author: WILLIAMS, Justice.

text:
    TRINITY UNIVERSAL INSURANCE COMPANY, Appellant, v. BELLMEAD STATE BANK OF WACO, Texas, Appellee.
    No. 16604.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 29, 1965.
    Rehearing Denied Nov. 19, 1965.

      Brundidge, Fountain, Elliott & Churchill, L. E. Elliott, Dallas, for appellant.
    John B. McNamara, Jr., Waco, for ap-pellee.
   WILLIAMS, Justice.

Appellant Trinity Universal Insurance Company, also referred to as Surety, appeals from a summary judgment of the District Court of Hunt County awarding appellee Bellmead State Bank of Waco, Texas, also referred to as Garnishor, the sum of $24,966.84 which had been tendered into court by Farmers Electric Cooperative, Inc., referred to as Cooperative, and being the balance of the proceeds of a contract for the construction of a building which Marble Construction Company, Inc., as contractor, agreed to construct for Cooperative, and for the performance of which Trinity Universal Insurance Company bound itself as surety. Bellmead Bank claimed that as a garnishor its right to the fund was superior to the rights of the Surety. The district court, in sustaining appellee’s motion for summary judgment, and in overruling appellant’s motion for summary judgment, found that appellant had failed to secure a protected assignment pursuant to Art. 260-1, Vernon’s Ann. Revised Civil Statutes of Texas, and that appellee, as Garnishor, was entitled to the funds.

Appellant, in its points of error, contends that the trial court erred in holding that Art. 260-1, V.A.C.S., operated to nullify Surety’s rights as subrogee to enforce the contractual provisions of the construction contract. The facts are stipulated by the parties, as follows:

“1.
“On or about July 3, 1962, Marble Construction Company, Inc., executed and delivered to Surety an application for a surety bond, conditioned for the performance of a contract for the construction of a building for FARMERS ELECTRIC COOPERATIVE, INC., Garnishee, a copy of which application is attached to the claim of Surety, identified as Exhibit ‘A’ and made a part hereof.
“2.
“Pursuant to said application, Surety on or about July 3, 1962, executed and delivered to FARMERS ELECTRIC COOPERATIVE, INC., Garnishee, its contractor’s bond, a true copy of which is attached to the claim of Surety, heretofore filed herein, identified as Exhibit ‘B’ and made a part hereof, whereby, Surety became Surety for Marble Construction Company, Inc. for the construction work described in a copy of said contract, attached to the claim of Surety and identified as Exhibit ‘C’ and made a part hereof.
“3.
“Thereafter, and on or about the 16th day of April, 1963, said Marble Construction Company, Inc. became financially unable to proceed further in the performance of the contract. It then owed for labor and material used on said project in excess of $25,000.00 and had but $7,000.00 available for payment thereof and for completion of said project. Contractor turned over to Trinity Universal said $7,000.00 and Trinity Universal agreed that in carrying out its obligations under the bond it would assume responsibility for the completion of said contract. But, because contractor did not desire to publicize its financial responsibility, it was agreed that contractor would continue in the management of the work and would issue its checks to all intents and purposes as though financially able to do so; and that as checks were issued by contractor Trinity Universal would deposit in the account of said contractor in the First National Bank in •Dallas, sums of money to cover the checks drawn by Marble Construction Company, Inc. as payments for labor and materials used in the prosecution of said work.
“4.
“Pursuant to such arrangement, Trinity Universal advanced as completion costs of said contract and in payment of materials used in the prosecution of the work the sum of $102,112.-98.
“5.
“As a part of the transactions aforesaid, contractor delivered to Surety its written directions addressed to Farmers Electric Cooperative, Inc., dated April 19, 1963, a copy of which is attached to Surety’s claim, heretofore filed herein and identified as Exhibit ‘D’. In response thereto, said Cooperative, by its attorney, Don Hayter, replied by letter of April 26, 1963, a copy of which is attached to Surety’s claim, heretofore filed herein and identified as Exhibit ‘E’. Subsequent thereto, said Cooperative paid to Surety, the following amounts due for work and materials furnished to Trinity Universal pursuant to the foregoing arrangement, to wit:
May 20, 1963 $ 7,859.70
July 24, 1963 13,675.50
For a total of $ 21,535.20
That after application of said sums and the $7,000.00 delivered to Surety by contractor, Surety’s advances for construction costs still unpaid is the sum of $80,577.78.
“6.
“The fund tendered into Court by FARMERS ELECTRIC COOPERATIVE, INC. represents the retained percentages due under and by virtue of the contract identified as Exhibit ‘C’.
“7.
“That on the 2nd day of December, 1963, Bank recovered'judgment against Marble Construction Company, Inc. in the 74th District Court of McLennan County, Texas in Cause No. 31,655 on the docket of said Court for the total sum of $53,469.75, together with interest thereon from said date until paid at the rate of six per cent (6%) per annum, together with $20.90 costs of suit; That said judgment is still unsatisfied and Bank is the present legal and equitable owner and holder of said judgment and of said judgment lien.
“8.
“That on the 5th day of December, 1963, a Writ of Garnishment was served on FARMERS ELECTRIC COOPERATIVE, INC. by Bank herein ; That thereafter, on the 20th day of December, 1963, FARMERS ELECTRIC COOPERATIVE, INC., Garnishee, filed its answer to said Writ of Garnishment in which said Garnishee set out that at the time said Writ of Garnishment was served upon it and at the time of filing its answer that it had in its possession approximately $25,-966.84 as the balance due on a certain contract between FARMERS ELECTRIC COOPERATIVE, INC. and Marble Construction Company, Inc. for the construction of a structure known as Headquarters Building, Farmers Electric Cooperative, Inc., designated as Project Tex-67, Raines-Rockwall.
“9.
“That thereafter, Bank filed its Controverting Affidavit transversing the Answer of said Garnishee.
“10.
“That the occasion for the difference in the sum of $25,966.84 set out in the Answer of FARMERS ELECTRIC COOPERATIVE, INC., Garnishee, to the Writ of Garnishment by Bank, and the sum of $25,616.84 paid into the Registry of this Court by said Garnishee is the result of the sum of $350.00 attorney’s fees allowed to Garnishee’s attorney for filing the Answer to said Writ of Garnishment.”

Material portions of the construction contract which is made a part of the stipulations are as follows:

“Art. Ill, page 10.
“Section 1. Payments to Bidder:
“(a) On or before the fifteenth (15th) day of each Calendar Month, the Owner shall make partial payment to the Bidder for construction accomplished during the preceding Calendar Month on the basis of estimates thereof certified to by the Bidder and approved by the Architect solely for the purposes of payment; provided, however, that such approval by the Architect shall not be deemed approval of the workmanship or materials; and provided further, that in estimating the amount of construction accomplished, consideration shall be given only to equipment or materials incorporated into the Project. Only ninety (90) percent of each such estimate approved during the construction of the Project shall be paid by the Owner to the Bidder prior to Completion of Construction.
“(e) No payments shall be due while the Bidder is in default in respect of any of the provisions of this Proposal, and the Owner may withhold from the Bidder the amount of any claim by a third party against either the Bidder or the Owner based upon an alleged failure of the Bidder to perform the work hereunder in accordance with the provisions of this Proposal.
“Section 2. Release of Liens: Upon completion of Construction of the Project, but prior to the payment to the Bidder of any amount in excess of ninety (90) percent of the Bid Price, as and if revised, the Bidder shall deliver to the Owner in duplicate, on forms approved by the Administrator, releases of all liens and of rights to claim any lien from manufacturers, materialmen and subcontractors who have furnished materials or services for the construction of the Project and a certificate in a form satisfactory to the Administrator, to the effect that all labor used on o? for the Project has been paid and that all such releases have been submitted to the Owner, and the Owner shall deliver to the Administrator for his approval one of the duplicates of each release and certificate.”

The Exhibit “D” referred to in the stipulation, is a letter from Marble Construction Company, Inc. to Farmers Electric Cooperative, Inc., dated April 19, 1963, which is copied as follows:

“MARBLE CONSTRUCTION COMPANY, INC.
P.O. Box 18092
Dallas 18, Texas
April 19, 1963
Mr. Joe Lytle
Farmers Electric Cooperative, Inc.
Greenville, Texas
Dear Mr. Lytle:
Project Tex-67, Rains-Rockwall
Headquarters Building
This letter will serve as our request and your authority to mail all future payments now due or to become due under our contract for the construction of the captioned project directly to Trinity Universal Insurance Company, P. O. Box 5028, Dallas 22, Texas, Attention Mr. Henry Yates.
In addition, we hereby waive and release all right, or claim of right, in and to any and all contract balances, including earned by unpaid estimates and earned retained percentages, and hereby assign to Trinity Universal Insurance Company, our surety, any right or rights we may have to request additional compensation for work already performed but not included in payments to date.
This letter is to be considered irrevocable without the written consent of Trinity Universal Insurance Company.
Very truly yours,
MARBLE CONSTRUCTION COMPANY, INC.
BY: /s/ George E. Marble
George E. Marble, President”

We agree with appellant that the issue presented by this appeal is narrowed to the question: Who has the better right to the contract funds, the Surety, who has completed the building pursuant to its surety-ship application, and thereby produced the fund which is deposited in the court by the interpleader, or a garnishing creditor?

