author: SELLERS, Justice.

text:
    Elton Leon WHITEHEAD, Appellant, v. Marilyn C. LOUT et vir, Appellees.
    No. 163.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 21, 1965.
    Bill F. Griffin, Jr., Center, for appellant.
    Joe Davis Foster, Center, for appellees.
   SELLERS, Justice.

Elton Leon Whitehead and Marilyn C. Whitehead were husband and wife and had born to them two children, and resided in Shelby County, Texas. On the 12th day of December, 1960, in the District Court of Shelby County, the above parties were divorced and the care and custody of said children were given to the mother, with the right of the father to visit the children at reasonable times. The father was ordered to pay to the mother the sum of $15.00 per month for the support of each child.

Thereafter, Mrs. Whitehead married Kenneth H. Lout who, with the consent of the mother of said children, applied to the District Court of Shelby County for permission to adopt said children; and on the 7th day of April, 1964, the Judgment of Adoption was entered by the court as follows :

“This the 7th day of April, 1964, in the above styled and numbered proceeding came on to be heard the petition of Kenneth H. Lout for adoption of the minor children referred to in such petition, and it appearing to the court that petitioner is married to the natural mother of said minors, who gave her full and free consent to the adoption of said minor children by petitioner, her husband, and it further appearing to the court that the natural father of said minors has not contributed anything to the support of such children during a period of more than two (2) years and that the County Judge of Shelby County, Texas, there being no Juvenile Court in said Shelby County, Texas, has given his consent to the adoption of said minor children by petitioner, and the court having heard and considered the pleadings, the report of investigator heretofore filed in compliance with the former order of this court and the testimony and having fully considered the same finds that said minor children are the proper subjects of adoption; that all preliminary consents, waivers, notices and processes necessary to give this court jurisdiction to hear and determine this cause have been given or are on file herein; that petitioner is a proper person to adopt said children; that it is to the best interest of the said children that such petition for adoption be granted.
“It is therefore ORDERED, ADJUDGED AND DECREED by the court that petioner Kenneth H. Lout be and he is hereby granted leave to adopt said minor children, and that from this date said petitioner shall stand in the legal relationship of father to said children, and that said minor children shall stand in the legal relationship of sons to said petitioner, and the natural mother of said minor children being the wife of petitioner shall continue to stand in the relationship of mother to said minor children and shall not relinquish any of her rights, duties or obligations as the natural mother of said minors; and
“It is further ORDERED that the rights of all other persons, if any they have, to the care, custody and control of said minor children shall be and are hereby terminated: and
“It is further ORDERED that the names of said minor children be and they same are hereby changed as prayed for in said petition; and
“It is further ORDERED that said children shall from henceforth be deemed and held to be the children of petitioner Kenneth H. Lout and his wife, Marilyn C. Lout, as fully as though born to them in lawful wedlock and said children shall henceforth be entitled to proper education, support, maintenance, nurture and care from the petitioner and his wife, and that said petitioner and his wife shall be entitled to the service, control, custody and company of said children and provided further that the rights of inheritance of said children shall be such as are given to them by the laws of the State of Texas.
“It is further ORDERED that the report heretofore filed herein be kept with the records of the proceedings herein and shall be a part thereof, and that the files and records in this cause shall be kept by the Clerk of this court and shall not be open to the inspection of or be copied by any person other than the parties interested herein and their attorneys, exceup upon order of this court; provided this judgment be open to the inspection of any person, and certified copies may be obtained.
“It- being shown to the court that petitioner has paid all costs herein, let no execution issue.
/s/ Ward Chandler”

On December 2, 1964, Elton Leon Whitehead brought this suit in the same District Court of Shelby County, Texas, in which he alleges:

“1.
“Plaintiff is a resident of Hardin County, Texas; Defendants are residents of Shelby County, Texas.
“2.
“That on or about the 12th day of December, 1960, defendant Marilyn Cannon Whitehead Lout was granted a divorce from Plaintiff Elton Leon Whitehead in Cause No. 17,028, in the District Court of Shelby County, Texas, Honorable Ward Chandler presiding, and such decree of divorce provided that said Marilyn Cannon Whitehead have the care, custody and control of Elton Leran Whitehead born September 19, 1957, and Robert Lee Whitehead, born March 17th, 1959, minor children of said Marilyn Cannon Whitehead and Elton Leon Whitehead, and such decree of divorce further provided that said Elton Leon Whitehead have the right to visit said children at any and all reasonable times.
“3.
“That on or about the 7th day of April, 1964, in cause No. 16,907, in the District Court of Shelby County, Texas, Honorable Ward Chandler presiding, Defendant Kenneth H. Lout was granted leave to adopt said plaintiff’s children. That plaintiff first learned of said adoption on the 23rd day of November, 1964, when the undersigned attorney contacted defendant Marilyn Cannon Lout in an effort to obtain permission for plaintiff to visit with his said two children. That plaintiff was not a party to said adoption proceedings, did not consent for his children to be adopted, had no notice, actual or constructive, of said proceedings, and was afforded no opportunity to appear, assert his rights and resist the petition of defendant Kenneth H. Lout to adopt his children; and further plaintiff had no notice of any proceedings in the County Court of Shelby County, Te-ras, if any were had, to obtain consent for the adoption of said children.
“4.
“That such Judgment of adoption is void because the Court was without jurisdiction to grant said adoption without the written consent of plaintiff and plaintiff was given no notice of any petition to adopt his children or to obtain consent for their adoption without his consent, and plaintiff has therefore been deprived of his rights without due process of law.
“5.
“That plaintiff has not voluntarily abandoned and deserted his said chib dren for any period, nor has he failed to contribute substantially to the support of such children during any period of time commensurate with his financial ability. In this connection, plaintiff would show that letters addressed to said children and containing support money for said children have been refused by defendant Marilyn C. Lout and returned to plaintiff, and upon return of said sums of money, plaintiff has deposited same in savings accounts for the benefit of said children, and said plain- here and now offers to pay said sums of money into the registry of the court for the benefit of said children. Further, plaintiff mailed a Christmas package to defendant Marilyn C. Lout for said children in 1962, and said package was returned to plaintiff, marked ‘refused’.
“Further, .said children..have stayed with the maternal grandmother, Mrs. Enice Cannon, while defendant Marilyn C. Lout was working, and plaintiff has never been welcom- to visit with said children in said home. On numerous occasions plaintiff has called on defendant Marilyn C. Lout at place of her employment concerning said children and for the purpose of visiting said children, and said defendant has either refused to allow plaintiff to visit with said children, or would agree to allow plaintiff to visit said children in the home of Mrs. Enice Cannon and by the time plaintiff would arrive at the home of Mrs. Cannon, she and the children would always be gone.
“6.
“Plaintiff loves his children and desires in every way to be the father of his children and for the existance of mutual love and affection between natural father and sons. That the above mentioned decree of divorce regarding custody of said children was temporary in its nature and subject to revocation and change by the court upon proper petition, notice, and evidence to support such a change, and such judgment reserved to plaintiff the right to visit the children at any and all reasonable times. Said decree of divorce' regarding custody and visitation of and with the children has not been changed, nor has plaintiff been given notice, actual or constructive, of any change contemplated, or to be granted by the court, and such decree granting plaintiff the right to visit with his said children is still in full force and effect. Since defendants are apparently using a; fraudulent scheme to deprive plaintiff of his children, or of knowing or ever contacting them again, plaintiff would say that defendants are not fit and proper persons to have the care, custody and control of said children. That plaintiff is a fit and proper person to have the care, custody and control of said children, and in view of all of the circumstances surrounding said children at the present time it would be in the best interest and welfare of said children that the provision of the decree of divorce regarding custody of said children be changed and that plaintiff be vested with full custody of his said children with the right of visitation being reserved to defendant Marilyn C. Lout, or that, in the alternative, plaintiff be granted the right to have said children visit with him in his home at specified times, and in such event, that defendants be ordered to not speak disrespectiwely of plaintiff while they have custody of the children.
“Wherefore, premises considered, plaintiff prays that defendants be given notice to appear and answer herein as required by law, and that upon final hearing herein the Judgment of adoption entered herein by the court on April 7, 1964, in cause No. 16,907, be vacated, set aside and forever held for naught in its entirety ; that the decree of divorce entered herein on December 12, 1960, in Cause No. 17,028, insofar as it pertains to custody of the minor children and visitation rights with said children, be modified and changed vesting custody of said children in plaintiff with reasonable visitation rights to defendant Marilyn C. Lout, or in the alternative, the decree of divorce be changed to allow plaintiff the right to have said children visit in his home at specified times; that pending a final hearing, plaintiff be allowed to visit with said children at all reasonable times and places and that plaintiff be allowed to have contact with his children, by mail, telephone, or otherwise and that plaintiff be allowed to contribute to the support of his said children and make gifts to them, specially at Christmas and Birthdays; and plaintiff prays for such other relief, at law and in equity, to whieh he may be justly entitled to receive.”

