author: HUGHES, Justice.

text:
    E. H. RANKIN, d/b/a Rankin Automotive Transmissions, Appellant, v. James CLEMONS, Appellee.
    No. 10978.
    Court of Civil Appeals of Texas. Austin.
    June 6, 1962.
    Rehearing Denied June 27, 1962.
    Bruce Waitz and Leslie J. Bretz, San Antonio, for appellant.
    Robert Mueller and E. Richard Criss. Jr., Austin, for appellee.
   HUGHES, Justice.

Appellant, E. H. Rankin, d/b/a Rankin Automotive Transmissions, filed suit in the nature of a Bill of Review to vacate a default judgment rendered against him in the Court below in favor of appellee, James Clemons, in Cause No. 121,271, on the docket of such Court. Such suit was for conversion of an automobile and for damages. In this proceeding, the Trial Court granted appellee’s motion for summary judgment.

The default judgment suit was filed March 8, 1961. Appellant was served March 9, 1961. On March 16, 1961, appellant telephoned Mr. E. Richard Criss, Jr., appellee’s attorney who filed such suit. We copy from the affidavit of Mr. Criss regarding this call:

“Mr. Rankin informed me that he had been served with citation in the above mentioned case. Mr. Rankin informed me that Mr. Clemons owed him a repair bill on the Buick in question. I told Mr. Rankin that I was aware of this fact. Mr. Rankin stated to me that he would like to settle this matter by returning the Buick to Mr. Clemons and forget about the repair charges. I stated to Mr. Rankin that I had no authority to settle the suit on such a basis, but that I would contact Mr. Clemons and talk to him about it.
“Pursuant to this telephone conversation with Mr. Rankin, I subsequently talked to my client, Mr. Clemons, in regard to a settlement. On my advice, Mr. Clemons rejected the offer of Mr. Rankin and authorized me to settle the case for $3,000.00 cash. That as a result of my conversation with Mr. Clemons and the prior telephone conversation with Mr. Rankin, I wrote a letter to Mr. Rankin on the 23rd day of March, 1961, * * * ”

The letter referred to by Mr. Criss is as follows:

“Mr. E. H. Rankin
“Rankin Automotive Transmission
“90S Olmos Drive
“San Antonio, Texas
“In re: James Clemons v. E.
H. Rankin, dba Rankin Automotive Transmission, Cause No. 121,271, 53rd District Court, Travis County, Texas
“Dear Mr. Rankin:
“I have talked to Mr. Clemons in regard to a settlement of the above lawsuit and Mr. Clemons has informed me that he does not wish to have the car returned to him but would prefer to have some cash settlement made.
“I have recommended to Mr. Clemons that he take the sum of $3,-000.00 cash as a cash settlement for your liability to him in regard to this matter. Because of Mr. Clemons’ insistence that some cash payment be made to him, I do not think that you will be able to settle the lawsuit by merely returning the car to him.
“Please let me hear from you at your earliest convenience as to whether or not this cash settlement or some other cash settlement could possibly be worked out.
“Sincerely,
“s/E. Richard Criss, Jr.”

Appellant was required to answer in such suit by April 3, 1961. Default judgment was taken May 4, 1961. Mr. Criss, in his affidavit, disclaimed any other communication with appellant or any representative of his prior to taking default judgment, except as hereinabove stated.

Appellant filed an affidavit in opposition to the motion for summary judgment in which he stated:

“That my failure to answer in Cause No. 121,271, styled James Clemons vs. E. H. Rankin, dba Rankin Automatic Transmission, was not intentional, the result of negligence or the result of conscious indifference on my part, but was due to accident or mistake in that, upon being served with citation in said cause, I immediately handed the same to the General Manager of my business, James Coppedge, and instructed him to mail the citation to my attorney, Alexander Fraser, of San Antonio, Texas. That, through inadvertence or oversight on the part of James Cop-pedge, the citation became misplaced and was not forwarded to said attorney as I directed until after a default judgment was rendered against me. That I labored under the mistaken, but honest, belief that the matter had been referred to my said attorney and felt that I would thereafter be notified of any action taken in said case. That I have a meritorious defense to said suit and would not knowingly have permitted a judgment to be taken against me by-default. I did not know that such a judgment was rendered against me until on or about the 8th day of June, 1961. That I caused to be filed herein the petition for a Bill of Review on the 15th day of June, 1961.”

Appellant also swore to facts which would constitute a meritorious defense to the suit against him.

Appellant, by supplementary affidavits, also swore:

“That, on the 16th day of March, 1961, and after the filing of Cause No. 121,271, styled James Clemons vs. E. H. Rankin, dba Rankin Automatic Transmission, on the Docket of this Court, I made a long distance telephone call from San Antonio, Texas, and talked to one of the attorneys of record for James Clemons in Austin, Texas, regarding the suit filed against me. I told the attorney that Mr. Clemons owed me money on the repair of said car. I then told the attorney that rather than get into a contest on the matter that I would turn the car over to the said Clemons and cancel the repair charges on this automobile. Said attorney stated that he would talk to his client and let me know. I then received a letter from the attorneys for Mr. Clemons dated March 23, 1961, a copy of which is attached to Plaintiff’s First Amended Original Petition for Bill of Review on file herein and is marked Exhibit ‘E’ which is self-explanatory and to which reference is here made.
That, by reason of said letter, I was led to believe that a settlement of said cause was possible and could he worked out. Said letter requested that I let the attorney hear from me at my earliest convenience as to whether or not ‘this cash settlement or some other cash settlement could possibly be worked out.’ That thereafter a default judgment was rendered in said cause against me without further notice from said attorneys.
That by virtue of my conversation with the said E. Richard Criss, Jr., and particularly by virtue of his statement to me that he would talk to Mr. Clemons about a settlement, I was led to believe and did believe that a settlement would be worked out in this case and that there was no necessity for me to follow up the forwarding of said citation to my own attorney and make sure that he had received same.”

Appellant’s general manager, Mr. James Coppedge, made affidavit stating:

“That, on or about said date, [Mar. 9, 1961] Mr. Rankin was served with citation in Cause No. 121,271, styled James Clemons vs. E. H. Rankin, dba Rankin Automatic Transmission. That, at that time, Mr. Rankin handed me the citation, together with a copy of Plaintiff’s petition attached, and directed me to mail the same to his attorney, who, at that time, was Mr. Alex Fraser of San Antonio, Texas. That I took the citation so handed me by Mr. Rankin and placed it in a drawer in my desk, fully intending to mail same to Mr. Fraser and feeling that I had ample time and that there was no particular hurry. That, thereafter, I became busy with office routine and the matter of getting the citation to the lawyer escaped me. I had completely forgotten about it. That, thereafter, some correspondence was received at the place of business relative to this matter,, which I promptly forwarded to Attorney Fraser, at which time I did not include the citation because I thought that I had already forwarded the same to the attorney. That it was not until a copy of the judgment was received from the attorney for Mr. Clemons that it was discovered that I had failed to mail the citation to Mr. Rankin’s attorney as I had been directed to do, and that the same was still in the drawer where I had placed it. It was-not until then that I delivered it to Mr. Fraser and Mr. Rankin learned that I had not mailed the same as he had previously directed.”

In Alexander v. Hagedorn, 148 Tex. 565,, 226 S.W.2d 996, the requisites for successfully maintaining a Bill of Review were stated to be: “(1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.”

It is our opinion that appellant fails to meet the last two requirements. His failure to answer was wholly due to the carelessness of his general manager for which appellant is responsible. Agency, Sec. 2, Vol. 2, Tex.Jur.2d.

It also conclusively appears that appellant’s failure to answer was not due to fraud, accident or wrongful act of ap-pellee.

We understand appellant to contend that he was lulled into a sense of security by the letter from Mr. Criss dated March 23rd. This letter, instead of acting as a tranquilizer, it seems to us, should have sounded the alarm that a substantial and dangerous claim was being prosecuted and that the dispute was no longer confined to the mere collection of a repair bill. The letter should have shocked appellant into action. Instead, he did nothing before default judgment was rendered some 42 days later.

It is our opinion that no issue of fact was presented by the pleadings and affidavits on file and that the Trial Court correctly granted appellee’s motion for summary judgment, and such judgment is affirmed.

      . Our cause No. 10,979, between the same parties, this day decided, Tex.Civ.App., 358 S.W.2d 704, is an appeal by writ of error from the same judgment involved herein.


source: Caselaw Access Project

author: ARCHER, Chief Justice.

license: Public Domain

text:
    E. H. RANKIN, d/b/a Rankin Automotive Transmissions, Appellant, v. James CLEMONS, Appellee.
    No. 10979.
    Court of Civil Appeals of Texas. Austin.
    June 6, 1962.
    Supplemental Opinion June 20, 1962.
    Rehearing Denied June 27, 1962.
    See also 358 S.W.2d 701.
    Bruce Waitz and Leslie J. Bretz, San Antonio, for appellant.
    Robert Mueller and E. Richard Criss, Jr., Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal, by Writ of Error, from a default judgment in the amount of $4,445.00, for the conversion of an automobile.

Appellee, as plaintiff, alleged that he was the owner of an automobile on or about February 3, 1960, which was in need of certain repairs and that he contacted Lee Ball, who, he alleged to be a representative of E. H. Rankin conducting business under the name of Rankin Automotive Transmissions, in Bexar County, Texas.

Appellee further alleged that he made an agreement with Mr. Ball to pay between $100.00 and $125.00 as the costs of rebuilding the transmission in the automobile, and to pay such amount in payments of $5.00 per week; that Mr. Ball called appellee and informed him that the automobile was ready and that the final ■costs were $330.00 cash; further allegations were that the fair market value of the automobile in Austin, Texas was $2,-000.00 and that the automobile had been removed from Austin, Texas to a place unknown to plaintiff and the acts of the defendant were done with a wilful and malicious intent to force plaintiff to pay an unreasonable charge for the repairs, and sought damages in the sum of $2,000.00 as the value of the automobile, $1,125.00 as special damages, and a further sum of $3,000.00 as exemplary damages.

Service was had by citation but the defendant did not appear or answer. On June 4, 1961, a judgment by default was rendered for plaintiff against E. H. Rankin, defendant, for the sum of $2,000.00 as actual damages, the sum of $945.00 as special damages, the further sum of $1,500.00 as punitive damages, and for 6% interest and costs. There is no record of the proceedings since the court reporter was not present.

