author: MORRISON, Judge.

text:
    James William MILLS, Appellant, v. The STATE of Texas, Appellee.
    No. 40497.
    Court of Criminal Appeals of Texas.
    June 28, 1967.

      George R. Milner (on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., John Emmett, Joe Hendley, and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is attempted burglary with two prior non-capital convictions alleged for enhancement; the punishment, life.

The sufficiency of the evidence to sustain the conviction of the appellant as a principal to the primary offense is. challenged. Deputy Sheriffs Brown and Bean testified that on the night in question they had a certain store in a semi-rural residential section of Dallas County under surveillance. At about 11:00 p. m., a rusty colored 1961 Pontiac station wagon passed the point from which they were conducting their lookout traveling at a speed of 15-20 miles per hour. The station wagon proceeded on past the store. Three men were in the vehicle, and it passed the store at three minute intervals four more times at the same rate of speed and on each occasion the same number of men were seated therein. On the sixth time around the station wagon came to a halt in front of the store, and one of its occupants approached the store, broke the glass in the front door, and returned to the Pontiac and it again drove away. The officers gave pursuit and within 80 yards from the store brought the Pontiac to a halt. Appellant was seated in the middle of the front seat. A search of the station wagon revealed three pairs of gloves and a pry bar under the front seat.

Appellant did not testify or offer any evidence in his own behalf.

In support of his contention reliance is had, among other authorities, upon Gillard v. State, 128 Tex.Cr.R. 514, 82 S.W.2d 678, and Allen v. State, Tex.Cr.App., 20 S.W.2d 1056. In Gillard, the two holdup men left Gillard in the automobile 100 yards away from the scene of the robbery and when they were apprehended, loot was found on the persons of the two and none in Gillard’s possession. Allen was engaged in a crap game near a still, but was not shown to have any connection with the ownership or management thereof.

We have concluded that the facts make appellant a principal under definition (1) set forth in Middleton v. State, 86 Tex. Cr.R. 307, 217 S.W. 1046.

In Everett v. State, Tex.Cr.App., 216 S.W.2d 281, we said:

“An agreement of parties to act together in a common design can seldom be proven by words, but reliance can often be had on the actions of the parties showing an understanding and common design to do a certain act.”

We further call attention to the holding in Harper v. State, Tex.Cr.App., 95 S.W. 125, and Singleton v. State, 158 Tex.Cr.R. 71, 253 S.W.2d 441, wherein we said:

“If the circumstances exclude every reasonable hypothesis except guilt, this is sufficient.”

We find the evidence sufficient to establish that it was appellant’s intent to return and enter the store in the event no one was alerted by their original breaking.

The judgment is affirmed.


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    W. E. GRACE MANUFACTURING COMPANY, Petitioner, v. Otis GREEN, Respondent.
    No. 16898.
    Court of Civil Appeals of Texas. Dallas.
    May 19, 1967.
    Rehearing Denied June 9,1967.

      Louis Wilson, Larry M. Lesh, of Locke, Purnell, Boren, Laney & Neely, Dallas, for petitioner.
    Thomas Black, of Maloney & Black, Austin, Claire E. Bailey, of Hight, Bailey & Hight, Dallas, for respondent.
   BATEMAN, Justice.

Our former opinion is withdrawn and the following substituted therefor.

The petitioner, W. E. Grace Manufacturing Company, appeals by writ of error from a default judgment against it for damages on account of bodily injuries alleged to have been sustained by the respondent, Otis Green, and caused by negligence of the petitioner. Although duly served, the petitioner did not appear or answer.

By its first point of error the petitioner says that the respondent’s petition was insufficient to support the default judgment. Respondent alleged that he was an employee of petitioner when injured and that petitioner, though eligible, did not carry workmen’s compensation insurance. His allegations with respect to petitioner’s alleged negligence were as follows:

“II.
“That as an employer, the defendant owed its employees the duty of furnishing them a safe place in which to perform the tasks and duties of their employment. That this defendant failed to so provide its employees with a safe place, and in particular, failed to provide your plaintiff, Otis Green, with a place reasonably safe in which to perform his chores and duties. In this connection, plaintiff would show that on or about the 12th day of October, 1964, while he was working as an employee of the defendant at its place of business located at 6000 South Lamar, Dallas, Texas, and while going about his tasks and duties in its place of business, he was lifting and thereby received the injuries and damages hereinafter set forth.
“HI.
“That at the time and on the occasion in question, your defendant, acting by and through its agents, servants and employees, who were in the course and scope of their employment and in the furtherance of the defendant’s affairs, was guilty of some one or more or all of the following acts of negligence, among others, which said negligence directly and proximately caused your plaintiff’s injuries and damages as follows:
“1. In failing to provide assistance and help to the plaintiff.
“2. In failing to properly supervise the lifting tasks performed by the plaintiff.
“3. In failing to warn the plaintiff of the hazards and dangers involved in the tasks in question.”

The petitioner contends that the foregoing pleading is insufficient to give it that “fair notice” of the claim which is required by Rules 45 and 47, Vernon’s Texas Rules of Civil Procedure, pointing out that it is not alleged in what respect the place of work furnished by petitioner was unsafe, nor what was being lifted by respondent, nor the weight of the object being lifted, nor in what respect the alleged failure to supply a safe place to work caused injury to him while “he was lifting.” Petitioner also points out the absence of a pleading of any duty on its part to provide assistance or on-the-spot supervision. It also argues that, since respondent alleged that prior to his injuries he was a “strong, healthy, able-bodied man who was capable of being employed,” there was no duty on the part of his employer to furnish him assistance or on-the-spot supervision in connection with the performance of the very duties he had contracted to perform.

These arguments do point up several obvious defects in the petition. However, Rule 47, T.R.C.P., only requires that the petition contain “a short statement of the cause of action sufficient to give fair notice of the claim involved,” and Rule 45 provides, in part, “That an allegation be evi-dentiary or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole.”

As the general nature of the cause of action may be said to be described therein, we hold that the respondent’s petition, though subject to numerous special exceptions, is sufficient to support the default judgment. We arrive at this conclusion by applying the “general demurrer test”; i. e., having indulged “all averments as well as all reasonable intendments and inferences which can be gleaned from the petition,” we find that the petition would be good as against a general demurrer; hence, it would be adequate to support the default judgment. Odom v. Pinkston, Tex.Civ. App., 193 S.W.2d 888, wr. ref. n. r. e.; White v. Jackson, Tex.Civ.App., 358 S.W. 2d 174, wr. ref. n. r. e.

Our Supreme Court has even held, not only that it is unnecessary for a plaintiff to allege the evidence upon which he relies to establish his asserted cause of action, but that “it is not requisite that a petition be technically sufficient to state a cause of action in order to sustain a default” if it does “not show affirmatively that the plaintiff had no cause of action”. Edwards Feed Mill v. Johnson, 158 Tex. 313, 311 S.W.2d 232, 234.

Petitioner’s first point of error is overruled.

By its second point of error, petitioner contends the trial court erroneously assessed the damages without the intervention of a jury, although a jury had been demanded and the jury fee paid.

The record shows the demand for a jury and the payment of the fee. The judgment recites that the plaintiff waived a trial by jury and that the case was tried by the court without the intervention of a jury. It also recites that the defendant, though duly served, did not appear, in person, by attorney or by answer. It makes no recitation of a motion having been made for the removal of the case from the jury docket, or of anything that would have indicated to the absent defendant that the case would be tried without a jury unless he objected thereto.

When one party demands a trial by jury and pays the required jury fee, the right thus secured to him inures to all other parties to the suit. White Motor Co. v. Loden, Tex.Civ.App., 373 S.W.2d 863, 865, no wr. hist.; Finnell v. Byrne, Tex.Civ.App., 7 S.W.2d 139, no wr. hist.

Rule 220, T.R.C.P., provides that when any party has paid the jury fee he shall not be permitted to withdraw the case from the jury docket over the objection of the parties adversely interested. Respondent argues that since petitioner did not object to the withdrawal of the case from the jury docket it has now no right to complain that the damages were assessed by the court and not by the jury.

It has been repeatedly held that the absence of a party or his attorney from the trial did not constitute a waiver, or impair that party’s right to have the issues in the case tried by jury. Barker v. Kidd, Tex.Civ.App., 357 S.W.2d 490, no wr. hist.; Finnell v. Byrne, supra; Panhandle & S. F. Ry. Co. v. Lawless, Tex.Civ.App., 94 S.W.2d 213, no wr. hist; Jerrell v. Jerrell, Tex.Civ.App., 409 S.W.2d 885.

We held, in White Motor Co. v. Loden, supra, that the failure of the defendant to object to the withdrawal of the case from the jury docket did not deprive the defendant of its right to a jury trial because the defendant had not been properly served and was therefore not before the court. We now extend that rule to this case, where the defendant was properly served with citation but, for some reason not disclosed by the record, has not appeared.

