author: DIXON, Chief Justice.

text:
    John R. BRYANT, Relator, v. Peter O’DONNELL, Jr., et al., Respondents.
    No. 16137.
    Court of Civil Appeals of Texas. Dallas.
    June 15, 1962.
    Rehearing Denied July 27, 1962.

      Grover Hartt, Jr., Dallas, for relator.
    Ralph W. Currie and Henry Wade, Dist. Atty., and James M. Williamson, Asst. Dist. Atty., Dallas, for respondents.
   DIXON, Chief Justice.

With our permission Relator John R. Bryant has filed an application for a writ of mandamus to direct Respondent Peter O’Donnell, Jr., Chairman of the Executive Committee of the Republican Party of Dallas County, Texas to certify Relator as the nominee of the Republican Party for the Dallas County office of Judge, County Court at Law No. 1; and also for a writ to direct Respondent Ed Steger, County Clerk, Dallas County, Texas, to publish, post and print the name of Relator as nominee of the Republican Party for said office.

Jurisdiction of this Court is conferred by Art. 1735a, Vernon’s Ann.Civ.St.

In his sworn affidavit Relator alleges that in the Republican primary election held in Dallas County on the first Saturday in May, 1962 he received a majority of the votes cast for nomination for the office of Judge, County Court at Law No. 1. Relator’s name was not on the printed ballot. The office of Judge, County Court at Law No. 1, was not included on the printed ballot among the offices for whom a nominee was to be chosen. All the votes cast for this particular office were write-in votes. Of a total of 123 votes, 111 were cast for Relator, 8 for Jim McCarthy, 2 for W. C. Graves and 2 for Giles Miller.

Relator further alleges that at a meeting of the Executive Committee held on the Tuesday next after the primary the votes were canvassed and the results were declared, but Respondent O’Donnell has failed and refused to include Relator in the list of Republican nominees for county and precinct offices, and has failed and refused to •certify a list to the County Cleric with Relator’s name on it.

Ed Steger, County Clerk, has answered stating that he intends to and will perform all his official duties, and that he will abide by and comply with the decision of this Court.

Respondent O’Donnell in his sworn answer states that the Executive Committee at a meeting on May 8, 1962 instructed him that he could not certify the name of any person as a nominee for any office who had •not evidenced his acceptance of said nomination by the payment of the fee prescribed hy the Committee at its meeting in February 1962. Relator herein has failed and refuses and still refuses to pay the assessment fixed hy the Committee, but according to Respondent seeks to secure for himself the benefit of a nomination in a primary in which he refuses to share in the expense. Respondent then avers that because of said order he has no alternative but to decline to certify Relator as a nominee for the Republican Party. He also points out that the Committee has not been made a party to this proceeding and says that if the Committee’s action was erroneous it can be corrected only in a legal proceeding in which the Committee is a party.

In additional allegations Respondent goes more into detail as to his reasons for refusing to certify Relator as a party nominee. In order to be sure that his allegations are correctly presented here we quote from Respondent’s answer:

“HI.
“The Dallas County Republican Executive Committee at its meeting on Tuesday, May 8, 1962, did not, as alleged by Relator, declare that he was entitled to the nomination. On the contrary, said Committee by resolution declared that it would be left to the discretion of the County Chairman and the counsel for the County Chairman to determine whether the circumstances under which votes were cast for the Relator were valid write-in votes. Respondent herein thereupon and acting under this authority from the Committee determined that the votes received by the Relator were not valid write-in votes and hence Relator did not receive sufficient votes to nominate.
“IV.
“In connection with the preceding paragraph Respondent shows that the circumstances are these:
“The office of Judge, County Court at Law No. 1 was not on the ballot. This was because of a deliberate decision on the part of the Dallas County Republican Committee to place no offices on the ballot save those for which candidates had filed their request. No request was received by the Committee for a place on said ballot.
“It was not generally announced to the public nor to those participating in the Republican Primary that the office of Judge, County Court at Law No. 1 was open for nomination. There were cast in said Primary approximately 21,750 votes. Out of said number only 123 votes were cast for Judge, County Court at Law No. 1, 10 of those were cast for the Democratic candidates for said office. In each instance the voter had to write in the title of the office as well as the name of the person for whom he wished to vote. The fact is that the public neither knew, nor had any basis for supposing, that this office was one for which nomination was to be made at said Primary election. This initial determination was made by Respondent herein pursuant to authority given to him by the Dallas County Republican Executive Committee. Acting under the authority thus given Respondent herein determined that the voters generally did not know nor should they have known that an election for the office was taking place. Consequently, the votes cast in said office were not valid write-in votes and Relator is not entitled to a certificate of nomination.
“V.
“Entirely outside of the action of the Committee and your Respondent as hereinabove set forth, Respondent now shows to the Court that as a matter of fact the voters participating in the Republican Primary Election did not know, nor should they have known, that an election for office of Judge, County Court at Law No. 1 was to take place at the Primary Election. Consequently, the Relator is not entitled to a certificate of nomination since the write-in votes were invalid, absent a showing that the voters generally knew, or should have known, that an election for this office was taking place.”

Under the undisputed facts presented by the record before us it is our opinion that the Republican Executive Committee members are not necessary parties to Relator’s application. In his sworn application Relator says that the Executive Committee met, canvassed the returns and the results were declared. It is not denied that Relator by write-in votes received 111 of the total of 123 votes cast for the office in question. Respondent merely denies that the Committee declared Relator was entitled to the nomination. It is nowhere claimed that the Committee declared that Relator was not entitled to the nomination, or that the Committee declared the votes received by Relator were not valid write-in votes.

In one place in his answer Respondent alleges that the Committee instructed him “that he could not certify the name of any person as a nominee for any office who had not evidenced his acceptance of said nomination by the payment of the fee prescribed by the Committee at its February 1962 meeting.” (emphasis ours). We know of no statute or law which requires a nominee to pay a fee for the “acceptance” of the nomination. The Committee’s order, based on a legal conclusion so wholly erroneous, must be considered void.

In another place in his answer Respondent says that the Committee by a resolution declared it would be left up to the County Chairman and Counsel for the County Chairman to determine whether under the circumstances the votes cast for Relator were valid write-in votes. V.A.T. S. Election Code, Art. 13.25 provides that the Committee shall have power to exclude any vote that is “prima facie illegal,” but it goes further and expressly provides that “any vote involving a question of law, or mixed question of law and fact shall not be determined by the Committee.” No facts are shown in this record which will support a conclusion that the votes received by Relator were “prima facie illegal”. Therefore, the Committee would have gone beyond its power if it had declared invalid the votes received by Relator. Certainly the Committee could not delegate to the County Chairman powers which the Committee itself did not possess.

In short, it is undisputed that the Committee met and tabulated the votes in the primary election. It is undisputed that Relator received 111 write-in votes out of a total of 123 votes cast. It is undisputed that the Committee did not declare (and had no grounds for declaring) that the votes received by Relator were prima facie invalid. It is undisputed that the County Chairman has undertaken to exercise a purported discretion to declare the votes for Relator invalid. The record does not show that the Committee failed in any way to discharge its duties under V.A.T.S. Election Code, Art. 13.24 except insofar as it attempted to grant Respondent O’Donnell discretionary authority to declare invalid the votes cast for Relator. As we have said, such attempted authorization must be considered void. Therefore, the Committee is not an indispensable party to this proceeding. Its attempted authorization, being void, may be ignored without having the Committee made a party herein.

Before discussing the other specific issues presented by Respondent in his answer and brief we think it well to pause to consider some of the general principles pertaining to the right of the voters to participate in elections. Art. 1, § 2, of the Bill of Rights of the Constitution of Texas, Vernon’s Ann.St. includes this provision: “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.”

We quote from 9 R.C.L. 1088: “The dormant idea pervading the primary law is the absolute assurance to the citizen that his wish as to the conduct of the affairs of his party may be expressed through his ballot and thus be given effect, whether it is in accord with the wishes of the leader of his party or not, and so shall be put in effective operation in the primaries. In other words the scheme is to permit the voters to construct the organization from the bottom upwards, instead of permitting leaders to construct it from the top downwards.”'

We quote from the opinion in Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037, where our Supreme Court speaking through Chief Justice Phillips said:

“It is the undoubted right of a political party to make nominations for the elective officers of the people. The Legislature has the authority to prescribe reasonable methods to be employed for the purpose; but it does not possess the power to absolutely prohibit any nomination being made. Such an attempt would constitute an arbitrary interference with the liberty of the people to freely associate themselves for the purpose of expressing such choice for their elective offices as they might select and for reasons they might see fit.”

In the instant case Respondent Peter O’Donnell, Jr. Republican County Chairman, is a person well known and highly respected in Dallas County. We do not doubt his good faith. But if the Legislature cannot prohibit nominations being made certainly Respondent cannot do so, and neither can the County Executive Committee.

