author: MASSEY, Chief Justice. RENFRO, Justice.

text:
    INTERNATIONAL ASSOCIATION OF MACHINISTS et al. Appellants, v. CENTRAL AIRLINES, INC., Appellee.
    No. 16297.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 23, 1962.
    Rehearing Denied April 13, 1962.

      Herrick & McEntire, Fort Worth, Plato E. Papps, Chief Counsel, International Ass’n of Machinists, Washington, D. C., Mullinax, Wells, Morris & Mauzy and Charles J. Morris, Dallas, for appellants.
    Mueller & Mueller, Hudson, Keltner, Jordan, Smith & Cunningham and Luther Hudson, Fort Worth, for appellee.
   MASSEY, Chief Justice.

Plaintiff union and numerous individuals brought suit against the defendant airline company for damages accrued as the result of their wrongful discharge from an employer-employee relationship, formerly existent between the individuals and the company, in breach of union contract existing at the date of discharge, for a writ of injunction which would restore the individuals to their former jobs and for general relief. Additional complaint, by the union in behalf of all employees of the company represented by it, was because of the company’s practice, begun on and after the date claimed as that of the individuals’ wrongful discharge, of contracting out maintenance work on its aircraft. Such work had formerly been performed by the company on its own premises by its own employees.

Trial was before the court without intervention of a jury, and judgment was rendered against the individuals and the union and in behalf of the company. No findings of fact or conclusions of law were requested or filed. An appeal was taken to this court.

Judgment affirmed.

The individuals bringing the suit had been among that category of employees of the company represented by the union under a contract in effect between the union and the company on date of April 7, 1958. On said date the union called a strike, in which all of said individuals participated, because of certain mistreatment the union believed the company had afforded six of its employees (not the individuals considered in this suit) growing out of said employees’ refusal to work overtime on one of its aircraft.

It would be well to understand the affair of the six employees in question, so we will attempt to briefly state it.

On April 4 and 5, 1958, the six employees were served by the company with written notice that they were each “suspended from service” and instructed to present themselves at 8:00 o’clock on the morning of April 7, 1958, at the office of the company’s director of maintenance. The company, through its said director, intended to question the employees concerning their reasons for refusing to work overtime on the aircraft. The employees appeared on the company premises as requested, though they were not on the payroll of the company in view of their “suspensions”. Union representatives, one a co-employee of the men appearing and one not an employee, presented themselves along with those the company had directed to appear. The company insisted that it was entitled to talk to the men individually and privately. The men and the union representatives insisted that the company did not have the right to do so. There was a refusal on their part that any such interview be held. While it was not defined as such, we believe that the union was contending that what the company desired amounted to a “step” in the grievance procedure of the contract between the company and the union, while the company was contending that it did not amount to such a “step”. Be that as it may, we are convinced that in view of the fact that the individuals were under discipline imposed by the company in view of their suspensions, they were entitled to refuse any interviews without benefit of the presence of an advisor if they so chose. They did so choose, and the company would not accede, whereupon they left the premises.

Section 22, entitled “Investigation and Discipline”, is the part of the contract which was in effect between the company and the union which the union believed to have been invoked by the company, and which the company did not consider to have application. Material portions thereof read as follows: “(a) Hearing. 1. An employee shall not he disciplined or dismissed from the service of the Company without notification in writing of such action. An employee who is disciplined or dismissed shall he entitled to an investigation and hearing thereon, provided that such employee makes written request for such investigation and hearing within seven (7) days after receiving such notification. 2. An employee may he held out of service by the Company pending such investigation and hearing and appeals therefrom * * *. 4. Prior to such investigation and hearing, such employee shall he notified in writing by the Company of the precise charge or charges against him. He shall he given the necessary time, not exceeding seven (7) days, in which to secure the presence of witnesses and shall have the right to be represented by the employee of the Company of his choice or by his duly accredited representative or representatives. 5. Such investigation and hearing shall be held by a maintenance supervisor of the Company, designated by the Company for that purpose, and shall be held within seven (7) days after the receipt of the employee’s written request therefor.” Further provisions prescribe time schedules within which decisions are to be rendered, and for appellate steps and decisions and forms thereof through the company and thence before the Central Airlines, Inc. Mechanics’ System Board of Adjustment.

As a matter of information, it is to be noted that each of the six individual employees, after the events heretofore mentioned, filed their written request for an investigation and hearing under the provisions of Section 22(a) 1 of the aforesaid contract. These were honored and processed by the company in accordance with the other provisions of said section.

The union and other employees of the company did not wait until the individual employees filed such written request for investigation and hearing. Obviously they were incensed at the attitude of the company and its representatives on the morning of April 7th. A union meeting was called for a time later in the day at which the majority present proceeded erroneously upon the supposition that the company had breached the provisions of the union contract by refusing to proceed with the interview it had requested of the suspended individuals in and with the presence of one or more representatives of the union. Although it should have been clear to anyone with the slightest legal training that the company had not breached the contract, the union and its membership certainly in the best of faith, reached a conclusion to the contrary. By wire the following notice was prepared and served upon the company, “ * * * your failure to comply with section 22 which calls for the presence of a union representative in a suspension hearing involving * * * (is) such a material breach of the agreement that we have no alternative but to exercise the rights reserved for us in engaging in concerted action to protect the agreements from such continuing violations the above mentioned employees as well as those engaging in concerted action are ready willing and able to comply with section 7 of the agreement which does not call for forced overtime employment. Your attempt to impliedly write into the contract a forced overtime provision is in strict violation of section seven of the agreement.”

A strike was called and the great majority of the union employees failed to present themselves for work on the following day, April 8, 1958. The union put out a picket line at the company’s plant. It was not honored by the members of other unions. The company publicized the fact that it was taking applications to fill the strikers’ jobs and began hiring new employees as permanent replacements. The company also negotiated contracts with private contractors for work to be done away from its premises.

Neither the company nor the union sought any relief through the machinery of the courts, or through any grievance procedure of the contract or under the provisions of the Railway Labor Act. As previously indicated, a request for hearing was filed by or in behalf of the six suspended employees, and the company was careful to proceed thereupon in strict compliance with the provisions of the union contract. At all times the company treated the contract as one continuing in effect.

The strike lasted ten days. During that period the company representatives met with the union representatives, and at the meetings the union took the position that since the six suspended employees had been granted a hearing and representation as provided by Section 22 of the contract, the purpose of the strike had been accomplished. The union caused a notice to be delivered to the company which stated in part as follows : “Due to the fact that the suspended employees were granted Union representation, the denial of which precipitated the above mentioned work stoppage, I have ordered all the employees to report to work at 8:00 A.M., Thursday, April 17, 1958.”

There was no written agreement in settlement of the strike, and there were no oral commitments by the company regarding the restoration to duty of all or any of them. The company merely stated that it would take each individual as he appeared and process his case. The union chose not to continue the strike until such time as any terms might be agreed upon, but ordered the men to report to the company, which they did. As the men appeared, the company processed them as applicants for employment in the same or near-identical manner as it ordinarily processed an applicant for employment who had not theretofore been in an employer-employee relationship with the company. The company adopted the position, which it was careful at all times to maintain, that when the strikers left and set up the picket line they had “quit” their respective employments, and had themselves severed the employer-employee relationship existent immediately prior to the time they had gone on strike.

The company restored some of the strikers to the same jobs at the same pay, some of them to jobs of a lower classification at reduced pay, but fifty-three were not reemployed at all. None of the strikers were ever served with notice of “discharge” either orally or in writing. It is to be remembered that section 22 of the union contract provides that any “discharge” from the employer-employee relationship must be by way of a service of notification in writing, and that subject thereto the individual dismissed has the right to apply for and receive an investigation and hearing.

Not being restored to service at any work whatever, the fifty-three aforementioned individuals did file, within seven (7) days, grievance forms in which substantially the following uniform statement was made: “I have been unjustly held out of service since I reported for work at 8 A.M. on Thursday, April 17, 1958. In accordance with Section 22 of the current I. A. of M. — Central Airlines, Inc. Agreement, I request that I be reinstated without loss of seniority rights and that I be paid for all loss of pay involved.” Albeit contesting at every step the right of any of the fifty-three to be heard and considered as a person entitled to the procedure afforded by section 22 of the contract, the company honored the “steps” for grievance procedure set forth thereunder, in so far as any “step” required action by anyone within the company’s power to furnish or control. Admittedly the company delayed proceedings in every way and at every opportunity, being careful to barely “skate inside” the boundaries beyond which it would be safe for it to go without jeopardy to its avowed contentions.

Despite attendant delays the grievances were processed step-by-step up until they reached the point where the union (and the individuals) petitioned the National Mediation Board for a neutral referee to make a decision in the case. Such was a “step” in grievance procedure preliminary to any finality of decision under the provisions of the contract and the Railway Labor Act. At no point did the company so act or refuse to act as to block orderly processing of the cases, and indeed to do so would not be within its power, albeit, as already mentioned, it delayed matters when it could and it at all times contested the right of jurisdiction of those provided and/or required to make determinations — under the theory that the employer-employee relationship which had formerly existed between it and the strikers was voluntarily severed by the employees themselves as the result of their unilateral unlawful strike action. After having petitioned for a neutral referee the union (and the individuals) withdrew application therefor (and for further action under grievance procedure). The suit in district court was filed.