Verified.

To the above suit defendants filed the following answer:

“1.
“NOW COMES the defendants and sayj that on April 7, 1964, in this Honorable Court in a certain cause therein pending, styled In Re: ELTON LERAN WHITEHEAD and ROBERT LEE WHITEHEAD, MINORS, NUMBERED 16,907 on the docket of said court and after a full and complete hearing in accordance with the law, defendant KENNETH H. LOUT was granted leave to adopt said minors, and the same matters in controversy in this cause, as by the record can be shown, were fully decided and resolved in said cause No. 16,907, and the judgment in said cause No. 16,907, is final and remains in full force and effect, in nowise reversed or made void and the same is and stands as a bar by res judi-cata of the present suit, and this the defendants are ready to verify by the said record.
“Wherefore defendants pray that plaintiff take nothing by this suit, and that defendants go hence with their costs, without day.
“2.
“Pleading further defendants would show the court that the judgment in said cause No. 16,907 terminated the rights of all persons, other than defendants, to the care, custody and control of said minors named in said judgment; that said judgment is in full force and effect, in nowise reversed or made void, and that plaintiff is not entitled to visitation rights as prayed for pending the determination of his suit, nor is plaintiff entitled to any rights of care, custody and control of said minors.
“3.
“Pleading further defendants would show the court that the minors who are the subject of this controversy know no father other than KENNETH H. LOUT; that plaintiff is a stranger to them; that it would' disrupt the unity of said minors family to allow plaintiff visitation pending the determination of this cause and it would not be in the best interest of said minors.
“4.
“Pleading further defendants deny each and every, all and singular the allegations in plaintiff’s original petition; and demand strict proof thereof, and of this they put themselves upon the country.
“WHEREFORE defendants pray that plaintiff take nothing by his suit, and that defendants go hence with their costs without day.
“/s/ Marilyn C. Lout, Defendant
“/s/ Kenneth H. Lout, Defendant
“/s/ Joe Davis Foster
“Attorney for Defendants”

Verified.

The defendants filed their motion for summary judgment April 9, 1965, which is as follows:

“1.
“That there is no genuine or material issue of fact between /plaintiff and defendants.
“2.
“That this motion is based upon the pleadings herein, the Judgment in cause No. 16,907 styled in re: Elton Leran Whitehead and Robert Lee Whitehead, Minors, in this Honorable Court, and the divorce decree and Judgment entered in Cause No. 17,028 styled Whitehead vs. Whitehead in this Honorable Court.
“3.
“The pleadings herein and the records and Judgments of this-Court above set out sliow without dispute that plaintiff is not entitled to recover the relief sought against defendants and that as a matter of law, defendants are entitled to a Judgment against Plaintiff denying all relief sought by plaintiff.
“Wherefore premises considered defendants, Marilyn C. Lout and husband, Kenneth H. Lout, pray that this, their motion for summary Judgment be in all things granted and that plaintiff take nothing by his suit.”

This motion was set for hearing on April 19, 1965, at which time the following Judgment was entered:

“On the 19th day of April, 1965, came on to be heard defendants’ motion for summary judgment in the above entitled and numbered cause wherein Elton Leon Whitehead is plaintiff and Marilyn C. Lout and husband, Kenneth H. Lout are defendants, and came the defendants, after first obtaining leave of the Court, and amended their motion for summary judgment, to which action the plaintiff duly objected and excepted, and it appearing to the Court that such motion has been made in proper form and time, that proper service thereof has been made and that the parties by their attorneys are before the Court for a hearing thereon; and it further appearing that the plaintiff has not filed an answer or opposing affidavit thereto; and the Court having considered the pleadings lierein, the judgment entered in cause No. 16,907 in this Court, Styled In Re: Elton Leran Whitehead and Robert Lee Whitehead, Minors, and the divorce decree entered in cause No. 16,028 in this Court styled Whitehead v. Whitehead, and finding that they show an absence of genuine issue of any material fact and that this sumary judgment should be rendered in behalf of defendants, it is accordingly Ordered, Adjudged, and Decreed that plaintiff, Elton Leon Whitehead take nothing of defendants Marilyn C. Lout and husband, Kenneth H. Lout and that said defendants go hence with their costs without day.
“To which action of the Court the plaintiff then and there in open court duly objected and excepted and gave notice of appeal to the Court of Civil Appeals for the Twelfth Supreme Judicial District of Texas at Tyler, Texas.
“Entered and signed this the 23rd day of April, 1965.”

There appears in the record the following Stipulation of Facts which were before the court at the time of the granting of the Motion for Summary Judgment:

“On the 19th day of April, 1965, it was stipulated by defendants Marilyn C. Lout and husband, Kenneth H. Lout, by and through their attorney of record that no Notice or Citation of any proceedings to adopt the children of plaintiff Elton Leon Whitehead was issued, given, or served upon said Elton Leon Whitehead in Cause No. 16,907, In the District Court of Shelby County, Texas, 123rd Judicial District, Styled In Re: Elton Leran Whitehead and Robert Lee Whitehead, Minors.
“Said matters and facts were stipulated to and before the Court in the above entitled and numbered cause on the hearing of Defendants’ Motion for Summary Judgment and before rendition of Judgment, and it is agreed that the Original of this stipulation shall be filed by the Clerk of the Court in this cause and made a part of the Transcript of the record for use in the appeal of said cause.”

We have set out the proceedings in the trial court rather fully in order to reveal the fact situation of this case with that of Armstrong, Jr. v. Manzo et ux., 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed. 62, Opinion by Justice Stewart. This was an appeal from a judgment of the El Paso Court of Civil Appeals, 371 S.W.2d 407, affirming a judgment of a District Court in which a writ of error had been denied by the Texas Supreme Court. The issue involved in the Armstrong case was the validity of a Texas District Court judgment adopting the heir of the natural father by the second husband of the child’s -mother and with her consent, but the natural father was not a party to the adoption proceedings and had no notice of the same. The trial court proceeded upon the theory that the written consent of the natural father was not necessary where he had failed to support the child for a period of two years, and the consent of the Juvenile Court judge was secured, and that was all -that was necessary to give -the trial court jurisdiction. The United States Supreme Court held that the adoption decree was a denial of due process of law and that the hearing on the natural father’s application to set aside the judgment did not cure the constitutional invalidity.

Justice Stewart held:

“ * * * The questions before us are whether failure to notify the petitioner of the pendency of the adoption proceedings deprived him of due process of law so as to render the adoption decree constitutionally invalid, and, if so, whether the subsequent hearing on the petitioner’s motion to set aside the decree served to cure its constitutional invalidity.
“In disposing of the first issue, there is no occasion to linger long. It is clear that failure to give -the petitioner notice of the pending adoption proceedings violated the most rudimentary demands of due process of law. ‘Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, at 313, 70 S.Ct. 652, at 656, 94 L.Ed. 86 [865]. ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278; Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363; Priest v. Board of Trustees of Town of Las Vegas, 232 U.S. 604, 34 S.Ct. 443, 58 L.Ed. 751; Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 52 [520].’ Id., at 314, 70 S.Ct. at 657. Questions frequently arise as to the adequacy of a particular form of notice in a particular case. See, e. g., Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255; [City of] New York v. New York, N. H. & H. R. Co., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333; Walker v. Hutchinson City, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178; Mullane v. Central Hanover Bank & Tr. Co., supra. But as to the basic requirement of notice itself there can be no doubt, where, as here, the result of the judicial proceeding was permanently to deprive a legitimate parent of all that parenthood implies. Cf. May v; Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221.
“The Texas Court of Civil Appeals implicitly recognized this constitutional rule, but held in accord with its understanding of the Texas precedents, that whatever constitutional infirmity resulted from the failure to give the petitioner notice had been cured by the hearing subsequently afforded to him upon his motion to set aside the decree. 371 S.W.2d at 412. We cannot agree.
“Had the petitioner been given the timely notice which the Constitution requires, the Manzos, as the moving parties, would have had the burden of proving their case as against whatever defenses the petitioner might have interposed. See Jones v. Willson, Tex.Civ.App., 285 S.W.2d 877; Ex parte Payne, Tex.Civ.App., 301 S.W.2d 194. It would have been incumbent upon them to show not only that Salvatore Manzo met all the requisites of an adoptive parent under Texas law, but also to prove why the petitioner’s consent to the adoption was not required. Had neither side offered any evidence, those who initiated the adoption proceedings could not have prevailed.
“Instead, the petitioner was faced on his first appearance in the courtroom with the task of overcoming an adverse decree entered by one judge, based upon a finding of nonsupport made by another judge. As the record shows, there was placed upon the petitioner the burden of affirmatively showing that he had contributed to the support of his daughter to the limit of his financial ability over the period involved. The burdens thus placed upon the petitioner were real, not purely theoretical. For ‘it is plain that where the burden of proof lies may be decisive of the outcome.’ Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Yet these burdens would not have been imposed upon him had he been given timely notice in accord with the Constitution.
“A fundamental requirement of due process is ‘the opportunity to be heard.’ Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783. It is an opportunity which must be granted at a meaningful time and in a meaningful manner. The trial court could have fully accorded this right to the petitioner only by granting his motion to set aside the decree and consider the case anew. Only that would have wiped the slate clean. Only that would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place. His motion should have been granted.
“For the reasons stated, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
“It is so ordered.
“Reversed and remanded.”

