author: BARROW, Justice.

text:
    O. B. MARTIN et al., Appellants, v. TEXAS AND NEW ORLEANS RAILROAD COMPANY et al., Appellees.
    No. 14226.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 29, 1964.
    Roger Butler, Robstown, for appellants.
    Keys, Russell, Keys & Watson, M. W. Meredith, Jr., Corpus Christi, for appellees.
   BARROW, Justice.

This is a four-party suit for damages growing out of a railroad crossing collision between a Texas & New Orleans Railroad Company freight train and a truck'owned by O. B. Martin and operated by his employee, Baldemar T. Soliz. Martin sued the railroad to recover for damages to his truck. Soliz intervened and sued the railroad to recover for his personal injuries. The railroad cross-claimed against Martin and Soliz to recover its property damage. Coy H. Ponish, engineer of the train, intervened and sued Martin and Soliz to recover for his personal injuries. The jury found that both Ponish and Soliz committed acts of negligence which proximately caused the collision, and the trial court entered a take-nothing judgment as to all claims. Martin and Soliz have perfected this appeal.

The jury found three independent acts of negligence against Soliz and each was found to be a proximate cause of the collision: (1) Soliz violated Art. 6701d, § 86, Vernon’s Ann.Civ.Stats., in that, although he stopped the truck within fifty feet hut not less than fifteen feet from the nearest rail on which the train was approaching, he proceeded at a time when he could not do so safely because the approaching train was plainly visible and in hazardous proximity to the crossing; (2) he failed to keep a proper lookout; (3) he failed to make proper application of the brakes on the truck.

Appellants complain that there is no evidence or, in the alternative, the evi-r dence is insufficient to support the jury finding that the train was plainly visible or in hazardous proximity to the crossing before Soliz reached a point within fifteen feet of the nearest rail. Appellants attack the second finding as being a double submission of the question of lookout. No attack is made on the third act of negligence found against Soliz, although this finding of common law negligence, together with the finding of proximate cause, bars recovery by appellants. We have nevertheless reviewed the entire record, as required by appellants’ alternative point complaining of the insufficiency of the evidence, and it is our opinion that there is sufficient evidence to support the jury findings that the train was plainly visible and in hazardous proximity before Soliz reached a point fifteen feet from the nearest rail.

The collision occurred at the Soyars Street crossing in Orange Grove, Texas, at about 9:10 a. m. on March 3, 1959. The weather was clear and the street was dry. The physical facts show that the visibility of the railroad track to Soliz’ left, on which the train approached the crossing, was partially obscured by a row of grain storage bins. These bins were set back about twenty-five feet from the nearest rail of the track on which the train approached and the closest bin was located about 350 feet from the crossing. It was demonstrated by an engineer’s plat and photographs that a driver approaching the crossing could see the front of a train approaching from his left at these distances: when 75 feet from the nearest rail of the crossing, a. person. could see the train 520 feet from the cross- , ing; when 60 feet from the nearest rail, he could see the train 600 feet from the crossing; and when 30 feet away, he could see the train when it was 735 feet from the crossing. The train was proceeding at a speed of 45^-9 m. p. h., and the truck at a speed of 5-7 m. p. h. The train was moving at about 70 feet per second, and the truck, at about 7 to 10 feet per second.

These physical facts fully support the findings of the jury that the train was plainly visible and in hazardous proximity before Soliz reached a point fifteen feet from the nearest rail on which the train was approaching. In addition, the testimony of Mr. Hartman, a disinterested eye-witness, supports the jury findings that Soliz violated this statute.

Appellants urge that the question of Soliz’ lookout was submitted in the issues relating to whether the train was plainly visible and in hazardous proximity and that the submission of the common law issue of proper lookout was a double submission of the question of Soliz’ lookout. The Supreme Court in Texas & New Orleans Railroad Co. v. Day, 159 Tex. 101, 316 S.W.2d 402, recognized that there exists a. common-law duty to exercise a proper lookout in addition to the statutory duties required by Sec. 86 of Art. 8306, supra. This-common law negligence issue was raised by proper pleadings and the jury finding of improper lookout is supported by the testimony of Soliz that he did not see the approaching train until it was about twenty to forty feet from his truck. The trial court did not err in submitting the common-law issue of lookout.

Appellees introduced, for impeachment purposes, evidence that Soliz had been convicted for possession of marijuana. No-complaint is made of the introduction of this impeachment evidence, but appellants-assert that the case should be remanded because of the refusal of the court to permit them to show that the conviction was the result of an entrapment of Soliz. Appellants did not assign this error in their motion for new trial, but assert that such error is fundamental.

It is our opinion that this point does not raise fundamental error, and since it was not presented in appellants’ motion for new trial, it may not be considered by this Court. Rule 374, Texas Rules of Civil Procedure. It is recognized that since the repeal of Art. 1837, R.C.S., by the Texas Rules of Civil Procedure, there is no statutory provision authorizing the Court of Civil Appeals to consider an unassigned error. Therefore, the concept of fundamental error is much narrower than it was, and has become somewhat of a rarity. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265; Halbert v. Upper Neches River Municipal Water Auth., Tex.Civ.App., 367 S.W.2d 879.

The Supreme Court in Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, although not undertaking to give an all-inclusive definition, said that an error which directly and adversely affects the interest of the public generally, as that interest is declared in the statutes or Constitution of this State, is a fundamental error. Likewise, when the record affirmatively and conclusively shows that the court rendering the judgment was without jurisdiction of the subject matter, the error will be regarded as fundamental.

McCauley v. Consolidated Underwriters, supra. See also, McDonald, Texas Civil Practice, § 18.05. The asserted error does not come within either of these definitions. Furthermore, it has been held many times that when it is necessary to examine the statement of facts to discover error, the error is not fundamental. Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683; Schafer v. Stevens, Tex.Civ.App., 352 S.W.2d 471. The error asserted by appellants can only be ascertained by an examination of the statement of facts.

It is therefore our opinion that this asserted error is not fundamental. Since this ground of error was not presented in appellants’ motion for new trial and is not fundamental error, it was waived by appellants. Rule 374, T.R.C.P.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: PHILLIPS, Justice.

license: Public Domain

text:
    RYCADE OIL CORPORATION, Appellant, v. Russell LASATER, dba Russell Lasater Construction Company, Appellee.
    No. 11147.
    Court of Civil Appeals of Texas. Austin.
    Feb. 5, 1964.

      Butler, Binion, Rice & Cook, William C. Perry, James E. Crowther, Houston, for appellant.
    Peter P. Cheswick, Houston, for appel-lee.
   PHILLIPS, Justice.

The plaintiff in the trial court and appellee in this Court, Russell Lasater, doing business as Russell Lasater Construction Company, brought suit against Rycade Oil Corporation, defendant below and appellant here, alleging that “defendant requested and contracted with plaintiff to have some construction and repair work done on its refinery installations at Wink, Texas. Defendant agreed to pay for work done * * * the sum of $13,315.68 * * * upon completion and acceptance -* * * defendant paid plaintiff $6,657.84 and the remainder of $6,657.84 is still due and owing * * * the defendant refuses to pay said sum.”

Appellant answered with a general denial and also alleged that prior to the filing of the suit a dispute existed between the parties hereto as to the amount due on the abovementioned claim; that the dispute was settled by agreement between the said parties as to the amount which the appellant would pay and the appellee would accept as full payment for the claim alleged; that thereafter the appellant paid such amount in full and appellee accepted such payment as full settlement of appellant’s claim and released appellant from all further liability.

The case was tried before a jury that found that the appellant was indebted to the appellee; that the indebtedness was in the sum of $6,657.84; that a controversy had existed between the parties to the suit as to the amount due the appellee; that the controversy between the parties was not urged in good faith.

The appellant’s motions for an instructed verdict and judgment non obstante vere-dicto were overruled and the court entered judgment on the jury’s verdict for appellee in the amount found by the jury with interest.

We reverse and render the judgment of the trial court.

There is no dispute concerning the following facts of this case. On the basis of a low bid appellee was awarded a “turn key” contract by appellant to install a compressor and erect a building therefor at appellant’s gasoline plant in Winkler County, Texas. The amount agreed upon for this complete job was $6,800.00. At some point during the time that the construction agreed upon was in progress, the parties decided to include additional construction work to be performed by appellee and decided that the amount of payment would be different from that original “turn key” amount originally agreed to. The record is extremely vague as to just what method the parties had agreed upon as the proper way to arrive at the method and amount of payment, however, there is no doubt the original contract with a fixed price for a stated amount of construction work was abandoned in favor of the later procedure described above.