At all times prior to filing the suit the contention of the union and the individuals was that the employer-employee relationship between the company and the individuals persisted up until the time any further grievance procedure was authorized and permissible as applied to the matter upon which grievance was filed, and that the individuals were merely “out of service”, and wrongfully held in such state of suspension by the company. In filing the suit, on February 29, 1960, they apparently accepted the contention of the company that the employer-employee relationship was in fact severed, at least as of the date of April 17, 1958, when they appeared and presented themselves as available to perform the duties of their employment. Thus they attempted, by agreement to be implied, to yield in their first contentions upon being “held out of service” and to narrow the issue to a question of whether the severance of the employer-employee relationship was the fault of the company in that it wrongfully “discharged” them, or whether it was their own fault in that they “quit” their employment relation. We entertain considerable doubt, under the circumstances, of the propriety of either party’s attempt to retroactively fix the men’s status as one in which the employer-employee relationship did not exist.

Despite the fact that the union and the strikers ultimately offered to agree and concede that the employer-employee relationship was terminated in April of 1958, we believe it would be wise to examine the state of the law.

The law of the case is provided in the Railway Labor Act — Carriers by Air, U.S. C.A. Title 45 “Railroads”, ch. 8, §§ 151-188.

Under the Act it is provided in both section 152 and section 159 that nothing contained in the Act shall be construed to make the quitting of his labor or service by an individual employee an illegal act. To us the meaning of this encompasses the congressional intent that although an individual employee engages in collective action, as in a strike, his status continues to be that of an employee, even though the collective strike activity in which he has engaged may be illegal within the purport of the Act. Furthermore, it means that no such individual employee may be treated and considered as having quit his employment, or as having severed his relation to his employer as an employee, but conversely must be treated'and considered as having ceased from his labor or having held himself “out of service” on a temporary basis. A like distinction was recognized by the Supreme Court of Texas in the case of International Union of Operating Engineers Local No. 564 v. Cox, 1949, 148 Tex. 42, 219 S.W.2d 787. In view thereof it would appear that it would only be in instances of discharge, acknowledged as such, that a period could be considered to have begun for which damages could" be sought under the theory that the discharge was wrongful.

By striking it may be that an individual employee may abrogate certain of his rights under the contract to which he is privy as a member of a union which negotiated it,- but, in view of the Act, his right to have his status as an employee would in every case persist and would not be totally altered solely on account of the fact that he had engaged in a strike, regardless of its legálity or illegality. If he he discharged because he was or had been a striker he would be entitled to elect as to whether he preferred to file a grievance subject to appeal to the ultimate appellate body constituted within the contemplation of the Railway Labor Act in seeking reinstatement, plus damages perhaps, — or preferred to honor and accept the discharge and sue for immediate relief in the form of damages.

Under the circumstances of this case we are of the opinion that because of the fact that the collective strike action was contrary to the intent and purpose of the Railway Labor Act, and therefore unlawful, yet, for purposes of the Act, each individual striking member of the union must be considered to have thereafter continued in his status as an employee, albeit one who has voluntarily held himself “out of service”, for none of them quit or were discharged from the “employee” status.

Consideration may well be given to a determination of whether the case before us has grown out of a labor dispute properly characterized as a “minor dispute”, enjoinable by the courts, or as a “major dispute”, not subject to injunction. Referring to the case of Elgin, J. & E. R. Co. v. Burley, 1945, 325 U.S. 711, at page 723, 65 S.Ct. 1282, at page 1290, 89 L.Ed. 1886, and considering the nature of the dispute over which the union called the strike, it is readily determined that the strike arose over a “minor dispute”, i. e., at most one in which the union and its membership contended for interpretation or enforcement of contractual rights previously agreed upon, rather than to create any new contractual right.

Under the present state of the law applicable to the transport industries a strike called over a “minor dispute” between management and labor may be enjoined to prevent a tie-up of transportation facilities. The primary purpose of the Railway Labor Act is to avoid interruption of commerce by providing for orderly, peaceful settlement of such disputes, which form of settlement is by the Act made the duty of both labor and management, in §§ 152 and 184 under procedure prescribed and made enforceable under provisions of these sections and §§ 153, 155 and 185.

It is obvious from the circumstances of this case that the union, in calling the strike, elected to abandon recourse to the machinery afforded by the Act and to penalize the company by economic coercion. The company elected to refrain from seeking to combat the union’s strike activity through injunctive procedure, but instead sought to accommodate itself to the condition confronting it by allaying its problems in hiring new employees and contracting out certain of the work it had formerly handled.

Conceding arguendo, that the strikers who were not returned to work were and continued to be its employees, and that its relation to them was as employer to employee, regulated by the provisions of the union contract, the company asserts as binding upon them their presentation of their grievances through procedure afforded under the contract itself and under the Railway Labor Act. Ergo, says the company, since the last decision under the grievance procedure was against the contentions of the union and the strikers who were not returned to service, and since they abandoned further available “steps” in the grievance procedure, such last decision had become final and they are without standing in the courts and the relief prayed for is foreclosed.

In connection with such contention of the company we are of the opinion that it is correct and should be sustained and that the cause of action of the union and the individuals might have been properly dismissed. Sarran v. Missouri Pacific Railroad Company, 1959 (Tex.Civ.App., San Antonio), 330 S.W.2d 925, error refused; Union Pacific R. Co. v. Price, 1959, 360 U. S. 601, 79 S.Ct. 1351, 1355, 3 L.Ed.2d 1460.

Except for the fact that we believe the-proper order in the trial court might have, been dismissal of the cause had the com? pany moved for a dismissal, the judgment should be one affirming the denial of relief for the same reasons.

Assuming there would be no question of propriety for this court to consider that it possessed the right to act in all respects rather than merely upon the right to damages, it would seem that if we could, and were to sustain the union and the strikers who were not reinstated- in service — would oust from their jobs those new employees who went to work for the company while the illegal strike was in progress. We believe that as applied to the strikers, whose jobs were filled during the time they were voluntarily holding themselves out of service, their rights under the union contract should be considered to have been abrogated, at least to the extent of any senority right to jobs filled by the new employees, when they resorted to a strike rather than to the grievance procedure of the contract. Indeed, it appears that the newly hired employees came under the jurisdiction of the union contract upon their employment by the company, or at least shortly thereafter, and their own rights would be those specified by the same contract. It is to be noticed that the company never at any time treated the contract as having been wholly abrogated, and even during the progress of the strike proceeded to honor its processes for the handling of the grievances of the six suspended employees as to whom the dispute arose culminating in the strike.

Since the Act requires the strikers to be individually considered, we may hypothesize the situation as follows: No. 1 employee refuses to perform the service for which he is employed by the company and holds himself “out of service” pending satisfaction demanded of the company. While the situation persists No. 2 applicant, presents himself for employment and certifies himself ready to perform the job in question, and the company enters into the employer-employee relationship with him and he begins to perform service on the job from which No. 1 absented himself. Should No. 1 present himself to the company and certify his readiness to resume the duties of his employment on such job, withdrawing his previous demands, is the company in duty bound to restore him to the job despite the fact that to do so would require it to hold No. 2 “out of service”?

We think not. If the company were so required, No. 1 would be afforded the opportunity to continue on the job until he was assured that the services of No. 2 were no longer available to the company, whereupon he could again hold himself absent as “out of service” until the company met the same demands, once withdrawn but now reasserted. By this means would be placed within the power of No. 1 all the weapons of economic coercion, while at the same time the company would be deprived of all rights to maintain itself as applied to the job which should be performed if its commerce is to continue within the contemplation of the Railway Labor Act. Of necessity it would appear that principles of equity would have application, the exigencies of which would warrant the company in continuing the period as to which No. 1 was “out of service” so long as the job is filled by No. 2 in the satisfactory rendition of service. This would have special application to an instance where there was no specific provision of the contract .under which employment was conducted which would require the discharge or holding “out of service” of the employee who would be in the position of No. 2 in the situation hypothesized. There is no such specific provision in the contract considered in the instant case.

Of course nothing hereinabove stated should be construed to have any application or effect in any instance of a general strike where, pursuant to a new contract or agreement made in settlement thereof, agreements are entered into which would fix employment rights and seniority as between those who had engaged in the strike and those who were newly employed during the period of the strike.

As applied to that part of the contention which relates to the work being contracted out by the company to maintenance contractors on premises away from those of the company, we take occasion to note that the contract upon which the contention is asserted has no application to work performed on premises other than that of the company, save and except work performed elsewhere by the company’s own employees. Furthermore, this was a subject of grievance which was filed along with those relating to the fifty-three strikers and which was abandoned after once begun and carried through the majority of the “steps” in grievance procedure prior to the filing of the suit. What we have already said relative to the binding effect of the election by the union and employees to proceed under grievance procedure would apply to this matter as well.

We have heretofore mentioned that the company at all times refused to recognize and consent that there would be any jurisdiction of the cases filed under the grievance procedure in the various boards and bodies, prescribed by the contract and by the Act to consider grievances. There is a point of error grounded in the contention that the trial court erred in failing and refusing to find that the company violated the contract by such refusal.

This matter is not material. The Company’s act could be no more than a challenge of jurisdiction. Just as in instances of litigation in the courts jurisdiction may be attacked as to the persons or as to the subject matter and the challenge so presented sustained or denied. Even when it is ultimately determined that the challenge is groundless, he who made the challenge has lost nothing to which he was entitled, although conceivably he might have failed to gain something to which he would have been entitled had he claimed it. He is certainly not estopped to make his other defenses. Jurisdiction, if it exists, is not impaired by a contention that it does not exist, and one who successfully resists a contention that jurisdiction does not exist gains nothing except a ruling which sustains the jurisdiction.

