery on the east end of the building.

By July 5, 1962 the appellee Gardens Development Company had become the owner of the shopping center, and on that date, under its direction, construction of a new building was begun adjoining the building covered by these leases on the east end thereof. In connection with this work there were barricades in front of the restaurant; and the east wall, planter box and part of the roof on the east end of the building were destroyed and later repaired, and there was a great deal of dust and noise in connection with the tearing up of some of the paving in front of the property. The new building completely covered the three parking spaces to the east of the leased building. Both of the appellants testified at length to the great damage done to their business by all of this, explaining that the barricades made it difficult, if not impossible, for their customers to enter the restaurant and as to the loss of business due to the dust and noise, the diminution of the parking area and the fact that the restaurant was no longer on the corner.

Appellants contended that if the entire Tract C of 7,051 square feet was not actually included in the lease, nevertheless they were entitled to the beneficial use and enjoyment thereof because such was reasonably necessary to the occupation and use of the building. They alleged in the alternative that the lease was ambiguous and should be construed as including all of the 7,051 square feet or, alternatively, that the lease should be reformed to include the entire tract because of mutual mistake or, alternatively, that appellees fraudulently misrepresented the extent of the property covered by the 1958 and 1960 leases; also that appellees’ conduct constituted a constructive eviction of appellants. The appellees contend that the last two leases were never intended to cover anything other than the building, that there is no ambiguity in the lease, and that there was no mutual mistake or misrepresentation. The contentions of the parties will be noticed in greater detail in the course of the opinion.

The findings of the jury were: (1) the conduct of Gardens Development Company, in causing construction to be carried on adjacent to the restaurant, was done with the intention on the part of the defendants that the plaintiffs should no longer use and enjoy the premises; (2) such construction substantially interfered with plaintiffs’ use of the leased premises; (3) this interference was permanent; (4) the plaintiffs completely abandoned the leased premises within a reasonable time after such interference; (5) plaintiffs’ abandonment of their leased premises was a direct consequence of the construction of the building adjacent to their restaurant; (6) the plaintiffs were actually deprived from a portion of the leased premises by the landlord, or by his authority; (8) the reasonable market value in Dallas County on September 1, 1962 of the leasehold estate held by plaintiffs was $465 per month; (9) the reasonable value of the furniture and fixtures sold by plaintiffs from the business in question on August 15, 1962 was $6,000; (10) the sum of $1.00 would reasonably compensate the plaintiffs for exemplary damages; and (11) S. J. Bifano did not fail to pay the stipulated rent under the 1960 lease from September 1, 1962 to date. The jury answered “None” to Issue No. 13 as to what would be a reasonable attorney’s fee for enforcing or defending Gardens Development Company’s rights or remedies under the 1960 lease; (14) that Gardens Development Company had not incurred any attorney’s fees in enforcing or defending its rights or remedies under tne 1960 lease; (15) any loss the plaintiffs might have sustained by reason of the construction of the adjacent building could have been compensated for in money damages without actual removal from their premises; and (16) Gardens Development Company, in constructing the building adjacent to the restaurant, used reasonable care to protect plaintiffs and their property from injury.

Opinion

The first twenty-eight of appellants’ points of error set forth in varying phraseology the basic contentions of appellants: viz., that they had been actually or, alternatively, constructively evicted from their leasehold by appellees, entitling them to actual and exemplary damages. Their position is that, although that portion of Tract C not covered by the building is not explicitly contained in the description of the property covered by the 1960 lease, it is nevertheless by implication a part of the demised premises, or should be considered so, because: (1) the use thereof by appellants was reasonably necessary to their beneficial use of the building itself; (2) they proved a right to have the lease reformed to include all of Tract C in that (a) it was omitted from the description by accident and mutual mistake, and (b) appellants were deluded into signing it by Hill’s fraudulent representation that the 1950 and 1960 leases covered the same property; and (3) the 1960 lease is ambiguous and should be construed by the court to include all of Tract C.

We recognize the general rule that the lease of an entire building is a lease also of the ground under it, as well as adjacent land of the lessor which is used with the building as necessary to its proper occupation for the purpose for which it was intended. 51 C.J.S. Landlord and Tenant § 289, p. 944. However, we think appellants can take small comfort therefrom. Even under the 1950 lease, which described by metes and bounds the entire tract of 7,051 square feet as the leased premises, appellants had no right to appropriate the portion not covered by the building to their exclusive use, for the lease specifically provided that it should be used for vehicular traffic, that the lessor retained the sole control of it, and that the tenant agreed not to impede or block it in any way or permit it to be impeded or blocked, and to abide by all of the landlord’s regulations for the control of the traffic thereon. Appellants admitted in their testimony that they could not profitably operate the restaurant with only nine parking spaces for the use of their customers, and that it was usual and customary for many of their customers to park their automobiles in other parking areas in the shopping center.

