author: MILLIKEN, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. C. C. SWIFT et al., Appellees.
    Court of Appeals of Kentucky.
    June 24, 1966.

      Robert Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Reed D. Anderson, Madisonville, for appellant.
    B. C. Green (Green & Connor), D. C. Brodie, Owensboro, for appellees.
   MILLIKEN, Judge.

This appeal is a sequel to Commonwealth of Kentucky, Department of Highways v. Swift (1963), Ky., 375 S.W.2d 691, where we reversed a $12,075 judgment rendered for the property owners because the jury was informed of the $10,300 recommendation by the commissioners in the County Court for the taking of the same property. In the second trial judgment was entered on a verdict for $13,020 which is the judgment now appealed. This time the Department claims that the witnesses for the landowners based their estimates of damage upon irrelevant measures of value.

The land taken was rectangular in shape, extending along the whole 210-foot frontage of the property along Highway 431 and extending back 31 feet in width. The right of way was moved to within 11 feet of the home and the highway was elevated over 3 feet above the yard, and the drainage ditch was deepened, widened and moved about 26 feet closer to the house than the old ditch. The photographs filed as exhibits suggest how uncomfortably close the widened highway will be to the home.

The first trial was held before our decision in Commonwealth of Kentucky, Department of Highways v. Sherrod (1963), Ky., 367 S.W.2d 844, which substantially changed the practice in highway condemnation cases. The second trial, resulting in the judgment now appealed, was after Sher-rod and the sole question on this appeal is whether the evidence offered to support the landowners’ values conformed to the principles laid down therein, for the verdict was rendered in the form Sherrod prescribed for it.

There is no question that the appraisal witnesses for the landowners were qualified by training or experience, and they scrupulously adhered to the Sherrod format of giving their opinions of the fair market value of the property before the taking and after the taking. The witnesses for the Department and those for the landowners agreed substantially on the before-value— the average before-value of the condemnees’ witnesses was $46,750, and that of the Department was $45,562.50. It was in the after-value where the difference between the Department and the condemnees was focused — for the condemnees the average after-value was $31,250, and for the Department it was $39,233, making a difference of $7,983 in estimates of after-values.

On cross-examination of the con-demnees’ appraisal witnesses the Department elicited answers which, taken alone, violated the principles laid down in Sher-rod, but when taken in context with the rest of the testimony were merely checks on the justness of the evaluations reached. On direct examination condemnees’ appraisal witnesses testified as to the market values (before and after the condemnation) from comparable sales, from viewing the property, and from sales and purchases they themselves had made in the community. Even the Department’s appraisal witness opined that the factor which most affected the after-value of the property was the “proximity damage” of the deepened ditch, moved so near to the home. One witness referred to it not as a ditch, but as a “borrow pit,” which is a ditch or excavation dug for the purpose of leveling a highway or raising its grade by using the excavated dirt for that purpose. This is the factor, admittedly, which made the witnesses for the condemnees ascribe their larger effect of the highway project on the market value of the farm. They thought that the added nearness of the new highway roughly reduced the market value of the farm itself by a third. We do not find any value placed on the house as a separate item apart from the land itself; its value was merged in the market values declared for the property as a whole, both before and after the taking. The value the home added tQ the value of the land is, of course, an obviously proper factor to be considered in estimating market value of the whole. Commonwealth of Kentucky, Department of Highways v. Stamper, Ky., 345 S.W.2d 640.

As we see the testimony given here by the condemnees, it conforms to the format of Sherrod, and the consideration of the testimony of these witnesses on cross-examination leads us to believe that the items they considered in reaching their conclusions as to market value were more their checks on the justness of their conclusions than they were factors in reaching their conclusions as to market value. In fact, one of the condemnees’ witnesses said as much. As heretofore pointed out, the before-values placed on this property by the litigants are substantially the same, and the difference between them comes in their respective estimates of the after-values. The condemnees’ witnesses thought the market value was reduced about a third, while the Department thought the reduction was only about one-sixth. Under proper instructions and a form of verdict conforming to Sher-rod, the jury found an after-market value somewhere in between the estimates. We conclude that the jury was not misled, nor prejudiced by anything said.

The judgment is affirmed.

MONTGOMERY and WILLIAMS, JJ., dissenting.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Joseph C. LEWIS.
    Court of Appeals of Kentucky.
    June 24, 1966.
    Charles S. Cassis, Frankfort, for appellant, State Bar Association.
   PER CURIAM.

The Board of Governors of the Kentucky State Bar Association has recommended that respondent, attorney Joseph C. Lewis, be disbarred from the practice of law. This recommendation is based on its determination that he is guilty of unethical and unprofessional conduct in the performance of his duties as Public Administrator for Fayette County.

Respondent does not contend that the evidence filed in support of the charges is insufficient or that the punishment recommended is unreasonable. However, he does contend that he was entitled to have his voluntary resignation from the practice of law accepted by this Court.

Within ten days of the filing of this motion to resign, the Registrar of the Kentucky State Bar Association certified to this Court that charges were in the course of preparation against him. In accordance with RCA 3.050 action on this motion was deferred.

After reviewing the record disclosing that respondent frequently failed to make a proper accounting of funds entrusted to him, this Court concurs with the recommendation of the Board and further holds that respondent Lewis is not entitled to resign thereby escaping the stigma of disbarment.

It is ordered that the motion to resign be and it is hereby overruled and that Joseph C. Lewis be and he is hereby disbarred from further engaging in the practice of law in Kentucky.


author: MORRISON, Judge. WOODLEY, Judge.

text:
    Ex parte Mickey Eugene BROWN.
    No. 39771.
    Court of Criminal Appeals of Texas.
    June 22, 1966.
    S. John Odom, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION.

MORRISON, Judge.

This is a proceeding under Article 11.07, Vernon’s Ann.C.C.P. (1965).

The Honorable Sam Hall, Sr., Judge of the 71st Judicial District Court, conducted a hearing and certified the facts to this Court. In his certificate Judge Hall recites that the statutory requirements of taking a plea of guilty were not complied with when relator entered his plea of guilty before Judge Hall in 1960.

The record supports the certificate in that it is shown that the court appointed attorney was not allowed ten days to prepare for trial, and that there was no waiver of his right accorded him by Article 494 V.A.C.C.P., which was in effect at the time of relator’s plea. Ex parte Cooper, Tex.Cr.App., 388 S.W.2d 939 and the cases there cited are authority for granting the writ.

It is ordered, therefore, that relator be released from custody by the Texas Department of Corrections and delivered into the custody of the sheriff of Harrison County to stand trial on the original indictment in Cause No. 19,429 pending in said Court.

It is so ordered.

DISSENTING OPINION

WOODLEY, Judge.

The unsworn petition upon which the writ of habeas corpus was granted and made returnable to this Court alleged:

“1. Petitioner entered a plea of guilty before this Honorable Court on July 15, 1960, and was placed on probation.
2. On September 19, 1960, the probation was revoked, and Petitioner was sentenced to ten (10) years in the State Prison.
3. On March 8, 1962, this Court entered an Order reducing Petitioner’s sentence from ten (10) years to five (5) years confinement in the State Penitentiary. This Order was not executed by the State Prison in that they claimed that this Honorable Court did not have the authority to so reduce the sentence.
4. Petitioner has now served a period of five (5) years in actual imprisonment.”

As grounds for such writ the petition alleged:

“1. Upon the plea of guilty there were no witnesses called, nor evidence introduced, to prove the guilt of accused, as is required by Article 12, VACCP and Section 501-503 CCP.
2. Petitioner was not represented by counsel at the time of his trial, as required by due process of law, 14th Amendment of the United States Constitution.”

At the hearing petitioner introduced no testimony in support of his allegation that “no witnesses were called, nor evidence introduced” other than testimony to the effect that the record contained no statement of facts and did not reflect any stipulation as to evidence.

This was not proof that the requirements of Art. 12 V.A.C.C.P. were not complied with.

Petitioner elicited testimony at the hearing which directly contradicted his second ground for relief, and proved that he was in fact represented by counsel appointed on the day of the trial.

The trial judge’s certificate reads as follows:

“I, Sam Hall, Sr., Judge of the 71st Judicial District of Texas; conducted the trial in the Cause of Mickey Eugene Brown, in 1960, and upon his Guilty Plea, Granted Probation.
“Thereafter, I transfered the matter to Odessa, Ector County, Texas, for Probation Supervision. I did not transfer Jurisdiction of the Cause, only that of Supervision.
“In September of 1960, the Court in Ector County revoked the Probation Sentence I had imposed, and itself sentenced Brown to the Ten (10) years in Prison which I had Probated.
“In 1962, a Motion was filed before me by Mr. Charles Allen, the District Attorney of Harrison County, requesting that I reduce my original Probated Sentence of Ten (10) years, to a Prison Sentence of Five (5) years; and the facts and new evidence before me indicating that such an Order would be in the interest of justice, I accordingly entered the necessary Order to sentence Brown to the Five Years in Prison, instead of Ten (10) years Probation.
“Thereafter, I was advised by the Attorney General that I did not have the Authority to enter such an Order, in that the Sentence had been imposed in Ector County. If the order transferring the Probation to Ector County did transfer Jurisdiction of the Cause, it was entered in error, and was not the order nor intent of this Court.
“On May 24, 1966, an application for Writ of Habeas Corpus having been filed before me by Mickey Eugene Brown, I Granted a hearing as to whether the Writ Should issue and thereafter, being of the Opinion that the statutory requirements of taking a Guilty Plea were not complied with; and further, that the Sentence of the Petitioner has expired, the Writ of Habeas Corpus was issued, and will be found hereinafter.”

