text:
    Ernest L. HOUCK et al., Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 6778.
    Court of Civil Appeals of Texas. Beaumont.
    July 1, 1965.
    Rehearing Denied Sept. 22, 1965.

      King, Sharfstein & Rienstra, Bill Wal-trip, Maida & Howell, Beaumont, for appellants.
    Orgain, Bell & Tucker, Beaumont, Allen E. Smith, Austin, for appellee.
   PARKER, Justice.

This is a declaratory judgment suit brought by State Farm Mutual Automobile Insurance Company against Ernest L. Houck, Charles W. Griffin, Wayne F. Moye and Natkin & Company, to determine that it is not legally obligated under its written contract of insurance with Ernest L. Houck insuring his Chevrolet half-ton truck to defend any suit against Houck, Griffin, or Natkin & Company for damages to Wayne F. Moye as the result of an accident of July 2, 1962, or to pay any judgment as a result of such suit. Houck, Griffin and Natkin & Company by way of cross action against State Farm Mutual Automobile Insurance Company sought declaratory judgment that such insurance company be declared to be obligated to so defend Moye’-s suit and, if unsuccessful, to pay any such judgment.

Subsequent to the filing of the instant suit, there was filed in Cause No. B-81197, styled Wayne F. Moye vs. Natkin & Company, et al, in the District Court of Jefferson County, Texas, a personal injury damage suit for $95,000.00 against Houck, Griffin and Natkin & Company wherein it is alleged that an automobile accident occurred on July 2, 1962, between a vehicle own- and operated by Wayne F. Moye and a Chevrolet pick-up truck owned by Houck, supervisor for Natkin & Company, and operated by Charles W. Griffin while in the course and scope of his employment for Natkin & -Company under Houck’s directions as such supervisor. It is this alleged accident which prompted the filing of the instant suit by State Farm. The damage suit is presently pending.

Trial to the court resulted in the relief sought by the insurance company being granted and the relief sought by Houck, Griffin and Natkin & Company being refused, State Farm Mutual Automobile Insurance Company, hereinafter will be referred to as “State Farm” or as plaintiff. Ernest L. Houck will be referred to hereinafter as “Houck”. Houck, Griffin and Nat-kin & Company will be referred to as defendants.

Natkin & Company’s brief has been adopted by Houck and Griffin. Its arguments also are Houck’s and Griffin’s.

State Farm and Houck, during April of 1962, entered into a written contract of insurance covering a 1961 Chevrolet half-ton truck in the name of Houck. Property damage and public liability involved -in the use of the truck was covered by this insurance policy. At the time of the accident involved here Houck was the lessee thereof; subsequently, he became the owner of the truck. By the terms of the contract, State Farm conditionally promised Houck to pay, on his behalf and on behalf of certain third party donee beneficiaries designated under the heading “Insureds” (persons using Houck’s truck with his permission, or persons legally responsible for its use) all sums which such persons should become legally obligated to pay as damages sustained by any person caused by accident arising out of the use of the truck. The provisions of said insurance policy relevant to the questions involved in this litigation read as follows:

“1. Notice of Accident— * * * when an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.
“2. Notice of Claim or Suit— * * If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.
“5. Action Against Company— * * No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with a 11 the terms of this policy. * * * »

On July 2, 1962, Houck was employed by Natkin & Company as a superintendent. Under the supervision of Houck was Griffin, another employee of Natkin & Company. On that date, the half-ton truck was being used by Natkin & Company in the furtherance of its business affairs. On this occasion Griffin was the driver of the half-ton truck when it collided with a Comet automobile driven by Wayne Moye. The two vehicles were driven over into a parking lot nearby and the drivers casually discussed the accident. To Griffin, the force of the blow upon collision of the vehicles was a minor, trivial one. Then and there, Moye made a demand upon Griffin for payment of the damage to his automobile. Griffin then admitted the collision was due to his fault and agreed he would pay such damage. Within two or three days thereafter Griffin informed Houck of the occurrence of the accident, of the demand for damages made by Moye upon Griffin upon the scene of the accident, and of his (Griffin’s) agreement to pay such damages, when Moye found out how much damage in money his Comet suffered. From July 2, 1962, until about October 13, 1962, nothing further was heard from Moye. On the latter date, Moye telephoned Griffin to advise him that the damage to Moye’s car amounted to fourteen dollars and some odd cents. Then, and not before, Griffin learned that Moye had a back injury. Moye did not tell Griffin where he received this injury but implied it was a result of the accident of July 2,1962. On October 14th or 15th, 1962, Griffin paid Moye the sum of $14.24 as payment in full of the claim of Moye for property damage to his vehicle. On the 15th day of October, 1962, for the first time Charles W. Griffin phoned an agent of State Farm for the purpose of requesting that State Farm reimburse him for the $14.24 paid by him to Moye. On this occasion Griffin informed Wilson, such agent, that he had been involved in an accident on July 2, 1962, driving the insured half-ton truck, which information was only incidental to Griffin’s request for reimbursement. Such notification to Wilson by Griffin on October 15, 1962, was the first notice received by State Farm of the occurrence of the accident of July 2, 1962, involving the insured vehicle. According to Griffin, he and Houck, after discussing notification to State Farm of the occurrence of the accident some three or four days after it occurred, decided not to notify State Farm, in part to avoid an anticipated increase in premium rates to Houck as a result of the reporting of such accident, and in part because of the apparent trivial amount of the damages. -No insured under the State Farm policy in question immediately forwarded to or notified State Farm of the occurrence of the accident or the claim made by Moye for property damage to his automobile on July 2, 1962. Defendants did not comply with the terms of the State Farm policy in question with reference to notices of accident and claim. The first knowledge or notice Natkin & Company had of the accident in question and claim asserted by Moye other than the notice to its employee and agent, Houck, was when it was served with a copy of the petition and citation in this declaratory judgment action which was prompted by the filing of the suit of Moye v. Natkin & Company first mentioned here-inabove, in which suit some $95,000.00 was sought by Moye against Natkin & Company. Neither Houck nor Griffin had any notice or knowledge of any personal injury claim being made by Moye as a result of the accident in question until about October 15, 1962. Property damage to the vehicle belonging to Moye was in the sum of $14.24. Property damage to the Houck vehicle was $2.54.

Natkin & Company contends that defendants were under no duty to report the accident to State Farm because there was no evidence that the accident in question which occurred on July 2, 1962, up until October 15, 1962, appeared other than very trivial and inconsequential in nature to the defendants. That the accident was not trivial or inconsequential to State Farm or the defendants is evidenced by Moye’s claim for $95,000.00 in damages, partly for bodily injuries to Moye alleged to have been re-» ceived by him in said accident which competent investigation and inquiry immediately after July 2nd of 1962 presumably would have disclosed. Not only did Griffin and Houck fail to report the accident and Moye’s claim to State Farm in a reasonable time but they assumed the responsibility of settling the matter of damages sustained by Moye, relying upon their opinion that the accident was trivial and inconsequential and did not involve substantial damage, thereby depriving State Farm of the benefits of the provision in the policy for prompt notice of the accident, designed to afford State Farm of the opportunity to promptly investigate and determine for itself the amount of damages probably involved, taking such statements from those involved as might be indicated, including whether or not anyone was injured and to what extent in the accident. The evidence of Griffin was:

“Q. Well, let me ask you this: Do you recall ever having made a statement that you decided to try to settle the case yourself so that the costs would not go up under the merit system ?
“A. That is correct.”

The above referred to increased premium rate on the insurance policy.

Further evidence of Griffin shows the importance of notice of the accident as follows:

“Q. Did you get hurt?
“A. I don’t recall.
“Q. Well, did you ever go to a doctor?
“A. No, sir.”

In Texas Glass & Paint Co. v. Fidelity & Deposit Co. of Maryland, 244 S.W. 113 (Tex.Com.App.1922), jgmt. adopted, the court held:

“it would be manifestly unreasonable to require notice until the insured had been apprised of the occurrence * *; and similarly * * * to require report of such occurrences as would appear to have no reasonable relation to the subject-matter of the policy, or not at all likely to result in any claim or liability. * * * [this] proposition has been applied to those occurrences which at the time seem in their consequences to be so slight as to preclude a reasonable probability that they will result in claim or liability.”

In the instant case, the insured, Houck, was promptly apprised of the accident and the actual claim on the part of Moye for damages. Continuing with the court’s opinion in the Texas Glass & Paint Co. v. Fidelity & Deposit Co. of Maryland, supra, after analyzing numerous cases, it held:

“It would seem to be a fair deduction from these holdings that, when the insured has complied with its full duty to acquaint itself with all the facts surrounding an accident, and it appears from such investigation that the occurrence was of such a nature as that it could not reasonably be expected to result in any claim or liability, there is no duty to report it.
“On the other hand, it is equally clear that determination of the question whether an occurrence comes within the terms of the policy as being an accident required to be reported should not be left solely to the judgment or discretion of the assured. Consequently it has been held that the insured is not relieved from its duty to report an accident merely because its attorney made a full investigation and reached the conclusion that it was too trivial to report. In such case the assured acts at its peril. Oakland Motor Car Co. v. American Fidelity Co. [190 Mich. 74, 155 N.W. 729].

The court continued to affirm the holding of the trial court and the court of civil appeals that the insurer, having had no notice within a reasonable time after the accident, had no duty to defend the insured or to pay a judgment entered against it. In Texas, the provision of an insurance contract requiring that notice of an accident be given to the insurer when the insured actually knows not only that the accident occurred, but that a claim was made at the time of the accident for damages, creates a condition precedent and in the absence of compliance therewith the insurer has no duties to defend any suit and is not liable under the contract of insurance. New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56 (1945). This contractual requirement that notice be given as soon as practical means that notice must be given within a reasonable time after the accident. National Surety Corp. v. Diggs, 272 S.W.2d 604 (Tex.Civ.App.1954), err. ref. n.r.e.; National Surety Corp. v. Wells, 287 F.2d 102 (5th Cir. 1961); General Acc. Fire & Life Assur. Corp. v. Butler’s Ice Cream Factory, 5 S.W.2d 976 (Tex.Com.App.1928); Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95 (1955). Judged by the standard of reasonableness as pronounced by Texas courts and viewing the facts and circumstances in evidence before it, the trial court correctly concluded that State Farm was not notified of the accident and claim within a .reasonable time, from anyone, and had no liability to anyone.

