author: CHÁRMAN, Justice.

text:
    SECURITY NATIONAL INSURANCE COMPANY, Appellant, v. Blanche CRISP, Appellee.
    No. 7087.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 9, 1961.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellant.
    R. S. Sutton, Amarillo, for appellee.
   CHÁRMAN, Justice.

This is an appeal from a judgment rendered by the court below upon a fire insurance policy issued by appellant through its agent, Howard Williams, covering the household goods in appellee’s home at 1018 N. Hughes in the city of Amarillo. Trial was to the court without a jury and resulted in a judgment for appellee in the sum of $5,310 with 6% interest per annum from the date of denial of liability.

The litigation concerning the fire insurance covering the house has been previously disposed of by this court and is reported in Tex.Civ.App., 346 S.W.2d 364 as Anchor Casualty Company v. Crisp. The policies concerning notice of cancellation contain exactly the same language and have the “giving” provision as distinguished from the “mailing” provision. Our Anchor Casualty Company case quoted the provision and we believe properly disposed of the question of whether or not the insurance policy was in fact cancelled in accordance with the provisions of the policy. Neither a motion for rehearing nor an application for writ was made in that case.

This case will have to be reversed for other reasons but in the event of another trial, if the facts are the same on the cancellation question, we would feel compelled to follow the law announced in the Anchor Casualty Co. case.

This case must be reversed because there is insufficient evidence to sustain the amount of damages assessed by the court, probably due to an oversight on the part of both appellee’s counsel and the court.

If we understand appellee’s testimony, either she or the insurance agent, or the two, working together made a list of the household furnishings, etc. in a book at the time of the purchase of the policy. That book was referred to a number of times throughout the testimony as Exhibit 4 and on at least two occasions the record shows that the court reminded counsel the identified exhibit had not been introduced. We have searched the record very carefully from beginning to end and have determined without question that there simply is not sufficient testimony introduced into the record from which the court could have arrived at the figure he assessed as damages. Obviously he was under the impression that the Exhibit 4 had been introduced into the evidence, or the separate items testified about, when he made his findings on damages. Nevertheless, it is not in the record and there is not sufficient evidence without it to sustain the trial court. Accordingly the judgment is reversed and remanded from another trial.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    LEGAL SECURITY LIFE INSURANCE COMPANY, Appellant, v. John GILCREASE, Appellee.
    No. 3906.
    Court of Civil Appeals of Texas. Waco.
    Oct. 12, 1961.

      Douglas E. Bergman, John W. Hicks, Jr., Dallas, for appellant.
    J. T. Maroney, Jr., Lufkin, for appellee.
   McDONALD, Chief Justice.

Plaintiff- sued defendant Insurance Company to recqver benefits under a hospitalization and surgical indemnity insurance policy, for expenses of hospital confinement and hysterectomy surgery operation of plaintiff’s wife.

Trial was before the court without a jury, which after hearing rendered judgment for' plaintiff for $533.32.

Defendant Insurance Company appeals, contending that the Trial Court erred in rendering judgment for plaintiff, for the reason that the claim of plaintiff was based on an illness that came within the exclusions and limitations of the policy.

The proof showed that plaintiff made written application for an insurance policy with defendant company. During the discussion with defendant’s agent, it developed that there were certain waiting periods set up in the policy which rendered the policy ineffective for certain periods after it was taken out. The agent told plaintiff that for an additional premium he could effect a waiver of such waiting periods. Plaintiff paid the additionally required premium and the agent wrote on the face of the application, "waiver of waiting period”. Thereafter, defendant issued plaintiff the policy sued on. Such policy contained in the insuring clause the following:

“(b) (The Company will pay for expenses) resulting from sickness the cause of which originates while this policy is in force and more than 15 days after the date hereof, hereinafter referred to as such sickness (except that sickness resulting in surgery shall be covered only if the cause hereof originates more than 6 months after the effective date of the policy).”

The Insurance policy further provided:

“Limitations and Exclusions
* * * (3) loss or disability incident to which any of the organs not common to both sexes are treated, removed, or repaired shall be covered only if the cause thereof originates after this policy has been in continuous force for the preceding 10 months * * *»

Such policy further had a “Rider” attached which provided as follows :

“It is understood and agreed, in consideration of an extra premium, that the 15 day and 6 months’ waiting periods, outlined in Section (b) of the insurance clause, are hereby waived and this policy shall be in benefit for sickness from the effective date hereof, provided such sickness has its origin after the effective date of the policy. In no event does this policy cover pre-existing disabilities, and this supplement does not otherwise waive, extend, or change any of the terms, conditions, limitations or exclusions of this policy except as herein stated.”

It is obvious from the foregoing that the Rider waived the 15 day and 6 months’ waiting periods provided for in Section (b) of the insuring clause, but in no manner affected the limitations and exclusions provision that the policy must be in effect for 10 months before loss or disability arising from organs not common to both sexes is involved. At the trial the parties stipulated that the surgical operation performed on plaintiff’s wife was the result of an affliction of an organ not common to both sexes.

Plaintiff testified that the defendant Insurance Company’s agent assured him that all waiting periods would be waived and insists that the notation on the application "waiver of waiting period” establishes that it was in fact the contract of the parties that there be no waiting periods.

We cannot agree with plaintiff’s contentions. The “Limitations and Exclusions (3)” is clear and unambiguous that for benefits to accrue as the result of loss or disability involving organs not common to both sexes, that the policy must have been in continuous force for 10 months. The parties agree that plaintiff’s wife’s disability falls in this category. There was no “waiver” or “rider waiver” covering this provision.

The language used being plain and unambiguous, the contract of insurance must be enforced as made. Home Ins. Co. v. Rose, 152 Tex. 222, 255 S.W.2d 861; Preferred Life Ins. Co. v. Holland, Tex.Civ.App., 280 S.W.2d 648 (n. w. h.); Helm v. Reserve Life Ins. Co., Tex.Civ.App., 230 S.W.2d 566 (n. w. h.); United Am. Ins. Co. v. Pittillo, Tex.Civ.App., 308 S.W.2d 241, 245 (n. w. h.). In the Pittillo case, supra, this court in an almost identical factual situation as the instant case, said:

“It is indeed regrettable that the insured did not obtain in this policy the coverage that he believed he was paying for, but since the evidence is without dispute that appellee failed to bring himself within the limitation and exclusion clause of the policy, he cannot recover, * * * ”,

It follows that defendant Insurance Company’s point and contention is sustained, and the judgment of the Trial Court is reversed and judgment is here rendered that plaintiff take nothing. Reversed and rendered.


author: FANNING, Justice.

text:
    J. C. CHAVIS, Sr., Appellant, v. Jennie KING, Appellee.
    No. 7353.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 7, 1961.

      Eldred Smith, Longview, for appellant.
    Alvin G. Khoury, R. L. Whitehead, Long-view, for appellee.
   FANNING, Justice.

Jennie King, plaintiff-appellee, recovered judgment against defendant-appellant J. C. Chavis, Sr., for fire damages to her house, loss of use thereof, and to her personal property, in the amount of $9,373.50, occasioned by the alleged negligence of defendant-appellant.

Trial was to a jury. Certain stipulations with respect to $7,741 damages to plaintiff’s house were made. Certain special issues were submitted to the jury. Liability issues were answered in favor of plaintiff-appellee and' against defendant-appellant, both on plaintiff-appellee’s suit and on defendant-appellant’s cross-action. (Another defendant, Bruce King, was acquitted of liability by the answers of the jury and a take nothing judgment was rendered in favor of him and he is not involved on this appeal). The jury also answered four damage issues, 5, 6, 7, and 8, favorably to plaintiff with respect to damages to plaintiff’s wearing apparel, household furniture, repairs and renovation of household equipment and loss of use of her home, with the answers to these four issues aggregating the total sum of $1,637.50. No issue with respect to damages to plaintiff’s house was submitted. The trial court, stating in its judgment in part as follows: “Based on the findings of the jury as shown by their answers to the foregoing special issues and all of the evidence in this cause * * * ”, (emphasis added) rendered judgment in favor of plaintiff-appellee against defendant-appellant in the total sum of $9,373.50.

Appellant presents two points on appeal as follows:

“(1.)
“The Court erred in overruling appellant’s Motion for a new trial. Germane to Assignments No. 1, No. 3, and No. 4.
“(2.)
“The Court erred in overruling appellant’s Motion for a new trial. Germane to Assignments No. 2, and No. 3.”