Now we come to the other particular questions raised by Respondent O’Donnell. In his answer and brief he takes the position that the 111 write-in votes cast for Relator are invalid votes for two reasons: (1) Relator has not paid and refuses to pay the fee set by the Committee in order to have his name appear on the primary ballot as a candidate for the nomination, thereby failing to pay his pro-rata share of the expenses incident to the conduct of the primary, therefore as matter of equity he does not come into court with clean hands; and (2) It was not generally announced to the public nor to those participating in the Republican Primary that the office of Judge, County Court at Law No. 1 was open for nomination, therefore as a matter of fact the voters participating in the Primary did not know, nor should they have known that an election for nominee to the office was to take place.

We are unable to agree with appellant that Relator is not entitled to have his name certified as the nominee of his party because he has not paid and refuses to pay the fee prescribed by the Committee. It has been held that one whose name did not appear on the printed ballot and who did not pay any of the expenses of the primary, but who received a majority of the votes cast when his name was written in, was entitled to be certified as the nominee of his party. Dunagan v. Jones, Tex.Civ.App., 76 S.W.2d 219. In reversing and rendering the judgment of the trial court, the appellate court in the above case stated:

“The purely personal rights of the candidate in the respect mentioned is quite apart and distinct from and does not measure the right of the voter to indicate his choice of a person for the nomination of a particular office. There is a well recognized difference between the rights and duties of candidates in having their names printed on the official ballot, and the legal right of the voters in choosing their nominees on the day of the general primary election.”

V.A.T.S. Election Code, Arts. 13.08, 13.-12, 13.14 and 13.15 provide the method to be followed by the Committee in estimating the expenses of the primary, provide that written requests to have a candidate’s name placed on the official ballot must be filed by a certain date, provide for the Committee to make up the official ballot and provide that each candidate must pay his assessed apportionment of the estimated expenses in order to have his named placed on the official ballot. All these steps are to be taken prior to the election and undoubtedly refer to those who have filed their written requests for their names to be placed on the official ballot. Relator did not file a written request that his name be placed on the official ballot. The record does not show that he was a declared candidate. The above named statutes cannot properly be interpreted to deny the voter his right to write-in the name of a person of his choice to be the party nominee, though his write-in choice did not request his name to be placed on the official ballot, and did not pay a filing fee. We know of no statute which requires a nominee to pay a filing fee after a majority of the voters for an office have written in his name as their choice.

Neither do we see any merit in Respondent’s contention that the write-in votes cast for Relator were invalid because as a matter of fact the voters in the Republican Primary did not know, nor should they have known, that an election for Judge, County Court at Law No. 1 was to take place. We do not believe a fact question was raised by such assertion. The statement is in the nature of a conclusion of fact or an opinion unsupported by any basic facts in the record.

Apparently Respondent attempts to base his contention on the fact that neither the title of the office of Judge, County Court at Law No. 1, nor the name of any candidate for that office appeared on the official ballot. But this does not seem to us to be evidence that the Republican voters did not know, nor should they have known, that they could write-in the name of their choice as nominee for the office. The only express authority cited by Respondent is Opinion of the Attorney General, No. 0-2576, dated August 3, 1956. The facts upon which the Attorney General based his opinion may readily be distinguished from the facts in the instant case. Moreover, the Attorney General himself concludes that the listing of the office on the ballot is not essential to the validity of election where the voters write-in both the title of the office and the name of the candidate of their choice. In support of this latter statement the Attorney General cites People ex rel. Goring v. President, Etc., of Village of Wappinger’s Falls, 144 N.Y. 616, 39 N.E. 641; Carlough v. Ackerman, 74 N.J.L. 16, 64 A. 964, and State ex rel. Shriver v. Hayes, 148 Ohio St. 681, 76 N.E.2d 869.

It is not to be overlooked that the official ballot in this case left blank spaces at the bottom of the ballot for the obvious purpose of giving the voters an opportunity to write-in both the titles of offices and the names of those they wished to be the party nominees, thus recognizing the right of the voters to cast such votes. Neither is it to be overlooked that 123 voters did know, and took the time and trouble to write-in both the title of the office and the names of their choices for the nomination.

It would be to embrace a dangerous doctrine indeed if we were to hold that party leaders may deny party members the right to vote for nominees for a public office merely by leaving the title of the office off the official ballot. We shall not so hold.

It would also be to embrace a dangerous doctrine to hold that party leaders may exercise their own discretion in disallowing votes on the ground that in the opinion of the party leaders the voters were not sufficiently well informed to know that they may vote for certain offices. We shall not so hold.

We shall not presume that Dallas County Republican voters were ignorant of their right to vote in 1962 by write-in for their choice of a nominee for the office here involved. The Constitution of Texas in connection with the transition from two to four year terms as provided in Art. 16, §§ 64 and 65 as amended provides for election for the offices of Judge, County Court at Law to be held in 1954 and each fourth year thereafter. This would mean that said offices were to be voted on in 1962. The presumption is in favor of a knowledge of the law, not against it. Texas & NOR Co. v. H. & C. Newman, Tex.Civ.App., 273 S.W. 335, (Syl. 2); E. H. Stafford Mfg. Co. v. Wichita School Supply Co., 118 Tex. 650, 23 S.W.2d 695; Camp v. Thomas, Tex.Civ.App., 26 S.W.2d 470, (Syl. 7); Baxter v. Jarrell, Tex.Civ.App., 34 S.W.2d 315, (Syl. 4); State v. Perlstein, Tex.Civ.App., 79 S.W.2d 143, (Syl. 10).

In view of such presumption we hold that if the voters did not know their rights in this regard, as a matter of law they should have known them. And that is one of the tests laid down in Cunningham v. Queen, Tex.Civ.App., 96 S.W.2d 798, relied on by Respondent.

The mere fact that a comparatively small number of voters exercised their write-in rights is no reason for disallowing their votes. In Carpenter v. Longuemare, 153 Tex. 439, 270 S.W.2d 457 the question arose whether five write-in votes would be counted. The two leading candidates received 1,726 and 1,724 votes respectively. Our Supreme Court held that the five write-in votes must be counted, though their number was small in proportion to the total number of votes cast and though a run-off primary election became necessary as a result of counting the five votes.

We have concluded that Relator’s application should be granted and it is hereby granted. A writ of Mandamus will issue directing Respondent Peter O’Donnell, Jr., Chairman of the Republican Executive Committee to certify the name of John R. Bryant as the Republican nominee for the office of Judge, County Court at Law No. 1, Dallas County, Texas, and a writ will also issue to the County Clerk of Dallas County, Texas directing him to publish, post and print the name of Relator upon the official ballot as the Republican Party’s nominee for said office.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    R. S. DOWD, d/b/a State Line Discount House, Appellant, v. C. L. DOWD, Appellee.
    No. 7441.
    Court of Civil Appeals of Texas. Texarkana.
    July 24, 1962.
    Rehearing Denied Aug. 7, 1962.

      Harkness & Friedman, Texarkana, for appellant.
    Brown & Brown, Texarkana, for appel-lee.
   FANNING, Justice.

Appellant filed suit against appellee in District Court of Bowie County, Texas, on a note in the principal amount of $604.-44, and also sought judgment for attorney fees, interest, costs and foreclosure of a chattel mortgage upon merchandise sold by appellant to appellee.

Appellee, a resident of Bexar County, Texas, filed a statutory plea of privilege, which was controverted by appellant. The trial court sustained the plea of privilege and appellant has appealed.

Appellant seeks to maintain venue in Bowie County, Texas, under Subd. 5 of Art. 1995, Vernon’s Ann.Civ.St. Said subdivision provides as follows: “If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by .reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

The written obligation signed by appellee and sued upon by appellant contains no provision expressly stating that such obligation is payable in Bowie County, Texas. The only provision in the instrument with respect to place of payment reads as follows: “The undersigned promise to pay to State Line Discount House , Firm or Trade Name of Dealer or or er’ a the office of the holder hereof as may be designated from time to time * *

Appellant sought to prove that the office of State Line Discount House, at the time of the filing of the suit, was in Texar-kana, Bowie County, Texas, which evidence was excluded by the trial court over the objection of appellant. By testimony developed on bill of exception plaintiff-appellant proved that State Line Discount House was located in Bowie County, Texas, at the time of the filing of the suit. By his first point appellant contends that the trial court erred in not admitting in evidence the above referred to testimony and by his second point appellant contends that the trial court erred in sustaining the plea of privilege and transferring the cause to Bexar County, Texas.

Appellant, in seeking a .reversal, relies principally upon the cases of Cities Service Oil Company v. Brown, 119 Tex. 242, 27 S.W.2d 115; Harrison v. Nueces Royalty Company, Tex.Civ.App., 163 S.W.2d 244, wr. dism.; and Coffield v. Richter, Tex.Civ.App., 229 S.W.2d 97, n. w. h. These cases are clearly distinguishable from the case at bar. The written contract in the Brown case contained the following language with respect to place of payment “ * * * I or we, promise to pay the above amount at the principal office of the company. * * * ” The written contract in the Harrison case contained the following language with respect to place of payment. “ * * * promise to pay to Nueces Royalty Company, or order, * * * both principal and interest payable at the office of Nueces Royalty Company. * * * ” In the Coffield case the written agreement described the oil involved as being stored in a storage tank located on the Magnolia lease pump station at Schulenberg, Texas.