This is a suit on an insurance policy issued to Houck. It can benefit Natkin & Company and Griffin only to the degree it affords protection to Houck. The quoted provisions of the policy are conditions precedent to the right of Houck to hold State Farm liable. Houck, not being entitled to the benefits of the policy because of his failure to give notices, precludes Natkin & Company and Griffin as “donee beneficiaries” from protection under the policy. Klein v. Century Lloyds, supra.

Defendant Natkin & Company contends that since it appeared to the defend"ant that the accident of July 2, 1962, was trivial and inconsequential that, as a matter of law, the defendants were under no obligation to give notice of the accident in question and the claim on the part of Moye to State Farm until October 15, 1962, when the defendant Griffin asked State Farm to reimburse him for property damage in some trivial sum. Natkin & Company relies upon the principle of law followed in some other jurisdictions:

“It has been held that the insured need not report every trivial accident, but if an ordinarily prudent individual acting reasonably would consider, under all the circumstances, that the accident was inconsequential and that no claim for damages would he made, notice need not be given to the insurer. The question of reasonableness must be determined on the basis of facts as they existed at the time of the controverted events, and compliance or non-compliance can not be established by subsequent events.” (Emphasis ours.)

Such principle has not been followed in Texas, most certainly when a claim for damages is known to the insured, as in this case.

There is no evidence that the accident in question appeared to be other than very trivial and inconsequential in nature, to Griffin, the driver, and Houck as superintendent and as agent of Natkin & Company, up until October 15, 1962. Houck relied upon Griffin’s report of the accident and claim. Nevertheless, under the authoritative decisions of Texas, including those above cited, the trial court did not err in finding as a fact that defendants did not fully comply with all the terms of the State Farm policy in question with reference to notices and in entering judgment against Natkin & Company upon the basis of such breach of the contract of insurance, declaring State Farm has no duty to defend the insured and other defendants or to pay any judgment against defendants.

Natkin & Company argues that since there is no evidence that it had any knowledge of the existence of the policy in question prior to the filing of the instant suit, the trial court erred in finding as a fact that Natkin & Company did not comply with the conditions precedent stated in the State Farm policy as to notice, etc., and entering judgment for State Farm. Further, that the knowledge of Houck, the employee, superintendent and agent for Nat-kin & Company, as to the accident in question and the claim of Moye could not be imputed to Natkin & Company for Houck acted in his own personal interest which was adverse to the interest of Natkin & Company in failing to notify State Farm of the accident in question to keep his insurance premium low. It is a well settled rule of the law of agency that if an agent’s acts are within the scope of his authority, and are related to matters over which such authority extends, notice to the agent is then deemed to be notice to the principal. Considering the foregoing general principle, the knowledge of Houck that there was an accident, that there was a claim, that there was an insurance policy with State Farm containing the provisions hereinbefore discussed, are imputed to Natkin & Company, his employer. Only to a minor and trivial extent was Houck’s interest adverse to Nat-kin & Company’s. Under all the circumstances of this case, we hold that Houck’s interest was not so incompatible with the interest of Natkin & Company as to destroy the relation of agency between Natkin & Company and Houck. We hold that Nat-kin & Company, under the doctrine of imputed knowledge, was charged with knowledge of every material fact above mentioned as to the accident and the policy. Goldstein v. Union National Bank, 109 Tex. 555, 213 S.W. 584 (1919).

All of appellants’ points of error are overruled.

Appellee, State Farm, has two points of error asserting error on the part of the trial court in finding as a fact the reason that State Farm was not notified sooner of the accident and claim was due partly to the apparent trivial amount of the damages, as there was no evidence of probative force and, in the alternative, that there was insufficient evidence to support such finding. Viewing the evidence in its most favorable light in support of the finding, there is probative evidence supporting such evidence. The “no evidence” point of appellee is overruled.

Considering the entire record, all evidence and circumstances, such finding of the trial court is supported by probative evidence factually sufficient and not so contrary to the great weight and preponderance of the evidence as to be -clearly wrong. Appellee’s insufficient evidence point of error is overruled.

Judgment of the trial court affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Patrick A. TURCOTTE et al., Appellants, v. ALICE NATIONAL BANK et al., Appellees.
    No. 4399.
    Court of Civil Appeals of Texas. Waco.
    Sept. 16, 1965.
    Rehearing Denied Oct. 7, 1965.
    Fischer, Wood, Burney & Nesbitt, Corpus Christi, William C. Wright, Laredo, Burch Downman, Houston, for appellants.
    Kenneth Oden, Alice, Horkin, Nicolas & Nicolas, Corpus Christi, Waggoner Carr, Atty. Gen. of Texas, Austin, Elmore H. Borchers, Laredo, Baker, Botts, Shepherd & Coates, Houston, for appellees.
   McDONALD, Chief Justice.

This is an appeal from a judgment of the District Court of Kenedy County, dissolving a temporary injunction theretofore granted by the County Judge of Kenedy County in a will contest pending on the probate docket of the County Court of Kenedy County.

Appellants are contestants of the will of Sarita K. East, deceased, and appellees are proponents of such will in Cause 348 pending on the docket of the County Court of Kenedy County.

Upon application of appellants herein, in the will contest, the County Judge granted a temporary injunction enjoining appellees from filing in any District Court in Texas any legal proceeding in the nature of mandamus, prohibition, restraining order or injunction, which seeks to prevent the County Court from enforcing any orders theretofore made with respect to deposition and discovery proceedings pending, or which seeks to interfere with any action hereafter taken by the County Court to determine deposition and discovery proceedings in the pending will contest.

Appellees gave notice of appeal from the granting of such temporary injunction to the District Court of Kenedy County. After the appeal had been docketed in the District Court, appellants moved to dismiss such appeal for want of jurisdiction of the District Court. Such motion was overruled by the District Court.

On trial de novo in the District Court, judgment was rendered dissolving the temporary injunction granted by the County Judge in the will contest proceeding.

Appellants appeal, contending the District Court was without jurisdiction of the appeal from the County Court.

Appellants assert that an appeal from an order of the County Court granting a temporary injunction (in a probate case) can only be made directly to the Court of Civil Appeals by virtue of Articles 2251 and 4662, Vernon’s Ann.Tex.Civ.St.

Article 2251 provides:

“Appeals in injunctions. Appeals from orders of the district and county courts granting or dissolving temporary injunctions shall lie in the cases and in the manner provided in the title ‘Injunctions.’ ”

Article 4662 (a part of the title “Injunctions”) provides:

“Appeals. Any party to a civil suit wherein a temporary injunction may be granted * * * may appeal from such order or judgment to the Court of Civil Appeals * *

An order in a probate case whieh is interlocutory is normally not appealable. Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210. However, Article 2251, V.A.T.S. “Appeals in injunctions,” provides that appeals from orders of the County Courts granting temporary injunctions shall lie. It is true that such statute further provides “and in the manner provided in the title ‘Injunctions,’ ” and that such title (Article 4662) provides for appeal to the Court of Civil Appeals.

Nevertheless, Article 5, Section 8, Constitution of Texas, Vernon’s Ann.St., provides: “The District Court shall have appellate jurisdiction and general control in probate matters, over the County Court * * and Section 28 of the Probate Code provides: “Right of Appeal. Any person who may consider himself aggrieved by any decision, order, decree, or judgment of the (County) court shall have the right of appeal therefrom to the district court of the county. * * * ” (Almost identical to Art. 3631, R.C.S.1911). Section 12 of the Texas Rules of Civil Procedure, Rules 332 through 351 prescribe the procedure for review by District Courts of County Court Rulings in probate matters which are ap-pealable.

The effect of Section 28 Probate Code, V.A.T.S. (and Section 12, T.R.C.P.) is to exempt appeals in probate cases from the regulation of any general provisions of law (as Article 4662), and to impose for their perfection compliance with Section 28 (and Section 12, T.R.C.P.), as the sum of procedure necessary to be observed. Moreover, the statutory mode of appeal provided for a particular class of cases is alone to be consulted for the procedure necessary in the appeal of cases of that class. Beversdorff v. Dienger, 107 Tex. 88, 174 S.W. 576; Edwards v. Morton, 92 Tex. 152, 46 S.W. 792.

Since the appeal herein was an ap-pealable order in a probate case, the procedure prescribed in the Probate Code applies, and the District Court has jurisdiction.

Appellants’ points and contentions are overruled.

Affirmed.


text:
    RICHTER’S BAKERY, INC., et al., Appellants, v. O. L. VERDEN, Sr., et al., Appellees.
    No. 4413.
    Court of Civil Appeals of Texas. Waco.
    Sept. 23, 1965.
    Rehearing Denied Oct. 14, 1965.

      John E. Lewis, Adams, Graham, Lewis & Graham, Harlingen, for appellants.
    Carter, Stiernberg, Skaggs & Koppel, Harlingen, for appellees.
   McDONALD, Chief Justice.