There was testimony introduced at the hearing to the effect that counsel appointed on the day of the trial did not waive and no written waiver was filed of time to prepare for trial, but there was no evidence that the defendant, petitioner herein, was indigent or was unable to- obtain counsel, or that counsel was appointed pursuant to Art. 494 V.A.C.C.P. and not Art. 10a V.A.C.C.P.

The views of the writer as to this ground for setting aside a conviction in a collateral attack are shown in his dissent in Ex parte Cooper, cited by the majority.

It is clear that the trial judge did not grant the writ or express the opinion that the sentence made final in Ector County was void because petitioner and his court appointed counsel were not allowed ten days to prepare for trial and did not file a written waiver of such time.


text:
    John B. NEWHALL, Appellant, v. The STATE of Texas, Appellee.
    No. 39329.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1966.
    On Rehearing April 6, 1966.
    Second Motion for Rehearing Denied May 25, 1966.
    James Martin, C. A. Droby, Dallas, Emmett Colvin, Jr., Dallas (On appeal only),, for appellant.
    Henry Wade, Dist. Atty., Curtis Glover, Donald Koons, and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B; Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is keeping a bawdy house; the punishment, 20 days in jail and a fine of $200.00.

The day charged in the information was July 15, 1963. State witnesses testified that on March 10, 1963, at the Skyline Motel, they arrested porter Johnson and a woman who agreed to an act of sexual intercourse for a monetary consideration, that they charged Johnson with procuring and the woman with vagrancy by prostitution and that on that occasion they notified appellant, who was in the motel office, of the charges they were filing against the two. On the following day they served appellant with a written “Notification of Prostitution Activities” and when appellant was asked if he was going to continue to employ this porter, he replied that he was.

Other officers testified that on March 21, 1963, they arrested another porter named Winn and another prostitute at the same motel, similarly charging them, that on May 24, following another arrest of the same porter and another prostitute on the preceding day, they served appellant with another written “Notification of Prostitution Activities” and that when appellant was told that Winn had been arrested at the motel before on a similar charge, appellant replied that he was aware of such fact, but that Winn was a good employee and “he was going to continue to let him work.”

Still another officer testified that on July 15, 1963, he talked to appellant about the prostitution activities that had been going on at his motel and asked appellant “if he knew that the porter there had been involved in some of this, and he said that he had been advised of that and he told me that he didn’t think prostitution could be controlled and he thought it ought to be legalized. * * * ”

Appellant, testifying in his own behalf, denied any knowledge or participation in the prostitution activity, but admitted that porter Johnson was arrested once, and that porter Winn was arrested twice for procuring which had occurred at the motel which he and his wife owned and operated, and that he had been so advised by the police, but that Winn was still in his employ at the time of this trial in March of 1965, but only as a repairman and relief porter.

Appellant’s wife testified as to the operation of the motel and her lack of knowledge of prostitution being practiced there.

Winn testified that appellant knew nothing of his activities as a procurer at the motel. Appellant called several reputation witnesses.

Appellant’s principal contention is that the evidence is insufficient to support the conviction. Article 514 Vernon’s Ann. P.C. provides, among other ways that the offense may be committed, that one may be guilty if he knowingly permits the keeping of a bawdy or disorderly house. We have concluded that when appellant admitted being notified by the police of the arrests which had occurred on premises which he owned and continued to employ one of the offending porters, he brought himself within that section of the statute which prohibits anyone from knowingly permitting premises under his control to be kept as a bawdy house.

Appellant cites a number of cases such as Bryant v. State, 163 Tex.Cr.R. 463, 293 S.W.2d 646, and Green v. State, 167 Tex.Cr.R. 272, 320 S.W.2d 818, which were affirmed, and points to the additional facts in those cases which do not appear in the case at bar, but he does not direct our attention to any case which would authorize a conclusion that the facts set forth above are not sufficient to support a conviction. As this Court said in Johnson v. State, 32 Tex.Cr.R. 504, 24 S.W. 411, “* * * all the state is required to do is to show facts that would put a reasonable man on notice.”

The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Judge.

The conviction from which this appeal is prosecuted was had at a term of County Criminal Court No. 3 of Dallas County which began March 1, 1965 and closed May 1, 1965.

Judgment upon the jury’s verdict was rendered March 10, 1965, and on the same day appellant filed motion for new trial assigning as reason therefor “that the verdict is contrary to the law and evidence.”

On March 30, 1965, appellant filed his amended motion for new trial alleging the same ground.

The trial court was without authority to extend the time allowed by Art. 755 Vernon’s Ann.C.C.P. for taking action on appellant’s amended motion for new trial. Mahan v. State, 163 Tex.Cr.R. 36, 288 S.W.2d 508; DeHay v. State, 163 Tex.Cr.R. 516, 294 S.W.2d 401; Obarts v. State, 167 Tex.Cr.R. 385, 320 S.W.2d 816.

The amended motion for new trial was overruled by operation of law when not acted upon during the 20 days allowed by Art. 755 V.A.C.C.P. Brinkley v. State, 167 Tex.Cr.R. 472, 320 S.W.2d 855; Morgan v. State, Tex.Cr.App., 378 S.W.2d 321, and cases cited.

The conviction became final during the term of court which ended May 1, 1965, and no notice of appeal was given during said term, as required by Art. 827 V.A.C.C.P.

In the absence of notice of appeal haying been given in open court during the term at which conviction was had, this Court is without jurisdiction to enter any order except to dismiss the appeal. Morgan v. State, Tex.Cr.App., 378 S.W.2d 321,. and eases cited, Brantley v. State, 167 Tex.Cr.R. 145, 320 S.W.2d 825; Obarts v. State, 167 Tex.Cr.R. 385, 320 S.W.2d 816; Reid v. State, 169 Tex.Cr.R. 261, 333 S.W.2d 140.

The order affirming the conviction is set aside and the appeal is dismissed.


author: DICE, Commissioner.

text:
    John Troy COOK, Appellant, v. The STATE of Texas, Appellee.
    No. 39426.
    Court of Criminal Appeals of Texas.
    April 27, 1966.
    Rehearing Denied June 8, 1966.
    Howard O. Lake, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The conviction is for the unlawful possession of heroin, a narcotic drug; the punishment, fifteen years.

Trial was before the court, a jury being waived, upon appellant’s plea of guilty.

At the trial, the facts were stipulated and appellant waived his constitutional right to be confronted by the witnesses.

By such stipulation the allegations of the indictment were stipulated as evidence, which was — in substance — that on or about the 9th day of April, 1965, the appellant, in Harris County, Texas, did unlawfully possess a narcotic drug, to-wit, heroin.

In addition, it was stipulated that if Officer G. T. Carnes were called as a witness he would' testify that in the execution of a search warrant on appellant’s premises “seven papers of heroin were found to be in the possession of this defendant, John Troy Cook.”

It was further stipulated that if Chemist- and-toxicologist Floyd E. McDonald were called to testify he would testify that he. had occasion to examine the seven papers of heroin presented to him by Officer D. G. McMannes and such papers were revealed to contain approximately 6.38 grams of heroin.

It was also stipulated that the testimony of the witnesses was true and correct.

We overrule appellant’s contention that the evidence stipulated was insufficient to show his guilt, as required by Art. 12, Vernon’s Ann.C.C.P., because it fails to show the date of the commission of the offense and that the evidence recovered in the case was a narcotic drug.

We also overrule appellant’s contention that the judgment of conviction should be reversed because he was represented by an attorney appointed by the court on the date his plea of guilty was entered to the indictment and the record does not show that he and his attorney waived the ten days allowed to prepare for trial, as required by Art. 494, V.A.C.C.P.

The record reflects that prior to the date of trial, appellant was represented in the cause by James A. Moore, an attorney of his own choice.

On the date appellant entered his plea of guilty, Attorney J. Shown was appointed by the court to represent him. It does not appear that his regularly employed attorney had withdrawn from the case when Attorney Shown was appointed.

Such facts distinguish the case from Ex parte Cooper, Tex.Cr.App., 388 S.W.2d 939, where the accused notified the court that he was unable to employ counsel and requested that an attorney be appointed to represent him.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Ex parte Edward Skene OVERAKER.
    No. 39792.
    Court of Criminal Appeals of Texas.
    June 25, 1966.
    W. T. Bennett, Huntsville, Walter C. Holloway, IV, Hume Cofer, Austin, for appellant.

      Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order of the District Court of Walker County remanding relator to' the custody of the Sheriff of Walker County following an extradition hearing.

The State introduced the executive warrant of the Governor of Texas, the demand of the Governor of Kansas and supporting papers. Relator testified that he was not in Kansas at the time the offense charged against him was committed in that state. Such testimony standing alone is not sufficient to overcome the prima facie case made by the warrant, the demand and the supporting papers. Ex parte Ackton, 164 Tex.Cr.R. 548, 301 S.W.2d 86; Ex parte Thomas, Tex.Cr.App., 393 S.W.2d 908; Ex parte Martin, Tex.Cr.App., 374 S.W.2d 436.