However, in the written instrument here in question, the place of payment is not stated, unequivocally and with definite certainty, to be at State Line Discount House. The provision in question here provides that the appellee Dowd promises “to pay to State Line Discount House or order, at the office of the holder hereof as may be designated from time to time. * * * ” The instrument is a negotiable instrument and could be transferred to a holder or holders whose offices might not be in Bowie County, Texas, but might be in various other counties, and “as designated from time to time” as provided in the instrument. We think this case is more closely akin to the case of Yell v. Prock, Tex.Civ.App., 238 S.W.2d 238, wr. dism., and authorities cited therein, than to the Brown, Harrison and Coffield cases.

In Yell v. Prock, supra, a plea of privilege case, the suit was on a note payable “to the order of the General Distributing Company, 2814 Main Street, Dallas, Texas, or at such other place as the holder hereof may from time to time in writing appoint.” We quote in part from Yell v. Prock, supra, as follows:

“The holder of the note is not entitled to maintain venue in Dallas County under the above quoted provision. The contract did not, at the time of its execution, require performance in any particular county, but left the matter open, to be determined at some future time at the will and pleasure of the holder of the note. The question is foreclosed by a number of decisions, including McManus v. Texas Development Bureau, Tex.Civ.App., 73 S.W.2d 655; W. T. Rawleigh Co. v. Karnes, Tex.Civ.App., 103 S.W.2d 431; W. T. Rawleigh Co. v. Cooper, Tex.Civ.App., 111 S.W.2d 776. Two cases are cited by appellee. The distinction between Pavlidis v. Bishop & Babcock Sales Co., Tex.Civ.App., 41 S.W.2d 294, and the case before us, lies in the fact that in the cited case the place of payment was stipulated in the contract as being one or the other of two named places, while in the case before us the place of payment was left open to determination by the holder of the note at some later date. This particular question was discussed in the McManus case, supra. In Harrison v. Nueces Royalty Co., Tex.Civ.App., 163 S.W.2d 244, the only question before the court was whether or not the place of performance stated in the contract might be established as being within a particular county by extraneous proof.”

The judgment of the trial court is affirmed


author: McDONALD, Chief Justice.

text:
    Gordon L. ROARK, Appellant, v. The OUACHITA NATIONAL BANK IN MONROE, Appellee.
    No. 4029.
    Court of Civil Appeals of Texas. Waco.
    May 24, 1962.

      Gordon L. Roark (no atty. listed for appellant), pro se.
    Sleeper, Boynton, Burleson, Williams & Johnston, Minor L. Helm, Jr., Waco, for appellee. .
   McDONALD, Chief Justice.

This proceeding involves a Motion to Affirm on Certificate. Plaintiff Bank secured a judgment against defendant Roark in the District Court of McLennan County on 1 February 1962. Defendant gave notice of appeal; filed bond; and tendered a transcript for filing in this court on 4 April 1962 (after the expiration of the 60 day period for filing transcript prescribed by Rule 386 T.R.C.P. had expired). Such transcript was not filed, but was marked "Received, not filed, 4 April 1962.”

Thereafter, on 27 April 1962, plaintiff filed motion for affirmance on certificate.

It is undisputed that the transcript was not tendered for filing within the 60 day period prescribed by Rule 386 T.R.C.P., nor was motion made to extend the time for such filing within the IS day period prescribed, or at any other time.

Defendant’s Motion for Affirmance on Certificate is granted. See: Rule 387 T.R.C.P., Taylor v. Humble Oil Co., Tex.Civ.App., 293 S.W.2d 834.

Affirmed on certificate.


author: WILLIAMS, Justice.

text:
    BACHMAN CENTER CORPORATION, Appellant, v. Lewis A. SALE, Appellee.
    No. 16022.
    Court of Civil Appeals of Texas. Dallas.
    June 22, 1962.
    Rehearing Denied July 20, 1962.

      , Turner, Rodgers, Winn, Scurlock & Terry and James W. Leftwich, Dallas, foi appellant.
    Wm. Andress, Jr., Dallas, for appellee.
   WILLIAMS, Justice.

Suit to recover commission. Lewis A. Sale sued Bachman Center Corporation alleging that he was the owner of 35% of the outstanding capital stock of said corporation and a director thereof; that the Directors of said Corporation had, by resolution, authorized Sale to secure leases on property owned by the Corporation; that he was to be paid a commission in accordance with the Dallas Real Estate Board schedule; that he had procured two leases and that the Corporation was indebted to him for commissions. This appeal follows granting of summary judgment in favor of plaintiff and denial of summary judgment of defendant.

By its first point on appeal appellant contends that the trial court erred in granting appellee’s motion for summary judgment since said motion had already been denied by another District Judge. The record reveals that on January 19, 1960 the Honorable Dallas A. Blankenship, Judge of the 101st District Court of Dallas County, Texas, heard and considered motions for summary judgments presented by both appellant and appellee and, on the 29th day of January 1960 entered an order overruling same. Thereafter on May 8th, 1961, the Honorable Paine L. Bush, Judge of the 68th District Court of Dallas County, Texas heard and considered appellee’s motion for summary judgment together with appellant’s amended motion for summary judgment, and on the 15th day of June 1961 entered the present order. Appellee’s original suit, filed in the 101st District Court was in the nature of a suit for commissions and also a stockholder’s derivative suit for restitution. When Judge Blankenship heard the motions for summary judgment the original suit was intact. Thereafter, the suit for commissions had been severed from that part of the case dealing with the derivative stockholder’s action. Furthermore, after this part of the severed cause had been transferred to the 68th District Court appellee’s deposition had been taken and considered by the Court when both motions for summary judgments were again presented to Judge Bush. It is fundamental that a District Court has the inherent right to change or modify any interlocutory order or judgment down to the time when the judgment on the merits of the case becomes final. Rule 166-A, Texas Rules of Civil Procedure. Sneed v. Martin, Tex.Civ.App., 292 S.W.2d 891; Wichita Falls & S R Co., v. McDonald, 141 Tex. 555, 174 S.W.2d 951; Manley v. Razien, Tex.Civ.App., 172 S.W.2d 798; 25 Tex.Jur. 549, 550. The summary judgment rule clearly intends that the trial court shall determine from the entire record then before it whether in fact there is a disputed material issue to be determined by a trier of facts. Burnett v. Cory Corporation, Tex.Civ.App., 352 S.W.2d 502. Appellant’s first point is overruled.

Appellant’s primary contentions are found in points 2, 3, 4, and 5 wherein it is claimed that the court erred in granting appellee’s motion for summary judgment and in denying appellant’s amended motion for summary judgment because ap-pellee could not recover herein as a matter of law, in that (a) he did not have a real estate license as required by the Texas Real Estate License Act, Art. 6573a § 19, Vernon’s Ann.Civ.St. and (b) he had no written contract for commissions as required by Texas Real Estate License Act, Art. 6573a, § 28, V.A.C.S. Appellee counters these points with the contention that same have been waived by appellant in that said defenses of illegality were not affirmatively pleaded. Appellee, in his petition, did not plead that he was a duly licensed real estate broker or salesman. Appellant’s only answer is a general denial. As a general rule the defense of illegality must be specifically pled and if not, is waived. Rules 90 and 94, T.R.C.P. Enfield Realty & Home Building Co. v. Hunter, Tex.Civ.App., 179 S.W.2d 810; Lobstein v. Watson, Tex.Civ. App., 186 S.W.2d 999 and Goen v. Hamilton, Tex.Civ.App., 159 S.W.2d 231. However, this is a summary judgment action and not a trial on the merits of the case. While it is true that appellant did not affirmatively plead defenses of illegality in its answer such defenses of lack of license and lack of written contract were brought to the attention of the trial court prior to the rendition of the final judgment. Such pleadings are contained in appellant’s amended motion for summary judgment filed May 6, 1961, prior to the judgment of June 15,1961. The identical contention made by appellee here was advanced in Juliani v. Fitz-Gibbon, Tex.Civ.App., 234 S.W.2d 448. The court there held that even though the affirmative defense of lack of dealer’s license had not been affirmatively pled, yet there was no waiver where the matter had been brought to the attention of the Judge prior to the rendition of final judgment. We therefore hold that appellant did not waive its defenses of illegality.

We now turn our consideration to what we deem to be the crucial points on this appeal, namely, points 4 and 5 wherein appellant contends that appellee could not recover, as a matter of law, because of his failure to have a written contract for commissions as required by the Texas Real Estate License Act, Art. 6573a, V.A.C.S. § 28.

Art. 6573a, V.A.C.S. provides:

“Sec. 28. No action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which action shall he brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunder lawfully authorized.”