This is an appeal by defendants from a judgment for plaintiffs in a personal injury case. Plaintiff Verden, Sr., individually and as next friend of his minor son,, sued defendants for damages resulting from injuries sustained by Verden, Jr. m a collision between a motor scooter driven by Verden, Jr. and a bakery truck owned by defendant Richter, and driven by defendant Fonseca. Trial was to a jury which found:

1,2) Defendant Fonseca failed to keep a proper lookout; whieh was a proximate cause of the collision.
3, 4, 5) Defendant Fonseca moved his vehicle to the left when such movement could not be made with safety; which was not negligence; and which was a proximate cause of the collision.
6) Before the collision defendant Fon-seca was within the intersection intending to make a left turn.
7) At the time inquired of in 6), the motor scooter of Verden, Jr. approaching from the opposite direction was so close to such intersection as to constitute an immediate hazard.
8,9,10) Defendant Fonseca failed to yield the right-of-way in making the left turn, which was negligence; and a proximate cause of the collision.
11) Plaintiff Verden, Jr. did not fail to keep a proper lookout.
13) Plaintiff Verden, Jr. was not driving his motor scooter at a greater speed than was reasonable and prudent.
16) Plaintiff Verden, Jr.’s failure to drive his motor scooter to the left of defendant’s vehicle was not negligence.
18) Plaintiff Verden Jr.’s motor scooter was equipped with adequate brakes.
21) Plaintiff Verden Jr. was not negligent in not having front wheel brakes on his motor scooter.
23) Plaintiff Verden Jr., before the collision, did not fail to make proper application of his brakes.
28) The collision was not the result of an unavoidable accident.
31) $1500 will fairly compensate plaintiff Verden, Jr. for pain and suffering from date of injury to trial.
32) $5000 will fairly compensate plaintiff Verden, Jr. for future pain and suffering.
33) $1550 is cash value of time lost by Verden, Jr. in performing work and services for his father, Verden, Sr., from date of injury to trial.
34) $3550 will reasonably compensate Verden, Sr. for diminished capacity of Verden, Jr. to perform work and services from date of trial until Ver-den, Jr. reaches 21 years of age.
35) $18000 will reasonably compensate Verden, Jr. for diminished capacity to work after he becomes 21.
36) $1911.90 is reasonable medical expense from date of injury to trial.
37) $7500 is reasonable compensation for future medical expenses for Ver-den, Jr.

The trial court rendered judgment on the verdict for $32,000 for plaintiff Ver-den, Jr., and $7011.90 for plaintiff Verden, Sr.

Defendants appeal on 41 points which we summarize as presenting the following contentions:

1) The trial court erred in refusing to permit defendants to introduce into evidence a diagram of the scene of the accident which was attached to the deposition of Verden, Jr., and in refusing to admit into evidence portions of Verden Jr.’s deposition.
2) There is no evidence, or insufficient evidence, to support the jury’s answers to Issues 1, 2, 7, 8, 9, 10, 11, 13, 16, 18 and 23.
3) Plaintiffs’ counsel made improper argument to the jury and advised the jury of the effect of their answers to the issues submitted.
4) The trial court erred in not granting a mistrial because witnesses Stone and Dierks engaged in conversation with a juror.
5) The trial court erred in not granting a mistrial because during the trial Mrs. O. L. Verden, Sr., wife and mother of plaintiffs, became ill and began crying, and was witnessed by at least 2 jurors, and that this was highly prejudicial to defendants.
6) The trial court erred in not granting a new trial because counsel for plaintiffs had previously represented the son of one of the jurors in a criminal proceeding which information was not made known to defendants’ counsel prior to the jury having been selected.
7) There is no evidence, or insufficient evidence, to support the jury’s answers to Issues 33, 34, 35 and 37, and some are excessive.

We revert to contention i). Soon after the aceident defendants took plaintiff Verden Jr.’s deposition. In connection with such deposition Verden Jr. placed a cotton truck and trailer which preceded him on the highway, in a certain position on a diagram. On the trial of the case Ver-den Jr. testified that such vehicles were-in a different position from that in which he placed them at the time his deposition was taken; and further testified that when his deposition was taken, he had placed the vehicles in the position indicated on the diagram, to-wit: the westermost northbound lane, but that he was now “pretty sure” that the truck and tractor had been traveling in the eastermost northbound lane. Verden Jr. repeatedly admitted making the prior inconsistent statement in his deposition and placing the vehicles in the westermost lane at the time of the taking of his deposition. Counsel for defendants then offered the diagram in evidence and counsel for plaintiffs objected. Counsel for defendants then said: “We offer it (the diagram) as direct evidence of the testimony of the witness at that time and for impeachment as to the placing of the vehicles on the highway as being different from where he testified to during this trial.” The trial court excluded the diagram. The trial court did not err in refusing to admit the diagram and related testimony for the purpose of impeachment since Verden Jr. had admitted every fact which the diagram and related testimony eould establish. Employers Liability Assur. Corp. v. Groninger & King, CCA (n. r. e.) 299 S.W.2d 175; Meadolake Foods v. Estes, CCA (n. r. e.) 218 S.W.2d 862; McCormick & Ray, Tax Law Evidence, p. 543. The diagram was also offered by defendant as “direct evidence,” and for impeachment. The rule is that if counsel offers evidence and states a purpose for which it is inadmissible, he cannot complain of the ruling of the court in excluding it, even though there was some other purpose for which it could have been received, 1 McCormick & Ray, Evidence, p. 19; Long v. Galveston Elec. Co., CCA, Er. Dis., 59 S.W.2d 228.; Singleton v. Carmichael, CCA (n. r. e.) 305 S.W.2d 379. In any event the exclusion of the diagram and related testimony in no way harmed defendants. Rule 434, Texas Rules of Civil Procedure.

Defendants’ 2nd contention asserts that there is no evidence, or insufficient evidence, to sustain the jury’s answers to Issues 1, 2, 7, 8, 9, 10, 11,13, 16, 18 and 23. In such issues the jury found: that defendant did not keep a proper lookout, and failed to yield the right-of-way to plaintiff, and that such was negligence proximately causing the collision; and acquitted paintiff of various acts of negligence.

The record reflects that on August 26, 1963 around 7:45 Verden Jr. was traveling north on his motorscooter on State Highway 506 within the City limits of Santa Rosa, Texas. The highway at that point is divided into two northbound traffic lanes and two southbound traffic lanes, each 12 feet wide with an 8 foot parking lane located on each side of the highway. Verden Jr. was traveling less than 30 miles per hour on the right hand side of the eastermost northbound lane, and from 100 to 150 feet behind a truck pulling a cotton trailer. As Verden Jr. approached the intersection of Highway 506 and La Feria Street, which was about 50 feet wide, his view of such intersection was partially blocked by the truck and trailer in front of him. At about the same time defendant’s truck driver Fonseca was traveling south in defendant’s truck in one of the southbound lanes on Highway 506. Fonseca testified that when he reached the intersection of Highway 506 and LaFeria Street he waited for'the oncoming truck and cotton trailer to go by, then made a left turn into the intersection. When Verden Jr. first saw defendant’s truck it had already cut behind the truck and cotton trailer as they passed through the intersection and had started across. Fonseca never saw Verden Jr. until he heard the squeal of his brakes. At this point Fonseca looked to his right and saw Verden Jr. stomping on his brakes trying to stop. Verden Jr, skidded approximately 55 feet, then laid his motor-scooter over on its side in an instinctive effort to protect himself and slid against the rear of defendant’s truck, being seriously injured on the impact.

The speed limit at the intersection was 35 miles per hour. Verden Jr.’s motor-scooter had rear brakes only and a -valid Texas Inspection sticker, and was in good condition.

We think the jury justified in answering the issues as they did; that such answers are supported by ample evidence; and are not against the great weight and preponderance of the evidence. Further, defendants’ complaint as to Issue 13 was not raised in Motion for New Trial and is not before this court.

Defendants’ 3rd contention complains that plaintiffs’ counsel made improper argument and advised the jury of the effect of their answers to the issues. The entire jury argument of some 108 pages is before us by bill of exception, and no purpose would be accomplished by detailing it here. We have serious doubt that argument of plaintiffs’ counsel was improper under the record. The portions most complained of were invited by defendants’ argument; and in any event no harm is shown. Rule 434, T.R.C.P.; Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596.

Defendants’ 4th contention complains that witnesses Stone and Dierks, during a recess, engaged in conversation with a juror; and contention 5 asserts that the fact that Mrs, O. L. Verden Sr. became ill and began crying which was witnessed by at least 2 jurors was highly prejudicial to defendants. The record reflects that the witnesses did not discuss the case with the jurors, and only spoke briefly to the jurors. No harm is shown. Likewise, no harm is shown by the jurors’ observation of Mrs. Verden Sr. Rule 327, T.R.C.P.

Defendants’ 6th contention complains counsel for plaintiffs had previously represented the son of a juror in a criminal proceeding. The juror was asked no question on voir dire concerning her acquaintance or relationship with plaintiffs’ counsel.

Defendants’ 7th contention is that there is no evidence, or insufficient evidence, to support the jury’s answers to Issues 33, 34, 35 and 37, and that some are excessive.

Issue 33 awards plaintiff Ver-den Sr. $1550 as the value of Verden Jr.’s services from the date of injury to the time of trial; and Issue 35 awards Ver-den Sr. $3550 as the value of Verden Jr.’s diminished capacity to work from the date of trial to the time Verden Jr. reaches 21 years of age. Prior to the accident Verden Jr. was working as a welder’s helper, earning $1.25 per hour. He was averaging $200 per month during the summer months; and worked part time during the school months. He helped his father after school and on weekends in the family farming business. In the 15 months between the accident and the time of trial, Verden Jr. had not done any welding work or farm work. Verden Jr. had 22 months from the date of trial until he became 21. At the time of trial Verden Jr. testified he could not bend or make sudden movements; he had constant pain in his neck; and suffered from low back pain. Dr. Beachner testified he was a borderline case of total disability. We think the answers to Issues 33 and 35 supported by ample evidence, and the amount not excessive under the record.

Issue 35 awards plaintiff Ver-den Jr. $18,000 for diminished capacity to work after he becomes 21; and Issue 37 awards him $7500, as reasonable compensation for future medical expenses. As noted, Verden Jr. testified he was in pain; Dr. Beachner testified he was a borderline case of total disability; Dr. Hecht testified he could not go out and start working 8 hours a day; he was not fit for army service and was not employable by any employer who had a history of his injury or who made screening X-rays of his back. Dr. Hecht further testified Verden Jr. should look for a job as a clerk who can alternate between sitting down, standing and walking. His life expectancy was 49 or 50 years. Dr. Beachner testified he would need chiropractic treatments for the rest of his life, costing $200 to $300 per year. Dr. Milam testified his medieal bills directly related to the accident would amount to $3500 or $4000 over the next 50 years. We think the award of $18,000 for diminished capacity to work and $7500 for future medical care supported by ample evidence and not excessive.

All of defendants’ points and contentions have been considered and are overruled.

Affirmed.


author: BARROW, Justice.

text:
    Mrs. Orama CROSBY, d/b/a Crosby Party Boat, Appellant, v. HELDT BROS. TRUCKS, Appellee.
    No. 14403.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 15, 1965.