The above quoted points are general and multifarious. See Carmichael v. Williams, Tex.Civ.App., 286 S.W.2d 456 and authorities therein cited. However under the doctrine of Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, we have examined the statements and arguments presented under appellant’s points in order to determine the matters complained of by appellant. We have also examined the assignments of error referred to by appellant in his points. Appellant’s motion for new trial contained four assignments of error which read as follows:

“1.
“The Court erred in entering its judgment in the amount of $9,373.50 in that there is no issue that would support such amount in that the only damage issue requested by the plaintiff and submitted by the Court is Special Issue No. 5, 6, 7, and 8, and that the combined total found by the jury as represented in issues 5, 6, 7, and 8 is $1,637.50.
“2.
“The Court erred in entering its judgment in the amount of $9,373.50 in that there is no evidence that will support such judgment in said amount, but that the only issues before the Court in such cause that will support a judgment is set forth in Special Issues No. 5, 6, 7 and 8 and the combined total found by such issues is $1,637.50.
“3.
“The Court erred in entering its judgment in the amount of $9,373.50 instead of entering its judgment in the amount of $1,637.50 for there is no finding of fact by the Court to support a judgment for more thai $1,637.50.
“4.
“The judgment entered herein is contrary to the evidence before the Court in that there is no issue of damages, of negligence, and proximate cause that will support the Court’s judgment for $9,373.50 in that the only issues requested by plaintiff and submitted by the Court as to damages are Special Issues No. 5, 6, 7 and 8, therefore such judgment entered is contrary to the law and evidence governing this cause of action.”

As we understand appellant’s brief his primary contentions are the matters complained of by his four assignments of error in his motion for new trial above quoted.

The parties made the following stipulation in open court:

“Mr. Whitehead: It is stipulated by and between the Plaintiff and the Defendants, that the reasonable cost of repairing the Plaintiff’s structure in Longview, Gregg County, Texas, at the time the repairs were made was the sum of $7,741.00. Is that correct, Mr. Smith?
“Mr. Smith: Whatever is in the petition, whatever that might be. $7,-741.00.”

Paragraph 5 of plaintiff’s second amended petition reads as follows:

“That as a result of the damage done to Plaintiff’s residence by said fire and in order to restore Plaintiff’s residence to the condition that it was in immediately prior to the fire, repairs to such residence in the amount of Seven Thousand Seven Hundred Forty-One and No/100 ($7,741.00) Dollars, were required, which amount was the usual and customary charge for such repairs in Longview, Gregg County, Texas, at the time said repairs were made, to Plaintiff’s damage in the amount of Seven Thousand Seven Plundred Forty-one and No/100 ($7,741.00) Dollars.”

Appellant levelled no special exceptions of any character to paragraph 5, supra.

The Statement of Facts also shows the following matters when appellee was being interrogated by appellant’s attorney of record, to wit:

“Q. Well, then, do I follow you? What you are saying is that you had only one repairman or received one estimate for repairs or replacement on all of the items ? A. Now, we’re talking about the household items?
“Q. Household or— A. Now, the building, I did have.
“Q. Well, we have already conclusively settled the damages on the building. A. All right.
“Q. That was stipulated to.” (Emphasis added)

Considering the stipulation above referred to, in the light of the record as a whole in this cause, it is our view that the elements of damages to appellee’s house in the sum of $7,741 were agreed to and undisputed. Consequently there was no necessity to submit any issue to the jury on this matter.

Finding no reversible error in the record the judgment of the trial court is affirmed.

Affirmed.


author: TIREY, Justice.

text:
    Hubbard L. HARDIN, Appellant, v. Ann C. HARDIN, Appellee.
    No. 3919.
    Court of Civil Appeals of Texas. Waco.
    Nov. 2, 1961.
    See also 344 S.W.2d 152.
    Sample & Walker, Beaumont, for appellant.
    Guy H. Carriker, Nederland, for appel-lee.
   TIREY, Justice.

This is an appeal from a judgment granting the wife a divorce. The decree found that Ann C. Hardin is a fit and proper person for the care and custody of four minor children, and further found that defendant, Hubbard L. Hardin, the father of the children, pay the sum of $56 per week beginning March 20, 1959, and a like sum payable each week thereafter. The order provided that the payments be made to the Jefferson County Child Support Office at Beaumont, Texas. The judgment recites that the cause was heard on March 13, 1959, and it was entered Nunc Pro Tunc on the 30th day of September 1960. Defendant duly perfected his appeal.

Appellant has assailed the judgment on what he designates 11 points. The 11th point is that the Court erred “in entering judgment Nunc Pro Tunc September 26, 1960, because no evidence was taken as to the nature or the terms of the judgment rendered, and there was no pleadings to support said judgment.”

We have carefully reviewed the statement of facts and we find there is no merit in this contention.

The other errors assail in a different manner the judgment of the court with reference to fixing support payments for the minor children, and we find no merit in any of these contentions.

Our view of the record is that the trial court heard the testimony for divorce and granted it, and fixed the support orders for the children, and we do not believe that he abused his discretion in so doing, and each of appellant’s Points is overruled.

Finding no reversible error in this cause, the judgment of the trial court is affirmed.


author: COLLINGS, Justice.

text:
    CITY OF SAN ANTONIO et al., Appellants, v. Jack POPE et al., Appellees.
    No. 3652.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 27, 1961.
    Carlos C. Cadena, City Atty., H. Kyle Seale, San Antonio, for appellant.
    Adrian A. Spears, San Antonio, for ap-pellee.
   COLLINGS, Justice.

This is a zoning case. An ordinance of the City of San Antonio changing the zone of Lot 2, New City Block 11,635, within said city from “A”, residence district, to “F”, local retail district, was attacked by plaintiffs, Jack Pope and others, as null and void. Motions for summary judgment were filed by plaintiffs and by defendant City and H. Kyle Seale. The trial court held that the ordinance was void, and overruled both defendants’ motions for summary judgment. The court granted plaintiffs’ motion for summary judgment and permanently enjoined the City of San Antonio from issuing any permit for building on said premises under or by virtue of said ordinance, and enjoined defendant H. Kyle Seale from erecting or using any building on said premises under or by virtue of said ordinance. The defendants have appealed.

On June 27, 1958, appellant, H. Kyle Seale, filed an application with the City Planning Commission of San Antonio seeking a zoning change upon a 2.197 acre tract of land located in the city belonging to him. After notice and hearing the Planning Commission recommended the requested zoning change and thereafter the city council of San Antonio, after hearing, approved the recommendation and enacted zoning ordinance number 27,126 which is the subject matter of this suit. Appellees’ motion for summary judgment, which was sustained, was predicated upon the proposition that proper administrative procedures concerning notice and hearing were not followed.

Appellants urge points of error contending (1) that the court erred in holding the ordinance null and void because hearings by the Planning Commission were conducted in compliance with the provisions of Article lOllf, Vernon’s Ann.Tex.Civ.St., and applicable city ordinances, and that in any event (2) the ordinance was passed by the city council at a duly advertised public hearing after substantial evidence had been presented, and if any procedural errors existed in the hearings and deliberations before the planning commission, they could not vitiate the action of the city council because the recommendations of the planning commission are not a necessary prerequisite to the passage of a valid amendatory zoning ordinance.

The application by appellant H. Kyle Seale for rezoning and pertinent data in connection therewith was supplied upon a form furnished by the planning- department of the City of San Antonio. On July 24, 1958, written notices to property owners within 200 feet of lot 2, New City Block 11,-635, calling for a public hearing before the planning commission and announcing that the request for change of zoning was to be heard August 6, 1958, were mailed by members of the planning commission department. A public hearing was held on August 6, 1958, and, upon request of H. Kyle Seale, an indefinite continuance was granted pending the presentation to the commission of the planned definite use of the property. Mrs. Lloyd Seiler, one of appellees, appeared at the hearing on August 6, 1958. On August 29, 1958, an application involving the same property was resubmitted on a separate form. In this application the same rezoning was sought but the applicant indicated an intention to construct a major first class motel on the property. On September 2, 1958, written notices were sent calling for a hearing before the Planning Commission on September 17, 1958. On September 17, 1958, appellee Mrs. Seiler appeared and objected to the proposed zoning. At such hearing the commission questioned sewer facilities and the matter of adequate parking and indicated that a study should be made by the planning department of the city, taking into consideration the applications filed by property owners to the East. Action was postponed to give the planning department opportunity to study the question and to give the applicant Seale the opportunity to bring new sketches pertaining to his property and to the number of motel units it would accommodate. At that time no definite date was set for another hearing.

On October 1, 1958, without further written notice to appellees the planning commission again considered the question of rezoning such property. Requested information, however, was not complete and action was delayed until October 8, 1958. On October 8, 1958, without written notice to ap-pellees the planning commission further considered the application for rezoning and at that time recommended to the city council that the property involved be rezoned as requested. The minutes of the meeting on October 8th, indicate that the matter was “a continued case”, but also show that appellant Seale was present and presented additional matters material to the question as to whether the proposed zoning changes should be made. Neither of appellees appeared before the planning commission at either the October 1st or October 8th hearing, nor were they advised as to any of the matters then presented to the commission.