A lease transaction is a “sale” of real estate within the contemplation of this Article. McConnell v. Columbia Co., Tex.Civ.App., 326 S.W.2d 20; Banks v. Caroline Realty Co., Tex.Civ.App., 331 S.W.2d 946.

The only writing relied upon by appellee to meet the requirements of this Statute is the corporate resolution, duly adopted, reading as follows:

“Resolved, that Lewis A. Sale, shall be appointed exclusive leasing agent of the corporation to lease the store rooms to be situated in the shopping center to be constructed by the corporation, and that he shall be paid as compensation the commissions recommended and adopted by the Dallas Real Estate Board which are in effect at the time each such lease is executed and delivered.”

Exhibit No. 1, attached to appellee’s deposition is a copy of the schedule of the commissions of the Dallas Real Estate Board, “revised as of January 1, 1959”. The leases in question were signed in the year 1956. Appellee Sale, in his affidavit in support of motion for summary judgment, recites that he was familiar with the schedule of commissions for procuring leases promulgated by the Dallas Real Estate Board in 1956 and then stating what such commissions would be. The record further reveals that after the adoption of the corporate resolution Lewis A. Sale presented a written contract of employment as exclusive leasing agent to the corporation, but that said contract was not approved, nor was any other written contract ever entered into between Sale and the Corporation.

The paramount question, therefore, is whether the Corporate resolution is sufficient, as a matter of law, to meet the requirements of the statute. The provisions of the Real Estate License Act (Art. 6573a, V.A.C.S.) relating to written agreements for commissions are a portion of the statute of frauds and must be construed in the same manner. Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515. It has also been held that corporate minutes and corporate resolutions, if otherwise sufficient and complete, constitute such writings as meets the statute of frauds. Texas Western Ry Co. v. Gentry, 69 Tex. 625, 8 S.W. 98; Republic Supply Co. v. Waggoner, Tex.Civ.App., 283 S.W. 537, writ ref.; Smith Detective Agency & Night Watch Service v. Town of Highland Park, Tex.Civ.App., 5 S.W.2d 598 and note in 127 A.L.R. 236.

Even so, the writing, whether it be a corporate resolution or a separate contract in writing, relied upon by the person bringing the action for commissions must be complete in itself in every material detail. Denman v. Hall, supra. The contract must contain the essentials of a contract so that they may be ascertained from the writing without resort to parol testimony. Denman v. Hall, supra; Dunn v. Slemons, Tex.Civ.App., 165 S.W.2d 203; Couser v. C & M Produce Co., Tex.Civ.App., 174 S.W.2d 984; Penrod v. Krebs, Tex.Civ.App., 240 S.W.2d 388; McConnell v. Columbia Co., Tex.Civ.App., 326 S.W.2d 20; Davis v. Freeman, Tex.Civ.App., 347 S.W.2d 650.

In the recent case of Davis v. Freeman, supra, this Court had occasion to pass upon a very similar question in which the written contract for commissions relied upon by the plaintiff contained a provision that he was to be paid “the usual sale commissions, in accordance with the schedule recommended by the Dallas Real Estate Board.” We held that such contract was an insufficient writing in that it would be necessary to introduce parol testimony concerning the amount of the commissions on the date in question. Our holding there was supported by the decision of the Supreme Court in Buratti & Montandon v. Tennant, 147 Tex. 536, 218 S.W.2d 842, 9 A.L.R.2d 742 which was a case involving a contract which provided that the seller shall pay the agent “the usual commission”. Chief Justice Hickman of the Supreme Court, in deciding that the contract was insufficient, said :

“The long-standing rule in this court is that the essential elements of a contract required to be in writing may never be supplied by parol. Jones v. Carver, 59 Tex. 293; Osborne v. Moore, 112 Tex. 361, 247 S.W. 498; Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150. A contrary rule would practically set at naught the statute of frauds. Discussing the particular statute under review here we stated in Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515, 516, that ‘Its purpose, like that of other sections of the Statute of Frauds, is to prevent fraud arising from parol testimony as to the terms and conditions of such contracts.’ That purpose could not be served if evidence were admitted to establish that respondents agreed orally to pay petitioners a commission for effecting a consummated sale.”

It is quite obvious that the rule just quoted applies with equal force to the factual situation here presented. The corporate resolution, in order to be effective, must be supported by parol testimony concerning the amount of the commission due in 1956, the date the leases were obtained and accepted by the corporation. The schedule of fees of the Dallas Real Estate Board, introduced in evidence, are effective in 1959. It was incumbent upon Sale to supply, by parol testimony, what the commissions would have been in 1956. Accordingly, the writing relied upon by appellee is insufficient, as a matter of law, to constitute a valid written contract within the meaning of the Statute, and it therefore follows that his cause of action must fail. Appellant’s points 4 and 5 are sustained.

Our action with reference to the foregoing points renders it unnecessary that we discuss or pass upon the remaining points advanced by appellant.

The judgment of the trial court is reversed and here rendered that appellee take nothing against appellant.

Reversed and rendered.


author: ARCHER, Chief Justice.

text:
    EASTWOOD MODEL MARKET, Appellant, v. The STATE of Texas et al., Appellees.
    No. 10991.
    Court of Civil Appeals of Texas. Austin.
    July 11, 1962.
    Rehearing Denied Aug. 2, 1962.

      Bruce Waitz, San Antonio, for appellant.
    Will Wilson, Atty. Gen., Sam Lane, Asst. Atty. Gen., Austin, for appellees.
   ARCHER, Chief Justice.

This is an appeal from a judgment in favor of the State, appellee herein, against Eastwood Model Market, a corporation, appellant, engaged in the retail grocery business, for the full amount sued for, aggregating $2,729.75 as unemployment compensation contributions unpaid, penalty and interest.

Eastwood began business on May 24, 1955 with Carl C. Waitz as President, principal stockholder and manager. On the 9th day of October, 1953, Waitz became the owner and operator of a grocery store known as Nolan Red & White and continued to operate this store until November 27, 1954 when he sold it to Manuel Z. Tor-reno on satisfactory terms and worked for Mr. Torreno for one month and then worked for Sweeney & Company, a wholesale grocery concern, for about five months. During a part of this time Sweeney was constructing a new store at Eastwood Village about two miles from the Nolan Store and was working out an arrangement so Waitz could take over the new location. The Sweeney & Company finances a large number of independent grocers and, in addition to selling them groceries, provides an accounting service. The concern kept the books of the Eastwood Model Market, prepared payroll, tax returns, etc.

The Eastwood Model Market was incorporated on May 24, 1955, with Carl C. Waitz as majority stockholder and his wife Edith M. Waitz and his father, George Waitz, Sr., as minority stockholders. Sweeney leased to Eastwood Model Market a large area at a weekly rate of $384.61 and the market was operated until it was sold to Sweeney. A new store was opened by Waitz in Mission, Texas, and the name of the corporation changed to Waitz Grocery Company, Inc. Waitz, as owner of the Nolan Red & White Store established an experience rate of 0.5%

There was no joint application made by Waitz as a predecessor employer and the Eastwood Model Market, a corporation, as is required by the statute, Art. 5221b, Vernon’s Ann.Civ.St. and appropriate sections, particularly section 7, with its amendments. All reports and forms submitted to the Texas Employment Commission were filled out for the corporation by Waitz as an individual as owner. The Market continued to use the experience rate established by Waitz with the approval of the Commission and contributions, based on such experience rate, were accepted.

When knowledge came to the Commission that Eastwood Model Market, a corporation, was not Carl C. Waitz doing business under that name but a new corporate entity, the Commission charged back to such new entity the tax that had accrued to it by law as a new business, less credit for 0.5'% already paid.

This suit was filed and on trial, judgment was rendered against appellant.

The appeal is founded on six points and are to the effect that the Court erred in holding that appellant was a new employer not entitled to inherit the experience rating of Waitz, in not holding that the corporation was the alter ego of Waitz, in not disregarding the corporate fiction, in not piercing the corporate veil of Eastwood Model Market, and in holding that the appellant corporation and Carl C. Waitz were two employing units and not one.

We do not believe that the Trial Court erred in not holding that the corporation was the alter ego of Carl C. Waitz, its President and a majority stockholder, but believe that in order for the corporation to succeed to and acquire the experience rate of Carl C. Waitz individually, the requirements of the Compensation Act governing the transfer of experience rating from predecessor employer to a successor employer had to be complied with.

In order for the Trial Court to have disregarded the legal fiction of the entity the circumstances must be such as where the fiction is used as a means of perpetrating a fraud. First National Bank in Canyon v. Gamble (opinion adopted by Sup.Ct), 134 Tex. 112, 132 S.W.2d 100, 125 A.L.R. 265; Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340.