Relator did not deny that he was the person named in the executive warrant, but testified that he did not endorse the check which constituted the basis for the charge against him in the State of Kansas. Such testimony in no way refuted the fact that he was the person named in the demand and executive warrant, but was rather in the nature of a defense to the charge pending against him in Kansas which he is precluded from adjudicating in Texas Courts by the terms of Sec. 20 of Art. 51.13, Vernon’s Ann.C.C.P.

The State called in rebuttal a handwriting expert from the Department of Public Safety, who expressed the opinion that the cheek which forms the basis for the prosecution in Kansas was endorsed by the same person who wrote several letters and documents which relator admitted having written.

Relator’s contention that Art. 38.27, Vernon’s Ann.C.C.P. is here controlling cannot be sustained. He reasons that proof by handwriting comparison would not be sufficient to establish that the endorsement on the check was his handwriting because he denied under oath that he endorsed the check. As we view it, relator-’s denial under oath was not that he was not the person named in the Governor’s warrant, but was in substance that he did not endorse the check and hence did not commit the crime for which he is sought to be prosecuted in Kansas.

The judgment is affirmed.


text:
    Ex parte H. S. THOMAS.
    No. 39757.
    Court of Criminal Appeals of Texas.
    June 25, 1966.
    Clyde Elliott, Jr., Canton, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

Petitioner has filed his original application for writ of habeas corpus alleging that he was tried without benefit of counsel before a jury on his plea of not guilty to the charge of theft of a cow, two prior convictions being alleged for the purpose of enhancement. Conviction was had in 1940 with a life sentence being imposed.

Petitioner alleges as a ground for not having applied for a writ before this application the following: “Petitioner was without funds to retain legal advice needed.”

We are not constrained to construe this as an allegation of indigency at the time of his trial in 1940.

The writ of habeas corpus is denied.


text:
    Henry S. MONTZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 37786.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is driving while intoxicated; the punishment, seven days in jail and a fine of $75.00.

No statement of facts accompanies the record. In the absence of a statement of facts, we are in no position to pass upon his bill of exception relating to the court’s charge. Williams v. State, Tex.Cr.App., 378 S.W.2d 325.

All proceedings appear to be regular and nothing is presented for review.

The judgment is affirmed.


author: WOODLEY, Judge.

text:
    Phillip Scotty RAGSDALE, alias Phillip Scotty Moore, Appellant, v. The STATE of Texas, Appellee.
    No. 39430.
    Court of Criminal Appeals of Texas.
    March 9, 1966.

      No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is attempt at burglary; the punishment, 3 years.

The record is before us with-no statement of facts or bills of exception.

The punishment for the offense of attempt at burglary is not less than 2 nor more than 4 years confinement in the penitentiary (Art. 1402 P.C.).

The jury assessed appellant’s punishment at 3 years.

The sentence failed to give effect to the indeterminate sentence law (Art. 775 C.C.P.). It is reformed so as to order appellant’s confinement in the penitentiary for a term of not less than 2 years nor more than 3 years.

As reformed, the judgment is affirmed.


text:
    George Perez SULAICA, Appellant, v. The STATE of Texas, Appellee.
    No. 39381.
    Court of Criminal Appeals of Texas.
    April 6, 1966.
    Chappell & McFall, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON MOTION TO REINSTATE APPEAL

WOODLEY, Judge.

The record having been corrected, our prior opinion dismissing the appeal is withdrawn and the appeal is reinstated.

The offense is drunk driving; the punishment, 30 days in jail and a fine of $50.

No statement of facts accompanies the record and there are no bills of exception.

The proceedings appear to be regular and nothing is presented for review.

The judgment is affirmed.


author: ARCHER, Chief Justice.

text:
    The FARMERS MUTUAL PROTECTIVE ASSOCIATION OF TEXAS (R.V.O.S.), Appellant, v. Victor CMEREK, Appellee.
    No. 11410.
    Court of Civil Appeals of Texas. Austin.
    June 1, 1966.
    Rehearing Denied June 22, 1966.
    Kacir & Kazanas, Geo. E. Kacir, West, for appellant.
    Fox, Fondren & Sapp, David R. Sapp, Taylor, for appellee.
   ARCHER, Chief Justice.

This suit was brought by appellee against appellant to recover upon a fire and extended coverage insurance policy. Appellant is a Farm Mutual Insurance Company, organized and existing under the provisions of Chapter 16, V.A.T.S., Insurance Code and, as such, is engaged in the business of writing insurance of the type involved in this case.

On February 28, 1964, appellant issued to appellee a policy of insurance providing coverage for losses to appellee’s residence resulting from fire and other hazards, including hail. On March 4, 1964, a heavy hailstorm occurred at the location of ap-pellee’s residence which appellee alleges caused extensive damage to the composition roofs on his house and garage and to the aluminum awnings and screens on the west side of his house. Appellee duly gave notice of his loss to an agent of appellant and seasonably filed his proof of loss as required by his insurance policy. Appellant declined to make payment to appellee under the policy and appellee sued.

During the pendency of this suit on the docket of the trial court, appellee delivered to appellant his Request for Admissions to which appellant filed its response. Thereafter, appellee filed his Motion for Summary Judgment, together with supporting affidavits. The Motion for Summary Judgment was overruled by the trial court and the case proceeded to trial upon the merits before a jury on the 26th day of October, 1965. At the conclusion of all of the evidence, the case was submitted to the jury upon one special issue and the jury returned its verdict which is favorable to appellee and unfavorable to appellant.

The appeal is founded on eight points assigned as error by the trial court in overruling a Motion for New Trial because appellee failed to prove actual cash value of the property with proper deduction for depreciation; appellee’s proof was that the cost of replacing the roof was $437.50 and $129.00 for awnings and screens without an allowance for depreciation; that there was no evidence or the evidence was insufficient to support the verdict of the jury; because the judgment provides for interest on the day of the verdict; because one of the jurors was prejudiced; because appellee testified that his total loss was $468.60; and finally because the ap-pellee misrepresented the age and expected life of the roof.

Appellee contends that since this is a suit to recover for a partial loss that the pleadings and proof showed the amount it would cost to repair or replace the property, and that the verdict of the jury was on conflicting evidence and was supported by the evidence, the judgment was proper, and correctly awarded interest, and that the testimony of a juror was improperly heard, but did not raise an issue of jury misconduct, that appellee’s proof of loss was filed in obedience to the terms of the insurance policy, and such policy was admitted by appellant to be valid.

We believe that appellee properly proved his loss, by proving the amount it would cost to repair or replace the property in accordance with a provision of the policy for the limitation of liability, which is as follows:

“Subject to Article 6.13 of the Texas Insurance Code, 1951, as amended, liability hereunder shall not exceed the actual cash value of the property at the time of loss, ascertained with proper deduction for depreciation; nor shall it exceed the amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss, without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair, and without compensation for loss resulting from interruption of business or manufacture; nor shall it exceed the interest of the insured, or the specific amounts shown under ‘Amount of Insurance,’ ”

The policy was issued to appellee five days before the loss occurred and provided for insurance of such roof for 17 years.

The insurer is not entitled to a deduction for depreciation in the event of a partial loss, as distinguished from a total loss. In Gulf Insurance Company v. Carroll, Tex.Civ.App., 330 S.W.2d 227, n.w.h., a case very much like the instant case, discussed in detail the authorities in cases of this character and we do not deem it necessary to review such.

In Implement Dealers Mutual Insurance Co. v. Cox, Tex.Civ.App., 376 S.W.2d 384, n.w.h., the Court referred to the Carroll case supra.

Appellant’s first two points of error are overruled.

As concerns points Nos. 3 and 4 directed to the no evidence or insufficient evidence to support the verdict of the jury in answering Special Issue No. 1:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence, would fairly and reasonably compensate Plaintiff for the hail damage done to his house and garage on March 4, 1964, with material of like kind and quality within a reasonable time after the loss?
Answer by stating the amount, if any, in dollars and cents.
Answer: $566.50”

We believe that the verdict of the jury and the judgment are supported by the evidence.

Appellee testified that there was nothing wrong with his roof before the hailstorm, and that an adjuster or appraiser for the company, a Mr. Pavliska, looked over the awnings and screens and the roof and said that the roof would have to be redone completely, and to repair the awnings and screens.

On cross-examination appellee testified that Mr. Pavliska was a brother-in-law.

Edward Herman Wolbrueck, Jr. testified that he was an employee of Taylor Builders’ Supply, and made estimates, repairs and re-roofing and anything concerned with building, and that he examined the roof of the residence of appellee and found damage to the roof and to some awnings and window screens, and that he determined that a new roof would have to be put on and could not be repaired.

Edwin Widner, a witness called by ap-pellee, testified that he did carpenter work, including roof work, and that he inspected appellee’s roof and found it damaged, and that it could not be repaired but would require a new roof.

Henry Rozacky, Jr., called by appellant, testified that he was a carpenter and a farmer, and that he inspected appellee’s residence with Albert Repa, and was paid by appellant, and looked at the roof and saw some four or five marks on four or five shingles, and the roof could have been repaired in a day’s time and with a square of shingles, and the cost for labor would be at most $20.00 and shingles would cost about $10.00.

There were other witnesses who testified and the evidence was conflicting and the jury was authorized to accept some and reject other testimony.

We may consider only evidence, if any, which would in its most favorable light support the jury finding.

Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359.

No objection was made to the way the issue was submitted and no request was made for explanatory instructions and the jury answered the issue as it was submitted.

Complaint is made to the granting of a judgment in an amount greater than the amount claimed by appellee in the proof of loss in the sum of $468.60.