As a practical matter, the right to use the area not covered by the building was not materially changed by the failure of the 1958 and 1960 leases to include that area as part of the leased premises. Appellants and their customers had as much right to the use of the parking area under the 1960 lease as they did under the 1950 lease, with the exception of the three parking spaces eliminated by the construction of the new building. Appellants did not have the right under either lease to appropriate the parking area to their own exclusive use or that of their customers, nor to prohibit the use thereof by customers or employees of neighboring businesses. The area in question was not a separate parking lot for the exclusive use of appellants and their customers, but formed a portion of the parking area of the entire shopping center.

The appellees were, successively, owners of that portion of Tract C not covered by the building and had the right to make such use of it as would give it its highest and best use. Appellants’ lease did not guarantee to them that their building would always be on a corner or that any specified number of parking spaces would be available to them and their customers. Therefore, appellants could not base their claim of eviction on the doing of an act by appellees which they had a perfect legal right to do and which breached no duty owing to appellants. Sherrer v. Sparks, Tex.Civ.App., 78 S.W.2d 1035, no wr. hist.

Appellants also contend that the court erred in holding as a matter of law that they were not entitled to reformation of the lease because of fraud, accident and mutual mistake and in refusing to submit several requested special issues requested in connection with such contention. They rely upon the rule of law thus expressed in Automobile Ins. Co. of Hartford, Conn. v. United Electric Serv. Co., Tex. Civ.App., 275 S.W.2d 833, 839:

“A court of equity will reform written instruments either where there is a mutual mistake or where there has been a mistake of one party accompanied by fraud or inequitable conduct of the other party.”

While there was testimony that the appellants were mistaken in thinking that the 1960 lease covered the entire Tract C, there is no evidence that any of the ap-pellees made this mistake; hence, there was no mutual mistake.

“The settled rule of law in this state is that to reform a written contract for mutual mistake the evidence must be clear, satisfactory, and convincing. And as to whether a given state of facts in a case of this character satisfies this high standard of the law is a question of law to be determined by the court.” Reliance Ins. Co. v. Pruitt, Tex.Civ.App., 94 S.W.2d 833, 836, wr. dism.

Moreover, we find no evidence in the record to establish even prima facie that any of the appellees was guilty of fraud or inequitable conduct in connection with the execution of either the 1958 lease or the 1960 lease. Appellants contend that when S. J. Bifano noticed the difference in the descriptions in the 1950 and the 1960 leases, and asked Hill to explain the difference, and Hill told him that there were no differences in the leases, this was a fraudulent misrepresentation inducing execution of the 1960 lease. We do not agree with appellants. It appears without dispute that there was nothing to prevent Bifano from reading the lease or having it read to him or examined by his attorney; and under those circumstances he must be charged with its stipulations and terms and is not justified in relying on what the other party to the contract said about it. Since both parties had equal means of knowing what property the 1960 lease covered, and no artifice or fraud was employed to prevent Bifano from making his own examination and arriving at his own conclusion, Hill’s statement must be regarded as a mere expression of opinion, and not a misrepresentation of a material fact upon which Bifano was legally entitled to rely. Guitar Trust Estate v. Boyd, Tex.Civ.App., 120 S.W.2d 914, 918, no wr. hist.; Whitsel v. Hoover, Tex.Civ. App., 120 S.W.2d 930, wr. dism.

The appellants also argue that the 1960 lease was ambiguous and should be construed by the court to include all of Tract C, and that the court erred in refusing to do so. They point out that, not only did both of the Bifanos testify that they thought the 1960 lease covered the same land as the 1950 lease, but both Hill in his oral testimony and his attorney in the pleadings stated that the 1960 lease purported to cover a building of 7,051 square feet, all of which is said to evidence such confusion as to require a holding of ambiguity. They also argue that the provision in the lease for the strip south of the building to be kept open as a vehicular traffic-way, referring as it does to “boundary lines", is at least some evidence of an intention to include the entire Tract C, since the term “boundary lines” is never applied to the lease or sale of a building, but only to the sale or lease of land; also, that the obligation therein of the tenant to keep the traffic-ways open and unimpeded is meaningless if the area in question is not covered by the lease, since a tenant leasing only a building has no rights or obligations outside of the building. We do not agree with appellants. In determining the ambiguity vel non of a writing, we must be guided by the language of the instrument itself, not by confusion which the interested parties or their attorneys may have experienced, our duty being to ascertain the intention of the parties, if possible, by the language contained in the contract “in the sense in which the language is ordinarily used.” Western Indemnity Co. v. Southern Surety Co., Tex.Com.App., 1920, 223 S.W. 179, 181.