It will be obvious to counsel for the litigants on this appeal that in some instances the points of error have been sustained, and in other instances they have been overruled. In no instance, however, would the effect of sustaining a point be to establish any error which would require a reversal of the judgment of the trial court.

Judgment is affirmed.

RENFRO, Justice.

I concur in the affirmance of the judgment.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    The SHIELD COMPANY, Appellant, v. Floyd WILLIAMSON, D/B/A General Appliance Co., Appellee.
    No. 16309.
    Court of Civil Appeals of Texas. Fort Worth.
    March 16, 1962.

      Biggers, Baker, Lloyd & Carver and Monty C. Barber, Dallas, for appellant.
    Thompson & Hight and Grady Hight, Fort Worth, for appellee.
   BOYD, Justice.

The Shield Company appeals from a judgment of dismissal in its suit against Floyd Williamson, d/b/a General Appliance Company, the dismissal coming after exceptions were sustained to appellant’s petition, when it declined to amend.

The petition alleged in substance: at various times during the years 1958, 1959. and 1960 appellant sold and delivered to appellee goods, wares, and merchandise, some of which were sold on open account and some of which were sold under floor plan with Refrigeration Discount Corporation whereby appellee executed and delivered trust receipts covering such merchandise so floor planned, thus incurring liability to appellant and Refrigeration Discount Corporation for such goods, wares, and merchandise; subsequent to such sales to appellee, appellant was required to pay amounts owing by appellee to Refrigeration Discount Corporation; the amounts owing to appellant and Refrigeration Discount Corporation were disputed by appel-lee, and a settlement was negotiated between appellant and appellee whereby ap-pellee was to pay to appellant the sum of $5,858.25, which agreement was made in compromise and settlement of the matters in dispute between appellant and Refrigeration Discount Corporation on the one hand and appellee on the other; the settlement agreement was made on or about May 15, 1960, and in pursuance of the agreement appellee delivered his check payable to appellant in the sum of $858.25 as the first payment on said settlement amount. The following notation was on the check: “Partial payment on account. Balance on account $5,000.00. This amount includes all obligations to THE SHIELD COMPANY and Redisco.” Ap-pellee stopped payment on the check, and though often requested to pay the sum of $5,858.25, he has failed and refused, and still fails and refuses, to pay said sum or any part thereof. Prayer was for that amount with interest from May 16, 1960.

The exceptions which were sustained were as follows: “Defendant specially excepts to paragraph I of Plaintiff’s Original Petition for the reason that it does not set out what items of goods, wares and merchandise were sold by plaintiff to defendant, it does not show the dates of such alleged purchases; and it does not show the price of said alleged purchases, or credits given thereon.

“Defendant specially excepts to paragraphs II, III and IV of Plaintiff’s Original Petition on the grounds that they do not set out the consideration for any such alleged settlement.

“Defendant specially excepts to the whole of Plaintiff’s Original Petition for the reason that it does not show any damages done plaintiff or any debt owed by defendant to plaintiff.”

We are of the opinion that the petition was sufficient to state a cause of action on a compromise settlement agreement, however it might be if the suit had been for the purchase price of the various items •sold to appellee.

We must take as true the allegations in the petition. Ulmer v. Ulmer, 139 Tex. 326, 162 S.W.2d 944; McDonald, Texas Civil Practice, Vol. 3, p. 876.

In a case such as the one pleaded, the creditor has the right either to sue on the original debt or the subsequent settlement contract. Alexander v. Handley, Tex.Com.App., 146 S.W.2d 740.

It is immaterial whether the settlement was advantageous to appellee. In Aydelotte v. Anderson, Tex.Civ.App., 284 S.W.2d 804, it was said: “ ⅜ * * there was a bona fide controversy between appellant and appellee and the notes, including the note here in controversy, were executed and delivered by appellant to settle the controversy and appellant would be liable even though it later developed that the claim of appellee was without merit.” See, also, People’s Ice Co. v. Glenn, Tex. Civ.App., 8 S.W.2d 735; Little v. Allen, 56 Tex. 133; J. Kahn & Co. v. Clark, 5 Cir., 178 F.2d 111; 12 Tex.Jur.2d, p. 294.

We quote from 12 Tex.Jur.2d, p. 290: “The mutual agreement of compromise is in itself a valuable consideration, sufficient to support the contract, the basic consideration being the release of the rights of the parties and the avoidance of the expense and annoyance of a suit.” See, also, Camoron v. Thurmond, 56 Tex. 22.

The judgment is reversed and the cause remanded.


author: MURRAY, Chief Justice.

text:
    CITY OF KINGSVILLE, Texas, Appellant, v. Antonio RIVAS et al., Appellees.
    No. 13909.
    Court of Civil Appeals of Texas. San Antonio.
    March 28, 1962.

      Homero Lopez, W. C. McDaniel, Kings-ville, for appellant.
    Glusing & Sharpe, Kingsville, Lyman & Sudduth, Corpus Christi, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by Antonio Rivas, individually and as next friend of Hector Rivas, his minor son, against the City of Kingsville, seeking damages resulting from personal injuries received by Hector Rivas in an automobile accident which occurred on the night of Friday, September 30, 1960, on a four-lane street in the City of Kings-ville. Several days prior to the accident the Water Department of the City of Kingsville had dug a ditch or pit in the left-hand lane of the south-bound traffic lanes, and had left a mound of dirt some four or five feet high next to the pit. Hector Rivas was riding as a guest in an automobile proceeding south in the right-hand lane of traffic, behind another automobile. As they approached the obstruction in the street, the driver of the vehicle in which Hector Rivas was riding, hereinafter referred to as host car, pulled from behind the other vehicle into the left-hand lane of the south-bound traffic and collided with the obstruction in the street. In the collision, Hector Rivas was thrown into the dashboard of the automobile, receiving fractures of both jaws and losing eleven teeth. The trial was to a jury and, based on its findings, judgment was rendered in favor of the minor, Hector Rivas, in the sum of $10,246.35, and in favor of Antonio Rivas in the sum of $795.85, from which judgment the City of Kingsville has prosecuted this appeal.

Appellant’s first point' is that the court erred in excluding from the jury evidence that the driver of the automobile in which Hector Rivas was riding as a passenger was intoxicated, and that Hector Rivas knew, or ought to have known that the driver was intoxicated. Under this point appellant’s statement is as follows:

“Appellants, the City of Kingsville, by several witnesses attempted to present testimony that the driver, Luis Gonzalez, of the automobile in which minor Plaintiff, Hector Rivas, was riding, was intoxicated and that his intoxication was obvious so that minor Plaintiff knew, or should have known, that said driver was intoxicated. The Court, however, refused to allow Appellants to present this testimony.”

No reference is made to the statement of facts in support of this statement.

Under appellant’s argument is would seem that it intended by this point to complain about the exclusion of the testimony of the witnesses B. J. Owen, Donald L. Smith, Jerry G. Schave, and Clyde Kees, with reference to the intoxication of the driver of the host car, and we are cited to numerous pages in the statement of facts. We have examined all of these references to the statement of facts and find that they do not support appellant’s statement. For instance, referring to page 195, line 21, we find that the only question asked by appellant that was objected to was as follows:

“Q Was this driver that you were speaking about, where was he at the time you got over there ?"

Mr. Lyman, attorney for appellees, promptly asked leave of the court to take the witness on voir dire examination, which was granted. During the examination it developed that the witness Owen did not see who was driving the car' in which Hector Rivas was riding, but was attempting to identify a man as the driver of the host car, whom he saw get out of the left-hand side of the car some two and one-half or three minutes after the car had collided with the mound of dirt on the highway. After this was developed, counsel objected to any reference by the witness Owen to the driver of the host car, and asked that Owen’s previous testimony be stricken and the jury instructed to disregard the same. The court sustained this obj ection and motion to strike. Then, turning to pages 200 to 203, we find that the following questions were asked the witness Owen in the absence of the jury, appellant having asked that the jury be sent out:

“Q This man that you saw coming out of the automobile, was he behind the wheel of the car ?
“A Yes, sir.
“Q Did you have a chance to observe the condition of this man that you saw coming out from the left-hand side of the car, that you saw under the wheel of the car?
“A Yes, sir, I did.
“Q And what was his condition, if any?”

At this point Mr. Lyman made an objection, but the witness answered “He was intoxicated.” The court sustained the objection. Then followed a discussion between the court and counsel for both sides, and the following questions were asked:

“Q Did you have a chance to get close enough to this man that you saw coming out of the car on the left-hand side to smell his breath ?
“A Yes, sir.
“Q And what did you smell, if anything, on his breath?
“A I smelled alcohol.
“Q And in your opinion, if you have any, based on your observations of the man at the scene, the way that he was acting, do you have any opinion as to what caused this condition?”

Mr. Lyman, attorney for appellees, objected and the question was not answered. The court stated to Mr. McDaniel, attorney for appellant, “I don’t think you’ve gone far enough, Counsel, to qualify a layman as far as his actions and conduct, so I will sustain the objection as it now stands.” Then Mr. Owen, the witness, was asked further questions as to his observation of persons in an intoxicated condition, including this one:

“Q And from the actions which you observed of this man, whom you have previously described at the scene of the accident, do you have any opinions?
“A Well, the only opinion I would have, would be that he was”

Objection by Mr. Lyman, and the witness continued, “Intoxicated.” Then Mr. Lyman obj ected to this testimony for many reasons, and the court stated: “Sustained, I will give you a chance to look at this, Counsel, and correlate your thoughts about it while the jury is out, and we will take it up again in a few minutes.” Appellant’s attorney never again offered this testimony in open court while the jury was present.