It will be observed that the Armstrong case is much stronger on the fact stipulation than the case under consideration, since the natural father had a hearing on his application to vacate the judgment and offered evidence to show that he had not failed to support his child, and his application was denied. The Supreme Court held this was not sufficient to cure the invalidity of the original adoption proceedings and reversed the case, with instructions to set aside the adoption decree and consider the case anew.

In the ease before this court, the defendants filed a motion for Summary Judgment based upon the pleading and the judgment of adoption and decree of divorce which was granted by the trial court; notwithstanding there was before the court at the time the agreed statement of facts that the natural father was not a party to the adoption proceeding and had no notice thereof. We reverse the trial court summary judgment and hold that the proceedings to adopt the children by the second husband of the former Mrs. Whitehead is absolutely void and of no force or effect, and a new proceeding should be had in which the issues set out in the Armstrong case could be tried with all parties present in court.

In fairness to all parties and the court who tried this case, we note that the Opinion of the Armstrong case was delivered after the present case was tried.

Judgment of the trial court is reversed and cause remanded.


source: Caselaw Access Project

author: McDONALD, Chief Justice. WILSON, Justice

license: Public Domain

text:
    J. C. PENNEY COMPANY, d/b/a Penny’s Auto Center, Appellant, v. Dennis WALKER, d/b/a Auto Center, Appellee.
    No. 4405.
    Court of Civil Appeals of Texas. Waco.
    Oct. 7, 1965.
    Rehearing Denied Oct. 28, 1965.

      Lewright, Dyer & Redford, and W. N. Woolsey, Corpus Christi, for appellant.
    Jake B. Jarmon, Jr., Corpus Christi, for appellee.
   McDONALD, Chief Justice.

This is an appeal from an interlocutory order of the trial court granting plaintiff application for a temporary injunction restraining defendant, pending final hearing, from using the name “Auto Center” in connection with its business in Nueces County.

Plaintiff Dennis Walker, d/b/a Auto Center, filed this case on March 5, 1965 against defendant J. C. Penney Co., d/b/a Penney’s Auto Center, alleging that plaintiff is engaged at two locations in Corpus Christi, Nueces County, Texas, in the general automotive supply and repair business under the trade name of “Auto Center”; which trade name was duly registered in the office of the County Clerk of Nueces County in 1952, and 1962, and continues to the present date. Plaintiff further alleged that during the years he has invested extensive capital in building good will, advertising under the name “Auto Center”, and he built up extensive business and good will under such name; that it has become well known among persons desiring automotive products and services; that it has acquired a secondary meaning apart from its primary and generic significance denoting in the mind of the public, care, skill and reliability in automotive products and services at reasonable cost in the Corpus Christi area.

Plaintiff alleged that defendant, on February 11, 1965, concocted a trade name using the words Penney’s AUTO CENTER and began advertising such in Corpus Christi, and opened a place of business using such trade name in Corpus Christi, Texas, and is now operating such business under such trade name; that such name is identical in nature and in direct competition to the business conducted by plaintiff.

Plaintiff alleges the use of the words AUTO CENTER by defendant in the conduct of its business and its advertising is an appropriation of the trade name of plaintiff and constitutes unfair competition, and if defendant is permitted to continue to use such name, the good will and name used by plaintiff will be unfairly appropriated and the public will be deceived or confused, and plaintiff will be deprived of the value of the good will resulting from the skill, industry and investment and extensive advertising it has acquired from the use of the trade name “AUTO CENTER,” which was simulated and appropriated by defendant.

Plaintiff prayed for temporary injunction, enjoining defendant from further using the name “AUTO CENTER” in connection with its business in Nueces County, and upon final hearing permanent injunction, and for damages.

Defendant answered by general denial. After hearing on temporary injunction, the trial court enjoined defendant, pending final hearing, from further using the name “Auto Center” in connection with its business within the confines of Nueces County and from advertising directly or indirectly, or in any manner using the name “Auto Center” as a part of its business name.

Defendant appeals, contending:

1) The trial court erred in impliedly finding that the words “Auto- Center” had acquired a secondary meaning in Corpus Christi, Nueces County, Texas.
2) The trial court erred in impliedly finding that defendant, in using the name “Penney’s AUTO CENTER”, acted fraudulently in an attempt to palm off its goods as those of plaintiff’s.
3) The trial Court erred in granting temporary injunction because such writ disturbed the status quo.

Defendant’s 1st contention is that the trial court erred in impliedly finding that the words “auto center” had acquired a secondary meaning in Corpus Christi. The record reflects that plaintiff had commenced using the words “Auto Center” in Corpus Christi in 1952, and had used them to the present. The trade name had been filed in the assumed name records of Nueces County since June 2, 1952. Plaintiff had expended in excess of $100,000 in advertising his business, “The Auto Center” since 1952. Large signs had been up continuously on plaintiff’s two locations m Corpus Christi. Plaintiff had pickup trucks, station-wagons and an airplane all owned by his business and identified with the marking “Auto Center.” Plaintiff had sent out thousands of direct mail handouts in the Corpus Christi area; and had dispensed thousands of clips, mileage markers, telephone rests and desk pads with “Auto Center” on them. Employees had “Auto Center” on their uniforms; the bank account and utilities were in the name of “Auto Center”. Plaintiff had conducted TV and newspaper advertising for the “Auto Center.” Many charitable contributions were made by plaintiff in the name of the “Auto Center.” Many letters were written to plaintiff and addressed “Auto Center.” Under the record, the trial court was justified in impliedly finding that the words “Auto Center” had acquired a secondary meaning associated with plaintiff in the Corpus Christi area. Harrelson v. Wright, Tex.Civ.App. w/e Ref., 339 S.W.2d 712; Walters v. Building Maintenance Service, Inc., Tex.Civ.App. (n.w.h.) 291 S.W.2d 377.

Defendant’s 2nd contention is that the trial court erred in impliedly finding that defendant in using, the words “Auto Center” acted fraudulently in an attempt to palm off its goods as those of plaintiff. The trial court made no such finding and none was necessary. The trial court made the finding that “Auto Center” had acquired a secondary meaning, that plaintiff was the prior user of such name in the Corpus Christi area, and that the manner in which defendant was using the name had a tendency to and probably would mislead and confuse the public. The record is ample to sustain the trial court in this implied finding. Harrelson v. Wright, supra.

Defendant’s 3rd contention complains the temporary injunction disturbed the status quo. Plaintiff commenced use of the name “Auto Center” in 1952. Defendant opened its auto center on February 11, 1965; the instant case was filed on March 5, 1965. Status quo is the last actual peaceable noncontested status which preceded the present controversy. This was the condition which existed from 1952 to February 11, 1965. Plaintiff could not reasonably have acted any quicker than by filing his' suit on March 5, 1965.

In suits for temporary injunction, the trial court is endowed with broad discretion to grant or deny the injunction; and the scope of appellate review in such cases is limited to the narrow question of 1 whether the action of the trial court constitutes a clear abuse of discretion. Moreover, the purpose of the temporary injunction is to preserve the status quo of the subject matter of the suit pending a final trial of the case on its merits. Janus Films, Inc v. City of Ft. Worth, 163 Tex. 616, 358 S.W.2d 589. Under the record we cannot say that a clear abuse of discretion has been shown on the part of the trial court. This opinion is not to be construed as passing on the merits of the case in any respect. Its sole function is to uphold the trial court in granting the temporary injunction. AH of defendant’s points and contentions have been considered and are overruled.

Affirmed.

WILSON, Justice

(concurring).

I concur in the result only on the ground, somewhat questionable, that the court was justified in preserving the status quo pending final hearing. In my opinion use of the trade-name, “Penney’s Auto Center” in the Corpus Christi area under this record does not constitute unfair competition. It is with extreme reservation that I concur in a holding that its use should be temporarily restrained.