The precise question does not seem to have been decided by any Texas appellate court. It is noted that Rule 220 is stated negatively. It does not affirmatively accord to a party paying the jury fee the right to withdraw the case from the jury docket if the adverse party does not object, although we stated in White Motor Co. v. Loden, supra, that such right would be implied. We also pointed out in that opinion that the rule “does not expressly say that the absence of a party shall constitute a waiver by said party of his right of a trial by jury”, and we expressly declined to give it that meaning by judicial construction. If the right to withdraw the case from the jury docket is to be implied, we think it must also be implied that a non-objecting party would not be thus deprived of his constitutional right to a jury trial unless he were present, either in person or by attorney, and had the opportunity to make a free choice as to whether he would insist upon or waive the right. Only in this manner, it seems to us, can effect and meaning be given to the first sentence of Sec. 15, of Article 1, of the Texas Constitution, Vernon’s Ann.St., which is: “The right of trial by jury shall remain inviolate.”

In other words, the respondent’s demand for a jury and payment of the jury fee secured to both parties a “fixed and inviolate” right to a trial by jury. Barker v. Kidd, supra. That was a right which could be waived, but not a right of which either party could be deprived merely by his absence from the court, whether he had answered or otherwise entered his appearance or not.

Accordingly, petitioner’s second point of error is sustained.

Respondent’s petition having been held to be sufficient to state a cause of action, all material facts well pleaded therein, except the amount of damages must be held to have been admitted by petitioner’s default. 33 Tex.Jur.2d, Judgments, Sec. 129, p. 650; Rankin v. Clemons, 358 S.W.2d 704 (Tex.Civ.App., Austin, 1962, writ ref’d. n. r. e.); Sagebiel’s Inc. v. Sumrall, 358 S.W.2d 251 (Tex.Civ.App., Eastland, 1962, writ ref’d. n. r. e.). The judgment is therefore reversed and remanded in order that petitioner may be accorded a trial by jury as to the amount of damages, if any, sustained by respondent as a proximate result of the wrongful conduct of petitioner alleged in respondent’s petition.

Reversed and remanded.


text:
    J. C. ROBERTS, Petitioner, v. John W. MULLEN et al., Respondents.
    No. 16899.
    Court of Civil Appeals of Texas. Dallas.
    May 19, 1967.
    Rehearing Denied June 23, 1967.

      Wm. Andress, Jr., of Andress, Woodgate & Condos, Dallas, for petitioner.
    Lancaster Smith, Harvey L. Davis, Dallas, for respondents.
   BATEMAN, Justice.

Our former opinion is withdrawn and the following substituted therefor.

The petitioner, J. C. Roberts, appeals by writ of error from a judgment rendered against him as the result of a trial in which neither he nor his attorney participated, although his former attorney had filed an answer for him.

The respondents have moved for a dismissal of the appeal on the grounds, (1) that no error appears on the face of the record; (2) that petitioner failed to prove that his failure to be represented at the trial was not due to his own fault or negligence, and (3) that petitioner failed to prove that he had a meritorious defense to the cause of action asserted against him.

Under the statutes authorizing appeal by writ of error, the complaining party is accorded a review in the Court of Civil Appeals of the same scope as an appeal. Ward v. Scarborough, Tex.Com.App., 236 S.W. 441; Golden Rod Oil Co. No. One v. Golden West Oil Co. No. One, Tex.Com. App., 293 S.W. 167. “Either remedy brings before the appellate court the whole case for revision of all rulings of the trial court properly assigned as error.” 3 Tex.Jur.2d, Appeal and Error—Civil, § 11, p. 285.

The distinction between the remedies of appeal, writ of error and bill of review is well explained in McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710-711. After explaining the right of appeal of one who is before the court and learns of the judgment within thirty days after its rendition, the Court, speaking through Chief Justice Calvert, said: “If he does not learn of the judgment within 30 days after its rendition but does learn of it within six months, and the invalidity of the judgment is disclosed by the papers on file in the case, he may obtain relief by prosecuting writ of error to a Court of Civil Appeals.” “The papers on file in the case” before us disclose a judgment rendered upon a trial before the court without a jury, although they also disclose a demand for jury trial and payment of the jury fee. Petitioner is entitled to have this matter reviewed on appeal.

Respondents rely upon the recent opinion of the Supreme Court in Ivy v. Carrell, Tex.Sup.1966, 407 S.W.2d 212, as holding that no attack upon a default judgment can properly be entertained by any court unless and until the defaulting defendant first shows that his failure to appear and defend was not due to his own negligence and that he has a meritorious defense. That opinion does make it quite clear that such is the rule to be applied when the defendant seeks to set aside the default judgment in the trial court, either by motion for new trial or by bill of review, and whether the defendant has failed to answer or make any appearance, or whether, having filed an answer, he does not appear, either in person or by attorney, at the trial. But it does not hold, and no other case coming to our attention 'has held, that such a showing is a sine qua non to a review of the trial court proceedings in the appellate court, to which the case has been properly and timely brought for review. We hold that no such showing is required.

The motion to dismiss is overruled.

The respondents were two individuals and two corporations who sued petitioner for damages on account of alleged fraud and breach of contract. Petitioner was duly served and his attorney, Mr. Barton E. Bernstein, filed a general denial for him. The respondents demanded a jury and paid the jury fee. The case was thereafter regularly set for trial on the jury docket for the week of February 14, 1966. On March 17, 1966, Mr. Bernstein filed a motion for leave to withdraw as petitioner’s attorney and an order granting such leave was entered the same day, which was a Thursday. On the following Monday, March 21, 1966, the case was tried and the judgment signed. It recites that the defendant, “though duly and regularly advised of said hearing and the time and place thereof according to law, appeared not, but wholly made default, and the said Defendant has wholly neglected and/or refused to join issue with Plaintiffs under the direction of the Court within the time prescribed for them to do so, and in this regard have additionally made default; and the Court, after consideration of the evidence, the exhibits, and argument of counsel, is of the opinion that judgment should be rendered for Plaintiffs (naming the four respondents) in the sum of $10,446.25,” and that the plaintiffs have judgment in that amount.

The judgment contains no reference to the demand for a jury, and no jury was empaneled. So far as the record shows, the trial judge’s attention was not directed to the fact that a jury had been demanded and the jury fee paid.

By his first point of error on appeal petitioner asserts that the trial court erred in trying the case and rendering judgment without the aid of a jury. It is well settled that when one party demands a trial by jury and pays the required jury fee, the right thus secured to him inures to all other parties to the suit. White Motor Co. v. Loden, Tex.Civ.App., 373 S.W.2d 863, 865, no wr. hist.; Finnell v. Byrne, Tex. Civ.App., 7 S.W.2d 139, no wr. hist.

It is also well etablished that the absence of a party or his attorney from the trial does not constitute a waiver, or impair that party’s right to have the issues in the case tried by jury. Barker v. Kidd, Tex. Civ.App., 357 S.W.2d 490, no wr. hist.; Panhandle & S. F. Ry. Co. v. Lawless, Tex.Civ.App., 94 S.W.2d 213, no wr. hist.; Finnell v. Byrne, supra; Jerrell v. Jerrell, Tex.Civ.App., 409 S.W.2d 885.

The respondents argue that the petitioner should not be heard to complain of being deprived of a jury trial because he fails to show (1) that his lack of representation at the trial was not due to his own fault or negligence, and (2) that he had a meritorious defense. His right to a jury trial, at least as to the amount of damages due on the unliquidated demand, and the denial by the court of that right, appear on the face of the record. His general denial raises a “meritorious defense” as to that issue; and he was entitled to have a jury ascertain the amount of damages to which the respondents were entitled, whether his absence from the court was negligent or not.

Respondents also contend that under the provisions of Rule 220, T.R.C.P., they had a right to withdraw the case from the jury docket in the absence of objection by petitioner. As we said recently in W. E. Grace Manufacturing Co. v. Green, Tex.Civ.App., 417 S.W.2d 71, if it is to be implied that under Rule 220, T.R.C.P., the failure of one party to object gives to the adverse party the right to withdraw the case from the jury docket, or waive the jury unilaterally, it must also he implied that the non-objecting party is not thus deprived of his constitutional right to a jury trial unless present, in person or by attorney, with the opportunity to make a free choice as to whether he desires to insist upon or waive the right.

Petitioner’s first point of error is sustained.

In his second point of error petitioner says the judgment is erroneous because it is at variance with the pleadings. The petition sets forth separate claims of the four respondents for damages alleged to have been caused them by petitioner’s actions. No joint ownership of any of the causes of action asserted is alleged, except that as to several of them the individual respondents, Mullen and Powell, assert their common ownership. Yet, the judgment is for a single amount and in favor of all four respondents collectively. No satisfactory explanation of this variance appears in the record. “A judgment not supported by pleadings is erroneous.” Garrison v. Smith, Tex.Civ.App., 306 S.W.2d 244, 246, no wr. hist., citing Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130. Rule 301, T.R.C.P. The second point is therefore sustained.