Appellee asserts (1) that contractor never made default, as contemplated by the construction contract and suretyship agreement; (2) that the voluntary decision of the Surety to lend its financial assistance to the contractor under the circumstances herein can create in the Surety no other or greater right than the relationship of debtor and creditor; (3) that Surety must rely upon the alleged assignment, Exhibit “D”, above, and since no claim is advanced that the assignment of the proceeds of the contract was recorded in compliance with the terms of Art. 260-1, V.A.C.S., it is not protected by such assignment. We find ourselves unable to agree with appellee with any of these contentions. ,

In determining the questions presented here we must be bound by the express stipulation of facts. It was therein agreed that contractor “became financially unable to proceed further in the performance of the contract.” It was also agreed that Surety “in carrying out its obligations under the bond would assume responsibility for the completion of said contract.” For reasons assigned it was decided to handle the completion of the job in a manner which would give rise to the least adverse publicity and increased financial obligations. The stipulation expressly provided that the fund herein involved represented the retained percentages due under the contract. When the stipulation is reviewed within its four corners we think there was such a default on the part of the contractor as contemplated by the agreement and that the Surety’s independent rights to the fund is founded on its suretyship relationship as such. The rights of the surety in this case, as revealed by the stipulation of facts, does not depend upon an independent assignment, such as Exhibit “D”, and therefore we are not here concerned with the application of Art. 260-1, V.A.C.S., nor the rule correctly stated in Parker Square State Bank v. Triangle Supply Co., Tex. Civ.App., 364 S.W.2d 418.

That a surety has an independent right growing out of its relationship as such to require the retainage to be applied to contract obligations is well settled by the courts, both federal and state. Thus in Prairie State Nat’l Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412, the United States Supreme Court said:

“The law upon this subject seems to be, the reserved per cent, to be withheld until the completion of the work to be done is as much for the indemnity of him who may be a guarantor of the performance of the contract as for him for whom it is to be performed. And there is great justness in the rule adopted? Equitably, therefore, the sureties in such cases are entitled to have the sum agreed upon held as a fund out of which they may be indemnified, and, if the principal releases it without their consent, it discharges them from their undertaking.” (Emphasis supplied.)

For additional authorities see Republic Nat’l Bank & Trust Co. v. Massachusetts Bonding & Ins. Co., Fifth Circuit, 68 F.2d 445; Henningsen v. United States Fidelity & Guaranty Co., 208 U.S. 405, 28 S.Ct. 389, 52 L.Ed 547; Pearlman v. Reliance Ins. Co., 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190; American Employers’ Ins. Co. v. Roddy, Tex.Com.App., 51 S.W.2d 280, opinion approved by the Supreme Court.

It is further well settled in our law that the surety whose funds go to discharge contractor’s obligations is thereby subrogated to the rights of the owner to apply the contract balances to the completion of the project and payment of bills incurred in that connection. American Employers’ Ins. Co. v. Roddy, Tex.Com.App., supra; O’Neil Engineering Co. v. First Nat’l Bank, Tex.Com.App., 222 S.W. 1091; Pacific Indemnity Co. v. Grand Avenue State Bank, Fifth Circuit, 223 F.2d 513; Employers’ Casualty Co. v. Rockwall County, 120 Tex. 441, 35 S.W.2d 690.

The rights of the Surety in this case are based upon its payment of the debt of another, and not upon any declaration of default by the owner. Simply stated, the right of subrogation of the Surety is founded solely upon the equitable principle of having paid, pursuant to a bound obligation so to do, what in equity should have been paid by the contractor. Thus, in 53 Tex.Jur.2d 434 it was said:

“The doctrine of subrogation is given a liberal application, and is broad enough to include every instance in which one person, not acting voluntarily, has paid a debt for which another was primarily liable and which in equity and good conscience should have been discharged by the latter. The doctrine is particularly strong in this state.” (Emphasis supplied.)

The Surety in this case cannot be said to be a mere voluntary money lender, as contended by appellee. As above stated, the genesis of appellant’s rights and responsibilities is the suretyship agreement itself. According to the stipulation of facts the contractor became financially unable to proceed further in the performance of his contract and this fact was made known to the Surety which elected to carry out its suretyship obligation in the manner set forth in the stipulation. No overt declaration of default was essential. In Employers’ Casualty Co. v. Rockwall County, 120 Tex. 441, 35 S.W.2d 690 there was no declaration of default. The court said:

“It was shown without dispute that the contractors allowed their bills for labor and material in the performance of their contract to go unpaid, in violation of the terms thereof, informing the surety company that they were unable financially to proceed further with the performance of the work, and demanding that it take over the job, which it did, and completed the same to the satisfaction of the county.
“We have no difficulty in reaching the conclusion that the evidence established, as a matter of law, there was an abandonment or default on the part of the contractors. Their acts and conduct constituted a clearcut default, justifying the surety company in making the effort to minimize its loss by assuming performance of- the contract.”

The contractor in this case obviously had no right to the contract funds retained by it, and the bank, appellee herein, as its garnishment creditor, could acquire no greater rights into said fund. In re William P. Bray Co., D.C., 127 F.Supp. 627; United States v. Yates, Tex.Civ.App., 204 S.W.2d 399; F. H. McGraw & Co. v. Sherman Plastering Co., D.C., 60 F.Supp. 504.

For the reasons herein assigned we are of the opinion, and so hold, that appellant was not a mere moneylender and therefore dependent upon an assignment, as contended by appellee, but that it was entitled to the proceeds of the fund in question by virtue of its contract of suretyship, the performance of which resulted in a subrogation granting to it rights superior to that of appellee. It follows that the trial court erred in awarding the proceeds of the fund to appellee.

Our judgment to be rendered here is governed by the opinion of the Supreme Court in Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400, wherein the court said:

“But when, as in this case, both parties file motions for summary judgment and one such motion is granted, then the trial court’s judgment becomes final and appealable, and on appeal the Court of Civil Appeals should determine all questions presented. If reversible error is found, the court should render such judgment as the trial court should have rendered, Rule 434.”

To the same effect see Gulf, C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492; Catholic Charities of the Diocese of Galveston, Inc. v. Harper, 161 Tex. 21, 337 S.W.2d 111. Accordingly, we hold that the trial court should have rendered judgment for appellant and we, pursuant to Rule 434, Texas Rules of Civil Procedure, reverse the judgment of the trial court and here and now render judgment in favor of appellant.

The judgment of the trial court is

Reversed and rendered.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    H.E. McCOLLUM, Appellant, v. Gerald F. MAY, Appellee.
    No. 16590.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 24, 1965.
    J.Paul Pomeroy, Jr., Houston, for appellant.
    Bailey & Williams and Lawrence R. Maxwell, Jr., Dallas, for appellee.
   DIXON, Chief Justice.

This is an appeal from a summary judgment. Appellee depends solely on his sworn Original Petition with attached exhibits to support his summary judgment against appellant H. E. McCollum.

In the same suit a judgment was also taken by appellee against Pete Covington, who did not appeal.

APPELLEE’S PLEADINGS

In his motion for summary judgment ap-pellee says, “This is a suit on sworn account under Rule 185 of the Texas Rules of Civil Procedure. As required by said rule Plaintiff’s Original Petition is accompanied by the affidavit of James A. Williams, Attorney of Record for the Plaintiff Gerald F. May.”

The affidavit above referred to, omitting formal parts, is as follows:

“Before me the undersigned authority personally appeared JAMES A. WILLIAMS, who being by me first duly sworn, states that he is the Attorney of Record for the Plaintiff, Gerald F. May, that he has knowledge of the facts herein set forth, and is duly authorized by the said Plaintiff to make this Affidavit, that the indebtedness as hereinabove alleged is due and owing at this time, and that such indebtedness within the knowledge of Affiant is just, true and correct and that all just and lawful offsets, payments and credits have been allowed.”