Pursuant to the construction work performed by appellee, appellant made two payments of $2,500.00 each or a total of $5,000.00. In addition appellant had paid $2,135.00 to a third party whose identity is immaterial here for the construction of the building that was originally to have been constructed by appellee in the original “turn key” contract. Thus, appellant had already spent $7,135.00 on a job that had originally been expected to cost $6,800.00.

This was the situation when appellee presented appellant an additional bill for $13,315.68. At this point there was considerable discussion between the parties hereto and a dispute resulted from the size of this last bill presented. Approximately one month after appellant received the bill for $13,315.68, appellee sent appellant another bill for $6,657.84. This bill was paid by appellant by its check bearing the following endorsement:

“Full and final settlement for all work performed and materials furnished under your job #58-11 and for any other work, regardless of nature, performed prior to May 1, 1959, with respect to Rycade’s Gasoline Plant.”

Appellant contends that the doctrine of accord and satisfaction is properly applicable to this case because appellee’s ■ claim became unliquidated after the abovemen-tioned “turn key,” or contract for a fixed amount, was abandoned in favor of the negotiations subsequently entered into and when appellee accepted appellant’s check with the above described endorsement.

We agree with appellant’s contention in this case and hold that there was an accord and satisfaction between the parties.

In Section 26, Accord and Satisfaction, 1 American Jurisprudence, 2d it is stated:

“Liquidated means made certain as to what and how much is due, and a liquidated claim is one which can be determined with exactness from the agreement between the parties, or by arithmetical process, or by the application of definite rules of law.
“The term 'unliquidated’ means simply not liquidated. A demand is not liquidated even if it appears that something is due, unless it appears how much is due * * * ”

The testimony in this case shows conclusively that appellee’s claim against appellant for the work done was an unliquidated claim. 1 Tex.Jur.2d Sec. 30, p. 228, states the rule in Texas to be that a valid accord and satisfaction of a money demand may be based on payment of an amount less than the creditor contends is due, or which may be actually due where the claim is unliquidated, or where there is a bona fide dispute between the parties as to liability on a liquidated claim. The creditor is bound by such an accord and satisfaction of a disputed money claim. In Section 33, 1 Tex.Jur.2d p. 232, the rule is stated that a money claim subject to discharge pursuant to an accord and satisfaction based on the payment of a smaller sum may be discharged by the creditor’s accepting and cashing of a check, in an amount smaller than the claim, tendered on the condition that its acceptance is to be in full satisfaction of the claim. See the above numbered sections of Tex.Jur.2d and the cases cited therein.

When the sum due appellee by appellant became uncertain, there was a valid consideration when appellee accepted appellant’s last check as a payment in full. See cases listed in Footnote 8, 1 Tex.Jur.2d, Sec. 30, p. 229.

In view of our holding above, the jury’s findings as to any amounts of money due Lasater, that a controversy existed between the parties or that said controversy was not in good faith become immaterial.

There is testimony by appellee, unsupported by any pleadings or jury findings, that he was led to believe that if he compromised the abovementioned claim he would be awarded contracts in the future by appellant involving larger construction projects costing greater amounts of money. We have read the entire record in this case and there is no evidence of any fraudulent conduct on appellant’s part that may have induced the accord and satisfaction.

Appellee also contends that this Court should not consider appellant’s original brief because such brief was not filed within thirty days after the transcript and statement of facts in this case had been filed with the Clerk of the First Court of Civil Appeals, citing Rule 414, Texas Rules of Civil Procedure.

The transcript and statement of facts in this case were filed with the Clerk of the Court of Civil Appeals for the First Supreme Judicial District on May 2, 1963, and under Rules 4 and 414 of the Texas Rules of Civil Procedure, appellant’s brief was required to be filed not later than June 3, 1963. However, appellant’s attorney had asked for additional time and requested confirmation from the Clerk of the First Court of Civil Appeals that such Court did not require strict compliance with Rule 414, and that appellant’s brief would be considered timely filed if received by June 15, 1963. By letter dated June 4, 1963, the Clerk of such Court advised appellant’s attorney that appellant’s brief would be considered as timely filed if received by June 15, 1963. On June 10, 1963, appellee filed a motion to dismiss the appeal on the ground that appellant’s brief was not timely filed. On June 13, 1963, the Clerk of such Court advised the parties that appellee’s motion to dismiss the appeal had been refused by the Court. On June 14, 1963, appellant’s brief was filed with and accepted by the Clerk of the First Court. This question need not be re-examined by this Court. Mauldin Drilling Co. v. Weyman, Tex.Civ.App., 3 S.W.2d 585, err. dism.

The case is reversed and rendered that appellee take nothing.

      . This case was transferred from the First Court to this Court by the Texas Supreme Court under its authority to equalize the dockets of the various Courts of Civil Appeals, Art. 1738, Vernon’s Ann.Civ.St. as amended.


author: DIXON, Chief Justice.

text:
    Elbert Kenneth RICHARDSON, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 16335.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 17, 1964.
    Rehearing Denied Feb. 21, 1964.

      J. M. Deavenport, Dallas, for appellant.
    Henry Wade, Dist. Atty., and John J. Orvis, Asst. Dist. Atty., Dallas, for appellee.
    Waggoner Carr, Atty. Gen., and Fred D. Ward, Asst. Atty. Gen., amici curise.
   DIXON, Chief Justice.

Elbert Kenneth Richardson has appealed from a summary judgment in which a Dallas County Court at Law upheld an order of the Texas Department of Public Safety suspending his automobile driver’s license for a period of one year.

The order of suspension is based on Sec. 22(a), Art. 6687b, Vernon’s Ann.Civ.St., which provides among other things that the Department of Public Safety may suspend a license for a period not greater than one year upon a determination after a hearing before a judge of a corporation court that a licensee is an habitual violator of the traffic law. The statutory definition of the term “habitual violator” includes any person with four or more convictions for moving violations of the traffic laws arising out of different transactions in a period of twelve months.

Appellant’s first point on appeal attacks the sufficiency of the notice purportedly informing him of a hearing to be held before a judge of a corporation court in Dallas, Texas on August 2, 1963.

Sec. 22(a), Art. 6687b, V.A.C.S. provides for a hearing “after notification to the licensee or operator * * * upon charges in writing a copy of which shall be given to said operator or licensee not less than ten (10) days before said hearing”. The statute further states: “Notice by registered mail to address shown on the license of licensee shall constitute service for the purpose of this Section”. This last provision was in effect amended by the passage of Art. 29c V.A.C.S. which provides for service by certified mail where a statute has specified registered mail.

In our opinion the alleged notice did not comply with the above statutory requirements in two particulars:

(1) The letter was not addressed to the “address shown on the license of licensee” as prescribed by the statute. It was addressed to “the last known address given to the Department” by appellant. There is no showing in the record that the two addresses are one and the same in this case.

(2) We believe that the Legislature in enacting Sec. 22(a) of Art. 6687b, V.A.C.S. intended that the letter of notification should actually be delivered at the “address shown on the license of licensee”. The letter in this case was never delivered. It was returned to the sender “with such markings as unknown”. Nevertheless, the hearing was held in appellant’s absence and the suspension for one year was ordered.

The opinions of the courts differ in various jurisdictions as to whether the lack of a sufficient notice, or even the lack of any notice prior to the issuance of an administrative order is violative of the due process clause of the Constitution. For an annotation of the cases pro and con on the subject see 10 A.L.R.2d 833.

The authorities holding that failure to give notice is not violative of the due process clause point out that the driving of an automobile on a public highway is a privilege, not a right. Usually they qualify their holding to the effect that (1) the statute must provide for a judicial review on appeal of the administrative order, in most instances a trial de novo; and (2) the order of the administrative agent must be suspended pending determination of the appeal to the courts. 12 Amer.Jur. 307.

Our statute contains both of the above provisions. It expressly provides that an appeal de novo may be had in the county court; and that the order of suspension shall itself be suspended pending the appeal.

However, we believe that under the circumstances disclosed by the record the insufficiency of the original notice in this case is not fatal to a trial of the cause — a de novo trial — in the County Court at Law. Appellant was evidently notified of the Department’s order after the hearing before the judge of a corporation court, for he filed his appeal in the County Court at Law within the thirty-day period named in the statute. By so doing he invoked the jurisdiction of the court for a de novo trial both as to himself and his cause. As a result we believe the failure to give sufficient notice of the hearing before a judge of a corporation court became harmless error. For that reason we overrule appellant’s first point.

In his second point on appeal appellant says that his motion for summary judgment should have been sustained, or in the alternative he should have been granted a trial de novo in the County Court at Law. We see no merit in the first part of this point, but we agree with appellant’s alternative plea.