The words, “Auto Center” are generic and descriptive only. As said in Iowa Auto Market v. Auto Market & Exchange, 197 Iowa 420, 197 N.W. 321, the words “Auto Market” are no more distinctive than the words “shoe store” or “meat market.” It is held that the term, “Food Center” is generic and generally descriptive. It is not susceptible of monopolization as a trade-name, and “a court of equity is not justified in assuming as a matter of law that it has or is calculated to deceive the public, or that any confusion with reference to the identity of the two businesses exists to the prejudice of the plaintiff.” The claim that the words have acquired a secondary meaning, that an extensive advertising campaign by expenditure of large sums of money has made plaintiff’s business widely identified with the words, is not sufficient basis for equitable intervention. Food Center Supermarkets, Inc. v. Altiere, Sup., 123 N.Y.S.2d 260.

Such terms as “Bowling Center”, Furniture Center” and “Food Center” are only generic and descriptive, and “it is only the manner of their use by another that is considered and restrained. There must be confusion or deception with implicit representation that the goods of the later are those of the first user.” Houston v. Berde, 211 Minn. 528, 2 N.W.2d 9. In the latter case it was pointed out that even assuming the words “Food Center” have acquired a secondary meaning, associating them in the public mind with plaintiff’s business, if there is not shown confusion of the public or tendency to deception, injunction will not be granted. The case emphasizes the fact that defendant used his own name and the possessive “Berde’s” in connection with the words, “Food Center.”

The prerequisite showing of deceptive simulation in the use of generic words which are the common property of all persons, even where there is a claimed acquisition of secondary meaning, is stated in Alff v. Radam, 77 Tex. 530, 14 S.W. 164, 9 L.R.A. 145: “[if] such simulation was calculated to deceive ordinarily prudent persons, and did deceive such persons, the plaintiff would be entitled to protection against the consequences of such deception.”

In Pipe Linings, Inc. v. Inplace Linings, Inc., Tex.Civ.App., 349 S.W.2d 279, writ ref. n.r.e., it was shown that plaintiff had expended considerable time and money in promotion efforts, advertising the words “in place”. It was shown that the public had become familiar with “in place” in connection with its business and advertising. The court held: “In the absence of fraud, a name merely descriptive of the business carried on cannot be exclusively appropriated as against others who can and do use the name with equal truth, even if the words have acquired a secondary meaning.” See Goidl v. Advance Neckwear Co., 132 Tex. 308, 123 S.W.2d 865; Winter Garden District v. Winter Garden Fair, Tex.Civ.App., 299 S.W. 512, 514, writ dism.; Burge v. Dallas Retail Merchants Association, Tex.Civ.App., 257 S.W.2d 733; Duke v. Cleaver, 19 Tex.Civ.App. 218, 46 S.W. 1128, writ dism.; Dixiepig Corporation v. Pig Stand Co., Tex.Civ.App., 31 S.W.2d 325.

The evidence is undisputed in this case that appellant wants its customers to know they are trading with J-. C. Penney Company. Confusion with plaintiff’s business is a result contrary to appellant’s interests. In much of its advertising and most of its signs the name “Penney’s” is in the same size type as “Auto Center.” There is no evidence of fraudulent intent; there is no evidence of confusion of identity; there is no showing of probable deception. The only evidence offered establishes the contrary; the public is not confused, but recognizes the distinction in identity. The extent of the evidence is that applicant had used the words “auto center” for an extended period of time, and had expended money in advertising the trade-name.

Such unimaginative and generic terms as “Garden Center,” “Tire Center,” “T-V Center,” “Furniture Center,” “Sports Center,” “Appliance Center” and a host of others are so commonplace that a holding of exclusive appropriation is not to be lightly considered.


author: McDONALD, Chief Justice.

text:
    GUARANTY NATIONAL BANK AND TRUST OF CORPUS CHRISTI et al., Appellants, v. C. C. MAY and wife, Sophie May, et al., Appellees.
    No. 4401.
    Court of Civil Appeals of Texas. Waco.
    Oct. 14, 1965.
    Rehearing Denied Nov. 4, 1965.
    Bloch & Walton, Corpus Christi, Odeneal & Odeneal, Dallas, Waggoner Carr, Atty. Gen., of Texas, Gordon Zuber, Linwood Shivers and C. L. Snow, Jr., Asst. Attys. Gen., of Texas, Austin, for appellants.
    Glusing & Sharpe, Kingsville, J. W. Cooper, Jr., Corpus Christi, for appellees.
   McDONALD, Chief Justice.

This is a suit brought by plaintiff May for declaratory judgment that royalty reserved under May’s lease to Arkansas Fuel Corporation had not been communitized, and for a finding that defendant Brookshires (interests) were estopped to assert such communitization if any ever occurred^

On March 12, 1958 May executed an oil and gas lease to Arkansas Fuel (now held and operated by Cities Service Oil Company and Mokeen Oil Company) on 401.22 acres (composed of 5 tracts). May owned the surface and the executive right to lease all 5 tracts. The % royalty on the 5 tracts was owned by May and others in the proportions shown on the following plat:

As noted on the plat May owned all royalty under tract 1; May and Brookshire owned Yz each, the royalty under tracts 2 and 4; (Guaranty Bank has succeeded to Brookshire’s interest) ; May and Koch owned % each, the royalty under tract 3; and May and Hampton owned % each, the royalty under tract 5.

The lease executed by May to Arkansas Fuel gave lessee power to pool the acreage covered by the lease, or any portion thereof, with other acreage, to form communitized units for the production of oil or gas. On May 1, 1958 Brookshire ratified the lease; on August 19, 1958 Hampton executed a ratification of the lease, but specifically provided that such instrument would not pool or unitize his royalty with royalty owned by others in the tracts covered by the lease. Koch did not ratify the lease.

On January 9, 1964 lessee completed a gas well on tract 3 (under which Koch and May are equal owners of the royalty).

Plaintiff asserts that since all of the royalty owners did not ratify the lease that no communitized lease came into existence, and that the royalty from the well should be adjudicated equally between May and Koch.

Trial was before the court without a jury, which entered judgment that the March 12, 1958 lease executed by plaintiff May is not a communitized lease, and there was no unitization or cross conveyancing of interests of the royalty owners of the various tracts. Such judgment further adjudicated the Y& royalty from production of the well, % to May and Yi to Koch (interests).

Guaranty Bank and the Attorney General representing the Brookshire interest appeal on 6 points, contending the trial court erred because:

1) Brookshire’s ratification of the May lease unitizes its royalty acres proportionately through the 40 acre May lease.
2) Brookshire’s ratification of the May lease unitizes its royalty acres with royalty acreage owned by May in the May lease.

May owning the executive right to lease all 5 tracts had the power to execute the oil and gas lease that he did on March 12, 1958. The authority, however, to pool the non-participating royalty interests can only be granted by the non-participating royalty owners, by either jointly executing the lease, or by ratifying the lease. Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472; Brown v. Smith, 141 Tex. 425, 174 S.W.2d 43; Southland Royalty Co. v. Humble Oil & Refining Co., 151 Tex. 324, 249 S.W.2d 914; Minchen v. Fields, 162 Tex. 73, 345 S.W.2d 282. The royalty owners in the tract were May, Brookshire, Hampton and Koch. Brookshire ratified; Koch did not ratify; and Hampton did not ratify the pooling of his- royalty.

Under the cited authorities, the royalty interests could not be unitized or com-munitized without the joinder or ratification of all of the royalty owners. Ratification by less than all of the owners does not effectuate the pooling, and there is no communitization as a matter of law.

In any event, in 1962, the East- 112 aeres of tract 4 were placed in the 352 acre Yeary gas unit, by the operator of a well located to the east of the land here involved'. Royalties from this well were calculated on the basis of noncommunitization of the royalty interests of Brookshire and May as to the east 112 acres in tract 4. If the ratification by Brookshire of the May lease effected a communitization of the Brookshire and May royalties under the 401.22 acres, (which we' say it did not), then May should have received 70.6% of Ys of n%52 and Brookshire 29.4% of Y& of 1:1%52 instead of the equal division of such royalty payments. Brookshire (interests) after having been enriched for over 6 years under a construction of non-communitization is now estopped to assert a different construction of the lease and ratification. 22 Tex.Jur. 2d 674; Theriot v. Smith, Tex.Civ.App., 263 S.W.2d 181, er. dis.; Braxton v. Haney, Tex.Civ.App., 82 S.W.2d 984, Er.Ref.

All of appellants’ points and contentions have been considered and are overruled.