The proof of loss was filed in obedience to the terms of the insurance policy, and is not evidence of the extent of the loss.

Aetna Insurance Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376.

The court properly allowed interest under Articles 5069 and 5070, Vernon’s Ann.Civ.St., from 60 days after the proof of loss was received by the Company as provided in the policy.

Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83.

Security Insurance Co. v. Jagoe, Tex.Civ.App., 247 S.W.2d 298, n.w.h.

Proof of loss was presented to appellant on May 23, 1964, and interest, which was in the discretion of the court, was allowed from July 23, 1964 at the rate of 6%.

There was no showing of jury misconduct. The motion for a new trial did not particularize the matters complained of, based on knowledge and not on suspicion or hope.

There was no allegation or proof of misconduct on the part of the jury, or that the verdict was affected thereby, or that injury probably resulted to appellant as is required by Rule 327, Texas Rules of Civil Procedure.

Moran Utilities Co. v. McHaney, Tex.Civ.App., 325 S.W.2d.712, er. ref., n.r.e.

The judgment of the trial court is affirmed.


author: BELL, Chief Justice.

text:
    Joe Weldon CORNETT et al., Appellants, v. CITY OF HOUSTON, Appellee.
    No. 14835.
    Court of Civil Appeals of Texas. Houston.
    June 16, 1966.

      Joe W. Cornett, pro se.
    No attorney for appellee.
   BELL, Chief Justice.

This is an appeal from a temporary injunction whereby Oak Forest, a corporation owning Lot 29 in Block 4 of Oak Forest Addition, Section 1, and its president, Cornett, were enjoined from establishing and operating a liquor store or conducting any business or commercial activity thereon, or on any property owned by them in Oak Forest, Section 1. Too, the appellants were enjoined from maintaining on said property a sign indicating an intent to open a liquor store on said Lot 29, or erecting or displaying any sign or advertising structures on any lots owned or used by them in Section 1 of Oak Forest.

The City of Houston, acting pursuant to statute authorizing it to enforce restrictions, brought the suit on behalf of owners of lots in the addition.

It should at the outset be noted that the appellant, Oak Forest Corporation, is not the corporation, Oak Forest Corporation, that developed Oak Forest Addition. The original Oak Forest Corporation that originally developed the addition was dissolved in March, 1955. Appellant, Oak Forest Corporation, was granted a charter in November, 1965 upon the application of Joseph W. Cornett, Barbara N. Cornett and Wesley J. Duer. None of them were ever connected with the original Oak Forest Corporation.

Lot 29 in Block 4, Oak Forest, Section 1, was acquired by the new Oak Forest Corporation by deed from Herbert Schwarze et ux, dated November 5, 1965.

Appellants contend that Lot 29, Block 4, Oak Forest, Section 1, is not subject to the restrictions relied upon by appellee. The bases of such contention seem to be that the evidence fails to show a description of property that includes Lot 29, Block 4; that if the restrictions ever applied, they were released by a general warranty deed from the old Oak Forest Corporation to Oak Forest Realty Corporation dated June 6, 1947, where no mention was made of any restrictions; that the alleged restrictions violate the rule against perpetuities; and that they were created solely for the benefit of old Oak Forest Corporation.

We state the above to be the complaints of appellants, though it is very difficult for us to follow appellants’ brief. It does not comply with the briefing rules, but since appellant Cornett is individually a party and is president of the corporate defendant and is a layman, we give full consideration to the brief. Appellee has filed no brief.

Appellants seem to also urge that title to the property subdivided into Oak Forest, Section 1, was never shown to be in Oak Forest Corporation. We need only notice as to such a contention that old Oak Forest Corporation is, as shown by» the record here, the common source of title into new Oak Forest Corporation and Mr. Altman, one of the lot owners on whose behalf ap-pellee sued.

On a map or plat dated July 22, 1946 and filed for record in the Map Records of the County Clerk’s office of Harris County in Volume 23, pages 48-50 is a plat showing an addition known as Oak Forest, Section 1. It was filed for record August 29, 1946. It contains the dedication of streets, easements, etc., by old Oak Forest Corporation and shows approval by the Planning Commission of the City of Houston and the Commissioners’ Court of Harris County. The dedicatory instrument appearing thereon also appears in the Deed Records, Volume 1397, page 142.

By instrument dated November 12, 1946 and filed for record in the Deed Records on November 14, 1946 and recorded in Volume 1417, pages 192, et seq., appear the restrictions involved in this case. This instrument opens with the recital that it is the owner of a specifically described 165.-40 acres out of the David Henson, W. P. Morton and S. W. Allen Surveys. Following the metes and bounds description it is recited that said property has been subdivided and platted as shown by the Map of Oak Forest, Section One, filed in Harris County Clerk’s Office, on the 29th day of August 1946.

We have taken the metes and bounds description and traced it on the map of Oak Forest, Section 1, that was filed by old Oak Forest Corporation on August 29, 1946, and find that the lots and blocks in Oak Forest, Section One, constitute the same land described in the instrument imposing the restrictions relied on by appel-lee. The result is that the evidence sufficiently establishes that the material restrictions were made applicable to Lot 29, Block 4 of said addition owned by new Oak Forest Corporation.

The particular restrictions involved here are (a), (b) and (e). These restrictions read :

“(a) Except as herein noted, no lots shall be used for anything other than residential purposes.

“(b) No signs, billboards, posters or advertising devices of any character shall be erected on this property without the written consent of the corporation, and such consent shall be revocable at any time. The right is reserved to the corporation, its successors and assigns, to construct and maintain such signs, billboards or advertising devices, as is customary in connection with the sale of property in this subdivision.

“(e) No spiritous, vinous or malt or medicated bitters capable of producing intoxication shall ever be sold, or offered for sale, on said premises or any part there-q£ ⅜ ⅜

There is a specific part of the subdivision set aside for commercial purposes, but Lot 29 in Block 4 and Lot 4, Block 14, which latter lot belongs to Mr. Altman, one of the parties complaining of appellants’ activities, are located outside of the commercial area and in the residential area.

The plan adopted was a. uniform one for the development of the property. The restrictions were not alone for the benefit of the developer, old Oak Forest Corporation, but were for the use and benefit of all who became owners of property in the subdivision. The instrument imposing the restrictive covenants, insofar as is material on the point of a uniform scheme and plan of development, reads as follows:

“For the purpose of creating and carrying out a uniform plan for the improvement and sale of property in said addition as a restricted subdivision, the following restrictions upon the use of said property are hereby established and adopted subject to the provisions hereof and shall be made a part of each and every contract and deed executed by or on behalf of Oak Forest Corporation, its successors and assigns, by appropriate reference to this dedication and same shall be considered a part of each contract and deed as though fully incorporated therein. And these restrictions as hereinafter set forth shall be and are hereby imposed upon each lot or parcel of land in said addition as shown by said plat and as referred to herein, and same shall constitute covenants running with the land and shall be binding upon, and shall inure to the benefit of Oak Forest Corporation, its successors and assigns, and all subsequent purchasers of said property, and each purchaser by virtue of accepting a contract or deed covering said property shall be subject to and bound by such restrictions, covenants and conditions and for the terms of this instrument as hereinafter set forth.”

The restrictions are then set out. The instrument then provides for enforcement of the restrictions by providing that old Oak Forest Corporation, its successors and assigns, and any owner of a lot or lots in the addition should have the right to enforce the restrictions.

Every person who became a purchaser of a lot took at least with constructive notice of the restrictions, became hound thereby and became vested with the rights and benefits flowing therefrom. It is noted in this connection that the deeds from Oak Forest Realty Corporation, to whom the lots involved in this suit had been conveyed by general warranty deed by old Oak Forest Corporation, to the grantees contained a reference to restrictions on record and stated the conveyance was subject to such restrictions. The deed from Oak Forest Realty Corporation to Mr. Altman et ux, dated June 5, 1947, contained this language: “This conveyance is made and accepted subject to any and all restrictions now of record in the County Clerk’s office in said county.” The chain of title out of Oak Forest Realty Company on Lot 29, Block 4, which belongs to new Oak Forest Corporation, begins with a deed to Roy C. Wilkins et ux. The property is described with reference to the map of Oak Forest, Section One. The deed contains this language: “This conveyance is made and accepted subject to all restrictions, reservations, covenants, conditions, rights-of-way, and easements, if any, affecting the above described property.” Every intervening deed into new Oak Forest Corporation provided the “conveyance is made subject to recorded restrictions on the use of the land, if any.”

Appellants contend that when on June 6, 1947, old Oak Forest Corporation conveyed to Oak Forest Realty Corporation various lots which in the aggregate represented 50% of the front footage of the lots in. the addition they released the restrictions because the conveyance was by general warranty deed and no mention was made of the restrictions.

The restrictions were for a term of 25 years from November 14, 1946, and it was provided the term would thereafter automatically be extended for successive periods of 15 years provided the owners of 50% of the front footage of the lots could at the end of the first 25 year period, or at the end of any 15 year period, release the restrictions by executing an agreement for such purpose and filing it at least two years before the expiration of the first 25 year period or any 15 year period.

This provision does give such owners the right to release the restrictions before the end of the first 25 year period. It merely means they may prevent automatic 15 year extensions if they sign an agreement for that purpose and file it two years before the 25 year period ends. If they do not do so, there will be successive automatic 15 year extensions unless at least two years before the end of such 15 year extension period they execute and file an agreement for the purpose of releasing the restrictions.