-In a similar case this day decided we held that the statute prescribes a trial de novo on appeal to the County Court at Law. Miller v. Texas Department of Public Safety, Tex.Civ.App., 375 S.W.2d 468. In the Miller case Justice Williams discusses fully the question presented in appellant’s second point in this case. We shall therefore pretermit further discussion of the issue here. Appellant’s alternative plea in his second point on appeal is sustained.

However, we call attention that the da novo trial contemplated by the statute does not involve the question of the length of time the licensee’s license shall be suspended if he is found by the administrative agent or the County Court to have been guilty as an habitual violator. In the case of Texas Department of Public Safety v. King, Tex., 366 S.W.2d 215, 219, our Supreme Court has held that neither the administrative agent before whom the hearing is held nor the court on appeal may determine the period of the suspension. The statute as interpreted gives only the Department of Public Safety the authority to determine the length of the suspension.

In his third point on appeal appellant attacks two of the notices of convictions which he says are not in compliance with Sec. 22(b) of Art. 6687b, V.A.C.S. and are therefore not valid.

These notices are made out on printed forms like those described in Miller v. Texas Department of Public Safety, supra. The only differences we see in the information given in the two challenged notices here and in the Leroy Miller case are that in this case on one notice following the word “Penalty” and the amount of the fine there is the notation “Receipt #471688 issued”; and on the other notice there is the notation “Receipt 314876 issued”. There is no showing as to who allegedly paid the fines for appellant, whether he paid the fines himself or they were paid for him by someone else, nor is there any showing as to whom the receipts were issued. Otherwise the omissions are the same omissions which we held fatal to the validity of the notices of conviction in Miller v. Texas Department of Public Safety, supra.

Since Justice Williams in the above cited case has stated the grounds for our holding on this subject we shall not repeat them here. Appellant’s third point is sustained.

The judgment of the trial court is reversed and the cause is remanded for a trial de novo as provided by statute.

Reversed and remanded.


text:
    Mildred M. DOUGLASS, Appellant, v. Ben PANEK, Appellee.
    No. 16306.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 31, 1964.
    James D. O’Connor, Dallas, for appellant.
    Bernard I. Whitten, Dallas, for appellee.
   DIXON, Chief Justice.

Ben Panek, appellee, filed suit against appellant Mildred M. Douglass on an instrument purportedly secured by vendor’s lien and deed of trust on real estate, which instrument he alleges comes within the definition of a negotiable promissory note as provided in Art. 5947, Sec. 184, Vernon’s Ann.Civ.St.

Summary judgment was rendered in favor of appellee for $6,763.00 principal plus interest and attorneys’ fees, amounting to a total of $9,053.15. No foreclosure was awarded.

Appellant’s first point is that the instrument sued on is not a negotiable promissory note as defined in the above cited section of the Negotiable Instruments Act. We agree with appellant.

The instrument fails to meet the requirements of the statute in that it is not an unconditional promise by appellant to pay a sum certain in money. In the body of .the note itself is this recitation: “This note is given to secure payment to the extent of amount herein mentioned which represents money to be expended by the said Ben Panek for the purpose of rehabilitation of various apartment units located at 3318 Daniel Aye.” (Emphasis ours.) It is plain from the terms of the note that payment depends upon a contingency which might or might not happen. Therefore it it not a negotiable promissory note as provided by the statute. Wood v. Sparks, Tex.Civ.App., 42 S.W.2d 142; Kelsay Lumber Co. v. Crowell, Tex.Civ.App., 19 S.W.2d 368, 371; Lane Co. v. Crum, Tex.Com.App., 291 S.W. 1084; 3 R.C.L. 834. Appellant’s first point is sustained.

Appellant’s sixth point asserts in substance that a fact issue exists as to whether the contract alleged by appellee was ever fully performed. Again we agree with appellant.

Appellee’s affidavit in support of his motion for summary judgment contains these allegations:

“That affiant contracted with the said Mildred M. Douglass to furnish certain labor and material in the reconditioning of certain personal property belonging to the said Mildred M. Douglass, and upon completion thereof the said Mildred M. Douglass would and did execute her acceptance thereof (See Exhibit “B” attached).”

Exhibit “B” referred to in appellee’s affidavit does not support appellee’s claim that Mildred Douglass accepted performance of the contract. It is a copy of a bill of lading apparently pertaining to a shipment of merchandise from “Ben Panek of Custom Design, Inc.” consigned to “Falk Fabric Co.” with destination shown to be “M. Douglas State of Texas * * * Route 3318 Daniels Dallas.” Under the printed general heading of “NO. — DESCRIPTION OF ARTICLES, SPECIAL MARKS AND PACKAGES — EXCEPTIONS” a blank space is filled in as follows : “Completion of Apts # 1 — A 5 # 10 —M. M. Douglass /s/.” Other than the above entries all blank spaces on the printed form are left vacant.

Exhibit “B” does not show that materials were furnished or that the furnishing of materials in appellant’s apartments was completed in accordance with the terms of the note. It does not show that any labor was furnished by Ben Panek though Panek in his affidavit says he contracted to furnish materials and labor. And it does not show the “extent” of the money, if any, “expended by Ben Panek for the purpose of rehabilitation of various apartment units located at 3318 Daniel Ave.” In short, Exhibit “B” wholly fails to prove performance of the contract between appellant and appellee. That being so, ap-pellee has failed to make out a case by his pleadings, affidavits and exhibits. Aside from an amended verified answer wherein she pled fraud with respect to the contract and forgery with reference to the alleged bill of lading, appellant filed no affidavits in reply to appellee’s motion for summary judgment. But it was not necessary for her to do so, since appellant by his own showing developed fact issues which defeat his motion for summary judgment. Freeberg v. Securities Investment Co. of St. Louis, Tex.Civ.App., 331 S.W.2d 825, 826. Appellant’s sixth point is sustained.

In her second and third points appellant attacks the allowance of attorneys’ fees. The instrument sued on expressly provides for payment of ten percent attorneys’ fees if placed in the hands of an attorney for collection. Appellant’s second and third points are overruled.

In her fourth point appellant says that the court erred in considering Exhibit “B” in that Rule 59, Texas Rules of Civil Procedure was violated. Though we have held that Exhibit “B” did not establish completion of performance of appellee’s contract as contended by appellee, we do not think the court violated Rule 59, T.R.C.P. merely by considering the exhibit. • The fourth point is overruled.

Appellant’s fifth point asserts that since appellant pled fraud in her verified amended answer to appellee’s petition a fact issue was raised. Appellee challenges the sufficiency of fhe allegations on the ground that they are too general. Since this cause is being remanded for further proceedings and the pleadings may well be amended again we shall not pass on appellant’s fifth point.

The judgment is reversed and the cause remanded to the trial court for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Kate Howard USHER, Appellant, v. Mrs. Ruth Lawton GWYNN et al., Appellees.
    No. 14165.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1964.
    Rehearing Denied Feb. 19, 1964.
    Hicks, Dollahon & Wohlt, F. Warren Hicks, Frank G. White, Houston, for appellant.
    Lola L. Bonner, Rockport, for appellees.
   BARROW, Justice.

This is a will contest in which Mrs. Ruth Lawton Gwynn and Mrs. Fred J. Ashley, as proponents, offered a holographic instrument, dated August 7, 1961, for probate as the last will and testament of Howard S. Cunningham. Kate Howard Usher, niece of testator, contested the instrument on the grounds of want of testamentary capacity and undue influence allegedly exercised on testator by proponents.

The case was tried before a jury and all issues, except that of revocation, were answered favorably to proponents. The trial court sustained proponents’ motion to disregard the jury finding on the issue of revocation and entered judgment admitting said will to probate. Contestant has perfected her appeal from this judgment and asserts that there was evidence to support the negative jury finding that the will had been revoked and that, as a matter of law, the deceased was acting under the undue influence of proponents at the time of the execution of the will.

Howard S. Cunningham died in Rockport, Texas, on November 7, 1961, at the age of 78 years, and left an estate of the value of approximately $16,000. At the time of his death, his sister, Kate Cunningham Usher, was his sole heir at law. Mrs. Usher initially filed this contest but died intestate prior to the time of the trial, leaving as her sole heirs Dr. Francis Cow-gill Usher and contestant, Kate Howard Usher. Dr. Usher conveyed all his interest in testator’s estate to his sister, Kate Howard Usher, and she thereby asserted claim as the sole heir at law of Howard S. Cunningham.