Petitioner’s third point of error is that respondent’s pleadings fail to state a cause of action and, therefore, do not supr port the judgment. It would unnecessarily lengthen this opinion to set forth even a summary of the allegations of the opinion. By indulging “all averments as well as all reasonable intendments and inferences which can be gleaned from the petition,” we find that, although subject to numerous special exceptions, it would stand as against a general demurrer, and for that reason we hold it sufficient to support the judgment. Edwards Feed Mill, Inc. v. Johnson, 158 Tex. 313, 311 S.W.2d 232; White v. Jackson, Tex.Civ.App., 358 S.W.2d 174, wr. ref. n. r. e.; Odom v. Pinkston, Tex. Civ. App., 193 S.W.2d 888, wr. ref. n. r. e. Petitioner’s third point is overruled.

His fourth point of error is that after permitting petitioner’s attorney to withdraw, the court erred in proceeding to trial without notice to him of the withdrawal of his attorney, or of a further setting, with reasonable opportunity to secure other counsel. The judgment recites that petitioner was “duly and regularly advised of said hearing and the time and place thereof according to law.” In the absence of a showing to the contrary, we must accept that recitation as being correct. Accordingly, the fourth point is overruled.

On the same principle we overrule the fifth point of error, which asserts error because no evidence was introduced upon which the judgment could be based. The judgment recites that evidence was heard, and we must accept that recital as true in the absence of proof to the contrary. The transcript contains a certificate by the official court reporter that no testimony was reported by her, but we cannot accept this as proof of falsity of the recital in the judgment. Testimony may have been heard and not reported, or possibly reported by a substitute reporter. Moreover, this being a judgment nihil dicit, which has been held to be a species of judgment by confession, carrying with it more strongly the admission of the justice of the plaintiff’s cause of action than a judgment by default, it is our holding that, except for the amount of damages, if any, to which each of the respondents is entitled, the material facts well pleaded as to their causes of action must be taken as confessed. 33 Tex.Jur.2d, Judgments, § 131, p. 653; Gilder v. McIntyre, 29 Tex. 89 (1867); Graves v. Cameron, 77 Tex. 273, 14 S.W. 59 (1890); Howe v. Central State Bank, Tex.Civ.App., 297 S.W. 692, wr. ref.; O’Quinn v. Tate, Tex.Civ.App., 187 S.W.2d 241, wr. ref.

For the errors complained of in petitioner’s first two points, both of which appear on the face of the record, the judgment is reversed and the cause remanded for trial by jury of the issue as to the amount of damages, if any, to which each of the respondents is entitled as a proximate result of the wrongful conduct of petitioner alleged in respondents’ petition.

Reversed and remanded.

      . Vernon’s Ann.Civ.St., Articles 2249 and 2249a.

      . Article 1, See. 15, Texas Constitution; Seventh Amendment to U.S. Constitution.


author: BARROW, Chief Justice.

text:
    W. O. SKIDMORE et al., Appellants, v. Keith E. COOK, Appellee.
    No. 14591.
    Court of Civil Appeals of Texas. San Antonio.
    April 26, 1967.
    Rehearing Denied June 28, 1967.
    J. G. Gonzalez, Alice, for appellants.
    Perkins, Floyd, Davis & Oden, Kenneth Oden, Alice, Scott T. Cook, Fischer, Wood, Burney & Nesbitt, Corpus Christi, for appellee.
   BARROW, Chief Justice.

A venue action. The question presented is whether the nonresident appellants, W. O. Skidmore and H. H. Harborth, d/b/a Skidmore and Harborth, had submitted to the venue of the District Court of Jim Wells County on the cross-action filed in said court by appellee, Keith E. Cook. The trial court determined that appellants had waived their right to be sued in their domicile by filing their original petition against appellee in Jim Wells County, and overruled appellants’ plea of privilege.

The parties agree that the rule to be applied in determining venue of a cross-action is stated by the Supreme Court in Zachry v. Robertson, 147 Tex. 307, 214 S.W.2d 949 (1949), as follows: “When the plaintiff instituted this suit in Tarrant ■County he submitted himself to the jurisdiction of the District Court of Tarrant County as to all matters arising out of or incidental to the subject matter of the suit, and thereby waived his right to be sued in the county of his domicile in a cross-action arising out of such cause of action.” (Emphasis added.) See also, Meeker v. W. M. & W. Well Servicing Co., Tex.Civ.App., 318 S.W.2d 678, no writ; Connell v. Spires, Tex.Civ.App., 264 S.W. 2d 458, no writ; McDonald, Texas Civil Practice, § 4.40; Clark, Venue in Civil Actions, 195; 52 Tex.Jur.2d, Setoff, Counterclaim, Etc., § 50 (1964).

Appellants assert two propositions under their seven assignments of error. First, the trial court erred in overruling their special exceptions to the cross-action and controverting affidavit filed by appel-lee, in that there are not sufficient facts alleged to establish a cause of action against appellants arising out of the transaction sued on by appellants in their original petition. Second, the uncontradicted evidence establishes that the claims asserted by appellee in his cross-action did not arise out of the transaction sued on by appellants.

Appellants, who are residents of Duval County, filed this suit in the District Court of Jim Wells County against appellee, a resident of Jim Wells County, seeking to recover the sum of $9,600.00, together with attorney’s fees of $750.00, allegedly due upon four contracts entered into between December 1, 1964, and April 1, 1965, to do brush control and soil conservation work upon 640 acres of land belonging to appellee in Duval County.

Appellee filed a cross-action whereby he asserted two counts against appellants. He alleged that he was in the insurance and real estate business and that appellants purchased insurance policies from him from time to time and had allowed the premiums due thereon to accumulate. Ap-pellee alleged that appellants agreed to perform the work sued upon by them in order to reduce their indebtedness to him on their insurance account. He sought to recover payment of $3,148.49, allegedly due on their account. Appellee further alleged that as an inducement for him to continue to carry their insurance, appellants employed him to perform certain services for and in their behalf, and agreed to pay him $175.00 per month. He alleged he had earned, and therefore sought to recover, the sum of $7,260.50 under this agreement. Appellee also sought the sum of $1,500.00 as attorney’s fees for prosecuting these two claims.

Appellants filed numerous special exceptions to the controverting plea and cross-action complaining of appellee’s failure to allege when the premium obligations were incurred, the type of services to be performed by appellee, and for whom the services were performed. They also specially denied that any insurance premiums were owed by the partnership at the time the work sued on by them was contracted, and denied that the special services were to be performed for the partnership or appellants individually. It was affirmatively alleged that, as shown by a demand letter attached to this answer, the services were performed by appellee for Sharco Investors, Inc., a corporation in which appellants and appellee were stockholders.

At the hearing of the plea of privilege the trial court overruled the special exceptions without prejudice to appellants right to require specific allegations by ap-pellee prior to the trial on the merits. Appellee offered in evidence the original petition filed by appellants, his amended answer and cross-action, the appellants’ plea of privilege, and the controverting affidavit filed by appellee. Appellee then rested without presenting any testimony. Appellant Skidmore testified that the partnership of Skidmore and Harborth was not indebted to appellee for any insurance premiums at the time the contracts sued on by them were entered into and that he personally owed only one premium which had just accrued. He further denied that appellee had been employed by the partnership. At this point, the court stated that for purpose of the plea of privilege hearing, it would assume that Skidmore denied all allegations of fact contained in the cross-action and controverting affidavit.

This record does not support an implied finding by the trial court that either of the claims asserted by "appellee in his cross-action arises out of or is incidental to the subject matter of appellants’ original petition. Appellee’s claim for monthly services of an undescribed nature has no alleged relationship to appellants’ contracts to perform brush control and soil conservation work for appel-lee. A more difficult question is presented as to the claim for insurance premiums, in that appellee alleged appellants agreed to perform this work in order to reduce said account.

Appellee urges that this allegation was all that was required to sustain venue in Jim Wells County and that appellants’ denial of such an agreement by their exceptions, affirmative pleadings, and by Skidmore’s uncontradicted testimony, was immaterial. In support thereof appellee cites: Powell v. Short, Tex.Civ.App., 308 S.W.2d 532, no writ, and Connell v. Spires, Tex.Civ.App., 264 S.W.2d 458, no writ.

In Powell v. Short, supra, the Court held that the nature of the claims of the parties could be determined by looking to the pleadings, and where the claims of both parties arose out of and concerned the same transaction and were incident to and connected with the same transaction, had only between these parties, plaintiff waived his right to be sued on the cross-action in the county of his domicile. In Connell v. Spires, supra, the Court impliedly overruled a point complaining of the sufficiency of the evidence to show that the cross-plaintiff had a cause of action, by stating that it is evident that the alleged cross-action arose out of the transaction that is the subject matter of the original petition.