“Parties to a contract are bound by its plain terms and their intentions are to be ascertained from the language of the contract itself and not from what they supposed it to contain.” Magnolia Petroleum Co. v. Storm, Tex.Civ.App., 239 S.W.2d 437, 440, wr. ref. n. r. e.

The parties to a contract cannot prove a construction thereof contrary to its plain meaning, Shropshire v. Commerce Farm Credit Co., 120 Tex. 400, 30 S.W.2d 282, 39 S.W.2d 11, 84 A.L.R. 1269, and an unambiguous contract cannot be interpreted by the parties to prove a construction contrary to its plain terms, Ranger Cisco Oil Co. v. Consolidated Oil Co. of Texas, Tex.Civ.App., 239 S.W. 648, wr. dism.

While it is often said that the courts will ordinarily give a contract the construction placed thereon by the parties, this rule does not apply to contracts which are free from ambiguity. El Paso & S. W. R. Co. v. Eichel & Weikel, Tex.Civ. App., 130 S.W. 922, wr. ref. We hold that the lease in question is unambiguous, and that the trial court correctly refused to construe it to have a meaning other than that expressed by its plain terms.

Appellants’ first fifteen points of error are concerned with their contention of actual eviction. What we have said above makes it clear, we think, that no such actual eviction occurred. Accordingly, these points are overruled.

Points of error sixteen through twenty-eight are concerned with appellants’ claim that the findings of the jury in response to Special Issues Nos. 1 through 6 establish the necessary elements of a constructive eviction, as set forth in Stillman v. Youmans, Tex.Civ.App., 266 S.W.2d 913, no wr. hist., and Richker v. Georgandis, Tex. Civ.App., 323 S.W.2d 90, 95, to-wit: (1) an intention on the part of the landlord that the tenant shall no longer enjoy the premises; (2) substantial interference by the landlord with the tenant’s use and enjoyment of the premises; (3) causing permanent deprivation of the use and enjoyment of the premises by the tenant; and (4) abandonment of the premises by the tenant within a reasonable time.

Appellees respond that there was no evidence or, alternatively, that there was insufficient evidence, to support these findings; also that the findings in response to Special Issues Nos. IS and 16, that appellants’ loss could have been compensated for in money damages without their removal from the premises, and that the construction of the new building was done with reasonable care, constituted a defense to the cause of action alleging constructive eviction. We see no point to be served by our engaging in a lengthy discussion of these contentions, for the answers of the jury to Special Issues Nos. 8 and 10 establish that appellants suffered no actual, and were entitled only to nominal exemplary, damages as a result of the alleged constructive eviction. The jury found (8) that the reasonable value of the leasehold on September 1, 1962 (about the time appellants abandoned the premises) was $465 per month, which was exactly the rent being paid under the lease; and (10) the sum of one dollar would reasonably compensate appellants for exemplary damages.

If the reasonable value of the leasehold did not exceed the amount appellants were obligated by the lease to pay for it, they have failed to prove that they were damaged by being evicted therefrom. 27 Tex.Jur., Landlord and Tenant, § 161, pp. 283-4; Wilson v. Moore, 57 Tex.Civ. App. 418, 122 S.W. 577, no wr. hist. Absent a right to actual damages, there can be no recovery of exemplary damages. 13 Tex.Jur., Damages, § 214, p. 376. Their points of error sixteen through twenty-eight are accordingly overruled.

By their twenty-ninth point of error appellants assail the instructed verdict given the appellees H. Leslie Hill and Econo Builders, Inc. These two appellees were the lessors, respectively, in the 1950 and I960 leases, and appellants say that they cannot avoid their implied covenant of quiet enjoyment by simply conveying the legal title to others. Having already held that Gardens Development Company was not guilty of breaching this implied covenant, we must also hold that the prior owners were likewise guiltless. This point is therefore immaterial and is overruled.

By their thirtieth and thirty-first points of error appellants assail the findings of the jury in answer to Special Issues Nos. 8 and 9 as being against the great weight and preponderance of the evidence. Without detailing the testimony supporting these findings, we hold that there was sufficient evidence of probative force to support them and that the findings are not against the weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. These points are overruled.

In their thirty-second point appellants complain that the answer of “$1.00” to Special Issue No. 10, inquiring as to exemplary damages, is inadequate as a matter of law. The point is neither briefed nor argued and may therefore be considered abandoned. Young v. Texas & Pacific Ry. Co., Tex.Civ.App., 347 S.W.2d 345, no wr. hist.; Fulton v. Abramson, Tex.Civ.App., 369 S.W.2d 815, no wr. hist. Nevertheless, we have considered the point and find no merit in it. No authority has been cited to support it and we have found none. Moreover, it is immaterial since no actual damages were found. The point is overruled.

