author: COLEMAN, Justice.

text:
    L. D. FRENCH et al., Appellants, v. BANK OF the SOUTHWEST NATIONAL ASSOCIATION, HOUSTON, Trustee et al., Appellees.
    No. 15120.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Nov. 30, 1967.
    Rehearing Denied Dec. 21, 1967.

      H. Cecil Baker, Rosenberg, W. G. Walley, Jr., Beaumont, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Alton F. Curry, Houston, for ap-pellee Bank of the Southwest National Association, Houston, Trustee.
    Pollan & Nicholson, John T. Nicholson, Rosenberg and Erwin, Wagner & Hodson, Fred W. Hodson, Jr., Houston, for ap-pellees L. B. Rowsey & C. R. Whelchel.
   COLEMAN, Justice.

This is a suit to recover the value of a fractional part of the oil produced by natural flow from a certain leasehold estate with an action over for damages against the warrantors of title.

Appellee, Bank of The Southwest National Association, Houston, Trustee, brought suit against appellant, L. D. French, and Gulf Oil Corporation, to recover the value of l/8th of 7/8ths of the oil produced by natural flow from the Luscher Lease between October, 1958, and March 31, 1962, which was not delivered to Gulf for the account of the trustee, i.e., 1/16& of 7/8ths of all oil produced by natural flow, appellee having received payment of 1/16th of 7/8ths of all oil produced from said lease as royalty owner of 1 /16th of 7/8ths of all oil produced by artificial lift from the lease.

L. D. French, Jr., an assignee of a portion of the interest of L. D. French, was made a party defendant and his posture in the case is the same as that of L. D. French.

Appellant French denied appellee’s claim, pled estoppel and the two year statute of limitation, and filed a cross-action against his assignors of the working interest, Southern Oil Well Service Company and others (hereinafter referred to as cross-defendants), for recovery of damages for partial failure of title or breach of covenants.

The case was tried to a jury, and the trial court, after disregarding certain of the answers to the special issues, entered judgment on the remaining issues for the trustee against French and Gulf Oil, and for French against cross-defendants. Only French filed a motion for new trial, and appealed to this Court.

Appellant first contends that the trial court erred in granting judgment to the trustee for the reason that it failed to prove its ownership of the fractional overriding royalty interest in oil produced by natural flow, but on the contrary proved that this royalty was owned by Mills Bennett Production Company.

The undisputed proof established that the trustee’s title to the royalty interest and appellant’s title to the working interest in the Luscher Lease were derived from and originated out of the same common source by assignment from Mills Bennett to Cecil Hagen dated July 1, 1946. The Mills Bennett assignment expressly reserved to Mills Bennett a royalty of l/16th of 7/8ths of all oil, gas or other minerals produced from wells on said lease by artificial lift, and a royalty of l/8th of 7/8ths of all oil, gas or other minerals produced from wells on the lease by natural flow. In April, 1947, Mills Bennett assigned the reserved royalty interests by royalty deed to Cecil Hagen, who, thereafter, assigned to the Bank as trustee. The working interest in the lease was assigned by Cecil Hagen to other parties, and was acquired by cross-defendants in 1951 and 1952. Cross-defendants assigned to appellant in 1958. Each of the assignments of the working interest down through cross-defendants expressly was made subject to the royalty interest reserved in the Mills Bennett assignment to Cecil Hagen. All of the assignments in appellant’s chain of title were duly recorded.

In addition to tracing the chain of title of both the trustee and appellant back to the common source, Mills Bennett, appellee introduced into evidence the original lease out of the landowners, i.e., the Luscher Lease, dated April, 1934, to Mills Bennett Production Company. This lease was referred to in each of the assignments in both appellee’s and appellant’s chain of title, down to and including the assignment to appellant, as the original lease covering the tract, or some similar phrase. This lease was introduced without limitation of purpose and constitutes the basis of appellant’s argument that as a matter of law the evidence establishes that title to the lease is in the Mills Bennett Production Company, and not in either the Bank as trustee, in case of the overriding royalty, or in himself, in respect to the remainder of the working interest.

The Bank, as trustee, derives its title or claim to the royalty interest at issue from the reservation of royalty found in the assignment of the Luscher Lease from Mills Bennett to Cecil Hagen. Appellant’s title, ownership and claim herein is by virtue of receiving a subsequent assignment of the working interest under Cecil Hagen. Therefore, the question presented is not whether Mills Bennett had good title and conveyed good title to Cecil Hagen and reserved or excepted to himself good title to the royalty interest, but, instead the question is whether the parties to the assignment and those claiming under them are bound, as between themselves, by the recitals and provisions of the assignment. The Bennett-Hagen assignment is contractual in nature, setting out the agreement of the assignor and assignee as to what the interests, rights and obligations of said parties shall thereafter be with respect to the mineral estate with which the instrument deals. The recitals in the assignment define the character and extent of the ownership and interests of the parties in the land affected by the instrument. The reservation of the overriding royalties is binding and effective as between Bennett and Hagen and those in privity with them, and it was not necessary to show that the title to Mills Bennett was good. The fact that the lease from the landowners to Mills Bennett Production Company was introduced into evidence without limitation did not constitute a bar to a recovery by appellee. Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626 (1941); Bernard River Land Development Co. v. Sweeny, 216 S.W.2d 597 (Tex.Civ.App., Galveston, 1948, n. r. e.).

By the third and seventh points of error appellant questions the action of the trial court in failing to sustain its defense of the two year statute of limitation. It is appellant’s contention that, properly construed, the petition of the trustee alleged an action against appellant for the conversion of personalty — oil severed from the soil. If such is the case, no recovery could be had for any conversion of such oil occurring prior to two years before the institution of this suit. Marathon Oil Co. v. Gulf Oil Corp., 130 S.W.2d 365 (Tex.Civ.App., El Paso, 1939, rev’d in part Gulf Oil Corp. v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711 (1941); Brooks v. Temple Lumber Co., 105 S.W.2d 386 (Tex.Civ.App., Beaumont, 1937, n. w. h.); Kirby v. Hayden, 125 S.W. 993 (Tex.Civ.App., 1910), aff’d Houston Oil Co. v. Hayden, 104 Tex. 175, 135 S.W. 1149.

Appellee pled that by the assignment from Mills Bennett to Cecil Hagen, Hagen agreed to deliver the reserved royalties to Bennett along with Hagen’s production into any pipe line with which said wells were connected; that this covenant was binding on appellant as a subsequent assignee of Hagen; that oil was produced by natural flow and delivered to Gulf, who paid appellant the value thereof rather than ap-pellee ; that this conduct constituted a breach of the obligation imposed on appellant by the Bennett assignment by reason of which appellant is indebted to appel-lee for the reasonable market value of such oil. These allegations, as well as other allegations found in the petition of appellee on which the case was tried, show clearly that appellee was relying on the breach of a written contract as grounds for recovery. In such a case the four year statute of limitation was applicable. Ortiz Oil Co. v. Geyer, 138 Tex. 373, 159 S.W.2d 494 (1942, opinion adopted).

The trial court properly disregarded Special Issue No. 2 concerning the market value of the oil attributable to production and sales before two years prior to the institution of the suit and properly entered judgment based on Special Issue No. 1, in answer to which the jury found that the market value of 1/16th of 7/8ths of the oil produced by natural flow from the lease during the period October 1, 1958 through March 31, 1962, to be the sum of $9,587.00.

Appellant contends that the trial court erred in awarding interest on this sum from March 31, 1962, rather than from the date of judgment, December 20, 1966. On March 31, 1962, appellant had in his possession that sum of money, which the jury found to be $9,587.00, representing the proceeds of the sale of l/16th of 7/8ths of all the oil produced from the lease by natural flow. The oil was sold to Gulf Oil Corporation as required by the contract, but the purchase price was paid to appellant. Appellee was made whole by the judgment for the value of the oil, plus interest for the period during which the money was withheld from appellee by appellant. The interest was awarded as damages in accordance with the prayer found in appellee’s petition. While it may well be that properly the amount of interest awarded as damages should have been calculated and recited in the judgment as a lump sum, and then interest awarded on the total amount until paid, this is not the error of which complaint is made, and in this case the error, if any, is not harmful. Rule 434, Texas Rules of Civil Procedure; Simmons v. Wilson, 216 S.W.2d 847 (Tex.Civ.App., Waco, 1949, n. w. h.).

Appellant has presented certain points of error with reference to that portion of the judgment awarding him judgment over against the cross-defendants. A statement of part of the pleadings is necessary.

Upon being sued by the Bank, L. D. French (appellant) instituted a third party action against Edmond D. LeBouf and Gerald Eversole, a partnership, doing business as Southern Oil Well Service Company, and Luther B. Ramsey, G. W. Hunt, and C. R. Whelchel. Appellant alleged that the cross-defendants had assigned to him, for the total consideration of $130,000.00, a net .695313 of the oil, gas and mineral leasehold estate in the lands involved in the suit instituted by the Bank, together with certain personal property. He alleged that in the assignment in writing, the cross-defendants expressly covenanted:

“(1) To forever defend all and singular, the said property interests and rights unto the Assignee, his heirs and assigns against every person whomsoever claiming or to claim the same or any part thereof (not just lawfully claiming or to claim the same or any part thereof);
“(2) That they were the lawful owners of the above-described oil, gas and mineral leasehold estate (in the Luscher Lease) and working interest and personal property, and all rights, titles, interests and estates thereunder;
“(3) That the leasehold estate conveyed consisted of not less than .695313 of the oil, gas and other minerals in, or that may be produced from, the land involved ;
“(4) That all rentals and royalties were fully paid, the lease was in full force and effect;
“(5) That Cross-defendants had good right and authority to sell the mineral estate and personal property; and
“(6) That the mineral leasehold estate and personal property were free from ‘any overriding royalties or production payments, liens, encumbrances, claims, indebtednesses, charge or taxes of any type or character.”