We have quoted the above affidavit to show that it complies with the form of affidavit prescribed in Rule 185, T.R.C.P. for a suit on sworn account, but it does not meet the requirements of Rule 166-A, Sec. (e) for an affidavit to support a summary judgment.

A condensed statement of the allegations in appellee’s Original Petition, filed September 30, 1964, is necessary to an understanding of the points presented in this appeal:

1.Appellee alleges that on February 1, 1960 C. M. & M. Carcass Co. and H. E. Mc-Collum, Lee W. Mitchell, and Pete Coving-ton individually, executed their promissory note payable to Pete Covington for $5,000 due September 30, 1960. This note is unusual in that Pete Covington appears to be both a maker and the payee. The record gives no explanation of this situation. We shall hereafter refer to this instrument as the McCollum note.

2. On February 1, 1960 Pete Covington executed a note payable to appellee G. F. May for $9,000 due September 30, I960. The date of execution and the due date of this note are the same as the McCollum note.

3. On March 10, 1960 Pete Covington assigned the $5,000 note signed by McCol-lum and others to appellee G. F. May “as collateral for note of $9,000.00 to G. F. May by Pete Covington.”

4. On August 9, 1961 Pete Covington and appellee May signed a document, the first paragraph of which states, “The following summarizes an agreement entered into between Gerald F. May and Pete Cov-ington.” This document recites that both the McCollum note for $5,000 and Coving-ton’s note for $9,000 were still unpaid. So Covington agreed to execute two new notes “in working out a settlement of Coving-ton’s $9,000 note.” Appellee May would continue to hold McCollum’s $5,000 note and Covington’s $9,000 note as collateral for the two new notes to be executed by Covington. McCollum was not a party to this agreement.

5. Pursuant to said agreement on August 9, 1961 Covington executed a note for $5,000 payable to appellee May at the rate of $100 per month beginning September 1, 1961.

6. Also pursuant to the agreement on August 9, 1961 Covington executed a note for $4,000 payable to appellee May on or before one year after date.

Appellee further alleged in his Petition that the amount due on the $5,000 McCol-lum note, which he held as collateral, was $7,940, including principal, interest and attorney’s fees. The total amount due on the $9,000 Covington note was $14,322.

In the alternative appellee alleged that the amount due on the two Covington notes of August 9, 1961 was $12,930, after crediting Covington with payments totaling $400.

APPELLANT’S PLEADINGS

McCollum filed a sworn Original Answer to appellee’s sworn Original Petition.

In his sworn Original Answer McCollum pled (1) a general denial, and that (2) there never was any consideration given to him by the payee, Covington, for the $5,000 note of February 1, 1960, (3) appel-lee May is not a holder of said note in due course, (4) he is not a bona fide purchaser, and (5) he is not the owner of the note.

McCollum did not file a reply to appel-lee’s unsworn motion for summary judgment.

OPINION

We shall first consider appellant’s second and third points on appeal in which he asserts that Rule 185, T.R.C.P. does not apply to the facts alleged by assignee-appellee May since (2) appellant was not a party to the contractual agreements between appellee May and Pete Covington, and (3) Rule 185 does not apply to special contracts.

We agree with appellant. In McCamant v. Batsell, 59 Tex. 363, our Supreme Court, speaking through Judge Stayton, held that a debt which is not the result of a transaction between the parties to it, but which is the result of a transaction between one of them and some other person cannot constitute such an account as the statute (now Rule 185) contemplates. This holding is quoted by the San Antonio Court of Civil Appeals in Eng v. Wheeler, 302 S.W.2d 263, 266. See also Nat’l Surety Corp. v. Dabney, 282 S.W.2d 70, 73 and Duree v. Aetna Ins. Co., 66 S.W.2d 764.

In Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78, our Supreme Court held that Rule 185, T.R.C.P. is not a rule of substantive law, but is a rule of procedure with regard to evidence necessary to establish a prima facie right of recovery or defense and is not the basis for a cause of action; and further, it does not include transactions resting on special contract. See cases cited in the opinion in support of the holding. Appellant’s second and third points are sustained.

In his first point appellant says that issues of fact were joined, which issues, if found in favor of appellant, would require judgment in his favor.

So far as appellant McCollum is concerned appellee May’s Petition seeks to assert a cause of action against McCollum on a promissory note in which May is not the payee, but which note May holds only by assignment as collateral security for notes executed by Pete Covington. The rule of law is that when a negotiable instrument held as collateral security is subject to defenses as between the original parties, the holder of the collateral must plead ánd prove that he will lose his principal debt, or part thereof, unless he is permitted to collect the collateral sued on. Appellee May has neither pled nor proved such facts in this case, though McCollum in his sworn Original Answer pled certain defenses to the note, as heretofore pointed out. In view of the fact issues thus raised by McCollum’s Original Answer the Original Petition of appellee May, standing alone, is insufficient to support a summary judgment in May’s favor. Harrington v. H. B. Claflin & Co., 91 Tex. 294, 42 S.W. 1055; Cont. & Com’l. Nat’l Bank of Chicago v. Meister, Tex.Civ.App., 186 S.W. 377; Farwell v. Tingle, Tex.Civ.App., 280 S.W. 232; Hays v. Walsh, Tex.Civ.App., 280 S.W. 877; City Nat’l Bank v. Pearce, Tex.Civ.App., 291 S.W. 291; City Nat’l Bank v. Underwood, Tex.Civ.App., 293 S. W. 941; Kincaid v. Lee County State Bank, Tex.Civ.App., 4 S.W.2d 310; Harris v. Wuensche, Tex.Civ.App., 7 S.W.2d 595; Harris v. Bucek, Tex.Civ.App., 8 S.W.2d 565; Stanley v. Columbus State Bank, Tex. Civ.App., 258 S.W.2d 840; 9 Tex.Jur.2d 308-310.

Appellee May says that the defenses pled by McCollum are conclusions of law, therefore cannot be considered. This statement would ordinarily be correct if we were passing on the sufficiency of affidavits and counter-affidavits attached to a motion for summary judgment or an answer to a motion for summary judgment. But that is not the situation here. In this case both parties are relying only on their pleadings —appellee on his sworn Original Petition and McCollum on his sworn Original Answer.

Rule 45, T.R.C.P., referring to petitions and answers, provides that an allegation of a legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole. In construing this rale our courts have held that pleading a legal conclusion is permissible if the pleader’s adversary is not misled by it. This is especially true where the adversary has not excepted to the sufficiency of the pleading. White v. Bond, Tex.Civ.App., 355 S.W.2d 225 (rev. on other grounds, Tex.Civ.App., 362 S.W.2d 295); Blackstock v. Gribble, Tex.Civ.App., 312 S.W.2d 289; Atkinson v. Thompson, Tex.Civ.App., 311 S.W.2d 250. Appellee filed no exceptions to the legal conclusions alleged in McCollum’s Original Answer.

The situation we have before us then boils down to this: Appellee May, to support his unsworn motion for summary judgment, relies solely on his sworn Original Petition with attached exhibits. Appellant McCollum traverses appellee’s Petition with a sworn Original Answer which is in compliance with Rules 45, 93 and 94, T.R.C.P. and which as a pleading, raises material defensive fact issues. Neither party went forward with any depositions, other exhibits, other affidavits, or evidence. It is simply a case of pleading versus pleading. Appellee has not discharged the burden which was on him under Rule 166-A to show beyond any doubt that there are no fact issues in this case. Appellant’s first point is sustained.

In his fourth point appellant asserts that the “attorney’s affidavit attached to appel-lee’s Original Petition is insufficient to support a summary judgment under Rule 185 * *

The affidavit does not comply with Rule 166-A, Sec. (e) with reference to summary judgment. It simply says that the affiant “has knowledge” of the facts. It does not state that the affidavit is made on “personal knowledge.” His “knowledge” could be based on hearsay information. Further, the affidavit does not show affirmatively that affiant is competent to testify to the matters stated therein.

However, McCollum did not except to the sufficiency of the affidavit. Our Supreme Court has held that objections to deficiencies such as are present in the affidavit here may not be raised for the first time on appeal in summary judgment proceedings “when it fairly appears from the record that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230. We do not believe that the Supreme Court’s holding is applicable here since we have held that the record does fairly present material fact issues.

We believe that the situation here is more analogous to that in Box v. Bates, 162 Tex. 184, 346 S.W.2d 317, in which no showing was made before the trial court with proof in the nature of depositions, admissions, or other evidence, and it was held to be error under the circumstances to sustain a motion for summary judgment.

The judgment of the trial court is reversed and the cause is remanded for further proceedings not inconsistent herewith.