It is seen that in each of these cases, the uncontradicted pleadings show a cross-action growing out of, or incidental to, the subject matter of the original petition. There was no necessity for evidence where there was no dispute in the pleadings. Here there is a dispute raised in the pleadings as to the relationship of appellee’s claim for insurance’premiums and appellants’ claim for work on appellee’s land. Furthermore, in Zachry v. Robertson, supra, the Supreme Court obviously considered evidence introduced at the plea of privilege hearing, as it said: “A review of the pertinent facts in this case shows that there is sufficient connection between the subject matter of the cross-action and the subject matter of the main suit to make the cross-action arise from or be incidental to the main suit, * * *.”

The uncontradicted evidence establishes that the claims asserted by appellee in his cross-action did not arise from and are not incidental to the subject matter asserted by appellants in their suit. Appellee therefore failed to meet the burden imposed upon him when appellants filed their plea of privilege to remove said cross-action to the county of their domicile. The trial court erred in overruling said plea of privilege.

The judgment of the trial court is reversed and the cause is here remanded with instructions to sever said cross-action and transfer same to the District Court of Duval County.

On Appellee’s Motion for Rehearing.

Appellee urges that since the trial court held that evidence was unnecessary, based upon an erroneous interpretation of the holdings of Powell v. Short, Tex.Civ. App., 308 S.W.2d 532, no writ, and Con-nell v. Spires, Tex.Civ.App., 264 S.W.2d 458, no writ, the cause should be remanded in the interest of justice in order that the evidence may be fully developed by him.

It is obvious from this record that this cause was not fully developed by appel-lee because of this misinterpretation by appellee and the trial court. Therefore, in the interest of justice, it should be remanded to the trial court. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948); Keeling v. Zoller, Tex.Civ.App., 388 S.W. 2d 274, no writ; Texas International Products v. Mustex, Inc., Tex.Civ.App., 368 S.W.2d 27, no writ; City of Houston v. Bullard, Tex.Civ.App., 354 S.W.2d 224, no writ.

Accordingly, our judgment of April 26, 1967, is set aside, and the judgment of the trial court is now reversed and the cause remanded for a new trial.


author: DIXON, Chief Justice.

text:
    Etta Jane LEAVERTON, Appellant, v. Patrick A. LEAVERTON, Appellee.
    No. 16911.
    Court of Civil Appeals of Texas. Dallas.
    May 19, 1967.
    Rehearing Denied June 23, 1967.

      William Carl Block of Baker, Jordan & Foreman, Dallas, for appellant.
    Harless R. Benthul of Estep, Waters, Benthul & McCrea, Dallas, for appellee.
   DIXON, Chief Justice.

Appellee Patrick A. Leaverton and appellant Etta Jane Leaverton were married in the State of Alabama in 1955. Appellee was granted a divorce from appellant in Dallas County, Texas on October 14, 1963 on grounds of mental cruelty. In his petition appellee acknowledged that the mother was a fit and proper person to have the care and custody of their daughter, then six years of age. The child’s custody was awarded to the mother, and appellee was ordered to pay $75 per month as child support.

At the time the divorce was granted appellant and the little girl were in Decatur, Alabama, where they had been taken by appellee in January of 1963 for a visit with appellant’s mother. They have continued to reside in Alabama since that time.

The divorce decree recites that “care, custody and control of said minor child, Courtney Leaverton, is awarded to Etta Jane Leaverton with reasonable visitation privileges to the Plaintiff Patrick A. Leaver-ton * * *." (Emphasis ours.)

On April 19, 1966 appellee filed a pleading in the same court and under the same cause number as that of the divorce suit, which pleading he denominates “Plaintiff’s Motion to Clarify Visitation Decree”. In this motion he alleges that appellant has refused to allow him to visit his daughter in Alabama or to allow his daughter to visit him in Texas. He further pleads as follows:

“Plaintiff prays the Court amend and modify the hereinabove mentioned decree so as to specify what is reasonable visitation of Plaintiff with said child; that Plaintiff would show the Court that reasonable visitation is to allow the said minor child, Courtney Leaverton, to visit Plaintiff in Dallas, Texas, during the months of June and July of each and every year, beginning with the month of June and July, 1966.” (Emphasis ours.)

On July 6, 1966 the trial court entered an order which recites that reasonable visitation shall be as follows: (a) during the summer of 1966 appellee Patrick A. Leaver-ton shall be entitled to visit his daughter in Alabama for a period of two weeks; (b) during the summer of 1967 appellee shall be entitled to visit his daughter for a period of four weeks, the first two weeks to be in Alabama and the latter two weeks in the State of Texas; (c) during the summer of 1968 and the years following until his daughter shall have reached the age of eighteen years, appellee shall be entitled to visit the child for a period of four weeks in the State of Texas.

Appellant has challenged the jurisdiction of the Domestic Relations Court No. 2 of Dallas County because she and her daughter were residents of the State of Alabama when notice was served on her, therefore she claims it was error to overrule her special appearance plea filed pursuant to Rule 120a, Vernon’s Texas Rules of Civil Procedure. There is no merit to this contention. Prior to the filing of appellant’s special appearance plea the court had set this matter for hearing and appellant had filed a motion for continuance, her grounds being that she needed additional time to obtain evidence. The motion was sustained. By filing the motion for continuance appellant in effect entered a general appearance. The court properly overruled her subsequent plea to the jurisdiction.

Appellee has filed a motion to dismiss this appeal, his grounds being that his application and the court’s order concern only his visitation privileges, not custody, therefore the order is merely interlocutory in nature and not appealable; or at least if it is appealable appellant has not complied with Rule 385, T.R.C.P.; therefore the appeal should be dismissed.

We overrule appellee’s motion to dismiss. We are of the opinion that the action filed by appellee in the trial court is more than a mere motion to clarify visitation rights: it seeks and the court’s order effects a change and modification of the custody provision of the original divorce judgment.

That such is the true nature of this proceeding is shown by the pleadings of appellee, part of which we have quoted; and it is shown even more by the evidence adduced at the trial. Practically all of the testimony was directed to the question whether appellee should take his daughter to Texas to be with him for two months during the summer each year.

Appellant testified that she had no objection to appellee’s visiting his daughter in Alabama. In fact she thought for the sake of the child he ought to do so. And she testified to her willingness to remain out of the presence of appellee and his daughter while they were visiting in the child’s home; and further that she was willing for him to take the child to the picture show or other places during his visits without the mother being present. Mr. Fred English, a resident of Decatur, Alabama and appellant’s uncle by marriage, testified that he would be glad for appellee to stay in his home during such visits, as appellee had frequently done before the divorce.

But appellant insisted that it would be a mistake to require the child to stay with her father in Texas for two months of each year. Without going into details about the testimony there was evidence to support the mother’s viewpoint at least for the present. Appellant says she is not opposed to the child’s eventually visiting her father in Texas after they have established a rapport between them which does not exist at this time.

It will be noticed that the court’s original decree in 1963 gave appellant full custody of the little girl. There was no divided custody between the parents. The order of 1966 though it does not grant the father the two months’ custody each year which he sought, goes far beyond a mere clarification of visitation rights. It provides that during the summer of 1967 the child shall spend two weeks with her father in Texas; and during the summer of 1968 and each year thereafter shall spend four weeks with her father in Texas. Thus the ultimate effect of the order is to change the full custody awarded to the mother in 1963 so that beginning in 1968 the father shall have custody for four weeks every summer.

Whether this would be a wise arrangement is not the issue before us. The issue is whether such an arrangement constitutes a modification of the original custody order or is a mere clarification of visitation privileges. We hold that it is plainly a modification of the custody order. Sikes v. Keenan, 394 S.W.2d 859 (Tex.Civ.App., Eastland 1965, no writ); Leonard v. Leonard, 358 S.W.2d 721 (Tex.Civ.App., Amarillo 1962, no writ); Glasgow v. Hurley, 333 S.W.2d 658 (Tex.Civ.App., Dallas 1960, no writ).

The original judgment awarding full custody to the mother was res ad judicata of the question of the child’s best interest and of custody at the time it was entered in 1963. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790 (1955). In order to obtain a change or modification of the custody order it was necessary for appellee to plead and prove a change in conditions which would make it to the best interest of the child to change or modify the custody order. Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.1963); Callicott v. Callicott, 364 S.W.2d 455 (Tex.Civ.App., Houston 1963, writ ref’d n. r. e.); Bell v. Hoskins, 357 S.W.2d 585, 588 (Tex.Civ.App., Dallas 1962, no writ); 20 Tex.Jur.2d 691-692. Appellee did not plead nor did he attempt to prove such changed conditions. It is upon this ground that appellant attacks that part of the order of July 6, 1966 which authorizes the father to have the child with him in Texas for two weeks in the summer of 1967 and for four weeks during each year thereafter. We agree with appellant, and her points on appeal so attacking said order are sustained.