Affirmed.


author: GREEN, Chief Justice.

text:
    Gordon STEWART et al., Appellants, v. J. P. LOMAX, Appellee.
    No. 129.
    Court of Civil Appeals of Texas. Corpus Christi.
    Oct. 14, 1965.
    Rehearing Denied Nov. 4, 1965.

      Mahoney, Shaffer & Hatch, Lee Ma-honey, Corpus Christi, for appellants.
    Luther E. Jones, Jr., Corpus. Christi, Richard D. Hatch, Aransas Pass, for ap-pellee.
   GREEN, Chief Justice.

Appellants Gordon Stewart and Curtis Hall, duly licensed real estate dealers, filed suit against appellee J. P. Lomax to recover the sum of $1,250.00 as a commission under the provisions of a written contract. Some time after plaintiffs’ motion for summary judgment had been overruled, the case went to trial before the court without a jury, and a take-nothing judgment was rendered. At the request of plaintiffs, findings of fact and conclusions of law were filed.

This appeal is presented on two points, as follows:

FIRST POINT
“The trial court erred in overruling plaintiffs’ motion for summary judgment on their claim against appellee.”
SECOND POINT
“The trial court erred in refusing to render judgment for appellants and in entering judgment for appellee because the undisputed and uncontradicted evidence and testimony is directly contrary to the findings of fact made by the court, and such findings of fact have no support in the evidence and testimony and appellants were entitled to judgment based on the facts established.”

We shall first consider the second point, which raises the law question of no evidence to support the trial court’s findings. Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933. In determining whether the trial court’s findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings, and will disregard all evidence to the contrary. Brown v. Frontier Theatres, Inc., Tex.Sup.Ct., 369 S.W.2d 299.

It was appellants’ position in the trial court, and is their contention here, that they are entitled to recover by virtue of an alleged violation by appellee of a written contract being plaintiffs’ exhibit No I, and readings as follows:

“Feb. 5, 1963
“It is mutually agreed by and between the undersigned that Gordon Stewart and Curtis Hall, as real estate agents, are to receive a total of $1,250.-00 in full and complete satisfaction for their commission for services rendered in the sale of any part of the 843.8 acre tract of M. A. Broughton property in San Patricio County, Texas; such $1,250.00 to become due and payable by J. P. Lomax upon completion of a sale of part of such property to J. P. Lomax.”

This instrument was signed by Clint A. Broughton, J.. P. Lomax, Gordon Stewart, and Curtis Hall.

The court’s findings of facts, being somewhat lengthy, we copy herein the portions pertinent to our discussion, as follows:

“1. Late in 1962 or early in 1963 defendant entered into a contract of sale with Clint Broughton to buy a 354 acre tract of land. It was the claim of plaintiffs that on completion of any sale of this tract to defendant they were entitled to be paid a real estate commission by seller. The seller caused defendant to be made aware of this claim and required, as a condition of completing the sale, that defendant agree to pay plaintiffs, as a real estate commission, the sum of $1,250.00. Defendant thereupon entered into the agreement which is in evidence as Plaintiffs’ Exhibit No. 1. The promise of defendant in such agreement to pay $1,250.00 to plaintiffs was made solely to meet seller’s requirement of such a promise from him as a condition of selling the aforementioned 354 acre tract to him. This promise was not made in consideration of any services rendered or to be rendered by plaintiffs to defendant with reference to said 354 acre tract or with reference to any other land. The intent of the parties to such agreement, reflected by the words they used construed in the light of their situation and the surrounding circumstances, was this, that in case of completion of sale of the 354 acre tract to the defendant then he was to pay to plaintiffs the sum of $1,250.00, i. e. the intent of the parties to such agreement was that completion of such sale was a condition precedent to defendant’s liability thereunder. The parties to such agreement did not intend that defendant would be liable to pay such sum in event of a failure of such sale to be completed. Sale of said 354 acre tract was not completed. The reason it was not completed was that the seller was not able to convey a title sufficient to meet defendant’s title requirements, Seller and defendant, in these circumstances, muí ally agreed to rescind the contract of sale as to said 354 acre tract.
“2. In the meantime, on July 1, 1963, about three months after execution of the agreement which is in evidence as Plaintiffs’ Exhibit 1 there was a sale to defendant of a 320 acre tract. This is the only sale shown by the evidence to have been made to defendant.
“3. * * * Nor did they (appellants) establish by a preponderance of the evidence that the intent of the parties to the aforementioned agreement was that defendant was to be liable under such agreement upon completion of sale to him of said 320 acre tract. On the contrary, a preponderance of the evidence establishes that the parties to such agreement did not have any such intent but instead intended only that defendant was to be liable under such agreement if, but only if, there was a sale completed to him of the aforementioned 354 acre tract.
******
“6. Premises considered, it is the conclusion of the Court that plaintiffs did not legally establish any ground of recovery entitling them to recover and that, accordingly, defendant was entitled to entry of the take nothing judgment heretofore entered in this cause.”

The only witness to testify as to the facts of the transaction was appellee, called to the stand by appellants as an adverse witness. According to his testimony, in 1962 appellee had been interested in buying all of the M. A. Broughton 843.8 acre tract, and had put up escrow money for that purpose, but the deal fell through. Thereafter, a portion of the land was sold to other parties, and in the early part of 1963, when appellee was again interested in buying the land, there was only 354 acres available for purchase. He entered into an agreement to buy this 354 acre tract, putting in escrow the sum of $5,000.-00 earnest money. This was done prior to the execution of the written agreement copied above. Appellee denied that such agreement was signed February 5, 1963, testifying that it was entered into in April, 1963. Appellants early in 1963 had contended that as real estate agents, they had an exclusive listing with the owners of the M. A. Broughton tract, and had notified the owners and appellee that if the sale to appellee went through, they would demand their commission from sellers. It was ap-pellee’s testimony that the commission contract with appellants was executed solely for the purpose of removing the problem caused by appellants’ asserted claim of their right to commission from the seller should the sale of the 354 acre tract be completed, and was not made in consideration of any services rendered or to be rendered by appellants to appellee with reference to the 354 acre tract, or any other land.

The trial court, in his formal findings, construed the contract between appellants and appellee as reflecting an intention on the part of the parties that appellee was to become liable to pay $1,250.00 to appellants if, and only if, there should be completed a sale to appellee of the particular part of the M. A. Broughton property referred to in the testimony as the 354 acre tract. In the trial, he ruled the contract to be ambiguous on this point, since the provision fixing possible liability of appellee for the commission was conditioned “upon completion of a sale of part of such property to J. P. Lomax.” He permitted ap-pellee to testify to facts evidencing that the “part of such property” contemplated by the parties referred only to the 354 acres which was then available for sale, and which appellee was already under contract with owners to buy. Appellants do not challenge this construction by any point or by any argument urged in their brief, nor raise any point to this Court as to the admissibility of such testimony. They state in their brief that “The sole question for determination then is whether or not the sale was completed as contemplated by the written agreement to pay a commission. It is appellants’ position now, as it was before the trial court, that the sale was completed in legal contemplation. * * *

The appellee testified and the trial court found that the sale was not completed, for the reason that seller was not able to convey a title sufficient to meet appellee’s requirements. Seller and appellee, under these circumstances, agreed to rescind the contract oí sale of such 354 acres, and ap-pellee’s escrow money was restored to him.

Kendrick v. Boon, Tex.Civ.App., 254 S.W.2d 1016, writ ref., n. r. e., cited by appellants, is not applicable to the facts of this case. That was a suit by a real estate broker against vendors for commission on sale of land, in which the sale was not consummated. The trial court rendered judgment for the broker. No findings of fact or conclusions of law being filed, the appellate court presumed that the trial court made such findings favorable to its judgment as were supported by the evidence. The court, quoting from West Realty & Investment Co. v. Hite, Tex.Com.App., 283 S.W. 481, in affirming the judgment, said:

“Generally, it will be conceded that, when a broker employed to sell property has found a purchaser who is ready, able, and willing to buy at the price and upon the terms specified in the broker’s contract of employment, he has earned his commission, even though through some fault or inability of the owner the deal is never actually consummated. The rule extends even to those cases where the commission is to be payable only upon the consummation of the sale, if such consummation is prevented through the fault of the owner. The law will not permit the owner to deny to the broker his right to recover a commission where the broker himself has fully complied as far as possible, and where his only dereliction is produced entirely through the fault of the owner himself.”

In the present case, according to the testimony, the contract between appellee and seller with reference to the purchase by appellee of the 354 acre tract had been made and the $5,000.00 earnest money had been deposited by appellee before the agreement between appellee and appellant was executed. The parties could not have considered the execution of the sales contract as equivalent to completion of the sale to appellee.