Reversed and remanded.


author: CLAUDE WILLIAMS, Justice.

text:
    Hiram C. CLEVENGER, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 16600.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 22, 1965.
    Rehearing Denied Nov. 19, 1965.

      Charles Ben Howell, Dallas, for appellant.
    Gordon H. Rowe, Jr., Leachman, Gar-dere, Akin, Porter & DeHay, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

This is a workmen’s compensation case. Hiram C. Clevenger, an automobile salesman for McAllister Mercury-Comet, Inc., sustained personal injuries while playing baseball at a company-sponsored picnic or outing. He sought to recover workmen’s compensation benefits alleging that his injuries were sustained while he was in the course and scope of his employment for his employer which carried workmen’s compensation insurance with Liberty Mutual Insurance Company. The case was tried before the court and a jury in the district court but the jury was unable to agree upon the answer to the speciál issue inquiring whether Clevenger sustained his injuries while in the course and scope of his employment. The jury was discharged (but no mistrial ordered) and thereafter plaintiff filed a motion for summary judgment and defendant Liberty Mutual Insurance Company moved the court to enter judgment in its favor, re-urging its motion for instructed verdict made at the close of the evidence. The trial court overruled plaintiff’s motion for summary judgment and sustained defendant’s motions thereby holding, as a matter of law, that plaintiff was not within the course and scope of his employment at the time of his accidental injuries and that he should be denied recovery.

In his first point of error appellant contends that the trial court erred in sustaining appellee’s motion for instructed verdict since such motion did not comply with the procedural requirements of Rule 268, Texas Rules of Civil Procedure by failing to contain specific grounds therefor. At the conclusion of appellant’s testimony during the trial appellee filed its written motion for instructed verdict, such motion being couched in general terms relating to the issue of benefits accruing to the employer by virtue of the picnic. At the conclusion of all of the testimony the same motion was filed but not ruled upon. After the jury had announced that it was unable to render a complete verdict, and was especially unable to answer the question on the course and scope of employment, the trial judge dismissed the jury but did not enter an order of mistrial. Subsequently appellee filed another motion for instructed verdict which contained specific grounds directed to the question of scope of employment. Appellee also filed its motion for judgment predicated upon the proposition that appellant was not in the course and scppe of his employment, as a matter of law. The court sustained appel-lee’s motions.

It is well established in Texas that where a jury is unable to agree upon a verdict and has been discharged, but no order of mistrial has been entered, that the trial judge may reconsider a motion for instructed verdict and act upon the same. Slay v. Mary Couts Burnett Trust, 143 Tex. 621, 187 S.W.2d 377; Clark v. Jones, Tex.Civ.App., 164 S.W.2d 62; First Nat’l Bank in Graham v. Corbin, Tex.Civ.App., 153 S.W.2d 979; Fitts v. Carpenter, Tex.Civ.App., 124 S.W.2d 420; Peveto v. Herring, Tex.Civ.App., 198 S.W.2d 921; Whisenant v. Fidelity & Casualty Co. of New York, Tex.Civ.App., 354 S.W.2d 683. One court has held that the trial judge may act upon a motion for instructed verdict which was not made until after the jury had been discharged for failure to agree upon the verdict. Rockett v. Texas State Board of Medical Examiners, Tex.Civ.App., 287 S.W.2d 190.

The fact that the first two motions for instructed verdict filed by appellee did not strictly comply with Rule 268, T.R.C.P. by not being specific enough in its grounds, does not defeat the trial court’s action. In the first place, appellant made no objection to the generality in specifying grounds contained in the motions and therefore may be said to have waived any objection thereto. Routte v. Guarino, Tex.Civ.App., 216 S.W.2d 607; Baylor v. Eastern Seed Co., Tex.Civ.App., 191 S.W.2d 689. Even so, it has been repeatedly said that the requirement of Rule 268, T.R.C.P. dealing with “the specific grounds therefor” is for the benefit of the trial court and the party opposing the motion has been held not to be in a position to complain on appeal because of failure to properly inform the court as to the reasons why the motion should be granted. The basis for this rule is that the trial court has general authority to withdraw a case from a jury and grant judgment on its own motion where the evidence does not warrant submission of any appropriate issues to the jury. Marlin Associates v. Trinity Universal Ins. Co., Tex.Civ.App., 226 S.W.2d 190; Baylor v. Eastern Seed Co., supra; Rockett v. Texas State Board of Medical Examiners, supra. Appellant’s first point of error is overruled.

Appellant’s Points 2, 3 and 4 assail the court’s action in sustaining appellee’s motion for an instructed verdict and holding, as a matter of law, that under the facts presented by the record appellant was not acting within the course and scope of his employment for his employer at the time he sustained his accidental personal injuries. Appellant argues that there was sufficient probative evidence in the record to justify the submission of the issue to the jury and that, the jury having failed to agree upon such issue, an order of mistrial should have been granted.

In reviewing the propriety of the trial court’s action in granting the motion for instructed verdict our duty is to examine all of the testimony in the case that is relevant to the issue of course and scope of employment and consider the evidence in the light most favorable to the appellant, disregarding all conflicts and indulging in every intendment reasonably deducible from the evidence in favor of the appellant. 4 Tex.Jur.2d, § 835. Only if the evidence presented is of such a conclusive character that reasonable minds could not differ as to its effect and only one conclusion may reasonably be drawn from it, the question becomes one of law, thereby justifying the granting of the instructed verdict. 56 Tex.Jur.2d, § 212, p. 553; 3 McDonald, Texas Civil Practice, § 11.28.

To comply with these rules we have carefully read and studied the entire statement of facts. We deem it desirable and appropriate to set forth essential portions of the testimony relating to the issue of course and scope of employment.

In September 1962 Clevenger was employed by McAllister Mercury-Comet, Inc. as an automobile salesman. His duties were to sell both new and used automobiles for which he received a $400 a month guarantee and twenty-five per cent of the net profit. His supervisors were Mr. McAllis-ter, Mr. Gregory, the used car manager, and Mr. Chapman, the assistant used car manager. About a week before the company picnic was to be held he received notice of the picnic in a bulletin put out by the company. This bulletin, Plaintiff’s Exhibit 1, announced that a company picnic for all employees and their immediate families would be held on Sunday afternoon, September 23rd, at Sandy Lake Lodge, Car-rollton, Texas, and that a softball game would be played between the parts and service departments and the sales department. It said: “Let’s all go to the picnic and have a lot of fun!” When asked whether the bulletin, Exhibit 1, was the only notice of the picnic that he had, Clevenger testified:

“Q. What other notice did you have?
“A. From my sales managers, and they asked us to go.
“Q. Who were they?
“A. Mr. Gregory and Mr. Chapman.
“Q. All right, sir. Did they talk to you, personally, about it?
“A. Yes, sir.
“Q. Now, when was this?
“A. Well, I would say they talked to me some about it every day that week.
“Q. The week before the picnic ?
“A. Yes, sir.
“Q. What conversation did they have with you, relative to this picnic ?
“A. Well, they were encouraging us to all go; they wanted 100 per cent of the company there: and they told us that they really expected us to be there.
“Q. They expected you to be there ?
“A. Yes, sir.”

Clevenger testified that selling automobiles is a highly competitive business. He described the sales and sales training policies of his employer as being “aggressive”. He said that they were much more aggressive than most dealers. As an example he cited the instance of the “bird dog plan” which meant that anyone from janitor on up who tipped off a salesman concerning the sale of a new car would be given ten or fifteen dollars. His company also had promotional deals going all the time such as bonuses and prizes for salesmen and that the “salesman of the month” would receive a hundred dollar suit of clothes or alligator shoes. Each morning the company had sales meetings and some were held at the Holiday Inn, Eastern Hills or other motels. The theme of all of these meetings was to produce more business and to sell more cars. He said that the salesmen were required to attend these off-premises sales meetings. When asked why the company held the picnic on Sunday he replied: “That was the only day they could have 100 per cent there.” Further, he testified that Mr. Gregory and Mr. Chapman discussed the picnic with him and let him know that they wanted to see him there. He drove to the picnic in a company car using company gasoline and arrived between 11:30 and 12:00 o’clock. The picnic grounds at Sandy Lake had been reserved by the company and was supposed to be for no one except employees of the company together with their families or close friends. When he got inside the picnic grounds he found that the company had a new model Monterey Mercury automobile on display just inside the gate to the picnic grounds and under a little shed. This was the beginning of the new model cars for the year and they had not been shown to the public. When asked to tell about the new model automobile he testified:

“Q. Now, tell us how they had that set up and displayed ?
“A. They had the car parked there, and I believe all four doors were open, and the trank; and I am not sure about the hood being open.
“Q. All right.
“A. And, of course, it had the new car stickers in the windows, and different little plaques sticking on the car, explaining the new features of it.
“Q. What do you mean, ‘little plaques’? What does—
“A. They were the type that you just — They are kind of magnetized, and will stick to the car.
“Q. All right.
“A. That was the thing that really caught my eyes, because that is the first ones I had seen like that.
“Q. All right. Well, what did these little plaques say, generally, the ones that you saw ?
“A. Oh, they were—
“Q. Or, what were they telling about ?
“A. Oh, they were explaining the new features of the car, the material that the car was made out of, this new back window. They were explaining that. And, I believe, there was one on the grille, telling what kind of mate-ial that the car was made from.
“Q. Well, about how many of those plaques ? I know you can’t say exactly, but, were there just a few of them on there ?
“A. I would say that there were a dozen on it.
“Q. Okay. At the various points?
“A. Yes, sir.
“Q. Explaining the new features of that new car?
“A. Yes, sir.
“Q. All right. And, had that car ever been shown to the public ?
“A. No, sir.
“Q. It hadn’t — Had you seen one like that one, before?
“A. Yes, sir, I saw one, at the dealers showing, in the Auditorium, here.
“Q. What about the other salesmen out there, so far as you know? Had they see it?
“A. Part of them had, and part of them had not.
“Q. Several of them had never seen one like that, at all, is that right?
“A. No, sir. I am sure that the service department had not seen too much of the car.
“Q. I beg your pardon?
“A. I am reasonably sure that the service department, and office staff, had not seen too much of the car.”

He said he stopped and looked at the new automobile and especially the signs and plaques that they had on it. He especially checked out the rear window which apparently was different from other models. After looking at the new automobile he went to the ball park where people were playing softball. Mr. Chapman took him by the arm and wanted him to get into the ball game. He was not particularly interested in playing, having worked all week, but he figured if the boss wanted him to do it, “It is just kind of best to do it.” He played second base and when a ball was hit towards him he ran to catch it and stepped in a low place on the playing field and injured his knee. He became ill due to the pain and his leg started swelling up. He drove home and called a doctor.

On cross-examination Clevenger stated that they “talked about the car, and probably have a good year; and where they were going to go.”

A portion of Clevenger’s deposition was read, including the following:

“Q. (Mr. McKnight) ‘Question: And he was telling you and the other men that he thought it was a real selling feature?
‘Answer: Yes, sir.
‘Question: And he wanted you to push it?
‘Answer: Yes, sir.
‘Question: How about the new car sales managers? Did you have any discussions with them, along the same line?
‘Answer: Yes, sir.’
“THE COURT: Are you talking about out at the picnic?
“MR. McKNIGHT: Yes, sir. That is where it is.
“THE COURT: All right.
“Q. (By Mr. McKnight) ‘Question: And all those — these all took place right up there in front of the new car?
‘Answer: Yes, sir, saying that the big window was — the big window was the big issue on the car, and they were trying to sell it — sell it to the salesmen, of course, that it was a good thing.’ ”

Again on cross-examination, Clevenger testified:

“Q. All right. Now, Mr. Clevenger, you are not telling the Jury that anybody made you go out to the picnic that day, are you?
“A. No, sir.
“Q. I mean, you went out there voluntarily?
“A. Yes, sir.
“Q. All right. Well, why did you do it? Did you go just to have a good time?
“A. No, sir.
“Q. Why?
“A. Because they stressed the fact so much that they wanted 100 per cent there, and I just felt like it was necessary for me to go.
“Q. All right.
“A. The way they put it — brought it around for us to go.
“Q. Who did?
“A. The management.
“Q. And who, specifically ?
“A. Mr. Gregory, Mr. Chapman, Mr. Warren, and the new car sales manager, and also, Mr. McAlister.
“Q. All right. Were they fairly insistent about it?
“A. Yes, sir.”

The witness Gladys Davis testified in part:

“Q. What are the facts, if any, with which you are familiar with regard to whether or not the company was insistent upon the employees being at that picnic?
“A. They asked everyone to go, for public relations and purposes — for employee relations.
“Q. All right. And did they have a good turn out?
“A. Very good.
“Q. Do you remember if they had a high percentage of the salesmen there?
“A. As far as I know, they were all there.”

A fellow salesman, Louis D. Wallace, testified concerning compulsory attendance at the company picnic, as follows:

“Q. And did anyone, in a managerial capacity over at McAlister, have any conversations with you about the picnic in the week or so before it was put on?
“A. Well, it was discussed, yes. I would say they did.
“Q. All right. State the facts as to whether or not the management was energetic in pushing this picnic ?
“A. Well, they were pretty energetic in trying to get people to come, you mean ?
“Q. Yes.
“A. Yes, sir.
“Q. Were they particularly interested in the salesmen, or could you tell ?
“A. I wouldn’t be able to say, exactly. I think they wanted everyone to attend.
“Q. All right. Were they fairly insistent, in your knowledge, as to the attendance at the picnic?
“A. Well, I will say this: I attended because I felt like it was in my best interests as an employee to attend. I felt like, the way it was promoted and all, it might be damaging, as they — my image as an employee, if I didn’t show up. I wasn’t particularly wanting to go that day, but I went, anyway, on that account.
“Q. I see. You felt like, in other words, it would hurt you, as an employee, if you didn’t go ?
“A. I thought there was a possibility of that, yes.”

The witness Cagle, the service manager, testified that he took the new model automobile to the picnic grounds so that the employees’ wives who hadn’t seen the new car would have an opportunity of looking at it to see what they would have the next year. He said that this automobile was the first model that had a peculiar back window and that the salesmen needed to be familiarized with this innovation; that they needed to be sold on the idea that it was a good selling point for the automobile. He testified that the picnic was a social function designed to improve relations and build a better organization which would inure to the benefit of McAllister Mercury-Comet, Inc.

The witness T. V. Gregory, used car manager, testified that the picnic was designed to promote a more efficient operation which, he admitted, makes ultimately more profit for the company.

The witness Buffington, testifying for the defendant, said he was a salesman working on a commission and that he attended the company picnic. His testimony in this regard was:

“Q. Did you go to the picnic?
“A. I did.
“Q. All right, sir. Did you go because you wanted to, or because you had to?
“A. Well, here is — The company spent the money, and of course, I’m not — I’m just speaking for myself, but my wife and I felt that we wasn’t — It wasn’t compulsory for us to go, but we felt like we were obligated to go.
“Q. All right. Did you conduct any business out there, sir?
“A. Pardon me ?
“Q. Was there any business conducted out there, that you know about ?
“A. Well, I steered a customer out there, is the only thing I can tell you.
“Q. Who was that?
“A. I forgot his name.
“Q. All right. Was he an employee, or not?
“A. No, he wasn’t an employee.”

On cross-examination he reiterated that he thought that he and his wife were obligated to go to the picnic because the company had been nice to them. He said:

“Q. You considered that picnic as good a place as anywhere else to conduct business, though, if you got a chance, didn’t you?
“A. That is right.”

When we apply the test, stated above, to the entire record in this case, and especially to the quoted portions thereof, we are of the opinion that there is clearly evidence of probative force to support the submission to the jury of the special issue on course and scope of employment. While we do not hold that under the peculiar facts in this case Clevenger was acting within the course and scope of his employment at the time he sustained his injuries, as a matter of law, we do hold that the evidence presented does not compel the opposite finding, as a matter of law. We hold that under the record here made there was sufficient evidence of probative force to justify the court in submitting, as he did in the first instance, the issue on course and scope of employment, accompanied by appropriate instructions defining such term. Kelty v. Travelers Ins. Co., Tex.Civ.App., 391 S.W. 2d 558, 565.

Art. 8309, Sec. 1(4), Vernon’s Ann.Civ. St. defines an injury received within the scope and course of the employee’s employment as being: “* * * all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” The legitimate question presented here is whether the picnic, when considered in its entirety, was an activity “having to do with and originating in” the employer’s business. We think that when the testimony is viewed as a whole that reasonable minds could very well differ on this question and therefore the issue became one for the jury’s consideration.

While scores of opinions have been written and published on varying kinds of factual situations involving workmen’s compensation claims growing out of injuries sustained by employees engaged in recreational or social activities outside the premises of the employer, we believe that Professor Larson in his work on “Workmen’s Compensation” has correctly stated the rule applicable, as follows:

§ 22.00. Recreational or social activities are within the course of employment when
“(1) They occur on the premises during a lunch or recreation period as a regular incident to the employment; or
“(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or
“(3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health or morale that is common to all kinds of recreation and social life.”