The order of July 6, 1966 will be affirmed insofar as it specifies the times for appellee to visit his daughter in Alabama. The order will be reversed insofar as it undertakes to give appellee custody of his daughter in Texas for two weeks during the summer of 1967 and for four weeks each year thereafter until the child reaches the age of eighteen years, and judgment is here rendered deleting the latter provisions from the order.

Affirmed in part and reversed and rendered in part.

ON REHEARING

In his motion for rehearing appellee earnestly argues that we erred in holding that the trial court’s order constituted a change in custody. Appellee cites us to the opinion of our Supreme Court in the recent case of Leithold v. Plass, 413 S.W.2d 698 (Tex.Sup.1967).

We have carefully studied the opinion in the Leithold case and have concluded that our holding in the instant case is not contrary to or inconsistent with Leithold.

In the case now before us appellee very carefully refrained from alleging or undertaking to prove that there had been any change of conditions since the entry of the original divorce decree. His position, as urged again in his motion for rehearing, is that such allegation and proof are unnecessary, since this is only a plea for a “clarification of visitation rights.” In his motion appellee says, “By implication, the Supreme Court holds that, in judging the validity of an order changing only visitation, it is unnecessary to plead and prove change of conditions.”

We do not agree with appellee. The Supreme Court expressly declared:

“It is clear to us that the judgment of the trial court modified the Arizona decree with respect only to the visitation rights of petitioner and that custody of the child as awarded by the Arizona court was unaffected. There being evidence of a change of conditions sufficient to support such order, we reverse the judgment of the court of civil appeals and affirm that of the trial court.”

Just as it is practically impossible to draw an exact line marking the change from one color to another in a rainbow, so it is practically impossible to draw an exact line marking the change from visitation to a modification of custody in cases involving children. Yet the time comes when the difference is apparent and must be recognized. In the instant case appellee suggested in his pleading and with his evidence sought a judgment giving him “visitation” rights with his child in Texas in charge of her father for two months of each year — one-sixth of the whole time — hundreds of miles from her custodial home in the State of Alabama. Though he did not succeed in obtaining all that he asked for he did obtain a decree giving him charge of the child in Texas for four weeks of each year — one-thirteenth of the whole time. In the Leithold case the father was granted only a two weeks’ visitation period.

In the Leithold case the court said, “Custody of a child connotes the right to establish the child’s domicile and includes the elements of immediate and direct care and control of the child, together with provision for its needs. * * * These rights inherent in a custody status are not held by one enjoying visitation rights as provided in the custody decree.” (Emphasis ours.) Applying the above principles we are still of the opinion that the case before us involves an attempted modification of custody, notwithstanding appellee’s desire to label it merely “clarification of visitation rights.”

We think the Leithold case may be distinguished from the case now before us in other respects, but we shall not further extend this opinion.

The motion for rehearing is overruled.


author: GRISSOM, Chief Justice.

text:
    Josephine SEAMAN, Appellant, v. Margaret SEAMAN, Appellee.
    No. 4179.
    Court of Civil Appeals of Texas. Eastland.
    June 2, 1967.
    Rehearing Denied June 30, 1967.

      Willis G. Perkin, Pharr, for appellant.
    Hollis Rankin and Stonewall Van Wie, III, Rankin, Kern & Martinez, McAllen, for appellee.
   GRISSOM, Chief Justice.

Margaret Seaman, the widow of Jonathan A. Seaman, in her own right and as her husband’s sole heir, sued Josephine Seaman, individually and as independent executrix of the estate of her deceased husband, Irving Seaman, upon a promissory note described as follows:

“10,000.00 Chicago, Ill. May 6, 1963 On demand after date, for value received, the undersigned promises to Pay to the order of Jonathan A. Seaman and Margaret Seaman as joint tenants with right of survivorship, the sum of Ten Thousand ($10,000.00) — Dollars, with interest at the rate of 6 per cent per annum after May 6,1963 until paid
And to secure payment of the amount aforesaid and interest, the undersigned and each of them does hereby, jointly, severally and irrevocably, authorize any attorney of any Court of Record to appear for the undersigned, or any of them, in any such Court in term time or vacation, at any time after maturity and confess judgment without process against the undersigned, or any of them, in favor of the payee or the holder of this note, for such amount as may appear to be unpaid or owing hereon, together with costs and reasonable attorneys’ fees, and to waive and release all errors which may intervene in any such proceedings, and to consent to immediate execution upon any such judgment and that any execution that may be issued on any such judgment may be immediately levied upon and satisfied out of any personal property of the undersigned, or any of them, and to waive all right of the undersigned, or any of them, to have personal property last taken and levied upon to satisfy any such execution; hereby ratifying and confirming all that said attorney may do by virtue hereof. If this note is signed by more than one person, they shall be liable jointly and severally hereunder; but the words ‘jointly’ and ‘severally’ as used in this note shall be disregarded in case it is signed by a corporation or by only one person.
No. Due On demand Irving Seaman
Josephine Seaman”

Plaintiff sued for the principal amount of said note, plus interest and attorney’s fees. In a trial to the court, the plaintiff obtained judgment for $10,000.00, the principal of the note, and $1,000.00 attorney’s fees. As to interest, the judgment provided only that it should bear interest at the rate of 6 per cent per annum. Josephine Seaman has appealed.

The defendant, appellant, Mrs. Josephine Seaman, contends the court erred in admitting the testimony of the plaintiff, over her objection that it was not admissible under Article 3716, in which the plaintiff identified the note, testified as to its contents and to facts surrounding its execution. The plaintiff says that she testified to no fact that comes within the prohibition of Article 3716, the “Dead Man’s Statute”. We think the answer to these respective contentions is not controlling because such evidence was either immaterial or it was admissible, notwithstanding other provisions of said statute, because the plaintiff, Mrs. Margaret Seaman, was called to testify with reference to such matters by the defendant and the defendant thereby waived the right to complain of the admission thereof. Furthermore, there was no plea of non est factum filed and the note was admissible without plaintiff’s testimony. Newsom v. Fikes, Tex.Civ.App., 153 S.W.2d 962 (W.R.). Also the defendant testified that the note was handed to her by Jonathan Seaman, the plaintiff’s deceased husband, and that Irving Seaman, Jonathan’s brother, told her to sign it; that she and her husband signed it and delivered it to Jonathan and that it was so executed for $10,000.00 that Jonathan loaned them to go into the motel business.

Although there was testimony to the contrary, Margaret Seaman testified that the only change in said note after it was so signed and delivered in the early 1950’s was that in May, 1963, when Jonathan was on his deathbed, he wrote in the date, May 6, 1963. There was evidence from which the trial court could have properly found that Jonathan’s act in writing in said date was within the authority granted to him by its signers. Furthermore, Section 14 of Article 5932 provides that when an instrument is wanting in any material particular the person in possession has prima facie authority to complete it by filling in the blanks. Our Supreme Court in Republic National Bank of Dallas v. Strealy, 163 Tex. -36, 350 S.W.2d 914, 916, held, under a comparable fact situation, that said section governed the right to fill in blank spaces in a note. It said that said statutory provision was merely a reiteration of the common law rule that when a writing containing blanks had been delivered the possessor had implied authority to fill in the blanks and the instrument remained valid. It cited Curlee Clothing Company v. Wickliffe, 126 Tex. 573, 91 S.W.2d 677. See also Stephens v. Underwood, Tex.Civ. App., 157 S.W.2d 936. We overrule the defendant’s contention that the court committed reversible error in admitting the plaintiff’s said testimony. Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801, 809; Wilbanks v. Wilbanks, 160 Tex. 317, 330 S.W.2d 607, 609; Allen v. Pollard, 109 Tex. 536, 212 S.W. 468, 469; “The Dead Man’s Statute” by Judge Walker, 27 Tex.Bar Journal at page 374; Burris v. Levy, Tex.Civ.App., 302 S.W.2d 171, 174 (Ref.N.R.E.); Callaway v. Tage, Tex.Civ. App., 370 S.W.2d 784, (Ref.N.R.E.).

Plaintiff, Margaret Seaman, testified that she talked to Irving Seaman after the date, May 6, 1963, had been written into the blank spaces left for it, and after Jonathan had died and that Irving acknowledged owing the note and asked Margaret to not insist upon its payment at that time because he was then having financial difficulties. Josephine Seaman said she heard that conversation but that Irving’s statement was that the note had been discharged and he was surprised that his brother had not destroyed it. There was no evidence of its payment.

The defendant further contends that, as a matter of law, the note was barred by limitation. The evidence does show that the note was executed and delivered by the Irving Seamans to Jonathan Seaman in the early 1950’s but there is ample evidence from which the court had the right to find that said date was inserted under the agreement and authority of those who executed it and to conclude that it did not become due until after May 6, 1963. Therefore, it was not conclusively shown to have been barred. That question was apparently tried by consent and the court had a right to find, as it presumably did, that the indicated facts were true and that the note was not barred by limitation.