Appellants’ first and second points are overruled. Contrary to appellants’ contention, all hearings before the planning commission were not conducted in compliance with the provisions in Art. lOllf, V.A. T.C.S. and applicable city ordinances. The material portion of the statute provides as follows:

Article 1011 f:

“In order to avail itself of the powers conferred by this Act, such legislative body shall appoint a commission, to be known as the Zoning Commission, to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. Such commission shall make a preliminary report and hold public hearings therecm before submitting its final report, and such legislative body shall not hold its public hearings or take action until it has received the final report of such commission. Where a city plan commission already exists, it may be appointed as the Zoning Commission. Written notice of all public hearings before the Zoning Commission on proposed changes in classification shall be sent to owners of real property lying within two hundred (200) feet of the property on which the change in classification is proposed, such notice to be given, not less than ten (10) days before the date set for hearing, to all such owners who have rendered their said property for city taxes as the ownership appears on the last approved city tax roll. Such notice may be served by depositing the same, properly addressed and postage paid, in the city post office.” (Emphasis supplied.)

Included in the zoning ordinances of the City of San Antonio are the following provisions :

Section 64-8:

“The City Commissioners may from time to time amend, supplement or change by ordinance, the boundaries of the districts or the regulations herein established. Before taking action on any proposed amendment, stipplement ■or change, the City Commissioners shall submit the same to the Zoning ■Commission for its recommendation .and report.” (Emphasis supplied.)

.Section 64 — 8.1:

“When an application is filed for change of zoning district boundaries ■or for any change of zoning ordinance •or regulations, such application shall be accompanied by two separate fees in the amounts of $20.00 and $25.00 re.spectively. * * * The said $25.00 fee shall be forwarded to the Collector •of Licenses and Dues upon the approval of said application at a public hearing; * * * No notice of any such application shall issue and no hearing shall be had before either the Planning Commission or the City Council until said prescribed fees are paid.” (Emphasis supplied.)

Section 64-10:

“Unless such proposed amendment, supplement or change has been approved by the Zoning Commission, * * * such amendment shall not become effective except by a four-fifths (34) vote of the City Commissioners.”

Section 64 — 18:

“No regulation, restriction or boundary of new territory shall become effective until after a public hearing in relation thereto, at which time parties in interest and citizens shall have an opportunity to be heard.” (Emphasis supplied.)

Section 64-19:

“At least fifteen (15) days notice of the time and place of such hearing shall be ptiblished in the official advertising medium of the City.” (Emphasis supplied.)

Section 64-20:

“Regulations, restrictions and boundaries of any territory may from time to time be amended, supplemented, changed, modified or repealed. In case of a protest against such change, signed by the owners of twenty percent (20%) or more, either of the area of the lots included in such proposed change, or of those immediately adjacent in the rear thereof, extending two hundred (200) feet therefrom or of those directly opposite thereto, extending two hundred (200) feet from the street frontage of such opposite lots, such amendment shall not become effective except by the favorable vote of four-fifths (34) of all the members of the Board of Commissioners. The provisions of the previous sections relative to public hearings and official notice shall apply equally to all changes or amendments.” (Emphasis supplied.)

Several hearings were held by the Planning Commission. Hearings were held on August 6, 1958 and September 17, 1958. Written notices were sent calling for such hearings. Other hearings were held on October 1st and October 8th, 1958. , No written notices were given of these hearings. Art. 101 If, supra., provides for “written notice of all public hearings before the Zoning Commission.” (Emphasis ours.) The city ordinances also provided for notice of public hearings. No hearing or final report by the Zoning or Planning Commission is valid in the absence of such notice or the presence of interested parties.

Both Ai-t. 101'lf and the San Antonio City ordinance provide for a report or recommendation by the Planning Commission after public hearing prior to and as a prerequisite to any hearing or action by the city council. The city council it not bound by the recommendation of the Planning Commission but contrary to appellants’ contention a final report by such commission is a prerequisite to final action by the city council. The failure to give notice of hearings before the Planning Commission rendered the purported ordinance invalid and of ho force and effect. Tonroy v. City of Lubbock, Tex.Civ.App., 242 S.W.2d 816, N.R.E.; City of Amarillo v. Wagner, Tex.Civ.App., 326 S.W.2d 863, N.R.E.; 1 Tex. Jur.2d 666.

Appellants particularly urge the case of Clesi v. Northwest Dallas Improvement Ass’n, Tex.Civ.App., 263 S.W.2d 820, 829, N.R.E. as authority in support of their contention that any lack of notice of hearings before the Planning Commission is not material because under Arts. 1011a through 101 lj the city council had power to rezone the property without any hearing by or report from the Planning Commission. In our opinion the holdings in the Clesi case does not support appellant’s contention. In that case there was no question concerning notice. It was undisputed that there was a hearing before the Planning Commission on the question of a change in zoning. The effect of the holding was that the city council had authority to amend the zoning ordinance, which amendment granted a special permit applicable to the involved properties even though the property owners had petitioned for a general rezoning and had not asked for a special permit. The court held “any proposed amendment to the zoning ordinance is but a recommendation to the City Plan Commission, which recommendation the council can adopt, reject or revise, and enact such regulations as may be deemed proper”. (Emphasis ours.)

Meetings of the Planning Commission on August 1st and August 8th, 1958 were not as appellants contend, executive sessions to determine what action should be taken upon the basis of evidence which had already been submitted. Other evidence was at that time received and considered by the Commission. Such meetings were hearings of which appellees should have had notice. Evidence was' heard out of the presence of appellees at hearings of which they had no notice. The failure of the Planning Commission to give notice, as required by the statutes and city ordinances, rendered invalid the proceedings and decisions of such commission, as well as the subsequent proceedings and action of the city council.

For the reasons stated the court properly granted appellees’ motion for summary judgment. Other points presented by appellants are rendered immaterial.

The judgment is affirmed.


author: PER CURIAM.

text:
    Virgilio H. GUERRA et al., Appellants, v. Mario E. RAMIREZ et al., Appellees.
    No. 13894.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 27, 1961.
    Rehearing Denied Nov. 29, 1961.

      Hill, King, McKeithan & Reynolds, Mis-sion, Arnulfo Guerra, Roma, Gerald Weath-erly, Laredo, for appellants.
    L. Hamilton Lowe, Austin, A. J. Vale, Glenn H. Ramey, F. R. Nye, Jr., Emilio Gutierrez, Pope & Pope, Rio Grande City, for appellees.
   PER CURIAM.

This is an election contest growing out of a school trustee election held by Roma Independent School District in Starr County, Texas, on April 1, 1961. Virgilio H. Guerra, Lucio Gonzalez, Alonzo Alvarez, and Erasmo Z. Perez, known as the old party candidates, were declared to have been elected by the election officials, and Mario E. Ramirez, Cesar Salinas, Mrs. Maxine C. Guerra, and R. T. Gonzalez, known as the new party candidates, were -declared to have been defeated. There were eight names on the official ballot, with only four to be elected. Some 1950 votes were cast in the election. Of these, about 1,250 were present voters and about 700 were absentee voters.

The present voters taken alone gave the old party candidates a majority of about 800 to 400, while the absentee votes taken alone gave the contestants a majority of approximately 620 to 80. Thus it will be. seen that the absentee votes were overwhelmingly for the new party candidates. About 216 absentee votes were challenged by Arnulfo Guerra, as challenger for the old party, and all of these challenges were sustained by the election judge. Francisco Hinojosa was the challenger for the new party and made only a few challenges, all of which were overruled.

After the rejection of some 200 absentee ballots cast for the new party candidates, the election officials declared the candidates of the old party elected by the following votes:

Old Party Candidates New Party Candidates
Virgilio H. Guerra 936 votes Mario E. Ramirez 850 votes
Lucio Gonzalez 918 “ Cesar Salinas 853 “
Alonzo Alvarez 890 “ Mrs. Maxine C. Guerra 836 “
Erasmo Z. Perez 896 “ R. T. Gonzalez 829 “

Thus it will be seen that the new party-candidates were defeated by a margin of about 37 votes to 107 votes, after some 200 challenges were sustained.

The new party candidates contested the election, and after hearing evidence the trial court ruled that 192 persons listed in the contestants’ petition whose votes had been rejected were qualified voters. He eliminated three votes for contestees on the ground that the persons casting these votes were convicts. Pie then held that the absentee votes marked "mutilated” and rejected by the election officials, were valid and should be counted. This resulted in a gain of 13 votes for contestants.

The trial court also opened the stub box, collected all stubs which had not been signed, and eliminated the ballots corresponding to these stubs. Contestees thereby-lost twenty votes and contestants three votes, resulting in a net loss for contestants of 17 votes. Of the absentee ballots held invalid by the trial judge, 190 were cast for contestants, and some seven cast for con-testees. The trial court declared the contestants elected and the contestees defeated by the following votes:

Conf-estees Contestants
R. T. Gonzales 1033 Alvarez CO M w
M. Guerra 1037 L. Gonzalez CO VO o
Ramirez 1054 V. Guerra VO m CO
Salinas 1057 Perez CO M O

The first question to be decided is whether the burden of proof was on the contestants to show by the evidence that the ballots rejected by the election officials were in truth and in fact those of voters qualified in every respect, or whether they were only required to prove that the grounds on which the ballots were allegedly rejected did not exist.