Such pleading further alleged the institution of its suit by the Bank and the claims made by the Bank against appellant, and that if such claims were sustained appellant would be damaged to the extent of $70,000.00, and prayed for recovery of such damages by reason of the breach of the quoted covenants, together with interest and costs.

Appellant first contends that the evidence established a complete failure of title and that he should have recovered the entire amount of the consideration referable to the mineral estate as distinguished from the personal property. This contention cannot be sustained for the reasons already set out. In addition, by the judgment of the trial court appellant was evicted from only a fractional undivided portion of the leasehold interest he purchased from cross-defendants. So far as the record shows, the only hostile claim asserted against appellant was for the additional 14/16th of 7/8ths of the oil produced by natural flow. Some character of eviction, either actual or constructive, under a superior title must he made before the warrantee has an action against the warrantor on the warranty of title. The existence of a cloud upon a title does not amount to a breach of warranty. Schneider v. Lipscomb County Nat’l Farm Loan Ass’n, 146 Tex. 66, 202 S.W.2d 832, 172 A.L.R. 1 (1947); Schell v. Black, 321 S.W.2d 373 (Tex.Civ.App., Eastland, 1959, no writ hist.).

Cross-defendants conveyed to appellant .695313 of 8/8ths of the oil, gas and mineral leasehold estate with warranties. There has been a partial failure of title. The parties are agreed that if there has been a failure of title less than complete, the evidence establishes that it is as to l/16th of 7/8ths of the oil produced by natural flow, or .054687 working interest in production from natural flow only. This loss is .078 part of -what they bought. It is appellant’s position that the loss of part of the production from natural flow, which production is a free royalty, i.e., not burdened with the expense of development and production, is a greater loss or a different loss than would be the loss of the same fractional part of the working interest not a free royalty and not confined to production from natural flow. Appellant contends, therefore, that the proper measure of damages to be applied was that adopted by the Supreme Court of Texas in the case of Hynes v. Packard, 92 Tex. 44, 45 S.W. 562 (1898), and reaffirmed in City of Beaumont v. Moore, 146 Tex. 46, 202 S.W.2d 448 (1947), reading: “‘The damages will bear the same proportion to the whole purchase money as the value of the part to which the title fails bears to the whole premises estimated at the price paid.’ ” In Hynes v. Packard, supra, the Court also said:

“In the case of Raines v. Calloway [27 Tex. 678], above cited, it was sought to recover damages for failure of title to a part of the land embraced in the warranty, and this court said: ‘The jury found that there was a failure of title to the 681 acres, and they valued these 681 acres at the average value of the whole amount of land conveyed, whereas the true measure of damages, if there was in fact a failure of title to any portion of the land, would be the actual value of the particular- lots or parcels to which there was a failure of title, to be ascertained by their relative value compared with the balance of the land, assuming the price agreed on by the parties as the value of the whole.’ The evidence showed that the land conveyed was not of uniform value. The plaintiff alleged in this case that the part of the land to which there was no title, and for which he sought recovery, was ‘of little or no value,’ from which it was manifest that it was not of' equal value with the other land conveyed. No presumption could be indulged that there was equality in value; and there was no evidence of its value as compared with the balance of the land embraced in the same conveyance; hence it was error for the district judge to instruct the jury to find a verdict for the plaintiff, and to render judgment thereon canceling the note of the plaintiff in error, declaring the note satisfied. The court could not, from the evidence, determine what amount of deduction plaintiff below was entitled to on account of the failure of title. If the land lost was of no value, plaintiff was entitled to nothing, and, if of ‘little value,’ the amount should have been proved.” [emphasis ours]

In Wiggins v. Stephens, 246 S.W. 84 (Tex.Com.App., 1922, judgment adopted), the rule was stated in these words: “In cases where only a part is lost, the rule is modified so as to allow a recovery of such an amount as bears the same ratio to the total consideration as the value of the land lost bore to the value of the whole tract or tracts at the date of the warranty.”

In Tyler v. Gonzales, 189 S.W.2d 519 (Tex.Civ.App., Waco, 1945, ref., w. m.), the court stated that the proper measure of damages in the case of a partial failure of title was aptly stated in 61 A.L.R., p. 90, as follows:

“The damages recoverable are relative or comparative, the standard being the consideration or price paid for the whole tract. Thus, there must be an apportionment, based upon the relative value of that portion to which title failed to that portion to which title proves good. This can be determined only by showing the price paid for the whole, the value of the lands lost, and the value of the lands preserved.”

The trial court submitted to the jury Special Issues Nos. 3, 4, 5 and 6, reading:

SPECIAL ISSUE NO. 3
“From a preponderance of the evidence what do you find to be the amount of damages, if any, sustained by the cross-plaintiff, L. D. French, by reason of the failure of title to l/16th of 7/8ths royalty interest in the oil, gas and mineral estate described and reserved to the assignor in Plaintiff’s Exhibit No. 3 ?
“ANSWER: $35,000.00
“In connection with the foregoing special issue, you are instructed that the measure of damages to be applied therewith is the actual value of such 1/16 of 7/8 royalty interest mentioned to be ascertain by its relative value compared with the balance of the whole 0.695313 oil, gas and mineral estate described in Plaintiff’s Exhibit No. 8, on April 1, 1958.
“You are instructed that the price paid by L. D. French to Cross-Defendants for the 0.695313 oil, gas, and mineral estate described in Plaintiff’s Exhibit No. 8 was the value of said oil, gas and mineral estate.
SPECIAL ISSUE NO. 4
“From a preponderance of the evidence, what do you find to be the price paid by L. D. French for the .695313 of 8/8 oil, gas and mineral working interest and leasehold estate in and to the lands in the Thomas Habermacher Survey, Fort Bend County, Texas, described in the assignment and bill of sale of March 22, 1958, from Southern Oilwell Service Company et al to L. D. French (Exclusive of the price paid for the personal property and equipment) ?
“Answer in dollars and cents, if any.
“ANSWER: $36,582.00
SPECIAL ISSUE NO. 5
“What do you find, from a preponderance of the evidence, to be the price paid by Cross-plaintiff, L. D. French, for the personal property, oil wells, gas wells, and all oil and gas well supplies, machinery derricks, buildings, flow lines, tanks, casings, Christmas trees, tubing, rods, pipes and fillings, meters, pumps, tools, valves, gauges, equipment an_ appurtenances of every sort and character (exclusive of the leasehold estate) described in the assignment and bill of sale dated March 22, 1958, from Southern Oilwell Service Company and others to L. D. French?
“Answer in dollars and cents, if any.
“ANSWER: $54,418.00
SPECIAL ISSUE NO. 6
“From a preponderance of the evidence, what do you find was the reasonable expectation of the percentage of production of oil, gas and other minerals from the Luscher Lease to be produced by natural flow as of March 22, 1958, for the life of the lease?
“Answer giving percentage, if any.
“ANSWER: 25%”

On motion the trial court disregarded Special Issue No. 3 and the answer made thereto. His action in so doing can be sustained only if there was no evidence to require that the issue be submitted, or if the issue was not material.

On March 22, 1958, the date of the sale by cross-defendants to appellant, there were no flowing wells on the lease. Subsequent to that date two wells were drilled. One produced by natural flow for about 3½ years, and the other produced by natural flow for less than four months. No wells were producing by natural flow on the date of trial. Since 1958 from three to six wells were producing at all times. The month-to-month production from this lease was in evidence.

Appellant tendered Mr. James Wheeler, a consulting geologist, as a witness. He qualified as an expert in making appraisals of oil and gas properties. He had made a study of the Luscher Lease, acquiring all available data on all of the wells that had been drilled on the lease, including location on the land, electrical logs, driller’s logs, bottom hole deviation surveys, production testing, dates of completion and recompletion attempts, and production lease records. Among other data he secured and considered the information developed by the drilling of the wells called L. D. French No. 17 and L. D. French No. 18, both of which were drilled after the lease was acquired by L. D. French. From this data he estimated the reserves of oil which could be produced by natural flow. He did not attempt to estimate the total reserves, or the amount of oil which might be produced in the future by artificial lift. He estimated the future market value of the oil produced, and to be produced in the future, by natural flow, after deducting the probable state production taxes to be $470,067.00, and found that the value of l/16th of 7/8ths of the market price of past and of future production by natural flow to be the sum of $25,707.00.

In answer to a hypothetical question based on his study and a total purchase price of $130,000.00 for the entire .695313 interest, he stated that the value of l/16th of 7/8ths royalty on flowing oil in comparison to the total purchase price was, at the date of the purchase, $70,000.00. He testified that the flowing production was the most important part of the production; that it contributes more to the pay-out and profitability; that it contributed a great percent of the income through the years that there was flowing oil. This opinion, however, is based on a total purchase price that is not supported by the record, and ignores entirely the value of that part of the mineral estate to which title did not fail. Mr. Wheeler testified as to the actual value of the fractional interest. He compared this value to the total purchase price, which must be presumed to be the market price. Such a comparison has no probative value on the issue of damages. If it should be conceded that some of his testimony has probative value as to the actual value of the interest to which title failed as of April 1, 1958, there is no such evidence as to the actual value of the interest to which title did not fail. Neither is there evidence of the market value of the fractional interest to which title failed. Such evidence is required to enable the jury to determine the proper percentage of the purchase price for which cross-defendants were liable in damages. Hynes v. Packard, supra.

Since the evidence was not sufficient to require the submission of Special Issue No. 3, the trial court did not err in disregarding the answer thereto.

In answer to Special Issue No. 4, the jury found that appellant paid $36,582.00 for the leasehold estate assigned to him by cross-defendants. The evidence established that appellant lost .078 of the mineral estate purchased. This was an undivided part of the entire estate purchased. The trial court allowed as damages .078 of $36,582.00. In answer to Special Issue No. 6, the jury found that the probable production from natural flow, as of March 22, 1958 would be 25% of the total production. By cross-point, cross-defendants complain that the trial court erred in disregarding this issue and in failing to reduce the judgment rendered against them in favor of appellant by dividing by four.