We overrule the defendant’s point that the court erred in failing to hold, as a matter of law, that the act of Jonathan Seaman in filling in blanks in the note constituted a material alteration thereof and voided the same. On the contrary, we think there was ample evidence from which the court could find that the only addition to the note was the date, May 6, 1963; that Jonathan Seaman was authorized to fill in that blank and that such act was not a material alteration which voided it.

We have considered all of appellant’s points. We conclude that reversible error is not shown. The judgment is affirmed. ■


text:
    Billy Joe RACKLEY et ux., Appellants, v. MODEL MARKETS, INC., Appellee.
    No. 14595.
    Court of Civil Appeals of Texas. San Antonio.
    June 7, 1967.
    Rehearing Denied June 28, 1967.

      William H. Price, San Antonio, for appellants.
    Groce, Hebdon, Fahey & Smith, Damon Ball, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellants appeal from a take-nothing summary judgment rendered in their suit to recover damages for injuries sustained by Mrs. Rackley when she tripped on a shoe which appellants alleged was negligently on the floor of appellee’s store at- 2504 Pleasanton Road, San Antonio, Texas.

Appellants alleged that appellee was negligent in three particulars: (1) in maintaining attractions to draw attention of customers from the floor on which they were walking; (2) in permitting the floor of the aisles to become cluttered with shoes and other articles difficult to see, thereby rendering said floor a hazardous condition; and (3) in failing to keep the floor of the aisles of said store free from shoes and •other articles which might cause a customer to trip.

Appellee’s motion for summary judgment is based upon the pleadings of the parties and the deposition of Mrs. Rackley. Appel-lee asserted that it was entitled to judgment because there was no issue of liability in that there was no evidence that any agent or employee of appellee caused any shoes to be upon the floor, knew that any shoe was there, or that any shoes had been upon the floor long enough for an agent or employee to have discovered same in the exercise of ordinary care. Appellee further asserted that the presence of any shoes upon the floor was open and obvious and therefore appellee owed no duty to appellants.

The parties agree that the correct rule for determining liability in this type case is that set forth by this Court in H. E. Butt Grocery Co. v. Johnson, Tex.Civ.App., 226 S.W.2d 501, writ ref. n. r. e., wherein it was held that plaintiff must show: (1) that the defendant put the foreign substance upon the floor, or (2) defendant knew that a foreign substance was on the floor and willfully or negligently failed to remove it, or (3) that the foreign substance had been upon the floor for such a period of time that it would have been discovered and removed by the defendant, had the defendant exercised ordinary care. See also, Brookshire Bros., Inc. v. Cherry, Tex.Civ. App., 387 S.W.2d 108, writ ref’d n. r. e.; Todd v. Hill’s, Inc., Tex.Civ.App., 383 S.W. 2d 250, writ ref’d n. r. e.

Mrs. Rackley testified by deposition that she went around a corner of the aisle and slipped on a shoe in the aisle. She was looking at the shoes in racks about as tall as she was and never saw any shoes on the floor before she fell, although afterwards she noticed that several were in the aisle. She admitted that she did not know how they got in the aisle or how long they had been there. She testified further that an employee named “Lorene” was nearby and could have seen the shoes, although Mrs. Rackley does not know if Lorene actually saw the shoes before the accident. No facts are contained in the controverting affidavit of Mrs. Rackley other than that she fell on a shoe on the floor of the store.

It is seen that there is no evidence in this record as to who placed the shoes on the floor in the aisle or how long same had been there. Obviously, this would be a part of appellants’ burden at the trial on the merits, but in this summary judgment proceeding the burden of proof is upon movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against it. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.Sup. 1965); In re Price’s Estate, 375 S.W.2d 900 (Tex.Sup.1964); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

Appellee urges that it met the requisite burden as set forth in Gulf, C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W. 2d 492, 500 (1958). It is seen, however, that the rule there enumerated involves the application of an affirmative defense, to-wit, defense of laches to the summary judgment practice. The Court held that where plaintiff demonstrates by evidence that there is no material factual issue upon the elements of his claim, the burden is upon the defendant to come forward with a showing that there is a disputed fact issue upon the affirmative defense. Such a rule has no application in our case, where appellee, as movant, has the burden of proof to establish that appellants have no cause of action against it.

In our opinion appellee did not meet this burden by a showing that Mrs. Rackley did not know how the shoes got in the aisle. It made no attempt to show that the shoes were not left in the aisle by one of its agents or employes. Furthermore, an issue of fact is raised as to whether or not appellee’s employee, Lorene, should have seen the shoes in the aisle in time to have removed same or warned Mrs. Rackley of their presence. Mrs, Rackley’s uncontro-verted testimony that Lorene had previously sold her cosmetics at the store raised an inference that Lorene was an employee of the store.

It cannot be said that the shoes upon the floor were so open and obvious that Mrs. Rackley was charged, as a matter of law, with knowledge and appreciation thereof so as to entitle appellee to judgment under the “no duty” doctrine. Scott v. Liebman, 404 S.W.2d 288, (Tex.Sup.1966); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963). In her testimony, she denied any actual knowledge of same prior to her fall. Furthermore, she testified that she did not see the shoes on the floor because her attention was upon those in the racks at eye level. Under the record before us there is no basis for holding, as a matter of law, that Mrs. Rackley should have anticipated that shoes would be on the floor in the aisle.

The judgment of the trial court is reversed and the cause remanded for a trial on the merits.


author: COLLINGS, Justice.

text:
    R. H. MARTIN, Appellant, v. COASTAL STATES GAS PRODUCING COMPANY, Appellee.
    No. 4177.
    Court of Civil Appeals of Texas. Eastland.
    May 26, 1967.

      Saccomanno, Clegg, Martin & Pinedo, William N. Jordan, Houston, for appellant.
    W. T. Blackburn, Corpus Christi, for ap-pellee.
   COLLINGS, Justice.

Coastal States Gas Producing Company brought suit against R. H. Martin on a promissory note in the principal amount of $72,344.26 and on a claim for money had and received in the amount of $2,290.07. Plaintiff also filed a motion for summary judgment. In answer thereto Martin submitted his first amended original answer and his answer to plaintiff’s motion for summary judgment with affidavit, pleading general denial and conditional delivery. The court granted plaintiff’s motion for summary judgment and entered final judgment for plaintiff for the full amount of the note together with attorneys’ fees. Martin has appealed.

The execution and terms of the note sued upon are not disputed. Appellant, Martin, presents one point in which .it is contended that the court erred in granting appellee’s motion for summary judgment for the amount of the note, asserting that a genuine issue of material fact was raised by appellant’s pleadings and affidavit as to whether the note' was conditionally delivered by appellant to appellee and whether appellee’s suit was in violation of the terms upon which the note was delivered. Appellant says that one central question is presented on this appeal, to-wit: whether appellant’s plea of conditional delivery and affidavit in support thereof precluded a summary judgment for appellee. Appellant says that a fact issue was raised concerning the date upon which the note should become due and payable and that question should not have been disposed of as a matter of law.

The portions of appellant’s answer which relate to an alleged conditional delivery of the note are as follows :

“Defendant alleges that the promissory note made the subject of Plaintiff’s petition was procured from defendant by false and fraudulent misrepresentations of the agents, servants and employees of Plaintiff. These said agents, servants and employees represented to Defendant that the said promissory note was needed for so-called ‘bookkeeping’ purposes and that there was no intention on the part of Plaintiff to enforce the terms of said promissory note.
That the indebtedness represented by said promissory note is not true and correct and is not due and owing by Defendant as alleged by Plaintiff.”

Substantially the same allegations are contained in appellant’s answer to appellee’s motion for summary judgment. Although appellant’s point refers to a conditional delivery of the note sued upon appellant’s pleadings and affidavit show that he is seeking to enforce an inconsistent contemporaneous oral agreement and to change the due date of the note, and to show, contrary to the terms of the writing, that there was no intention on the part of ap-pellee to hold appellant liable thereon. In appellant’s affidavit it was stated, in effect, that there was a contemporaneous oral agreement that the dates for payment could be altered at a later time and that the payment dates provided for in the note would not be rigidly enforced. The claimed collateral agreement is the only defense urged by appellant. This, in our opinion, is an attempt to vary the terms of a written instrument in violation of the parol evidence rule and is not permissible. Kane v. Union State Bank, 384 S.W.2d 358 (CCA 1964, error ref. n. r. e.). In Huba-cek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30 (Sup.Ct., 1958) it was stated that:

“When parties have concluded a valid integrated agreement with respect to a particular subject matter, the rule precludes the enforcement of inconsistent prior or contemporaneous agreements. 17 Tex.Jur., Evidence §§ 352, 353; McCormick and Ray, supra § 1601.”