It is rather plain from all of this procedure that the only objection made to any question propounded to the witness Owen in the presence of the jury, was as to his conclusion that the man he saw get out of the left-hand side of the host car was the driver of the car, and we are unable to find where the court has excluded any proper questions asked in open court and in the presence of the jury, with reference to this man’s intoxication. The record further shows that the appellant called the witnesses, Donald L. Smith, Jerry G. S chave and Clyde Kees, but their testimony was heard only in the absence of the jury, and they were never asked any questions about the intoxication of the driver of the host car in open court or in the presence of the jury, nor was there any understanding with the trial court that such testimony might be considered as offered. Under such circumstances, we overrule appellant’s contention that the trial court committed reversible error in excluding evidence that the driver of the host car was intoxicated at the time of the collision with the dump. City of San Antonio v. Condie, Tex.Civ.App., 329 S.W.2d 947; Graves v. S. A. & A. P. R. Co., Tex.Civ.App., 164 S.W.2d 1059; 4 Tex.Jur. p. 314.

Furthermore, even if the testimony had been properly offered in evidence its exclusion would have been harmless error, because there was no evidence that the driver of the host car was guilty of any negligence plead by appellant, in its answer, as being the proximate cause of the wreck. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792; Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, 141 A.L.R. 50; Rowan & Hope v. Valadez, Tex.Civ.App., 258 S.W.2d 395; 141 A.L.R. 50.

Appellant next complains that the court erred in not allowing appellant to present evidence which reflected the excess speed of the host automobile, in that it was not permitted to introduce evidence as to the length of the skid marks made at the scene of the accident by the host automobile. With reference to this matter the witness was asked the following:

“Q The car, did you have an occasion to examine any skid marks which were laid down by this car which you testified—
“MR. LYMAN: Now if the Court please, that obviously is calling for a conclusion on the part of the witness, I don’t object to fact testimony.
“THE COURT: All right.
“MR. McDANIEL: It calls for a yes or no answer.
“MR. LYMAN: I don’t care what it calls for, Judge.
“THE COURT: Rephrase your question, Counsel, you can do that.
“Q Did you see any skid marks leading to this mound of dirt ?
“A Yes, sir.
“Q Did you measure the skid marks ?
“A Yes, sir, I did.
“Q And how long were they?
“MR. LYMAN: If the Court please, until it is connected up properly, we object to it.
“THE COURT: Sustained.
“MR. LYMAN: As being irrelevant and immaterial.
“THE COURT: Sustained.”

The witness Smith was not thereafter questioned concerning skid marks, either in or outside the presence of the jury, and there is no showing in the record what answers he would have given had the objection not been made and sustained. Smith was not thereafter asked as to measurement of any skid marks as shown in the pictures in evidence, and he was never asked whether the skid marks led immediately up to the wheels of the wrecked automobile. The last reference to skid marks in the statement of facts was made while appellant’s witness Schave was on the witness stand. Appellant inquired: “Did you observe any skid marks leading to the car which, which ran up on the pile of dirt?” and the witness answered: “Yes, sir, I noticed some skid marks leading from the rear of the car back north from the car, that I figured in my own opinion — .” No question was asked of the witness Schave, either in or outside the presence of the jury, as to the length of any skid marks, and therefore the record as to this witness also fails to show what answer he would have given had he been asked the question.

In order to show harmful error on the exclusion of evidence, the appellant must have in the record what the witness’ answer would have been. Rules 372 and 373, Texas Rules of Civil Procedure; Smith v. Stegall, Tex.Civ.App., 336 S.W.2d 470; Southerland v. Porter, Tex.Civ.App., 336 S.W.2d 841; State v. Haire, Tex.Civ.App., 334 S.W.2d 488; Kansas City Fire & Marine Insurance Company v. Duncan, Tex.Civ.App., 330 S.W.2d 469; Bradford v. Magnolia Pipe Line Co., Tex.Civ.App., 262 S.W.2d 242; Atlantic Pipe Line Co. v. Fields, Tex.Civ.App., 256 S.W.2d 940; Sims v. Duncan, Tex.Civ.App., 195 S.W.2d 156.

Appellant’s remaining points are without merit and are overruled.

The judgment is affirmed.


author: WILSON, Justice.

text:
    Nelda Jo WARNER et al., Appellants, v. Albert PLUMMER, Appellee.
    No. 3851.
    Court of Civil Appeals of Texas. Waco.
    March 8, 1962.
    Rehearing Denied March 29, 1962.
    Combs & Mitchell, Houston, for appellants.
    Richard H. Powell, Houston, for appellee.
   WILSON, Justice.

Plaintiffs pleaded deceased, Warner, died as a result of injuries resulting from being struck in the head by revolving machinery on defendant’s drilling rig on which Warner had been engaged to install equipment. It was alleged that the portion of the machinery with which he came in contact was some part of an engine clutch; that the engines were idling and the clutches had presumably been disengaged, but, unknown to deceased, “the clutches were either not disengaged, or were thrown in gear without notice to him.” Negligence alleged included failure of defendant to stop the engines and clutches while deceased was working near them, failure to disengage and immobilize the clutches while the engines were operating, or putting the clutches into operation without notice while defendant was working.

The jury made findings that the clutch was turning prior to the accident, and deceased knew it was turning, understanding its operation; found deceased placed his head closer to the clutch than would a person of ordinary prudence; that he failed to wear a steel safety hat; failed to stop, or notify defendant’s driller to stop rotation of the clutch, or notify that he was using an opening near the clutch; that he voluntarily exposed himself to dangers he knew and appreciated. Negligence of deceased in the respects answered was found to be a proximate cause. The jury answered that defendant’s failure to stop the rotating clutch was negligence and a proximate cause. Judgment was rendered for defendant on the verdict.

Plaintiffs’ principal contention is that the findings that the clutch was revolving before the accident are not supported by and are contrary to the evidence, and are against the overwhelming preponderance of the evidence. They concede that the testimony of all witnesses, six in number, was that the clutch was revolving at all times and “was not turned on after he got his head near it, as appellants contend.” They ask that we say this evidence will not support the findings because it is “contrary to natural law, common sense and human nature” that deceased would permit his head to come in contact with the revolving clutch; and that under the circumstances surrounding the accident, for him to place his head far enough into the narrow area adjacent to the clutch to be struck by a coupling protruding from the clutch required that he do so consciously and deliberately. Hence, they say, the clutch must have been at rest. They say this contention is applicable to all other findings, and they are based on insufficient evidence. It is impossible to summarize the evidence briefly. We have tediously examined the ponderous record of a trial lasting nearly three weeks, and have carefully considered appellants’ contentions in the light of that record, and although they are persuasively presented, we are unable to sustain them.

We are asked to reverse because the court failed to file findings of fact and conclusions relating to alleged jury misconduct and communications of counsel in the hearing on their motion for new trial as requested by appellants under Rule 296, Texas Rules of Civil Procedure. That Rule applies to a “trial by the court.” In Eichelberger v. Rankin, Tex.Civ.App., 278 S.W.2d 278, writ ref. n. r. e., Justice Norvell wrote that under the Rule “a trial judge is not required to file findings and conclusions as to matters raised upon a motion for new trial in a jury case, Connor v. Heard & Heard, Tex.Civ.App., 242 S.W.2d 205.” See also Viking Construction Co. v. Beaird, Tex.Civ.App., 337 S.W.2d 699, 704. We are urged to overturn the rule. We think it is sound.

We have fully considered other points, extended discussion of which would not be helpful. In our opinion they do not require reversal.

Affirmed.


author: DIXON, Chief Justice.

text:
    PLEASANT GROVE BUILDERS, INC., Appellant, v. Thomas C. PHILLIPS et ux., Appellees.
    No. 15940.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 23, 1962.
    Rebearing Denied March 23, 1962.

      Jack Keller, Dallas, for appellant.
    Esir Tobolowsky and E. D. Hurt, Dallas,, for appellees.
   DIXON, Chief Justice.

Appellees Thomas C. Phillips and wife Billie Jean Phillips sued appellant Pleasant Grove Builders, Inc., for damages, for fraud under Art. 4004, Vernon’s Ann.Civ. St., and in the alternative for damages for breach of implied obligation and implied warranty in the sale of real estate.

Appellees purchased a house from appellant through Ralph Lyles, a real estate broker. They allege that Lyles falsely represented that the house was constructed with good workmanship and good materials, which representations induced them to sign a written contract for the purchase of the property, the sale afterwards being consummated pursuant to said contract. Lyles is not a party to appellees’ suit.

The consideration paid by appellees was $12,700 as follows: the transfer to appellant of equities then owned by appellees in two pieces of real estate at an agreed value of $2,200; the execution by ap-pellees of a first lien note in the amount of $9,000 payable to Guaranty Federal Savings & Loan Association, the proceeds of which loan were paid to appellant; and the execution by appellees of a second lien note in the amount of $1,500 payable to appellant.

Appellees further allege that after they had moved into the house and had occupied it for some time they discovered defects which showed that it had not been constructed with good workmanship and good materials. Their petition and the testimony offered in their behalf describe these defects in great detail.

In connection with their suit under Art. 4004, V.A.C.S. appellees pled that the reasonable cash market value of the property as represented was $12,700, and that the actual value of the property as delivered was $9,936.72, a difference of $2,763.28.

In connection with their alternative plea of failure of implied obligation and implied warranty, appellees alleged that the reasonable cost of remedying the defects was $2,763.28.