The Texas Probate Code, among other requirements, places the burden upon the proponent of a will to prove to the satisfaction of the court, that the will was not revoked by testator. Sec. 88(b) (3), Texas Probate Code, Vernon’s Ann.Tex. Stats. This statutory requirement must be proved whether there is a contest and whether the pleadings raise the issue or not. May v. Brown, 144 Tex. 350, 190 S.W.2d 715, 165 A.L.R. 1180; McElroy v. Phink, 97 Tex. 147, 76 S.W. 753.

This requirement was submitted to the jury in the form of a double negative issue, which, although properly placing the burden upon proponent, tends to confuse the jury. For this reason, this form of issue has been often criticized. Corbell v. Koog, Tex.Civ.App., 188 S.W.2d 905, writ refused. Here the issue was submitted without objection and all parties apparently agree that proponents, by the finding of the jury, failed to carry their burden to show that the will offered for probate had not been revoked. Proponents urge, however, and the trial court found, that there is no evidence to support the finding by the jury.

The principal question before us is whether the trial court erred in disregarding this finding by the jury. In determining this “no-evidence question,” we must view the evidence most favorable to the answer and disregard that militating against it. If the jury’s answer may reasonably be inferred, when viewed in this light, there is legally sufficient evidence to support the answer and the trial court should not have disregarded it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; No Evidence and Insufficient Evidence Points of Error, Robert W. Calvert, 38 Tex.Law Rev. 361.

The Texas cases hold that proponent’s burden of proving that the will has not been revoked is discharged and the will is entitled to be probated when its due execution is proved, in the absence of circumstances which cast suspicion on it, or in the absence of evidence of its revocation. This is done by a presumption of continuity of status and a prima facie case against a revocation. If the contestant puts in sufficient evidence to rebut the presumption of non-revocation, then the burden of going forward with the evidence shifts back to the proponent of the will, and he must discharge, by a preponderance of the evidence, his burden of proof that the will was not revoked. McElroy v. Phink, supra; Covington v. McDonald, Tex.Civ.App., 307 S.W.2d 335; Venner v. Layton, Tex.Civ.App., 244 S.W.2d 852; 8 Tex.Law Rev. 408. The courts recognized a distinction between evidence to raise the issue of the act of revocation and sufficient evidence to show execution of a subsequent revoking will. Brackenridge v. Roberts, 114 Tex. 418, 270 S.W. 1001; May v. Brown, supra; Corbell v. Koog, supra.

Contestant asserts that the issue of revocation was raised in this case by the testimony of Dr. Usher and his wife, that subsequent to the death of Howard S. Cunningham they were shown an instrument, by proponents’ attorney, different from the instrument offered in probate, and were advised by this attorney that this second instrument, which was also dated August 7, 1961, was the last will of decedent. This purported second instrument, which was said to be in the custody of proponents’ attorney, was never produced in evidence. Contrary to the facts in Covington v. McDonald, supra, both Dr. Usher and his wife testified unequivocally that they read this purported second will, and it was different from the will offered by proponents. They both testified that it was shorter than the probated instrument and that it was witnessed by proponents. Mrs. Usher testified that the bequest to Mrs. Gwynn was for fifteen shares of stock in the will shown her by proponents’ attorney, whereas the probated will made her the residuary beneficiary. The existence of the purported second will was denied by both Mrs. Gwynn and Mrs. Ashley. They further denied that the will offered for probate was ever revoked. The attorney for proponents did not testify.

Although there is sufficient evidence to support the jury’s finding that the proponents did not exercise undue influence over' testator, the will is an unnatural one from the standpoint that it does not make any bequest or reference to his sole heirs. This is particularly unusual as regards contestant, as she had lived in the home of testator and his first wife for seventeen years, and there was no evidence of any hostility or other reason for her omission from the will. It was further shown that testator had indicated on several occasions prior to August 7, 1961, that his property would go to-Dr. Usher and contestant on his death. Contestant and Dr. Usher lived in Houston, and all of testator’s papers and personal effects were in proponents’ custody after his death.

Mrs. Gwynn, who was bequeathed approximately $11,000 of testator’s estate, met testator after he moved to Rockport early in 1960 and married Mrs. Hannah Stone. Mrs. Hannah Cunningham died in May, 1960. Mrs. Gwynn operated a shop across the street from the apartment where testator lived after the death of Mrs. Cunningham, and was a very helpful and considerate friend of testator until his death. Mrs. Ashley and her husband were neighbors of Mrs. Stone and became acquainted with testator when he moved to Rockport in 1960. They were not related to testator, but were kind friends.

It is our opinion that the testimony of Dr. Usher and his wife, that they were shown another instrument which was in the control of proponents and represented by proponents’ attorney as being testator’s will, is some evidence, and rebutted proponents’ prima facie case against a revocation, under all the circumstances of this case. May v. Brown, supra. The trial court erred in disregarding the jury’s answer on the revocation issue.

The judgment of the trial court is reversed and rendered to deny probate of the will offered by proponents.

      . “SPECIAL ISSUE NO. 3. Do you find from a preponderance of the evidence that exhibit P-1 had not been revoked by Howard S. Cunningham at the time of his death?
      “Answer: ‘yes’ or ‘no’
      “We, the Jury, answer: ‘No’.”


author: WALTER, Justice.

text:
    N. H. REED, Relator, v. Hon. R. W. CATON et al., Respondents.
    No. 3871.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 31, 1964.
    Rehearing Denied Feb. 21, 1964.
    George T. Thomas, Clyde E. Thomas, Sr., Big Spring, for relator.
    Walter K. Boyd, Jr., Midland, Gordon L. Brelsford, Tyler, O. M. Street, Dallas, for appellees.
   WALTER, Justice.

N. H. Reed has filed a petition for a writ of prohibition against the Honorable R. W. Catón, District Judge of the 118th District of Howard County, Texas, to prohibit him from taking any further action in cause number 14,006, styled J. D. Garlington v. The Permian Oil Company, N. P. Powell Oil, Inc., and N. H. Reed, except to dismiss the case. He also asked for an injunction against the plaintiff J. D. Garlington and his attorney, O. M. Street.

Cause number 14,006 is a trespass to try title suit brought by J. D. Garlington against The Permian Corporation, N. P. Powell Oil, Inc., and N. H. Reed, wherein he is claiming the fee simple title to a one-half interest in the minerals under all of Sections 20, 21, 22 and 23 out of Block Number 25, H & T C Ry. Co. Survey in Howard County, Texas. The plaintiff alleges that he is the sole and only heir of J. S. and Jennie Lou Garlington; that his mother and father both died intestate; that on the 1st day of September, 1937, J. J. Perkins and others made, executed and delivered to his father J. S. Garlington a general warranty deed to said four sections of land. He alleges that said deed contained a provision that the grantors therein reserved one-half of the minerals for a period of twenty-five years from the date of said conveyance “and on September 1, 1962, the interest and title of the one-half (½) mineral herein reserved by J. J. Perkins and L. H. Cullum shall automatically revert to and become the property of the Grantee herein, or his assigns * *

On May 24, 1941, in cause number 3807, in the District Court of Howard County, Texas, in a suit styled A. L. Wasson v. J. S. Garlington and his wife Jennie L. Garlington, judgment was rendered awarding title and possession to said four sections of land to A. L. Wasson. The Gar-lingtons appealed from such judgment but their appeal was dismissed for failure to file briefs on February 13, 1942. The opinion was not published.

On June 22, 1948, J. S. Garlington and wife filed a trespass to try title suit against A. L. Wasson and wife and N. H. Reed claiming the fee simple title to Sections 20, 21, 22 and 23, Block 25, H & T C Ry. Co. Survey, Howard County, Texas. Mrs. Garlington died. J. D. Garlington, individually, and as next friend for his father J. S. Garlington, who was alleged to be a person of unsound mind, filed an amended petition and plea in intervention. Based on a verdict, the court rendered a “take nothing” judgment against the Garlingtons. In an opinion affirming said judgment the 'Court of Civil Appeals in Garlington v. Wasson, 279 S.W.2d 668, (writ ref. n. r. e.), said:

“This is, at least, the fourth proceeding with reference to that controversy which has been in this court and, as heretofore indicated, it has taken the time of many courts. Land titles should not be in question over a period of many years in many cases between the same parties or their privies. The parties are entitled to finally have an end to this litigation.”

Garlington now contends that his right to the one-half mineral interest has not been adjudicated. The Garlingtons described the property in their trespass to try title petition as Sections 20, 21, 22 and 23, Block 25, H & T C Ry. Co. Survey, Howard County, Texas. They thereby put in issue their claim to the fee simple title to the four sections of land, which included the reversionary interest. The effect of the “take nothing” judgment was to divest' all title out of the Garlingtons and vest same in Wasson and Reed. A. T. Halbert v. Green, 156 Tex. 223, 293 S.W.2d 848, (Supreme Court). J. D. Garlington and N. H. Reed were parties to that suit. J. D. Gar-lington is the plaintiff in cause number 14,-006 and N. H. Reed is one of the defendants.