      Evans & Gillies, H. Wayne Gillies, Angle-ton, for appellant.
    Lloyd, Lloyd, Dean & Ellzey, Alice, for appellee.
   BARROW, Justice.

This is an appeal from an order overruling appellant’s plea of privilege in ap-pellee’s suit to recover on a sworn account. The trial court held that Mrs. Orama Crosby, hereinafter sometimes referred to as defendant, had waived her plea of privilege.

On December 3, 1964, plaintiff, Heldt Bros. Trucks, filed this suit in Jim Wells County complaining of Crosby Party Boat. On January 14, 1965, defendant filed a plea in abatement seeking to have the suit dismissed. On the same day the trial court heard defendant’s application for a hearing on her plea in abatement and entered an order setting it for January 29, 1965. On January 15, 1965, defendant filed a plea of privilege subject to her plea in abatement, seeking to have the venue transferred to Brazoria County where she resided. Included in this instrument, but subject to her plea in abatement and plea of privilege, defendant made a sworn answer to plaintiff’s petition. The plea of privilege was served on plaintiff’s attorney by certified mail, return receipt requested. Plaintiff did not file a controverting affidavit.

On January 29, 1965, the case came on for hearing pursuant to the order of the trial court. At this time the defendant sought to waive her plea in abatement and to have the court enter an order sustaining her plea of privilege because of plaintiff’s failure to timely controvert same. Defendant’s attorney stated in part: “Your Honor, at this time I would like to waive the Defendant’s Plea in Abatement and submit an Order to you, sir, on my Plea of Privilege. Since I filed the Plea in Abatement I found out that my client who had not — had filed an Assumed Name Certificate, thereby making our Plea in Abatement moot, a moot question for any interest to the Court.” Defendant did not request leave to withdraw her plea in abatement and it was not withdrawn. The trial court found that defendant had waived her plea of privilege and overruled same. We affirm.

The matter of venue is a personal privilege and a party to a lawsuit may expressly or impliedly waive rights conferred upon him by a venue statute. O’Neal v. Texas Bank & Trust Co. of Sweetwater, 118 Tex. 133, 11 S.W.2d 791; Mooney Aircraft, Inc. v. Adams, Tex.Civ.App., 377 S.W.2d 123, no wr. hist.

It is seen that under the liberal pleading practice authorized by Rule 84, Texas Rules of Civil Procedure, a plea of privilege is still required to be filed in due order, that is, prior to any plea other than that of a special appearance under Rule 120a, T.R.C.P. Venue may be waived by failure to comply with this due order of pleading. Holt v. Farmer, Tex.Com.App., 56 S.W.2d 633; National Bankers Life Ins. Co. v. Adler, Tex.Civ.App., 324 S.W.2d 35, no wr. hist.; Foster v. H. O. Wooten Grocer Co., Tex.Civ.App., 273 S.W.2d 461, no wr. hist.

Any action upon the part of a defendant which invokes the general jurisdiction of the court before filing his plea of privilege, other than certain preliminary motions not here involved, or unless the right to file his plea of privilege is reserved, constitutes an appearance and therefore a waiver of his venue rights. McDonald, Texas Civil Practice, Sec. 4.40; Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119; Houston Pipeline Co. v. Ybanez, Tex.Civ. App., 368 S.W.2d 140, no wr. hist.; Dossey v. Oehler, Tex.Civ.App., 359 S.W.2d 264, wr. ref. n. r. e.; Ware v. Texboro Cabinet Corp., Tex.Civ.App., 350 S.W.2d 47, wr. dism.; Chapa v. Cox, Tex.Civ.App., 271 S.W.2d 486, no wr. hist.; Reed v. Garlington, Tex.Civ.App., 233 S.W.2d 185, no wr. hist.

On January 14, appellant filed only her plea in abatement seeking to have the suit dismissed. Under the rule established by the above authorities, she thereby entered her appearance and submitted to the jurisdiction of the court. This pleading was never withdrawn. Cf. Beier v. Sandgarten, Tex.Civ.App., 99 S.W.2d 1004, no wr. hist. It is further seen that defendant presented this plea to the court and obtained an order for a hearing.

Appellant urges that since the plea in abatement was never heard by the trial court, her action in filing same did not amount to a waiver of her venue rights. In support of this position she cites O’Neal v. Texas Bank & Trust Co., supra, and Mooney Aircraft, Inc. v. Adams, supra. These cases are distinguishable from this case in that in each of the cited cases a plea of privilege was filed prior to the filing of the plea in abatement or motion to consolidate. Also distinguishable are those cases wherein the plea of privilege was filed contemporaneously with the defendant’s answer or other plea. See Martin v. Kieschnick, Tex.Com.App., 231 S.W. 330.

The trial court correctly held that appellant had waived her plea of privilege filed on January 15, 1965, by her prior actions. The judgment is affirmed.

      . The following was said in O’Neal and quoted with approval in Mooney:
      “We do not hold that mere filing of a píea in abatement (of the kind shown here), even though the question as- to privilege of venue be not expressly saved in the plea amounts to a waiver; what we do hold is that, if such a plea with its issues be actually submitted for determination before action on the plea to venue, there is submission to jurisdiction of the court with consequent waiver of the latter plea.”


author: TIREY, Justice.

text:
    WESTERN ALLIANCE INSURANCE COMPANY, Appellant, v. Orval Ray COX, Appellee.
    No. 4384.
    Court of Civil Appeals of Texas. Waco.
    Sept. 23, 1965.
    Rehearing Denied Oct. 14, 1965.
    William G. Washington, Ulmer W. Spinney, Austin, for appellant.
    Ñaman, Howell, Smith & Chase, Waco, Bradley & Geren, Carl Cannon, Groesbeck, for appellee.
   TIREY, Justice.

Orval Ray Cox brought this action against Western Alliance Insurance Company to satisfy a judgment rendered against him in the 77th District Court of Limestone County, Texas, and also to pay the attorneys’ fees and costs incurred by him in the defense of said suit. The prior law suit arose out of an automobile accident which occurred on February 15, 1963, between a 1957 Chevrolet owned by Bobby Baldree, an insured of the Western Alliance Company, such car being driven at the time of the accident by Orval Ray Cox, and a car driven by Dr. H. R. Martin of Mexia. Just prior to the accident Baldree, the insured, had just gotten out of the car at his place of employment and gave permission to Orval Ray Cox to take the wheel and drive the automobile back to the Red Cox Texaco Service Station in Mexia to be serviced, which station was owned and operated by the father of Orval Ray Cox. Orval Ray Cox, a single man, had driven the Baldree car a short distance when it collided with the car owned by Dr. Martin, and Dr. Martin brought the prior suit against Orval Ray Cox to recover his damages. When Cox was served with citation he sent the original petition and citation to the appellant insurance carrier and it declined to defend the suit and so notified Cox, and thereafter Cox employed private counsel to represent him and the cause went to trial and the judgment was rendered against Cox for the sum of $2086.00. In the case at bar, after a jury trial, judgment was rendered for Cox fn the amount of $500.00 for attorneys’ fees and for m-tervenor, H. R. Martin, in the sum of $2086.00. The insurance carrier perfected its appeal to this court. We affirm the judgment of the lower court.

The judgment is assailed on four points. They are to the effect that the court erred in overruling defendant’s motion for instructed verdict; and in failing to grant defendant’s motion for judgment non obstante veredicto; and in entering judgment based upon the answer of the jury to special issue No. 4, inquiring as to whether plaintiff was using the 1957 Chevrolet in the automobile business; and also in entering judgment based upon the answers of the jury to special issues numbers 2 and 3, inquiring as to whether the plaintiff was driving the automobile as an agent of Bobby Baldree or as an agent of the Red Cox Texaco Service Station. We overrule each of the foregoing points for reasons hereinafter briefly noted.

This action involves the construction and application of the following exclusion under the collision coverage of Texas Standard Family Automobile Policy written by appellant. The pertinent exclusion in the policy is exclusion (g), which provides that the policy does not apply: “to an owned automobile while used in the automobile business, but this exclusion does not apply to the named insured, * * * or any partner, agent or employee of the named insured * * Under the terms of the policy automobile business is defined as “the business or occupation of selling, repairing, servicing, storing or parking automobiles.” The first question that presents itself is whether exclusion (g) in the policy has any application under the facts which we believe are without dispute. Our views under the definition and exclusion clause are that the automobile at the time of the accident was not being used in the automobile business under the terms of the definition and the terms of the policy, and hence the exclusion does not apply. Baldree, the insured, had driven his car to the Red Cox Texaco Service Station for the purpose of having it serviced, he desiring to be driven to the place where he was working and the car brought back to the station. Orval Ray Cox, son of the operator of the station, was at home on a visit, and at the request of the insured he got in the ear with the insured and rode to the factory, and when they got to the factory the insured got out of the car and turned it over to appellee to be brought back to the station so it could be serviced. Appellee had driven the car just a short distance when the accident occurred. It is our view that under the definition in the policy that the automobile of Baldree was not being used in the business of the service station at the time of the accident, but that it was being used solely for the accommodation of the insured in order to get him from the station to the place where he was at work, and it was to be returned by the appellee for the insured’s convenience so it could be serviced at the station. Since we are of the view that under the undisputed factual situation the automobile was not being used in the automobile business at the time of the collision, no other question arises, and the coverage is within the terms of the policy carried by the insured. If we could reach the question as to whether or not the appellee was the agent of Baldree at the time of the accident we would hold that he was the agent of the insured and was driving the car with the permission and at the instance of the insured. That leads us to say that we are of the view that the insurance carrier’s position is without merit. Assuming, but not deciding, that A. O. Cox was engaged in the automobile business as that term is defined in the policy, the insured’s car was not being used in his business. Certainly Orval Ray Cox was not engaged in the automobile business as the owner or as an employee. Appellee was doing no more than driving the car as a favor for the owner, and since the owner is not in the automobile business, the owner was not using the ear in the automobile business.