There is no evidence or intimation that the corporation was organized or operated to sanction fraud or promote injustice, but that such was operated in good faith. A corporation cannot be used when it benefits the stockholders and officers and be disregarded when it is to the advantage of the organizers to do so. The appellant corporation had to be either a new business or a successor business, and if it was a new business, by law, it had to receive a rate of 2.7% and if it was a successor business, the requirements of subsec. 5(c) (7) of Art. 5221b, V.A.C.S., then in effect, were not complied with so as to entitle appellant to the experience rating theretofore existing for Carl C. Waitz.

Sharfstein v. Texas Employment Commission, Tex.Civ.App., 245 S.W.2d 545, error ref., N.R.E.

The judgment of the Trial Court is affirmed.

Affirmed.


author: PER CURIAM.

text:
    James F. BLAND v. J. W. FREE.
    No. A-8079.
    Supreme Court of Texas.
    July 11, 1962.
    Olin P. McWhirter, Greenville, Florence, Garrison & Holt, Gilmer, for petitioner.
    Fulton, Hancock & McClain, Gilmer, for respondent.
   PER CURIAM.

As reported in Tex., 344 S.W.2d 435, acting under Rule 483, Rules of Civil Procedure, we reversed the Judgment of the Court of Civil Appeals (337 S.W.2d 805), and affirmed the Judgment of the trial court in this cause.

The Supreme Court of the United States granted a writ of certiorari, 368 U.S. 811, 82 S.Ct. 50, 7 L.Ed.2d 21 and on May 21, 1962 reversed our decision and remanded the cause to us for proceedings not inconsistent with their opinion. 82 S.Ct. 1089, 8 L.Ed.2d 180.

In the course of its opinion the Court said:

“The regulations are not intended to be a shield for fraud and relief would be available in a case where the circumstances manifest fraud or a breach of trust tantamount thereto on the part of a husband while acting in his capacity as manager of the general community property. Howerver, the doctrine of fraud applicable under federal law in such a case must be determined on another day, for this issue is not presently here.”

We have examined the transcript of the pleadings in the trial court, and there are no allegations of fraud contained in any of the pleadings filed by petitioner, James F. Bland. Under this record no such issue is raised in this cause.

Our Judgment heretofore entered March 8, 1961 is set aside, and the application for writ of error is refused, no reversible error.


author: HAMILTON, Justice.

text:
    SKILLERN & SONS, INC., Petitioner, v. Florence ROSEN, Respondent.
    No. A-8441.
    Supreme Court of Texas.
    July 25, 1962.

      Strasburger, Price, Kelton, Miller & Martin, Dallas, for petitioner.
    Woodruff & Hill, Dallas, for respondent.
   HAMILTON, Justice.

The opinion delivered on April 25, 1962, is withdrawn and the following is substituted therefor:

This is an action for damages brought by respondent, Florence Rosen, against petitioner Skillern & Sons, Inc., alleging that she slipped and fell in petitioner’s drugstore and was injured. Trial was to a jury, and on the jury’s verdict judgment was entered for petitioner. On appeal to the Court of Civil Appeals that court reversed and remanded the case. 346 S.W. 2d 352. Petitioner is here complaining that the Court of Civil Appeals was in error in holding that the trial court had erred in refusing to allow hearsay and self-serving declarations of the respondent to be admitted in evidence. The Court of Civil Appeals held that such declarations were admissible on two theories, one on res gestae and the other on the theory of “recent fabrication”. In our opinion the declarations were not admissible. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

In answer to the suit for damages based on negligence, petitioner filed a general denial and in addition to alleging several acts of contributory negligence on the part of the respondent, especially pleaded that she did not fall in Skillern’s drugstore. The first special issue in the court’s charge was:

“Do you find from a preponderance of the evidence that on the occasion in question Florence Rosen fell on the floor in the Skillern drugstore?”

The jury answered this question “No”. The court instructed the jury that if it had answered issue No. 1 “No”, then it need not answer any other issue in the charge. It was on this verdict that the trial court rendered its judgment for petitioner.

Florence Rosen testified that on the afternoon of December 30, 1958, it was snowing, sleeting and raining, and that the streets and sidewalks of downtown Dallas were covered with snow, sleet and slush. She had brought her car into town that day and had promised to pick up her sister, Mrs. Ira Lewis, at the Doctors Building about 5 o’clock. Owing to the bad weather she decided not to drive her car home, but to try to catch a taxicab or bus. This she had been unable to do after waiting some forty-five minutes or an hour. Realizing that she was late, she testified she went into the Skillern drugstore to telephone her sister that she would be late, and to get a cup of coffee. After entering the drugstore she noticed a puddle of water to her left and near the cigar counter and the cash register. She veered around the puddle of water some three or four feet from it. As she did so, her left foot slipped and she fell on her elbow and on her back. As she lay on her back she noticed some droplets of water in the vicinity of where she was lying. Two men came and helped her up. She did not realize that she was hurt, but she was embarrassed and immediately left the drugstore without reporting to any employee of the drugstore that she had fallen. She walked to where her car was parked and drove to the Doctors Building to pick up her sister about 6:30. She parked the car and went in the building to get her sister. At that time her elbow was paining her considerably. She drove her sister to the apartment house, some five miles distant, where they lived together. Her physician, Dr. Bywaters, was called for an appointment and a neighbor in the apartment building, a Mr. Wenger, was called to drive with them to Baylor Hospital. She had difficulty in getting her jacket off on account of the pain in her elbow and on account of a zipper that would not work. Mr. Wenger came in and assisted Florence Rosen in removing her jacket and drove the sisters to Baylor Hospital, where respondent received emergency treatment from Dr. Bywaters. Not being able to get a room in that hospital, they went to Gaston Hospital, where she saw Dr. Bywaters again.

After respondent testified, she called as her first witness, Dr. Bywaters, who testified that he saw respondent first on the evening of December 30, 1958, in the Baylor Hospital emergency department. When asked what history she gave him at that time he answered:

“Well, she said she had fallen in the drugstore inside that building; now I have it recorded that she passed through a revolving door and fell on a wet place on the floor.”

He diagnosed the injury as a fractured elbow which required an operation, which he performed the next day. She remained in the hospital on this occasion until January 22, 1959.

Respondent also presented as witnesses three of the employees of Skillern’s drugstore who were on duty the day of the alleged accident. They were Mr. Edward D. Fuhrman, Nancy Carol Hardy and Stanford Harris, Jr. Mr. Fuhrman testified that he was pharmacist in the drugstore and was assistant manager. He was in charge of the drugstore when the manager, Mr. Allison, was not there, and said at the time of the alleged accident Mr. Allison was not in the store. He further testified that from where he was working at the time of the alleged accident he was not in position to see Miss Rosen fall, if she did. No one reported to him that anybody fell in the store on that evening.

Miss Hardy testified that she was cashier and sold cigars and cigarettes. She was on duty at the time of the alleged accident. She was behind the counter just opposite the place where Florence Rosen said that she fell; she testified she did not see Miss Rosen fall and in effect said she would have seen the fall had it happened.

Stanford Harris, Jr., testified that he was porter in the drugstore and usually went home about 5:30 in the afternoon. He did not know about anybody falling in the store.

After the respondent rested, the defendant called Miss Edith B. Fisher to testify. She testified that she was an employee of Skillern’s drugstore and was on duty the evening of December 30, 1958, at the time of the alleged accident. She worked in the cosmetics department, which was on the west side of the store opposite the cigar counter and cash register. She testified in effect that if Miss Rosen fell where she said she did, she could have seen her, but she did not see her fall, and knew nothing about any such fall.

The records of Gaston Hospital were introduced by petitioner. Such records contained a history given by Florence Rosen and her sister, Mrs. Ira Lewis. Since it appears that the two of them went to the hospital together, the jury was entitled to conclude that the statements to the employee were made by Miss Rosen or by the sister in her presence. A part of such history reads:

“The patient slipped and fell at 5:30 p. m. while walking in the slushy snow in front of a local drugstore.”

The same hospital records also show that she was discharged on January 22, 1959, and in the discharge summary there is this statement:

“Patient received injury by falling on floor of a store. Treated in emergency room at Baylor.”

Respondent sought to introduce declarations made by respondent Florence Rosen to Mrs. Ira Lewis, the sister, Mr. Wenger, the neighbor in the apartment house, and Milton Angrist, respondent’s employer, to the effect that she fell in Skillern’s drugstore on the occasion in question, under the recent fabrication theory. Petitioner objected to the introduction of such testimony on the grounds that it was hearsay and self-serving. The sustaining of such objections was one ground on which the Court of Civil Appeals reversed the trial court.

Petitioner contends that the Court of Civil Appeals was in error because the prior consistent hearsay and self-serving statements of Florence Rosen, sought to be introduced, were not shown to have been made at a time when no motive or interest existed for the making of such statements.