The general rule, universally followed, is that when election officials have rejected the ballot of a voter, such voter is presumed to be an illegal voter, and the burden of proof is upon the party wishing to have that ballot counted to show by clear and satisfactory proof that such voter was a legally qualified voter in every respect. Pippin v. Holland, Tex.Civ.App., 146 S.W. 2d 266; Barker v. Wilson, Tex.Civ.App., 205 S.W. 543; Kempen v. Bruns, Tex.Civ.App., 195 S.W. 643 ; 21 Tex.Jur.2d, Elections, p. 446, § 179. The same rule applies whether the ballots are cast by present voters or by absentee voters. Solis v. Martinez, Tex.Civ.App., 264 S.W.2d 956.

Appellees, while conceding that the general rule is that election judges are presumed to have done their duty, and therefore their action in rejecting votes should be upheld, unless those wishing to have such rejected votes counted show at least prima faciely that such votes were legal votes, contend that in this case the rule should be reversed, because Raul Gonzalez, who acted as presiding judge of the election, was disqualified to so act, as.d demonstrated that he was not fair and impartial, but biased, prejudiced and very much of a partisan in favor of the old party candidates.

In this connection, appellees point out that under the provisions of Art. 3.04, Texas Election Code, V.A.T.S., Raul Gonzalez was disqualified to act as such presiding judge because he had served as a member of the Board of Trustees of the Roma Independent School District up until two days before the election. He was neither duly appointed or elected, but merely appeared, and upon the suggestion of J. C. Guerra, volunteered to serve. Appellees-further contend that he demonstrated his bias, prejudice and unfairness when he had first sustained a challenge made by Arnulfo Guerra, challenger for the old party, as to two absentee votes, but when someone present said “they are ours” he reversed his ruling and Guerra withdrew his challenge; then, when Hinojosa, challenger for the new party, made the same challenge that had been made by Guerra, he promptly overruled it. They further point out that he sustained about 200 challenges to absentee votes made by Guerra without any sworn evidence to support such challenges.

Appellees have cited no authorities sustaining their contention to the effect that where it is shown that the presiding judge of an election is disqualified, not properly elected or appointed, prejudiced, biased and an unfair partisan, as above stated, the presumption should not be that he has done his duty in passing upon challenges to votes, but should be to the contrary. The case of Meriwether v. Stanfield, Tex.Civ.App., 196 S.W.2d 704, cited by appellees, goes no further than to hold that where it is shown that a presiding judge of an election is a strong partisan in favor of one side; that he has wagered money that a certain candidate will win, and that he alone read all the ballots and no one checked his reading thereof, the trial judge is justified in opening the ballot boxes and recounting the ballots. That case would not justify our holding here that the rule which assumes that election officials have done their duty, be disregarded and that rejected ballots should be counted, without evidence being offered by the contestants that they were cast by voters who were in every respect qualified to vote in the election.

It is plain that before the appellees here would be entitled to have a vote counted in their behalf, which had been rejected by the election officials, the burden would be upon them to show, by clear and convincing evidence, that the voters who cast such rejected ballots were qualified voters in every respect. This is true not only of the ballots marked “rejected”, but also of those marked “mutilated”. This the ap-pellees have failed to do, with the possible exception of about seven absentee votes. The trial judge rejected three votes that had been cast for appellants because each voter had allegedly been convicted of a felony. The evidence is not sufficient to show that these three votes were cast by the particular person who had been convicted of a felony, and, therefore, these three votes should be restored to appellants.

The trial court did not err in rejecting the ballots corresponding to unsigned stubs found in the stub box. Vicars v. Stokely, Tex.Civ.App., 296 S.W.2d 599. The evidence in a number of instances shows affirmatively that the election officials correctly rejected many of the absentee ballots. The provisions of Article 5.05 Election Code, as amended by Acts of 1959, c. 483, V.A.T.S., require that an absentee voter must detach the stub from his ballot, then fold the ballot and place it in the envelope marked for the ballot and seal the envelope, and after signing the stub must place the ballot envelope and the stub in the carrier envelope, and then seal the carrier envelope and sign the affidavit on that envelope.

When the time has arrived for the election officials to cast the absentee ballots, they are required, among other things to check the signature on the application against the signature to the affidavit, and if they correspond, to open the carrier envelope and place the stub in the stub box and the ballot envelope in the ballot box without opening it. Here, in a great number of instances the voter placed both the ballot and the stub in the envelope intended only for the ballot, then sealed that ballot envelope and placed it in the carrier envelope. When the election officials opened the carrier envelope they found no stub, and therefore they had no right to cast the ballot by placing it in the ballot box. They would not have the right to open the ballot envelope and there search for the stub before placing it in the ballot box. The election officials cannot lawfully cast an absentee ballot where no stub is found in the carrier envelope. Art. 5.05, Subdivision 6, Texas Election Code, as amended by Acts 1959, 56th Legislature, p. 1055, ch. 483, § 1.

The County Clerk undoubtedly confused the provision of the Election Code providing, in effect, that a county clerk could receive absentee ballots up until 1:00 p. m. of the day of the election in countywide elections, as provided in Art. 5.05, Subdivision 5, Texas Election Code, supra, with the provisions of Subdivision 7 of the same article, providing, in effect, that in elections less than county-wide the county clerk will not receive absentee ballots after 8 a. m. of the second day prior to such election as valid ballots. The County Clerk testified that he received ballots up until 1:00 p. m. on election day and delivered them to the presiding election judge as valid ballots, notwithstanding this was less than a county-wide election. This cast a cloud on all of the absentee votes and before any of the rejected ballots could be counted, the party attempting to have them counted, in addition to showing that they were cast by voters who were legally qualified in every respect, would have the further burden of showing that such ballots were received in the office of the county clerk on or before 8 a. m. on the second day before the election. This was not done with respect to any of the rejected ballots.

While the appellees were still offering evidence, and before they had introduced any evidence concerning sixty rejected ballots, the trial court stated, in effect, that the burden of proof had shifted, and he was going to restore 192 rejected absentee ballots cast for appellees, unless contestees came up with testimony showing that they should not be restored. In this he erred.

It further appears that the case was tried upon the theory that all that was required of contestants was to show that the ground of challenge made by Guerra was not a valid ground of challenge, while the law requires that before a rejected absentee ballot can be restored and counted, the evidence must clearly show that it was cast by a voter who was fully qualified in every respect. Solis v. Martinez, supra.

Inasmuch as the case was tried upon a wrong theory and was not fully developed, the judgment will be reversed and the contest remanded for a new trial.

Reversed and remanded.

On Motions for Rehearing.

We are of the opinion that we were in error in stating, in our original opinion, that the trial court erred in not requiring further proof with reference to the ballots marked “Mutilated". The record shows that the presiding judge of the election, Raul Gonzalez, identified those ballots and testified that the ballots marked “Mutilated” were ballots regularly cast at the election, and each had a number on it. Presumably there was a corresponding stub number in the stub box for each of these ballots. No one seemed to question this matter. He further testified that the only reason he rejected these ballots and refused to count them was that he considered them “Mutilated Ballots”, and that they were marked in such a manner that he was unable to determine the intention of the voters, or they were torn and thereby mutilated, in his opinion. This evidence was sufficient to justify the trial court in counting such of these ballots as were marked in a manner to indicate the intention of the voter. This does not change our former judgment reversing and remanding this cause.

Appellees raise the further question that we should have upheld the trial court’s action in counting the absentee ballots where the stub and the ballot were both placed in the envelope intended only for the ballot. Appellees contend that while it would have been a violation of the law for the election judge to have opened the envelope which contained both the ballot and the stub, and to have placed the stub in the stub box and the opened envelope containing the ballot in the ballot box, yet the trial judge may open the envelope which the election judge refused to open, and if he finds therein both the stub and ballot, he may count such ballot. We do not agree. Art. 5.05, Subd. 6, Election Code, as amended in 1959, V.A.T.S. provides for the method of opening, casting and counting absentee ballots. When the stub is sealed with the ballot in the ballot envelope, it cannot be cast and counted by the election officials without violating the provisions of the Election Code providing the method of casting and counting absentee ballots. The election judge here followed the letter of the law in not casting and counting the forty-nine absentee ballots when he found no stub in the carrier envelope, and he could not open the ballot envelope in search of such stub without violating Art. 5.05, Subd. 6, supra. Where the election judge followed the law in not casting and counting such absentee ballots, they should not be later cast and counted by the trial judge in an election contest. We feel that the provisions of Art. 5.05, Subd. 6, as amended in 1959, are mandatory, and to hold otherwise would open the door to fraud and destroy the secrecy of the ballot.