Appellant filed a motion requesting the trial court to disregard the jury findings and to enter a judgment in his favor. Cross-defendants filed a similar motion requesting that Special Issues Nos. 3 and 5 be disregarded and that judgment be rendered on the remaining issues, or, in the alternative, that the entire jury verdict be disregarded and a judgment entered in favor of cross-defendants. In none of the motions was the court specifically requested to disregard Special Issue No. 6. A general motion for judgment non obstante vere-dicto will not authorize the trial court to disregard some of the issues, but not all, for the reason that Rule 301, T.R.C.P., authorizes a motion for judgment non obstan-te veredicto only where a directed verdict would have been proper. The motion to disregard Special Issues 3 and 5 did not authorize the trial court to disregard Special Issue No. 6 because the motion was not directed to that issue, and, therefore, did not specify the reason why such issue should have been disregarded. The trial court erred in disregarding the answer to Special Issue No. 6, unless such issue was immaterial. Jinks v. Whitaker, 195 S.W.2d 814 (Tex.Civ.App., Texarkana, 1946, writ ref., n. r. e. 145 Tex. 318, 198 S.W.2d 85).

Cross-appellants contend that the mineral estate lost was an undivided interest in the whole estate. It was a percentage of the oil in place and not segregated in fact or in theory from the other oil at the time of purchase. Since this lost mineral interest amounted to 0.078 of the interest purchased, limited to oil produced by natural flow, and since the oil that can be produced by natural flow was found to be 25% of the total, the loss would be .078/4 X $36,582.00, or $713.-35. This argument assumes that the value of a l/16th of 7/8ths interest in oil produced by natural flow is the same as the value of l/16th of 7/8ths interest in oil produced by artificial lift. There was evidence that oil produced by natural flow is more valuable than oil produced by artificial lift to the operator of the lease because of the difference in production costs.

Cross-defendants cite us to the case of Dunbar Royalty Co. v. Shipp, 146 S.W.2d 827 (Tex.Civ.App., Texarkana, 1941), where the court said:

“We think it pertinent here to observe that the same rules of law which govern the sale of land apply equally to the sale of oil, gas and other minerals in place. Texas Co. v. Daughtery, 107 Tex. 226, 176 S.W. 717, L.R.A.1917F, 989; Stephens County v. Mid-Kansas Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566; Holloway’s Unknown Heirs v. Whatley, 133 Tex. 608, 131 S.W.2d 89, 123 A.L.R. 843. This case, as we view it, is one simply for damages for partial failure of title to an undivided mineral estate sold appellee by appellant, and is governed by the same rules applicable to partial failure of title to land. The mineral interest here involved was an undivided interest in and under the entire 141.85-acre tract, and appellee’s alleged shortage was in and under the entire tract and applied to every acre contained in said tract of land. Hence the measure of damages applicable here ‘is that the vendee (appellee) can recover only such part of the original purchase price as bears the same ratio to the whole consideration that the value of the land (minerals) to which the title has failed bears to the value of the whole premises, such relative values to be ascertained as of the time of the conveyance instead of the time of the trial, together with interest * * *. Thus the damages recoverable for a breach resulting in a partial loss of estate cannot exceed the amount of the consideration’ paid for such shortage. 21 C.J.S. Covenants § 142, par. (2), p. 1012.”

We think, however, that in the absence of a finding that the value of the oil produced by natural flow was the same per unit as the value of the oil produced by artificial lift, there being evidence to the contrary, the measure of damages- thought applicable by cross-defendants is incorrect. Northcutt v. Hume, 212 S.W. 157 (Tex.Com.App., 1919, holding approved); Allen v. Draper, 256 S.W. 255 (Com.App., Tex., 1923); Mayer & Schmidt v. Wooten, 102 S.W. 423 (Tex.Civ.App., 1907); Gass v. Sanger, 30 S.W. 502 (Tex.Civ.App., 1893, writ ref.).

The burden of presenting evidence to sustain a proper measure of damages was on appellant. In this he has failed. No point of error presented by appellant can be sustained. On this state of the record, it would usually be proper to affirm the judgment of the trial court even though an erroneous measure of damages was applied. However, cross-defendants have properly assigned as error the action of the trial court in disregarding Special Issue No. 6 on his own motion. Special Issue No. 6, we have concluded, is not an ultimate issue, but is evidentiary only. The action of the trial court in disregarding this issue, and the answer made to it, could not have affected the judgment to be entered or the legal significance of the verdict. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.Sup., 1966) ; Smith v. Chase, 405 S.W.2d 450 (Tex.Civ.App., Dallas, 1966, ref., n. r. e.).

Under these conditions the action of the trial court in disregarding the issue on his own motion is harmless error under Rule 434, T.R.C.P., assuming such action to be error because not authorized by the Rules of Civil Procedure.

The judgment of the Trial Court is affirmed.

PEDEN, J., not participating.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    CAMBRIDGE SHORES HOMEOWNERS ASSOCIATION, Inc., et al., Appellants, v. SPRING VALLEY LODGE COMPANY and Dorothy Maxine Schleusner, Appellees.
    No. 16986.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 24, 1967.
    Rehearing Denied Dec. 15, 1967.

      Charles E. Hughes, of Hughes & Jarvis, Sherman, for appellants.
    Jack G. Kennedy, of Brown, Kennedy & Hill, Sherman, for appellees.
   DIXON, Chief Justice.

This suit was filed by appellants Cambridge Shores Homeowners Association, a nonprofit corporation, and nine individual property owners against appellees Spring Valley Lodge Company, a corporation, and Mrs. Dorothy Maxine Schleusner, a widow. Appellants seek to enjoin appellees from operating a commercial enterprise on Tract A of Cambridge Shores Addition in Gray-son County, Texas, which operation they allege is in violation of deed restrictions applicable to the whole addition. It is the contention of appellants that each of the lots in the addition is restricted to a one-family dwelling house and garage and that use for commercial or manufacturing purposes is forbidden.

Following a nonjury trial judgment was rendered denying appellants the relief they sought.

The original owner and developer of Cambridge Shores Addition was Texo-ma Lakeside Village, Inc. The addition consists of 50.237 acres of land, of which 43.237 acres have been subdivided into 276 small lots, most of them measuring 50 feet by 100 feet, though a few of them vary slightly from said dimensions. More than one-half of the total number of lots have been sold, the consideration varying from about $300 to $695 per lot. On a number of lots the owners have built cabins.

Most of the property owners live in Dallas, Richardson, Sherman, Denison, or other towns and use their property in Cambridge Shores Addition for weekend recreation purposes. However, one owner says that he and his wife have established their permanent residence on their two lots on which they have built a cabin.

Tract A, the subject of this controversy, consisting of seven acres, has never been subdivided into lots and blocks. It lies in the northwestern segment of the addition next to U. S. Government land which separates the tract from Lake Texoma.

On May 3, 1966 Mrs. Schleusner, for a cash consideration of $5,000 paid in full, purchased all of Tract A and accepted a warranty deed which contained no deed restrictions. The deed was made out on a printed form which had originally listed a number of restrictions. But Mrs. Schleus-ner had been assured that there were no restrictions against the property, so by request of Mrs. Schleusner the printed restrictions were obliterated by typewriter before the deed was executed and delivered by Texoma Lakeside Village, Inc., to Mrs. Schleusner.

Soon after acquiring title to tract A Mrs. Schleusner started construction of improvements on the property. She has constructed a large building at a cost of about $75,000 of her own money, said building to be used as a private club in which a paid membership is required. Other improvements have run the total expenditures up to about $95,000.

Meantime Mrs. Schleusner caused a corporation to be organized to acquire title to the property and to operate the club. She then deeded Tract A to the corporation, Spring Valley, Inc., the present owner and one of the parties to this suit.

We shall first consider appellants’ fifth, sixth, seventh and eighth points, which allege in substance that the restrictive covenants are in appellees’ chain of title to Tract A and that Mrs. Schleusner knew when she bought Tract A that it was burdened with restrictions.

The restrictions are not shown anywhere in appellees’ chain of title. The plat of Cambridge Shores Addition filed for record with the County Clerk of Grayson County shows no restrictions. The deed from the original developer, Texoma Lakeside Village, Inc., to Mrs. Schleusner contains no restrictions. The deed from Mrs. Schleus-ner to Spring Valley, Inc., contains no restrictions.

Appellants’ contention is based mainly on the fact that in 1962 one Johnny Moore had signed a contract to purchase Tract A, which contract Moore later released. It is not in appellees’ chain of title. It was never filed for record. Therefore it could not constitute constructive notice of any deed restrictions it may have included in its terms. Lesley v. City of Rule, 255 S.W.2d 312 (Tex.Civ.App., Eastland 1953, writ ref’d n.r.e); see also Fleming v. Adams et al., 392 S.W.2d 491 (Tex.Civ.App., Houston 1965, writ ref’d n.r.e.).

According to Mrs. Schleusner, and her testimony is not contradicted, the first time she ever saw Moore was at the office of Texoma Lakeside Village, Inc. on the very day she paid cash for Tract A and received her unrestricted deed. Being informed that he held a contract to purchase the property she paid him the amount of the monthly payments he had made, then paid the full balance of the purchase price to Texoma Lakeside Village, Inc. Moore executed what he called a “release” of his contract. But even then he did not produce the contract. He testified at the trial he had looked everywhere for it but couldn’t find it. Mrs. Schleusner testified that she never saw the contract and had no knowledge of its contents.

Appellants also contend that Mrs. Schleusner knew of the deed restrictions because they were originally set out in the printed form of a warranty deed which was used to convey the property to her and were deleted at her request. But it is undisputed that she had been told that the property was unrestricted. It is also undisputed that both George DeArmond, President of Texoma Lakeside Village, Inc. and Polly Jane Burks, Vice-President, authorized the deletion. DeArmond testified at the trial and corroborated Mrs. Schleus-ner’s testimony.