The general warranty deed to Oak Forest Realty Company showed no purpose, even if it could be done, to release the restrictions. The grantor, old Oak Forest Corporation, could not once it had sold a lot terminate the restrictions. Too, it is noted that the recorded restrictions provide that any one accepting a deed or contract became bound and obligated by the restrictions, so that they were effectively a part of the deed.

The covenants and restrictions do not violate the rule against perpetuities because that rule merely relates to the remote vesting of an estate. State v. Reece, 374 S.W.2d 686 (CCA), n. w. h.

Our holding in Kroger Co. v. J. Weingarten, Inc., 380 S.W.2d 145 (CCA), ref., n. r. e. has no bearing on the restrictions here involved. It related -to an entirely different type of agreement.

When appellants here assert a monopoly is being used against them, they merely mean, as shown by the evidence, that the owners of lots in the addition are merely working together to maintain the residential restrictions. This they have a legal right to do.

The deed into Mr. Altman from Oak Forest Realty Corporation, while dated June 5/1947, though the deed from old Oak Forest Corporation to Oak Forest Realty Corporation was dated June 6, nevertheless has vested title in Altman because of the after-acquired title rule.

Only a temporary injunction has, as we interpret the judgment, been issued against appellants. In determining whether there was error in so doing we merely determine whether the trial court has abused the wide discretion vested in him.

Here the evidence showed, or so the trial court could have concluded, that unless enjoined appellant Cornett would probably open a liquor store in violation of the restriction. The sign, erected at his direction, that was located on said lot, so stated. Pictures of the sign are in evidence, Too, the very presence of the sign, it not being one customarily employed in connection with the sale of the property, violated the restriction.

We have read the cases cited by appellants and find them inapplicable to the facts of this case.

The trial court did not abuse his discretion in granting the temporary injunction.

Affirmed.


author: PHILLIPS, Justice.

text:
    Richard A. HALL et al., Appellants, v. E. S. McWilliams, Appellee.
    No. 11411.
    Court of Civil Appeals of Texas. Austin.
    June 15, 1966.
    Rehearing Denied July 6, 1966.

      Rutledge & Rutledge, R. M. Rutledge, Abilene, for appellants.
    Bedford & Underwood, E. B. Underwood, Ballinger, for appellee.
   PHILLIPS, Justice.

This is a suit brought by E. S. Mc-Williams, appellee, against appellants Richard A. Hall and others asking the court to declare an oil and gas lease terminated by its own terms by reason of a complete cessation of production of oil, gas and other minerals from the leased land for periods in excess of 60 days during the secondary term. That during said periods in excess of 60 days there were no drilling or reworking operations on said land instituted by lessee or his assigns. Appellee lessor also sued for the value of minerals owned by him and removed from the land after the termination of the lease. Appellants here are the assignees of the original lessee.

At the close of the trial and by agreement of the parties, the case was withdrawn from the jury and submitted to the court.

The trial court declared the lease terminated by its own terms as of January 1, 1964. The judgment also held those who were operating lease owners accountable for the oil produced since May 1, 1964, the date of their leasehold assignments. Upon agreement and stipulation of the parties, appellee allowed the defendants-operators recovery of their lease operating expenses after cancellation.

We affirm the judgment of the trial court.

The lease under attack is on a printed form containing the standard habendum clause for a term and so long thereafter as oil, gas or other mineral is produced thereunder. It also contains the 60 day drilling and reworking provision set out above.

Production was established in the primary term but by .September of 1963 there remained only one producing well which pumped oil with a large amount of salt water. The salt water was being moved to an adjoining lease and pumped into an injection well. On September 9, 1963 the Railroad Commission of Texas suspended the permit for the injection well and the lessee here was left with a producing oil well but with accompanying salt water that had to be disposed of in some other manner. The trial court found that no oil was taken out of the ground during the months of October, November and December, 1963. During this time a pumper continued to service the lease each week, started the motor on the well and pumped the well for about five minutes or long enough to pass fluid by the pump to keep it from sticking. In January and February of 1964 there was a -resumption of -routine pumping and the trial court found that a measurable quantity of oil, forty-six barrels, was brought to the surface; that in April 176 barrels of oil were produced.

In March of 1964 the Railroad Commission granted permission to inject water into -another well on an adjoining lease, however the well would not take the water until it was reworked.

By July 28, 1964 regular production from the lease in question was resumed which continued with reasonable regularity through the trial in September of 1965.

On November 4, 1964 appellee notified his lessee of his intention to cancel the lease.

Appellee is before this Court with six points of error, the first being that of the court in cancelling the lease as of January 1, 1964 without evidence that lessee was not making a profit and that a reasonably prudent operator would have ceased to operate the well under the circumstances.

We overrule this point.

Appellants rely on Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684 and Skelly Oil Co. v. Archer, 163 Tex. 336, 356 S.W.2d 774 for his point of error number one. These cases are not in point here as they are applicable only to the question of whether paying production from a lease has ceased.

In the case at bar the trial court found, and the evidence here is undisputed, that there was no production from the lease in question and no drilling or reworking operations on the lease for more than 60 days. The trial court correctly held that the lease terminated under its own terms. See Wainwright v. Wainwright, Tex.Civ.App., 359 S.W.2d 628, er. ref., n. r. e.

Appéllants’ second and third points, briefed together, are the error of the trial court in holding and concluding that such cessation of production (actual lifting of oil out of the ground) as did occur was not “temporary;” the error of the trial court in not holding plaintiff estopped to assert termination of the lease on account of his silence for the period in which appellants did necessary work on the lease and water disposal system and until routine pumping has been in progress for more than three months.

We overrule these points.

Under the terms of the lease the court was correct in holding that the cessation of production for more than 60 days was not temporary. Woodson Oil Company v. Pruett, Tex.Civ.App., 281 S.W.2d 159, writ ref., n. r. e.

As to estoppel, there is no contention that appellee ever made any representation to appellants or even talked to them concerning their operation of the lease or their purported taking of the assignments of the leasehold. There is neither an allegation in the pleadings nor any proof of any duty on the part of the appellee to advise appellants as to the state of the title to the leasehold nor as to the manner in which they operated or failed to operate the leasehold. The lease had terminated by its own terms prior to the time that appellants made any expenditures in connection therewith. All of these expenditures were made after May 1, 1964 for which appellants were voluntarily reimbursed by appellee.

In order for the doctrine of estoppel to apply, it would not only be necessary for appellee to have breached some duty owed to appellants, but at the time of such breach, it would be necessary that the lease be valid and subsisting. In this connection, see Woodson Oil Company, cited above, and Adams v. Cannan, Tex.Civ.App., 253 S.W.2d 948, error refused.

Appellants’ fourth, fifth and sixth points of error, briefed together, are that of the trial court in its sixth finding of fact to the effect that during October, November and December of 1963 no effort was made by any lease owner and no action was taken to find a place to dispose of salt water, or a method of doing so, or to solve the problem posed by the presence of salt water, and error in said finding that no good reason existed for such failures, for the reason that there is in this record no evidence bearing upon any such matters; the error of the court in finding and concluding that no drilling or reworking activities were conducted in October, November and December of 1963 or in March, April and May or June of 1964 in the face of contrary and uncontroverted evidence; error in adjudging cancellation of the lease as of January 1, 1964, thereby giving no effect to the 60-day drilling and reworking paragraph in the lease in question.

We overrule these points.

Appellants contend that the trial court held an incorrect view as to what constituted drilling and reworking operations as the evidence showed that all of the period from October, 1963 to April of 1964 (except January and February when actual pumping of -oil was being accomplished) the engine on the pump was pumped weekly to pass fluid by the pump; sometime in February or March, 1964 the water system was rearranged to move water to an adjoining lease; sometime before March 16, 1964 application was made for permit to dispose of water in a well on an adjoining lease; that the water system was changed to it but that it would not take the water; sometime in April, 1964,176 barrels of oil were pumped and sold; early in May, 1964 the pumping equipment was checked, operated briefly and lifted some oil to the surface; a gas line was moved in June to provide a better source of supply and during May and June attempts were made to assemble well records, assignments and pertinent data; starting on July 24, 1964 re-perforation and acidization of the injection well on an adjoining lease was completed and routine pumping was resumed by July 28, 1964.

The trial court ..held, and correctly so, that the lease had terminated by its own terms by January 1, 1964. All that was done during this period of time was a routine starting of the pump on the lease to keep the pump in running operation. This is not sufficient to constitute drilling or reworking activities under the terms of the lease as a matter of law. Gulf Oil Corporation v. Reid, 161 Tex. 51, 337 S.W.2d 267; Francis v. Pritchett, Tex.Civ.App., 278 S.W.2d 288, error refused; Hickey v. Spangler, Tex.Civ.App., 358 S.W.2d 216, error ref., n. r. e.

We affirm the judgment of the trial court.

Affirmed.

       The 60 day provision in the lease is as follows:
      “If prior to discovery of oil or gas on said land Lessee should drill a dry hole or holes thereon, or if after discovery of oil or gas the production thereof should cease from any cause, this lease shall not terminate if Lessee commences additional drilling or re-working operations within sixty (60) days thereafter or (if it he within the primary term) commences or resumes the payment or tender of rentals on or before the rental paying date next ensuing after the expiration of three months from date of completion of dry hole or cessation of production.”


author: WERLEIN, Justice,

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Bernice EASTON, Appellee.
    No. 14831.
    Court of Civil Appeals of Texas. Houston.
    June 2, 1966.