On November 1, 1961, the defendant made request of the Court to file in writing findings of facts, and on the same date filed a petition for writ of error, setting out the default judgment, and stated that there were divers and manifold errors in the proceedings and that the petitioner desired to remove such judgment for revision and correction to the Court of Civil Appeals, and filed his bond.

On December 6, 1961, the Trial Judge filed findings of fact and conclusions of law that the plaintiff was the owner of a Buick automobile and that on February 3, 1960, appellee’s general manager agreed to repair the automobile for $60.00 to be paid at the rate of $5.00 weekly; that on the 6th day of February, 1960, defendant’s general manager informed plaintiff that the cost of the repairs would be approximately $100.00 and plaintiff accepted the revised cost to be paid $5.00 weekly; that on February 13, 1960, plaintiff called for the car and was told that the costs were $330.00 and had to be paid in cash before the automobile would be released; that the sum of $330.00 was an unreasonable charge; that the fair market value of the automobile was $2,000.00; that plaintiff was required to use other methods of transportation and actually spent the sum of $925.00 for such transportation, which amount was reasonable; that the refusal of defendant to return the automobile was wilful and malicious to coerce plaintiff into paying for the repair service sooner than he had contracted; that the sum of $1,-500.00 is a reasonable amount as exemplary damages. The Court concluded as a matter of law that defendant had converted the automobile. We believe that the Trial Court, having heard the testimony, and in the absence of a written record, that the Judge’s findings must be taken as correct.

The appeal is founded on seven points of error and are that the Court erred in awarding punitive damages because there was no pleading or proof to support such; that the award of $945.00 as special damages is excessive; that the award of $2,'-000.00 as actual damages was not established by competent evidence and is excessive; and that the award of $1,500.00 exemplary damages is not sustained by any proof as to the justness thereof.

This suit was instituted on March 7, 1961 and citation was served on E. H. Rankin on the 9th day of March, 1961, but no answer was made by Rankin and judgment by default was rendered and entered on the 4th day of May, 1961 for the amounts hereinabove set out.

Appellant’s petition for writ of error was filed on the 1st day of November, 1961, in which the judgment was incorporated, and alleged that there were manifold errors in the proceedings and sought relief, executed a bond, etc.

We believe that the Court was in error in allowing $945.00 as special damages and appellee has filed herein a re-mittitur of this sum.

We believe that plaintiff’s petition was sufficient to support a default judgment for the damages and was good as against a general demurrer, as was formerly in use and that the only fact issue before the Court is the amount of damages and that all other issues are determined by the default and matters established by defendant’s default are not subject to review on writ of error from a default judgment.

Rule 243, Texas Rules of Civil Procedure.

25 Tex.Jur. Sec. 41; Maywald Trailer Co. v. Perry, Tex.Civ.App., 238 S.W.2d 826, error ref., N.R.E.

In- our Cause No. 10,978, between the same parties herein, an appeal from a summary judgment, we have set out other similar facts and we will not further recite the proceedings

We believe that the exemplary damages as fixed by the Trial Judge are excessive in the sum of $1250.00, and if the appellee files herein, within 10 days, a remittitur in such amount, the case will be affirmed; otherwise the case will be reversed and remanded.

Rule 439, T.R.C.P.; Missouri Pacific Railroad Co. v. Kimbrell, Tex.Civ.App., 326 S.W.2d 720, affirmed 160 Tex. 542, 334 S.W.2d 283.

In the event such remittitur is filed, appellate costs will be apportioned equally between the parties.

Affirmed on condition.

Supplemental Opinion.

The remittitur called for in our original opinion having been filed by appellee, the judgment of the Trial Court is affirmed.

Affirmed.


text:
    M. W. STAPLES et al., Appellants, v. RAILROAD COMMISSION of Texas et al., Appellees.
    No. 10975.
    Court of Civil Appeals of Texas. Austin.
    June 6, 1962.
    Rehearing Denied June 27, 1962.

      Black & Stayton, Austin, for appellant.
    George W. Hazlett, Cleveland, Ohio, Powell, Rauhut, McGinnis, Reavley & Lochridge, B. D. St. Clair, Larry Temple, Austin, Will Wilson, Atty. Gen., Houghton Brownlee, Jr., Lin ward Shivers, Asst. Attys. Gen., Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from an order granting a summary judgment that the plaintiffs, “M. W. Staples, Trustee, Bartessa Oil Corporation, T. A. Hester, Trustee, and Wynne M. Hill-Smith, take nothing by their suit, that all relief prayed for by said plaintiffs be denied, that defendants, the Railroad Commission of Texas and its members, and the intervenor, Sohio Petroleum Company, recover their costs herein, for which execution may issue, and that all relief sought by any party to this suit, which is not herein granted, is hereby denied.”

In their original petition the appellants alleged that an application was filed with the Commission by the designated operator of a proposed secondary recovery and unit-ization program known as the Spraberry Driver Unit, located in the Spraberry Trend Area Field in Glasscock and three other counties, seeking the Commission’s approval of the program to be conducted according to the provisions of Art. 6008b, Vernon’s Ann.Civ.St.

Plaintiffs alleged that they are and at all times pertinent, the owners of the mineral estate in the East one-half of Section 2, Block 36, Township 5 South, T. & P. R. R. Company Survey in Glasscock County, located immediately adjacent to the eastern boundary of the proposed Unit, and is within the area reasonably defined by development in the Field; that plaintiffs have never in any manner been given an opportunity to enter the proposed Unit upon the same yardstick basis as the owners of other tracts in the Unit, or upon any other basis.

Other allegations were made that upon hearing of the application, plaintiffs appeared and proved each of the matters alleged and that their rights and interests in the Field will not be protected under the operation of the Unit, but will be severely damaged,' and the Commission was requested to refuse to approve the Unit until plaintiffs have been given an opportunity to enter the Unit.

Further allegations were that on August 15, 1960, the Commission approved the Unit and the proposed water flood operation and recognized plaintiffs’ rights only to the extent of providing that water injection wells shall not be located closer than one mile from the Unit boundary unless waivers were had from offset operators, but that such provision would not be effective to eliminate the injuries which they will probably incur as a result of water flood operation. On August 29, 1960, the Commission overruled plaintiffs’ motion for rehearing.

The plaintiffs alleged that the actions of the Commission with respect to the Unit are arbitrary, capricious, illegal and void and in violation of Art. 6008b, V.A.C.S., which requires the Commission to decline approval unless “the rights of the owners of all the interests in the field, whether signers of the unit agreement or not, would be protected under its operation,” and unless “the owners of interests in the oil and gas under each tract of land within the area reasonably defined by development are given an opportunity to enter into such unit upon the same yardstick basis as the owners of interests in the oil and gas under the other tracts in the unit.”

The Commission answered by general denial and that the plaintiffs have ratified the Unit agreement in written instruments and are estopped from bringing the suit; that the plaintiffs have waived any rights they may have had under the provisions of Art. 6008b, supra, by the execution and delivery of written ratification of the Unit agreement, and plaintiffs are each claiming property rights under the Unit agreement and may not now assert that the land claimed outside the Unit area is reasonably defined by production, or that the orders of the Commission are not valid; further, that the owners of interests in the oil and gas tracts of land in the area have been given an opportunity to enter the Unit on the same yardstick basis as the owners of other tracts in the Unit and that the rights of all owners will be protected under the operation of the Unit agreement; that each of these facts were expressly found by the Commission and such facts are reasonably supported by substantial evidence and that the order is reasonably supported by substantial evidence.

The Sohio Petroleum Company as the designated Unit operator filed its petition of intervention alleging the written agreement in the formation in the Spraberry Unit comprising 59,416 acres of land, and that intervenor has been designated as Unit operator and is the owner of substantial interest in the oil, gas and other minerals in the Unit and is an interested party affected by the orders of the Commission and will be adversely affected by an order of the Court setting the order under attack aside.

The intervenor plead estoppel and that the land owned by plaintiffs is not reasonably defined by development, and plead ratification and waiver, etc.

The defendant Railroad Commission and the intervenor filed a motion for summary judgment and as grounds recited in substance the matters alleged in the answers, which motion was sworn to and accompanied by an affidavit by O. D. Hyndman, Secretary of the Commission. Attached to said motion was a letter to intervenor from the Commission approving the Unit and a copy of such order, together with an affidavit of C. H. Burke, Custodian of the Records of intervenor, reciting the formation of the Unit agreement and the Unit operating agreement and ratification of Unit agreement executed by plaintiffs, the hearings before the Commission, and also setting out the sum of money shared by each of the plaintiffs.

Plaintiffs filed their answer to the motion for summary judgment setting out certain reasons why such judgment should not be granted, in substance the allegations in their original petition, duly sworn to, to which was attached an affidavit by Allen E. Humphrey, Vice President of Bartessa Oil Corporation, setting forth allegations concerning the ratification agreements, together with a letter from intervenor advising Mrs. Wynne M. Hill-Smith that according to the records she was the owner of a portion of the working interest in tracts 20 and 24 within the proposed Unit, but in order to be certain Mrs. Hill-Smith was requested to ratify the agreement, and stating that if no reply was had before a given date, the operator would assume that she did not consider her working interest to be committed to the Unit agreement. M. W. Staples, as trustee, made an affidavit concerning the ratification of the Unit and at the time of such ratification on November 17, 1959, neither of the interested parties had any interest in the subject tract.

The motion was heard and the summary judgment granted. The plaintiffs were denied any relief, and it is from this judgment this appeal is taken.