This court has heretofore recognized the recent fabrication theory as an exception to the hearsay rule under certain situations. One situation is where a witness is sought to be impeached by the opposing party by the introduction of a prior statement of the witness inconsistent with his testimony at the trial. Aetna Insurance Co. v. Eastman, 95 Tex. 34, 64 S.W. 863. Another situation is where the opposing party seeks to impeach a witness by introducing testimony to the effect that the witness failed to speak at a time when he could have been reasonably expected to have done so. Houston & T. C. Ry. Co. v. Fox, 106 Tex. 317, 166 S.W. 693; Whitener v. Traders & General Ins. Co., 155 Tex. 461, 289 S.W.2d 233. In each of these situations it has been held that prior consistent statements, with certain limitations, may be introduced to counteract the inference that the witness may be telling an untruth at the trial.

One seeking to have hearsay declarations of a witness admitted as an exception to the general rule must clearly show that they are within the exception. It is said in the Aetna v. Eastman case, supra:

“The declarations offered in evidence in such cases are at best hearsay, and are inadmissible under the general rule; and we are of the opinion that, if the declarations are sought to be brought within the exception, the grounds which take it out of the rule ought clearly to appear.”

The Supreme Court, speaking through Justice Gaines, in the Aetna v. Eastman case, supra, which we consider the leading case in Texas on the doctrine of recent fabrication, in clear and concise language laid down the rule and the reasons therefor under which prior consistent statements could be admitted. We quote :

“* * * (1) That, in the absence of evidence impeaching the credibility of a witness, such testimony is never admissible. Moody v. Gardner, 42 Tex. 414. (2) That whenever a witness is sought to be impeached by showing that he has made declarations inconsistent with the testimony given by him upon the trial, and the tendency of such impeaching evidence is to show that the testimony of the witness is, by reason of some motive existing at the time of the trial, or of some influence then operating upon him, fabricated, it is proper to admit evidence of his former declarations which corroborate his testimony, provided such declarations were made at a time when no such motive or influence existed. Lewy v. Fischl, 65 Tex. 311; Com. v. Jenkins, 10 Gray, 489; State v. Flint, 60 Vt. 304, 14 Atl. 178; Barkly v. Copeland, 74 Cal. 1, 15 Pac. 307. * * * At the time of the alleged declarations to Sweeton, did the plaintiff have a motive to misrepresent the fact stated by him? Sweeton testified that the declarations were made to him the day after the additional insurance was taken out. If at that time the plaintiff had not notified Mag-rill, the agent of the defendant company, that he had taken out the additional insurance, the policy sued upon was void. If he had so notified him, it was a valid and subsisting contract. Hence it was a self-serving declaration. Whether his interest in the matter induced him to make the statement or not is not, as we understand, a question to be inquired into by the court in determining the admissibility of the declaration. If the motive did not exist, the evidence is admissible. If it did, it should be excluded. * * * The reason that evidence of former declarations of a witness are admissible in such cases is that his testimony having been assailed on the ground that he had an interest to fabricate it, proof that he made statements consistent with that testimony at a time when he had no such interest tends to show that the testimony was not an afterthought and to rebut the theory of fabrication. As we think, according to the best authorities, this is the reason of the rule and suggests its appropriate limitations.”

In 140 A.L.R., pp. 1 to 185, there is an exhaustive annotation on the case of Sweazey, Admr., etc. v. Valley Transport, Inc., by the Washington Supreme Court, 6 Wash. 2d 324, 107 P.2d 567, 111 P.2d 1010. That case holds that prior consistent statements are admissible to rebut a claim of recent fabrication of testimony only where such statements were made before the time when their ultimate effect and operation could be foreseen and no apparent motive for falsification existed. We quote from the opinion:

“Not every consistent statement made. by a witness prior to the time his testimony is given is admissible to rebut the claim of recent fabrication. Unless the statement was made before the time when its ultimate effect and operation could be foreseen, it lacks any probative value to rebut the claim of recent fabrication. A statement made by a witness when its use to meet a claim of recent fabrication is foreseeable, has no relevancy as tending to prove the charge of recent fabrication is false. In Callihan v. Washington Water Power Co., supra, we stated [27 Wash. 154, 67 P. 700, 56 L.R.A. 772, 91 Am.St.Rep. 829]: ‘Another exception to the rule is that, if a witness be impeached by proof of his having previously made statements that were in' contradiction of evidence tending to show that the witness’ account of the transaction was a fabrication of a recent date, it may be shown that he gave a similar account before its effect and operation could be foreseen.’ (Italics ours.)”

The Court of Civil Appeals relied on the case of Houston & T. C. Ry. Co. v. Fox, 106 Tex. 317, 166 S.W. 693. Mrs. Fox testified in that case that she was severely injured just before alighting from the defendant company’s train at Hearne. Her injuries resulted from a fall caused by a sudden jerking of the train. The defendant railroad company asserted that there was no accident or injuries to Mrs. Fox; that she had fabricated the whole matter. To sustain the charge evidence was offered to prove that she did not complain to the railroad employees; she did not mention the fact of the accident to a family with whom she s'pent the night of the day on which she claimed to have been injured; she did not speak of the accident or injuries to her neighbors upon returning home; and she did not speak of her injuries to a doctor who examined her some time later for an insurance policy. The defendant’s contention was that by remaining silent while claiming to be suffering from severe injuries the inference is that she did not have an accident and was not injured. Plaintiff countered with testimony that she did speak on these occasions about her accident and injuries by showing that she told her sister the next morning after the day of the accident of the time, place, circumstances and manner in which she was injured; also, she told her husband the same thing on returning home from her trip, and at about the time she was examined by the doctor for insurance she had told the insurance agent writing the insurance of her accident and injuries. The defendant objected to these declarations by Mrs. Fox, testified to by witnesses, on the ground that they were hearsay and self-serving. Concerning such testimony the court says:

“ * * * To meet these charges she proved that at a time near to that mentioned she did speak of the fact of the accident to her, giving the time and place. By this evidence the issue of fabrication was met. But- in addition to the fact of the injury her statements of circumstances of the accident, including the manner in which she was injured, were admitted over the objections of the defendant. The declarations which went beyond the facts of ■ the accident were not relevant to the issue of fabrication, and should not have been admitted; they were self-serving declarations, therefore inadmissible. We will not undertake to analyze the evidence and state the portion not admissible, but the trial court at another hearing will confine the declarations of Mrs. Fox to such as tends to prove the occurrence of the accident and injury. It is difficult to be specific on this question, and much must be left to the trial judge.”

It appears that the court was saying here that since on each occasion defendant sought to show that Mrs. Fox was silent about her accident and injuries at a time when she could have been reasonably expected to speak of them, it would be permissible for the plaintiff to show by other witnesses that she did speak of her accident and injuries at or near those particular times. However, the court said the testimony was not admissible because the statements went beyond the fact of the accident and injuries, indicating that the time, place, circumstances and manner in which she was injured were not admissible. The court in its opinion states specifically that it is not in conflict with the Aetna v. Eastman case, supra. We do not consider that this case holds contrary to the proposition that hearsay declarations are admissible to rebut recent fabrication only when made at a time when no motive for falsification existed.

Both the Eastman case and the Fox case, as well as other authorities on this subject generally, recognize the difficulty in applying the rule governing the admissibility of prior, consistent statements to rebut the issue of recent fabrication. Necessarily, much must be left to the discretion of the trial judge in applying the rule.

The trial judge, on the facts of this case, in passing upon the admissibility of the self-serving declarations of the respondent, could have determined that at the time they were made respondent had a motive for making such declarations for the purpose of offsetting the effects of the inference of recent fabrication raised by her failure to speak out at the time and place of her alleged injury. According to the Eastman case, supra, the court was not concerned with whether respondent in making the declarations was influenced by the motive. The question was, did a motive exist at the time she made them. The trial court has wide discretion in applying the rule. We can not say that it abused its discretion in this case.

Respondent argues that the holding in this case conflicts with that of Texas Employers Insurance Association v. Thames, 236 S.W.2d 203 (Tex.Civ.App.1951, error refused) in so far as evidence of prior statements by respondent consistent with her testimony at the trial that she fell inside the Skillern Drugstore, was held to have been properly excluded. Respondent further contends that the effect of this holding will be to prevent litigants from relying on the doctrine of recent fabrications when they most need it, and to enable defense attorneys to create an inference without rebuttal that plaintiffs in personal injury cases mch as this one have fabricated a case.

The Thames case was a workmen’s compensation case in which plaintiff claimed general injuries and had testified to general injuries. The insurer introduced the testimony of two doctors who had treated plaintiff, both of whom testified that plaintiff had complained only of the specific injury to his arm, thus by implication charging plaintiff with fabricating the general injury claim. It was there held that under the rule of recent fabrication it was not error for the trial judge to admit, in rebuttal, portions of plaintiff’s notice to the Industrial Accident Board of his injury and claim, notwithstanding the rule that these notices to the Board are hearsay if offered to prove the injury.

Respondent argues that in that case the prior consistent statement (notice of injury) was made at a time when the plaintiff had as much or more motive to fabricate than did Miss Rosen in the instant case.

We do not agree. The notice of injury and claim in the Thames case was prepared before any motive could have existed to rebut the issue of recent fabrication raised by the failure of the plaintiff to tell the doctors of his general injury.