“After a question of law or an issue of fact has been litigated and adjudicated in a court of competent jurisdiction, the same matter cannot be relitigated in a subsequent suit between the same parties or those in privity with them. This is by virtue of the doctrine of res judicata, which thus extends to both questions of law and issues of fact but binds only the parties to the first suit and those who claim under them.” Swilley v. McCain, Texas Supreme Court, 374 S.W.2d 871.

A writ of prohibition is granted against Honorable R. W. Catón, District Judge of the 118th Judicial District of Texas, of Howard County, Texas, prohibiting him from taking any further action in Cause No. 14,006 in the District Court of Howard County, Texas, styled J. D. Garlington v. The Permian Oil Company, N. P. Powell Oil, Inc., and N. H. Reed, except to dismiss the same at Plaintiff’s costs.

A writ of injunction is granted against J. D. Garlington of Los Angeles, California, and O. M. Street of Dallas County, Texas, enjoining them from hereafter filing any type of legal proceeding against N. H. Reed or any person holding title under him involving the title to Sections 20, 21, 22 and 23 in Block 25 of the H & T C Ry. Co. Survey in Howard County, Texas, or any part thereof, or any interest therein. City of Dallas v. Dixon, 365 S.W.2d 919, (Supreme Court.).

COLLINGS, J., not sitting.


text:
    B. G. GILLEY, Appellant, v. Joyce MORSE et al., Appellees.
    No. 16294.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 24, 1964.
    Rehearing Denied Feb. 21, 1964.
    Ramey, Brelsford, Hull & Flock, Jack W. Flock, Tyler, for appellant.
    Locke, Purnell, Boren, Laney & Neely and John D. Crawford, Burnett & Cruce and Eugene L. Smith, Dallas, for appellees.
   DIXON, Chief Justice.

This is an appeal from an order overruling two pleas of privilege, both filed by appellant, B. G. Gilley.

Joyce Morse and two minor children, plaintiffs in the trial court, appellees here, brought suit in Dallas County against Olen Lee Welk and Olen Dee Welk, defendants in the trial court, but also appellees here, for $46,100 for personal injuries resulting from a collision of motor vehicles alleged to have occurred in Dallas County, Texas.

The two Welks, defendants, thereafter filed a third party action against B. G. Gilley, appellant here, alleging that Gilley had rented a defective trailer which was being towed by defendants Welk and that the defective trailer was the cause of the collision.

Gilley, a resident of Tyler, Smith County, Texas, filed a plea of privilege asking that the Welks’ suit against him be transferred to Smith County for trial.

Thereafter Joyce Morse and the two children filed an amended petition in which B. G. Gilley was named as a party defendant.

Appellant B. G. Gilley filed another plea of privilege, this plea asking that the Morses’ suit against him be transferred to Smith County for trial.

The plaintiff Joyce Morse et vir and the defendants Welk filed controverting pleas alleging that venue should remain in Dallas County under Exceptions 4 and 9a of Art. 1995, Vernon’s Ann.Civ.St.

At the hearing on the two pleas of privilege no evidence was introduced. However, the attorneys for the plaintiffs Morse and the defendants Welk in open court entered into an oral agreement in behalf of their clients whereby “for this hearing only, and without prejudice to contrary positions on the trial on the merits, and only for venue purposes” it was stipulated that “the defendants Welk are residents of Dallas County, Texas, and that the plaintiff Morse does have a prima facie case against the resident defendant Welk — both Welks.” (Emphasis ours.)

Appellant B. G. Gilley attacks the order overruling his pleas of privilege in three points on appeal: (1) appellees Morse failed to prove by competent evidence that they had in fact a bona fide cause of action against the Welks, the resident defendants; (2) the stipulation entered into between the plaintiffs Morse and the defendants Welk, to which appellant Gilley was not a party, was not sufficient to establish venue as to Gilley in Dallas County under Exception No. 4 of Art. 1995, V.A.C.S.; and (3) no competent evidence was offered establishing the existence of any exception under Art. 1995, V.A.C.S.

We agree with appellant. Under Exception No. 4 of Art. 1995, V.A.C.S. it is necessary for a plaintiff to (a) allege and prove that one of the defendants resides in the county of suit; (b) allege a joint cause of action against the defendants or a cause so intimately connected with the cause of action against the nonresident defendant that the two may be joined to avoid a multiplicity of suits; and (c) allege and prove that he has in fact a bona fide cause of action against the resident defendant. King v. Jones, Tex.Civ.App., 307 S.W.2d 851; Fester v. Locke, Tex.Civ.App., 285 S.W.2d 239; Choate v. Wade, Tex.Civ.App., 241 S.W.2d 254; Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Caprito v. Weaver, Tex.Civ.App., 77 S.W.2d 595.

The stipulation entered into between plaintiffs Morse and defendants Welk is not binding on appellant Gilley. He was not a party to the stipulation. In fact, he objected and protested against the stipulation so far as he was concerned. Willis v. First National Bank of Burkburnett, Tex.Civ.App., 262 S.W. 851; Grant v. Hill, Tex.Civ.App., 30 S.W. 952; 83 C.J.S. Stipulations § 14, p. 35. The stipulation to which he was not a party cannot deprive him of his right to be sued in the county of his residence. It follows that the Morses and the Welks, all of whom occupy the position of plaintiffs as to appellant Gilley, have failed to prove so far as Gilley is concerned that the plaintiffs Morse have a bona fide cause of action against the Welks, the resident defendants.

In support of their contention appellees cite the recent case of Wood v. Self, Tex.Civ.App., 362 S.W.2d 188, decided by this court. The Self case is not in point here. The stipulation in the Self case was entered into by all the parties to the suit, including appellant. Having agreed to the stipulation, appellant in the Self case was bound by it.

As to Exception 9a of Art. 1995, V.A.C.S., no evidence by stipulation or otherwise was offered to prove that any act or omission of negligence occurred in Dallas County where suit was filed. The pleadings of the parties cannot be accepted as evidence to establish such fact.

Appellees in their brief state that the only harm to appellant is the deprivation of his right to be sued in Smith County. We point out that it has often been held that a defendant’s right to be sued in the county of his residence is a valuable right and a litigant may not lightly be deprived of the right. Tatum v. Home Improvement Loan Co., Tex.Civ.App., 300 S.W.2d 215; Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969; Gunstream v. Oil Well Remedial Service, Tex.Civ.App., 233 S.W.2d 897.

Appellant’s three points on appeal are sustained.

The judgment of the trial court is reversed and judgment is here rendered sustaining appellant’s pleas of privilege. The case will be remanded to the trial court with instructions to transfer the causes of action against appellant B. G. Gilley to Smith County, Texas for trial.

Reversed and rendered.


author: GREEN, Chief Justice.

text:
    Dorothy Mae HENDERSON et vir, Appellants, v. Roger E. WEISSER, Appellee.
    No. 13.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 19, 1964.
    Carl C. Conley, Raymondville, for appellants.
    L. E. Stiernberg, of Carter, Stiernberg, Skaggs & Koppel, Harlingen, for appellee.
   GREEN, Chief Justice.

This appeal was from an interlocutory order of the district court of Willacy County, Texas, granting a temporary injunction in a child custody case. A joint motion has been filed with us by all parties stating that since the appeal, the case has been tried on its merits in the trial court, and that all issues involving the present appeal have become moot. Said motion asks that the appeal be dismissed.

This appeal is accordingly ordered dismissed.


author: COLEMAN, Justice.

text:
    John CLARK, Jr., Individually and d/b/a Clark’s Brake & Wheel Alignment Service of Houston, Appellant, v. Ronald PRINGLE, Appellee.
    No. 14283.
    Court of Civil Appeals of Texas. Houston.
    Jan. 30, 1964.
    Rehearing Denied Feb. 20, 1964.

      McGregor, Sewell, Junell & Riggs, Wm. E. Junell, Houston, for appellant.
    Thomas G. Bousquet, Houston, for appel-lee.
   COLEMAN, Justice.

This is a suit to recover the value of property destroyed by fire while in the possession of a bailee.

Appellee left his automobile with appellant for the purpose of having it repaired. When he returned for it he was informed that it had been destroyed by fire. Appellee filed suit, alleging these facts and further alleging that the destruction of his automobile by fire was proximately caused by certain acts of negligence on the part of appellant. On trial of the case the jury found that appellant failed to store the vehicle in a reasonably safe place and that appellant failed to keep a proper lookout for fire on his premises at the time and on the occasion in question; that each failure was negligent and the proximate cause of appellee’s damage.