The agreement known as the Spraberry Driver Unit is long and contains many provisions for the formation of the agreement. Article 10 of the agreement is in part as follows:

“Enlargement of Unit Area:
“10.1 Inclusion of Proven Lands. The Unit Area may be enlarged from time to time to include lands that are contiguous with the Unit Area and are reasonably proved to be productive of Unitized Substances, the inclusion of any such lands to be upon such terms and conditions as Working Interest Owners may determine to be proper, subject, however, to the following provisions

In brief, the above provisions are: 10.1.1 must meet one of the requirements specified in Subsections 7.1.1, 7.1.2 and 7.1.3, which requirements provide as follows:

“7.1.1 That this agreement has been executed or ratified by the owner or owners of the entire Working Interest in the Tract, by the owner or owners of at least seventy-five percent of the royalties reserved to the lessor or lessors in the lease or leases (if any) covering the Tract, and by the owner or owners of at least seventy five percent of all other Royalty Interests (if any) in the Tract, or
“7.1.2 That this agreement has been executed or ratified by the owner or owners of at least ninety percent of the Working Interest in the Tract, and that inclusion of the Tract in the Unit Area has been approved by Working Interest Owners having at least sixty-seven percent of the combined voting interests attributable to Tracts included in the Unit Area which meet the requirement specified in Subsection 7.1.1, or
“7.1.3 That at least one owner of Working Interest in the Tract who has executed or ratified this agreement has also executed and delivered an undertaking to indemnify all other Working Interest Owners against liability to each owner of Working Interest in the Tract who has not executed or ratified this agreement, and that such undertaking has been approved by Working Interest Owners having at least sixty-seven percent of the combined voting interests attributable to Tracts included in the Unit Area which meet either the requirement specified in Subsection 7.1.1 or the requirement specified in Subsection 7.1.2.”

The other requirements are concerned with ratification by certain owners of the working interest in the tract. We do not see the need to copy further from the original agreement.

Article 6008b, supra, is the statute authorizing the Commission to approve pooled Units and cooperative facilities in secondary recovery operation, but is too long to copy herein.

Briefly, the Article provides for the approval of agreements by persons owning production, leases, royalties, etc. in separate properties in the same oil field, gas field or oil and gas field, pooled for the purpose of Units necessary to effect secondary recovery operations for oil or gas, including cycling, recycling, flooding, etc., and to establish pooled Units and facilities for extracting the hydrocarbons from the natural gas and returning the dry gas to a formation underlying any lands committed to the agreement.

Further provisions are that such agreements shall not become lawful until the Commission finds that such is necessary to extract the gas or oil under secondary recovery operations; “that it is in the interest of the public welfare as being reasonably necessary to prevent waste, and to promote the conservation of oil or gas or both; and that the rights of the owners of all the interests in the field, whether signers of the unit agreement or not, would be protected under its operation”.

Appellants base their appeal on eight points and are to the effect that the Court erred in granting the summary judgment because there were disputed issues of fact to be determined by a trial on its merits; that the execution of the Unit agreement bound them as to the tracts included therein, and not the rights in the subject tract; that Art. 6008b, V.A.C.S., protects signers as well as nonsigners of a Unit agreement; that appellants are asserting independent statutory rights accruing to them as owners of the tract illegally excluded from the Unit; that appellants are not relying on inconsistent rights; that if the agreement did bind the appellants such is illegal; that appellees did not show any material reliance resulting from the signing of the agreement as owners of the tracts included therein; and that since the Commission is not a party to the agreement on which such defense is based, Sohio, as an inter-venor, cannot raise any issue not available to the original parties.

We do not believe that appellants are estopped to maintain their suit to have the East ½ of Section 2 included in the Unit.

In the agreements, tracts 20 and 24 are included in the Unit agreement. The subject tract (East ½ of Sec. 2) was not owned by appellants at the time of the making of the Unit agreements, by execution or ratification. The owners of the subject tract have never been given an opportunity to enter the Unit on any basis.

In order to sustain a summary judgment based on estoppel, the appellees must grant that appellants are correct on the merits of the case.

As stated in Spence v. State National Bank of El Paso, 5 S.W.2d 754, Comm. App., Sec. B, “ * * * estoppel does not make valid the thing complained of, but merely closes the mouth of the complainant.”

No prejudice has been shown and no estoppel established.

In Faubian v. Busch, Tex.Civ.App., 240 S.W.2d 361, 366, writ ref., N.R.E.:

“ ‘Waiver’ is the intentional relinquishment of a known legal right which is at the time available, and a person cannot waive a right before he is in position to assert it.”

Peoria Life Ins. Co. v. Poynor, Tex.Civ. App., 297 S.W. 788, writ dism.

The principle of estoppel and waiver is not applicable in this case, there being no effort on the part of appellants to enforce some provision of the Unit agreement itself. Perry National Bank v. Eidson, 161 Tex. 340, 340 S.W.2d 483.

This is an appeal from an administrative order of the Commission wherein it was alleged that the order approving the Unit is invalid because the subject tract is not included and the Commission is the only necessary party and the intervenor must take the case as it finds it. The pleas of estoppel and waiver are based entirely on transactions which concern only the appellants and the intervenor Sohio, and the Commission has no independent right to maintain any defense of estoppel or waiver arising out of the execution of the agreement or the performance thereof. Buckner Orphans Home v. Berry, Tex.Civ.App., 332 S.W.2d 771.

Appellees rely upon the execution of the Unit agreement as estopping appellants and have cited a number of cases, such as Gress v. Gress, Tex.Civ.App., 209 S.W.2d 1003, er. ref., N.R.E.; Everett v. Everett, Tex.Civ.App., 309 S.W.2d 893, er. ref., N.R.E., and cases therein cited.

We believe that the Court was in error in granting the summary judgment under the provisions of Rule 166-A, Texas Rules of Civil Procedure.

There were issues alleged by appellants as to the location of the tract, its similarity to the adjoining properties in the Unit and to underground conditions as to oil and gas to be determined, and all doubts as to the existence of a genuine issue as to material fact must be resolved against the party moving for summary judgment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W. 2d 929; Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286.

The judgment of the Trial Court is reversed and remanded.

Reversed and remanded.


author: DAVIS, Justice.

text:
    The STATE of Texas, Appellant, v. The SOUTHEAST TEXAS CHAPTER OF NATIONAL ELECTRICAL CONTRACTOR'S ASSOCIATION et al., Appellees.
    No. 7430.
    Court of Civil Appeals of Texas. Texarkana.
    June 12, 1962.
    Rehearing Denied July 3, 1962.

      Will Wilson, Atty. Gen., Gordon C. Cass, Asst. Atty. Gen., Austin, Joseph Jaworski, Special Asst. Atty. Gen., Houston, Vernon O. Teofan, Asst. Atty. Gen., Austin, for appellant
    Brantley Harris, Butler, Binion, Rice and Cook, Eugene J. Wilson, G. W. McDonald, Combs & Mitchell, Dow Heard, Roberts, Baker, Richards, Elledge & Heard, J. E. Coleman, Fouts, Moore, Williams and Caldwell, Vinson, Elkins, Weems & Searls, LeRoy Jeffers, B. J. Roberts, Jr., Hirsch & Westheimer, W. C. Harvin, Baker, Botts, Shepheard and Coates, Charles E. Kamp, Paul Pomeroy, Jr., Trotter, Cramer and Childs, Houston, for appellees.
   DAVIS, Justice.

Plaintiff-appellant, the State of Texas, on June 18, 1959, filed a civil anti-trust suit under Title 126, Arts. 7426-7447, inclusive, Vernon’s Ann.Tex.Civ.St., and the Constitution of Texas, seeking (1) equitable relief against the parties; (2) for statutory civil penalties; (3) a permanent injunction; and, (4) for a forfeiture of a corporate charter of the Southeast Texas Chapter of National Electrical Contractor’s Association (hereinafter referred to as N.E. C.A.), against N.E.C.A., et al., for certain alleged unlawful operations, conspiracies and practices in restraint of trade committed wholly within Texas.

On January 11, 1960, a Federal Grand Jury of the Southern District of Texas returned a criminal indictment against a number of the defendants in this case, charging them with violations of the Federal anti-trust laws and alleging certain unlawful operations, conspiracies and practices in restraint of trade, and a violation of interstate commerce. The Sherman Actj^ 15 U.S.C.A. § 1 et seq.; Art. 1, U.S.Const. § 8; Art. VI, U.S.Const. § 2.

Certain defendants in this case filed pleas in abatement to the effect that the Federal criminal indictment was based upon the same alleged unlawful operations, conspiracies, and the same interestate commerce as those alleged in the civil action by Texas. The defendants took the position that the Sherman Act had preempted the field in which the Texas anti-trust laws operate, and that only the Federal courts had jurisdiction. The trial court, finding that the suit was not properly severable as to the other defendants, sustained the pleas and dismissed the case as to all the defendants, holding that the Texas State Court was without jurisdiction because of the Federal criminal indictment. From the judgment of dismissal, Texas has perfected its appeal.

The appellant takes the position that the trial court erred in dismissing the case because the state court’s jurisdiction had not been displaced, superseded, or preempted by the Federal criminal indictment, or the Sherman Act.

The United States, by amicus curiae brief takes the position that the Sherman Act does not preempt the field of regulations of interstate trade and commerce, thereby pre-eluding Texas from exercising jurisdiction over the anti-trust matter, in the exercise of its police power.

Texas bases its case upon allegations of unlawful operations and conspiracies for sale and installed prices of electrical equipment, and such operations constitute a fixed, maintained and increased price in violation of the anti-trust laws of Texas.

.; The Federal criminal indictment is based 'upon the same transactions; and, a violation of the interstate commerce laws.

In the civil suit by Texas, the “Houston area” is defined as a “portion of Harris County, and Brazoria and Fort Bend Counties, Texas.” It alleged that N.E.C.A. was a trade association and had a charter from Texas.

The Federal indictment defines the “Houston area” as follows:

“As used herein, the term ‘Houston area’ includes the City of Houston, Texas, and that portion of the State of Texas lying within sixty miles of Houston.”

The Federal indictment further alleged:

“From 75 to 90 percent of the electrical equipment sold and installed in the Houston area is manufactured in states other than Texas and is shipped in interstate commerce from said states to the Houston area for sale and installation therein. In 1956 said interstate commerce was in excess of $6,-000,000.”

There are no findings of fact or conclusions of law by the trial court. It probably based its decision upon the holding in Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640. Three Justices dissented. Nelson was indicted, tried and convicted of the offense of “sedition” by the State of Pennsylvania. He was also indicted, tried and convicted under a Federal indictment for the same offense and transactions. That case is not in point here.

The Texas anti-trust laws have been upheld as valid and constitutional. 29 Tex.Jur. 747, § 6; 58 C.J.S. Monopolies § 28, p. 998, 36 Am.Jur. 593, Chap. 6.