In July, 1963, the appellee purchased from the then owners a 320 acre tract, being the west part of the 843.8 acre M. A. Broughton tract, and not a portion of the 354 acre tract heretofore mentioned. Ap-pellee testified to facts leading to the conclusion that it was not the intention of the 'parties that the commission contract covered this sale, and the court found that the parties did not intend that it should, and that it was their intent that such contract applied only to a completed sale of the aforementioned 354 acre tract. As stated above, appellants in their brief agree that the sole question for determination is whether the sale of the 354 acre tract was completed in legal contemplation.

Other fact findings than those mentioned herein which we do not consider necessary to the rendition of the judgment were made by the court; however, we find that there was evidence to support the findings of the court herein stated, that such findings were not contrary to the undisputed and uncontradicted evidence, and that such findings were sufficient to support the conclusion of law made by the court. Appellants’ second point is overruled.

Appellants’ first point is based on alleged error in the action of the trial court in overruling their motion for summary judgment This is not a point for consideration on appeal from a judgment rendered on a trial of the merits of the case. Dyche v. Simmons, Tex.Civ.App., 264 S.W.2d 208, writ ref., n. r. e.

Judgment affirmed.


author: GRISSOM, Chief Justice.

text:
    Cleo JOHNSON et ux., Appellants, v. Jack MITCHELL et al., Appellees.
    No. 3981.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 17, 1965.
    Bradbury, Tippen, Brown & Clement, Foy Clement, Abilene, for appellants.
    Mays, Leonard, Moore & Dickson, George W. Leonard, Jr., Sweetwater, for appellees.
   GRISSOM, Chief Justice.

Cleo Johnson and wife sued Jack Mitchell and George Morgan for damages suffered by Mrs. Johnson in an automobile collision on Belmont Boulevard in Abilene when Jack Mitchell, an employee of Morgan, drove his car into the rear end of an automobile driven by Mrs. Johnson. The John-sons alleged that Mitchell was driving an automobile belonging to Morgan behind the automobile driven by Mrs. Johnson and that, as she gave a proper signal and attempted to make a left turn onto Elm Street, suddenly and without warning, Mitchell struck the rear of Johnson’s automobile. The defendants alleged that Mitchell saw the automobile driven by Mrs. Johnson ahead of him, going in the same direction on Belmont; that, as Mitchell approached from the rear, Mrs. Johnson stopped her automobile in the middle of the street, suddenly and without warning, causing the damages alleged by plaintiffs.

A jury found with reference to Mitchell that (1) he failed to maintain a proper distance behind Mrs. Johnson; that (2) such failure was negligence and (3) a proximate cause of the collision; that (4) Mitchell failed to keep a proper lookout for the Johnson car and this (5) was a proximate cause of the collision and that (6) Mitchell was driving at an excessive rate of speed, which was (7) negligence and (8) a proximate cause of the collision.

With reference to Mrs. Johnson’s alleged contributory negligence the jury found that (9) she stopped suddenly in front of Mitchell; that (10) this was negligence and (11) a proximate cause of the accident; that (12) Mrs. Johnson gave no signal -of her intention to stop and (13) this was negligence and (14) a proximate cause of the accident and that (15) Mrs. Johnson stopped her automobile in the middle of the street and that (16) this was negligence and (17) a proximate cause of the accident.

The jury also found that (18) Mrs. Johnson failed to remove the neck collar and exercise her neck as her doctor recommended and that (19) this was negligence and that (20) it contributed 60 percent to the damages sustained by her. It also found that (21) the collision was-not the result of an unavoidable accident.

The jury found that (22) $1,000.00 would reasonably compensate plaintiffs for the injuries proximately caused by Mitchell’s negligence; that (23) $720.00 would compensate plaintiffs for -the necessary medical and drug bills incurred as a result of the accident and (24) that $480.00 would reasonably compensate plaintiffs for the necessary medical and drug bills which they would, in reasonable probability, incur in the future.

Based on the verdict, the court rendered judgment that plaintiffs take nothing. They have appealed.

Appellants’ first point is that the court erred In overruling their motion for a new trial because material jury misconduct prejudicial to appellants was established. They say the following misconduct, which was prejudicial to them, was established: (1) personal inspection of the scene of the accident by jurors; (2) repeated discussion of insurance coverage; (3) improper communication between a juror and Mitchell and (4) reports of other personal injuries. They say that such testimony was material because it injected unsworn testimony with reference to the physical facts at the scene of the accident and that it was prejudicial because all the misconduct discredited appellants’ case and was before the jury throughout its deliberations and deprived appellants of a fair trial.

Appellants point out the following alleged misconduct of the jury which they say was established and shown to be prejudicial. They say three jurors visited the scene of the accident during the trial and reported their observations to other jurors; that the foreman reported he went to the scene to get a better picture; that from personal observations they reported that the intersection where the accident happened was marked by a yield the right of way sign and that there was no stop sign; that a juror located the yield the right of way sign, but where she located it was not shown; that jurors reported on the length of the street; that it was wide open and evidence of the existence of an intersecting side street was disregarded by the foreman, because he didn’t see it.

Appellants say that viewing the scene of the accident by three jurors and reports thereof to their fellow jurors was shown to be prejudicial to them because their un-sworn testimony located a yield the right of way sign in the vicinity of the accident; that the presence or absence of such a sign bore on the traffic flow and established whether Mrs. Johnson should have moved forward or stopped for contemporaneous traffic; that, believing such a yield the right of way sign existed, supported a conclusion that Mrs. Johnson stopped suddenly in obedience to such a sign; that without such sign there was less probability that issues 9, 10, and 11 would have been answered against appellants. Appellants say it was conclusively established that three jurors inspected the scene of the accident during the trial and that the only question here is whether such misconduct was material and prejudicial to appellants. They say that its materiality and prejudicial effect were shown and that such misconduct required granting a new trial. In support of that conclusion they cite Travelers Insurance Company v. Carter (Tex.Civ.App.), 298 S.W.2d 231 (Ref. N.R.E.), and Parris v. Jackson (Tex.Civ.App.), 338 S.W.2d 280.

Appellees’ counterpoint is that the court correctly held that material misconduct which probably caused rendition of an improper judgment was not shown. Referring to the pleadings mentioned, appellees point out that the evidence introduced on the trial showed that Belmont lays diagonally in a southeast-northwest direction between the northwest corner of the intersection of Elm and 16th and runs from the northwest at Butternut into 16th and that it was shown to be a short block; that a plat of the streets at and near the scene of the accident was drawn during the trial in the presence of the jury showing said facts. That is correct. Mrs. Johnson testified she turned off Butternut onto Belmont and, as her direction blinkers showed she was about to turn left onto Elm and as she was stopped and awaiting oncoming traffic, she heard a screech of brakes and saw Mitchell hit her from the rear. She demonstrated her neck collar and the neck exercise prescribed by her doctor. She testified that she went to see Dr. Sibley at the request of the Tower Life Insurance Company, which company paid her doctor bills. No objection was made to questions concerning the insurance money received by her. Upon the trial Mitchell identified the sketch drawn by appellees’ counsel- during the trial giving a picture of the scene of the accident and that plat was identified by appellants’ witness Jones. Mitchell testified that when he got onto Belmont he saw Mrs. Johnson driving in front of him; that this block is not as long as a normal city block; that he saw no signals when Mrs. Johnson stopped the car in front of him; he saw no oncoming traffic; he didn’t see anything but her car in front of him and that Mrs. Johnson stopped suddenly in front of him and he did not see any signal of her intention to stop; that she stopped in the middle of the street and there was a minor collision between the two cars and that the accident happened “back this side” of the intersection. Dr. Sibley testified for appellees that Tower Life Insurance Company had him examine Mrs. Johnson. Throughout his testimony there was reference, on both direct and cross-examination, to that insurance company and payments it made to Mrs. Johnson. He testified on cross-examination that where no insurance was involved, the injured party usually recovers faster than where there is insurance; that he was not an insurance doctor; that he treated both sides but with reference to Mrs. Johnson he was an insurance doctor. Appellees say we should presume the court found all controverted facts in support of its order overruling the motion and that we should presume that the court found, as a fact, that no misconduct occurred'. They say there was a conflict in the evidence concerning jurors viewing the scene of the accident; that one juror testified that no juror purported to tell the jury anything about the scene of the accident that it hadn’t already heard in the courtroom; that a witness on the motion testified she didn’t know that three of the jurors went to the scene; that she heard no juror say he had been to the scene; that she didn’t hear any mention of a yield the right of way sign; that juror Hoefer, who passed the scene of the accident in route home to lunch, traveling the most convenient way home, did not tell the jury that the scene of the accident was any different from what the undisputed evidence showed on the trial or that anything was or was not there contrary to any testimony on the trial; that the juror Cear-ley testified that no juror drew a diagram different from the one drawn on the trial; that one juror mentioned a yield the right of way sign but didn’t purport to know whether it was there when the accident happened or say where it was and no one said a stop sign was there. The evidence indicates that mention of a yield the right of way sign was casual. It was undisputed that the place where the accident happened was a short block; that juror Hollis, who did not testify, said there was a yield the right of way sign but no one recalled where she said it was. The foreman said he passed the scene of the accident on his personal business and noticed the streets; that they were just like it was shown by drawing on the blackboard in the courtroom, which showed undisputed facts. It was undisputed that the foreman warned the jurors against consideration of any juror’s statement about a yield the right of way sign; that a sketch of the scene was before the jury on the trial and that what any juror reported could not he used in their deliberations.