The above quoted testimony illustrates that a factual situation was presented as to whether the employer in this case expressly or impliedly required the attendance and participation of Clevenger at the picnic in question. As Professor Larson says at § 22.22:

“If the activity although not an integral part of the job is in effect required, it is clear enough that the employer has brought that activity within the employment. * * * The compulsion need not take the form of a direct order if the employee is made to understand that he is to take part in the affair.”

The situation involving implied compulsion to attend recreational activity, such as here, is typified in the case of Employers Mutual Liability Ins. Co. v. Sanderfer, Tex.Civ.App., 382 S.W.2d 144 in which the employee testified that while he was not forced or compelled to go on the hunting trip during which he was injured, he said that his boss “told me it would be a good idea for me to go * * *. He didn’t chase me up there. He told me it would be a good idea for me to go.” Compensation was awarded the employee because the hunting trip was found to be in the “furtherance of the affairs or business of the employer.”

We believe that our decision here is in accord with the clear mandate that the Workmen’s Compensation Act is to be liberally construed and that the issue of course and scope of employment is ordinarily an issue of fact for the determination of a jury. Shelton v. Standard Ins. Co., Tex.Sup.Ct., 389 S.W.2d 290; Janak v. Texas Employers Ins. Ass’n, Tex.Sup.Ct., 381 S.W.2d 176; and Jecker v. Western Alliance Ins. Co., Tex.Sup.Ct., 369 S.W.2d 776.

Appellee, and apparently the trial court, relied chiefly upon the case of Campbell et al. v. Liberty Mutual Ins. Co., Tex.Civ.App., 378 S.W.2d 354, being the only other Texas reported case dealing with the specific question of injuries sustained by an employee while attending a company picnic. While we agree completely with the opinion of the Court of Civil Appeals at Eastland in the Campbell case, we find that it is not authoritative of the issue here presented. That appeal was from a summary judgment. The motion for summary judgment by the insurance company was supported by affidavits which were clear and express in their terms relating to the facts and circumstances of the death of the employee in that case while attending a company picnic. The affidavits established that attendance by employees was not compulsory; that no customers were present; that no business was conducted or intended to be conducted; and that the employee was not asked to perform any service for his employer at said gathering. The verified motion and affidavits attached thereto were never controverted and the trial court sustained the motion. Under that factual situation no issue was presented and the court correctly sustained the motion. This is not the situation in the instant appeal where the case was fully tried and conflicting evidence was presented, as above related.

Appellant’s Points 2, 3 and 4 are sustained.

In his supplemental brief appellant has presented his fifth point of error in which he contends that the trial court erred in overruling his motion for summary judgment. As above related, appellant’s motion for summary judgment was not filed nor presented to the court until several months following the trial of the case and long after the jury had been discharged but no order of mistrial had been entered. The motion for summary judgment was supported by a lengthy affidavit of Clevenger as well as answers to requests for admissions of fact. No counter affidavits were filed in opposition to this motion. We agree with appellee that the action of the court in overruling the motion does not constitute error.

In the first place, we do not believe that appellant’s motion for summary judgment was timely filed. While it was made under the provisions of Rule 166-A, T.R.C.P., and such rule does provide that a motion for summary judgment may be made “at any time after the adverse party has appeared or answered,” said rule is a part of Rule 166, T.R.C.P., which governs pre-trial procedures and appears in a section of the rule designated as “Section 8— Pre-Trial Procedure.” Said Rule 166-A, T.R.C.P. is modeled substantially after Rule 56 of the Federal Rules of Civil Procedure. Since the Texas rule is modeled on the federal rule we believe that federal decisions construing the purposes for engrafting a summary judgment technique into American jurisprudence are relevant. We find numerous federal cases reflecting the idea that the practice was designed to enable the trial court to make prompt disposition of lawsuits which by their very nature were susceptible of conclusion in summary fashion, without the necessity of resorting to all the procedures involved in a plenary trial. New Hampshire Fire Ins. Co. v. Scanlon, 362 U.S. 404, 80 S.Ct. 843, 4 L.Ed.2d 826; Sartor v. Arkansas Natural Gas Corp., 5th Circuit, 134 F.2d 433; Whitaker v. Coleman, 5th Circuit, 115 F.2d 305; Securities & Exchange Commission v. Payne, Dist.Ct., Southern District, New York, 35 F.Supp. 873.

McDonald, in his treatise, “Texas Civil Practice,” Cumulative Supplement, Vol. 4, § 17.26.2, concludes that under the provisions of Rule 166-A of the Texas Rules of Civil Procedure, said motion should be filed and called to the attention of the court “in advance of trial.” Of course, the trial court may defer until a later time his disposition of the motion timely filed. This is often done, as illustrated by the decision of the Fifth Circuit in Woods v. Robb, 171 F.2d 539.

The very essence of the summary judgment rule is to avoid the necessity of a trial on the merits. To say that a motion may be timety filed after the case has been completely tried before a jury is to defeat the very purpose of the rule.

However, and assuming arguendo, that the motion was timely filed, we are of the opinion that the trial court was justified in overruling same because the record brought before the court, which included all of the testimony given, and especially the portion outlined above, demonstrated the existence of controverted facts which would defeat the granting of the motion. The absence of controverting affidavits is not mandatory if there are other matters of record sufficient to establish that said motion is not well taken. Ragsdale v. McLaughlin, Tex.Civ.App., 285 S.W.2d 467; Freeberg v. Securities Investment Co. of St. Louis, Tex.Civ.App., 331 S.W.2d 825; Simpson v. City of Abilene, Tex.Civ.App., 388 S.W.2d 760; Willoughby v. Jones, 151 Tex. 435, 251 S.W.2d 508; McKay v. Dunlap, Tex.Civ. App., 244 S.W.2d 278; Pridgen v. Denson, Tex.Civ.App., 298 S.W.2d 276; Boroughs v. Williamson, Tex.Civ.App., 330 S.W.2d 638.

In Burnham Chemical Co. v. Borax Consolidated, 9th Circuit, 170 F.2d 569 the trial judge waited until after the introduction of testimony before sustaining a motion for summary judgment. The court held that the trial judge was authorized and should have considered the testimony in the record, as well as affidavits of the parties attached to said motion, in arriving at his judgment.

The complete record before the court demonstrated issuable facts on the question of course and scope of employment and therefore the trial judge was justified in overruling appellant’s motion for summary judgment. Appellant’s fifth point is overruled.

The judgment of the trial court is reversed and remanded.

Reversed and remanded.

      . “Thereupon, the plaintiff filed his Motion for Separate Trial and Summary Judgment and thereupon the defendant moved the Court to enter judgment for the defendant to the effect that Plaintiff take nothing and that the defendant have its costs by reason of there being no issue raised in the ease with respect to course of employment and the Court having heard such motions as well as having reconsidered the motion for an instructed verdict which was made after both sides closed, the Court is of the opinion that defendant’s position is well taken and plaintiff’s position is not well taken and that defendant is entitled to judgment as a matter of law on the ground that plaintiff was not within the course and scope of his employment at the time of his accidental injury concerned herein and that a judgment should be entered herein denying plaintiff’s motion for separate trial and summary judgment and denying plaintiff any recovery in said cause and that all costs herein incurred be taxed against the plaintiff, and it is so ordered.
      “It is therefore ordered, decreed and adjudged that the plaintiff, Hiram C. Clevenger, take nothing of and from the defendant, Liberty Mutual Insurance Company.”


author: DAVIS, Justice.

text:
    EMPLOYERS MUTUAL CASUALTY COMPANY, Appellant, v. Gola Harrison TAYLOR, Appellee.
    No. 7677.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 2, 1965.
    Rehearing Denied Nov. 30, 1965.
    Royal H. Brin, Jr., John H. Hall, Stras-burger, Price, Kelton, Miller & Martin, Dallas, for appellant.
    W. C. Hancock, Pittsburg, Woodrow Edwards, Mt. Vernon, for appellee.
   DAVIS, Justice.

A workmen’s compensation case. Plaintiff-appellee, Gola Harrison Taylor, a widow, sought benefits for the death of her brother, William L. Harrison, against defendant-appellant, Employers Mutual Casualty Company, on the theory that Mrs. Taylor was a “dependent” upon her brother at the time of his death. The case was tried to a jury. The jury was unable to make a finding of fact as to whether or not Gola Harrison Taylor was a “dependent” of her brother, Mr. Harrison, at the time of his death. The trial court awarded a judgment in favor of appellee on the evidence, overruled appellant’s motion for new trial, and from this judgment the appellant has perfected its appeal. It brings forward 2 points of error.