Texas bases its civil action on conspiracies in restraint of trade committed wholly within the state. 29 Tex.Jur. 768, § 19. The appellees were not indicted by the courts of Texas. 29 Tex.Jur. 778, § 25.

The Federal government may institute criminal or civil proceedings for violations of the Federal anti-trust laws. 58 C.J.S. Monopolies Chap. VIII, § 105, p. 1140. a state may seek civil penalties for violations of state anti-trust laws. 58 C. J.S. Monopolies Chap. IX, § 113, p. 1156.

Neither the Supreme Court of Texas nor the United States Supreme Court has heretofore considered the question of whether a Federal indictment under the Sherman Act is preemptive and excludes Texas from bringing a civil action for an alleged violation of local anti-trust laws. The state court of Wisconsin has held that a Federal action will not affect the right of the state to prosecute their anti-trust violators. State of Wisconsin v. Allied Chemical & Dye Corporation, 9 Wis.2d 290, 101 N.W.2d 133. The Texas courts and the lower Federal courts have made it clear that the Texas courts can proceed, in anti-trust suits, without reference to a Federal court action, even though the same parties and the same subject matter are involved in both actions. Bergholm v. Peoria Life Ins. Co., Tex.Civ. App., 63 S.W.2d 1064, n.w.h.; Byrd-Frost, Inc. v. Elder, 5 Cir., 93 F.2d 30, 31, 115 A.L.R. 342; Sessions Company v. W. A. Sheaffer Pen Company, Tex.Civ.App., 344 S.W.2d 180, er. ref.

Preemption has always been decided on the basis of whether or not, as applied to -this particular case, the State laws are re-I pugnant and in conflict with the Federal [Jaw. There have been no final convictions in either case, and both Texas and the Federal government by their pending actions are seeking to examine the lawfulness of the acts of the appellees. The same consideration would be involved and the preemption defense would be available, if no Federal indictment was pending. State of Wisconsin v. Allied Chemical & Dye Corporation, supra.

We are called upon to decide whether or not Federal laws regulating antitrust and interstate commerce preempts the field in which the anti-trust laws of Texas operate. This does not seem to be the clear and manifest purpose of Congress. Rice v. Santa Fe Elevator Corporation, 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447. The State is entitled to proceed. State of North Carolina v. United States of America, 325 U.S. 507, 65 S.Ct. 1260, 89 L.Ed. 1760; State of Florida v. United States of America, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291; Napier v. Atlantic Coast Line Railroad Company, 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432. State anti-trust laws are on a different footing from state labor legislation, the sedition laws, and others, that the United States Supreme Court has struck down on preemption grounds. In the anti-trust laws, however, the Sherman and Clayton Acts, exclusive of these exceptions, have been enforced concurrently by the Department of Justice, Federal Trade Commission, the states, and private litigants. The state protection of its own commerce against conspiracies in restraint of trade which also violate interstate commerce, is supplementary to the Federal regulatory scheme. It operates in areas not reached by Federal authority. Compare Commonwealth of Pennsylvania v. Nelson, supra, with Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090.

The judgment of the trial court is reversed and the case is reinstated for a trial upon its merits.

Reversed and remanded.


author: McDONALD, Chief Justice.

text:
    LAWYERS SURETY CORPORATION et al., Appellants, v. Milton J. LaDUE, Jr., Appellee.
    No. 3984.
    Court of Civil Appeals of Texas. Waco.
    June 7, 1962.
    Rehearing Denied June 28, 1962.

      Lawrence W. Vance, W. B. Handley, Dallas, for appellants.
    Spafford, Ledbetter, Freeman, Hamlin & Gay, Cedric G. Hamlin, Dallas, for ap-pellee.
   McDONALD, Chief Justice.

This appeal involves recovery on 2 separate real estate bonds. LaDue, plaintiff, sued J. E. Cockrell, J. P. Sanders, Tex-Tran Developers (a partnership composed of Cockrell and Sanders), Lawyers Surety Corporation as surety on real estate broker’s bond for Sanders, and Continental Casualty Company as surety on real estate broker’s bond for Cockrell, for $2000, money paid to the partnership on a contract of purchase to buy a' lot. Deed to the lot was never delivered; plaintiff made demand for return of his $2000 which was-not returned; and thereafter instituted the instant suit.

Trial was before the court without a jury which, after hearing, entered judgment for plaintiff against Tex-Tran Developers, Cockrell, and Sanders for $2000; and against Cockrell and Continental for $2000; and against Sanders and Lawyers Surety for $2000. Such judgment provided further that plaintiff should have but one satisfaction of his $2000 judgment and gave judgment over against Cockrell and Sanders in favor of Continental and Lawyers Surety for the $2000, together with attorney’s fees. Cockrell and Sanders have not appealed.

Continental appeals, contending:

1) It was not surety for Tex-Tran, which made the contract of sale, but surety for Cockrell only as an individual, and that the trial court erred in rendering judgment against it for default of the partnership.

2) There is no proof that Cockrell was a licensed real estate broker for the year 1960, or that its surety bond was in force during such year.

3) The judgment is without support m the pleadings.

Lawyers Surety appeals, contending the same as applicable to its bond covering Sanders.

We revert to Contention 1, that the sureties should not be held liable for violations of the principal as a member of the Tex-Tran partnership. The principals Sanders and Cockrell were partners under the name of Tex-Tran. Both were real estate brokers, and were bonded by Continental and Lawyers Surety respectively. The conditions of such bonds were that the surety would pay any judgment recovered by any person in any suit for damages caused by a violation of the Act (Art. 6573a, Vernon’s Ann.Tex.Civ.St). The Trial Court found that' Cockrell’s and Sanders’ actions in failing to account for or remit money of others coming into the broker’s possession constituted a violation of the Act. The Trial Court rendered judgment against both principals. Nothing more is necessary to fix the liability of the sureties. Neither principal excepted to the judgment or appealed therefrom. Such judgments are final and are res adjudicata as to respective violations of the Act and liability of the principals. The final judgment against the principals definitely fixes the liability of the sureties. The fact that the principal’s actions were as members of the Tex-Tran partnership cannot militate to relieve them of liability as individuals. Nor can same relieve the sureties under the facts of this case.

Art. 6573a, § 8(d), V.A.T.S. requires each partner (other than the Agent Broker), to take out a separate real estate license in his own name individually. Under a similar California Real Estate brokers licensing act, the California Court of Appeals in a closely analogous case (Wiggins v. Pacific Indem. Co., 134 Cal.App. 328, 25 P.2d 898), held that the wrongful act of the partnership, or of one of the partners, is chargeable to the partnership and to the other partners, and grants recovery against the surety of the individual partners. The contention is overruled.

Defendant’s 2nd contention is that there is no proof that the principals were licensed brokers for the year 1960, or that the surety bonds were in effect for such year. The record affirmatively reflects that the principals were bonded brokers for the year 1960. The contention is overruled.

Defendant’s 3rd contention is that the judgment is without support in the pleadings. Plaintiff sued Tex-Tran, Cock-rell, Sanders, Continental, and Lawyers Surety for $2000. Judgment was rendered for $2000 against all parties with the provision that there could be but one recovery. There was but one $2000 damage alleged for which it was alleged that all defendants were jointly and severally liable. Judgment against each for $2000 with a provision that there should be but one satisfaction of the judgment is not error. Moreover, Continental and Lawyers Surety are given recovery over against their principals for whatever they may have to pay, plus attorney’s fees. The contention is overruled.

The judgment of the Trial Court is affirmed.


author: MURRAY, Chief Justice.

text:
    ATLANTIC INSURANCE COMPANY, Appellant, v. Maria B. GONZALEZ et al., Appellees.
    No. 13923.
    Court of Civil Appeals of Texas. San Antonio.
    June 20, 1962.

      Kelly, Hunt, Cullen & Mallette, Victoria, for appellant.
    Clarence Stevenson, Victoria, for appel-lees.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Victoria County by Maria B. Gonzalez, individually and as community survivor of the community estate of Pedro Gonzalez and Maria B. Gonzalez, and Otila Y. Gonzalez, a feme sole, against Atlantic Insurance Company, seeking to recover medical payments and other benefits under the provisions of a policy of insurance issued by Atlantic Insurance Company upon a 1959 Chevrolet automobile in the name of Pedro Gonzalez. The named insured, his wife and daughter, Otila Y. Gonzalez, made a trip to Monterrey, Mexico,, from their home in Victoria, Texas, in a 1960 Corvair owned by their daughter, Otila Y. Gonzalez, who was a member of their household. The plaintiffs were involved in a serious automobile accident in Mexico, resulting in fatal injury to Pedro Gonzalez, the named insured, and extensive injuries to Maria B. Gonzalez and Otila Y. Gonzalez, the owner of the Corvair.

The trial was before the court without a jury, and resulted in judgment in favor of plaintiffs against the defendant for the benefits under the Medical Payments provision of the insurance policy, together with twelve per cent penalty and attorney’s fees, from which judgment Atlantic Insurance Company has prosecuted this appeal.

The question here to be decided is whether the Corvair in which the appellees were riding at the time of the collision was a “temporary substitute automobile” within the meaning of the insurance policy, for the 1959 Chevrolet upon which the policy was issued, called “the owned automobile.”

It is clear that the appellant would be liable for the medical payments sued for herein, if at the time of the collision the 1960 Corvair was a “temporary substitute automobile” for the 1959 Chevrolet within the meaning of the language of the insurance policy.

A “temporary substitute automobile” is defined in the policy as “any automobile * * * not owned by the named insured, while temporarily used as a substitute for the owned automobile * * * when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.” Thus, if the 1960 Corvair was being used by Pedro Gonzalez as a temporary substitute for the 1959 Chevrolet, and such Chevrolet had been withdrawn from normal use by a breakdown, for repairs or servicing, then the Corvair was covered by the terms of the insurance policy.

There can be no doubt that Pedro Gonzalez was using the 1960 Corvair for the trip to Monterrey, and in this sense he was substituting the Corvair for the Chevrolet, but, was the Chevrolet withdrawn from its normal use by reason of a breakdown or for repairs or servicing.