Appellees say that mention of a yield the right of way sign, if it occurred, was not prejudicial because (1) no question was asked the jury concerning the duty of anyone to stop or to yield the right of way; that Mrs. Johnson and Mitchell were driving in the same direction and the presence or absence of a yield sign had no bearing on any issue relative to the contributory negligence of Mrs. Johnson; that it was immaterial and its presence or absence could have no bearing upon the issues inquiring whether Mrs. Johnson gave a signal of her intention to stop, or whether she stopped suddenly in front of Mitchell or in the middle of the street and that there was no evidence as to when and at what point in the jury’s deliberation mention was made of the absence or presence of a yield sign, whether before or after the contributory negligence issues were answered against Mrs. Johnson.

Mrs. Baird’s Bread Company v. Hearn, 157 Tex. 159, 300 S.W.2d 646, 649, is cited in support of the contention that the time jury misconduct occurs may be vital. There, the court said there was “no proof as to the time relationship of the offending statement with this or that particular vote or other development in the course of the deliberations, from which a probable effect on a material issue might be inferred.” Ap-pellees say that (3) no location of the yield sign was made so that it could be harmful; (4) that mention thereof was casual; that (5) it was promptly rebuked by the foreman and (6) no new facts were disclosed differing from the undisputed facts shown on the trial. Appellees cite Allan v. Materials Transportation Company (Tex.Civ.App.), 372 S.W.2d 744, wherein the court concluded probable harm was not shown because there was no material conflict between the statements improperly made to the jury and the undisputed facts established on the trial. In Martinez v. H. E. Butt Grocery Company (Tex.Civ.App.), 379 S.W.2d 94, two jurors looked at a store during the trial of a slip and fall case and related what they saw to other jurors. The court said that appellants failed to show that this misconduct was material and that it probably injured them; that a plat had been introduced in evidence which showed the layout of the store and various material measurements; that the jurors testified that their visit confirmed the accuracy of these undisputed measurements; that no new evidence was introduced by the jurors and nothing prejudicial to appellants was observed by the jurors or related to their fellows. The court held that viewing the scene of the accident by the two jurors constituted misconduct but not reversible error because appellants did not show that they were probably injured thereby. Appellees cite Ballinger v. Herren (Tex.Civ.App.), 332 S.W.2d 131, wherein the exact stage at which misconduct occurred was not shown and the offending juror found nothing at the scene different from that shown on the trial. It was there held that the undisputed misconduct was not reasonably calculated to harm appellant.

Appellants say they were hurt by consideration of insurance; that the jurors concluded there was no liability insurance because each party paid his own repair bill and, if appellants did not have insurance, Mitchell could not pay the claim; that insurance was mentioned several times; that discussion of insurance injured appellants because there was a consensus of opinion that appellees did not have insurance and without insurance they would not be able to pay appellants’ claim. The . appellees’ answer to this contention is that insurance was brought into the case, without objection, by the testimony of Mrs. Johnson and Dr. Sibley. They correctly summarize the evidence relative to insurance substantially as follows: When insurance was mentioned the foreman admonished them that they couldn’t consider it because it was not evidence introduced on the trial; that the foreman told the jury that the insurance Mrs. Johnson was shown by the undisputed, unobjected to evidence, to have collected, was hers; that she had bought and paid for it; that it was no different than if she had the money in a savings account; that the jury talked about the Tower Life Insurance Company, which was shown by the undisputed and unobjected to evidence, to have paid Mrs. Johnson’s medical bills; that the foreman told the jurors that insurance had no bearing on their decision; that he promptly advised them that insurance couldn’t be considered when it was mentioned. Juror Belsky testified insurance was casually mentioned and the foreman said they couldn’t discuss it; that juror Hoefer, who was called by appellants, was not asked about discussion of insurance; that juror Cearley said some juror asked why would each party pay for the damage to his own car if he had insurance; that the foreman said insurance was not supposed to be mentioned, that he rebuked them each time it was mentioned; that she didn’t know whether the jurors decided that Mrs. Johnson did or did not have insurance. In support of appellee’s conclusion that reversible error is not shown in this connection they cite Smith v. Whitehead (Tex.Civ.App.), 363 S.W.2d 369 and Harris v. Levy (Tex.Civ.App.), 217 S.W.2d 154. The decision in Mrs. Baird’s Bread Company v. Hearn, and Judge Jack Pope’s article, 12 Baylor Law Review 366 and Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493, establish that it is material to show at what time in the jury deliberation improper statements were made. These authorities are cited particularly with reference to the holdings that the time, or stage, in the jury’s deliberation that misconduct occurs is important in determining whether an appellant has sustained his burden of showing probable injury.

Appellees contend, and we agree, that prejudicial misconduct has not been established. Appellants contend we should hold to the contrary because the jury thought appellees had no insurance and would have answered the issues differently had it not so decided. The jury found (1) Mitchell was negligent in every particular submitted to it and that each of his acts of negligence was a proximate cause of the accident and (2) it is undisputed that the jurors were trying to give appellants some money. We conclude that the testimony on the motion for new trial does not show probable injury. The jury did not know and, of course, properly so, the effect of its answers to issues finding Mrs. Johnson guilty of contributory negligence.

Appellants complain that personal experiences were .related by some jurors to their fellows. Juror Pittman said she heard no one tell of an experience with a whiplash injury and a chiropractor, as testified to by another, nor did she recall any conversation about the foreman’s employee who received an insurance settlement. Juror Cearley did say that one juror mentioned a whiplash injury and said she had been to a chiropractor. Whether the result was good or bad, or the time this was mentioned was not disclosed. It was not shown what issues were then being considered or were afterward decided. Juror McLean did not recall any juror relating the effect of chiropractic treatment. Juror Hoefer said there was discussion of a whiplash injury because that was the nature of the injury claimed by Mrs. Johnson. Juror Belsky said she did not think any of the jurors told the others about personal injuries they had received. Again it is not shown when such matters were mentioned, if they were, in relation to the determination of the controlling fact issues.

Texas Rules of Civil Procedure, rule 434 provides that no judgment shall be reversed unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. We cannot conclude that the matters established on the motion for new trial were reasonably calculated to cause and that they probably did cause the rendition of an improper judgment.

Appellants say the court committed reversible error in submitting issues 18, 19 and 20, above quoted. The judgment was required by jury findings of contributory negligence of Mrs. Johnson. Texas & N. O. R. Co. v. McGinnis (Com.) 130 Tex. 338, 109 S.W.2d 160, 163; Galveston, H. & S. A. Ry. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247; Missouri Pacific Railroad Company v. Sims (Tex.Civ.App.), 350 S.W.2d 405, 408 (Ref. N.R.E.); Travelers Insurance Company v. Helstrom (Tex.Civ.App.), 351 S.W.2d 321, 325 (Ref. N.R.E.), 4 Tex. Jur.2d 616.

After careful study of the record and consideration of appellants’ points we conclude that reversible error is not shown. The judgment is affirmed.


text:
    Frank SLAVIK et al., Appellants, v. SOUTHERN MINERALS CORPORATION and Arnold O. Morgan, Individually and as Trustee, Appellees.
    No. 4395.
    Court of Civil Appeals of Texas. Waco.
    Oct. 7, 1965.
    Rehearing Denied Oct. 28, 1965.

      Branscome, Gary, Thomasson & Hall, Corpus Christi, for appellants.
    Head & James, Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellees.
   McDONALD, Chief Justice.

This is an appeal by plaintiffs from a summary judgment that plaintiffs take nothing.

Plaintiffs Slavik sued defendants Morgan and Southern Minerals Corporation to recover the sums of $183,332.62 and $28,918.-20, which they allege Southern Minerals wrongfully paid to Morgan out of oil runs from leases owned by plaintiffs. Plaintiffs further sued to recover $2650 from Southern Minerals for an overriding royalty interest in a tract called the “Hubble Lease” which plaintiffs allege had been assigned to them.