      Joe Resweber, County Atty. of Harris County, and Bruce D. Mosier, Asst. County Atty., Houston, for appellant.
    Robert M. Moore, Houston, for appellee.
   WERLEIN, Justice,

Appellee, Bernice Easton, filed this suit on September 21, 1965, against Texas Department of Public Safety for the purpose of staying the operation and execution of an administrative order of appellant dated April 29, 1965, suspending the driving privileges and vehicle registrations of appellee because of her being involved as an operator and/or owner in a motor vehicle accident involving personal injuries and a death and property damage. The trial court found that appellee had complied with the requirements of said order by depositing with appellant a bond in the amount of $200.00 and by filing with appellant her motor vehicle liability insurance policy which she took out after the accident; that appellant accepted said bond but rejected said insurance policy; and that appellant notified appellee that such action by her constituted only a partial compliance with said order and the provisions of Article 6701h, Vernon’s Annotated Texas Statutes. The court decreed that the said order suspending the vehicle registrations and driving privileges of appel-lee, because of said accident which occurred on February 9, 1965, be permanently stayed in its operation and execution.

It is our view that the court’s judgment permanently staying the operation and execution of the order of the Texas Department of Public Safety is the equivalent of setting aside such order of appellant and holding the same to be of no force and effect, and that the same is a final judgment from which an appeal lies. The holding of this Court in Williams v. Texas Department of Public Safety, Tex.Civ.App., 371 S.W.2d 747, relied upon by appellee, is inapplicable to the present case not only because appellant in this case had prior to trial entered an order suspending appellee’s driving license and driving privileges, but also because the Williams case involves an entirely different fact situation and the construction of a different statutory provision. Our Supreme Court, in Gillaspie v. Department of Public Safety, 152 Tex. 459, 259 S.W.2d 177, held that any order or act of the Department is subject to judicial review by appeal. Section 2(c) of Article 6701h, V.A.T. S., expressly provides that trials in such cases shall be de novo, and tried without regard to any prior holding of fact or law by the Department and that the judgment entered shall be only upon the evidence offered at the trial by the court.

The transcript in this case contains an agreed statement of facts which recites that no evidence was offered at the hearing other than that contained in such statement. It was shown at the hearing that as the result of a motor vehicle accident on February 9, 1965, at which time appellee was operating an automobile not insured with public liability insurance, appellee was required by appellant to post security in the amount of $200.00 and file proof of financial responsibility for the future, or to file releases from the City of Houston with appellant, and ap-pellee was advised that in event of her failure to comply “your driver’s license and all your motor vehicle registration certificates and license plates are suspended. * * Effective date of suspension May 20, 1965.” Appellee introduced evidence that she had posted the necessary security by filing a bond in the sum of $200.00. She also introduced evidence of a motor vehicle liability insurance policy which she purchased after said accident. The evidence shows that appellant accepted the $200.00 bond but rejected the insurance policy, asserting that appellee had only partially complied with the provisions of Article 6701h, V.A.T.S., and advis’ng her that she could completely comply with said statute by filing with appellant a Form SR 22 which was attached to said agreed statement as Exhibit “C”, and that after filing the same appellee’s suspension would be lifted.

Appellee asserts that under Article III of 6701h, V.A.T.S., there are no requirements for proof of financial responsibility for the future except in connection with Section 17 which provides for subsequent proof of financial responsibility in cases where the Department suspends registrations of motor vehicles and revokes licenses upon receiving a record of a conviction or a forfeiture of bail or a plea of guilty. Section 5(b) of Article 6701h was amended by Act of the 58th Legislature in 1963, effective January 1, 1964, which was prior to the accident in question. As amended it provides for the suspension of the driver’s license and all registrations of each operator and owner of a motor vehicle, unless such operator, owner or operator and owner shall deposit security in a sum determined by the Department, and in no event less than $200.00, and unless such operator and owner shall give proof of financial responsibility. Hence, the Department was authorized to enter the order suspending appellee’s license and registrations if she failed to give proof of financial responsibility in addition to depositing the security required of her. It is ap-pellee’s contention that the furnishing of the indemnity insurance policy which she introduced in evidence was a sufficient compliance with the statute and constituted proof of financial responsibility.

The question then arises as to what constitutes proof of financial responsibility. Section 1, subd. 10 provides that proof of financial responsibility is proof of ability to respond in damages for liability, on account of accidents occurring subsequent to the effective date of said proof, arising out of the ownership, maintenance or use of a motor vehicle in the amount of $10,000.00 because of injury or death to one person in any one accident, and $20,000.00 because of bodily injury to or death of two or more persons in any one accident, and $5,000.00 because of injury to or destruction of property of others in any one accident. Section 7 of Article 6701h, as amended in 1963, provides that, “The license and registration and nonresident’s operating privilege suspended as provided in Section 5 shall remain so suspended and shall not be renewed nor shall any such license or registration be issued to such person until:

“1. Such person shall deposit and file or there shall be deposited and filed on his behalf the security and proof required under Section 5 and under this Section; * * (Emphasis supplied.)

Then follow certain other provisions with respect to the duration of suspension, which are not pertinent to the instant case. The proof required under Section 5 is proof of financial responsibility. The proof as shown in Section 1, subd. 10 of Article 6701h must be proof of ability to respond in damages in the amounts hereinabove indicated. The question next arises, In what manner or method must such proof be given ? Section 18 of Article 6701h is not limited to cases where there has been a judgment or a conviction. It applies to proof of financial responsibility when such is required under the Act with respect to a motor vehicle, and provides for alternate methods of giving proof, and further provides that no motor vehicle shall be or continue to be registered in the name of any person required to file proof of financial responsibility unless such proof shall be furnished for such motor vehicle. The four alternate methods of giving proof are:

“1. A certificate of insurance as provided in Section 19 or Section 20; or

“2. A bond as provided in Section 24; or

“3. A certificate of deposit of money or securities as provided in Section 25; or

“4. A certificate of self-insurance, as provided in Section 34 * * *.■”

No other manner of proof has been authorized by Article 6701h. Furthermore, the Department is given the power and authority under Sec. 2(a )of the Act to make rules and regulations necessary for the administration of the Act, and it has prescribed the form of certificate for giving proof of financial responsibility.

In the instant case appellee failed to give proof of financial responsibility in any one of such alternate methods. Appel-lee contends, however, that the insurance policy which she furnished is sufficient proof of financial responsibility. We do not agree with appellee’s contention. Section 19 clearly shows that the certificate referred to in Section 18, subd. 1 is not an indemnity policy or liability policy. Section 19(a) provides:

“Proof of financial responsibility may be furnished by filing with the Department the written certificate of any insurance company duly authorized to write motor vehicle liability insurance in this State certifying that there is in effect a motor vehicle liability policy for the benefit of the person required to furnish proof of financial responsibility. Such certificate shall give the effective date of such motor vehicle liability policy, which date shall be the same as the effective date of the certificate, and shall designate by explicit description or by appropriate reference all motor vehicles covered thereby, unless the policy is issued to a person who is not the owner of a motor vehicle.”

Section 19(b) provides: “No motor vehicle shall be or continue to be registered in the name of any person required to file proof of financial responsibility unless such motor vehicle is so designated in such a certificate.”

It is thus seen that the certificate of insurance as provided in Section 18, subd. 1, which is described in Section 19(a), is not the same as an indemnity or liability insurance policy. This is further shown by Section 21(a), which provides:

“A ‘motor vehicle liability policy’ as said term is used in this Act shall mean an owner’s or an operator’s policy of liability insurance, certified as provided in Section 19 or Section 20 as proof of financial responsibility, and issued, * * *, by an insurance company duly authorized to write motor vehicle liability insurance in this State, to or for the benefit of the person named therein as insured.”

Then followed various provisions showing what the motor vehicle liability policy shall contain.

In her brief appellee, in conceding that there is a difference between “a certificate of insurance” and “an ordinary insurance policy” as asserted by appellant, states: “The distinction shown is that under those instances requiring proof of future insurability, the Department must have at least five (5) days notification before cancellation of the insurance policy provided for.” Appellee takes the position, however, that the “certificate of insurance” is not necessary except in cases in which a driver’s license is automatically cancelled when convicted of certain serious offenses, or where there is a revocation of a license under circumstances which would involve the operation of some provision of Article IV of Article 6701h, V.A.T.S., where a judgment or conviction has been obtained against the licensee. As hereinabove stated, we are of the opinion that the requirement of the Department for a certificate of insurance as provided in Sections 19 and 20 is not limited to such cases since the amendment of 1963 of Section 5(b) providing that the operator and owner shall give proof of financial responsibility. Furthermore, Section 18 of Article 6701h, which provides alternate methods of giving proof of financial responsibility, is not limited to the provisions of Section 17 as contended by appel-lee, but covers any case in which proof of financial responsibility is required under the Texas Motor Vehicle Safety-Responsibility Act.

An ordinary indemnity or liability insurance policy could be cancelled by the insurer without five days’ notice to the Department. The financial responsibility insurance certificate provides for certification by the insurer that it has issued to the named insured a motor vehicle liability policy as required by the financial responsibility laws of this State, and that such policy is in effect on the effective date of the certificate. In giving such certificate the insurance company certifies in effect that the policy issued shall not be cancelled or terminated until at least five days after notice of cancellation or termination of the insurance so certified shall be received by the office of the Department as provided in Section 22 of the Act. This certification is necessary in order that the Department may take immediate action with respect to requiring the maintenance of financial responsibility by the owner or operator of the motor vehicle when his or her policy is cancelled or about to be cancelled.