In any event any fact issue that the circumstances may have raised in regard to actual notice, was resolved by the court’s judgment in favor of Mrs. Schleusner; and the court’s implied finding is binding on this court. Construction and General Labor Union, Local No. 688 et al. v. Stephenson, 148 Tex. 434, 225 S.W.2d 958 (1950); Lesley v. City of Rule, 255 S.W.2d 312 (Tex.Civ.App., Eastland 1953, writ ref’d n.r.e.); 4 Tex.Jur.2d 336, 341.

Appellants’ fifth, sixth, seventh and eighth points are overruled.

In their first, second, third and fourth points appellants assert that the evidence proves that there was a general scheme to develop Cambridge Shores Addition as a restricted residential area (except two lots), which scheme included Tract A.

There is evidence that the restrictive covenants were on the printed form of contract used by the developer and the printed form of general warranty deed used when a purchaser had completed his monthly payments and was entitled to a deed. But the mere fact that the deeds executed by Texoma Lakeside Village, Inc. contained identical restrictions is not sufficient of itself alone to establish the existence of a general scheme. Pierson v. Canfield, 272 S.W. 231, 233 (Tex.Civ.App., Dallas 1925, no writ). Such fact construed in the light of the surrounding circumstances may or may not be sufficient to support a finding of a general scheme. Green v. Gerner, 289 S.W. 999 (Tex.Comm’n App.1927, jdgmt. adopted) ; Curlee v. Walker et al., 112 Tex. 40, 244 S.W 497 (1922).

There is also testimony that a salesman, who was instrumental in obtaining most of the contracts, represented that the lots would be restricted to residential use. But George Murphy, the salesman above referred to, testified that his representations referred only to the portion of the addition which had been subdivided into lots and blocks, not to Tract A, the seven-acre tract which had never been subdivided.

Also George DeArmond, President of Texoma Lakeside Village, Inc., and a prime mover in the development of the addition, testified that it was never his intention for Tract A to be burdened with restrictions. He testified that it was not feasible or economically possible to divide the tract into lots and to sell them for residential purposes. The tract was a heavily wooded swamp area with creeks running through it. It is irregular in shape. It could not have been developed profitably into residential lots and blocks. He was present when Mrs. Schleusner paid cash and accepted a deed with the printed restrictive covenants obliterated by typewriter. Johnny Moore, who had contracted to purchase the tract, at one time had fallen behind on his contractual payments.

The evidence shows that Tract A is separated from the subdivided portion of the addition by a hill. The building erected by Mrs. Schleusner is not visible from the lots and blocks of the subdivided portion. Mrs. Schleusner at her own expense has constructed a road which serves Tract A so that access to the tract is available without traversing any part of the streets in the subdivided portion. Mrs. Schleusner testified that she was not told of any general scheme of restrictions to which her property was subject.

Appellants accuse Mrs. Schleusner of concealment of her plans to erect a club building. After she had started construction of the large building several of appellants called on her and demanded to know for what purpose she was going to use the property. She refused to tell them, her position being that she had paid cash for an unrestricted tract of seven acres and it was none of their business what she planned to do with it.

Our Supreme Court has held that restrictions on the use of property are not favored. Even when they appear in instruments involving realty, any ambiguity or doubt is to be resolved in the free use of the land. Baker et al. v. Henderson, 137 Tex. 266, 153 S.W.2d 465 (1941). See also Stewart v. Valenta, 361 S.W.2d 910, 913 (Tex.Civ.App., Eastland 1962, writ ref’d n.r.e.). We think that the evidence so far as appellants are concerned at best raised a fact question as to whether there was a general scheme applying to the whole addition, including Tract A, restricting the use of property. By its judgment the trial court obviously decided the question adversely to appellants. Their first, second, third and fourth points are overruled.

In their fifth and sixth counterpoints in reply to appellants’ eighth point appellees invoke the doctrine of the balancing of the equities. The counterpoints are well taken.

The large building erected by ap-pellees at a cost of $75,000 was half completed before this suit was filed. Appellants blame the negligence of their attorney (not their present attorney) for the delay in filing suit. Be that as it may, it was not appellees’ fault that their improvements had progressed so far before appellants filed suit.

Moreover, there is ample evidence that appellants will be harmed very little if at all by the operation of the “country club” on Tract A. The club is not visible from the subdivided part of the addition. The sound of club activities does not reach the owners of the lots. There is testimony even from appellants that the lodge is a beautiful building. There is testimony that its operation will enhance the value of appellants’ property. Some of the lot owners are members of the club. There are already two clubs, or commercial enterprises in operation not far distant from the addition. It is not necessary for club members and their guests to traverse the streets of the subdivided section of the addition, for Mrs. Schleusner has built a road which gives access to Tract A.

On the other hand the loss to appellees will be in the neighborhood of $95,000 if their operation is enjoined as desired by appellants. Mrs. Schleusner testified that she had invested $75,000 of her own money, all she had, in the enterprise. She plans to build a swimming pool, but has not been able to do so because the loan companies will not lend her money as long as this suit is pending.

In view of the great harm to be done to appellees if the injunction were to be granted, and the small harm, if any done to appellants by the court’s refusal to enjoin appellees, we think the balance of the equities lies with appellees. The court properly denied the injunction. Davis v. Carothers, 335 S.W.2d 631, 639 (Tex.Civ.App., Waco 1960, writ ref’d n.r.e.).

The judgment of the trial court is affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    Jimmy Dean STANFIELD, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 16985.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 17, 1967.
    Rehearing Denied Dec. 8, 1967.

      Harold J. Fleming, Dallas, for appellant.
    John Orvis, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Jimmy Dean Stanfield instituted this action in the County Court of Dallas County at Law No. 4 seeking a trial de novo of an administrative order by the Texas Department of Public Safety suspending his automobile driver’s license for a period of one year pursuant to Art. 6687b, Sec. 22(a), Vernon’s Ann.Civ.St. of Texas. This appeal is from the summary judgment of the trial court dismissing Stanfield’s suit for want of jurisdiction.

FACTS

The facts are undisputed and the question to be resolved is one of law. Appellant was the holder of Texas Operator’s License No. 4372615, expiring on the 5th day of October, 1967. On October 4, 1966 the judge of the Corporation Court of Dallas, Dallas County, Texas, acting in administrative capacity and pursuant to specific authority of Art. 6687b, Sec 22(a), V.A.C.S., conducted a hearing and determined that the operator’s license of appellant should be suspended for a period of twelve months. The basis for the decision was that appellant .was guilty of being an habitual violator of the traffic laws of the State of Texas. Such finding and recommendation was reported to the Texas Department of Public Safety. On October 13, 1966 the Texas Department of Public Safety rendered its “Order of Suspension”, the essential portions thereof being set forth as follows:

“ORDER OF SUSPENSION
“TO: Mr. Jimmy Dean Stanfield Operator’s Lie. #4372615 (Exp. 7-5-67) 211 North Hampton Not Surrendered
Dallas, Texas Commercial
Operator’s Lie._
Chauffeur’s Lie._
“THE JUDGMENT RENDERED ON October 4, 1966, BY THE JUDGE, Corporation Court, Dallas, Dallas County, Texas ORDERED ADJUDGED AND
DECREED THAT YOUR LICENSES TO OPERATE A MOTOR VEHICLE
BE SUSPENDED FOR A PERIOD OF 12 MONTHS.
“THEREFORE, pursuant to such judgment and acting under the authority vested in the Department of Public Safety by House Bill No. 20, Acts of the 47th Legislature, Regular Session (Article 6687b, Vernon’s Annotated Texas Civil Statutes), IT IS ORDERED that your privilege to operate a motor vehicle upon the highways of this State and any and all Operator’s, Commercial Operator’s and Chauffeur’s Licenses issued to you evidencing such privilege are hereby suspended for a period of twelve (12) months in this instance effective October 20, 1966.
“DEMAND IS HEREBY MADE for the surrender to the Department of any and all Operator’s, Commercial Operator’s and Chauffeur’s Licenses issued to you, which licenses have not heretofore been surrendered. Failure to surrender licenses, or furnish an affidavit showing reason for failure, will make you subject to prosecution as provided for by law and explained on the reverse side.
“Dated at Austin, Texas, this 13th day of October 1966.”

Notice of the decision of the Department of Public Safety and a copy of the order were sent by certified mail to appellant on the same date of the order, and received by appellant on October 17, 1966.

Thereafter appellant filed his suit in the County Court of Dallas County at Law No. 4, on November 21, 1966 in which he sought to appeal from the Order of Suspension, such appeal being made pursuant to authority of Art. 6687b, Sections 22(c) and 31, V.A.C.S.

Appellee filed its motion for summary judgment in which it contended that the court lacked jurisdiction to hear and determine appellant’s appeal because (1) such suit was filed more than thirty days from the decision and order of the Texas Department of Public Safety, and (2) the Department of Public Safety being an agency of the State of Texas the suit was unauthorized since the State cannot be sued without its consent. Appellant responded to the motion for summary judgment, contending that since his suit had been filed within thirty days from October 20, 1966, the effective date of the suspension, such suit was timely filed pursuant to Sec. 31, Art. 6687b, V.A.C.S. Following a hearing the trial court entered an order sustaining appellee’s motion for summary judgment reciting therein that the court was without jurisdiction to hear and determine same. Findings of fact and conclusions of law were filed in which it was found and concluded that the filing of the appeal more than thirty days from the final decision and Order of Suspension of the Department of Public Safety did not comply with the provisions of the law applicable to such appeals and therefore no jurisdiction was conferred upon the court. The court also concluded that since the State of Texas had not granted permission to be sued in this action appellant had no right to bring his cause into court.