A jury returned a verdict finding that (1) Ralph Lyles had represented to appellees that the house had been constructed with good workmanship and good materials, (2) which representation was material, (3) was false, (4) was made for the purpose of inducing appellees to purchase the house, (5) was believed and relied on by appellees, (6) otherwise they would not have signed the contract to purchase, but (7) Lyles in making the representations had not acted wil-fully.

The jury further found that the reasonable cash market value of the house as represented was $12,000, the actual value as delivered was $10,000; the premises were defective at the time of delivery; and the reasonable cost of remedying the defects was $2,000.

Based on the jury verdict judgment was rendered in favor of appellees for $2,000.

In its first and second points on appeal appellant asserts that (1) the judgment is not supported by the evidence and, (2) the judgment is contrary to the law. Both points are too general to be entitled to our consideration. Phillips v. Le Gallez, Tex.Civ.App., 329 S.W.2d 922; Redman v. Cooper, Tex.Civ.App., 160 S.W.2d 318, 319; Universal Life Ins. Co. v. Wallace, Tex.Civ.App., 149 S.W.2d 662. Therefore we shall make no holding with reference to the first and second points.

Appellant’s third, fourth, fifth, sixth, seventh, eighth, ninth, twelfth, thirteenth and fourteenth points in substance assert that (3) there was no issue submitted to the jury on the question of agency of Lyles and it was improper for the trial judge to make an implied finding of agency; (4) there was no evidence connecting appellant directly or indirectly with any representations made by Lyles; (5) there is no evidence or finding of the jury that appellant had any knowledge of any representations with reference to good workmanship and good material, or that appellant in any way condoned or ratified said representations; (6) there is no evidence or finding of the jury that appellant or any of its legally qualified officers made any such representations ; (7) as a matter of law a real estate salesman such as Lyles has no implied or apparent authority to bind the owner by making the alleged representations; (8) the alleged representations of Ralph Lyles were mere sales talk; (9) the rule of caveat emptor should apply because appellees had bought and sold other houses and should have ascertained the defects in the house which were open and obvious; (12) there is no evidence or finding by the jury that Lyles had .apparent authority to make the representations in question; (13) there was no evidence that appellees relied on any act or representations of Pleasant Grove Builders and (14) there was no issue submitted as to how and in what manner the alleged representations made by Ralph Lyles were false.

The undisputed evidence shows that Lyles was acting as agent for appellant, but with the limited authority of a real estate broker. Since the fact of the limited agency was conclusively established by the evidence, there was no need to submit an issue to the jury on the subject. Appellant’s third point is overruled.

Appellee Phillips testified that while out driving in his automobile looking at property he and his wife saw the house in controversy. In the front yard they saw a sign of a real estate agent, Lyles, advertising the house for sale. They knew Lyles, having previously bought real estate through him. The house was open so appellees went inside, inspected the house and liked it; thereafter they communicated with Lyles and entered into negotiations which led to their signing the contract to purchase. Some time later the deal was consummated by the transfer of the property to appellees in consideration of which they executed the first and second lien notes and transferred to appellant their equities in two pieces of real estate then owned by appellees.

Lyles claimed no authority to act for appellant in any other capacity than as a real estate broker. There is no evidence that he had expressed or implied authority to bind appellant by the representations in question. When appellees informed Lyles of their desire to transfer to appellant their two equities in other properties as down payment on the purchase price, Lyles told them he would have to take the matter up with “Ted”, who turned out to be Ted Frossart, Vice-President of appellant. The written contract signed by appellees, a printed form with blank spaces to be filled in, has places for the signature of the purchaser and seller and the agent, it contains no express warranty.

The facts in this case are strikingly similar to those in the case of Loma Vista Development Co. v. Johnson, 142 Tex. 686, 180 S.W.2d 922. In that case our Supreme Court held that a real estate broker in the absence of a particular agreement enlarging his authority, is only a special agent who has no authority to bind his principal by representations. His authority is limited to finding a purchaser ready, able and willing to buy on terms acceptable to the seller. It was held expressly that the seller, under such circumstances, is not liable under Art. 4004, V.A.C.S. We think such holding must control our decision here. Accordingly appellant’s fourth, fifth, sixth, seventh, eighth, twelfth, thirteenth and fourteenth points are sustained insofar as they relate to appellees’ cause of action based on Art. 4004, V.A.C. S. Appellant’s ninth point is overruled.

There remains the question whether the judgment against appellant should be affirmed under appellees’ alternative plea and the jury’s findings in connection with ap-pellees’ allegations of a breach by appellant of its “implied obligation and/or implied warranty” that the house in question had been constructed and finished with good workmanship and good materials.

The jury found that the premises were defective at the time the property was delivered to appellees, and the reasonable cost of remedying and correcting the defects to be $2,000.

In the case of Loma Vista Development Co. v. Johnson, supra, our Supreme Court states that the holding there in favor of the defendant is not unjust or harsh from the standpoint of the buyer because (1) he has a cause of action for damages for fraud against the real estate broker who makes the fraudulent representations; and (2) he has at least two remedies against the seller : (a) he may sue to rescind the contract, or (b) he may recoup his damages or prevent recovery by the vendor of the purchase price, on the ground of failure of consideration.

In the instant case the real estate agent is not a party; only appellant as seller was a party defendant. Further, appellees, as buyers did not sue to rescind the contract or to prevent recovery by the vendor of the purchase price. Their alternative plea seeks only to recoup their damages from appellant as seller.

With reference to appellees’ alternative plea, appellant contends that appellees neither pled nor proved a cause of action based on failure of consideration, therefore, appellees are not entitled to recover on that theory. Also appellant contends that there is no such thing as implied obligation or implied warranty between a seller and a buyer in the sale of real estate with completed improvements thereon as distinguished from a construction contract between an owner and a contractor, consequently ap-pellees are not entitled to recover under their alternative plea.

In support of its contention appellant cites and quotes from cases and authorities holding that, though the principle of implied warranty is applicable to the sale of personal property, it is not applicable to the sale of real estate. See Levy, et ux. v. C. Young Construction Co., 46 N.J.Super. 293, 134 A.2d 717 and cases therein cited; Combow v. Kansas City Ground Investment Co., 358 Mo. 934, 218 S.W.2d 539, 8 A.L.R.2d 213 and cases therein cited; 4 Williston, Contracts (Rev.Ed.1936) § 926, p. 2602; 2 Restatement, Contracts, § 413, p. 778 ; 55 Am.Jur. § 368, p. 795. Appellant also cites cases holding that all agreements contained in a contract of the sale of real estate are merged into the deed itself, hence we must look only to the deed itself in this case, which deed contains no warranties other than as to title.

We deem it unnecessary for us either to agree or disagree with appellant’s contentions as above set out for the reason that we believe they are immaterial here. Appellees in their supplemental brief point out that appellant, so far as the record shows, did not, either during the trial or in its motion for new trial, except or object to the pleadings of appellees; did not file a motion for instructed verdict; did not object to the court’s charge or any of the issues submitted to the jury; and did not file a motion for judgment non obstante veredicto. Further, appellant has not on appeal brought forward any objections to the evidence; and has not filed any point on appeal claiming that any finding of the jury is not supported by the evidence, or that the jury verdict is excessive, or that the verdict is contrary to the preponderance of the evidence.

In reaching our decision we have been guided by certain well established rules of a law. It has been held that generally a challenge to the sufficiency of the pleadings may not be raised for the first time on appeal. Fireman’s Fund Ins. Co. v. McDaniel, Tex.Civ.App., 327 S.W.2d 358, 375; Strickland Transport Co. v. Kool Kooshion Mfg. Co., Tex.Civ.App., 230 S.W.2d 277; Scott v. Doggett, Tex.Civ.App., 226 S.W.2d 183; Owl Trading Co. v. United Appliance Co., Tex.Civ.App., 246 S.W.2d 342; Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562; 3 Tex.Jur.2d 387, 389; Rule 90 Texas Rules of Civil Procedure. When issues not raised by the pleadings are tried by implied consent of the parties, they will be treated as raised by the pleading. Rule 67 T.R.C.P. Failure to object to the submission of an issue to the jury precludes a party from objecting on appeal, or on motion for new trial that the issue was not raised by the pleadings. Cozart v. Mills & Exports Co., Tex.Civ.App., 275 S.W.2d 705; Minugh v. Royal Crown Bottling Co., Tex.Civ.App., 267 S.W.2d 861; Lewis v. Reichel, Tex. Civ.App., 256 S.W.2d 216; Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562. In the absence of proper objection one may not complain on appeal of errors in the charge-on the measure of damages. Lloyds America v. Payne, et al., Tex.Civ.App., 85 S.W.2d 794; Iowa Mfg. Co. v. Baldwin, et al., Tex. Civ.App., 82 S.W.2d 994, 999; Parks v. Hines, Tex.Civ.App., 68 S.W.2d 364, 368; Rule 274, T.R.C.P.

We believe that the above principles, are applicable to the particular circumstances of this case. Therefore, we overrule appellant’s fourth, fifth, sixth, seventh, eighth, twelfth, thirteenth and fourteenth points insofar as they relate to appellees’' alternative cause 'of action. •

In its tenth point on appeal appellant claims to have discovered new evidence to the effect that there were no structural defects in the foundation and brick walls of the house. Attached to appellant’s motion for new trial are photographs taken after the trial. This evidence is merely cumulative of other evidence offered by appellant at the time. No good reason is shown why this “new evidence” could not have been discovered before the trial by the exercise of diligence. Certainly we see no abuse of discretion by the trial court in this connection in refusing to grant a new trial. Texas Employers Ins. Ass’n v. Pillow, Tex.Civ.App., 268 S.W.2d 716, 720; 31 Tex.Jur. 90-93. Appellant’s tenth point is overruled.