The judgment of the trial court is reversed and judgment is here rendered that the suspension by the Texas Department of Public Safety of appellee’s driver’s license and motor vehicle registration certificates and license plates effective May 20, 1965 for failure to file proof of financial responsibility for the future as provided by Article 6701h, V.A.T.S., be and the same is' continued in force subject to the provisions of the Texas Motor Vehicle Safety-Responsibility Act as amended.

Reversed and rendered.


author: RENFRO, Justice.

text:
    C. M. PORTER, Appellant, v. DENTON LIVESTOCK COMMISSION, INC., Appellee.
    No. 16729.
    Court of Civil Appeals of Texas. Fort Worth.
    May 6, 1966.
    Rehearing Denied June 3, 1966.
    Supplemental Opinion June 3, 1966.
    Stark & Davey, and Richard S. Stark, Gainesville, for appellant.
    Jim J. Hatcher and L. V. Henry, Jr., Gainesville, for appellee.
   OPINION

RENFRO, Justice.

The Denton Livestock Commission, Inc., originally brought suit on sworn account against L. E. Gilley and C. M. Porter, d/b/a S & W Meat Company, a partnership. Defendant Porter denied he was in partnership with Gilley.

Judgment, based on jury findings, was entered for plaintiff against defendant Porter.

Defendant Gilley was dismissed from the case because he had been adjudged a bankrupt.

Defendant Porter appealed.

The terms “partner” and “partnership” were properly defined in the charge to the jury.'

The jury found that Porter and Gilley were partners and such partnership ex* isted at the time plaintiff’s cause of action arose.

On appeal defendant contends there was no evidence to support the findings that Porter and Gilley were partners by agreement. In other points it is contended the court erred in admitting “all the testimony” of the witnesses Brown, Williams and Banks.

Defendant did not file a statement of facts. Thus, he did not comply with Rule 386, Texas Rules of Civil Procedure.

He did not prepare and file a condensed statement in narrative form as permitted by Rule 377(a). He did not take advantage of any benefit accorded him by Rules 377 and 378.

Therefore, the appeal is before us on the transcript.

From an examination of the record before us it is obvious the above points cannot be considered without a statement of facts.

In the absence of a statement of facts, agreed statement of facts or partial statement of facts as provided in Rules 377 and 378, it must be presumed there was sufficient evidence introduced to support the findings of the jury and the judgment of the court.

The pleadings stated a cause of action against defendant and the issues were submitted in accordance with the pleadings. The answers of the jury were sufficient bases for the entry of judgment in favor of plaintiff. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683 (1951); Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549 (1946); Franke v. Franke, 373 S.W.2d 891 (Corpus Christi Civ.App., 1963, no writ hist.); Quarles v. Horton & Horton Building Materials Co., 336 S.W.2d 267 (Waco Civ.App., 1960, no writ hist.).

Other points attack the action of the court in invoking in the judgment the doctrine of estoppel in pais. The judgment does not show that it was based on estoppel. The judgment is in short form merely setting out the findings of the jury and adding that the court considered such additional findings as authorized by law.

There were not sufficient findings to warrant a judgment on estoppel; there were sufficient findings of an agreed partnership upon which a judgment could be based. We must presume the court based its judgment on the jury findings of a partnership by agreement, and in the absence of a statement of facts we must presume there was some evidence authorizing the submission of such issues.

Finally, the defendant contends the court erred in overruling defendant’s objections to the court’s charge. In the light of the record before us we find no reversible error in the charge. 3 Tex.Jur.2d 707-9, §§ 458-9.

It is an exceptional case in which an appellant is entitled to a reversal of the trial court’s judgment in the absence of a full or at least partial statement of facts. Houston Fire & Casualty Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600 (1953). This is not such an exceptional case.

Affirmed.

SUPPLEMENTAL OPINION

PER CURIAM.

Our written opinion in his case was rendered on May 6, 1966. On May 20, being fourteen days after the release of our opinion, the appellant filed his motion for leave to file statement of facts. The motion is overruled. Rule 386, T.R.C.P.; Consolidated Casualty Insurance Co. v. Wade, 373 S.W.2d 841 (Corpus Christi Civ.App., 1963, writ dism.); Franke v. Franke, 373 S.W.2d 891 (Corpus Christi Civ.App., 1963, no writ hist.), and authorities cited in the above two cases.


author: WILSON, Justice.

text:
    J. & W. CORPORATION, Appellant, v. M. A. BALL, Appellee.
    No. 4484.
    Court of Civil Appeals of Texas. Waco.
    June 9, 1966.
    Rehearing Denied June 30, 1966.
    Elliott & Nall, Sherman, for appellant.
    Charles E. Hughes, Sherman, for appel-lee.
   OPINION

WILSON, Justice.

Plaintiff recovered judgment from defendant for personal injuries sustained when a truck on defendant’s premises, driven by defendant’s employee, was backed over his hand. Plaintiff intended .to work on the truck fan belt while the driver was repairing a flat tire. The driver desired to raise the truck by backing it over a wooden block in order that a jack could be placed under the axle. Plaintiff volunteered to help, and was injured by the wheels which the driver caused to spin as plaintiff was attempting to place a scotch-block under them.

Jury findings were to the ' effect that “danger of the truck moving” while plaintiff was attempting to place the block “was open and obvious”; that the driver knew or should have known plaintiff, (found to be an invitee), was in a position of danger, failed to warn him, and failed to keep a proper lookout; that defendant was operating a lift system which was dangerous; that this conduct was negligence proximately causing the accident. Plaintiff was exonerated of specific acts of negligence submitted.

The jury answered that plaintiff assumed the risk of the danger “in attempting to place the wooden blocks next to the truck wheels.” In connection with the issue as to whether “danger of the truck moving while attempting to place the blocks under the truck wheels was open and obvious” the court instructed the jury: “A condition is open and obvious if a person could reasonably expect one situated as was plaintiff to discover and fully appreciate the danger involved in attempting to place the blocks next to the truck wheels.” We are not concerned with the grammatical construction of this portion of the charge, although the sentence structure does not simplify our problem.

Defendant argues that because of the jury findings that plaintiff knew and appreciated a danger which was open and obvious, and since plaintiff voluntarily exposed himself to it, he cannot recover, under the decision of Halepeska v. Callihan Interests, Tex., 1963, 371 S.W.2d 368.

Plaintiff says he concedes that the jury findings that he exposed himself to the open and obvious danger of defendant’s lifting system negatived defendant’s duty concerning protection from danger in operation of that system and warning of its existence, because this constituted a static or quiescent condition. The jury findings are that the “danger” of the “truck moving” while he was placing the blocks was “open and obvious”; but under the definition of the latter term, it was the “danger” of “attempting to place the blocks under the truck wheels” which is to be considered. Placing the blocks under the truck wheels is not a “condition” to be encountered under the Halepeska decision; neither is the “danger of the truck moving” as a result of defendant’s negligent conduct such a condition. The basis of the “no duty” doctrine relied on by defendant is that the occupier of premises has a duty to keep his premises in a reasonably safe condition or warn if the condition is unsafe unless the plaintiff has, or is charged with knowledge thereof; and if plaintiff has that knowledge so as to exercise an intelligent choice, defendant has no duty to him. The doctrine is simply inapplicable here.

Motile conditions or negligent conduct which change the static situation, and which plaintiff is not required to foresee, however, are not affected by those findings, it is urged. We agree. Plaintiff began his attempt to place the scotch-block while the wheels were stopped. Defendant’s driver thereafter negligently placed them in motion without watching, looking or warning. There was a new and changed status which plaintiff did not anticipate, appreciate, know or realize under the verdict and the undisputed evidence. The Halepeska no-duty rule does not apply to such a transitional status or condition.

In Hernandez v. Heldenfels, Tex., 1963, 374 S.W.2d 196, 201, the Supreme Court noted that open and obvious dangerous in-strumentalities and conditions to which the rule is applicable in invitee cases are generally “static, such as holes and pits in the ground, broken stairways and the like. If such ‘conditions’ be movable in part, such movement is generally rigidly circumscribed and easily predictable. McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940.”

We have considered appellant’s other points, including that asserting the award of damages is excessive. They are overruled. Affirmed.


author: McDONALD, Chief Justice.

text:
    YOUNGBLOOD’S, INC., Appellant, v. Anton J. GOEBEL et al., Appellees.
    No. 4491.
    Court of Civil Appeals of Texas. Waco.
    June 9, 1966.
    Rehearing Denied June 30, 1966.

      Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., Dallas, for appellant.
    Bryan, Wilson, Olson & Stem, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Young-blood’s, Inc., from a judgment against it in a nuisance case.

Seven sets of plaintiffs sued defendant for damages incurred as a result of unreasonable discomfort, annoyance and inconvenience caused by vile and noxious odors emitted from defendant’s rendering plant between March 15, 1963 and October 4, 1965. Plaintiffs alleged their properties are located a few hundred yards from defendant’s rendering plant where chicken entrails, blood, and feathers are cooked, and that the odors emitted escape into the atmosphere and are carried by prevailing winds onto plaintiffs’ properties, proximately causing plaintiffs’ damages.