By the points, appellant says the trial court erred in failing to render judgment for appellant when there was no competent legal evidence of probative effect in the record that appellee was “dependent” on the deceased; and, in granting recovery to appellee when the jury had failed to find that she was “dependent” on the deceased, such “dependency” being by no means establishing conclusively as a matter of fact under the law.

History

Appellee is an adult sister, 69 years old, of the deceased, William L. Harrison, age 65 at time of death, commonly known as “Jack”. Appellee’s husband died in 1958. Her husband was a retired Fire Marshal of Pittsburg, Camp County, Texas, where appellee has continuously lived since the year 1916. Appellee’s husband had a disability retirement, and she drew about $33.33 per month until 1961, when there was about six months that she did not drawn anything. They later started paying $25.00 a month. For a while she drew $26.00 a month from the Department of Public Welfare as an Old Age pension. Mr. Harrison who had been divorced, moved in the house with appellee in 1949, where he continued to live until the date of his death on April 18, 1963, while in the course of his employment in Franklin County, Texas.

Appellee lived in a large house with her brother. Her mother lived there until June 3, 1961, at which time she passed away. After that, an Aunt moved in the house with them and was living there at the time of the death of Mr. Harrison.

Appellee has two children, one, a boy, who is married and has four children, and is employed at Lone Star Steel Company. He does not contribute anything to the support of his mother. She also has a girl, who is married and living in Dallas. She does not contribute anything to the support of her mother, but occasionally she gives her mother gifts. Mr. Harrison did not have any children.

Appellee had previously rented some rooms and took in some sewing for the public. She did not make much money, and beginning in 1961 she only did a few alterations, and testified that she had rented a room for a few weeks and had not collected more than $50.00.

There was testimony that her aunt gave Mr. Harrison a little money now and then, but there was no definite amount. Ap-pellee’s aunt lived there just like the rest of the family. She was handicapped, confined to a wheel chair, and could not get about. The money that was given to Mr. Harrison by the aunt can play no part in this case because there is no evidence to show what the money was given for, nor is it shown that the money was spent for the support of appellee. The evidence shows that appellee owed some money for a roof on the house in which they were living. The payments were $31.19 per month. She paid that out of the pension that she was drawing. That took most-of the pension for a time, and then when appellee started drawing $25.00 per month, it would take a little more. That would leave $26.00 a month while she was drawing the money from the Department of Public Welfare for her to live upon.

The testimony shows that Mr. Harrison paid all the household bills, including the ■utilities of $25.00 to $26.00 per month, all grocery bills of about $25.00 per week, with a trip to the store almost daily to buy meats, etc. He paid the taxes and insurance on the home, and furnished a car as and when needed. Mr. Harrison owned two cars, one to use at his work, and one to stay at home. Appellee has never driven an automobile.

J. B. Duke, Store Manager for A & P Food Company, testified as follows:

“Q. Would you state your name, please, sir.
A. J. B. Duke.
Q. Mr. Duke, where do you live ?
A. Pittsburg, Texas.
Q. And what is your occupation?
A. Store Manager for A & P Food Company.
Q. What kind of store did you have?
A. Retail food store.
Q. All right, sir. Mr. Duke did you know Jack Harrison during his lifetime ?
A. Yes.
Q. Do you know Mrs. Gola here, his siter ?
A. Yes, sir.
Q. Do you know where they lived in Pittsburg ?
A. Yes, sir, I sure do.
Q. Where do they live in reference to your business, your grocery store?
A. Within a hundred yards of it.
Q. How long have you been the manager of this store?
A. About sixteen and a half years.
Q. Do you know whether or not Jack had lived with Miss Gola when he was single again?
A. Yes.
Q. Do you know about how long they had been living together that way?
A. Well, no, I don’t know exactly; I know within the last six or seven years or so.
Q. Now, during that time I will ask you if one or both of them or either of them came to your store to purchase groceries ?
A. Both.
Q. Did they come together?
A. Well once a week they would always come together. Then he would come in nearly every day during the week.
Q. On the trip they would make together once a week would they get a pretty good supply of groceries ?
A. They got a pretty good sized bill at that time; and then he would come back through the week and get fill-ins, meat and soforth.
Q. Mr. Duke, do you have any idea as to approximately how much his bill would run a week there ?
A. Oh, I would say around $25.00.
Q. Now, who paid for them? Did you ever check them out?
A. Oh, yes.
Q. Who paid for the groceries?
A. Jack.
Q. Who?
A. Jack.
Q. All right, sir. Did Miss Gola ever hand you the money herself ?
A. At times she did, but usually she would turn around and give him the change.
Q. Mr. Duke, have you talked with anyone about this matter before today ?
A. Yes.
Q. Well, who all have you talked to about it?
A. The insurance man.
Q. And did you talk to me about it?
A. Yes.
Q. Did you discuss it with me?
A. Yes.
Q. And you did discuss it with the insurance adjuster?
A. Yes.
Q. Did you give the insurance man a statement about it?
A. Yes.”

Appellee filed a motion for judgment on the theory that the evidence showed that appellee was a “dependent” upon Mr. Harrison at the time of his death as a matter of law. Judgment was rendered in her favor.

OpinionS

A dependent is described in 64 T.J.2d, 256 as follows:

“A dependent is one who is sustained by another, or relies for support on the aid of another, who looks to another for support, and relies on another for reasonable necessaries consistent with the dependent’s position in life.”

It will be noted that Mr. Harrison was not survived by a wife. He had no children, mother, father, or stepmother. Art. 8306, Sec. 8a., Vernon’s Ann.Civ.St., reads, in part, as follows:

“The compensation provided for in the foregoing section of this law shall be for the sole and exclusive benefit of the surviving * * * dependent * * * sisters of the deceased employee; * * * provided the right in such beneficiary or beneficiaries to recover compensation for death be determined by the facts that exist at the date of the death of the deceased and that said right be a complete, absolute and vested one. * * * ”

All of the evidence hereinabove enumerated was offered without anything being offered to the contrary by the appellant. The evidence shows that Mr. Harrison furnished to appellee most, if not all, of the actual necessities of life. She “depended” on him for everything. The law provides for compensation to the surviving sister, but she must show the “dependency” before compensation can be recovered. The statute does not define the term “dependent”, but the relation must be that such person claiming compensation must rely on the support of another. It was shown that appellee was relying upon this support at the very time her brother was killed. For many years prior thereto he had been paying the taxes, the premiums on the insurance on the house, had been buying and paying for all the groceries, and paying all the utility bills. It was shown that he occasionally gave the ap-pellee some money, but it is not necessary that the contributions be shown to have been contributed in money alone. We hold that the evidence shows, as a matter of law, that the appellee was a “dependent” on Mr. Harrison at the time of his death. 62 T.J.2d 606, Sec. 62; 62 T.J.2d 607, Sec. 63; Postal Mut. Indemnity Co. v. Penn (Tex.Civ.App., 1942) 165 S.W.2d 495, W.R., W.O.M.

In the case of Croom v. Cochran, (Tex.Civ.App.), 379 S.W.2d 957, Writ of Error granted but later dismissed because of settlement, it was held that:

“One who is sustained by another, or relies for support upon the aid of another is ‘dependent’ for workmen’s compensation purposes”.