The factual situation here is much different to the factual situation in the case of Commercial Standard Insurance Company v. Sanders, 326 S.W.2d 298 (Tex.Civ.App.1959). We have been cited to a number of out of state cases in which a similar exclusion has been held to apply under facts that are similar to the case at bar. We think McCree v. Jenning, 55 Wash.2d 725, 349 P.2d 1071 (1960), and the case of Case v. Fidelity & Casualty Company of New York, 105 N.H. 422, 201 A.2d 897 (1964), also Cherot v. United States Fidelity and Guaranty Company, 264 F.2d 767 (10th Cir., 1959), also Chavers v. St. Paul Fire & Marine Ins. Co., 188 F.Supp. 39 (D.C.N.D. Ohio, 1960), support our view of the interpretation that we have given to the exclusion clause. See also Hammer v. Malkerson Motors, Inc., 269 Minn. 563, 132 N.W.2d 174, and Walker v. State Farm Mutual Auto. Ins. Co., 40 Ill.App.2d 463, 190 N.E.2d 121, and Allstate Ins. Co. v. Skawinski, 40 Ill.App.2d 136, 189 N.E.2d 365.

Each of appellant’s contentions is overruled and this cause is affirmed.


text:
    W. M. MAIN, Appellant, v. Richard A. OLIVER, Jr., et al., Appellees.
    No. 4359.
    Court of Civil Appeals of Texas. Waco.
    Sept. 23, 1965.
    Rehearing Denied Oct. 14, 1965.
    John B. Faulkner, Waco, for appellant.
    Hilton H. Howell, Waco, for appellees.
   McDONALD, Chief Justice.

This is an appeal by plaintiff from a take-nothing judgment in an intersection collision case.

Plaintiff Main sued defendants Oliver for damages for injuries sustained as a result of a collision between plaintiff and defendants’ automobile at the intersection of 18th Street and McKenzie Avenue in Waco, Texas.

Trial was to a jury which found that defendant failed to keep a proper lookout; which failure was a proximate cause of the collision. The jury further found that: 1) the plaintiff failed to keep a proper lookout; which failure was a proximate cause of the collision; and 2) that the plaintiff could have avoided the collision by driving to the left; which failure was negligence; and a proximate cause of the collision.

The trial court entered judgment on the verdict that plaintiff take nothing.

Plaintiff appeals on 6 points, contending:

1) There is no evidence, or insufficient evidence, to support the jury’s findings that plaintiff failed to keep a proper lookout (which proximately caused the collision), and that such findings are against the great weight and preponderance of the evidence.
2) There is no evidence, or insufficient evidence, to support the jury’s findings that plaintiff could have avoided the collision by driving to the left, (which failure was negligence and a proximate cause of the collision), and that such findings are against the great weight and preponderance of the evidence.

The record reflects that plaintiff Main was driving South on North 18th Street, and defendant Oliver was driving East on McKenzie. There was a stop sign for McKenzie traffic entering 18th Street. The view of both drivers of each other as they approached the intersection was open and unobstructed. It had been misting and the streets were damp, but the weather was clear at 8:50 P. M. when the collision occurred. It was dark and both cars had their lights on. The evidence conflicted as to whether Oliver stopped at the stop sign, but the jury found that he did stop. Plaintiff was traveling 25 or 30 miles per hour, and testified he saw defendant’s vehicle from the time it was 4 or 5 car lengths away from the intersection.

Proper lookout is ordinarily a question for the trier of facts, in this case the jury. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; T. & P. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332; Campos v. Smith, Tex.Civ.App., (n. w. h.) 386 S.W.2d 823.

Since plaintiff’s view was unobstructed and plaintiff did see defendants’ vehicle 4 or 5 car lengths away from the intersection, we think the jury authorized to believe that plaintiff failed to keep a proper lookout, and that such failure was a proximate cause of the collision. From the record as a whole, we do not think such findings are against the great weight and preponderance of the evidence.

Plaintiff’s contention 1 is overruled.

Under this view plaintiff’s 2nd contention passes out of the case.

Affirmed.


author: CADENA, Justice.

text:
    The STATE of Texas, Appellant, v. TEXAS OSAGE ROYALTY POOL, INC., Appellee.
    No. 14393.
    Court of Civil Appeals of Texas. San Antonio.
    July 28, 1965.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst., T. B. Wright, Executive Asst., J. C. Davis, W. O. Shultz, Owen Wade Anderson, Asst. Attys. Gen., Austin, for appellant.
    Matthews, Nowlin, Macfarlane & Barrett, Lewis T. Tarver, Jr., San Antonio, for appellee.
   CADENA, Justice.

Appellant, the State of Texas, filed this action to obtain a declaration that certain shares of stock in Texas Osage Royalty Pool, Inc., appellee, and undistributed dividends declared thereon, have escheated to the State under the provisions of Art. 3272a, Vernon’s Ann.Tex.Stats. The trial court held that the property in question is not subject to escheat, and the State appeals.

Appellee, Texas Osage Royalty Pool, Inc., will be referred to herein as “Osage.”

The following facts are undisputed:

1. Texas Osage Cooperative Royalty Pool, hereinafter called the “trust”, was organized under a declaration of trust dated May 2, 1929. The purpose of the trust was to bring together, hold, manage, control and exploit mineral interests in lands, to collect the revenues therefrom, and to make distribution of the net proceeds from time to time to the participants in the venture. Those participating in the trust received one full share or “headright,” evidenced by a headright certificate, in exchange for a one-half interest in the minerals under 640 acres of land, with fractional shares or headrights being issued for corresponding fractions of 640 acres.

2. The trustees were authorized to- act as incorporators in the formation of a corporation for the purpose of receiving the trust estate and carrying out the purposes of the trust, with the trustees serving as the first board of directors of such corporation. It was expressly provided that upon the organization of the corporation, “the certificate holders hereunder shall receive shares of corporate stock in exchange for and in lieu of the trust certificates issued' hereunder, said shares to represent a proportion of the entire capital stock of said corporation identical with the proportion of interest in the trust represented by the trust certificates held by them.”

3. In August, 1941, the trustees organized a corporation, Texas Osage Cooperative Royalty Pool, Inc. (In 1960 the corporate name was changed to Texas Osage Royalty Pool, Inc., the present name of appellee.) On August 14, 1941, all of the mineral interests which had been conveyed to the trust in exchange for headright certificates were transferred to this corporation by the trustees. This terminated the trust.

4. The capital stock of the corporation consisted of 1,100 shares of no par value stock, representing two shares for each of the 550 headright certificates outstanding at the time of incorporation. On August 25, 1941, the original trustees, acting as the directors of the corporation, by resolution, declared a dividend of $10.00 per corporate share, “payable only upon the issuance of no par value stock of the corporation in exchange for and upon surrender of outstanding valid headright certificates issued under the declaration of trust dated May 2, 1929.” This same resolution declared that no stock of the corporation was to be issued “except in exchange for valid, outstanding headrights, the consideration for the issuance of which has not failed by foreclosure or otherwise of the mineral interests for which the same were issued” by the trust.

5. On August 26, 1941, all 1,100 shares of Osage common stock were issued to the directors of the corporation, instead of to the holders of headright certificates. The directors paid for the stock by transferring all assets of the trust to the corporation. The memorandum evidencing the issuance of the stock recited that certificates representing Osage common stock were to be issued to headright owners on surrender of their headright certificates, together with proof that the consideration for the issuance of the headright had not failed.

6. Notice of the incorporation, the declaration of the dividend, and the conditions on which headright certificates could be exchanged for Osage stock was mailed to all registered owners of headrights. In 1960, the common stock was split on the basis of 100 shares, each having a par value of $1.00, for each of the original 1,100 shares of no par value stock.

7. Osage has paid dividends only to persons who have surrendered their headrights in exchange for Osage stock. However, whenever a dividend was declared and paid to such shareholders, the same dividend was declared on stock corresponding to unsur-rendered headrights, and the money for the payment of these dividends has been deposited in a segregated bank account,

8. Osage has issued no stock certificates without (a) surrender of the corresponding headright certificate, or affidavit of loss thereof, containing an agreement to indemnify the corporation; and (b) proof that consideration for the issuance of the headright had not failed.

9. On January 6, 1962, pursuant to the requirements of Secs. 1 and 2 of Art. 3272a, Osage filed an “Annual Report of Property Subject to Escheat,” showing that as of that date certain headright certificates corresponding to the stock which is the subject of this suit had not been exchanged for Osage stock, and that the accumulated dividends declared thereon were being held by Osage. Attached to this report was an “Explanation” which, after detailing the history of Osage as outlined above, declared that Osage was not “holding personal property subject to escheat,” and that the headrights, unissued stock or dividends, are not within the purview of Section 1 of Art. 3272a.

10. The report contained the sworn verification required by Sec. 2(f) of Art. 3272a. This verification recites that the report contains a full and complete list of all property held by Osage “for which, from the knowledge and records of the undersigned, it appears that the existence and whereabouts of the owner are unknown and have been unknown for more than seven (7) years and on which no claim or act of ownership has been asserted or exercised during the past seven (7) years and on which no will of the last known owner has been recorded or probated in the county where the property is situated within the past seven (7) years.” At the end of the verification Osage added a statement to the effect that the verification was subject to and qualified by the statements contained in the “Explanation” to which reference has been made in the preceding paragraph of this opinion.

Osage makes no claim to the stock or dividends in question. The State has abandoned its claim to 162 shares of stock, and dividends declared thereon, corresponding to the headright certificates issued to Mrs. L. L. Nail, Mrs. Caroline Bradshaw, and William Pfrehm, all of whom are deceased. It appeared at’ the trial that the heirs of such persons had exchanged, or were in the process of exchanging, such headright certificates for the corresponding stock and accumulated dividends.

Essentially, the theory advanced by Osage is that the State is not entitled to the stock and dividends unless it can make the proof of non-failure of consideration which would have been required of the holders of the unsurrendered certificates. This contention rests on the elementary rule that the State cannot acquire by escheat property or rights which were not possessed at the time of the escheat by the unknown or absent owners of such property or rights. Hall v. Claiborne, 27 Tex. 217 (1863); State by Parsons v. United States Steel Corporation, 22 N.J. 341, 126 A.2d 168; Brown v. United States, 65 F.2d 65 (9th Cir.).

The disposition of this case, then, depends on the validity of the August 25, 1941, resolution adopted by the board of directors of Osage, which imposed the requirement of proof of non-failure of consideration.