OPINION

The sole question for determination is whether the trial court acquired jurisdiction of the parties and subject matter of this suit. Was the filing of the suit more than thirty days after the date of the Order of Suspension but within thirty days of the effective date of the Order of Suspension sufficient to comply with the terms and provisions of the applicable law relating to such appeals? We have been cited no Texas authority, nor have we been able to find any as a result of our research, specifically dealing with this particular statute. However, after careful consideration we have concluded that the filing of the suit was not within the time prescribed by the law and therefore the trial court was correct in disclaiming jurisdiction to hear appellant’s appeal.

It is an established principle of law that the right to appeal from an administrative order to the courts is not a natural or inherent one but is one that may be granted or withheld at the discretion of the Legislature. Such right does not exist unless specifically granted by statute. Therefore, if the Legislature creates an administrative agency it may prescribe rules and regulations governing such body and the method by which the rights determined by such body shall be enforced. The Legislature may also prescribe for judicial review of administrative action and in such cases the method so prescribed must be followed in order to confer jurisdiction upon the court. City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951); Board of Equalization of City of Fort Worth v. McDonald, 133 Tex. 521, 129 S.W.2d 1135 (1939); Fire Department of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664 (1949); 1 Tex.Jur.2d, Administrative Law and Procedure, § 34, pp. 673-674, §§ 35 and 36, pp. 674-676 ; 2 Am.Jur.2d, Administrative Law, § 557.

The Legislature enacted Art. 6687b, Sec. 22 and Sec. 31, V.A.C.S., to grant authority to the Department of Public Safety, acting as an administrative agency of the state, to suspend or revoke driver’s licenses and also providing rules for judicial appeal from such decision. Pursuant to Subdivision (a) of Sec. 22 it was provided that the Department was given authority to suspend driver’s licenses for a period not to exceed one year and that in such event of suspension the licensee may appeal to the county court of the county wherein the hearing was held and that notice by registered mail to the address shown on the license of the licensee shall constitute service for the purpose of notice. Subdivision (c), as originally enacted provided that any licensee who was not willing and did not consent to abide by the final ruling and decision of the Department suspending the license had the right, “within thirty (30) days after the date of receipt of notice of the suspension of such license from the Department”, to bring suit in the county court, or county court at law, of his residence to vacate and set aside said ruling and decision suspending said license. This subdivision also provided that “If any licensee who is a party to such final ruling and decision of the Department fails within thirty (30) days to institute or prosecute a suit to set such suspension aside, then said final ruling and decision of the Department shall be binding upon all parties thereto.” (Emphasis supplied.)

In 1965, pursuant to Acts of the 59th Legislature, page 1663, Chapter 717, § 2, Section 22(a) of the Act was amended in minor detail but the person whose license had been suspended by the Department was specifically given the right to appeal to the county court of the county wherein the hearing was held and that such appeal was to be tried de novo. Again notice by registered mail to the address shown on the license of the licensee was said to constitute service for the purpose of the Act.

The Legislature, in the same action, amended Subdivision (c), Section 22, of the Act and deleted therefrom the previous provision that the holder of the license may appeal by filing suit “within thirty (30) days after the date of receipt of notice of the suspension of such license from the Department.” The material portions of Subdivision (c), of Section 22, as amended, read as follows:

“In all appeals prosecuted in any of the courts of this state pursuant to Section 22(a) or Section 31, such trials shall be de novo as that term is used and understood in appeals from Justice of the Peace Courts to County Courts. * * * Any such licensee as may bring suit to vacate and set aside such ruling and decision shall send a copy thereof, certified to by the clerk of said court, to the Department by registered mail. If any licensee who is a party to such final ruling and decision of the Department fails within thirty (30) days to institute or prosecute a suit to set such suspension aside, then said final ruling and decision of the Department shall he binding upon all parties thereto.” (Emphasis supplied.)

Section 31, Art. 6687b, V.A.C.S., entitled “Right of Appeal to Courts,” contains the following material provisions:

“Any person denied a license or whose license has been cancelled or revoked by the Department except where such cancellation or revocation is automatic under the provisions of this Act shall have the right to file a petition within thirty (30) days thereafter for a hearing in the matter in the County Court at Law in the county wherein such person shall reside, * *
“Provided further in cases herein provided for suspension of license, the filing of the petition of appeal shall abate said suspension until the trial herein provided for shall have been consummated and final judgment thereon is had.” (Emphasis supplied.)

It is quite evident that it was the intent of the Legislature, by the enactment of the 1965 amendment to Subdivision (c) of Section 22, to abolish the method of appeal by filing suit within thirty days from the date of notice of suspension. It is to be observed that the amendment to (c) retained the specific language relating to the “ruling and decision” and “final ruling and decision of the Department.” In this subdivision as amended, the Legislature specifically said that if any licensee who is a party to “such final ruling and decision of the Department” fails within thirty days to institute or prosecute a suit to set “such suspension” aside, then such “final ruling and decision of the Department” shall be binding. We think it is significant that the terms “final ruling and decision” are thus pinpointed. The words “such suspension” obviously refer to the “final ruling and decision of the Department.” It is thereby apparent to us that the affirmative and overt act from which an appeal is taken is the “final ruling and decision of the Department” which contains terms relating to the suspension of the license.

Section 31 of the Act, dealing with right of appeal to courts, provides generally that any person denied a license or whose license has been suspended, cancelled or revoked, has the right to file a petition “within thirty days thereafter” for a hearing of the matter in the county court at law in the county wherein he shall reside. In determining what is meant by “within thirty days thereafter” it is necessary to refer back to the order of the administrative agency which is the specific thing in controversy. The appeal for judicial review must relate to the act of the administrative agency which is evidenced by its order declaring a suspension of the license. It is the affirmative order of the administrative agency, rather than some provision contained therein, which is the subject matter of appeal.

Appellant argues that the words “thirty days thereafter” as used in Section 31 of the statute in question refer to the effective date of suspension referred to in the order of the Department rather than the date of the order itself. In the light of the other language contained in the entire statute, recited above, which pinpoint the “final ruling and decision” of the Department as being the crucial act complained of, we are unable to agree with appellant’s contention. Had the Legislature desired to provide that the time for appeal began on the effective date, rather than the actual date of the final order, it could and reasonably would have so stated in the Act. It did not do so.

While not dealing with the terms and provisions of the same statute as now under consideration we did have occasion to pass upon a similar contention in Oliveira v. Department of Public Safety, 309 S.W.2d 557 (Tex.Civ.App., Dallas 1958, no writ hist.). In that case we had under consideration Art. 6701h, Sec. 2(b), V.A.C.S., which provided that any order or act of the Department may be subject to review within ten days after notice thereof, by appeal to the county court at law. There the order of the Department was dated July 24, 1957 but contained a provision, such as here, that the suspension of license would be effective August 14, 1957. Oliveira filed his suit on July 31, 1957 and an attack was made on the jurisdiction of the court based upon the proposition advanced by the Department of Public Safety that the law allows an appeal to be made within ten days after said order is effective and since the appeal was filed before the effective date of said order such appeal was an illegal attempt to confer jurisdiction upon the court. In an opinion by Chief Justice Dixon we held that jurisdiction was conferred upon the court under the facts and circumstances presented and it was emphasized that the “act” referred to in the law was the order of the Department dated July 24, 1957 and not the effective date thereof. As was therein stated:

“It is plain from the record that the Department performed an ‘act’ on July 24, 1957 when it sent the notice to appellant. It is plain also that the express words of the statute provide for an appeal to the County Court at Law within ten days after the notice of the ‘act,’ not within ten days after the effective date of the order of suspension, as appellee contends.
“Moreover the language of the notice itself indicates that an order had already been made in regard to appellant’s license, though the effective date of the suspension itself had been postponed to August 14, 1957. For example, the notice contains these expressions: ‘the below designated suspensions may be voided by depositing’ etc.; ‘Order of Suspension’; ‘the following items are suspended * * * >»

A somewhat similar contention as now advanced by appellant concerning the effective date of an administrative order was advanced in American Fruit Growers, Inc. v. Lewis D. Goldstein Fruit & Produce Corp., 78 F.Supp. 309 (Dist.Court, Eastern District, Pennsylvania 1948), which concerned an appeal from an order of the Secretary of Agriculture in a proceedings brought under the Perishable Agricultural Commodities Act of 1930. The order was dated the 6th day of August, 1947 but provided it was not effective until twenty days, and on September 8, 1947 more than thirty days after -the order, appeal was filed in the United States District Court. Motion was made to dismiss the appeal because the court had no jurisdiction. The Act in question provided that parties adversely affected by the entry of an order of the Secretary might, within thirty days from and after the date of such order, appeal therefrom to the District Court of the United States. The party aggrieved contended that since the order itself provided that it would not become effective until twenty days after its date, the effective date was the critical date upon which appeal would be predicated under the Act in question. The court overruled this contention and held that the trial court had no jurisdiction to hear the appeal since it was the date of the order rather than the effective date thereof that controlled the filing of the appeal. The court said, inter alia:

“Even though an order of the Secretary is made effective subsequent to the date of the order it will not affect the running of the time in which an appeal might be taken to a Federal district court.”

We think that a review of the Department’s order in this case makes it quite evident that such order was a “final ruling and decision” as contemplated by law as being appealable. A final decision is one that leaves nothing open to dispute and there remains nothing unfinished or inconclusive. 1 Tex.Jur.2d, § 39, p. 678; Allen v. Crane, 257 S.W.2d 357 (Tex.Civ.App., San Antonio 1953). Being a final ruling and decision of the administrative agency, and being the overt act on the part of such agency which is subject to attack, we think it apparent that the date of such act or order is the critical time for the beginning of the running of the period of thirty days within which the aggrieved party has a right to file suit for judicial review. Accordingly, we hold that the trial court was correct in deciding that it did not acquire jurisdiction of this appeal by reason of the fact that appellant had not filed his suit within thirty days from the date of the order suspending the license.