In their motion for rehearing, appellees further contend that while Subd. 6 of Art. 5.05, gives, to the special election canvassing board provided for in countywide elections, authority to pass upon the qualifications of absentee voters and to reject absentee ballots, that no such authority is given to the presiding judge of an election, where the election is one less than county-wide. We feel that when Art. 5.05, supra, is considered as a whole, the powers given to a special election board of three or more, when the election is county-wide, are necessarily given to the judge or judges of an election that is less than county-wide. If this interpretation is not given to Subd. 9 of Art. 5.05, Election Code, then there is no method provided for the casting of absentee ballots in elections less than countywide. Subdivision 9, reads in part:

“On the day of such election the absentee votes cast in elections less than county-wide shall be opened by the election judges of the precinct holding said election in accordance with the provisions set out in Subdivision 6 above.”

This means that in elections less than county-wide the election judges exercise the same authority over the absentee ballots, as is exercised by special canvassing boards in county-wide elections, otherwise we would have a complete hiatus in our election laws with reference to absentee ballots in elections less than county-wide. So far as this record shows, Raul Gonzalez was the only election judge at this school trustee election; therefore, it was his duty to exercise the duties which he did exercise. No doubt, he had clerks serving with him, but clerks cannot pass upon such matters as a challenge to a voter.

What we have said above in no way changes our conclusion that this case should be reversed and remanded for a new trial.

Appellants’ and appellees’ motions for rehearing are overruled.


author: WERLEIN, Justice.

text:
    EMPLOYERS MUTUAL CASUALTY COMPANY OF DES MOINES, IOWA, Appellant, v. William Martin NELSON, Appellee.
    No. 13789.
    Court of Civil Appeals of Texas. Houston.
    Oct. 26, 1961.
    Rehearing Denied Nov. 16,1961.

      Chilton Bryan, E. H. Patton, Jr., Julietta Jarvis, Houston, Bryan & Patton, Houston, of counsel, for appellant.
    Blakeley & Williams, Carey Williams, Houston, for appellee.
   WERLEIN, Justice.

Appellee, William Martin Nelson, brought this suit on an insurance policy issued by appellant to recover for damage to his home allegedly caused by the loss of ground support resulting from vibration and slippage of sand through pilings when F. & C. Engineering Company was constructing a storm sewer in the street on which his home fronts. Judgment was entered for appellee on the jury verdict in the sum of $5,800.

Appellant asserts that its policy excludes “Loss occasioned by enforcement of any local or state ordinance or law regulating the construction, repair or demolition of building (s) or structure (s),” and that since any damage to appellee resulted from enforcement of the ordinance of the City of Houston in connection with the construction of the storm sewer, the court erred in overruling its motion for an instructed verdict.

We do not agree. The enforcement of the ordinance in question would not necessarily or in the normal course of events have resulted in trespass or damage to ap-pellee’s property or an invasion of his property rights. Such ordinance does not attempt to regulate the construction, repair or demolition of any building or structure on appellee’s land or any building or structure on any adjoining property that would necessarily affect appellee’s property if the work was properly done in accordance with the terms of the contract authorized by the ordinance. There is evidence that the contractor in performance of the construction work, and in violation of city law, used what is called a “headache ball” in breaking up the concrete pavement in front of appellee’s home in preparing to excavate, thereby creating tremendous vibrations, and that in violation of specifications included in the contract, which was authorized by and entered into pursuant to the ordinance, trespassed upon appellee’s land. This case is distinguishable from the cases cited by appellant in which the plaintiff’s property was destroyed as a result of an order of civil authority in the exercise of governmental or police power, without any intervening cause. In the instant case,' the loss was not caused by enforcement of the ordinance. The evidence indicates it was probably caused by improper performance of the contract.

When appellant’s counsel was examining appellee, he brought out that ap-pellee was suing F. & C. Engineering Company for the same loss he was suing appellant for. The following occurred:

“Q. That is exactly the same thing you are now claiming against this insurance company, isn’t it?
“The Court: Can’t you stipulate what happened?
“Mr. Williams: Yes, sir, the same damage. I don’t know it is exactly the same but we will be glad to stipulate and further stipulate that anything they pay us is subrogated to the company issuing the policy.
“Mr. Bryan: Your Honor, in view of that remark it is irrelevant and immaterial, it is prejudicial and inflammatory.
“Mr. Williams: It is in the policy.
“Mr. Bryan: May I make an objection without being interrupted, your Honor, and in view of that remark I move the Court to declare a mistrial and discharge the jury.
“The Court: I will over-rule your motion.”

At several points in jury argument counsel for appellee stated in effect that any amount appellee collected could be recovered back by appellant from F. & C. Engineering Company if it was their fault and appellant could prove that said company caused the damage.

We do not think the statement made relative to subrogation or the argument to like effect constitutes reversible error. The statement and argument were invited by counsel for appellant by undertaking to prove that appellee had two suits for the same damage, thereby implying that ap-pellee was seeking a double recovery. Furthermore, the policy of insurance which was admitted in evidence expressly provides for subrogation as follows:

"The Company may require from the insured an assignment of all right of recovery against any party for loss to the extent that payment therefor is made by this Company. The insured may not, except it be in writing executed prior to the loss, waive his right of recovery from any party.”

Appellant complains that the court erred in overruling its motion for mistrial because of improper argument of appel-lee’s counsel. Appellee’s counsel stated that appellee would have to get a willing buyer in order to sell for cash — “He can’t get a loan.” On objection of appellant, the court promptly instructed the jury not to consider the remark of counsel. Appellant’s witness, J. B. Dannenbaum, testified as to some of the minimum construction standards of the F. H. A., and also that it would be a reasonable assumption that the F. H. A. would not make a loan on homes that do not meet those standards. We need not decide whether counsel’s remark constituted a reasonable inference from such testimony because we are of the opinion that no harm resulted from the argument in view of the court’s instruction.

At one point appellee’s counsel made the following argument:

“He has paid his premium for ten 'years. Now, here, whenever they are called upon to pay for whatever damage has occurred, we just ask that they be made to do it. I wish that I could cancel my — if I am going to have to face these sort of things, I would like to cancel my policy tomorrow, but I can’t do it.”

The court promptly sustained appellant’s objection and instructed the jury not to consider what counsel said he would do with his policy. In view of the court’s instruction, we do not think that appellant has shown harm.

Appellant next, complains that the court erred in permitting appellee’s counsel to argue matters outside the record. With respect to counsel’s argument that Mr. Dan-nenbaum had not seen the trench down “here on Penwood,” the record shows that Mr. Dannenbaum testified that when he made his initial investigation, the contractor was pulling piling and putting in backfill toward the far end of the street, and according to his memory, the trench was open for perhaps 250 to 300 feet towards Wayside. Appellee’s Exhibit No. 3 indicates that his house was more than 300 feet from Wayside. Thus it seems the argument of appellee’s counsel was probably within the record but if we are mistaken, his statement to the jury when objection was made, that if his recollection at any time differed from theirs they would be guided by what they remembered and not take it from him, eliminated any possible harm.

With respect to counsel’s argument that Mr. Seaman appraised the house as being worth $10,800, the record shows that the witness testified the market value of the home was $10,800. On cross-examination he valued the house at $8,500 and the lawn, shell for the driveway, grading and landscaping at $2,250. We think there is little merit in appellant’s contention that appellee’s counsel was outside the record in such connection. In any event, no harm resulted to appellant since its counsel included in his objection the statement that the appraised value of the house was $8,500, and the court instructed the jury to take into consideration only what is in the record.

The improper remark of appellee’s counsel, “Your Honor, we don’t have any money left for any more engineering expense,” was probably justified by the statement of appellant’s counsel, that they would have no objection to Mr. Dannenbaum measuring appellee’s house if appellee was prepared to pay him his professional fees for a full investigation. Moreover, the court promptly instructed the jury not to consider' the remark.

We think the following argument possibly passed the point of propriety:

“Now, then, we get down to Mr. Bryan here, this big lawyer. He is a prosperous attorney. We are talking about the cost involved here on evidence and that sort of thing. No, I withdraw that statement.
“Mr. Bryan, who is a big lawyer, prosperous, smart; he is capable, he is sly, he is foxy and he is cunning. I will have to respect him for his ability if nothing else, but at any rate, we only have one Clilton Bryan, and we are not going to run into all this every time.”

Such argument was not of the incurable type and no objection was made to it.-

We have read not only the argument of appellee’s counsel but the entire statement of facts. Wé cannot say in the light of the whole record that any of the arguments complained of or the cumulative effect thereof were reasonably calculated to cause and probably did cause the rendition of an improper verdict and judgment. Rule 434, Texas Rules of Civil Procedure; Lumbermen’s Lloyd’s v. Loper, Tex.Sup. 1954, 153 Tex. 404, 269 S.W.2d 367; Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953); Texas General Indemnity Company v. Bledsoe, 344 S.W.2d 527, Tex.Civ.App.1961, error ref., n. r. e.; Higginbotham v. O’Keeffe, 340 S.W.2d 350, Tex.Civ.App.1960, writ ref., n. r. e.; Murchison v. Qualls, Tex.Civ.App., 294 S.W.2d 296, writ ref., n. r. e.; 3 McDonald, Texas Civil Practice, § 13.05, p. 1186.