The thirty-third point of error complains of the refusal of the court to submit a special issue similar in form to Special Issue No. 8, inquiring as to the value of the leasehold on September 1, 1962, except that in the requested issue the jury would have been asked to find such value of “the lease held by Plaintiffs, including the building, improvements, decorations, furnishings and fixtures constructed or placed on the premises by Plaintiffs.” It does not appear from the record that the court was ever requested to submit this issue. In the absence of such a request, the failure of the court to do so cannot be properly complained of here.

We have carefully examined all of appellants’ points of error and find no merit in any of them. The judgment is therefore

Affirmed.

ON APPELLANTS’ MOTION FOR REHEARING

Appellants complain of our failure to notice their contention that, even if they were not entitled to damages for constructive eviction so far as the value of the leasehold was concerned, they were nevertheless entitled to recover as special damages the loss in value of their furniture and fixtures which were in the leased restaurant at the time of the alleged eviction. They argue that, the jury having found in response to Special Issue No. 9 that the reasonable market value of the furniture and fixtures sold by them on August IS, 1962 was $6,000, and since it had been stipulated at the trial that this personal property had been sold by them for $2,900, the difference of $3,100 definitely established the amount of their actual damages.

A careful review of the record discloses that this argument had not been presented to us until the filing of the motion for rehearing.

However, if it had been presented to us on original submission we would have overruled it, as we do now. We of course recognize the rule that a wrongfully evicted tenant may recover such damages as are shown to have been the foreseeable consequence of the eviction, Reavis v. Taylor, Tex.Civ.App., 162 S.W.2d 1030, 1034, wr. ref. w. m., but fail to see how the fact that appellants sold their property for $3,100 less than it was worth can be said to establish liability of the appellees for such loss.

The motion for rehearing is overruled.


author: MASSEY, Chief Justice.

text:
    Olin PETTY, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 16707.
    Court of Civil Appeals of Texas. Fort Worth.
    March 4, 1966.
    Rehearing Denied April 15, 1966.

      Jacobs & Lipscomb, and Tom B. Renfro and Kelly Jacobs, Fort Worth, for appellant.
    Simon, Crowley, Wright, Ratliff & Miller, and Kleber C. Miller, Fort Worth, for appellee.
   MASSEY, Chief Justice.

This is a workmen’s compensation case in which plaintiff Olin Petty sustained a specific injury to his hand. On the theory that the injury extended to and effected the body generally, thereby resulting in general total permanent incapacity, plaintiff sought not merely specific compensation but general compensation.

On trial the answers of the jury were such that the court deemed it proper to render judgment against the defendant insurer, Texas Employers’ Insurance Association, for compensation for specific injury. The plaintiff here contends that the answers of the jury entitled him to judgment for total permanent disability. Alternatively, plaintiff seeks a remand of the cause for another trial on the theory of conflict in the answers of the jury.

In answer to special issues the jury found: (1) plaintiff sustained an injury to his right hand resulting in a total loss of use of the hand; (la) that such total loss of use commenced on October 6, 1962; (2) that such total loss of use was permanent; (8) that the injury to the hand extended to and affected the right shoulder, thereby causing disability to the shoulder; (9) that plaintiff sustained some total disability following the injury of October 6, 1962; (10) that the injury to the hand was a producing cause of such total disability; (12) that such total disability began October 6, 1962; (13) that such total disability has been and will be permanent in duration. However, and of controlling importance was the plaintiff’s special issue No. 11, in answer to which the jury replied in the negative, or “no”. It read: “Do you find from a preponderance of the evidence that the resulting injury, if any, to plaintiff’s right shoulder was a producing cause of such total disability, if any?”

As applied to the plaintiff’s total disability the jury therefore found that such resulted (in part at least) from the injury to and resultant disability in his hand. The jury, furthermore, found that the same injury (and its effects) extended to and affected the plaintiff’s right shoulder. However, the jury refused to find (as plaintiff desired) that the condition of the shoulder was a producing cause of the total disability which the plaintiff had sustained.

We believe plaintiff is wrong in his contention that judgment should have been rendered for him. A favorable answer would have been necessary to Special Issue No. 11 for him to be so entitled. Though he show that there has been an extension of a specific injury to some part of the body other than the specific member, in order to be entitled to compensation for general total permanent incapacity he must also show that the condition of general total permanent incapacity was caused by such extension. Travelers Insurance Company v. Marmolejo, 383 S.W. 2d 380 (Tex.Sup.1964).

In connection with plaintiff’s contention that a conflict exists in the jury’s answer to Special Issue No. 11 and other answers returned, we completely disagree. The rule relative to the character of conflict necessary to require another trial is established in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 991 (1949). In the present instance plaintiff cannot demonstrate that one of the answers asserted as in conflict with another, or others, necessarily required the entry of a judgment different from that which the court entered.

The court properly rendered judgment for compensation for specific injury. Plaintiff was not entitled to any different judgment, nor another trial.

Judgment affirmed.