The evidence shows that the 1959 Chevrolet was not in good running order, and for that reason Pedro Gonzalez decided not to take it on the long trip to Monterrey, which involved driving through mountains upon a road containing sharp curves. The carburetor was not working well, and when a stop was made for any reason the engine would die. The brakes were in bad condition, and it was generally not in good running order. However, it was not sent to a garage for repairs, but was left at home, where Pedro’s son Rudolfo could use it to go to school and to take his sister Alice to work. Pedro had used his 1959 Chevrolet for a trip or two to Monterrey, tut for some time its condition had caused him to use it only for driving around town.

This evidence, which is undisputed, shows that the owned automobile (1959 Chevrolet) was not withdrawn from its normal use, which was for driving around town, but was still in such use by members of Pedro’s family, while he and his wife and daughter were making their ill-fated trip to Monterrey. Under the undisputed evidence, the 1960 Corvair was not a “temporary substitute automobile” for the owned automobile, the 1959 Chevrolet, and therefore the accident in Mexico was not covered by the terms of the insurance policy issued by appellant, Atlantic Insurance Company, to Pedro Gonzalez. 83 C.J.S., Substitute, p. 766; Service Mutual Ins. Co. v. Chambers, Tex.Civ.App., 289 S.W.2d 949; Fullilove v U. S. Casualty Co., 240 La. 859, 125 So.2d 389.

The judgment of the trial court is reversed and judgment here rendered that appellees recover nothing and pay all costs of this and the trial court.


author: BARROW, Justice.

text:
    TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Lloyd G. LOCKSTEDT, Appellee.
    No. 13927.
    Court of Civil Appeals of Texas. San Antonio.
    June 13, 1962.
    Lewright, Dyer & Redford, James W. Wray, Jr., Corpus Christi, for appellant.
    Kelly, Hunt, Cullen & Mallette, Victoria, for appellee.
   BARROW, Justice.

Appellant, Texas Employers’ Insurance Association, hereinafter referred to as Association, appealed from a judgment of the 24th Judicial District Court of Victoria County, which awarded appellee, Lloyd G. Lockstedt, a temporary total incapacity for 201 weeks in a suit brought under the Texas Workmen’s Compensation Law. It was stipulated that appellee had developed a compensable occupational disease as distinguished from an accidental injury. Therefore, this appeal directly concerns the application of Art. 8306, §§ 20-27, Vernon’s Tex.Civ.Stats.

The case was tried before a jury and the trial court submitted a standard compensation charge as modified by the stipulation of occupational disease. There were no issues or instructions in regard to benefits by change of employment or medical treatment.

Appellant presents eight points of error which can be grouped as follows: (1) Failure of the court to submit two requested issues which were in substantially the language of Art. 8306, § 27 supra, which relates to compensation when the employee benefits by change of employment or medical treatment; (2) Failure of the court to qualify the definitions of “total incapacity”, ■‘‘producing cause” and “incapacity,” so as to exclude any period of time during which the occupational disease was or could have been arrested by change of employment or medical treatment; (3) The insufficiency ■of the evidence to support the finding of 201 weeks of temporary total incapacity.

In view of the stipulation that appellee had sustained a compensable occupational disease as distinguished from an accidental injury, this case was controlled by the law .applicable to occupational diseases. By its 1947 amendment, the Legislature extended the definition of “injury” and “personal injury” to include certain occupational diseases and placed certain restrictive limitations on recovery of compensation for said specified diseases. Texas Employers’ Ins. Association v. Etheredge, 154 Tex. 1, 272 S.W.2d 869. Section 27 of Article 8306, supra, reads as follows:

“In any case wherein the employment causes an acute disease, condition or allergy which can be arrested by a change of employment or by medical treatment under which the employee will suffer no objective symptoms of such disease, condition or allergy, the employee shall be entitled to compensation only for the period during which said disease, condition or allergy persists in an acute state. Added Acts 1947, 50th Leg., p. 179, ch. 113, § 9.”

The Association pleaded that the disease had been or could be arrested either by medical treatment or by a change of employment, and also timely requested issues for those defenses.

The evidence, both from appellee and his medical witness, Dr. Stevenson, when considered in the light most favorable to appellant, as we are required to do by this point, would have supported findings favorable to appellant. McDonald, Texas Civil Practice, Vol. 3, §§ 11:28 and 12:08.

In July, 1960, appellee developed an acute rash over his body while employed as a carpenter for Texas Concrete Company, at Victoria, Texas. He was treated by Dr. Stevenson, a dermatologist, who diagnosed his condition as contact dermatitis, and stated that he was hyper-sensitive to chro-mates. He remained under the doctor’s care for several weeks, during which time he had a set-back upon visiting his employer’s plant in August, 1960. Dr. Stevenson testified that under his medical treatment appellee’s objective symptoms had nearly cleared up, when he was released in September, 1960. He had a flare-up in December, 1960, while working for Austin Bridge Co., and again a few days prior to trial in May, 1961, when on each occasion he contacted chromates. Appellee worked as a carpenter out of a lumber yard from January, 1961, to date of the trial, but declined jobs bringing him in contact with concrete.

Dr. Stevenson testified that appellee could not work around chromates and that this condition was permanent. The doctor testified that there was other work that ap-pellee could perform without experiencing any difficulty. Appellee insisted that any employment would bring him in contact with chromates and therefore he was totally disabled. This was a disputed fact issue which the jury should have resolved. Under the charge as submitted by the trial court, the jury did not pass upon this disputed fact issue, which was properly raised by the evidence and the affirmative pleadings of the Association.

Appellee asserts that the requested issues were not in substantially correct form, although he does not point out any defect in same. The requested issues were:

DEFENDANT’S REQUESTED SPECIAL ISSUE NO. 1.

Do you find from a preponderance of the evidence that the condition, disease or allergy which has affected Lloyd G. Lock-stedt can be arrested by a change of employment or by medical treatment under which the employee will suffer no objective symptoms of such disease, condition or allergy?

DEFENDANT’S REQUESTED SPECIAL ISSUE NO. 2.

How long did or will such disease, condition or allergy persist in an acute stage?

It will be seen that the issues are in substantially the language of the statute and fairly raise the issue in dispute in this case.

Appellee also asserts that the defense urged by appellant would conflict with the results reached in the case of Texas Employers’ Ins. Ass’n. v. Cowan, Tex.Civ.App., 271 S.W.2d 350, and Aetna Cas. & Surety Co. v. Bailes, Tex.Civ.App., 285 S.W.2d 886. These cases are distinguishable from the case at bar in that in each of those cases, as in our recent case of Texas Employers’ Ins. Ass’n. v. Cross, 358 S.W.2d 156, the injured worker had sustained an accidental injury, and recovery was had under the general provisions applicable thereto.

The worker suffering from an occupational disease is not required to wait 401 weeks to recover maximum benefits, in that the jury is entitled to consider the probable future effects as in any other case. Aetna Cas. & Surety Co. v. Bailes, supra.

We sustain appellant’s points complaining of the failure of the court to submit its Requested Special Issues Nos. 1 and 2. We overrule appellant’s points complaining of the failure of the court to qualify the definition of “total incapacity” and “producing cause.” The definitions given were those approved many times as proper and standard definitions. Appellant makes no complaint except that they should have been qualified, so as to instruct the jury that “incapacity as a result of an occupational disease cannot exist during that period of time during which such disease has been or will be arrested by a change of employment or by medical treatment under which the plaintiff will suffer no objective symptoms of such disease, condition or allergy.”

Appellee was entitled to have his case submitted unconditionally and unqualified by appellant’s affirmative defenses. We believe that this is accomplished by use of the usual definitions of “total incapacity”, “producing cause” and “incapacity,” without any qualification.

In view of our sustaining appellant’s first point, which will require a reversal and remand of this case, we will not discuss the point asserting the insufficiency of the evidence.

For the reasons stated, the judgment of the trial court is reversed and the cause remanded.


author: DENTON, Chief Justice.

text:
    Foy LEONARD v. Walker LEONARD.
    No. 7157.
    Court of Civil Appeals of Texas. Amarillo.
    June 4, 1962.
    T. R. Odell, Lubbock, for appellant.
    Aldridge & Aldridge, Farwell, for ap-pellee.
   DENTON, Chief Justice.

Appellee, Walker Leonard, filed a petition in the District Court of Bailey County seeking to have appellant Foy Leonard held in contempt of court for her alleged failure to comply with the Court’s judgment in their previous divorce suit relative to ap-pellee’s visitation rights with the parties’ minor child. The divorce judgment was entered by the same Bailey County District Court, and appellee filed this motion under the same cause number. Appellee alleged that appellant had refused to allow him to visit with the child in accordance with the terms of the divorce judgment, and prayed that appellant be held in contempt of court. Appellee further alleged that the divorce judgment was “not sufficiently final, definite and certain as to allow him reasonable visitation with such child.” Appellee also prayed “That he now prays the Court to make more definite and certain the order and set down specific times, places, dates wherein he can see and visit such child and have such child visit him.”

Appellant filed her plea of privilege to be sued in Lubbock County, and subject thereto, filed an answer generally and specifically denying appellee’s allegations. By agreement of the parties the trial court heard and considered evidence on both the plea of privilege and appellee’s motion without prejudice to the plea of privilege. It is undisputed that at all times pertinent to this case appellant was a resident of Lubbock County. The Court overruled the plea of privilege, and further held that appellee Walker Leonard “have the exclusive society, care and control of such child” during the first week of June and August of each year and on each fourth Saturday afternoon of each month from 1:00 o’clock p. m. until 9:00 o’clock p. m. The judgment found appellant had not allowed appellee to visit with the child, but made no order relative to holding her in contempt. It is from this judgment that appellant duly perfected this appeal.

Appellee takes the position that this suit is one to enforce the original divorce judgment, and that the District Court of Bailey County is the only Court that can enforce its judgment. To support this contention appellee principally relies on Ex Parte Gonzalez, 111 Tex. 399, 238 S.W. 635 and Carlson v. Johnson (Tex.Civ.App.) 327 S.W.2d 704 (no writ history). These cases do hold that the Court granting the divorce is the only Court which can properly hear the contempt motion. However, it is equally well settled that venue in actions for change of custody of minors lies in the county of the residence of the person having legal custody. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Ellington v. Floyd (Tex.Civ.App.) 255 S.W.2d 948 (no writ history) ; Taylor v. Taylor (Tex.Civ.App.) 348 S.W.2d 226 (no writ history). It is therefore apparent this case must turn on the question of what is the true nature of the case as viewed from appellee’s motion and the judgment entered thereon. If the case is one to enforce the original divorce judgment by contempt, venue is properly in Bailey County. On the other hand, if the case is one to attempt to relitigate and readjudicate some feature of the custody of the child, it comes under the holding of Lakey v. McCarroll, supra, and venue would lie in Lubbock County.