In his amended petition filed May 10, 1960, appellee alleged that the contractor began construction of the storm sewer on or about June 24, 1957. It is not alleged nor does the evidence show when the alleged damage was complete or ceased developing. Formal proof of loss was not filed until June 22, 1960. Appellee alleged that all conditions precedent to appellant’s liability under the policy had been performed or had been waived by appellant or appellant was estopped to assert the same. Ap-pellee also pled that appellant had expressly and impliedly waived the requirement of a formal sworn statement of proof of loss and that its agents had examined the premises, and were aware of the nature and extent of the loss.

Since no issues on waiver or estoppel were submitted, the question before us is whether as a matter of law appellant waived the filing of proof of loss or was es-topped to assert failure to file the same at an earlier date than filed. Appellee’s Exhibit No. 31 addressed to appellee and several other property owners reads as follows :

“R. Beach Mott & Co.
National
Adjusters, Investigators & Surveyors
Association for Insurance Companies 602 Sul Ross at Jack
Independent JAckson 9-3511 Houston 6, Texas
Insurance September 16th, 1957
Adjusters
To: Mr. Wm. Martin Nelson
Mr. Robert W. Otteson & Wife
Mr. Gayle Etheridge & Wife
Mr. Dorsey L. Turner.
Landslide &/or Settlement: August, 1957
Employers Mutual Casualty Company Policy 5092253
Lumbermens Mutual Insurance Company Policy 42-086650
St. Louis Fire & Marine Insurance Co. Policy 26596
Pacific National Fire Insurance Co. Policy 990943
“Gentlemen:
“This is to place the above named insureds on notice that the captioned insurance companies have waivered the following sentence in the policy contract, which is found under basic conditions, requirements in case loss occurs:
“ ‘Within ninety-one days after the loss, unless such time is extended in writing, the insured shall render to this company a Proof of Loss signed and sworn to by the insured.’
“This is being done in order to reassure you that the insurance company has your interest at consideration in that they realize that each of you have sustained loss that is not covered under the insurance policy contract, and are giving you the opportunity to recover your whole loss.
“Yours very truly,
“JLS/lr R. Beach Mott & Company (signed) Jack L. Simpson Jack L. Simpson, Adjuster
“cc-Iuterested Companies”

The foregoing letter as a matter •of law waives the filing of proofs of loss within 91 days provided it was written by an agent authorized to write it. It is undisputed that Jack L. Simpson who signed the letter was an authorized employee of R. Beach Mott, an independent insurance adjuster, to whom appellant assigned ap-pellee’s claim for handling, and that Mr. Mott, who represented some 200 insurance companies, including appellant, assigned ap-pellee’s claim to his said employee, Jack Simpson, for handling. The letter in question, waiving proof of loss, was identified by Mr. Mott as having been written on his letterhead and signed by Mr. Simpson. Mr. Mott testified that he assigned the files to Mr. Simpson to handle under his (Mott’s) supervision and control; that he, Mott, was an approved adjuster, and worked under the instructions of insurance companies, and could think of no instance where he exceeded the instructions given him; that he was one of appellant’s adjusters and had occasion to represent appellant in handling their claims in this area; that his authority to settle claims for appellant was to make investigations and report the extent and nature of damage.

He also testified that he settled claims for appellant and didn’t always have to get the company’s approval before settling the same; that where the loss was unquestionably covered under the policy, he would take the responsibility of accepting the proof of loss and submit it to the company with his recommendation; that he handled the proof of loss phase of the investigation; that the file in question was assigned to him by appellant and appellant had never questioned any authority assumed by him in handling any of his files, and that his entire file had been turned over to appellant’s counsel, Mr. Chilton Bryan. He further testified that under his routine procedure a copy of the letter in question would have gone to appellant as the letter itself shows; that he did not recall receiving any correspondence back from appellant in regard to such letter, and if he did it would be in the file which belonged to appellant and which was turned over to appellant’s counsel. Appellant’s counsel did not cross-examine Mr. Mott, nor did he offer in evidence any communication from appellant questioning Mr. Mott’s authority to write the letter waiving proof of loss.

In our opinion, the uncontroverted evidence and circumstances related above established, as a matter of law, that Mr. Mott had authority from appellant to handle and adjust the claim in question and while engaged in doing so to write by and through his employee, Mr. Simpson, the letter of waiver. National Union Fire Ins. Co., Pittsburgh, Pa. v. Richards, 290 S.W. 912, Tex.Civ.App.1927; Occidental Fire Ins. Co. v. Fort Worth Grain & Elevator Co., Tex.Civ.App., 294 S.W. 953, writ ref. 1927. See 24-B Tex.Jur., p. 691, Insurance, Sec. 344, where it is stated: “It is generally recognized that an adjuster authorized to act in the premises may waive notice and formal proofs of loss.” See also Phoenix Ins. Co. v. Levy, 12 Tex.Civ.App. 95, 33 S.W. 992, Tex.Civ.App.1895; German Ins. Co. v. Norris, 11 Tex.Civ.App. 250, 32 S. W. 727, Tex.Civ.App.1895; Security Ins. Co. v. Jagoe, 247 S.W.2d 298, Tex.Civ.App. 1952.

We further hold that the waiver of proof of loss was conclusively established under the evidence, and that therefore the submission of waiver to the jury was not required. The interpretation of the letter of waiver was a matter for the court and not the jury. Benefit Ass’n of Ry. Employees v. O’Gorman, Tex.Civ.App., 195 S.W.2d 215, writ ref. n. r. e.

It will be noted that the letter of waiver was written within 91 days from the date the construction of the storm sewer began, and that such letter states that the insured had sustained loss not covered under the insurance policy contract. Mr. Mott’s authority to settle claims referred to him for adjustment necessarily included the authority to refuse to settle and deny liability on the part of the company in whole or part. This he did in the letter written to appellee and the other property owners mentioned in the letter. The law is well settled that a recovery may be had on the policy without furnishing proofs of loss where the insurance company denies liability under the terms of the policy during the period within which proofs are to be made. The denial of liability by appellant’s adjuster was a denial by appellant. Such denial was in effect later approved and ratified by appellant in denying liability in the answer it filed herein. 24—B Tex. Jur., p. 686, Insurance, § 343, and numerous authorities cited.

The insurance policy in question does not insure against loss resulting from occurrences or conditions set out in Sec. II, paragraph B of Form No. 148, but such exclusion does not apply to total or partial collapse of a dwelling. Special Issue No. 2, which the jury answered in the affirmative, reads as follows:

“Do you find from a preponderance of the evidence that the plaintiff’s house subsequent to June 24, 1957, suffered a partial collapse?
“Answer: ‘We do.’ or ‘We do not.’
"In connection with the foregoing Special Issue you are instructed that the term ‘partial collapse’ means a sinking, bulging, cracking or pulling away of the foundation or walls and other supporting structures so as to impair their function of supporting the superstructure and tending to destroy or impair the efficiency of the dwelling as a habitation.”

Appellant asserts that there is no evidence of partial collapse of appellee’s house; that the jury’s finding is not supported by sufficient evidence; and that the court erred in refusing to give the definition of “partial collapse” requested by it.

Appellant has cited a number of cases which are factually inapplicable because in such cases the policy did not use the words “partial collapse,” but “collapse of the house' or part thereof” or similar wording. The distinction is vital. One of the dictionary definitions of “partial” is “incomplete, not general or total.” It is our view that this meaning should be given to the word “partial”, and that “partial collapse” is not restricted to total collapse of a part of the building but includes any degree of collapse less than total. See United States Fidelity & Guaranty Co. v. Baker, 65 S.W.2d 344, 346, Tex.Civ.App. 1933, where “partial” is given the meaning herein ascribed to it.

We have neither found nor been cited to any case defining “partial collapse” of a building. It is reasonable to presume, however, that if appellant intended the words “partial collapse” to mean a collapse of a part of the building, it would have employed the language used in the cases cited by it. In Travelers Fire Insurance Co. v. Whaley, 272 F.2d 288, 291, 10th Cir.Ct. 1959, the court stated that if the appellant intended that the word “collapse” should be given the definition urged by it, it should have so stated in its policy, and that in the absence of such intent it was more realistic to define the term as connoting “a sinking, bulging, cracking, pulling away of the wall so as to impair its function of supporting the superstructure and destroying its efficiency as a habitation.” The court in such case further stated that the general law is that if the policy contains a word susceptible of being construed, without violence, as having more than one meaning, the meaning most favorable to the insured must be adopted. To like effect see Southwestern Fire and Casualty Company v. Atkins, 346 S.W.2d 892, Tex.Civ.App.1961. In the Whaley case, supra, the court was defining “collapse.” The definition given in the instant case, which we think is proper, is similar to the definition in the Whaley case, although slightly changed to cover “partial collapse.”