Plaintiffs’ right to the $183,332.62 depends upon the construction of an assignment from Morgan to the Corpus Christi Corporation; plaintiffs’ right to the $28,-918.20 depends upon the construction of an assignment from Morgan to Mustang Oil Corporation; and plaintiffs’ right to the $2650 depends on whether plaintiffs have a valid assignment to the contended for overriding royalty interest in the “Hubble Lease.”

The trial court entered summary judgment that plaintiffs take nothing on all the foregoing claims.

Plaintiffs appeal, contending the trial court erred in granting summary judgment because:

1)The assignment from Morgan to Corpus Christi Corporation requires cost of compressing gas to operate the leases be deducted from revenue from production, in computing the time when Morgan’s $1,000,000 deferred production payment should commence; or the instrument was ambiguous as to the method to be utilized. (This involves the $183,332.)
2) The assignment from Morgan to Mustang was ambiguous as to the effect on the commencement date of Morgan’s x $1,000,000 production payment. (This involves the $28,918.)
3) Southern Minerals failed to establish there was no fact issue with respect to plaintiffs’ right to the funds from the Hubble lease. (This involves the $2650.)

We revert to contention 1 and plaintiffs’ contended for $183,332.

Defendant Morgan, by written assignment on December 1, 1953, sold and assigned 25 described lease properties to the Corpus Christi Foundation for a cash consideration, and subject to a deferred production payment of $1,000,000 out of 50% of the proceeds of production, to commence after Corpus Christi Foundation received $2,600,000 from the proceeds of 65% of the mineral estate (plus certain taxes and interest as provided in the assignment). Simultaneously Corpus Christi Foundation sold and assigned the same properties to Mustang Oil Corporation, reserving a $2,-600,000 production payment from 65% of the minerals produced. Mustang Oil Corporation was owned by plaintiffs, and has since liquidated, and assigned plaintiffs all its assets.

The calculation of the effective date of commencement of Morgan’s $1,000,000 production payment is the question which determines whether plaintiffs are entitled to the $183,332 sued for. Plaintiffs contend the cost of compression and purchase of certain gas-lift gas was to be taken into account in computing when Morgan’s million dollar production payment would commence. Southern Minerals, the operator, did not take the expense of the compression of gas-lift gas into account and commenced payments to Morgan. Had such expense been taken into account plaintiffs would have received $183,332 prior to payments to Morgan.

The question here is, does the assignment from Morgan to Corpus Christi Foundation require the cost of compression of gas-lift gas to be taken into account in determining when Morgan’s deferred production payment should commence; or is the assignment ambiguous on this point?

We must consider the December 15, 1953 assignment itself. By such instrument Morgan assigned Corpus Christi Foundation the described lease properties and mineral interests “subject to the deferred production payment of $1,000,000.”

“There is * * * reserved to (Morgan) * * * as a deferred production payment * * * the proceeds of the oil, gas, and other minerals produced and saved from 50% of the interest herein transferred * * * commencing and effective from and after such time in the future as As-signee * * * shall have received, under this assignment, from the proceeds of 65% of the oil, gas, and other minerals produced and saved * * * over and above production, severance, occupation and other similar taxes and ad valorem taxes chargeable against such part of the mineral interests * * * the sum of $2,600,000, plus an additional amount equal to 5)4% Per annum from and after December 15, 1963, calculated monthly on the unliq-uidated balance of said $2,600,000 remaining and continuing after such effective date until Morgan * * * shall have received over and above the amount necessary to pay all production, severance, gathering and similar taxes and also over and above any ad valorem taxes that (Morgan) may be required to pay upon the herein reserved deferred production payment, the net sum of $1,000,000 * * *.
“Assignee, or its successors in interest, shall keep an accurate record of the production of oil, gas, and other minerals from the assigned interests and of the amount of production, severance and other taxes chargeable thereon in order to accurately determine the effective date that said deferred production payment herein reserved to (Morgan) shall become effective, and such information shall be furnished (Morgan) at reasonable intervals upon request.
“The proceeds of the oil and gas production shall be determined after making deduction of oil and gas used in operation of the assigned properties * *
“The reference to such future date as Assignee * * * may have received * * * from the proceeds of 65% of the oil, gas or other minerals produced and saved from the herein assigned and transferred interests the net sum of $2,600,000 plus an additional amount equal to 5)4% per annum after December 15, 1953, calculated monthly on the unliquidated balance of said $2,600,000 remaining, is made solely for the purpose of fixing the date in the future at which the deferred production payment reserved by (Morgan) becomes effective and until such effective date, Assignee * * * shall be entitled to receive 100% of the proceeds accruing to the oil, gas and mineral interest * * * herein conveyed, on account of the production of oil, gas or other minerals therefrom. * * The share of the proceeds of oil, gas and mineral production to be applied upon (Morgan’s) deferred production payment after its effective date and while it continues in force, shall be paid to the holder of such production payment free and clear of any expense of developing or operating the properties. * * *»

The reservation clause itself is clear that the $1,000,000 reserved production payment commences after Corpus Christi Foundation receives the $2,600,000 production payment plus specified taxes and interest. The provision requiring Assignee to keep records requires only records of the amount of production of oil and gas and the amount of taxes. It does not require Assignee to keep a record of amounts expended for cost of compression and purchase of gas-lift gas. Since the record reflects this item was a large item (several times the amount of deductible taxes) had the parties intended such for consideration in determining the effective date of Morgan’s payment, they would have required Assignee to keep a record of it.

The words “the proceeds of oil and gas production shall be determined after making deduction of oil and gas used in operation of the assigned properties,” we think refers to production from the property in question. It does not refer to expense of compression or cost of gas purchased elsewhere.

It is true that the instrument refers later to the “net sum of $2,600,000” plus interest, but we think such provision read in connection with the balance of the instrument in its entirety cannot be construed to encompass the expense of compression and purchase of the gas-lift gas.

We think the instrument from its context as a whole does not require the cost of compression and purchase of gas-lift gas be included, and that such instrument is not ambiguous in such regard. See: Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504; Myers v. Gulf Coast Minerals Management Corp., Tex., 361 S.W.2d 193; Southland Royalty Co. v. Pan Am. Pet. Corp., Tex., 378 S.W.2d 50.

Moreover, the construction placed on the instrument by us and by the trial court appears to be the construction placed by the parties themselves, including plaintiffs, until shortly before the filing of the case. Plaintiffs’ computations from 1953 to 1959 make no deductions of amounts for compression and purchase of gas-lift gas; and it was not until 1963, 2 years after Southern Minerals began paying Morgan his deferred production payment that plaintiffs asserted that amounts paid for compression and purchase of gas-lift gas should be deducted; and prepared computations to such effect.

Plaintiffs’ 2nd contention is that the assignment from Morgan to Mustang was ambiguous as to the effect on the commencement date of Morgan’s $1,000,000 production payment, and that Southern Minerals paid Morgan $28,918.20 wrongfully for such reason.

In 1956 Morgan and Mustang Oil Corporation settled a pending lawsuit, and as a part of such settlement Morgan asssigned a lease to Mustang reserving a production payment of some $112,000 to be paid free of cost and expense. The $28,918.20 here involved is the balance due on such production payment.

Such production payment was payable out of several sources, including:

“(c) Sixty-five percent of the oil, gas, and other minerals produced etc. * * in the assignment from Corpus Christi Foundation to Mustang Oil Corporation * * * from and after the date that the $2,600,000 interest bearing production payment reserved to Corpus Christi Foundation * * * is liquidated * * * .”

In December 1959, the Corpus Christi Foundation’s $2,600,000 production payment, was paid off. In June 1960 the $28,918.20 balance due on the production payment was paid to Morgan. There is no ambiguity in the 1956 assignment.

Plaintiffs’ 3rd contention is that Southern Minerals failed to establish there was no fact issue as to the $2650.

Plaintiffs plead that 2 leases owned by E. C. Hubble had royalty payments due from the operator Southern Minerals in the amount of $2650; that plaintiff had been assigned such payments by Hubble. Assignments of such royalty interest in the record reflect that such royalty interest was assigned to the Bank of the Southwest to secure an indebtedness and that when such indebtedness be discharged, such interest should be paid 1/5 to H. M. McCullough and Ys to Tidewater Oil Company. The assignment from Hubble to plaintiff recites that “it is my understanding that Tidewater and McCullough make no claim to such override * * The record on its face shows that title to the override stands in Bank of the Southwest or Tidewater and McCullough. It does not show it to stand in plaintiffs; and plaintiffs’ brief concedes that they “may have fallen short of affirmatively proving plaintiffs’ right to the $2650.”

All of plaintiffs’ points and the contentions thereunder made have been considered and are overruled.

Affirmed.