Another reason the trial court could have refused to admit the offered testimony is because it was not the defendant company that first offered the testimony which raised the inference of recent fabrication, but it was the plaintiff, Miss Ro-sen, who testified on direct examination that she left the drugstore without speaking to any employee therein about her fall or injury. Therefore, since she brought out the fact that she remained silent when she might reasonably have been expected to speak, she, in effect, set up her own defense of recent fabrication. She can not take advantage of the exception of the .hearsay rule to rebut such inference which she raised by her own testimony on direct examination. It is our opinion that the trial court did not abuse its discretion in rejecting the testimony of Mrs. Lewis, Mr. Wenger and Mr. Angrist as to declarations made by the plaintiff under the recent fabrication rule.

The Court of Civil Appeals also held that the testimony of the witnesses Mrs. Ira Lewis and Kenneth Wenger that the plaintiff had told them about how she fell and injured herself in Skillern’s drugstore was admissible as “res gestae”. It appears that the statement made to Mrs. Ira Lewis was about forty-five minutes after the accident and to Mr. Wenger some time later. It was shown that Miss Rosen was suffering pain on both occasions, but there is nothing in the record to show that such statements were part of the transaction or the fall, or made under such circumstances as to raise a reasonable presumption that they were spontaneous utterances of facts created by or arising out of the accident itself. They were made in response to questions relating to a past event. If they are not in their nature a part of the fact, they do not constitute a part of the res gestae and are inadmissible, though closely related in point of time. Texas Interurban Ry. Co. v. Hughes, (Tex.Com.App.) 53 S.W.2d 448; Pacific Mutual Life Ins. Co. of California v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709.

We hold that the trial court did not abuse its discretion in excluding the testimony offered under the res gestae rule.

Respondent also complains of the action of the trial court in admitting into evidence records of Gaston Hospital which had to do with her admission into said hospital. We agree with the Court of Civil Appeals that such records were admissible.

The particular part of the record to which objection was made was a page out of the records which purported to be the history given an employee of the hospital by Mrs. Rosen and her sister. In this personal history record was the statement “The patient slipped yesterday at 5:30 while walking in the slushy snow in front of a local drugstore.” The objections made were that the records were not properly proven up, and that they were hearsay.

Since Gaston Hospital was not shown to be a public hospital, the records, if admissible at all, would be made so by virtue of Article 3737e, Vernon’s Ann.Civ. St., which provides for the admissibility of records if the judge finds:

“(a) It was made in the regular course of business;
“(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
“(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.”

Section 2 of said article further provides that such record may be proved by the custodian of the records even though he may not have personal knowledge as to the various items or contents of such memorandum or record.

Section 4 of said article assures that hospital records, properly proven up, can come within the purview of Article 3737e because “business” is defined as including “any and every kind of regular organized activity whether conducted for profit or not.” (Emphasis added.)

We think proper predicate was laid for the introduction of such records by the testimony of the custodian of the records, she having testified that they were made in the regular course of business of Gaston Hospital by an employee of the hospital at or near the time of the entry of the respondent into the hospital, and that it was customary for a record to be kept of the personal history of a patient entering the hospital.

Some employee or representative who either made the record or transmitted the information to another to record must have had personal knowledge of the act, event or condition in order for such record to be admissible under the business records exception to the hearsay rule. Sec. 1(b). For example, a doctor’s statement as to whether a patient had or had not lacerations of the face, as to his pulse rate or blood pressure, and as to things that happen within the hospital are within the doctor’s or nurse’s personal knowledge. However, statements as to how an accident happened or where it happened, age, medical history, etc., do not become particularly trustworthy just because it is hospital routine to record them and they should be excluded. The legislature has provided for their exclusion by the requirement of personal knowledge by an employee or representative of the “business” (e. g., hospital). The latter examples are not within the personal knowledge of the hospital personnel. They have no personal knowledge of how or where the patient was injured.

However, some of such statements may be admissible on other grounds: as declarations against interest, spontaneous exclamations, dying declarations, and admissions of a party. McCormick & Ray, 2d Ed., § 1262, p. 135. The person in the hospital to whom such a statement is made may not have personal knowledge of the fact or facts contained in the statement, but if he has personal knowledge of the fact that the statement was made and if proper record thereof is made, the record would be admissible under the statute to prove that an admission of a party was made. The above statement by Miss Rosen is inconsistent with her testimony at the trial that she fell inside the drugstore, and is therefore an admission. McCormick & Ray, 2d Ed., § 1121, et seq. It appears that the question resolves itself down to this: if the hospital employee to whom Miss Rosen made the admission could have properly testified to the fact that she made such admission, then a proper record thereof would be admissible. On the question of admissibility of hospital records, see McCormick & Ray, 2d Ed., § 1262; Martinez v. Williams, Tex.Civ.App., 312 S.W.2d 742, 749, no writ history; American General Insurance Co. v. Dennis, Tex.Civ.App., 280 S.W.2d 620, no writ history. See also Travis Life Insurance Co. v. Rodriguez, 326 S.W.2d 256, Tex.Civ.App., wherein Article 3737e, V.A.C.S. is construed, which construction was approved by this court by per curiam opinion in Rodriguez v. Travis Life Insurance Co., 160 Tex. 182, 328 S.W.2d 434.

We hold, as the Court of Civil Appeals did, that the trial court was not in error in admitting the part of the hospital record which contained Miss Rosen’s statement that she fell in front of the drugstore.

The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.

CALVERT, C. J., and WALKER, J., concur in the result.


author: CHADICK, Chief Justice.

text:
    Phillip KOST, Appellant, v. TEXAS REAL ESTATE COMMISSION et al., Appellees.
    No. 7422.
    Court of Civil Appeals of Texas. Texarkana.
    June 26, 1962.
    Rehearing Denied July 17, 1962.

      Fred M. Lange, Wiley Caldwell, Fulbright, Crooker, Freeman, Bates & Ja-worski, Houston, for appellant.
    Will Wilson, Atty. Gen., Fred D. Ward, Asst. Atty. Gen., Austin, for appellees.
   CHADICK, Chief Justice.

This is an action to review an order of the Texas Real Estate Commission. The judgment of the trial court denying relief is affirmed.

Appellant, Phillip Kost, was licensed by the Texas Real Estate Commission, under the provisions of the Real Estate License Act, Art. 6573a, Vernon’s Tex.Civ.St., as a Real Estate Salesman for the calendar year 1960. On December 29 of that year he applied for a license renewal for the year 1961. The Commission refused to renew the license when the real estate broker employing him advised the Commission that he did not desire him licensed as his employee. Thereafter on February 6, 1961, re-application was made on the basis of Kost being a real estate salesman employed by a different .real estate broker. The second application was rejected, with the advice that the 1960 license expired December 31 of that year, and that an original application, rather than a renewal application, should be filed for the Commission’s consideration. Application forms were furnished with the letter of rejection. The suggested application, dated March 20, 1961, was thereupon filed. On April 18, 1961, this last application was denied.

An administrative appeal from the Commission action was instituted. The appeal was heard May 16, 1961, and two days later the Commission’s action in disapproving the application was upheld. Kost timely instituted a suit in a District Court of Harris County against the Texas Real Estate Commission, seeking to set aside its order and to compel the Commission to issue him a h'cense as a real estate salesman.

The trial judge found from the proof adduced that the Commission’s order was supported by substantial evidence, was not arbitrary, capricious, illegal or improper, and denied the plaintiff Kost relief. It is contended in this appeal that the Commission’s order was required by statute to be supported by facts determined from a preponderance of the evidence, and the trial court erred in failing to try the case accordingly. Appellant’s two points of error are as follows:

“First Point of Error. The trial court erred in reviewing the appellee, Texas Real Estate Commission’s ruling, order and decision in this case under the substantial evidence rule and thereby in effect holding unconstitutional the de novo judicial review provision of Article 6573a, Vernon’s Texas Civil Statutes, as applied to the administrative ruling, order and decision in this case.
“Second Point of Error. The trial court erred in holding in effect that only the so-called ‘substantial evidence rule’ — to the exclusion of any other rule of evidence — must be applied to the trial of this case.”

The function of administrative agencies differ, some perform judicial or quasi-judicial functions, others exercise powers legislative in nature. Key Western Life Ins. Co. v. State Board of Insurance, Tex., 350 S.W.2d 839, and In re Harmon, 52 Wash.2d 118, 323 P.2d 653. A single agency may as to one function exercise judicial powers, and as to other and different functions exercise executive or legislative powers. Prentis v. Atlantic Coast Line Company, 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150. The factual basis of an order of an agency that has acted in a judicial or quasi-judicial capacity, when the subject of court review by trial de novo must be established by a preponderance of the evidence. Key Western Life Ins. Co. v. State Board of Insurance, supra. On the other hand, if the agency’s order is made in the exercise of a legislative or quasi-legislative power, review in court is governed by the “substantial evidence rule”, which means that the evidence adduced in the reviewing court will be examined to determine if it reasonably supports the order. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022; Cook Drilling Company v. Gulf Oil Corporation, 139 Tex. 80, 161 S.W.2d 1035.