Under the plain and unambiguous language of the declaration of trust, when the corporation was formed in 1941 the holders of headrights were to receive stock in the corporation in an amount proportionate to their interest in the trust. As the Galveston Court of Civil Appeals said in Yeaman v. Galveston City Co., 173 S.W. 489, certified questions answered, 106 Tex. 389, 167 S.W. 710 (1914), “That instrument is the charter of the company, and all that was lawfully done thereafter in completing and perfecting the organization of the company was done under its authority, and the rights and liabilities of the shareholders and the powers of the company or the corporation in acts affecting such rights and liabilities are to be measured by its provisions.” 173 S.W. at 497.

The only power which the declaration of trust vested in the trustees, insofar- as the formation of a corporation is concerned, was the power to form a corporation in which the owners of headrights became, ipso facto, shareholders. The rights of owners of headrights in the trust became vested when they performed their obligations by transferring mineral interests to the trust. Prior to the formation of the corporation, the headright owners could exercise their rights in the trust without proving that the consideration given in exchange for their headrights had'not failed. He who seeks to avoid his obligations under a written instrument on the ground of failure of consideration has the burden of proving such failure. Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222 (1949); Beauchamp v. Couch, 54 Tex.Civ.App, 471, 117 S.W. 924, wr. ref.; 1 McCormick and Ray, Texas Law of Evidence (2d ed., 1956), § 112, p. 160.

We believe that the decision of our Supreme Court in Yeaman v. Galveston City Co., 106 Tex. 389, 167 S.W. 710 (1914), compels the conclusion that the unilateral attempt by Osage to impose restrictions on the vested rights of the headright owners in connection with the transformation of the trust into a corporation was a nullity. In Yeaman, a trust was formed for the purpose of disposing of land in the City of Galveston. The participants in the trust conveyed land to the trust in exchange for trust certificates. At a later date, the trust was transformed into a joint stock company which, in 1841, was incorporated by special act of the Congress of the Republic of Texas. In 1856, by resolution adopted at a shareholders’ meeting, it was declared that holders of outstanding trust certificates would not be entitled to vote or to receive dividends until they surrendered the certificates held by them and took out renewal certificates evidencing ownership of shares in the corporation.

The holder of five shares of the unsur-rendered “Trustee Stock” sued to establish his rights as a stockholder in the corporation and to recover dividends due him as such stockholder, as well as for other relief not relevant here. The Galveston Court of Civil Appeals certified to the Supreme Court the question whether the owners of trustees’ certificates, issued under the trust agreement, became by virtue of such ownership stockholders in the corporation. In answering this question in the affirmative, the Supreme Court said (167 S.W. at pp. 720-721):

“ * * * In a corporation the certificate of stock Is not the stock itself; it is but a muniment of title, an evidence of the ownership of the stock. It is not necessary to a subscriber’s complete ownership of the stock. He becomes a full stockholder, certainly where he has performed his obligation, and possesses all of a stockholder’s rights, even if no certificate is issued to him at all. * * *
“The purchasers of shares sold by the trustees and evidenced by the trustee certificates had all the standing of founders of the Galveston City Company as it stood prior to its incorporation. By their purchase of its shares they made it possible, brought it into existence, and gave it its character as a joint-stock company. They were the company itself, invested with full ownership of its outstanding stock, and their status as shareholders established. The issuance- of the company’s renewal certificates * * * added and could add nothing to their rights as stockholders. They stood at that time already complete and perfected under the law, capable of assertion and entitled to full recognition. * * *
“ * * * No principle of law is better settled than that which affirms that the payment of his subscription by an original subscriber to the capital stock of a corporation constitutes him a stockholder, * * * regardless of the issuance of any certificate. * * *
“ * * * Each purchaser of these shares was in the attitude of consenting to the relationship created by every other purchase. In their purchase the company had its origin; out of them it grew up and took its form; and it can hardly be contended that any formal recognition by the body which their ownership created was necessary * * to constitute their owners its stockholders.”

Osage next contends that the State has no right to the undistributed dividends declared on the stock in question because the right to dividends, as distinguished from the right to stock, may validly be made dependent on compliance with the conditions imposed by the resolution of August 25, 194L This contention ignores the fact that in the Yeaman case the plaintiff was successful in his suit for dividends. Here, as in Yeaman, “The rights of third-parties have not -intervened. All of the present stockholders acquired their stock with full notice of the rights of the holders of trustees* certificates as shareholders in the corporation.” 173 S.W. at p. 497.

What has escheated to the State consists of the rights of the owners of stock which has remained unclaimed since 1941. These rights include, under the Yea-man decision, the right to dividends which have been declared on such stock but which remain unpaid and are presently held by Osage. The record in this case establishes that the whereabouts of the owners of the unclaimed stock has been unknown for more than twenty years, and that the whereabouts of the headright certificates is also unknown. Osage has introduced no evidenee showing the assertion of hostile claims to the stock or to the dividends. Under the express provisions of Sec. 4(h) o'f Art. 3272a, Osage is relieved of any liability to any claimant to the stock or dividends in question. All subsequent claims to the property involved in this litigation must be presented to and, if valid, will be paid by the State of Texas. Art. 3272a, §§ 6, 7.

The judgment of the trial court is reversed and judgment is here rendered that the stock and dividends in question, with the exception of the stock now being claimed by the Nail, Bradshaw and Pfrehm heirs, have escheated to, and the title thereto is vested in, the State of Texas, and directing appellee, Osage Royalty Pool, Inc., to deliver said property promptly to the Treasurer of the State of Texas.


author: RENFRO, Justice.

text:
    Manuel MARROQUIN, Jr., Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY, Appellee.
    No. 16661.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 17, 1965.
    Rehearing Denied Oct. 15, 1965.
    Fay W. Prescott, Fort Worth, for appellant.
    Strasburger, Price, Kelton, Miller & Martin, and Gordon MacDowell and Royal H. Brin, Jr., Dallas, for appellee.
   RENFRO, Justice.

From a judgment denying plaintiff recovery of $512.55 for medical services received by his wife more than a year after she was injured in an automobile accident, plaintiff appealed.

The standard medical payment clause of the insurance policy involved reads as follows i

“To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services: * * *»

Material stipulated facts were:

“That on February 17, 1960, while said policy of insurance was in full force and effect, plaintiff’s wife, Euna Marroquin, sustained bodily injuries, sickness and disease which were caused by accident while she was occupying the insured automobile.
“That within one year from February 17, 1960, the date of said accident, the said Euna Marroquin was furnished and received medical, surgical, X-ray, ambulance, hospital, and professional nursing services for bodily injuries, sickness and disease sustained by her in said accident, and proximately resulting therefrom, which were necessary because of said accident, of the reasonable value of $2,204.05, which sum defendant paid to plaintiff within one year from February 17, 1960, the date of said accident; that all of such services were furnished to and used by said Euna Marroquin within one year from February 17, 1960. * * *
“That between the dates of December 8, 1961, and December 18, 1961, all more than one year from February 17, 1960, the date of said accident, the said Euna Marroquin required and received further medical and hospital services for bodily injury, sickness and disease sustained by her in said accident of February 17, 1960, and proximately resulting from said accident, and made necessary thereby, the reasonable value of which is the sum of $512.55, which sum was paid by plaintiff more than one year after the date of said accident; that neither plaintiff nor said Euna Marroquin contemplated that said Euna Marroquin would require any such services after the period of one year from the date of said accident, and neither party made any contract or arrangement within one year from said accident for any of such services, but all of such services were contracted and arranged for by said parties after the period of one year had elapsed from February 17, 1960, the date of said accident, and all of same were paid for by plaintiff after such time.”

Judgment was rendered for defendant.

Plaintiff relies upon Maryland Casualty Company v. Thomas, Tex.Civ.App., 289 S.W.2d 652. In the Thomas case a nine year old boy was injured in an automobile accident. Extensive dental work was necessary but, because of the age of the boy and the necessity of a bridge, the work could not be done until he had permanent teéth to which a bridge could be anchored. Within one year following the date of the accident, the father of the boy contracted with and paid a fixed amount to a dentist for the services to be rendered. Under such facts, it was held that the expenses had been “incurred” within the one year period.

In the instant case, however, the stipulations show that, as of the time the one year period from the date of the accident had expired, no further medical expenses were contemplated, planned, contracted for or paid; nor was it known by either party that plaintiff’s wife would require any further treatment resulting in medical expenses.

In our opinion in order to hold defendant liable for the $512.55 we would necessarily have to re-write the provision “to pay all reasonable expenses incurred within one year from the date of the accident * * * ” to read, “to pay all reasonable expenses incurred from the date of accident * * Czarnecki v. American Indemnity Company, 259 N.C. 718, 131 S.E.2d 347 (1963).

Since the provision in the policy is valid and unambiguous, we hold that under the undisputed facts in -this case the medical expenses which arose approximately twenty-two months after the accident were not expenses incurred within one year from date of accident. Our view is supported by Herold v. Aetna Life Insurance Co., 77 S.W.2d 1060 (El Paso Civ.App.1935, no writ hist.); Drobne v. Aetna Casualty & Surety Co., 115 N.E.2d 589 (Ohio App., 1950); Pilot Life Insurance Co. v. Stephens, 97 Ga.App. 529, 103 S.E.2d 651 (1958).

The judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    Sharon Ann SAILES, Appellant, v. Frank Joseph SAILES, Appellee.
    No. 6752.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 16, 1965.
    Jim S. Phelps, Houston, for appellant.
    Sexton & Owens, Orange, for appellee.
   STEPHENSON, Justice.

This is an action for divorce. The only issue involved on appeal is the attorney’s fee. Frank Sailes brought suit for divorce. Sharon Ann Sailes defended and asked for $500.00 attorney’s fee. Trial was by jury, and judgment was for defendant based upon the answers of the jury, denying the divorce.