Appellant complains in its eleventh point because the court allowed appellees a recovery of $96 because appellant failed to furnish appellees with a title policy to the property. It is appellant’s position that (1) appellees have not shown any damage resulting from the failure to furnish a title policy and cannot show any damage until there has been a failure of title; and (2) the terms of the contract of sale have been merged into the deed to appellees, which deed is silent as to a title policy. Appellant did pay for a mortgage policy and claims this was adequate performance of its obligation to furnish a title policy to appellees.

We see no merit in appellant’s position. The evidence showed that the cost of a title policy was $96. It is undisputed that appellant agreed in the written contract of sale to furnish a title policy. It is undisputed that it did not so do. It is further undisputed that appellees paid $100 as closing costs, $82 of which was used to pay for a mortgage policy. We find no testimony that appellees waived the furnishing by appellant of a title policy. Under the circumstances here presented the agreement to furnish a title policy must be considered as a separate agreement, not superseded by the deed and properly not included in the deed. Ewing v. McGee, Tex.Civ.App., 314 S.W.2d 158, 159; Johnson v. Elmen, 94 Tex. 168, 59 S.W. 253, 52 L.R.A. 162; Bates v. Lefforge, Tex.Com.App., 63 S.W.2d 360, 363; 1 Restatement, Contracts, § 240 (1) (b) p. 335. Appellant’s eleventh point is overruled.

In its fifteenth point appellant asserts that if the court did not err with reference to the reasons specifically stated, it did err in overruling collectively the reasons and errors pointed out in appellant’s amended motion for new trial. The point is without merit and it is overruled.

The judgment of the trial court, as based on appellees’ alternative plea, is affirmed.

WILLIAMS, J., not sitting.


text:
    SOUTHWESTERN HYDROCARBON COMPANY, Appellant, v. Bob THOMPSON, Appellee.
    No. 3955.
    Court of Civil Appeals of Texas. Waco.
    March 15, 1962.
    Rehearing Denied April 5, 1962.

      Roe, Ralston & McWilliams, Corsicana, Thompson, Knight, Wright & Simmons, Frank Finn, Jr., Dallas, for appellant.
    Dawson & Dawson, Corsicana, for ap-pellee.
   WILSON, Justice.

Plaintiff sustained personal injuries when gasoline, with which he was cleaning oil sprayed on his employer’s equipment by defendant, ignited. In this action he recovered judgment from defendant based on jury findings that defendant’s negligence in the manner of spraying oil on the equipment and failure to clean it proximately caused plaintiff’s injuries; that the oily condition constituted such a threat to safety of persons coming on the premises and to the employer’s property as to cause an ordinarily prudent person to attempt to alleviate the condition. The jury found plaintiff’s use of gasoline in cleaning, in failing to remove all metallic objects from his person, and his conduct in other respects was not negligence; that he knew or should have known the danger incident to the cleaning, but did not voluntarily expose himself thereto.

Defendant’s chief contentions are that (1) there is insufficient evidence, or none, to support application of the “rescue doctrine” relied on by plaintiff; (2) the evidence establishes as a matter of law that plaintiff voluntarily encountered a known risk, and that (3) he was guilty of contributory negligence as a matter of law; (4) that plaintiff’s conduct was a new and intervening cause, and (5) defendant’s conduct was not a proximate cause as a matter of law.

The relative significance of these problems, to our minds, is inverse to the numerical order of presentation. That which has caused most concern is whether the causation and foreseeability elements of proximate cause exist.

Plaintiff was production superintendent of an oil company, charged with responsibility for his employer’s tank battery, oil treating plant and other equipment which the jury found was negligently sprayed by defendant with slick and flammable crude oil. There was evidence to show a-quantity of about five barrels of oil was left on the ground of the premises in an area 30 feet long, and up to 15 feet wide; that it was sprayed on storage tanks, walkways, stairways, catwalks, a gas separator and butane tank; that workers, oil gatherers and others frequented the properties, some of them daily. Plaintiff conferred with defendant’s employee promptly after the condition arose about cleaning it, but no agreement was made, and a wind made it inadvisable to clean the following day. Defendant not having cleaned the oil the third day, plaintiff began the cleaning operation himself, using a flushing method with white gasoline — the method he described as being easiest, quickest and most complete; “the only thing that I have known of that will do the job.” There is evidence that this is “the standard method” of cleaning in the oilfield. Defendant’s employee who sprayed the oil testified the use of gasoline was “standard procedure” and is what he used in cleaning operations in the oilfield, and that “it is about the only thing that will cut oil loose”. There was evidence to the contrary. The evidence showed the oil created an extremely dangerous condition as to slickness and fire hazard.

Defendant’s employee testified that he recognized the hazard produced by the oil, and because of the hazardous condition involved he planned to clean it up; that he knew someone would have to do it; that he knew the person who cleaned it would probably use gasoline as the practical and most effective method in common use, and that there might be hazard in its use. The defendant’s witnesses conceded one reason for cleaning off the oil was that the oil caused a slippery condition which increased possibility of injury. It is not argued that the condition was not hazardous.

In the course of the cleaning process, and after 1 ½ hours of work with the gasoline, plaintiff “suddenly found” himself “on fire”, becoming “a human torch” and sustaining severe burns. The igniting cause is a matter of conjecture. Appellee suggests a ring on his finger, or the gasoline can, might have made a spark.

We conclude the record supports the jury finding as to existence of causation and foreseeability elements of proximate cause, and under the evidence we are unable to say plaintiff’s conduct was a new, independent and intervening cause as a matter of law.

Determination of defendant’s contention that plaintiff voluntarily encountered a known risk as a matter of law, or whether as a matter of law recovery is pre • eluded by contributory negligence appears to us to turn, ultimately, on the issue of whether plaintiff’s use of gasoline was negligence as a matter of law, the jury having found it was not as a matter of fact. Plaintiff conceded he realized cleaning with gasoline was dangerous, “just like it is dangerous to put gasoline in your car if you don’t use some reasonable caution,” and that he used precautions. He cut off all flame in a heater treater (which he was cleaning when his body became ignited) over an hour before he began to clean it. He examined it to see that it was cool, and had nearly completed removing oil from it and was cleaning its gauges when the fire began. The jury finding that plaintiff did not clean the equipment when it was hot is not challenged. He admitted that in cleaning with gasoline “you run the risk that something will happen” as “I run a risk of it every time I drive into a service station to have gas put in my car.”

If we assume that the evidence establishes without dispute that plaintiff encountered a condition of known danger fully appreciating it, there remains the question of whether he “voluntarily” encountered it. “It must be done ‘of his own free will and as a result of an “intelligent choice.” ’ ” McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391, 395. The jury found he did not voluntarily expose himself to the danger.

Do the jury findings that the oily condition constituted a threat to the safety of persons coming on the premises, and to property, at the time plaintiff attempted to clean it; that the threat was such as to cause a person of ordinary prudence to alleviate it; and that plaintiff was attempting to alleviate it when injured, negative free volition and the element of intelligent choice? Appellant says not, urging that there was neither present the factor of urgency or imminent danger, nor circumstances such as to induce a reasonable belief that someone was in peril, so as to authorize the attempted rescuer to act.

We do not consider it necessary to decide whether the “rescue doctrine” relied on by plaintiff is available in protection of property, for the evidence in this case seems to us to support a finding of threat to personal safety as fully as to property. Appellant does not contend defendant’s negligence did not create a condition hazardous to those coming on the property, but insists that plaintiff was not actuated by spontaneous, instinctive or impulsive reaction to perception of the immediate actual or apparent peril of some person.

Both parties recognize the opinion of Justice Cardozo in Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437, 19 A.L.R. 1, to be a leading pronouncement of the rescue doctrine. Of the contention he said: “The risk of rescue, if only it be not wanton, is born of the occasion'. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had. [Citation.] The defendant says that we must stop, in following the chain of causes, when action ceases to be ‘instinctive.’ By this is meant, it seems, that rescue is at the peril of the rescuer, unless spontaneous and immediate. If there has been time to deliberate, if impulse has given way to judgment, one cause, it is said, has spent its force, and another has intervened. * * * We find no warrant for thus shortening the chain of jural causes.” So sweeping an exception, if recognized, it was held, would leave little to the rule. “The law does not discriminate between the rescuer oblivious of peril and the one who counts the cost. It is enough that the act, whether impulsive or deliberate, is the child of the occasion.”

The predominant and determinative component of the doctrine in the present case, to our minds, is not “imminence” of peril or urgency in the sense of mental compulsion ; it is (a) whether a reasonable necessity exists or appears to justify undergoing the risk, and (b) whether the effort made to avert the threatened danger created by defendant is reasonable. This is the test adopted by American Law Inst., .IV Restatement, Torts, Sec. 893, which contains the comment that where defendant creates and maintains a dangerous condition after notice, “the fact that the plaintiff chooses to subject himself to a known risk does not necessarily bar him from’recovery” and if he sees a third person has been endangered thereby he may recover for harm resulting from his effort to avert the danger “despite his full realization of the risk he runs in so doing”, if he does not adopt a course of conduct which a reasonably prudent person would not adopt, id. p. 496. “It is not contributory negligence for a plaintiff to expose himself to danger in a reasonable effort to save a third person” from harm. II Id. Sec. 472. See 3 Cooley, Torts, Sec. 487; Prosser, Torts (2d ed. 1955) Sec. 55, p. 313.