Without reviewing all the evidence it will suffice to say that the testimony of Mr. Goodman, a consulting engineer, is sufficient in itself to support the jury’s finding. He testified that the front bedroom ■of the house is physically tilted 3¼ inches from the northwest to the southeast corner, the . drop being approximately over a distance of ten feet; that he believed it indicated the foundation of the house had failed by subsiding 3¼ inches; that on the east wall of the bedroom the sheetrock was cracked completely through approximately ¼ inch extending diagonally from the corner of the window to the baseboard; that door frames were deformed; that in the back bedroom there was a sloping of 1⅞ inch; that it represented a settling of the foundation under that part ■of the house and produced some severe ■cracks in the sheetrock over closet doors in the south wall, and that the living room was sloping ⅝ inch and the front door of the house was deformed, requiring that it be trimmed 14 inch to make it close. He concluded that the foundation of the house had actually physically settled, particularly .along the east wall, approximately 3 inches. He did not believe the concrete foundation •could stand a deflection of such magnitude without breaking, or that there was any way of physically restoring the foundation to its original condition. There is also ■evidence that there is a pulling apart of the baseboard from the floor of the house as much as ½ inch in places, and that the floor of the garage, which is on the same slab as the house, had sunk in the middle where the cracks were most prevalent.

We have concluded in the light of the ■entire record that the jury’s finding that appellee’s house has suffered a partial collapse as defined in the court’s charge is not against the great weight and preponderance of the evidence.

Appellant also complains of Special Issue 1-A, which is based upon an exclusion contained in said Paragraph B and reads as follows:

“Was the damage, if any, to the plaintiff’s house which occurred subsequent to June 24, 1957, the result of normal settling, shrinkage or expansion in foundations, walls, floors or ceilings ?
“If you find from a preponderance of the evidence that such damage, if any, was not caused by normal settling, shrinkage or expansion in foundations, walls, floors, or ceilings, let your answer be, ‘It was not the result of normal settling.’ Otherwise, let your answer be, ‘It was the result of normal settling.’
“In connection with the foregoing Special Issue, you are instructed that the term ‘normal settling’ means a sinking or subsidence caused by usual or regular conditions, as distinct from abnormal (that is, unusual or irregular) conditions.
“To which the jury answered: ‘It was not the result of normal settling.’ ”

We do not agree with appellant that Special Issue 1-A and the form of the answer required by the court, restricted the jury to a consideration of only normal or abnormal settling of foundations, walls, floors or ceilings. The issue as worded placed upon appellee the burden of negativing the entire exclusion, and not merely normal settling. It is true that the court might have defined “normal” instead of “normal settling,” but we do not think that the jury could have been misled into thinking that the issue referred only to normal settling, when the court expressly instructed the jury that if it found from a preponderance of the evidence that the damage was not caused by normal settling, shrinkage or expansion, they would answer it was not the result of normal settling, otherwise they would answer it was the result of normal settling. The jury was sufficiently instructed as to the meaning of normal as something caused by usual or regular conditions as distinct from abnormal or something caused by unusual or irregular conditions.

The court did not err in refusing to give the requested Issues F to M, inclusive, submitted by appellant. These issues were either not raised by any evidence or were adequately covered by the issue given. The court having submitted a controlling issue made by the pleadings and evidence, was not required to submit separately the fractional parts of such issue or various phases or different shades thereof. Rule 279, Texas Rules of Civil Procedure. The issue is worded in the language of the exclusion pled by appellant and, if there was any error in connection with such issue and the instructions given or in the refusal of the court to give appellant’s requested issues, we cannot say that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

Judgment affirmed.

On Motion for Rehearing

We are cognizant of the rule mentioned by appellant in its motion for rehearing, that a reviewing court will not permit a judgment to stand when a defendant is denied the right to a separate submission of a vital defense issue, even though it cannot be said under Rule 434, Texas Rules of Civil Procedure, that error in refusing to submit such issue probably resulted in the rendition of an improper judgment. In such case harm will be presumed. Texas & Pac. Ry. Co. v. Van Zandt, Tex.Sup. 1958, 159 Tex. 178, 317 S.W.2d 528. In the last paragraph of our opinion, we did not mean to say or hold anything contrary to such rule. We have reviewed appellant’s requested Issues F to M, inclusive, and reaffirm that such issues were either not raised by any evidence or were adequately covered by the issues submitted by the trial court.

Motion for rehearing overruled.


author: POPE, Justice.

text:
    C. H. LANGDEAU, Receiver of Franklin American Insurance Company, Appellant, v. BURKE INVESTMENT COMPANY, Appellee. C. H. LANGDEAU, Receiver of Franklin American Insurance Company, Appellant, v. E. J. BURKE, Jr., Appellee. C. H. LANGDEAU, Receiver of Franklin American Insurance Company, Appellant, v. HIGHLAND HILLS, INC., Appellee.
    Nos. 13823-13825.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 1, 1961.
    Rehearing Denied in No. 13823 Nov. 29, 1961.

      Cecil C. Rotsch, Horace Wimberly, Kerns B. Taylor, Harold G. Kennedy, Austin, for appellant.
    John Peace, San Antonio, for appellee.
   POPE, Justice.

These are venue suits. Plaintiffs filed three actions against C. H. Langdeau, Receiver of Franklin American Insurance Company, for the recovery of lands and damages, and to remove incumbrances upon the titles to the lands. Art. 1995(14), Vernon’s Tex.Civ.Stats. The Receiver filed pleas of privilege to be sued in Travis County, the venue of pending delinquency proceedings, and relied upon Sections 4(f) and 16, Article 21.28, Insurance Code, V.A. T.S. The trial court overruled the pleas of privilege and held that Section 14, Article 1995, was a mandatory venue statute which prevailed over the provisions of Art. 21.28. The trial court’s judgments conflict with the recent opinion in Bennett v. Langdeau, Tex.Civ.App., 348 S.W.2d 179. The trial court correctly decided the cases.

In our opinion, we have a mandatory venue statute and a permissive venue statute, and the rule in that situation is that the mandatory venue statute prevails. Fetherston v. State, Tex.Civ.App., 146 S. W.2d 1078. Section 14, Article 1995, is clearly mandatory by reason of its words, that suits “must be brought in the county in which the land, or a part thereof may lie.” Pena v. Sling, 135 Tex. 200, 140 S.W. 2d 441, 128 A.L.R. 1223; South Texas Development Company v. Williams, 130 Tex. 217, 107 S.W.2d 378; Thomson v. Locke, 66 Tex. 383, 1 S.W. 112.

Section 4(f), Article 21.28, is a permissive venue statute. It provides that the county in which the delinquency proceedings are pending “shall have venue to hear and determine all actions or proceedings * * Similar language was used in Exception 28a, Article 1995, Vernon’s Tex. Civ.Stats., which has been construed to mean that the Legislature conferred a permissive venue which was not previously permitted. In other words, a plaintiff might, if he chooses, maintain a suit in the county of the exception. A statute which states that a county has venue is not the same thing as a statute which states that a county shall be the exclusive venue, or that a case “must be brought” in a county. Mutual Fire & Auto Insurance Company v. Kirkman, Tex.Civ.App., 231 S.W.2d 459. If the Legislature had intended to make Section 4(f), Article 21.28 mandatory, it could easily have done so by using language as found in Exception 14, Article 1995.

Exception 14, Article 1995, therefore, is clearly a mandatory venue statute and Section 4(f), Article 21.28, is a permissive venue statute. When we come to Section 16, Article 21.28, we find that the Insurance Code provides for situations in which a conflict exists between venue provisions. That section first provides that in the event of a conflict, the provisions of Article 21.28 shall prevail. It next provides that all laws in conflict with the article are repealed. For either of the two facets to become applicable, there must be a conflict. In the case of a permissive venue statute which is confronted by a mandatory venue statute, there is not a conflict. Section 30, Art. 1995; Mitchell v. Porter, Tex.Civ.App., 194 S.W. 981. The permissive yields to the mandatory statute and avoids the conflict.