In our opinion a feature of the custody of the child was one of the issues to be determined. Based on the alternative prayer in appellee’s motion, the trial court granted appellee “ * * * the exclusive society, care and control of such child * * * ” for specified periods. This order in effect changes the custody of the minor child to the extent indicated. It is clear this order went beyond the enforcement of the original divorce decree.

Although the facts are different in some respects from those of the instant case, the Dallas Court of Civil Appeals in Glasgow v. Hurley, 333 S.W.2d 658 (no writ history), discusses the distinctions between a change in visitation and a change in custody. Under the facts of the Glasgow case the Dallas Court concluded the parties’ pleadings and the Court’s judgment had the effect of modifying custody rather than changing visitation rights. We are in agreement with the Court’s reasoning and are of the opinion such reasoning is applicable to the instant case. We are therefore of the opinion the trial court erred in overruling appellant’s plea of privilege and entering the order relative to the child’s custody.

The judgment of the trial court is reversed and remanded with directions that the trial court sever the issue concerning contempt of court and to transfer the remaining matters to the District Court of Lubbock County, Texas.


author: WALTER, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Albert A. PAPE, Jr., Appellee.
    No. 3731.
    Court of Civil Appeals of Texas. Eastland.
    June 1, 1962.
    Rehearing Denied July 13, 1962.

      Groce & Hebdon, San Antonio, for appellant.
    Robert B. O’Connor, San Antonio, for appellee.
   WALTER, Justice.

Albert A. Pape, Jr., filed suit against Missouri Pacific Railroad Company under the Federal Employers’ Liability Act. Based on a verdict, judgment was rendered in favor of Pape for $70,800.00.

Th railroad has appealed contending the judgment is excessive. Pape was on the brake platform on a boxcar working as a switchman in the San Antonio yards at the time of his accident. The boxcar that he was on sideswiped another boxcar. The accident occurred on May 6, 1960. As a result of this accident Pape sustained the following injuries: (1) Indirect inguinal hernia on the left; (2) destruction of the medial femoral cutaneous nerve to the left side; (3) a large scar in the thigh of the left leg; (4) edema (swelling) of the left leg due to circulatory disturbance of the left lower extremity; (5) probable herniated disc at the 4 and 5 lumbar level on the left, and (6) elevated blood pressure. His witness, Dr. Halfer, testified to these facts as a result of his examination of November 19, 1960.

Dr. Halfer also examined Pape in December of 1960 and January and February of 1961. He saw him again on the first day of the trial. He testified that Pape still had tenderness along the edge of the thigh; that the scar where the abscess was, had lessened in depth; that Pape still had some weakness in his left leg; that he had a tender neuora and that the herniated disc condition had cleared; that in his opinion Pape could not work in such condition; that he should not have surgery to repair the hernia for from one to one and one-half years after the abscess had cleared. Dr. Halfer referred Pape to Dr. Milton Jacobs who specialized in internal medicine. Dr. Jacobs testified that he saw Pape in February 1961 and found the following: Elevated blood pressure; edema (swelling) of the left leg; scar on the calf, left buttock and left thigh, (in this connection, the scar on the thigh was painful to palpation and “quite deep”) ; left inguinal hernia.

Pape’s testimony was substantially as follows: On May 6, 1960, while working for the railroad as a switchman, he was struck on the left hip by a boxcar which injured his left buttock, broke his left knee and ankle and his left side was badly bruised. He spent twenty-three days in the hospital. Following his initial stay in the hospital, he spent two weeks at home and was forced to return to the hospital to have an abscess drained, at which time he stayed five days. After the abscess quit draining, he was given whirlpool and therapy treatment. He responded favorably to the whirlpool treatment but the therapy treatment enlarged his hernia. When he would lift his leg, it strained him and caused his hernia to pop out. At the time of the trial he still had a dull ache in his leg. He had not worked or earned any money since his accident. He has tried to mow the lawn and sweep the floors around the house but had to quit. He spends most of his time sitting around the house and washing dishes and making up the beds, but that is not easy for him to do because he gets nervous and aggravated. His leg still hurts when it swells, it feels tight and throbs because of pain. He sleeps about three hours at a time and then wakes up about three hours and constantly worries about his condition and about supporting his family.

Pape was forty-four years of age at the time of trial. He earned $5,200.00 per year and had a life expectancy of 27.71 years. He had been employed by the railroad for eighteen years.

The only point urged by the railroad is that the judgment is excessive. On this subject the court in Loughry v. Hodges et al., Tex.Civ.App., 215 S.W.2d 669 (Writ Ref. N.R.E.), said:

“There is no definite yardstick by which damages in cases of this character may be measured. The amount of damages may not be determined alone by what the trial court or reviewing court would have awarded had they been sitting as the triers of facts. It is difficult for either court or jury to set a monetary value of damages for a physical injury. It is, in the nature of things, highly speculative and is usually controlled by the judgment of those called upon to determine it. In the absence of anything to indicate that the jury was prompted by improper motives it must be presumed that they arrived at the amount awarded from honest deductions made from the testimony.”

Also in the case of Missouri Pacific Railroad Company v. Handley, Tex.Civ.App., 341 S.W.2d 203 (No Writ History), the court said:

“There is no certain standard by which personal injury damages can be measured. (Cases cited). Each case must stand, more or less, upon its own facts and circumstances and a comparison with other cases and the amount of their verdicts are of little or no help.
“In Sharpe v. Munoz, Tex.Civ.App., 256 S.W.2d 890, 892, Justice Pope, speaking for this Court, said: ‘The assessment of damages is the prerogative of the jury and courts impose their ideas, not as a substitute for the judgment of jurors but to control passion and prejudice.’ See also, Missouri Pacific R. Co. v. Young, Tex.Civ.App., 335 S.W.2d 679.”

We conclude that the amount of the judgment was not excessive compensation for Pape’s damages. The railroad Company has failed to show that the verdict was not the result of calm and conscientious deliberation of the jury uninfluenced by passion or prejudice.

We find no merit in appellant’s point. It is overruled.

The judgment is affirmed.


author: PER CURIAM.

text:
    HEDLEY INDEPENDENT SCHOOL DISTRICT v. James DONEGHY.
    No. 7214.
    Court of Civil Appeals of Texas. Amarillo.
    May 14, 1962.

      Charles L. Reynolds, Childress, for appellant.
    W. T. Link, Clarendon, for appellee.
   PER CURIAM.

Appellee has filed a motion to dismiss this appeal for want of jurisdiction on the ground the transcript was not filed with the clerk of this court within 60 days from the rendition of the final judgment as required by Rule 386, Texas Rules of Civil Procedure. The record discloses the transcript was filed in this court on March 30, 1962.

The case was tried before the court without a jury and after a hearing a summary judgment was granted for the defendant below, appellee herein. A motion for new trial was not required and none was filed. We are therefore to look to the judgment itself to determine the period within which appellant was required to perfect this appeal by filing the transcript with the clerk of this court. The judgment provides in part: “On this January 26, 1962 this cause duly came on to be heard, * * * and the court after hearing the pleadings and motions for summary judgment and the oral deposition, is of the opinion and finds that no material fact issue exists, and that defendant’s motion for summary judgment is well taken and should be in all things sustained.” There is no other date appearing in the judgment. The closing statement in the judgment sets out the plaintiff’s notice of appeal and is signed by the Hon. Luther Gribble, presiding judge of the district court of Donley County. No notation appears in the judgment either before or after the judge’s signature, stating when the judgment was rendered or signed. The transcript reveals the judgment was filed with the clerk of the trial court on February 7, 1962. Rule 306a, T.R.C.P. provides as follows:

“Judges are directed to cause, and attorneys and clerks are directed to use their efforts to cause all judgment, decisions, and orders of any kind to be reduced to writing and signed by the trial judge and the date of signing stated therein; but absence of any such showing shall not invalidate any judgment or order.
“In determining the periods within which the various steps of an appeal must be taken, the date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was signed by the trial judge as stated therein.” (Emphasis added.) “This rule shall apply in determining the time within which to file a motion for new trial, notice of appeal, appeal bond or affidavit in lieu thereof, bills of exceptions, statements of fact in trial and appellate courts, transcript in appellate court, petition for writ of error if appeal is by writ of error, or other procedure in connection with appeal; but this rule shall not be construed as determining what constitutes rendition of a judgment or order in any other situation or for any other purpose. In event the date of signing of a judgment or order is not shown therein as required above, then the date of rendition shall be otherwise shown of record.”

It is now well settled that the face of the judgment itself must be looked to in determining when the judgment was rendered for purposes of appeal. Cox v. Payne (Civ.App.) 231 S.W.2d 957; Polis v. Alford (Civ.App.) 267 S.W.2d 918; Becnel v. Becnel (Civ.App.) 336 S.W.2d 221. The Galveston Court of Civil Appeals, in Heard v. Heard, 305 S.W.2d 231 (writ refused) followed the above rule, and in addition specifically held that the filing of the judgment by the clerk of the trial court was without force and effect to establish the date the judgment had been signed for appeal purposes. The filing date of February 7, 1962 is therefore of no significance in the determination of the motion to dismiss this appeal. Based on the recitals contained in the judgment, and the complete absence of a statement in the judgment itself as to the date it was signed, we are required to accept the date of January 26, 1962 as the date of the rendition of the said judgment. Rule 386, T.R.C.P. provides: “ * * * the appellant shall file the transcript * * * with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment * * provided the record contains no motion seeking an extension of time in which to file the transcript. Appellant has filed no such motion for an extension of time.

Finding, as we are required to do under this record, that the judgment appealed from was rendered on January 26, 1962, it necessarily follows that the transcript was filed in this court more than 60 days after the rendition of the final judgment. Where there is a failure to timely file the record in the Court of Civil Appeals, jurisdiction is defeated. Tydlacka v. Tydlacka (Civ.App.) 277 S.W.2d 159; Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956.