Appellee’s contention that the trial court lacked jurisdiction because the suit was one against an agency of the State of Texas and that the State cannot be sued without its express consent must be denied. This is so for the very obvious reason that the Legislature has, by the enactment of the law as set forth above, specifically granted such right to bring the suit.

We have carefully considered all of the appellant’s points of error and find the same lacking in merit and must be overruled.

The judgment of the trial court is affirmed.

       Tlie effective date recited in tlie Order of Suspension was October 20, 1966. Thirty days from that date would be November 19, which was a Saturday. November 20 was Sunday so November 21, 1966 was within tlie time as computed by Rule 4, Texas Rules of Civil Procedure, which provides that in computing any period of time prescribed if tlie last day be Saturday, Sunday or a legal holiday, tlie prescribed period runs until tlie end of tlie next day which is neither a Saturday, Sunday or legal holiday.


author: BARROW, Chief Justice.

text:
    Pauline K. NICHOLS, Individually and as Independent Executrix of the Estate of Dwight M. Nichols, Sr., Deceased et al., Appellants, v. John ROWAN et al., Appellees.
    No. 14632.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1967.
    Rehearing Denied Dec. 13, 1967.
    Murfee, Hoover & Kraft, William L. Durham, Houston, for appellants.
    Cox, Smith & Smith, San Antonio, Walter R. Long, Jr., Karnes City, for appellees.
   BARROW, Chief Justice.

A will contest. An instrument dated March 24, 1964, was admitted to probate as the last will and testament of Bruce J. Nichols after a jury trial. Testator’s niece, Inez Hysaw Oxford, is the sole beneficiary under the will. This contest was originally filed by Dwight M. Nichols, Sr., brother of testator, but upon his death his widow, individually and as independent executrix of Dwight’s estate, together with their son, Dwight M. Nichols, Jr., were substituted as contestants and have perfected this appeal.

Contestants’ three assignments of error relate to the contention that the writing was not executed tn the manner required by Sec. 59, Probate Code, V.A.T.S., because one of the subscribing witnesses did not sign her name in the presence of the testator. It is undisputed that the writing contains the genuine signatures of testator and the two subscribing witnesses, which were subscribed for the purpose of executing this will. Contestants urge there is no evidence, or, in the alternative, the evidence is insufficient to support the jury finding that the attesting witness Mae Medlin was in the presence of testator when she subscribed her name to said writing. They also urge that the trial court erred in.overuling contestants’ objections to the definition of the word “presence” and in not giving the definition requested by them.

Testator was a bachelor who operated a large farm in Karnes County. He was admitted to Ward 42-G of Brooke Army Medical Center on March 13, 1964, suffering from cancer of the jaw. Although he was 76 years of age, the uncontradicted evidence supports the jury finding, which is not attacked on this appeal, that he possessed testamentary capacity at the time the writing was executed.

The will was prepared for testator by Captain Hollers, a licensed attorney in the Judge Advocate General’s Office at Fort Sam Houston, who was assigned to the Legal Aid Assistance Program of said office. In this capacity, he prepared wills for patients at the hospital upon request, and Captain Hollers estimated that he had prepared from 900 to 1000 wills during the three years in this assignment. This will was prepared after interviews of from thirty to forty-five minutes each with testator in the ward on March 18 and March 23, 1964. After securing all the necessary information during these interviews, Captain Hollers dictated the will to Mrs. Muriel D. Meyer, one of two legal secretaries in his office. Captain Hollers checked the will for accuracy after it was typed and then returned it to Mrs. Meyer for execution. She was a notary public and as such executed the self-proving clause which was customarily used in Texas wills. This was the standard procedure regularly followed by this office.

This will, which is obviously very well prepared, consists of three double-spaced pages with the signature of testator on each page. The will is signed on page two, and under testator’s signature is an attestation clause setting forth the statutory requisites, including the attestation that the witnesses subscribed their names at the request of testator and in the presence of testator and each other. The will is then witnessed by “Mae Medlin Maj ANC” and “Arthur Hurdle” with the address of each witness set forth opposite the name. On page three of said will is a statutory self-proving clause which was subscribed and acknowledged by testator and both witnesses before Muriel D. Meyer, Notary Public in and for Bexar County, Texas.

The difficulty arising in the proof of this will can be largely attributed to frailties of the human memory. This is understandable in that its execution, which was of great importance to testator, was propably a routine or causal event to the other three persons who participated therein, in that there was nothing unusual surrounding the execution of this will. Testator remained in this ward for over three months after March 24, 1964. He then spent a month at the Veterans Hospital in Marlin, Texas, before returning to his farm. He was readmitted to Brooke Army Medical Center a short time before his death in April, 1965.

Mrs. Meyer was a witness in the case, although she had been retired from Civil Service for nearly two years at the time of the trial. She identified this will by her signature on the notary’s certificate and by her handwriting where she had inserted the names of the witnesses. She exhibited her notary’s record book which contained an entry of this certificate, along with several others executed on this date. She testified, however, that she had no independent recollection of the facts surrounding the execu-cution of this particular will. She was permitted to testify that the facts contained in the self-proving clause were true and correct.

The witness Hurdle, who was a sergeant in the army, assigned to Ward 42-G as wardmaster at the time of the execution of the will, was transferred to Germany before the trial and testified by deposition. He testified that the notary asked him to witness this will for testator who was sitting on the side of his bed, and that it was witnessed at the foot of testator’s bed. Initially he testified that the other witness, Major Medlin, came there also and signed it. However, he later admitted that although he had a positive recollection of her signing the will, he could not be sure if she signed it at the foot of testator’s bed or at the nurse’s desk. He also recalled the notary’s oath given in connection with the will. There is no doubt from his testimony that both he and Major Medlin witnessed the will and both knew the purpose of subscribing this instrument. Also, the testator knew that all parties were executing his will. Hurdle was unwilling to state positively that Major Medlin signed the instrument by testator’s bed, although he twice stated that this was his recollection.

Major Medlin, who retired in January, 1965, testified as a witness on behalf of contestants and, contrary to the testimony of Mrs. Meyer and Sgt. Hurdle, she was a very positive witness. She identified her signature which was subscribed for the purpose of witnessing the will. She testified, however, that the notary was not present in the ward on this occasion, and that Sgt. Hurdle brought the will to her for witnessing and that she did so standing at the nurse’s desk, away from the bed. She .had no communication with testator on this occasion and does not know where he was at the time she signed. Although in the same room, she was outside the view of testator, at this time unless he was standing or sitting on the end of his bed. Otherwise testator’s view of this desk was blocked by a five-foot partition separating his cubicle from that of other patients. Contestants urge that her testimony established that this witness did not subscribe the will in the presence of testator.

It is seen, however, that her credibility on this point was placed in issue by her equally positive, but clearly erroneous recollection of other facts. She testified that she recalled the event so well because it occurred just moments before testator was to be transferred to a Veterans Hospital and, in fact, attendants were waiting to take him away. The uncontradicted record establishes that testator was not transferred until July 16, 1964. When apprised of this fact, contestants attempted to show by Major Medlin that the will might have been dated prematurely. Such a contention would go in the face of three dates on the will, all near the signatures of the witnesses, the dated entry in the notary’s record book and several dated entries made on testator’s work card kept by the legal assistance office. Furthermore, her testimony is contradicted by the testimony of Mrs. Meyer and Hurdle as to the presence of Mrs. Meyer.

The Texas cases uniformly have held that the declarations of the attestation clause showing due execution of the will are competent and admissible evidence of the facts therein recited. In Wilson v. Paulus, 15 S.W.2d 571 (Tex.Com.App.1929), the Court approved the following rule: “A full attestation clause reciting compliance with all formalities of execution and signed by the witness is prima facie evidence of the validity of the will, although the witness’ memory is faulty, or he contradicts the facts stated in the clause, or where he is dead. The statements of the attestation clause may, however, be rebutted by proper evidence.” See also: Massey v. Allen, 248 S.W. 1067 (Tex.Com.App.1923); Reese v. Franzheim, 381 S.W.2d 329 (Tex.Civ.App.—Houston 1964, writ ref’d); Seydler v. Baumgarten, 294 S.W.2d 467 (Tex.Civ.App.—Galveston 1956, writ ref’d n. r. e.); Ludwick v. Fowler, 193 S.W.2d 692 (Tex.Civ.App.—Dallas 1946, writ ref’d n. r. e.); 40 A.L.R.2d 1223.

Therefore, it cannot be said that there is no evidence to support the jury’s finding that the witness, Mae Medlin, was in the presence of testator when she witnessed his will. Further, we cannot say from an examination of the entire record that such finding is so against the great weight and preponderance of the evidence as to be clearly wrong.

Contestants timely objected to the definition of the term “presence” as given by the trial court and requested the court to submit a definition which contained a requirement that the will must be attested “within the sight of the testator.” It is seen that the Texas statute contains no such requirement. Cf. In re Weber’s Estate, 192 Kan. 258, 387 P.2d 165 (1963). Furthermore, such a contention was rejected in the only Texas case we have found on this point. See Earl v. Mundy, 227 S.W. 716 (Tex.Civ.App.—El Paso, 1921, writ ref’d). It was there held that a contested codicil was valid as a matter of law although the subscribing witnesses were across the room with their backs to testator when they signed the codicil.

The meaning of the term “presence” has been judicially interpreted many times in other jurisdictions and great importance is placed upon the circumstances in each individual case in determining the proper definition to be given. Undoubtedly the words “presence of testator” mean a “conscious presence.” In addition, the basic rule of most jurisdictions is that to be within the testator’s presence the attestation must occur where testator, unless blind,' is able to see it from his actual position at the time, or at most, from such position as slightly altered, where he has the power readily to make the alteration without assistance. 75 A.L.R.2d 318, 328; 94 C.J.S. Wills § 189(b); 57 Am.Jur. Wills § 338; 33 Words and Phrases, Presence of the Testator.