Trial was to a jury which found in answer to issues submitted for each set of plaintiffs as follows:

Issue 1: “Do you find from a preponderance of the evidence, if any, that odors were, at various times between March 15, 1963 and October 4, 1965, produced from the operation of defendant’s rendering plant ?”
Answer: “They were”, or “They were not.”
ANSWER: "They were.”
“If you have answered Issue 1 ‘They were,’ then you will answer Issue 2; otherwise you will not answer same.”
ISSUE 2: “Do you find from a preponderance of the evidence, if any, that odors from the operation of the defendant’s rendering plant were, at various times between the 15th day of March, 1963 and the 4th day of October, 1965, carried by the wind in substantial quantities on to the premises of plaintiffs?
“Answer ‘They were,’ or ‘They were not.’ ”
ANSWER: “They were."
“If you have answered the' foregoing issue ‘They were, then you will answer the following issue; otherwise you need not answer same.”
ISSUE 3: “Do you find from a preponderance of the evidence, if any, that said odors were carried by the wind on to the premises of the plaintiffs, during said period and in such a manner and to such an extent that they constituted a nuisance? Answer ‘They were,’ or ‘They were not.’ ”
ANSWER: “They were."
“If you have answered the foregoing issue ‘They were,’ then you wil answer the following issue; otherwise you need not answer same.”
ISSUE 4: “Do you find from a preponderance of the evidence, if any, that the creation of said condition of nuisance by defendant naturally and proximately caused material personal discomfort, annoyance, inconvenience and loss of use and enjoyment of their home to plaintiffs ? Answer ‘It did’ or ‘It did not.’ ”
ANSWER: “It did."
“If you have answered Issue 4 ‘It did,’ then you will answer the following issue; otherwise you need not answer same.”
ISSUE 5: “What amount of money, if any, if paid now in cash, do you find from a preponderance of the evidence, if any, would reasonably compensate the plaintiffs for their material personal discomfort, inconvenience, annoyance and loss of use and enjoyment of their home and property, if any, as a result of said condition of nuisance created by defendant, if you have so found ? Answer in dollars and cents.”
ANSWER: “$3000."

The trial court entered judgment on the verdict, for $3,000 for each set of plaintiffs against defendant.

Defendant appeals on 8 points, contending:

1) The trial court erred in holding as a matter of law that the alleged nuisance was temporary; and in not submitting defendant’s requested issue inquiring whether the alleged nuisance was temporary or permanent ; and in allowing recovery when plaintiffs were barred by limitation.

2) The charge constitutes a comment on the weight of the evidence, in that Issues 2 and 3 assume there were odors from the defendant’s rendering plant since the words “if any" were not placed after the word “odors” in such issues. The same complaint is made at the failure to insert the words “if any” after the word “nuisance” in Issue 4; and after the words “said condition of nuisance” in Issue 5.

We revert to defendant’s 1st contention. Defendant’s plant was built on defendant’s land in September or October, 1962. Plaintiffs all live on their properties located about' a mile from defendant’s plant. Plaintiffs alleged that defendant’s plant was permanent in its character, but that the noxious odors flow from the plant when it is in operation “and when odors escape into the atmosphere and are carried onto plaintiffs’ properties by prevailing winds and other atmospheric conditions.” Plaintiffs alleged the acts complained of occurred between March 15, 1963 and October 4, 1965.

The witness Gorgas testified he first smelled odors in the spring of 1963; that odor depends on direction of wind, and comes and goes. Witness Duro testified he first smelled odor in summer of 1963; smell occurs when cooking takes place, and wind out of south. Witness Goebel first smelled odor in 1963; smelled odors on numerous occasions between March IS, 1963 and October 4, 1965; no odor when wind out of north. Witness Stewart testified she first smelled odor in April, 1963; smelled odor when wind out of south 3 or 4 times a week. Witness Mrs. Goebel first smelled odor in spring of 1963; and when wind out of south. Witness Caldwell, an officer of defendant, testified the plant produced no offensive odor at any time. Witness Mrs. Duro first smelled odor in spring of 1963; smelled at different times when wind out of south. Witness Dobbs first smelled odor in March or April of 1963; and thereafter when wind out of south. Witness Johnson first smelled odor in spring of 1963, and when wind out. of south. Witness Mrs. Gorgas first smelled when weather got warm in 1963; smelled at various times; worse when weather damp. Witnesses Hesse, Swensen and Stollenwerck went to plant and near plant at various times and smelled no odors. Witness Barns, who designed the plant, testified it made no odor after it was built in September or October, 1962; and that the installation of an odor burner in early 1965 eliminated all offensive odors.

Plaintiffs’ witnesses testified after the odor burner was installed the condition improved somewhat.

Defendant’s plant was a lawful undertaking and erected on defendant’s lands, and did not constitute an invasion of plaintiffs’ rights at the time it was built. Though the structure was permanent in character, no immediate injury arose, and the injuries resulting were only in consequence of the intervention of the wind and atmospheric conditions.

In such situation the nuisance is temporary and the cause of action does not accrue until the injury is sustained. Austin & N. W. Ry. v. Anderson, 79 Tex. 427, 15 S.W. 484; Parsons v. Uvalde Elec. Light Co., 106 Tex. 212, 163 S.W. 1, L.R.A.1916E, 960; Baker v. City of Ft .Worth, 146 Tex. 600, 210 S.W.2d 564, 5 A.L.R.2d 297. Trinity Portland Cement Co. v. Horton, C.C.A., Er. Dis., 214 S.W. 510.

Plaintiffs’ allegations and the proof establishes as a matter of law, that the nuisance is temporary. Plaintiffs’ cause of action accrued when plaintiffs first sustained injury, and was not barred by limitation.

Defendant’s 2nd contention is that the omission of “if any” in Issues 2, 3, 4 and 5, which were conditionally submitted, constitutes a comment on the weight of the evidence.

Under the record we think the form of submission, if error, harmless. Rule 434 Texas Rules of Civil Procedure.

All defendant’s points and contentions are overruled.

Affirmed.


text:
    Esther K. FARRY, a widow, Appellant, v. James V. LANDRETH and Nora Delta Landreth, Appellees.
    No. 4480.
    Court of Civil Appeals of Texas. Waco.
    June 9, 1966.
    Rehearing Denied June 30, 1966.

      Odeneal & Odeneal, Wm. C. Odeneal, Jr., Dallas, for appellant.
    Alvin Boyd, Dallas, for appellees.
   OPINION

WILSON, Justice.

The makers of a promissory vendor’s Hen note, alleging there was an unpaid balance of only $42.27 due, which the payee refused to accept in satisfaction, sought judgment declaring this sum tendered to be the correct balance, and declaring the note and lien to be cancelled and discharged. The payee answered that a larger sum was due under the terms of the note, for which, with foreclosure, judgment was prayed. Judgment was rendered as plaintiffs asked. There are findings and conclusions in the judgment. There is no statement of facts. We affirm.

The principal bore interest at 6%. The note provided:

“The interest on this note is payable monthly with each installment as above stipulated; and all balance due on principal and interest after default in payment of any installment of principal or interest when due shall bear interest after default at the rate of ten per cent per annum.”

For nearly four years plaintiffs regularly and promptly made the $25 monthly payments. They failed to pay the monthly installments due in March, April, May and June, 1959 until July, 1959, when they paid $125 representing installments due March to July inclusive. They thereafter continued to pay and payee accepted all monthly installments as they became due, with many of the payments being made in advance.

It was stipulated that if computation was to he made as plaintiff contended, the balance due was the $42.27 tendered; but if interest was to be computed at 10% by virtue of the quoted clause, the balance was the sum of $258.77.

The payee accepted all payments made by the makers on and after July, 1959 until this suit was filed in 1965 without declaring the note in default. Payee now contends the increased rate became automatically effective as to the entire indebtedness the moment payment of a monthly installment was in arrears. The quoted provision is ambiguous. What balance of “principal and interest” is to bear interest at 10% after “default” in payment of “any installment of principal and interest when due” is not specified. The note clearly provided for acceleration of maturity at the holder’s election upon failure to pay any installment or “any interest hereon” when due.

In case of doubtful meaning an oppressive construction of a contract will be avoided. Hoffer Oil Corporation v. Hughes, Tex.Civ.App., 16 S.W.2d 901; Christie, Mitchell and Mitchell Co. v. Selz, Tex.Civ.App., 313 S.W.2d 352, writ dism.; Hicks v. Smith, Tex.Civ.App., 330 S.W.2d 641, writ ref. n. r. e. Construction which leads to forfeiture is not favored, Hill v. Still, 19 Tex. 76; and an ambiguous agreement imposing a penalty is to be interpreted in favor of the promisor. See 4 Williston, Contracts (Jaeger, 3d ed.) Secs. 620, 621; 17A C.J.S. Contracts § 319, p. 194.

The interest clause of the note is subject to the interpretation that only delinquent installments are to bear 10% interest, absent election to accelerate maturity. Another possible construction is that, if there is no such election, the increased interest is to be computed during the period of arrearage. Under either meaning the amount tendered for which judgment was rendered would satisfy the requirement.

Although defendant payee pleaded as a basis for her interest claim commencing May 14, 1959 that she “elected to collect the balance of the note with interest at the rate of 10% per annum” there is nothing in the record to establish that averment as it relates to acceleration, and the court found she failed to declare the entire note due and payable.

Affirmed.