The nature of the function exercised by the Texas Real Estate Commission when it disapproved Mr. Kost’s application decides the basis of the review of the Commission’s order in the district Court. In settling the nature of the function, the final act and character of the process and operation, rather than the general authority exercised by an agency determines whether the administrative agency is exercising a judicial or legislative function. Key Western Life Ins. Co. v. State Board of Insurance, supra; Prentis v. Atlantic Coast Line Company, supra; 73 C.J.S. Public Administrative Bodies and Procedure § 8, p. 306.

There is no suggestion that the application filed by Mr. Kost does not fully conform to all statutory and Commission requirements, or that he is not eligible for license by reason of age or residence. The Legislature delegated to the Commission by Sec. 12(a) of the Act the power to require Mr. Kost to satisfactorily show that he is of good business repute and will act in an honest, fair, just and equitable manner in conducting the business affairs of a real estate salesman, before granting him a salesman’s license. The power delegated gave the Commission authority to exercise a broad discretion in the requirements it would make in this field. The only expressed statutory restrictions being that professional competency of the applicant would be judged solely on the basis of the prescribed written examination, and that license would not be denied because the salesman did not devote his full time to the real estate business. The Legislature did not fix the criterion; instead it delegated this power to the Commission, together with (Sec. 2) authority to make rules and regulations not inconsistent with the Act. In the license granting process the Commission exercises a power the Legislature might have exercised but chose to delegate. In this process the Commission function is legislative in nature.

Having reached the conclusion last expressed, this court is of the opinion the trial court did not er.r. Sec. 21(a) of the Act quoted in the first footnote is void insofar as the enactment commands the reviewing court to do other in reviewing the factual basis of the order than determine whether or not the order has reasonable support in the evidence. A statutory requirement interposing a different duty conflicts with Sec. 1 of Art. II of the Texas Constitution, Vernon’s Ann.St., dividing the functions of government into distinct legislative, executive and judicial departments and providing that “ * * * no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others. * * * ” Davis et al. v. City of Lubbock and Urban Renewal Agency of the City of Lubbock, 160 Tex. 38, 326 S.W.2d 699; Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619; Fire Department of City of Fort Worth et al. v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664.

A discussion of the facts developed in the trial court is unnecessary as the appellant does not contend that the evidence adduced will not support the court’s judgment under the applicable rule, though in the trial of the case he vigorously denied guilt of wrongdoing and testified to facts contradicting the testimony that was offered to disqualify him.

Appellant’s points of error must be overruled and the judgment of the trial court must be affirmed. It is so ordered.

      . Sec. 21(a) of the Act reads as follows:
      “Any Real Estate Broker, or Real Estate Salesman, or any person having a justiciable interest, who is aggrieved by any decision of the Commission may file within thirty (30) days thereafter in the District Court of the county in which he resides, or in the District Court in the county where his principal place of business is situated, a petition against the Commission officially as defendant, alleging therein in brief detail the action and decision complained of and for an order directing the Commission to license or reinstate the applicant. Upon service of the summons upon the Commission, returnable within ten (10) days from its date, the Commission shall on or before the return day comply or file an answer. The case shall be tried in the District Court de novo, upon its merits, and it shall take a preponderance of the evidence offered before said District Court for the court to enter a judgment. The substantial evidence rule shall not be used, and the right of trial by jury shall be had in all cases when called for.”

      . “If the Commission is satisfied that the applicant for a Riml Estate Broker’s or Real Estate Salesman’s license is of good business repute and that the business will be conducted in an honest, fair, just and equitable manner, and upon complying with all other provisions of law and conditions of this Act, a license will thereupon be granted by the Commission to the successful applicant therefor as a Real Estate Broker or Real Estate Salesman, and the applicant, upon receiving possession of the license, is authorized to conduct the business of a Real Estate Broker or Real Estate Salesman in this State."


text:
    WESTERN ALLIANCE INSURANCE COMPANY et al., Appellants, v. C. E. CHILDS, Jr., d/b/a Childs Insurance Agency, Appellee.
    No. 4032.
    Court of Civil Appeals of Texas. Waco.
    July 26, 1962.
    Rehearing Denied Aug. 9, 1962.
    William G. Washington, Austin, for appellants.
    Hugh D. Reed, Jr., Fairfield, for appel-lee.
   McDONALD, Chief Justice.

This is a suit by C. E. Childs Insurance Agency against defendant Insurance Company on a “binder,” insuring a trailer against loss by fire for $1700. Childs was local recording agent for defendant, and isr sued the binder to Raymond McDonald on his trailer. The trailer was destroyed by fire; defendant Insurance Company denied liability; Childs paid McDonald the $1700.;. took an assignment; and instituted the instant case.

Trial was to the court without a jury which, after hearing, entered judgment for plaintiff for $1681.30.

The trial court on request of the defendant Insurance Company filed Findings of Fact and Conclusions of Law, pertinent of which are summarized as follows:

FINDINGS OF FACT

1. On 25 May 1960, Raymond McDonald contacted plaintiff in regard to insuring a 1957 M System 40 foot trailer,. Serial No. M40924 in the amount of $1700. At this time plaintiff was local agent for defendant Insurance Company, and acting on the request of McDonald, insured the trailer against loss by fire for $1700. with defendant Insurance Company. Plaintiff sent defendant a “binder”, which was received and kept by defendant. On 27 July 1960 defendant wrote plaintiff requesting the status of the binder. Plaintiff did not reply to this request.

2. The trailer was destroyed by fire on 17 October 1960. Plaintiff notified defendant of this loss, and defendant denied liability and refused to pay said loss. Plaintiff paid said loss in the sum of $1700. to McDonald.

3. At the time of the loss defendant Insurance Company still had the binder, and had never returned same to plaintiff or requested any additional information.

4. McDonald assigned to plaintiff all claims he had against defendant Insurance Company by reason of the destruction of the insured trailer.

CONCLUSIONS OF LAW

1. Plaintiff was authorized to write this insurance for defendant Insurance Company and to send defendant the binder.

2. Defendant Insurance Company accepted and retained the binder without restriction or limitation, although it did not have to do so.

3. Defendant became liable for the loss.

4. Plaintiff having paid the claim to McDonald, and having taken an assignment, is entitled to recover from defendant the amount thereof.

Defendant appeals, contending: 1) There is no evidence, or insufficient evidence to support the Trial Court’s Findings of Fact 1 and 2; 2) The Trial Court erred in admitting in evidence plaintiff’s Exhibit '9 (the assignment by McDonald of his •claim to plaintiff), and in permitting plaintiff to file its Trial Amendment pleading such assignment of claim.

Our review of the record reflects there is ample evidence to sustain the Trial Court’s Findings of Fact 1 and 2. C. E. Childs testified to such facts and stated that he personally saw the trailer burning, and that it was the same trailer upon which he issued the binder. The documentary evidence likewise supports same. Defendant contends that the binder did not give the serial number and description of the trailer. The description given was an M System 40 foot trailer. Such description is adequate to identify the trailer insured.

The record reflects that plaintiff bound the defendant for fire coverage on the trailer; that defendant received the binder; that the trailer was destroyed by fire; that defendant refused to pay McDonald the loss; that plaintiff paid the loss; took an assignment and brought the instant case. See: Pacific Fire Ins. Co. v. Donald, 148 Tex. 277, 224 S.W.2d 204; Pan Am. Ins. Co. v. Santos, Tex.Civ.App. (n. r. e.), 295 S.W.2d 254.

Defendant contends that plaintiff did not plead the assignment of the claim from McDonald, and was therefore not entitled to introduce same. Plaintiff plead same by Trial Amendment, which was permitted to be filed by the Trial Court. Defendant likewise complains of this action on the part of the Trial Court.

Defendant did not make a motion for continuance or delay based on the Trial Amendment, or assert that it was in any manner surprised or prejudiced thereby. The matter of permitting a trial amendment is in the sound discretion of the Trial Court, and his order will not be disturbed, absent a clear abuse of discretion. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605; Rule 66, Texas RCP. A trial court does not abuse its discretion in permitting the filing of a trial amendment where the opposite party does not ask for a postponement upon its filing. Henslee v. 1st Nat. Bank, Tex.Civ.App. (n. r. e.) 314 S.W.2d 881; Lone Star Steel Co. v. Owens, Tex.Civ.App. (n. r. e.) 302 S.W.2d 213; American Cas. & Life Ins. Co. v. Parish, Tex.Civ.App. (n. w. h.), 355 S.W.2d 781.

We think the Trial Amendment was properly filed; that the assignment was properly admitted into evidence. In any event plaintiff has shown no prejudice. See Rule 434, T R C P

All of defendant’s contentions are overruled and the judgment of the Trial Court is affirmed.