The jury found that defendant was not without separate funds and estate with which to pay her attorney, that the suit was defended in good faith and that $300.00 was a reasonable attorney’s fee. The judgment of the trial court contained the following :

“It further appearing to the Court that, under the verdict of the jury, Defendant, Sharon Ann Sailes, was not without sufficient separate funds and estate with which to employ counsel to represent her; and the verdict of the jury further failing to- find any necessity for an assessment of attorneys fees' of plaintiff m order to enable defendant to defend this action; and the jury further failing to find that plaintiff should pay defendant’s attorney’s fees; and the Court having considered the pleadings and evidence in this cause and being of the opinion that the awarding of attorney’s fees to counsel for defendant is not, and was not, necessary to enable defendant to employ counsel to represent her rights; it is, therefore:
“ORDERED, ADJUDGED and DECREED that Defendant is denied judgment against Plaintiff for attorney’s fees.”

The record before us contains no statement of facts. The parties will be referred to here as they were in the trial court.

Defendant contends her attorney’s fee was a “necessity” as a matter of law, and that she was entitled to recover the amount found by the jury, inasmuch as the jury found she defended in good faith. This point is overruled. In order to recover attorney’s fees in a divorce action, in addition to proving that the action is defended in good faith and that the amount of the fee is reasonable, the defendant was required to prove the requested attorney’s fee was necessary for her to prosecute her defense. Earnest v. Earnest, Tex.Civ.App., 223 S.W.2d 681.

The allowance of an attorney’s fee in a divorce action involves the sound discretion of the trial court which is not to be reviewed on appeal in the absence of allegations as to abuse of discretion. The allowance of such fee involves a consideration by the trial court of such matters as the relative income of the parties and their ability to pay such fee. Allen v. Allen, Tex.Civ.App., 363 S.W.2d 312. In the absence of a statement of facts every presumption must be indulged in favor of the judgment. It is therefore presumed there was evidence to support the finding of the trial court that such attorney’s fee was not necessary under the facts of this case.

Judgment affirmed.


author: NYE, Justice.

text:
    Joe SIMON et al., Appellants, v. George W. HENRICHSON, Dave Sughrue and wife, Clytee Sughrue, Appellees.
    No. 114.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 23, 1965.
    Rehearing Denied Oct. 14, 1965.

      Robert L. Bunting, Jr., Corpus Christi, for appellants.
    Alfred Nicholas, of Horkin, Nicolas & Nicolas, Corpus Christi, for appellees.
   NYE, Justice.

Appellees, as plaintiffs in the trial court, brought suit seeking a declaratory judgment removing residential deed restrictions from their property in Corpus Christi, Texas. There were twenty-five named defendants as owners of lots in the subdivision, who were sued in their individual capacity and as representatives of all classes of other property owners within the subdivision. The trial was before a jury which answered special issues favorable to plaintiffs. Judgment was rendered cancelling the restriction. The appellants (defendants) have perfected this appeal.

Primarily, the question for us to determine is whether or not the issues submitted to the jury and the evidence upon which the issues were answered are sufficient to permit affirmative relief as sought by the plaintiffs in the trial court.

The plaintiffs have more of an onerous burden in obtaining affirmative relief to remove the restrictive covenants against their property and to establish the invalidity of such restrictions, than a property owner has in defending a suit brought by one or more owners of lots in a restricted subdivision to enjoin him from violating such restrictions. In the latter class of cases, regardless of the ruling on the injunction, the restriction is not removed, even if the violation as it exists, continues; whereas, as in this case, the removal of the restriction as a cloud on the title, nullifies it for all time. The courts, consequently demand much stronger proof for obtaining affirmative relief than for prescribing in-junctive relief.

The jury found in response to special issues submitted that: Lots 1 and 2 in Block 2 have been rendered reasonably unsuitable for exclusively residential purposes because of changes in the addition in the area of the lots and the area surrounding the addition; that a majority of the residential owners in the addition have waived the right they may have had to- prevent the use of Lots 1 and 2 for business purposes; that the removal of restrictions on Lots 1 and 2 would not prove harmful to resident owners; and that changes in the addition in the area of Lots 1 and 2 and the area surrounding said addition have not materially damaged the scheme of development of the balance of the addition for residential purposes. Judgment was rendered removing the residential restriction only from plaintiffs’ Lots 1 and 2, Block 2, Edgewater Terrace Addition.

Originally, in 1938, the subdivision was platted to permit a business community along the water side of Ocean Drive, to include commercial property for a business community center on six lots at the extreme south end of the addition. Deed restrictions were filed contemporaneously with the original plat to limit business to these six lots and restricting all of the balance of the lots in the subdivision to residential use. The following year the subdivision was re-platted deleting three lots on the water side of Ocean Drive, leaving only three lots designated as business area. No change or amendment to the deed restrictions was made reducing the business lots from six to three. The second plat made radical changes in the addition, including the bringing along of Alameda Street to intersect at this point with Ocean Drive. This is a very busy thoroughfare, running parallel to Ocean Drive for many miles exeept at this point where it intersects with Ocean Drive. Plaintiffs’ lots are at this intersection and across the street on Ocean Drive from the business community. They are in effect a portion of an island, segregated from the rest of the subdivision. On the north from plaintiffs’ property is Ocean Drive and the commercial business center. On the east is Oso Bay and the salt flats. On the west is Alameda Drive and the bulk of the residential subdivision. To the south, including the balance of Block 2, are residential restricted lots, vacant and never developed in the twenty-seven years that this subdivision has been in existence. There are some 250 lots within the subdivision, almost all of which have been developed, save and except, the residential lots in Block 2, which join plaintiffs’ property and front on Alameda and Ennis Jos-lin Road and which back up to the Oso Bay salt flats. We have prepared and inserted a plat that is not the reproduction of any particular exhibit in the record, nor has such plat been drawn to scale. However, we believe that the particular facts concerning the situation around plaintiffs’ property can be more readily understood by reference to the plat.

One of the original owners who platted the subdivision stated that plaintiffs’ lots were originally intended to be included in the business community. However, he testified that the three lots deleted from the original platting of -the subdivision were turned back to the original land owners and that the plaintiffs’ property was never a part of the six original lots included in the community center. The evidence is clear and uncontroverted that plaintiffs’ property was originally sold in 1941 for business purposes. Plaintiffs’ lot were developed, and business establishments placed thereon with the expressed consent and approval of the original owners and sub-dividers. The plaintiffs testified that they purchased the property and an already going business in 1945, without actual knowledge of the -existence of the deed restrictions. They continued the operation of businesses on the lots from that time until the present. The property, since its purchase, has been annexed to the City of Corpus Christi, zoned for neighborhood business and taxed as business property. There was no evidence that any of the property owners within the addition objected to the business zoning at the time it was zoned.

All of the appellants admitted that they never objected to the business use of the property. There was no evidence that anyone ever objected during the twenty-five years that the .property in question had been used for business purposes. Many of the witnesses admitted using and patronizing the plaintiffs’ businesses. No objections to the removal of the restrictions were voiced by the mortgage companies.

Appellants’ first three points (1) that they are entitled to a judgment as a matter of law because plaintiffs did not allege or prove that the benefits of the original plan for a restricted subdivision could not be realized for the protection of the interior lots, notwithstanding that plaintiffs might be deprived of their valuable use of their property and (2) that the only violations of restrictions in the subdivision were brought about by plaintiffs and their predecessors in title and they may not take advantage of their own wrongdoing, and (3) plaintiffs may not complain of changes that took place before they purchased the property for they knew (constructively) when they purchased the property that the buildings located thereon were in violation of the restrictive covenants limiting them to residential purposes.

This is not a suit to enjoin the violation of restrictions, but it is a suit by lot owners to cancel the deed restrictions as to their lots based upon changed conditions within and without the restricted areas. With the adoption of the declaratory judgment statutes, the courts entertain suits to remove restrictions as a cloud on title.

One of the most noteworthy development in the last half century in the field of equitable servitudes is the doctrine that such servitudes become unenforceable, when, because of changes in the neighborhood, their purposes can no longer be realized. See 50 Harvard L. Review, page 216. In American Law Reports, it is said that:

“Most jurisdictions now recognize a change in the character of the neighborhood as a ground for affirmative relief against restrictive covenants by way of cancelation or modification where the change has been so radical as to render perpetuation of the restriction. of no substantial benefit to the dominant estate, and to defeat the object or purpose of the restriction.” See 4 A.L.R.2d 1118, and cases cited thetein.

The factors which would permit relief from the -restrictive covenants depend upon a number of things (1) including the size of the restrictive area, (2) its location with respect to whether the change has occurred, (3) the type of change that has taken place, "(4) the character and conduct of the parties or their predecessors in title, (5) the purpose for which the restrictions were imposed, (6) to some extent the unexpired term of the restrictions. (NOTE) The courts give greater weight to changes occurring within the subdivision than those occurring without the restricted area. Lebo v. Johnson, 349 S.W.2d 744 (Tex.Civ.App. 1961, ref. n. r. e.).

The rule is plain and the difficulty arises only when it is necessary to apply the rule to the particular facts of a case. The facts are always different and no two cases are exactly alike. Each case must be decided largely upon its own facts. No hard and fast rule can be laid down as to just when the facts justify the granting of affirmative relief removing the restrictions. Lebo v. Johnson, supra.

A good point to begin with, to see if this case comes within the factors announced above is to first consider the concession made by the appellants. They concede in their brief that they are not entitled to injunctive relief against the plaintiffs; that the plaintiffs’ businesses have worked well for twenty years; that they have no complaint of the present business on this property and that they admit that the businesses had been there too long for them to obtain injunctive relief. There are some rules that may be applied to both the injunc-tive cases and those which seek affirmative relief. In the case of Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943 (1958), the Supreme Court laid down certain rules of law by which a court of equity must be guided in determining whether to enforce a residential only restriction:

“It may refuse to enforce it because of the acquiescence of the lot owners in such substantial violations within the restricted area as to amount to an abandonment of the covenant or a waiver of the right to enforce it. (Citing cases.)
“It may also refuse to enforce it because there has been such a change of conditions in the restricted area or surrounding it that it is no longer possible to secure in a substantial degree the benefits sought to be realized through the covenant.” (Citing authorities.)

Appellants’ concessions admit to a portion of the rules hereby laid down.