Appellant contends that there is no evidence, or insufficient evidence, to support the findings of the jury, and that the trial court erred in failing to sustain his motions for instructed verdict and for judgment notwithstanding the verdict.

The testimony produced at this trial would support different conclusions and inferences, but is not conflicting in material particulars. Appellee’s vehicle was stored in a building having a concrete floor, outside walls and roof of sheet metal, and joists, rafters and studding of 2 X 4 timbers. All of the wooden portions of the structure were enclosed by the sheet metal except the barge rafter, which was the last rafter on the gable roof. This barge rafter was attached to the ridge, also of wood, to which other rafters supporting the roof were attached.

A witness testified that he saw smoke, which appeared to be paper smoke, some time before he went to the scene of the fire. When he arrived at the scene, about five minutes before the fire department was called, grass had burned up to a six foot high fence, which was located about four feet from the building in which appellee’s car was stored. When he arrived at the scene the fence had begun to burn at the bottom. It was a small fire which he could have extinguished with a garden hose. Other people were there, but none of them had a hose.

The fire department was called at 4:29 p. m. to put out a grass fire and a tank truck arrived soon thereafter. The witness saw no evidence of a fire inside the building and was concerned only with saving the fence. When the pumper truck arrived, the fence was blazing and soon after it arrived, at 4:36 p. m., additional trucks were called. The pumper truck “was doing pretty good for a little while but he ran out of water.” The fire from the fence caught the barge rafter on fire. The firemen just about had the fire on the barge rafter contained when the water ran out. The fire was going pretty good when the other trucks got there.

This witness testified that the only way the fire could have gotten in the building was for the barge rafter to have gotten hot enough to catch the ridge on fire. “That is the only way I could see for it to get inside would be for that single board at the top to be on fire. It was or was near on fire. It was near it, I will say that, but I don’t know how it ever got in there on that one board but it sure was going. I mean just all of a sudden.” (emphasis added)

Two other witnesses said that they heard the sirens on the fire trucks and saw the smoke a short distance from their place of business. They arrived at the scene about the same time as the fire trucks and at that time, one testified, the building was “in complete flames”; “like a match box”; “a fierce fire”; “flames shooting out the top from all directions.” The other described it as a “tremendous fire”; “a blazing inferno”. The roof collapsed within three or four minutes after they got there. The heat was so intense that a building twenty to thirty feet away began to burn.

One of appellant’s employees was notified by telephone of the fire. When he stepped out the door of the building in which he was working, he saw flames around the top of the door. The building was locked some time before two o’clock and he didn’t know where the key was and he didn’t have any way to get in, “not even a good sized bar.” He assumed there was a “pretty good fire.” He immediately went back to the telephone to call the fire department, but the telephone was dead. He heard the fire truck just after he tried to call.

An inflammable cleaning fluid was used to clean parts, but it was not stored in the building which burned (called the R & R Building). Employees had been working in the building that morning. The building had not been swept. There was an accumulation of oily rags in the building. A metal container with a tight cover was provided for these rags, but there was no testimony from appellant or his employees concerning the condition of the premises on the day of the fire.

Appellant testified that he provided no type of special protection for the building. He testified that before the fire he customarily looked around for fire hazards and policed the place. He had seen the trash and barrels IS to 20 feet behind his fence, and that the barrels looked like they were used to burn trash. He also testified that he drove down the road by the lot where the trash barrels were located in testing cars, but that he hadn’t particularly thought about fires. There was grass and weeds on the lot near the barrels. Appellant had the grass cut between the fence and his building about every two weeks at which time it would sometimes be 12 inches high. He testified that transmission fluid was kept in the building and that while he didn’t think it would burn and had never seen it burn, he didn’t know whether it would burn or not.

Another building of similar construction located along the fence line four to five feet from the R & R Building did not burn.

The jury might well have reasoned that since the swiftness with which the fire developed could not be explained by the flammable nature of the building itself, it must have been caused by material left in it by appellant’s employees. Such a conclusion would be reinforced by the size and fierceness of the fire. The fact that within ten minutes after the barge rafter caught on fire the flames were so intense inside the building that the firemen who forced open the doors were unable to enter the building safely, is circumstantial evidence that something other than the 2X4 studding and rafters were burning. The evidence establishes that an accumulation of oily rags was in the building. The fact that the building of similar construction five feet away from this fierce fire did not burn could also be considered by the jury as a circumstance showing that appellee’s car was not stored in a reasonably safe place, as is the fact that the employees on the premises had no means of gaining entrance to the building.

There was sufficient evidence from which the jury could have concluded that appellant knew that trash was burned in open barrels 15 feet behind the wooden fence in the midst of high grass and weeds and should have realized the danger of fire being communicated to his building.

Under these circumstances we consider that the jury findings to the effect that appellant was negligent in storing appellee’s automobile in an unsafe place proximately causing damage to appellee’s automobile is supported by evidence of probative force. After considering all of the evidence we have also concluded that there is sufficient evidence to support such findings.

The judgment of the trial court is affirmed.


author: BELL, Chief Justice.

text:
    James HUNTER, Administrator of the Estate of W. Q. Hunter, Deceased, Appellant, v. Mrs. Willie King COOK, Independent Executrix of the Estate of Mary E. Hunter, Deceased, et al., Appellees.
    No. 14289.
    Court of Civil Appeals of Texas. Houston.
    Feb. 6, 1964.
    Rehearing Denied Feb. 27, 1964.

      Herman W. Mead, Houston, for appellant.
    Robert W. Hainsworth, Houston, in pro. per. and for appellee Willie King Cook.
    P. Harvey, Houston, for appellee R. L. Stone.
   BELL, Chief Justice.

Appellant, in his representative capacity, sued appellee, Mrs. Willie King Cook, in her representative capacity, to recover certain rentals that he alleged she had collected from rent property in which' they, as representatives of deceased persons, each had a one-half undivided interest. The rentals which had. not been accounted for were collected by Mrs. Cook after her qualification as independent executrix. The attorney for the executrix was joined in the suit because of an agreement he made with appellant to see to it that rentals collected by the executrix would be accounted for by her. The executrix answered and admitted the collection of the rentals, but claimed certain deductions should be made and when made there would be nothing owed. She filed a cross-action against appellant, asserting that before she started collecting the rents appellant in his representative capacity had collected some rents for which1 he had not accounted to the executrix. She also interpled R. L. Stone, the life tenant under her testatrix’s will. The suit was for $377.24. The cross-action does not really seek recovery of anything against appellant, but merely seeks certain allowances to offset the amount claimed.

Appellant filed a plea in abatement as to the cross-action and of the life tenant’s claim for rents collected asserting that since he was an administrator the claims therein asserted must be presented to him for allowance and determination by the Probate Court.

The trial court on trial- dismissed the cause because, as stated in the corrected judgment of May 10, 1963, “ * * * the Estate of W. Q. Hunter is open and no final account being filed.”

Appellant’s theory, as briefed, is that he can sue an independent executrix without presenting any claim. The executrix’s theory is that Section 146 of the Probate Code, as amended, V.A.T.S., requires presentation of a claim to an independent executrix. She also contends that the trial court had no jurisdiction as to the claims asserted by her against the administrator and therefore the whole cause was within the juris-; diction of the Probate Court.

Prior to the amendment of Section 146 of the Probate Code in 1957, the law was well settled that no claim need be filed with an independent executrix but suit could be filed against her upon her réfusal to pay. This, of course, is assuming the estate had not under some provision of law come under the Probate Court’s jurisdiction. In the light of the amendment of 1957, the Honorable Kenneth Woodward, of the University of Texas School of Law, in an article entitled “Some Developments in the Law of Independent Administrations”, has expressed the opinion that there is the distinct possibility that now such claims must be presented and if they are denied, suit must be brought within the 90 day period prescribed by Section 313, Probate Code. Texas Law Review, Vol. 37, p. 837.

We need not decide whether the law has been so changed, because the claim asserted by appellant against the independent executrix is not a claim that is required to be presented even to an administrator. The claims required to be presented to an administrator are those arising before the appointment and qualification of such representative. The statutes do not relate to claims arising out of contracts of the representative after qualification. Section 317(d), Probate Code. Here the suit is for rents collected by the independent executrix that she agreed to pay over to appellant. The trial court had jurisdiction over this cause of action asserted by appellant and was in error in dismissing the cause.