Concluding we do not have jurisdiction, the appeal is accordingly dismissed.


author: POPE, Justice.

text:
    Frank PATRON and Stella Moreno Patron, Appellants, v. DEPARTMENT OF PUBLIC SAFETY of Texas, Appellee.
    No. 13975.
    Court of Civil Appeals of Texas. San Antonio.
    June 27, 1962.

      Fritz K. Knust, Collins B. Cook, San Antonio, for appellant.
    Charles J. Lieck, Jr., Dist. Atty., San Antonio, for appellee.
   POPE, Justice.

This is an appeal from a judgment of the County Court at Law which suspended Stella Moreno Patron’s operator’s license and Frank Patron’s vehicle registrations. By this appeal they urge that the Department of Public Safety failed to discharge the burden of proof. The point is good and the judgment must be reversed.

The Department relied wholly upon four documents. They were the accident report, a death certificate, and the notices from the Department to each of the appellants that their license and registrations would, in the future, be suspended unless they deposited the required security. Sec. 5, Art. 6701h, Vernon’s Tex.Civ.Stats. .The accident report was prepared and signed by an investigating policeman. Neither he nor any other person testified about the facts. The report was improperly admitted in evidence over proper objection. Sec. 42, Article 6687b; Sec. 47, Art. 6701d, Vernon’s Tex.Civ. Stats.

There was no proof that appellants had failed to give the required security. Notices that security must be deposited at a future date is not proved by the mere passage of that date. Janssen v. Texas Department of Public Safety, Tex.Civ.App., 322 S.W.2d 313.

The judgment is reversed and the orders suspending the license and registrations are set side.


author: BOYD, Justice.

text:
    Harold D. WILLS et ux., Appellants, v. William Robert BUCHANAN, Appellee.
    No. 16338.
    Court of Civil Appeals of Texas. Fort Worth.
    June 8, 1962.
    Rehearing Denied July 13, 1962.

      Byrom, Wright & Butcher, and Don Prager, Fort Worth, for appellants.
    Cantey, Hanger, Johnson, Scarborough & Gooch, and John McBryde, Fort Worth, for appellee.
   BOYD, Justice.

Mrs. Vera Wills and her husband Harold D. Wills sued William Robert Buchanan for damages for personal injuries received by Mrs. Wills when Buchanan’s automobile, which he was driving and in which Mrs. Wills was riding, collided with another automobile on Loop 217 in Fort Worth. From a summary judgment in favor of Buchanan Mr. and Mrs. Wills appealed.

Appellants alleged that Buchanan failed to use ordinary care in several particulars, which failures proximately caused the collision. The summary judgment was granted on the trial court’s determination that from the pleadings and depositions no issue of material fact existed, and that it conclusively appeared that Mrs. Wills was a guest of Buchanan on the trip which terminated in the accident, and that, in the absence of gross negligence on the part of Buchanan, there could be no recovery. We are of the opinion that it was not conclusively shown that Mrs. Wills was a guest in the purview of Article 6701b, Vernon’s Ann.Tex.Civ.St., and that it was error to so hold.

On the date of the collision and for about 7 months immediately prior thereto, Mrs. Wills was being transported by Buchanan from her home in Fort Worth to the Con-vair plant and from the plant to her home. They both worked at the plant. About October 1, 1958, someone at the plant told' Mrs. Wills that Buchanan was working there, and lived in the vicinity of her home, and was transporting employees to and' from the plant. Buchanan was informed' that Mrs. Wills was “interested in getting a ride.” On that same day Buchanan came to her department and she told him that she was needing a ride. They made an agreement that he would carry her to and from the plant for $2.00 per week. This was the first time that the parties had met. With the exception of one or two days, she rode with Buchanan every working day until and including May 16, 1959, the day of the accident.

Four other employees rode with Buchanan for a while, and two, Russell and Cathey, rode all the time that Mrs. Wills rode with him. One of them at least had an arrangement identical with that of Mrs. Wills.

Shortly after 12:15 A. M., May 16, 1959, Buchanan, Mrs. Wills, Russell and Cathey left the plant in Buchanan’s automobile. After having traveled 10 or 15 minutes, Buchanan’s car struck a car which was in the same lane and was headed in the same direction as Buchanan’s car but which was either stopped or traveling very slowly. Mrs. Wills received the injuries complained of in the collision.

Article 6701b provides that no person transported over the public highways by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator in case of accident, unless such accident resulted from his gross negligence.

Appellee contends that it was shown that the agreement between the parties was either a car-pool or share-the-ride arrangement, or the ordinary exchange of amenities. He argues that this case is within the rule followed by this court in Easter v. Wallace, Tex.Civ.App., 318 S.W.2d 916, where we said that to remove a case from the operation of the guest statute, the benefit furnished by the rider to the driver must be the motivating cause of the driver’s making the journey. While this statement may have been applicable to the facts there under consideration, as a general proposition we think it is too narrow. If that proposition were applied to this case it is difficult to imagine how Buchanan could have a paying passenger while he worked at Convair. The true rule seems to be that the payment must have been the chief motivating cause of his furnishing the transportation. Raub v. Rowe, Tex. Civ.App., 119 S.W.2d 190, error refused. A payment amounting to a material benefit in the form of possible profits was said to be required in Rogers v. Vreeland, 16 Cal.App.2d 364, 60 P.2d 585. A substantial consideration moving to the driver was the requirement laid down in Allen v. Keck, 113 F.Supp. 873. Where a tangible benefit moves from the rider to the one furnishing the transportation, and is the motivating cause for furnishing the transportation, the guest statute is inapplicable. Burnett v. Howell, Tex.Civ.App., 294 S.W.2d 410; McCann v. Hoffman, Cal.App., 62 P.2d 401.

The summary judgment is reversed and the cause remanded.


author: TIREY, Justice.

text:
    LAUREL LAND MEMORIAL PARK, INC. et al., Appellants, v. Henry A. PINTO et al., Appellees.
    No. 4009.
    Court of Civil Appeals of Texas. Waco.
    May 31, 1962.
    Rehearing Denied June 21, 1962.

      Gragg, Storey & Griffith, J. Willard Gragg, Dallas, for appellants.
    Curtis White, Dallas, for appellees.
   TIREY, Justice.

This action is one in the nature of a suit for a declaratory judgment and also to obtain injunctive relief. The cause was tried without the aid of a jury. The court found that plaintiffs are entitled to a declaratory judgment, and that neither Laurel Land Memorial Park, Inc., nor Widner Organizations, Inc., have any right to sell (directly or indirectly) tombstones, monuments, markers and memorials, and decreed accordingly. The court further found that under defendant’s charters, and under the laws of the State of Texas, that such corporations are not entitled to sell tombstones, monuments, markers and memorials. The Court further found and decreed that the defendants have a right to make reasonable rules governing the operation of cemeteries, including the right to have the exclusive privilege of building foundations and placing and installing tombstones, monuments, markers and memorials on the lots of lot owners, and that they have the authority to make reasonable charges to build foundations and to place or install tombstones, monuments and markers and memorials on the lots of lot owners. The court also found that the present rules and charges made by the Laurel Land Memorial Park, Inc., are not unreasonable. It decreed that the Wid-ner Organizations, Inc., had not been illegally incorporated, and taxed all costs against the defendants. The court refused plaintiffs’ injunctive relief, to which they excepted. The defendants duly excepted and gave notice of appeal to the Dallas Court, and the cause is here on transfer.

The decree is assailed on 2 Points. They are substantially to the effect that the Court erred: (1) In not sustaining the appellants’ plea in bar to the jurisdiction of the court to try this cause and entering an order of dismissal, because such suit is one seeking to challenge the corporate authority of the appellant to do certain acts under their respective charter powers and the Statutes of the State of Texas, and that the exclusive remedy by which corporate powers can be so challenged is by quo warranto proceedings instituted by the Attorney General of the State of Texas; (2) In declaring that appellants have no right to sell monuments, markers, tombstones and memorials under the provisions of their respective corporate charters and the Statutes of the State of Texas; and in not declaring and adjudicating in its judgment that the appellants do have the lawful right under the terms and provisions of their respective charters and the Statutes of the State of Texas to engage in the business of selling monuments, markers, tombstones and memorials.

A statement is necessary. The appellees went to trial on their first amended original petition. It consists of some eighteen pages of legal cap paper and some 13 pages of exhibits. As we understand the plaintiffs’ petition, it sets out the respective business of each of the plaintiffs and alleged in effect that they are engaged in the business of preparing and selling tombstones, memorials, monuments, and markers for deceased persons. It alleges that the defendants are engaged in the business of maintaining and operating cemeteries, and in the further business of selling tombstones, monuments, markers and memorials by the adoption, promulgation and publishing of arbitrary rules regarding installation of tombstones, monuments, markers and memorials by other monument dealers, including plaintiffs, and by requiring other monument dealers, including plaintiffs, to pay the cemeteries arbitrary and unreasonable fees for the privilege of setting tombstones, monuments, markers and memorials by independent dealers, including plaintiffs, and denying such independent dealers, including plaintiffs, the right to set their own tombstones, monuments, markers and memorials, and in following a course of conduct designed to establish for themselves a monopoly in the business of selling and installing tombstones, monuments, markers and memorials; that such a course of business has coerced and forced purchasers to obtain their tombstones, memorials, markers and monuments from the defendants rather than the monument dealers, including these plaintiffs. The defendants went to trial on their first amended original answer, and pertinent to this discussion they excepted to the jurisdiction of the court wherein the plaintiffs challenged the corporate authority of these defendants, and averred that such corporate authority could not be challenged by the plaintiffs in their alleged cause of action, because the sole and exclusive remedy by which such powers can be properly and legally challenged is by quo warranto proceedings instituted by the proper public officials or officers of the State of Texas, and that because of such fact this cause should be dismissed. There are many other special exceptions urged by defendants, but since under our views they pass out of the case, we will not further refer to them. Defendants specially averred that the sole and exclusive manner in which the corporate charter of any corporation can be challenged in court, or wherein the conduct of its business under the powers of its corporate charter, can be challenged, is by appropriate quo warranto proceedings instituted by the proper officials of the State of Texas, and averred that plaintiffs are without authority to allege and maintain their alleged cause of action, and prayed that this cause be dismissed.