In the Croom case, there was an adult child who was mentally incompetent and was a student at the Travis State School for the mentally retarded. The father, at the time the child was placed in the institution, signed a contract, obligating himself to pay $45.00 a month for the support, maintenance and treatment of said child. The decision was based on the case of Texas Employers Ins. Ass’n. v. Arnold, (Comm.App., opinion adopted by Sup.Ct. 1936), 127 Tex. 245, 92 S.W.2d 1019, in which the court said:

“We well recognize that the question of dependency is generally one of fact to be determined by the trier of facts, and not by this court; but where, as here, there is no dispute as to the facts, and they lead to a definite conclusion, it is our duty to announce that conclusion as a matter of law.” (Emphasis added)

The only question to be decided in this case is whether or not the question of “dependency” is one of fact to be decided by the jury; or, has it been proved as a matter of law. The question is relatively new as far as discussions are concerned by the Courts of Texas. But the question has been discussed by the courts of other states and the Federal courts. Many of the cases are: U. S. Fidelity & Guaranty Co. v. Britton, 88 U.S.App.D.C. 293, 188 F.2d 674; O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S. Ct. 470, 95 L.Ed. 483; Havre De Grace Fire Works Co. Inc. v. Howe (1955), 206 Md. 158, 110 A.2d 666; Wheeling Steel Corp. v. Morates (1963), 120 Ohio App. 315, 202 N.E.2d 317; In Re Est. of Hardaway (1960), 26 Ill.App.2d 493, 168 N.E.2d 796; Bruce v. Bruce (1955), 100 Ohio App. 121, 130 N.E.2d 433; Paul Spellman, Inc. v. Spellman, Dis.Ct. of App.Fla. (1958), 103 So.2d 661; Lighthill v. McCurry (1963), 175 Neb. 547, 122 N.W.2d 468; Robberson Steel Co. v. State Industrial Court, Sp.Ct. of Okl. (1960) 354 P.2d 211; International Harvester Co. v. Harris, Sup.Ct. of Oklahoma (1954) 272 P.2d 1046; Air Castle, Inc. v. Industrial Commission (1946), 394 Ill. 62, 67 N.E.2d 177; Mid-State Paving Co. v. Farthing (1958), 233 Miss. 333, 101 So.2d 850; Langland v. State of Minnesota (1957), 250 Minn. 544, 85 N.W.2d 736; and, Magnolia Construction Co. v. Dependents of Stovall, Sup.Ct. of Miss. (1964), 168 So.2d 297. These cases all hold that the question of dependency is a question of fact to be decided by the trier of the facts. They all hold that if there is any evidence to support such finding, the judgment must be affirmed.

The appellant offered in evidence the fact that Mr. Harrison did not claim the appellee as a “dependent” at the place of his employment. This testimony was not admissible, although the appellee did not object to same at the time it was offered. Traders & General Ins. Co. v. Stanaland, (1947), Tex.Civ.App., 202 S.W. 2d 702, W.R., N.R.E. There was no further testimony offered by the appellant, other than that hereinabove set out, to show that the appellee was not a “dependent” upon Mr. Harrison at the time of his death. The question of whether or not appellee, a sister of Mr. Harrison, was a “dependent” upon Mr. Harrison under the Workmen’s Compensation Law at the time of Mr. Harrison’s death is a question of fact. The evidence as enumerated in the History and in the Opinion is sufficient to hold that the appellee was a “dependent” upon her brother, Mr. Harrison, at the time of his death as a matter of law. Any other finding by the trier of facts would have to be reversed. Therefore, the fact question has been proved as a matter of law. Texas Employers Insurance Ass’n. v. Arnold, supra. The appellee depended upon her brother for all the reasonable necessaries consistent with the appellee’s position in life. 64 T.J.2d 256. These facts were shown to exist at the time of his death. 62 T.J.2d 607, Sec. 63. See, also, 62 T.J.2d 606, Sec. 62; 58 Am.J. 686, Sec. 163. The points are overruled.

The judgment of the trial court is affirmed.


author: LANGDON, Justice.

text:
    Coke L. GAGE, Appellant, v. Ida Ball OWEN et vir, Appellees.
    No. 16665.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 29, 1965.
    Rehearing Denied Dec. 3, 1965.

      Sewell & Forbis, and James E. Forbis, Decatur, for appellant.
    Anderson & Connell and Henry J. Anderson, Jr., Wichita Falls, for appellees.
   LANGDON, Justice.

This is a Trespass to Try Title Suit involving an undivided interest in minerals. A summary judgment was granted. The appellant and the appellees will be referred to as defendant and plaintiffs respectively.

Two questions are presented. They pertain to the Court’s action in granting the motion for summary judgment considered in the light of (1) the original action in trespass to try title to which defendant entered a plea of not guilty and (2) the defendant’s cross-action. Error in either respect requires reversal.

In connection with the first question the defendant having entered a plea of not guilty was entitled to prove any legal or equitable defense available except limitation. In moving for summary judgment it was incumbent upon the plaintiffs to show that the defendant had no defense other than limitation. They failed to do so. Their evidence was confined to a showing that title vested in them in 1917 by virtue of the-statute of descent and distribution and peaceable possession. Briggs v. Freeway Park Development Company, 366 S.W. 2d 270 (Fort Worth Civ.App., 1963, ref., n. r. e.); 56 Tex.Jur.2d, “Trespass to Try Title”, p. 248, § 119.

Concerning the second question the plaintiffs did not meet their burden of showing with reference to defendant’s cross-action that cross-plaintiff had no cause of action.

In the present suit the defendant filed its cross-action for (1) construction of a deed from plaintiffs to A. V. Grant, and (2) reformation of the deed from A. V. Grant. Thus, the plaintiffs with reference to the cross-action assumed the position of defendants and to support their motion for summary judgment had the negative burden of showing, as a matter of law, that the cross-plaintiff had no cause of action. They failed to do so. Neigut v. McFadden, 257 S.W.2d 864 (El Paso Civ.App., 1953, ref., n. r. e.); Achterberg v. Gillett, 322 S.W.2d 306 (El Paso Civ. App., 1959, ref., n. r. e., 159 Tex. 591, 325 S.W.2d 384); Seale v. Muse, 352 S.W.2d 534 (Dallas Civ.App.,. 1961, ref., n. r. e.); 45 Tex.Jur.2d, “Pleading”, p. 653, § 145.

The plaintiffs filed no formal answer to defendant’s cross-action. They merely excepted to the allegations contained in it. They offered no evidence showing that defendant had no cause of action with respect to either of the causes asserted.

Plaintiffs did not deny that they never owned or claimed the Southwest Quarter described in the deed. Such being the case, extraneous evidence is necessary to identify what land belonged to the estate of B. B. Ball, deceased, at the time of his death. Strong v. Garrett, Tex.Civ.App., 224 S.W.2d 471 (1949). By the terms of the 1940 deed the grantors conveyed “all that certain land in Montague County, Texas, tract of land, being our undivided interest in the estate of B. B. Ball, deceased, out of the William Marlett Survey and (description) — Second Tract: The Southwest Quarter of the W. R. Powell Survey, Abstract 590.” Thus whether or not Ball owned an interest in the Southeast Quarter of the Powell Survey becomes, therefore, a material fact and one which was put in issue by the plaintiffs’ refusal to admit or deny Ball’s ownership of this tract and the defendant’s counter-affidavit asserting Ball’s ownership of same.

The defendant in his cross-action alleged that plaintiffs never owned or claimed any interest in the Southwest Quarter of the Powell Survey (which is what the specific description in the 1940 deed purports to describe as the “Second Tract”), and plaintiffs have never denied this. The defendant also contended, and plaintiffs have not denied, that B. B. Ball never owned any interest in the Southwest Quarter of such survey but only in the Southeast Quarter of same.

In his cross-action for reformation the defendant pleaded that neither he nor his predecessors knew of the mistake until the present suit was filed. The plaintiffs contend that an action to reform the deed is barred by the four-year statute of limitations. This was assigned as the basis of one of plaintiffs’ exceptions to defendant’s cross-action. “ * * * one asserting limitation under R.S. art. 5529 in such instances as this has the burden of proving that the owner knew, or by the exercise of due care should have known, of the existence of the mistake for the full four-year period before the filing of the suit to correct it; (citing authority) * * *" Reese v. Granau, 27 S.W.2d 591 (Galveston Civ.App., 1930, error dism.). No effort was made to do so.

It is likewise well established that the statute of limitations will not run against the right of a purchaser of land who entered into possession, and whose title has never been disrupted, to have the description in the deed corrected to make it conform to the original intention of the parties. Payne v. Ross, 10 Tex.Civ.App. 419, 30 S.W. 670 (1895, no writ hist.). The affidavits of the plaintiffs on their motion for summary judgment show only that B. B. Ball and his heirs maintained peaceable possession of the tract up until approximately 1940 and does not attempt to contend or show that they presently have or maintain, or since 1940 have had or maintained, possession of the land in dispute or any portion thereof.

Thus, under the last two cases cited above, to meet their burden of showing defendant had no cause of action on his cross-action, it was incumbent upon the plaintiffs below to show first that defendant or his predecessors knew, or in the exercise of ordinary care should have known, of the mistake for the full four-year limitation period, and (2) that the defendant and his predecessors in title had not been and remained in peaceable possession of the land in dispute since the execution of the deed in 1940. The plaintiffs failed to do either of these things.

Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Sup.Ct., 1965); Tigner v. First Nat. Bank of Angleton, 264 S.W.2d 85 (Sup.Ct., 1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Company v. Kinsel, 369 S.W.2d 19 (Sup.Ct., 1963). If the motion involves the credibility of affiants or deponents, or the weight of the showings on a mere ground of inference, the motion should not be granted, and all conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (Sup.Ct., 1957).

Judgment is reversed and the cause remanded.