The controlling test is summarized in II Restatement, Torts, Sec. 466, p. 1231: Intentional exposure to danger, to constitute' contributory negligence, “must be unreasonable. In order that it may be unreasonable it is necessary that a reasonable man in his position would not expose himself to it. This in turn depends upon the comparison between the quantum of danger, including both the probability of harm' and its gravity, which plaintiff realizes or has reason to realize as involved in the condition created by the defendant, with the value which the law attaches to the advantage which will be lost if the danger is not encountered.”

We reject the concept argued for, that the-hazard to third persons must be more “imminent” than the evidence here shows. We think the issue as to whether the effort made by plaintiff and the means used to avert the danger was that of a person of ordinary prudence under the circumstances, was a fact issue for the jury, and the negative was not established as a matter of law. We have considered appellant’s other points, and they do not reflect reversible error. Affirmed.


author: DENTON, Chief Justice.

text:
    Noah DAWSON v. CITY OF AMARILLO.
    No. 7100.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 26, 1962.
    Rehearing Denied April 2, 1962.
    Monning & Monning, Amarillo, for appellant.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellee.
   DENTON, Chief Justice.

This suit was instituted by Noah Dawson, a former employee of the City of Amarillo, seeking reinstatement to his former position and for back wages since his release. Upon a trial before the court, judgment was entered denying Dawson the relief prayed for. No findings of fact or conclusions of law were requested or filed.

On April 4, 1955 Dawson was employed by the City and was assigned to work in the park department as a laborer. His designation was later changed to “gardener-helper,” however, the personnel director testified this did not constitute a promotion but rather a change in job classification. His employment was terminated on September 30, 1956.

The basic question to be determined is whether or not Dawson ever attained a classified status under the Civil Service ordinance of the City. Once a city employee becomes a classified or permanent employee he is entitled to certain rights under Civil Service in addition to retirement benefits, and can be discharged only for cause as specifically set out in the ordinance and Personnel Rules of the City. On the other hand, if Dawson had not attained classified status he would not be entitled to the benefits of Civil Service and could be discharged by the department head without cause. It is Dawson’s contention that in as much as he was admittedly employed for a longer period than six months, he automatically became a classified employee thereby coming under the City’s Civil Service program.

Subsequent to the legislature’s enactment of Article 1269m, V.A.C.S. in 1947, referred to as the Firemen’s and Policemen’s Civil Service Act, the City of Amarillo enacted a Civil Service ordinance for certain other employees in addition to adopting the State statute for firemen and policemen. The ordinance established a Civil Service Commission with the authority to make the necessary rules and regulations and to administer the Civil Service program. Personnel rules were then put into effect for the purpose of supplementing the Civil Service ordinance.

Appellant assigns eleven points of error. However, the first five points appear to be decisive as they go to the basic question to be determined. These points in effect complain of the trial court’s judgment holding Dawson did not become a classified employee and entitled to the benefits and protection of Civil Service. If the trial court was correct, such questions as the jurisdiction of the Civil Service Commission; appellant’s vested right in the particular job; statute of limitation or laches, will become immaterial to this decision.

In order to determine this basic question we must look to facts surrounding Dawson’s employment, and the pertinent provisions of the Civil Service ordinance and the City’s Personnel Rules. When Dawson began his employment a “certification record” was prepared. It shows he began his employment with the City on April 4, 1955 and was employed as a “Laborer I” on a “seasonal basis.” This record further reveals his job status was “Number 4.” The City’s system of classifying all city jobs was as follows: Number 1: for permanent employees; Number 2: for probationary employees; Number 3: for temporary employees; Number 4: for seasonal or special assignments. It is uncontradicted that Dawson’s job status remained Number 4 throughout the period of his employment with the City.

On December 15, 1955 the head of the Parks and Recreation Department wrote Dawson a letter informing him he could not become a permanent employee under the City’s Civil Service rules, and advised him that his employment would be terminated not later than September 30, 1956. This same department head again wrote Dawson on August 15, 1956 explaining in more detail that the City could not accept Dawson as a permanent employee because of the fact he was over the age of 50 years at the time he was initially employed, and for this reason could not be brought under the City’s retirement program. For some reason which is not clear from the record, Dawson met with the Civil Service Commission on September 11, 1956 and was notified by the Personnel Director by letter dated September 20, 1956 that the Commission was unable to find an exception to the requirement concerning the employment of seasonal employees over the age of 50 years. Dawson’s employment was thus terminated on September 30, 1956.

The City Charter, the Civil Service ordinance, and the Personnel Rules provide for “classified” and “unclassified” service of the City. Only jobs designated as classified service come under Civil Service. All three instruments named above used almost the exact language to describe these classifications. Section 9 of the Personnel Rules reads as follows:

“SECTION 9. ‘Classified Service’ and ‘Unclassified Service.’
“The positions in the City of Amarillo shall be separated into the unclassified service and the classified service.
“(1) The unclassified service shall comprise the following offices and positions :
“a. incumbent of elective positions.
“b. the City Manager
“c. the City Secretary
“d. Heads of the Departments
“e. the City Judge and Clerks of the City Court.
“f. members of Boards and Commissions in the City’s service.
“g. persons employed to make or conduct a special inquiry, investigation, examination, or installation, if the City Commission or the City Manager certifies that such employment is temporary, and that the work should not be performed by employees in the classified service.
“(2) The classified service shall comprise all positions not specifically included by this section in the unclassified service.”

The City personnel director testified seasonal employees were originally employed under Sec. 85 of the Personnel Rules. This section is designated “Special Assignments” and reads as follows:

“SECTION 85. Special Assignments. None of the provisions of the Civil Service Ordinance or of these rules shall bar the City from making contracts for technical and/or specialized personnel to carry out work of a special nature. Such special assignments shall be for work which is not a regular part of the administration of City affairs, whether such work is for a longer period than three (3) months or periodic in its nature.”

On or about June 15, 1955 shortly after Dawson began his employment, Sec. 84a was added to these same rules. The material portion of this new section reads as follows:

“Section 84a: ‘Seasonal Appointment.’ Seasonal Appointment may be made for a maximum period of nine (9) months within a fiscal year. Seasonal Appointments are for a period of time such as to complete a special piece of work, as School Patrol, summer program employment in the Park and Recreation Department, and for vacation replacement; or on projects that exceed the ninety (90) days allowed for Temporary Appointment, but in no case will Seasonal Appointment exceed nine (9) months in the City’s fiscal year. After adoption of this amendment no employee on seasonal appointment may be transferred into any department of the City and his assignment be made retroactive to the beginning of his seasonal appointment. At the time of transfer into probationary status, the employee must serve a six (6) months probationary period before he can become a permanent employee and enjoy full Civil Service Status.”

It is noted that both Sections 85 and 84a are placed under “Rule XIII,” “Temporary Appointments.” We think this is significant.

The cases relied on by the appellant are cases interpreting Art. 1269m which deal expressly with the Firemen’s and Policemen’s Civil Service. These cases are not controlling in the instant case. This act of the legislature which was adopted by the City of Amarillo is applicable only to firemen and policemen. It does not apply to other city employees. This latter group of employees must come under the City’s Civil Service ordinance and personnel rules.

It is well settled that the same rules of construction apply to municipal ordinances as apply to statutes. Reed v. City of Waco (Tex.Civ.App.) 223 S.W.2d 247 (writ refused) ; Town of Port Acres v. City of Port Arthur (Tex.Civ.App.) 340 S.W.2d 325 (refused N.R.E.). We must therefore look to the pertinent Civil Service provisions to determine the intent of the City Commission in determining Dawson’s rights thereunder.

Obviously all city employees are not and cannot be considered to be in the classified service. Many positions are specifically eliminated. Dawson was employed under Sec. 85 of the Personnel Rules designated “Special Assignment.” His employment record showed him to be a “seasonal” employee and he remained a gardener-helper with a job class of Number 4 throughout the period of employment. Section 44 of the Personnel Rules provides that the maximum age for entrance into the Civil Service is 50 years of age for all persons other than firemen and policemen. In the latter two categories the maximum age is 35 years. It is undisputed that Dawson was 52 years of age at the time he was originally employed by the City.

Art. IV, Sec. 3 of the Civil Service ordinance provides that the Civil Service Commission “shall make provisions for open, competitive and free examinations for applicants meeting requirements as prescribed in rules and regulations of the Civil Service Commission.” This requirement was supplemented by Rule IX of the Personnel Rules which requires a written and oral examination. The record shows Dawson was given only a physical examination prior to his entering this employment. One of the few Texas cases dealing with City Civil Service ordinances other than those involving firemen and policemen is Holcombe v. Levy (Tex.Civ.App.) 301 S.W.2d 507 (refused n. r. e.). The question there was whether a corporation judge was a classified Civil Service employee protected against summary removal by the mayor. The court, in deciding the employee did not come under Civil Service, held, after citing many cases from other jurisdictions, that open, competitive and free examinations were the very heart of Civil Service; and that the fundamental principle of Civil Service is that appointments to City employment must be according to merit and fitness and this must be ascertained by competitive examinations. We are of the opinion the reasoning of the Holcombe case is sound and is applicable to the case before us.