The construction claimed by the receiver would produce unusual results. A delinquency proceeding may be commenced in a county. The receiver urges that the delinquency proceedings bring all suits, by or against the receiver, to the county of those proceedings. Many mandatory statutes fix venue in counties which may be different from those of the delinquency proceedings. A suit to collect taxes on real or personal property must be brought in the county where the taxes were levied. Article 7345b-1. Proceedings to condemn property must be brought in the county where the land is situated. Article 3264. Suits to collect gasoline taxes, gross production taxes, and inheritance taxes due the State must be brought in Travis County. Article 7076, 7076a. Appeals from decisions and orders of the Railroad Commission must be brought in Travis County. Art. 6453. Suits to enjoin the execution of judgments or to stay proceedings in any suit must be brought in the county in which such judgment was rendered or in which suit is pending. Art. 1995, § 17. Suits to revise the proceedings of the county court in matters of probate must be brought in the district court of the county in which such proceedings were had. Art. 1995, § 18. Suits against counties must be brought within such county. Art. 1995, § 19. Suits for mandamus against the head of any department of the State Government shall be brought in Travis County. Art. 1995, § 20. There are other illustrations, but these are sufficient to show that if the receiver’s construction be correct in any of the above instances, suits would be transferred from counties where good reasons argue that they should remain. We are not convinced by the words used in Article 21.28, that the Legislature intended to supplant so great a number of mandatory venue statutes for the accommodation of delinquency proceedings.

We affirm the judgments.

      . “Sec. 4. Actions. * * *
      “(f) New Lawsuits. The court of competent jurisdiction of the county in which the delinquency proceedings are pending under this Article shall have venue to hear and determine all action or proceedings instituted after the commencement of delinquency proceedings • by or against the insurer or receiver.”
      “Sec. 16. Conflicts of Law. •'
      “In. the event of conflict between the provisions of this Article and the provisions of any existing law, the provisions of this Article shall prevail, and all laws, or parts of law, in conflict with the provisions of this Article are hereby repealed to the extent of such conflict. As amended Acts 1955, 54th Leg., p. 737, ch. 267.”

       Now Y.A.T.S. Tax-Gen. art. 1.04.


text:
    Richard M. FINDER, d/b/a Texkan Oil Company, Appellant, v. Fred STANFORD, Jr., Appellee.
    No. 13801.
    Court of Civil Appeals of Texas. Houston.
    Nov. 16, 1961.

      Kliewer & RoacR James S. Robertson, Jr., Dallas, for appellant.
    Thomas R. Bell, Edna, for appellee.
   WERLEIN, Justice.

Appellant, Richard M. Finder, d/b/a Texlcan Oil Company, appeals from a judgment rendered against him by the court without a jury, in favor of appellee, a surface tenant, in the sum of $582, for damages sustained by appellee as a result of appellant’s operations under an oil and gas lease.

No statement of facts has been filed herein. No findings of fact or conclusions of law were requested or made by the trial court. There are, however, certain recitals in the court’s judgment which must be considered. The transcript includes the oil, gas and mineral lease dated November 10, 1956 covering the land upon which in 1959 appellee was given by the land owner, S. E. Williamson, an oral farm lease on a crop-sharing basis.

Appellee alleged that during the first part of 1960 he plowed and cultivated his surface lands preparatory to planting cotton and maize; that thereafter appellant placed a pipeline diagonally across appellee’s land in such manner as to interfere with its drainage, and that appellant after storing drilling mud in storage tanks opened up both ends of the slush pit and allowed the mud to spread over and ruin approximately five acres of land on which appellee intended to plant his cotton crop, without regard to damage to the surface of the land.

The judgment of the court recites:

“Under the oil, gas and other minerals lease of November 10, 1956, Paragraph 6-a, under which the defendant has conducted his operations, provides that the defendant is obligated to pay all damages resulting from operations under the lease and these damages shall be paid to the lessor or to the tenant. The tenant has a property right which is separate and apart from the right of the land owner, or lessor, and there appears to be no reason for paying to the landlord damages to the tenant’s estate.”
“ * * * Because of defendant’s drilling operations at this particular site, plaintiff was prevented from selecting his best land and had to move his allotment to the west. His net profit from the cotton was thus reduced by $390.00.
“The defendant’s release of drilling mud from his pits and spreading same over plaintiff’s land and the drilling operations around the well site reduced the yield of maize considerably; Some evidence showed that plaintiff’s gas pipeline, constructed in a wet year, as it was, interfered with the natural drainage of the land and thus adversely affected the yield of the maize crop, and plaintiff’s net loss here amounted to $192.00 under the facts.”

The judgment concludes:

“It Is Therefore Ordered, Adjudged And Decreed that the Plaintiff, Fred Stanford, Jr. do have and recover of Richard M. Finder, d/b/a Texkan Oil Company the sum of Five Hundred Eighty-two & No/100 ($582.00) Dollars as damages under Paragraph 6-a of the operating lease, * *

Paragraph 6-a of the oil, gas and mineral lease in question provides:

“Lessee agrees to pay Lessor for all damages to crops, fences, live stock or other property of Lessor or their tenants, resulting from operations under this lease, and upon the abandonment of any well or the termination of this lease, to fill in and level out all slush pits or other excavations, and level off all mounds.”

The court erred in decreeing that appellee recover under Paragraph 6-a of the lease since such paragraph clearly provides that the lessee agrees to pay the lessor damages to the property of lessor or lessor’s tenants, and does not provide that lessee will pay anything to lessor’s tenants. There is no allegation, proof or finding by the court of any assignment by the lessor to ap-pellee of the lessor’s contractual right to recover damages against appellant under the lease. The lessor was not a party to the suit. There is nothing in the record before us from which an assignment or right to sue by appellee on the contract can be presumed or implied.

The recitals in the’judgment indicate that the court tried the case on the wrong theory. It is evident that the trial court was of the opinion that the suit could be maintained and damages recovered under Paragraph 6-a by appellee suing alone as a tenant for damages to the land or his part of the crop. This is not to say that a tenant may not bring a suit without joinder of the landlord to recover damages to his part of the crop when a suit sounding in tort is brought against the wrongdoer alleging acts of negligence or that more land was used for the drilling operation than was reasonably necessary. 17 Tex.Jur.2d, p. 42, Crops, § 56.

Appellee in his brief asserts that if the judgment can be sustained upon any theory in the case, it should be upheld by this Court. Such general rule is supported by authority in cases where applicable. It is predicated upon the theory that when no findings of fact are filed, it will be presumed that the trial court found the facts in such way as to support the judgment. La Force v. Bracken, Tex.Civ.App., 163 S.W.2d 239, aff’d 1943, 141 Tex. 18, 169 S.W.2d 465. In the instant case no findings of fact were filed, but the judgment of the court recites the facts and clearly shows that such judgment is based solely upon Paragraph 6-a of the lease. Rule 299, Texas Rules of Civil Procedure, which we think is applicable here, provides in part: “The judgment may not be supported upon appeal by a presumption of finding upon any ground of recovery or defense, no element of which has been found by the trial court; * * See Warren v. Haverkorn, Tex.Civ.App.1945, 191 S.W.2d 793; Carruth v. Valley Ready-Mix Concrete Co., Tex.Civ.App., 221 S.W.2d 584, error ref.

The law is well settled that where the lessee of the surface of land takes same subject to an oil and gas lease, the holder of the oil and gas lease, in the absence of a specific clause relating to surface damages, has the right to use as much of the surface and in such manner as is reasonably necessary to effectuate the purpose of the lease. The lessee of the surface who seeks to recover damages in such case has the burden of alleging and proving either specific acts of negligence or that more land was used for the drilling operation than was reasonably necessary. Robinson Drilling Co. v. Moses, Tex.Civ.App.1953, 256 S.W.2d 650. See also Warren Petroleum Corporation v. Monzingo, Tex.S.Ct.1957, 157 Tex. 479, 304 S.W.2d 362; Meyer v. Cox, 252 S.W.2d 207, error ref.; Placid Oil Co. v. Lee, Tex. Civ.App., 243 S.W.2d 860; West Central Drilling Company v. Malone, Tex.Civ.App., 219 S.W.2d 601, and authorities there cited.

Appellee alleged in his petition that under the oil, gas and mineral lease appellant was liable for all surface damages occasioned to the tenant, “ * * * and in addition thereto Defendant was negligent in opening the sludge pits and allowing the drilling mud to flow over and across and remain on the land being cultivated by plaintiff herein.” With respect to the mud the judgment of the court merely recites: “The Defendant’s release of drilling mud from his pits and spreading same over Plaintiff’s land and the drilling operations around the well site reduced the yield of maize considerably.” Nothing is stated here with respect to cotton nor does the court state what damage was caused to the maize crop by the release of mud. There is no finding of any element of recovery based upon negligence or the use of more land than reasonably necessary in the drilling operations. It is clear that the court based its judgment upon nothing other than Paragraph 6-a of the lease. If, however, we are mistaken in this conclusion and it may be presumed that the court based its judgment to any extent upon negligence, it would be necessary under the pleadings and the finding of the court, to limit the damage sustained as the result of negligence to damage in some unknown amount to the maize crop resulting from release of mud.

Basing our opinion on the incomplete record before us, we are of the view that the court not only tried the suit upon the wrong theory, but that the case has not been fully developed, and for both such reasons it should be reversed and remanded.

Reversed and remanded.