Let us now consider the evidence as to the change of conditions within and without the subdivision. The jury in answer to Special Issues 2 and 3 found that Lots 1 and 2 had been rehder-ed unsuitable for residential purposes because of changes in the subdivision, in the area of the lots in question, and in the area surrounding the addition. The lots in question were developed and improved as business property representing a large investment to the plaintiffs with the full consent and acquiescence of the original owners and all subsequent owners. Plaintiffs testified that extensive business improvements were placed on the property after they purchased the land, including remodeling of the buildings and improving the land. The property was worth considerably more as business property than as residential. The City rezoned the property for business purposes. The property has a very extensive traffic pattern on three streets surrounding it on two sides: (1) Ocean Drive carrying traffic to and from the U. S. Naval Air Station and the University of Corpus Christi and to and from Downtown and Midtown Corpus Christi; and the other (2) a main arterial road to and from Flour Bluff and Padre Island (Ennis Joslin Road) and an alternate route to Midtown and Downtown Corpus Christi (Alameda). Although the subdivision is almost completely developed, not a single residence was built in Block 2 where appellees’ property is located. These lots in Block 2 front Alameda and Ennis Joslin Road and back up to the Oso Bay and salt flats. (See attached plat). The testimony showed that blowing sand from the salt flats and unwelcome odors from a nearby sewage disposal plant render the appellees’ property unsuitable for residential purposes. A fishing pier located across the street from appellees’ property and on the -edge of Oso Bay contributes to its undesirability for residential purposes. We recognize that -the change of zoning and the relative disproportion of value are not sufficient by themselves to constitute such a change as would warrant the removal of the valid restrictions. Stewart v. Valenta, 361 S.W.2d 910 (Tex.Civ.App.1962, ref. n. r. e.). However, considered along with the other changes that have taken place, within and without the subdivision, we hold that there is suficient evidence of radical changes that will permit the removal of the restriction from appellees’ property. We do not give weight to appellees’ testimony that they had no actual knowledge of the deed restrictions at the time they purchased the property because constructive notice was sufficient. However, it is clear to us that the original owners likewise overlooked such constructive notice when they sold the property originally for business purposes (25 years ago) and no objection was made by any owner to the uses placed on the property by the plaintiffs and their predecessors in title. The deed restrictions also provided for the property to revert to the owner where a violation of the restrictions occurred. No reversion-ary rights have ever been claimed. One or more witnesses (property owners within the subdivision) testified that they did not know that the appellees’ property was even within the subdivision. As stated by Chief Justice Murray in the case of Lebo v. Johnson, supra, the property of the appellees cut off from the rest of the area can, for all practical purposes, be considered as no longer a part of the restricted area. We likewise agree with his statement that “One of the best places to hold the encroachment of business and commerce upon a restricted residential area is at a highway or street.” This, we believe, has taken place here. There are other factors that distinguish this case from the Lebo v. Johnson case. In the Lebo case, the Court said that:

“Appellants and other persons testified (1) that they purchased, constructed homes, or loaned money upon appellants’ property, after -investigation and in reliance upon the restrictions” ;

(here, some property owners did not even know that plaintiffs’ property was within the subdivision; the mortgage companies had no objection; and all of appellants purchased their property after the business was established on plaintiffs’ prop-ery);

“(2) that the destruction of restrictions, and the erection of business structures as requested by appellees, would seriously affect the beneficial use of appellants’ property”;

(here, there was testimony that the business use would enhance the property surrounding the plaintiffs’ property and the jury found that the removal would not be harmful);

“and (3) that no business structures of any kind had ever been erected in the Terrell Hills Subdivision.”;

(here, plaintiffs’ business had been erected, operated, and patronized by subdivision owners for over twenty-five years). Plaintiffs do not rely exclusively upon changes that took place prior to their purchase of the property as the changes were continuous throughout the years. Under the facts before us, appellants’ points are without merit and therefore overruled.

Appellants’ fourth point complains that the trial court erred in not rendering judgment for the appellants based on the answer to Special Issue No. 1 that the owners did not intend at the time of the adoption of the restrictions -that Lots 1 and 2 in Block 2 be reserved for business purposes and uses. We overrule this -point as it is understandable that the jury would find that in 1938 when the deed restrictions were filed, that Lots 1 and 2 were not to be designated as a commercial center. The deed restrictions were filed (in 1938) at the time of the filing of the original plat when six lots were to be included for business purposes. The issue has no ultimate effect on this case, because the plat of the subdivision was subsequently modified deleting three lots and filed in 1939, without amending the restrictions. The appellants and plaintiffs purchased their property after 1939.

Appellants’ fifth and sixth points complain of the submission of the issue of waiver to the jury and of the court’s definition of “waiver”. The jury found that a majority of the resident owners of Edgewater Terrace Addition waived the right they may have had to prevent the use of Lots 1 and 2 of Block 2 for business purposes. The court defined the term “waiver” as meaning the “intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right.” Appellees do not rely on waiver and abandonment of the entire scheme of development, nor do they ask for the removal of the deed restrictions on the entire subdivision. Their position is: that only the residential restriction has been waived and abandoned as to Lots 1 and 2, Block 2, and that this is permissible under the law * * * parties may abandon a scheme of restrictions as to part of their property, and maintain it as to other portions. 26 C.J.S. Deeds § 169, page 1166. Appellants argue that there can be no waiver until the entire scheme or plan of the subdivision has been violated to such an extent that it is in fact abandoned. Such conclusion is partially correct. Where a landowner who has never used his property for business seeks to have the restriction removed, relying on the violations elsewhere in the addition, then the rule must show such extensive violations as to amount to abandonment of the whole scheme of development. See 26 C.J.S. § 169. We hold that the court’s definition is substantially correct and presents no harm. Appellants’ contention that the deed restrictions do not permit a waiver is without merit. There is ample evidence, that the appellants have abandoned the residential restriction as it applies to these plaintiffs’ property. Appellants’ fifth and sixth points are overruled.

Appellants’ seventh point is multifarious and does not comply with the briefing rules. It relates to the sufficiency of evidence to the jury’s answer to Special Issues 2 and 3 concerning the unsuitability for exclusively residential uses of the plaintiffs’ property because of changes in this addition in the area of the lots in question and in the area surrounding the addition occurring since July 7, 1938, and the lack of pleading to support the issue. We have set out much of the evidence and have read the entire statement of facts and the transcript, and find that the evidence and pleadings are sufficient. Golden State Mutual Life Insurance Co. v. White, Tex.Civ.App.1964, 374 S.W.2d 901, ref. n. r. e. Appellants’ seventh point is overruled.

Appellants’ eighth and ninth points complain that there is no evidence to support the findings in Special Issues 6 and 7. The jury answered Special Issues 6 and 7 to the effect that the removal of the restrictions on Lots 1 and 2 in Block 2 would not prove harmful to the resident owners. Appellants admit that these issues were submitted by them. However, they argue that they are not bound by the issues submitted under Rule 279, Texas Rules of Civil Procedure, where there was insufficient evidence to warrant the submission of such issue. Objection of no evidence can be made for the first time after verdict, regardless of whether the submission of such issue was requested by the complaining party or not. Rule 279, T.R.C.P. Complaint after verdict as made herein, that the.-, evidence was insufficient to warrant the submission of the issue is, of course, just another way of saying that there was no evidence to raise the issue. It is apparent that the word “insufficient” in Rule 279, T.R.C.P., is not used in the factual sense of insufficiency to support a finding which the jury has made. Myers v. Crenshaw, 134 Tex. 500, 137 S.W.2d 7, Opinion adopted by Supreme Court (1940).

The record shows that witness Henrich-son testified that residents property would increase in value if a business establishment is properly put in, according to code and zoning laws. He stated that it would increase the value of the residential property. He further testified that the residents that were faced up to the business and the residents of Edgewater Terrace across the street from the business would be enhanced. Witness Quaile stated that business property would be a benefit to the resident property owners. He was asked this question:

“In view of that knowledge and your experience in that business (a real estate man and resident of the City of Corpus Christi for forty years) would you tell us what would be the best use for these lots here on the corner (Lots 1 and 2) * *
Answer: “I would says Lots 1 and 2 (the property in question) originally intended for business, should be business. Be convenient for the neighborhood.” (Emphasis supplied.)

Other witnesses testified that they had no objection to the present business; that the business was convenient to their use; that they traded and patronized the business of the plaintiffs.

In Myers v. Minnick, Tex.Civ.App., 187 S.W.2d 941, Justice Norvell, now of our Supreme Court, said:

“Under this provision of the rule, appellant, despite his failure to object to the submission of Special Issue No. 1, may here present his contention that the jury’s answer to Special Issue No. 1 is without support in the evidence. This contention was efficiently raised in appellant’s motion for new trial * * * »

We have carefully examined the testimony and have concluded that there was ample evidence to warrant the submission of the issues. Meek v. Bower, 333 S.W.2d 175, Tex.Civ.App.1960; Holt v. Purviance, 347 S.W.2d 321, Tex.Civ.App.1961, ref. n. r. e.; Dial Temp Air Conditioning Company v. Faulhaber, 340 S.W.2d 82, Tex.Civ.App.1960, ref. n. r. e.; 4 McDonald Texas Civil Practice § 18.14, page 1456; Golden State Mutual Life Insurance Co. v. White, supra.

The jury found that changes in the Edge-water Terrace Addition since 1938 in the area of lots numbered 1 and 2 of Block No. 2 and the areas surrounding said addition had not materially damaged the scheme of development of the balance of Edgewater Terrace Addition for residential purposes. No objection was made to this issue whatsoever on appeal and no point of error is assigned to this issue.

Where, as in this case, plaintiffs’ lots had been rendered reasonably unsuitable for residential purposes; and where the evidence is such that all of the property owners individually and as members of a class have abandoned their right to prevent the appellees’ lots from being used for business purposes; and where the evidence is sufficient to uphold the jury finding that the removal of the restriction would not prove harmful to the residential owners; and where the changes in and around ap-pellees’ lots have not materially damaged the scheme of development of the balance of the addition for residential purposes; and where the appellants have admitted that they have no right to injunctive relief, and from all of the other particular factors present in this case, we hold that the trial court was justified in rendering judgment removing the restrictions from plaintiffs’ property.

Judgment of the trial court is affirmed.