Appellant did in a general way allege fraud in procuring the note sued upon but the allegation amounted to no more than a conclusion. Appellant’s allegation of facts in support of the conclusion, even if accepted as true, does not show fraud or a conditional delivery of the note. Appellant’s affidavit in support of his answer to appellee’s motion for summary judgment was substantially to the same effect. It did not show facts constituting fraud or a conditional delivery of the note.

In Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (Sup.Ct., 1960), which was also a suit on a note with facts somewhat similar to those of the instant case, it was stated as follows:

“When viewed in the light most favorable to the defendants, the deposition testimony does not suggest delivery for a special purpose or that the parties intended for the instrument to become effective only upon the happening of some future contingency. It shows nothing more than a prior or contemporaneous agreement that if a subsequent accounting disclosed that the cattle venture had lost less then the plaintiff claimed, the defendants would owe two-thirds of the actual loss as determined by such accounting rather than the principal sum stated in the note. An understanding of this nature may not be shown by extrinsic evidence as a defense to the note, because it clearly contradicts the unconditional promise expressed in the written instrument to pay a sum certain in money on a fixed future date.”

There was no pleading and proof showing fraud or a conditional delivery of the note. There was no genuine issue of material fact raised by appellant’s pleadings and affidavit. The trial court properly granted appellee’s motion for summary judgment.

The judgment is affirmed.


author: NYE, Associate Justice.

text:
    SUNSET BRICK AND TILE, INC., et al., Appellants, v. Taft E. MILES et al., Appellees.
    No. 296.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 31, 1967.

      John H. Benckenstein, Lipscomb Nor-vell, Jr., Beaumont, for appellants.
    Mike Willatt, Houston, for appellees.
   OPINION

NYE, Associate Justice.

This record involves the action of the trial court which overruled the plea of privilege of the appellants Sunset Brick and Tile, Inc. and Daniel V. Leazer. The suit was instituted by appellees Taft E. Miles and Isadore Vincent for personal injuries alleged to have been received by them in a truck-automobile collision in Matagorda County, Texas. Appellees relied upon subdivision 9a against both appellants and section 23 of article 1995, Tex.Rev.Civ.Stat. Ann., as to appellant Sunset Brick and Tile, Inc. to support maintenance of their cause of action in the county where they brought suit, after the plea of privilege had been filed by the appellants. The plaintiffs duly filed their controverting affidavits asserting venue was maintainable in Matagorda County especially under subsection 9a of article 1995, the subdivision dealing with negligent acts or omissions which occur in a given county approximately resulting in the alleged injuries. Trial was to the court without the aid of a jury. The trial court overruled appellants’ plea of privilege without making findings of fact or conclusions of law.

The test on appeal from an order overruling a plea of privilege as to the evidence is the same as in any other civil case. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95 (Tex.Comm’n App.) It has been universally held by our appellate courts that in order to maintain venue under subsection 9a of article 1995, the plaintiff must allege and prove facts that the act or omission of negligence of the defendant or his servant, agent or representative, acting within the scope of the employment proximately caused plaintiffs’ injuries and that such negligence occurred in the county where the suit was filed. It is also a fundamental rule that when a case is tried without a jury and where no findings of fact or conclusions of law are requested of or filed by the trial judge, the judgment should be affirmed if there is sufficient evidence to support it upon any lawful theory and every issue sufficiently raised by the evidence must be resolved in support of the judgment. Henderson v. Willmon, 407 S.W.2d 24 (Tex.Civ.App.— Texarkana, 1966); 3B Tex.Jur. § 873, p. 278.

Appellant in four points contends that the court erred in overruling their plea of privilege to be sued in Gonzales County, Texas, the county of their residence and/or residence of their registered agent because there was no evidence that the defendants were guilty of negligence which proximately caused appellees’ damage.

Our duty in this connection is to examine the record in the light of appellants’ points of error and determine if the evidence is legally sufficient to support the trial court’s judgment. If discarding all adverse evidence and giving credit to all evidence that is favorable to the plaintiffs and indulging every legitimate conclusion favorable to the plaintiffs which might have been drawn from the facts proved, a trier of the facts might have found in their favor, then there is sufficient evidence to support the finding. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 99 (1953). See this court’s opinion in Frick v. Duge, 413 S.W.2d 750 (Tex.Civ. App. — Corpus Christi 1967, n. w. h.).

The statement of facts shows that the collision in question occurred at approximately 5:30 a. m. on the morning of March 17, 1965; that on this particular occasion five men were riding north on Highway 35 on their way to work in the oil fields. It was dark and there was a misting rain. The defendants’ loaded brick truck was proceeding in the same direction about a quarter mile past the outskirts of Palacios, Texas. The plaintiffs’ car shortly before the collision was estimated to be going between 45-53 miles per hour. The defendants’ truck was estimated to be going between 10-20 miles per hour in the same direction. The plaintiffs’ vehicle collided with the back of defendants’ truck. The plaintiffs alleged negligence generally. There were no exceptions filed to the pleadings. Plaintiffs’ principal contentions were that the defendants’ truck had no tail lights on it at the time of the collision and that the reflectors were dirty and unoper-ative.

Plaintiff Vincent was riding in the right rear seat of the car and was watching the road ahead when he first saw the truck. It was about 30 feet in front of him and he did not see any lights on the back or side of the trailer. The driver and the front seat passenger also saw the car about the same time. The car driver immediately applied the brakes and the collision then followed. The truck driver immediately after the collision, admitted that his lights were out; that he had been having trouble with his lights; and that he was trying to get them back on at the time of the collision. The truck driver was an employee of appellants Sunset Brick and Tile, Inc. and was working in the scope of his employment at the time of the accident. He stated that he had been having trouble with his trailer lights early that morning; that a wire located midway along the trailer had worn through where it rested upon a crosspiece and he had to fix this and replace a fuse which had been blown out, before leaving the brickyard. After the collision the highway patrolman investigating the accident checked over the trailer and found that the same fuse that had been replaced that morning was again blown out. The defendant truck driver gave a statement to the highway patrolman following the collision in which he admitted the possibilty of his trailer lights being out at the time of the collision. There was testimony by the truck driver that he did not check the reflector on the trailer that morning, and he admitted that it was hard to keep them clean in wet weather. Another witness who was riding in the right front passenger seat of the car at the time of the collision testified that he was looking ahead and estimated that the truck was 40 feet away when he first saw it, that he had seen the back end of the truck immediately prior to the collision but had seen no lights on it. The parties to this suit stipulated that the plaintiffs were injured in the collision.

We hold that there is legally sufficient evidence that the cause of action arose in Matagorda County so as to support the judgment of the trial court and to maintain venue in that County, not only under subsection 9a of article 1995 but also section 23 of article 1995. Appellants' points are overruled.

The judgment of the trial court is affirmed.


author: STOCKARD, Commissioner.

text:
    C. V. TEMPLE, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Respondent. Edith S. TEMPLE, Administratrix of Estate of G. V. Dameron, Deceased, and Gordon B. Kell, Appellants, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Respondent. Staley McCORMICK, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Respondent. Donald BROWN and Wesley Gill, Appellants, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Respondent. Edgar OLIPHANT and Alberta Oliphant, Appellants, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Respondent.
    Nos. 52601-52605.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.

      Albert Thomson, Kansas City, Linde, Thomson, VanDyke, Fairchild & Lang-worthy, Kansas City, of counsel, for appellants.
    Sam D. Parker, Jack W. R. Headley, Kansas City, Dick B. Dale, Jr., Richmond, Lathrop, Righter, Gordon & Parker, Kansas City, of counsel, for respondent.
   STOCKARD, Commissioner.

Plaintiffs have appealed from the judgment of the Circuit Court of Ray County, Missouri, entered in favor of defendant pursuant to jury verdict in plaintiffs’ consolidated actions for damages based on the alleged violation by defendant of Section 389.660 RSMo 1959, V.A.M.S.

Plaintiffs’ only contention on this appeal is that the trial court erred in giving at the request of defendant Instruction 6, a withdrawal instruction. Therefore, our statement of the evidence need not be as detailed as in other circumstances.

Plaintiffs are the owners or operators of farms located between Henrietta and Hardin, Missouri, on the north side of respondent’s elevated roadbed. In each petition it was alleged that “the natural flow of drainage” on plaintiffs’ land was from the north to the south, that defendant “did not have sufficient outlets in its right of way between Henrietta and Hardin, Missouri,” and by reason of the- insufficient outlets water was “caused to stand” on plaintiffs’ farms and destroy or damage field crops. The evidence adduced by plaintiffs was to the effect that at the times alleged in the petition, which was during periods of heavy rains, water accumulated on plaintiffs’ lands, and that the water north of defendant’s roadbed was higher than the water on the south side. Plaintiffs’ Exhibit 1 (identified and used by witnesses in their testimony but never received in evidence), a copy of which is incorporated into plaintiffs’ brief, shows that west of but near to Hardin, the Crooked River flows under the defendant’s roadbed at what is referred to as the Main Bridge, and then flows southward into the Missouri River. Nearby to the west is what is referred to as the Overflow Bridge with a levee west of it which diverts water flowing under that bridge southeastwardly into Crooked River. Westerly from Crooked River and to the north of the defendant’s roadbed lies plaintiffs' lands. The exact distance is not shown on Plaintiffs’ Exhibit 1, but eastward from Henrietta, and apparently eastward of plaintiff Temple’s lands is what is called “Section 10 Ditch” over which defendant has a bridge. This ditch goes southward under defendant’s roadbed and then runs eastwardly into Crooked River.