In applying the basic rule of interpretation of statutes and ordinances, that is, to determine the intent of the City Commission in passing the Civil Service ordinance and approving the Personnel Rules, we are convinced the record does not establish that Dawson was a classified permanent employee of the City. We are of the opinion such requirements as open, competitive and free examinations, the maximum age of 50 years, and entry into a probationary period are mandatory. The fact Dawson was employed under the section dealing with “special assignments” and on a “seasonal” basis makes clearer the intention of those charged with administering the Civil Service program. We therefore conclude Dawson has totally failed to place himself under the Civil Service program and his employment was therefore properly terminated without cause by the department head. In our opinion no official action in this case was ever taken by the Civil Service Commission. Appellant’s first five points of error are therefore overruled.

Being convinced Dawson did not become a classified employee and therefore did not attain the status of a Civil Service employee, the other points of error become immaterial. A discussion of these points, which include the retroactive effect of the “seasonal” employment section of the Personnel Rules; the validity of the Civil Service Commission ruling; proper procedure for appealing from the commission’s action; and the question of the statute of limitations and laches, is deemed unnecessary.

Plaving examined all of the appellant’s points of error, we conclude no reversible error is presented. The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    ORKIN EXTERMINATING COMPANY, Inc., Appellant, v. John R. VEAL, Appellee.
    No. 16308.
    Court of Civil Appeals of Texas. Fort Worth.
    March 16, 1962.
    Rehearing Denied April 13, 1962.
    Carrington, Johnson & Stephens, James E. Coleman, Jr., and Gene L. McCoy, Dallas, for appellant.
    Rumph, Ivy & Karpenko and Evans J. Karpenko, Fort Worth, for appellee.
   MASSEY, Chief Justice.

Plaintiff Orkin Exterminating Company, Inc. was formerly the employer of defendant John R. Veal. Plaintiff discharged the defendant and he started in business with another doing the same kind of work he had been performing as plaintiff’s employee. By written covenant made a condition of employment defendant had agreed not to compete with plaintiff for a period of two years following termination of his employment, at certain stated locations. Plaintiff made demand upon defendant that he honor the obligation of his negative covenant and filed suit for injunction following defendant’s refusal.

Trial before the court upon the plaintiff’s right to permanent injunction resulted in a judgment denying any relief. The plaintiff appealed.

Judgment reversed. Cause remanded to the trial court for entry of judgment.

We believe to be enforceable by injunction any promise made by an employee, as a condition upon which his employer consents to employ him or maintain him in employment status, that he will not for himself or for others engage in a similar or competing business for a reasonable time after the termination of the employment and within a reasonable area. At least this is true where the public interest is not directly involved, nor where the promise exacted does not effect or form part of a plan to effect a monopoly. Restatement of the Law, Contracts, sec. 516 ■“Instances of Reasonable Restraints”, followed by Weatherford Oil Tool Company v. Campbell, 1960, 161 Tex. 310, 340 S.W.2d 950.

Evidence in the instant case indisputably establishes that the defendant consented to the negative covenant, in his agreement not to compete with plaintiff, upon the premise that there existed necessity as of such time for protection of the business or good will of such employer. Defendant had never engaged in business like unto that of the plaintiff, prior to the time plaintiff first employed him. It seems to us that since it was not even sought to be shown in the evidence that circumstances and conditions had so changed since the covenant was made that enforcement thereof had become unnecessary to the protection of the business or good will of such employer, the continuance of such necessity should be legally presumed. In any event it is conclusively established in the record that in some places, and particularly as applied to certain former customers and prospects of the plaintiff, the defendant’s competition with plaintiff is proving destructive to the good will built up by the latter. Nothing of record demonstrates that plaintiff’s hands are other than clean, and its plea was timely and proper to be heard by a court of equity.

It therefore was legally established by the record made in the trial court that plaintiff was entitled to its relief by way of injunction with the requisite that the writ be reasonably limited as to time and area.

It has been determined that although the territory or period stipulated by the parties may be unreasonable, a court of equity will nevertheless enforce the contract by granting an injunction restraining the ex-employee from competing for a time and within an area reasonable under the circumstances. See language of Judge Walker in Weatherford Oil Tool Company v. Campbell, 1960, 161 Tex. 310, 340 S.W.2d 950, 952, analyzing the state of the law since the cases of Lewis v. Krueger, Hutchinson and Overton Clinic, 153 Tex. 363, 269 S.W.2d 798, and Spinks v. Riebold, 1958 (Tex.Civ.App., El Paso), 310 S.W.2d 668.

The propriety of the time limitation of the covenant in the instant case is not a matter of question. What is a matter of question is the reasonableness of its limitation as to area. Actually, the evidence raised an issue upon the necessity of enforcement of the negative covenant for the protection of the business or good will of the plaintiff only as to Waco, Wichita Falls, Mineral Wells, Cleburne, Jacksboro, Fort Worth, and Decatur, in the State of Texas, and a radius of 25 miles of such towns. These places were among those contracted upon by the parties, the others so contracted upon having been shown as places where the defendant was not competing or threatening to compete, or where he had not worked during the latter part of his period of employment by plaintiff, nor had access to its list of customers. See Denny v. Roth, 1956 (Tex.Civ.App., Galveston), 296 S.W.2d 944, error refused. Plaintiff concedes before this court that it could be entitled to relief sought only in the cities listed above, and the radius of 25 miles around them.

We believe that determination upon the matter of the area in which the injunction should be made effective involves judicial discretion to be exercised by the trial court upon findings and conclusions to be made.

In view of what we have said the judgment will be reversed. The cause is remanded to the trial court for entry of a judgment awarding writ of injunction in behalf of plaintiff and against the defendant for the remaining period of the parties’ contract of restrictive covenant, limited to such area as the trial court shall deem proper (under the evidence already heard) and as the court in its discretion shall deem necessary for the protection of the business or good will of the plaintiff.


text:
    Russell CHERRY, Appellant, v. Simon Trevino SALINAS, Appellee.
    No. 13885.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1962.
    Rehearing Denied March 7, 1962.
    Fred C. Reeder, Corpus Christi, for appellant.
    Perkins, Floyd, Davis & Oden, Alice, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by Russell Cherry, against Simon Trevino Salinas, since deceased, seeking to enforce an alleged parol agreement to execute an oil and gas lease upon lands owned by Salinas, and in the alternative for damages for the breach of the alleged parol agreement. There was also an alternate plea to recover the consideration paid, but this part of the lawsuit was severed from the other issues in the case and is not here-involved.

The trial court, after sustaining exceptions to the petition, rendered a summary judgment in favor of Salinas, and Russell Cherry has prosecuted this appeal.

The appeal presents but one question, that is, can a parol agreement to execute an oil and gas lease be enforced, either by specific performance or by the collection of damages for its breach ?

Appellant contends that he made an oral agreement with Salinas that Salinas would execute an oil and gas lease upon certain valuable land owned by him, place it in escrow with a named bank, and if appellant later paid to the bank as a cash bonus the sum of $178,620.00, within thirty days, the lease was to be delivered to appellant, if he failed to pay such sum the lease would be returned to appellee. Salinas was suffering with impaired eyesight, to the extent that he was virtually blind. On or about April 6, 1960, appellee made an offer to appellant that if he would make all arrangements necessary to have appellee taken to Savannah, Georgia, and examined and treated by J. Harry Duncan, a prominent physician and eye specialist, appellee would execute the above mentioned lease and place it in escrow as above stated. Appellant did take appellee to Savannah, Georgia, he was treated by Dr. Duncan, and his eyesight was greatly improved, but he thereafter refused to execute the lease. Appellant further alleged that appellee agreed that he would not plead the provisions of Art. 3995, Vernon’s Ann. Civ. Stats., known as the statute of frauds, providing in Section 4 thereof, that no action shall be brought in any court “Upon any contract for the sale of real estate or the lease thereof for a longer term than one year,” unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized.

The facts as plead by appellant clearly show that this was a suit based upon an oral contract to convey real estate, and one that cannot be enforced in the courts of this State. Taber v. Pettus Oil & Refining Co., 139 Tex. 395, 162 S.W.2d 959, 141 A.L.R. 808; Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216.

The allegations as to appellant’s taking appellee to Savannah, Georgia, to an eye specialist and paying the expenses are nothing more than a plea that the consideration for the oral contract had been paid. Hooks v. Bridgewater, supra.

To make an oral agreement to convey real estate these things are essential: payment of consideration, delivery of possession, and the making of improvements on the land by the vendee in good faith. Here we have only the payment of the consideration. Hooks v. Bridgewater, supra.

Appellant contends that for the ap-pellee to accept his service and to make expenditures of his money, and then to .refuse to carry out the oral contract constitutes a fraud upon him. The authorities are to- the contrary. Hooks v. Bridgewater, supra; Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624, 118 A.L.R. 1505.

The statute of frauds applies to oral contracts to execute oil and gas leases. Hoover v. Wukasch, 152 Tex. 111, 254 S.W.2d 507; Taber v. Pettus Oil & Refining Co., 139 Tex. 395, 162 S.W.2d 959, 141 A.L.R. 808.

The letter written by one Joe Garcia to appellant after this suit was filed, was not a sufficient memorandum in writing to remove the oral agreement from the application of the statute of frauds. Taber v. Pettus Oil & Refining Co., supra.

A provision of the oral agreement not to plead the statute of frauds, Art. 3995, § 4, supra, is just as unenforcible as any other provision contained in the oral agreement. A contract which violates the statute of frauds will not support an action for damages. Taber v. Pettus Oil & Refining Co., supra.

The trial court did not err in granting a summary judgment that appellant take nothing, and the judgment is affirmed.