The definition given by the trial court was in substantial accord with the above test. It required the attestation to be in the conscious presence of testator and that the testator must have either actually seen the witness subscribe her name to the will or been in such position that testator could, had he been so disposed, readily have seen same by some slight physical exertion on his part. Under the facts in this case, this definition fairly joined the issue in dispute between the parties as to whether Mae Medlin was in the presence of testator when she subscribed her name as a witness to said will. The trial court did not err in overruling contestants’ objections to the definition given in connection with this issue and in not submitting contestants’ requested definition.

The judgment is affirmed.

KLINGEMAN, J., disqualified and not participating.

      . This section provides in part: “Every last will and testament, * * * shall be in writing and signed by the testator ⅜ ⅜ ⅝ arl(j jf not -wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen years who shall subscribe their names thereto in their own handwriting in the presence of the testator.”

      . Sec. 59, V.A.T.S. Probate Code.


text:
    J. C. PENNEY COMPANY, Appellant, v. Charles GILFORD, Appellee.
    No. 15121.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Nov. 30, 1967.
    Rehearing Denied Dec. 21, 1967.

      George H. Kolb, Houston, for appellant, Baker, Botts, Shepherd & Coates, Houston, of counsel.
    Bohn E. Phillips, Houston, for appellee, Sam S. Emison, Jr., Houston, of counsel.
   COLEMAN, Justice.

This is a suit for damages. The cause of .action is based on malicious prosecution or, alternatively, abuse of process. The trial was to the court without a jury and resulted in a judgment for the plaintiff in the sum of $2,500.00 for actual damage, but no punitive damages were allowed. Findings of fact and conclusions of law- were filed by the trial judge.

The more important questions presented by this appeal as to the cause of action based on malicious prosecution are: (1) whether the evidence shows as a matter of law that appellant had probable cause to instigate criminal proceedings against appel-lee, and (2) whether the fact that appellee filed the complaint against appellant after consultation with, and on the suggestion of, the District Attorney, constituted a defense to the action.

On October 23, 1964, two negro men appeared at the J. C. Penney store in Marshall, Harrison County, Texas, to cash a $100.00 money order. The instrument recited on its face that it was purchased by Ida Mae Gilford, 2314 Bringhurst Street, Houston, Texas, and was payable to the order of Charlie Gilford. It recited that it was issued by Sellers Bros. Grocery Store No. 2. It was drawn on the account of -Travelers Express Company, Inc. in First National Bank, Hudson, Wisconsin. The name “Charlie Gilford” was endorsed on the back of the instrument.

As identification one of the men presented a Texas Operator’s License issued to Charlie Gilford, 2314 Bringhurst Street, Houston, Texas. L. B. Thompson, manager of the store, wrote the license number and Houston address on the money order and gave the men $100.00 and they left.

The money order was presented to the drawee bank in the regular course of business and was returned to J. C. Penney with the notation that payment was refused because the instrument was stolen. Thompson called Charles Allen, District Attorney for Harrison County, and asked for assistance in collecting the money he had paid on the instrument. After talking to Mr. Allen, Thompson went to his office and delivered the money order to him. Allen then mailed a certified letter to Charlie Gilford at the address taken from the driver’s license, which stated in effect that a money order in the amount of $100.00 purchased from Sellers Bros. Grocery # 2 was cashed at the J. C. Penney Store in Marshall and payment on it was refused by the bank because it was stolen. The letter also said that the money order was reportedly sent from Ida Mae Gilford of 2314 Bringhurst Street, Houston, Texas, and that the person cashing the money order had “your driver’s license as identification.” It then concluded: “Unless we receive a money order to cover this $100.00 within ten (10) days of date of this letter, it will be our duty to accept a complaint against you for swindling with a worthless check and have a warrant issued for your arrest.” A copy of this letter was sent to Thompson, who read it.

Charlie Gilford received this letter, but did not reply. After the ten day period had elapsed, the District Attorney’s office called Mr. Thompson and informed him that no reply had been received although the letter had not been returned, and informed him that “the only way they could further help me was to — for us to have a warrant issued for investigation of Charles Gilford.”

Thompson then went to the District Attorney’s office and was given a form complaint for swindling with a worthless check, the blanks in which had been filled out with the possible exception of attaching a copy of the money order. He took the complaint to the office of the Justice of the Peace where he signed it. This complaint charged that Charlie Gilford knowingly and with intent to defraud did obtain from L. B. Thompson $100.00 by giving and drawing his check in that sum on First National Bank of Hudson, Wisconsin. A copy of the money order was then attached, and the complaint concluded: “And said defendant did then and there deliver said check to said injured party and did then and there represent to said injured party that said check was good, which representation was false, said defendant knowing at the time the check was delivered that he did not have sufficient funds in said bank to pay said check in full, and all other checks, drafts and orders then outstanding and the said injured party relied upon and was deceived by the representations of said defendant that said check was good; and said check was duly presented to said bank for payment and payment was refused by said bank for want of sufficient funds in the name and account of Charlie Gilford against the peace and dignity of the State."

A warrant was duly issued on the complaint and Charlie Gilford was arrested in Harris County and placed in the Harris County jail, where he was held for six days and then transferred to the Marshall jail where he was held five more days. He was finally taken to the District Attorney’s office where Thompson saw him and told the District Attorney that he was not one of the men who cashed the money order. He was then released.

Before he signed the complaint Thompson gave the District Attorney all of the information he knew except a description of the men cashing the money order. He knew that they were between the ages of 25 and 32, about six feet tall, very dark in complexion, and wore glasses. Gilford was shorter, about 55 years old, much lighter in color, and had less hair. Thompson testified that he was only interested in getting his money back and did not desire to prosecute anyone. He said he would have written off the money order as a loss if he had known Gilford was to be arrested as a result of the complaint, and that he would not have signed it had he not thought it a warrant for investigation. He said he knew that some of the allegations in the complaint were not true when he signed it.

Gilford testified that he did not reply to the letter because it did not ask for an explanation, but said that if he did not send $100.00 he would be arrested and he had not cashed the money order. The District Attorney testified that he had Thompson swear to a complaint of swindling with a worthless check when he knew that theft by false pretext was the applicable charge for that type of crime. On the warrant for arrest there was a notation in handwriting reading: “Do not give bond. We want him here. Ass’t. D. A. Watson.” Watson was the Assistant District Attorney. There is no competent evidence as to who made the notation, and no evidence that Thompson knew that such instructions were to be given or had been given.

The trial court found that L. B. Thompson, in causing the commencement of the criminal prosecution of the plaintiff, was not activated by any personal ill will or personal malice toward the plaintiff. The court also found that the defendant had no probable cause to commence the criminal prosecution against the plaintiff, and that its conduct in so doing was deliberate conduct. He found that Thompson, in making the affidavit, knew that Gilford had not committed the crime with which he was charged and that he did not rely on any representation of the District Attorney to the effect that Gilford had committed a crime, with which he was charged. He found that the District Attorney knew that Gilford had not committed the crime with which he was charged and that it was the joint purpose of Thompson and the District Attorney, in falsely charging him with the crime reflected in the affidavit, to compel Gilford to make good the loss sustained by J. C. Penney Company in cashing the money order. The court found that Thompson gave the District Attorney no physical description of the man who cashed the money order other than his race, although he knew the person’s approximate age, height, weight and other characteristics.

To maintain an action for malicious prosecution it must be proved that there was a prosecution by the defendant, that it was malicious, that it was without probable cause, and that the prosecution has ended in an acquittal. Probable cause has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Malice may be inferred from circumstances if they are such as to satisfy the mind that the party was actuated by wrongful motives in the institution and continua.nce of the prosecution. The wrongful motive, coupled with a wrongful act wilfully done to the injury of another, constitutes legal malice. Aldana v. Tavazon, 15 S.W.2d 678 (Tex.Civ.App., El Paso 1929, n.w.h.), citing Usher v. Skidmore, 28 Tex. 616, 622, Ramsey v. Arrott, 64 Tex. 320, and other cases.

The findings of fact of the trial court clearly establish the facts necessary to sustain this cause of action. The finding of no personal ill will on the part of Thompson toward appellee does not defeat the cause of action. Meyer v. Viereck, 286 S.W. 894 (Tex.Civ.App., Galveston 1926, writ dism.) 37 Tex.Jur.2d, Malicious Prosecution, § 13, p. 534.

The only evidence, or circumstance, tending to show that appellee was guilty of any offense is the fact that his driver’s license was used as identification, and that he did not respond to the letter demanding that he pay $100.00. It would seem unlikely that one passing a stolen instrument would give his correct name and address to the person he was planning to defraud. Appellant testified that he knew that stolen or lost identification papers were used by confidence men in similar swindles. Thompson testified that he knew that appellee was not guilty of the offense with which he was charged.

The findings of fact filed by the trial court have not been directly attacked by points in appellant’s brief. Appellant’s second point is that the evidence conclusively shows that J. C. Penney had probable cause to suspect that Gilford had committed a crime. We cannot agree that this is the only reasonable conclusion to be drawn from the facts known to appellant. In any event appellant had no cause to suspect that Charles Gilford was guilty of the crime with which he was charged, i. e., swindling with a worthless check.