Section 389.660, upon which plaintiffs’ actions are based, in its material parts provides as follows:

“It shall be the duty of every corporation * * *' ‘ owning or operating any railroad * * * in this state, * * * to cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad, and suitable ditches and drains along each side of the roadbed of such railroad, to connect with ditches, drains and watercourses, so as to afford sufficient outlet to drain and carry off the water, including surface water, along such railroad whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad * *

In Instruction 3 it was submitted that the verdict was to be for plaintiffs if the jury believed:

“First, defendant, in the construction of its roadbed, rendered necessary the construction of openings across and through such roadbed to connect with ditches, drains and watercourses so as to afford outlet and to drain and carry off water, including surface water, and
“Second, defendant did not construct openings across and through its roadbed and connect same to ditch, drain or watercourse outlets in manner to sufficiently drain and carry off water, including surface water, and
“Third, as a direct result of the failure of defendant to construct openings and outlets through its roadbed and connect same with ditch, drain or watercourse, water was caused to stand upon lands of plaintiffs, and
“Fourth, growing and standing crops belonging to plaintiffs were damaged or destroyed. (Not in MAI).”

Instruction 4, given at the request of defendant, was a converse of Instruction 3. Plaintiffs do not challenge the correctness of that instruction. Instruction 6, which plaintiffs do challenge, is as follows:

“Instruction No. 6.
“The question of defendant being required to construct and maintain openings across and through its right of way and roadbed between the overflow bridge at Crooked River and the bridge at the Section 10 Ditch is withdrawn from your consideration. (Not in MAI).”

Plaintiffs challenge Instruction 6 on the ground that it is “prejudicially misleading and argumentative in violation of the Rules of the Supreme Court of Missouri adopting MAI.” Plaintiffs’ contention is that Supreme Court Rule 70.01(b), V.A.M.R. provides that instructions may be given authorizing a verdict for a defendant “upon finding the converse of any essential fact or element essential to a verdict for plaintiff,” and Paragraph 29.01 MAI provides that verdict directing instructions of plaintiffs may be conversed in one of three ways, but that none of the authorized ways was used in Instruction 6. Plaintiffs then assert that Instruction 4, requested by defendant was a converse instruction (and we agree that it was), and that defendant was limited to one such instruction; that defendant was not entitled to have two instructions, that is, Instructions 4 and 6, on the question of liability; and for that reason there is no authority for Instruction 6.

Plaintiffs’ contention is without merit. Instruction 6 is not a converse instruction, and it does not direct a verdict for defendant. It is a cautionary instruction by which a stated issue is withdrawn from the consideration of the jury in its determination of liability pursuant to the instructions submitting that issue. Paragraph 30 in MAI specifically authorizes the use of withdrawal instructions when appropriate. The committee comment quotes from Roberts v. Emerson Electric Manufacturing Co., Mo., 362 S.W.2d 579, in reference to the use of withdrawal instructions, as follows: “ ‘It is not only the office of instructions to inform the jury as to the law of the issues raised, but, where the evidence is of a character as might easily lead to the raising of a false issue, the court ought to guard against such an issue by appropriate instructions.’ ”

Plaintiffs cite Rice v. Jefferson City Bridge & Transit Co., Mo., 216 S.W. 746, and Mahaney v. Kansas City, Clay County & St. Joseph A. T. Co., 329 Mo. 793, 46 S. W.2d S17. Both of these cases predate the adoption of MAI, and therefore do not support plaintiffs’ contention that withdrawal instructions are not now authorized. In each case it was held that a withdrawal instruction was erroneous, not because a withdrawal instruction as such was not authorized, but because the issue purportedly withdrawn was, under the facts of each particular case, an issue to be determined by the jury. Instruction 6 in this case was a withdrawal instruction, but it was not erroneous for that reason alone. Whether it was proper under the circumstances of this case is the question to which we now turn.

In the construction of Section 389.-660, “the courts have repeatedly held there is no duty on the railroad to let water through its embankment unless there exists there a connecting ditch, drain or watercourse below the embankment into which such water may flow.” Smithpeter v. Wabash R. Co., 360 Mo. 835, 231 S.W.2d 135, 19 A.L.R.2d 950. See also Atchison, Topeka & Santa Fe Ry. Co. v. Taylor, D.C., 87 F.Supp. 313; Vollrath v. Wabash R. Co., D.C., 65 F.Supp. 766; Grimes v. St. Louis & S. W. Ry. Co., 184 Mo.App. 117,168 S.W. 317; Harris v. St. Louis-San Francisco R. Co., 224 Mo.App. 455, 27 S.W.2d 1072; Slinkard v. Missouri Pac. R. Co., Mo.App., 294 S.W. 446. The natural drainway constituting Crooked River was bridged by what was referred to as the Main Bridge, and the overflow of that drainway was channeled through defendant’s roadbed by the Overflow Bridge. Farther west there was a bridge over Section 10 Ditch. Whether or not the terms of Section 389.660 required defendant to establish other and additional openings in its roadbed between the Overflow Bridge and the bridge at Section 10 Ditch depended upon two factors. First, whether the existing openings afforded a “sufficient outlet to drain and carry off the water, including surface water,” and second, whether there existed a connecting ditch, drain or watercourse below defendant’s roadbed located on defendant’s right of way into which the water could flow. This latter requirement has been held to be necessary because “The law places upon a railroad no duty (and grants a railroad no permission) to enter upon any servient land to construct or to enlarge any existing ditch, drain or watercourse to increase its water carrying capacity,” Smithpeter v. Wabash R. Co., supra, and a railroad may not make an opening in its roadbed and discharge accumulated surface water on an adjacent proprietor, when no ditch, drain or watercourse exists to carry it away without incurring liability for such action. Vollrath v. Wabash R. Co., supra; Grimes v. St. Louis & S. W. Ry. Co., supra. We are unable to find any evidence in the record that in the area between the • Overflow Bridge and the bridge at Section 10 Ditch there were any drains, ditches, or watercourses leading away from defendant’s roadbed into which water could flow or be channeled. Plaintiffs do not contend there was any such evidence. They certainly point out none to us. Defendant-respondent asserts in its brief that there was no such evidence, and to that assertion plaintiffs make no reply. Two of defendant’s witnesses testified positively that no such drains, ditches, or watercourses existed.

By Instruction 3 plaintiffs were authorized to obtain a verdict if the jury believed that defendant “did not construct openings across and through its roadbed and connect same to ditch, drain or watercourse outlets in manner to sufficiently drain and carry off water, including surface water.” However, in view of the circumstances of this case as established by the undisputed evidence, Section 389.660 did not require defendant to construct such openings between the Overflow Bridge and the bridge over the Section 10 Ditch. For that reason, at the request of defendant, by Instruction 6 the trial court withdrew from the consideration of the jury in its determination of whether plaintiffs were entitled to a verdict under Instruction 3, the issue of whether defendant was required to construct and maintain openings across and through its right of way and roadbed in that area between the Overflow Bridge and the bridge over Section 10 Ditch. This not only was proper but was necessary, in view of the submission of plaintiff and the uncontradicted evidence, in order to prevent the likelihood of a false issue before the jury.

Plaintiffs argue that Instruction 6 is erroneous because it “told the jury the [defendant] did not have to put in openings without telling the jury that if it did not put in openings, then it had to put in lateral ditches to lead the water to adequate openings nearby to carry it off.” Section 389.-660 does require the construction and maintenance of “suitable ditches and drains along each side of the roadbed of such railroad, to connect with ditches, drains and watercourses, so as to afford sufficient outlet to drain and carry off the water, including surface water.” Admittedly, if supported by evidence, plaintiffs could have based the issue of defendant’s liability on the failure to construct such ditches and drains. But, there is no evidence of the absence of such ditches and drains or their insufficiency. In their pleadings plaintiffs did not allege that defendant had failed to construct sufficient lateral ditches and drains. Instruction 3 submitting plaintiffs’ theory of defendant’s liability makes no mention whatever of such ditches and drains. Plaintiffs selected the basis of their submission, and the defendant should not be required to negative possible grounds of liability not an issue in the case by reason of plaintiffs’ choice of their theory of liability or by reason of nonsupport in the evidence.

We conclude that Instruction 6 is not erroneous for the reasons asserted.

The judgment in each case is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM:

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.