Appellees contend the trial court dismissed the cause because of the amounts asserted by the independent executrix against the appellant administrator and the court was of the view all the claims should be asserted in one forum. There is nothing in the record to show the exact theory the court had in mind. The judgment merely recites the cause is dismissed because of the pendency of the estate of appellant’s intestate in the Probate Court. However, if, as here, a court has jurisdiction of a plaintiff’s suit, it does not lose jurisdiction merely because a defendant has a claim he cannot assert by cross-claim because it is beyond the jurisdiction of the court where the suit is pending. Nor may plaintiff’s suit be abated until the defendant pursues his remedy in a court having jurisdiction of his cross-claim. Nelms v. C. B. Delhomme, Inc., et al., 340 S.W.2d 123 (C.C.A.), no writ hist.

If appellant cannot sue as he has here, he has no remedy because the Executrix is not subject to the jurisdiction of the Probate Court.

We are of the view, however, that the Executrix may without resort to the Probate Court, or filing a claim with appellant, set up against appellant by way of offset the claims she has here asserted. The effect of her pleading, as well as the third party defendant Stone, is to say no rentals are owed by them because of the items offsetting the rentals collected by her. There is no claim for any excess. Traders’ National Bank v. Cresson, 75 Tex. 298, 12 S.W. 819. The cited case is precisely in point except the offsetting claims existed at deceased’s death. In this case the offsetting claims each grow out of acts of representatives of deceaseds’ estates, allegedly giving rise to an obligation to account.

Appellees suggest the appellant was required to obtain authority from the Probate Court to sue and there is no showing he did. Any such matter is waived unless asserted by a plea in abatement. Rule 93, Texas Rules of Civil Procedure.

Appellant suggests that no complaint has been made on appeal of the action of the trial court in sustaining his plea in abatement to the cross-action and pleading bringing in the life tenant. We find nothing in the record showing any such action by the trial court. The whole cause was dismissed.

The judgment of the trial court is reversed and the cause is remanded for trial on the merits.


author: RUARK, Presiding Judge.

text:
    Shelby Dean WILSON, a minor, by Henry T. Wilson, his next friend, Plaintiff-Respondent, v. Frank CADE, Defendant-Appellant.
    No. 8219.
    Springfield Court of Appeals. Missouri.
    Feb. 8, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Overruled March 5, 1964.

      Dwight Crader, Sikeston, for defendant-appellant.
    Gilmore & Dement, Kenneth L. Dement, Sikeston, for plaintiff-respondent.
   RUARK, Presiding Judge.

This is an appeal by defendant Frank Cade from a verdict-based judgment obtained by plaintiff Shelby Wilson, by his father and next friend, Henry T. Wilson, on áccount of injuries sustained when the car in which Shelby was riding went into a drainage ditch.

The scene' of the accident is a “T” intersection' one-half mile south of the city limits of East Prairie, which we will take judicial notice (State v. Padgett, 316 Mo. 179, 289 S.W. 954) is a city of the fourth class. Martin Street runs north and south out of the main part of town. Its extension runs into an east-west county road to make the “T” intersection. The Martin Street extension has blacktop pavement twenty feet wide with dirt shoulders. The road it runs into at the “T” is also paved with blacktop, sixteen to eighteen feet wide, and also has dirt shoulders. The intersection does not appear to be banked in either direction.

Running south along the east side of Martin Street extension is an open drainage ditch. As it reaches the “T” intersection, it crosses under the road at an angle to the west, emerges on the other side of the east-west road and continues on south so that the west half of such emergent drainage ditch occupies approximately what would be the east half of Martin Street if such street had continued south past the intersection. At the point of emergence on the south side of the east-west road this ditch is about twenty-four feet wide at the top and ten feet wide at the bottom. It is five and one-half feet deep. North on Martin Street, apparently a short distance south of the city limits, is a turnoff or entrance to a bridge coming in from the east. It is called the “project bridge.”

The event which produces this lawsuit is that one Claude Ward (age sixteen) was driving south on Martin Street sometime after midnight on June 8, 1962. With him was plaintiff Shelby Wilson (age nineteen). The Ward car was being chased or followed by an East Prairie police car then being driven by defendant Frank Cade, a night policeman. Riding with Cade was another police officer, Martin Morgan. Plaintiff’s case is that, at the “T” intersection, the Ward car was struck in the rear by the police car and caused to go out of control and into the drainage ditch, whereby plaintiff was injured.

There is some dispute in the evidence as to the antecedent activities of the parties. According to plaintiff’s evidence, he and Ward, both residents of East Prairie, got together about seven p. m. They went some place near or in town to get a girl, but she did not accompany them. Then (they went) about two miles out of town to a “drive-in” where they saw a show, danced some, and returned to town about midnight; then to a truck stop west of town to see a friend about a tire pump (the friend was not there); then back to town to look for the friend; then to a drive-in restaurant, but nobody was there and they didn’t stop. They went on out and turned around at a garage (unlocated) and back through town to the four-way stop at Martin and Washington Streets; then south on Martin to where the mishap occurred.

Defendant’s evidence, without relating details, is that the Ward car and another car were (in terms of the officers) playing “cowboy” — that is, accelerating rapidly, “squalling the tires,” and exceeding the speed limit. The officers, by their (defendant’s witnesses’) testimony, had chased or followed the Ward car and the other car as the two proceeded around and through town and as they went out of town. Counsel for respondent refers to the activities of the officers as “cat and mouse” tactics. We think most of this evidence of preliminary activities is not pertinent; and, in any event, since we must accept the plaintiff’s evidence as true, we discard all of it concerning these preliminary activities except as to that portion of plaintiff’s evidence which may show familiarity with the streets and roads in and surrounding the City of East Prairie.

As to the specific event: The officers testified that they saw the Ward car (this time) proceeding on Washington Street and that as it turned south on Martin Street it accelerated very rapidly and they followed. From there on the stories vary widely. Plaintiff Wilson and driver Ward say that after they got on Martin Street they saw a car behind but supposed it was a friend and speeded up a little; that when they got in the vicinity of the “project bridge” they saw the flashing red light of the police car behind them and continued on south. Ward was driving sixty miles per hour or fifty-five to sixty miles per hour, but they never got over sixty miles per hour; the police car got as close as eight to ten feet and when Ward attempted to make the turn at the “T” the police car struck the rear of his car, the driver was thrown against some portion of the car, lost control, and the car went into the ditch. Plaintiff’s witness Williams, who lived on Martin Street somewhere between the project bridge and the intersection, testified that a little after midnight he heard “a car come through with girls and kids screaming.” This excited him, so he went out of the house and stood about fifty feet from the street. Within the space of three or four minutes two cars came by; one was an ordinary car, and close behind it, within six or seven feet, was a police car with a red light flashing on top. He heard a siren go on. The cars went on down toward the “T.” He heard a kind of “dead” sound, and went down to the intersection and saw the Ward car sitting on its wheels in the drainage ditch south of the “T” headed southeast. The police car was parked nearby.

The testimony of the officers was that as they made the turn south off Washington Street onto Martin Street, the Ward car was at least two hundred fifty feet ahead. Appellant Cade says he drove the police car (a 1962 Chevrolet) as fast as it would go and never could get any closer. Various witnesses testified, and photographs were introduced to show, that the police car bore no scratch or mark of contact on its front or bumper.

Appellant contends that he is entitled to an outright reversal for failure to enter judgment because (a) the judgment is not supported by credible evidence and is contrary to the overwhelming weight, and the testimony of plaintiff and his witness Ward is so self-contradictory, inconsistent, and obviously perjured as to constitute no evidence that the police car struck the Ward car; and (b) plaintiff’s evidence convicts him of contributory negligence as a matter of law.

As to the inconsistencies and contradictory evidence: Plaintiff’s witness Ward, driver of the car, testified that as he got about to the city limits he was driving between twenty-five and thirty miles per hour. He saw headlights behind and “started moving out” a little faster. At about the proj ect bridge he saw the flashing red light and just kept going. He said, “The radio was on and playing pretty loud. He [plaintiff] turned to me and said something. I don’t know what he said. I wasn’t listening to him or anything. I was more interested in watching the road.” He said he did not see any reason to stop because he was past the city limits. When he saw the corner coming up, he hit his brakes and “just locked the wheels and started it to sliding, and as I started to cut the wheel of the curve, the police car hit me in the rear of the car * * “ * * * he wasn’t [pulling up beside me] and I started cutting the wheel and that is when he hit me.” He was already skidding when the police car hit him. He did not speed up or slow down after he saw the police car behind him. In his deposition he testified that when he recognized the car behind as a police car, “I shoved the accelerator down and kept going.” “Q. Were you still trying to outrun him when you got to the corner and tried to make that turn ? A. Yes.” “I hit my brakes once, and I raised up and saw I was too close to the corner, so I locked my wheels and started sliding, trying to make the corner. I got on the corner and started to cut my wheels. They hit me in the back. * * * ”

Plaintiff Shelby Wilson’s testimony in chief was substantially the same. He said “the cop” was eight or ten feet behind the Ward car when it started to turn. He said that (at some time which is not very clear but apparently about the time they passed the entrance to the project bridge) “I told him, ‘Claude, slow down. T1'o cops are behind us,’ but the radio was on and I guess he didn’t hear me.” On cross-examination: “Q. Shelby, let me read some questions and answers to you and ask you if these were the questions that were asked you that day and whether or not this was your answer: ‘Q. Did you cry out a warning or say anything to the driver of the car about the police car being back there? A. No, sir.’ Was that your answer that day? A. It might have been but I still say I said what I said here. Q. On that day you said you didn’t, is that correct? This was your answer that day? A. I guess so if that is what you’ve got down.”