In Reed v. Lindley, 240 S.W. 348 (Tex.Civ.App., Ft. Worth 1922, n.w.h.), the court pointed out that to support an action for malicious criminal prosecution the plaintiff must prove “that the charge preferred against him was unfounded, and that it was made without probable cause.” (Emphasis added)

In Sebastian v. Cheney, 86 Tex. 497, 25 S.W. 691 (1894), the court held:

“Plaintiff in error complains of the seventh clause of the charge given by the court, which is as follows: ‘In this state no one can invoke the criminal law to merely have decided any civil question affecting the indebtedness due from one citizen to another, or other civil right; and if you find from the evidence that Sebastian knew that Cheney did not steal or embezzle his cotton, but his object in instigating the criminal prosecution, or prosecutions, (if you find that he did instigate such prosecutions,) was to obtain the payment to him by Cheney of his (the defendant’s) part of the rent cotton, then the defendant is liable to the plaintiff in damages.’ It is objected that this charge is upon the weight of the evidence. We think that the charge announces a correct proposition of law. Gabel v. Weisensee, 49 Tex. 131; Holt v. Follett, 65 Tex. 550, 554. The charge guards the interests of the defendant by requiring that it should appear that the defendant knew that plaintiff was not guilty, as he charged, before he could be held liable in damages, which was more favorable to defendant than the law justified. If there was no probable cause for the prosecution, and defendant instituted it to collect his demand, he would be liable. The charge of the court, as a whole, is a fair presentation of the law upon the issue submitted by it.”

In Grissom v. Lopez, 280 S.W. 613 (Tex.Civ.App., San Antonio 1926, writ dism.), the court said: “If appellant made the affidavit in good faith, believing, in the light of the facts, that appellee was guilty of embezzlement, he would not be liable to damages simply because he may have also desired to collect money owed to him by appellee.”

However appellant says that it should not be held in damages because it made a full disclosure of all material facts to the District Attorney and filed the complaint upon his suggestion.

In Missouri, K. & T. Ry. Co. of Texas v. Groseclose, 50 Tex.Civ.App. 525, 110 S.W. 477 (1908, n.w.h.), the court, relying on Sebastian v. Cheney, 86 Tex. 502, 25 S.W. 692, stated: “We understand the effect of the ruling to be to establish, in this state as matter of law, that the advice of the state’s attorney, given as such, and in the discharge of his official duty, upon a fair statement of the facts, is probable cause, which will justify the institution of a prosecution.”

The court further stated: “We go no farther than to hold that, if it should be shown that the statement was a full and fair one of all the material facts known to them, the advice of the assistant county attorney would be probable cause for the prosecution commenced, * *

In Sebastian v. Cheney, supra, the Supreme Court said:

“The question involved in this case is: If a citizen, in good faith, fairly and honestly communicate to the county attorney all of the facts known to him concerning the charge of which he makes complaint, shall be held responsible in damages at the suit of accused if the attorney, the officer of the state, makes a mistake in determining as to whether or not there is probable cause for the prosecution? * * * We have found no case where it is held that a citizen who in good faith makes a fair statement of the facts, as known to him, to the prosecuting officer, will be held responsible in damages for the prosecution inaugurated by such officer. The contrary doctrine is well established by courts of eminent ability.”

In Brady v. Georgia Home Ins. Co., 24 Tex.Civ.App. 464, 59 S.W. 914 (1900, writ ref.), the court said:

“The question in cases of tort is whether or not the complaining party has suffered a legal wrong at the hands of the defendant, and the good or bad motive back of the action cannot make a right action wrong, or a wrong action right, in the eyes of the law. As said by Cooley in his work on Torts (page 832) : ‘Malicious motives make a bad act worse, but they cannot make that a wrong which in its own essence is lawful.’ To apply it to this case, if Matthews acted upon probable cause in making the affidavit against Brady, appellees are not liable, no matter if the object of the prosecution was to defeat payment of the insurance money. Citizens should be encouraged in enforcing the laws of the country, and should not be deterred from attempting to punish one whom they have probable cause to believe to be guilty, although their activity may be the outcome of sinister motives. It is the rule, it is true, that, to justify a prosecution on the ground that it was advised by an attorney, a statement of all the facts known to the prosecutor must be made in good faith, which would seem to contain the idea that motive might be of consequence in cases of malicious prosecution; but the matter of good faith refers, not to the object of the prosecution, but to the honest desire of the prosecutor to ascertain if the facts stated make out a case against the accused. * * * There was evidence tending to show that Matthews acted in good faith, and fairly and honestly communicated all the facts known to him to the county attorney, and that the latter determined that there was probable cause for the prosecution; and consequently the court did not err in submitting that issue to the jury, even though such charge had not been also asked by the appellant.” (Emphasis added)

This Court has heretofore emphasized the idea that prosecutions should be initiated by a private citizen only when he is in good faith seeking to promote the general interest pursuant to an honest desire to see the law of the land upheld. Meyer v. Viereck, supra.

In an annotation found in 10 A.L.R.2d 1200, at 1244, the author states: “The rule that advice of prosecuting officer may be a defense in an action for malicious prosecution supposes that the party seeking the advice does so in good faith.”

In this case appellant does not contend that he sought or received the advice of the District Attorney on the question of the guilt or innocence of appellee of any crime, except such as might be implied from the fact that the District Attorney prepared a complaint and suggested that he file it. Appellant sought help in recovering the money it lost. When the letter failed to produce results, he sought advice on further steps to be taken in pursuit of the same objective. There is no indication that he was motivated by an honest desire to see the law of the land upheld, or that he sought the advice of the prosecutor as to whether on the facts presented appellee had violated the law. Appellant withheld material facts known to him from which the District Attorney, by making further investigation, could have determined that appellee was not guilty of any offense. Additionally, appellant’s agent testified that when he signed the complaint he knew appellee was not guilty of the offense with which he was charged. The trial court has found, in effect, that appellant did not seek the advice of the District Attorney in good faith, and this finding is supported by the record.

We, therefore, find that appellant had no probable cause to institute criminal proceeding against appellee. The trial court did not err in entering the judgment from which this appeal was taken.

Appellee has also alleged a cause of action based on abuse of process. In view of this opinion, it is not necessary to dwell at length on this aspect of the case.

The elements of an action for abuse of process are stated to be: (1) that the defendant made an illegal, improper, perverted use of the process, a use neither warranted nor authorized by the process, and. (2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted, or improper use of process, and (3) that damage resulted to the plaintiff from the irregularity. 1 Am.Jur.2d, Abuse of Process, § 4.

While it might be argued on respected authority that procuring the issuance of a warrant of arrest and the subsequent arrest of one for the purpose of extorting the payment of money to the one so procuring the warrant by the one arrested would constitute a sufficient basis for the action of abuse of process, ibid, § 12, we are committed to the view that an action for abuse of process cannot be maintained where the process was employed to perform no other function than that intended by law. The mere issuance of process is not actionable as an abuse of process. There must be use of the process, and that use must of itself be without the scope of the process, and, hence, improper. Blackstock v. Tatum, 396 S.W.2d 463 (Tex.Civ.App., Houston 1965, n.w.h.).

Here, after the process was issued, appellee was arrested and placed in jail. There is no evidence that he was requested to pay the $100.00 at any time after the complaint was filed. There is no evidence that appellant knew that the Houston officers were requested to deny bail or that ap-pellee was denied bail.

It is also the rule that:

“Liability for an abuse of process committed by an officer or his deputy, extends to all persons who knowingly procure, aid, abet, participate in, or subsequently adopt or ratify the act which constitutes the abuse. * * * one who places a valid writ in the hands of an officer without directions as to the manner of its service is not liable for the trespasses and lawlessness of the officer in executing it unless, with knowledge of the facts, he advised or assisted in the abuse of process; or subsequently ratified the officer’s acts.” 1 Am.Jur.2d, Abuse of Process, § 17.

The evidence in this case is not sufficient to authorize a judgment based on the cause of action for abuse of process.

The judgment of the trial court is affirmed.

PEDEN, J., not participating.


author: HUGHES, Justice.

text:
    AGRICULTURE WORKERS AUTO INSURANCE COMPANY, Appellant, v. Jack LACY, Appellee.
    No. 11538.
    Court of Civil Appeals of Texas. Austin.
    Nov. 1, 1967.
    As Amended on Denial of Rehearing Nov. 29, 1967.
    As Amended on Denial of Second Rehearing Nov. 29, 1967.
    Third Rehearing Denied Dec. 20, 1967.

      Hill, Paddock & Street, Clifford F. Mc-Master, Fort Worth, for appellant.
    Abney, Hammett & Lynch, E. C. Green, Lampasas, for appellee.
   OPINION

HUGHES, Justice.

I concur in the affirmance of this case on the ground that venue in Lampasas County may be sustained under Sub. 23, Art. 1995, Vernon’s Ann.Tex.Civ.St., providing, in part, that a suit against a private corporation may be brought in the county in which the cause of action or a part thereof arose.

This suit was to recover for damages to an automobile owned by appellee resulting from a collision with another automobile. The automobile owned by appellee was covered by an insurance policy issued by appellant insuring appellee against losses of the nature claimed.

The agreement to buy this insurance was consummated in Lampasas County, and appellant delivered the policy sued on in Lam-pasas County.

There is testimony that the automobile of appellee was in collision with another automobile and that the automobile of appellee sustained substantial damage.

Appellant is a private corporation, incorporated under the laws of the State of Texas.

Appellant’s only contention in denying the application of Sub. 23 is that appellee did not prove a cause of action because he did not prove that he had furnished appellant with a “sworn” proof of loss as required by the policy in suit.

The wife of appellee testified that appellant furnished appellee a proof of loss form and that “there was no place on the loss sheet for it to be sworn to. I filled it out exactly like it said and signed it and sent it in.”

There is no evidence that appellant made any objections to the proof of loss furnished it by appellee until the hearing on the plea of privilege.

The rule is that furnishing an unsworn proof .of loss may be substantial compliance with the requirement that a sworn proof of loss be furnished. Where there is no objection on this ground, and no opportunity given to correct the defect, furnishing an unsworn proof of loss is substantial compliance with the requirement. Austin Building Company v. National Union Fire Ins. Co., 403 S.W.2d 499, Tex.Civ.App., Dallas, writ ref. n. r. e.

The above opinion has been adopted as the opinion of the Court,' the majority opinion heretofore delivered having been withdrawn.