Doctors Bruce and Sargent, who were plaintiff’s witnesses, treated plaintiff at the Sikeston Hospital after the collision. Dr. Bruce testified he asked him how the accident happened. Plaintiff told him he was in a car which was being chased by a police car and ran into a ditch. He did not recall plaintiff’s mentioning anything about the automobile being struck by a police car. Plaintiff told Dr. Sargent “that they were in a car accident, that they failed to negotiate a turn.” Defendant’s witness Trooper Norman Copeland testified that the next morning at the hospital in Sikeston he inquired of Ward as to what caused the accident and Ward said that he saw the police car, decided to outrun it, and in so doing, “failed to make this curve and a ‘T’ intersection and went off into the ditch.” Ward said nothing to him about the police car hitting his car. This testimony was, however, impeached by the testimony of Buford Ward, father of driver Ward, who said he heard the interview and driver Ward told the trooper “something hit us” at the corner.

In a jury-tried case we must give the prevailing party the benefit of all favorable evidence which is not at war with his theory of the case and discard that which is opposed. In our review we must assume as true all supporting evidence which is not contrary to known physical laws, and if there is evidence to support the plaintiff’s case concerning which reasonable men might disagree, we are bound by it in determining whether plaintiff made a sub-missible case. The credibility of witnesses and the weight of the evidence is primarily with the jury and secondly with the trial court. Calvin v. Lane, Mo.App., 297 S.W.2d 572; Scrivner v. American Car & Foundry Co., 330 Mo. 408, 50 S.W.2d 1001; Stanziale v. Musick, Mo., 370 S.W.2d 261. Thus, regardless of any possible inconsistencies in the testimony of Ward or any contradictions in the version he might have given other persons, or strongly disputing evidence to the contrary, we must assume that the police car was being driven within a short distance behind the Ward car and that it struck such car as Ward was attempting to make the turn at the “T” intersection.

The mere showing of contradictory statements at other times does not alone and of itself necessarily prove perjury, although it does go to the credibility. Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24; see Whalen v. St. Louis Public Service Co., Mo.App., 351 S.W.2d 788, and Calvin v. Lane, supra, Mo.App., 297 S.W.2d 572. As to whether plaintiff cautioned the driver Ward to slow down: He testified he did, although it would appear that his deposition testimony was to the contrary. It is held that a party is not conclusively bound by his previous testimony under oath by the way of deposition. Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14; Parmley v. Henks, Mo., 285 S.W.2d 710; Leek v. Dillard, Mo.App., 304 S.W.2d 60; Smith v. Trans World Airlines, Inc., Mo.App., 358 S.W.2d 91; Bowman v. Ryan, Mo.App., 343 S.W.2d 613. As to whether a clear, plain, and unequivocal statement made by a party in deposition, concerning his own act and as to whether or not he did a certain thing, which such statement does not in any manner involve an expression of opinion, estimate, or judgment and which such statement is not explained in any manner, could ever be classed as a quasi-judicial admission which would bind the declarant; or whether it would fall within the rule which cancels out both versions as having no probative value (see Wood v. Ezell, Mo.App., 342 S.W.2d 503, and cases at footnote 1), we do not have to decide, because the deposition itself was not put in evidence and the plaintiff did not admit he made the statement. The nearest he came to so doing was in answering the inquiry, “This was your answer that day?”, “I guess so if that is what you’ve got down.” So, we must assume that Wilson did caution the driver to slow down, but the radio was playing “pretty loud” and the driver did not hear him.

There remains the question of whether the statement made by plaintiff to the driver, “ ‘Claude, slow down. The cops are behind us,’ but the radio was on and I guess he didn’t hear me,” under the circumstances so related, discharged the duty which plaintiff owed to relieve himself from negligence or assumption of risk.

The general rule is that when dangers which are either reasonably manifest or known to the guest confront the driver and the guest has an adequate and proper opportunity to influence the situation for safety, if he sits by without warning or protest and permits himself to be driven carelessly to his injury, this is negligence which will bar recovery. Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21; Hieber v. Thompson, Mo.App., 252 S.W.2d 116, 120; Ketcham v. Thomas, Mo., 283 S.W.2d 642. The standard to be applied is that the guest is bound to take such action as an ordinarily or reasonably prudent and careful person would take under the same or similar circumstances. Happy v. Blanton, Mo., 303 S.W.2d 633; Brooks v. Mock, Mo., 330 S.W.2d 759; Ledkins v. Missouri-Kansas-Texas R. Co., Mo., 316 S.W.2d 564. The plaintiff’s situation and duty must be considered as of the time the danger presented itself, and this involves a consideration of all the surrounding circumstances. Each case must stand on its own facts. Fann v. Farmer, Mo.App., 289 S.W.2d 144; Knox v. Weathers, 363 Mo. 1167, 257 S.W.2d 912. As stated in Blashfield—Cyclopedia of Automobile Law and Practice, § 2414, p. 571, “The end which the law seeks in imposing the duty of protest upon the passenger is to induce the driver to discontinue operating the automobile in a manner likely to be productive of injury.”

There is no dispute that the police car was a vehicle owned by the City of East Prairie and operated by the Police Department. It was an “emergency vehicle” within the definition of Section 304.022 [3(1)], V.A.M.S. Paragraph one of the same section provides that upon the immediate approach of such an emergency vehicle (giving the proper signals by lights or siren), the- driver of every other vehicle shall yield the right-of-way and immediately drive to a position parallel to and as far to the right of the traveled portion of the highway and there stop and remain until the emergency vehicle has passed. We think this statute recognizes the dangers to all persons on the highway due to speed, possible assumption of right-of-way, and the likelihood of confusion caused by the approach and passage of such a vehicle, and imposes a duty upon the drivers of all vehicles irrespective of whatever may, or may not, be the licenses, privileges, and duties of the operators of vehicles answering the definition and description of emergency vehicle.

Thus we have two circumstances, both apparent to plaintiff, which cry out for caution: (a) the immediate approach of an emergency vehicle (at least) flashing its red light signal, which circumstance demanded the immediate pulling to the right and stopping; (b) the approach to a square, unbanked “T” intersection at a speed of sixty (or fifty-five to sixty) miles per hour, which circumstance required a decided lessening of speed. Plaintiff was under a duty to do what a reasonable person in his position would have done to so influence the situation as to lessen the danger. We have two difficult questions: (a) Was the admonition he says he gave to the driver in competition with the loud-playing radio sufficient? The duty to warn or protest in this instance required the taking of such steps as were reasonably calculated to convey warning and protest to the senses of the driver, for an uncommunicated protest is no protest, (b) Assuming it was a jury question whether the passenger took reasonable steps to give warning or protest in the first instance, then when it became reasonably apparent that his communication had not affected the sixteen-year-old driver (whether it reached him or not) and the car was rushing toward the “T” intersection (with a deep ditch on the other side) at a speed of sixty miles per hour, did it become incumbent upon the passenger to take further steps to “influence the situation” for his own safety? The nearer the intersection approached, the greater became the urgency which called upon any reasonable man who had any regard for his own safety to make some effort, by outcry or by other means, in the imperative need to change the circumstances which were fraught with possibility of disaster. We think, without attempting to specify, that there were a number of things which plaintiff reasonably could have done to convey a warning and protest, none of which were done or attempted to be done. We think all reasonable men would say that the failure to do anything was a failure to use the care which an ordinarily prudent person would exercise in the circumstances, and, therefore, that plaintiff’s own evidence shows that he was guilty of contributory negligence as a matter of law. The judgment is reversed.

STONE and HOGAN, JJ., concur.

      . Plaintiff’s witness Ward said this is “close to a mile’’ from the “T”; plaintiff said a quarter of a mile; a police officer testified it was four-tenths mile.