We think that Point 1 should have been sustained by the court, and that this cause should have been dismissed for reasons which we shall hereinafter briefly state. We refer to Article 4 of the Constitution of the State of Texas, and particularly to Section 22, which defines to some extent the powers of the Attorney General of the State of Texas. In this Article we find this provision relating to the Attorney General: “He shall, whenever sufficient cause exists, seek a judicial forfeiture of such charters, unless otherwise expressly directed by law, and give legal advice in writing to the Governor and other executive officers, when requested by them, and perform such other duties as may be required by law.” Article 6253 of Vernon’s Ann.Civil Statutes under the title of Quo Warranto, provides in effect that if any corporation exercises power not conferred by law that the Attorney General may, either of his own accord or at the instance of any individual relator, present a petition to the District Court of the proper county, or any Judge thereof in vacation, for legal information. In the case of State v. International & G. N. R. Company, 89 Tex. 562, 1069, 35 S.W. 1067, the Supreme Court of Texas was called upon to determine the validity and constitutionality of such statute in quo warranto proceedings instituted by the County Attorney of Galveston County, alleging that the railroad corporation was engaged in exercising powers not conferred upon it by law. The Court in its opinion held that the conferring upon the Attorney General of the specific authority to “take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power * * * not authorized by law,” evidences an intent to make such authority exclusive in such officer. Needless to say that the Attorney General has not authorized the suit, and has not brought the suit, and necessarily, under this decision, plaintiffs’ cause of action must fail. See also Maud v. Terrell, 109 Tex. 97, 200 S.W. 375, Point 2; Garcia v. Laughlin, 155 Tex. 261, 285 S.W.2d 191, p. 194, points 1 and 2; Southwestern Gas and Electric Co. v. City of Gilmer, D.C., 123 F.Supp. 11 (see cases cited p. 15, Point 1) which was affirmed in 5. Cir., 224 F.2d 794. In this case the plaintiff sought to have a judgment entered by the court decreeing that the defendants could not sell tombstones, markers, memorials and monuments under their respective charter powers, and the Statutes of this State, and they sought an injunction against defendants from doing such acts. Plaintiffs’ petition is not called a proceeding in quo warranto, it is obviously a suit of the exactly same type or nature as quo war-ranto proceedings and under the Texas Constitution and the foregoing decision, it is clear to this court that the trial court erred in not sustaining the appellants’ plea to the jurisdiction and in not dismissing the cause. Certainly under the undisputed factual situation the Court should have sustained the plea, and should have dismissed this cause. It necessarily follows that the court did not have the right to enter any order with reference to what the defendants could or could not do in this cause, and necessarily Point 2 passes out of the case. The judgment of the District Court is reversed and remanded, and the Court is directed to dismiss this cause at the appellees’ costs.

Accordingly, this cause is reversed and remanded, and the District Court is ordered to dismiss the suit and tax all costs against appellees.


text:
    In re C. P. CRAFT ESTATE.
    No. 7158.
    Court of Civil Appeals of Texas. Amarillo.
    June 11, 1962.
    Rehearing Denied July 2, 1962.

      Morehead, Sharp & Boyd, Plainview, for appellant.
    Stone & Stone, Amarillo, for appellee.
   DENTON, Chief Justice.

This is an appeal from a judgment of the trial court admitting to probate a writing offered as a codicil to the will of C. P. Craft. Mr. Craft died September 20, 1960. His last will was dated May 3, 1956 and it was admitted to probate on October 13, 1960, with his surviving wife, daughter and grandson being the beneficiaries. Thereafter on March 2, 1961, Mrs. Iva Rippstein filed an application to probate the instrument involved here as a codicil to the above mentioned will of C. P. Craft. This application was duly contested by the executors and beneficiaries under the will. Both the county court and the district court admitted the tendered writing to probate as a codicil.

The writing was in the form of a letter written in Craft’s own handwriting, addressed to Mrs. Rippstein. It was dated September 17, 1960, three days prior to Mr. Craft’s death. The material parts of the letter read as follows:

“Dear Mrs. Iva: Used most of yesterday and day before to ‘round up’ my financial affairs, and to be sure I knew just where I stood before I made the statement that I would send you $200.00 cash the first week of each month for the next five years, presided i five ⅜⅛⅜ feag; also to send you $200.00 cash for Sept., 1960, and thereafter send that amount in cash the first week of the following months of 1960, October, November and December.”

In the left-hand margin beside the preceding paragraph, the following words were written:

“I have stricken out the words ‘provided I live that long’ and hereby and hereunto bind my estate to make the $200.00 monthly payments provided for on this Page One of this letter of 9-17-60.”

Although one of appellant’s points of error deals with Article 3716, Vernon’s Ann.Civ.St, commonly referred to as the Dead Man’s Statute, the principle question to be determined is whether or not the instrument is testamentary in character. There was no question of Craft’s testamentary capacity, fraud or undue influence.

A written will is generally defined as an instrument by which a person makes a disposition of his property, to take effect after his death, and which by its own nature is ambulatory and revocable during his lifetime. Williams v. Noland, 10 Tex.Civ.App. 629, 32 S.W. 328 (error refused) ; Maxey v. Queen (Tex.Civ.App.) 206 S.W. 2d 114 (refused n.r.e.); Huffman v. Huffman (Tex.Civ.App.) 329 S.W.2d 139, affirmed 161 Tex. 267, 339 S.W.2d 885; Harper v. Meyer (Tex.Civ.App.) 274 S.W. 2d 904 (refused n.r.e.). We are not concerned here with Craft’s intention or the meaning of the language used in the letter. The question is whether the writing itself meets the requirements of a testamentary document. If it is not of a testamentary character it cannot be admitted to probate. Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402; Boyles v. Gresham, 153 Tex. 106, 263 S.W.2d 935.

It is our opinion that the writing involved here does not meet the requirements of a testamentary document. By its own terms the payments of $200.00 monthly became effective immediately rather than at the death of Mr. Craft. The payments were to begin in September, 1960, the month the letter was written and the following sentence appears in the letter after the above quoted portion: “You will find the $200.00 in question for Sept. 1960 enclosed herewith.”

It is well settled that one of the essential characteristics of a will or codicil is that it operates to transfer the maker’s property on the occurrence of his death. 44 Tex.Jar., page 542, Sec. 2 and cases cited therein; 40 A.L.R.2d, page 718, Sec. 8, states the rule:

“To be testamentary an instrument must intend a revocable disposition of property to take effect at the maker’s death. A letter, therefore, which seeks to make a present disposition, while it may constitute a valid gift inter vivos, cannot be considered testamentary in character.”

The language of the writing in issue obviously creates a right in the promisee before the death of Mr. Craft. Whatever right Mrs. Rippstein acquired was created at the time the letter was executed. If the instrument passes a present interest and becomes effective upon its execution it cannot be said to be revocable in the sense of a testamentary document. Revocability is another essential characteristic of a testamentary document.

As we understand it, appellee takes the position that the writing made a bequest of the installments which had not been paid at the time of Craft’s death. The argument is that the bequest was conditioned on the payments not being completed at the time of his death. It cannot be questioned that Texas does recognize the validity of “conditional” or “contingent” wills. Bagnall v. Bagnall, 148 Tex. 423, 225 S.W.2d 401. A contingent will has been defined as a will which is to take effect only upon the happening of a specified contingency. Bagnall v. Bagnall, supra, and authorities cited therein. Under this commonly accepted definition, we do not think the writing here can be said to be conditional or contingent. By its own terms it took effect immediately. This is contrary to the basic concept of a contingent will. No Texas cases have been cited and none have been found which hold an instrument may operate both as a will and as some other type of transfer of property. Some courts in other jurisdictions have recognized that an instrument may be so drawn that a part of it may be sustained as a will and the remainder to have a different effect. 94 C.J.S. Wills § 165, page 963; Jones v. Jones, 163 Tenn. 237, 43 S.W.2d 205; Foster v. Allen, 159 Kan. 116, 152 P.2d 818. But these and other authorities are agreed that in order to have this effect the instrument must employ distinct terms in reference to different property, clearly indicating the intent to give the instrument a testamentary effect as to one and a present operation as to the other. Jones v. Jones, supra. It is further settled that the same instrument cannot serve to dispose of the same property inter vivos and again after the maker’s death. In re Boucher’s Estate, 329 Mich. 569, 46 N.W.2d 577; Merrill v. Boal, 47 R.I. 274, 132 A. 721, 45 A.L.R. 830. In our opinion the instrument under consideration does not comply with these requirements. The installment payments constituted a single obligation.

We conclude the writing being considered is in fact an inter vivos gift from the maker to Mrs. Rippstein. The liability of the deceased’s estate for the unpaid installments is not before us. We are therefore of the opinion the writing here involved is not a testamentary document and is not a proper instrument to be admitted to probate. Because of our disposition of this case we do not deem it necessary to pass on appellant’s point of error involving the Dead Man’s Statute.

The judgment of the trial court is therefore reversed and rendered.


text:
    UNIVERSAL ASSETS, INC., Appellant, v. Edwin PARKER, Appellee.
    No. 13936.
    Court of Civil Appeals of Texas. San Antonio.
    June 6, 1962.
    Rehearing Denied July 5, 1962.
    Roger M. Dreyer, Gonzales, Joe Day, Jr., Fort Worth, for appellant.
    Denver E. Perkins, Gonzales, for ap-pellee.
   POPE, Justice.

Plaintiff Universal Assets, Inc., as lessee, sued Edwin Parker, the lessor, for the return of certain claimed advance rentals it had paid under two separate leases. It claimed that the lessor breached the lease agreements by evicting the lessee prior to the expiration dates. The trial court rendered judgment for the lessor upon the verdict of the jury. We affirm the judgment.

Lessee contended that it entered into two leases covering two broiler farms and the equipment. One lease was in writing. It was for one year and was dated March 28, 1958. The rental for the entire year was $10,500, and the lessee paid lessor $8,400 in advance. Lessee claimed that the rent was reduced by a later oral agreement. Lessee also contended that there was a second oral agreement for a different broiler farm. It contended that the second lease was for a period of about nine and one-half months, and that it paid an additional $8,400 advance rent on that second set of facilities. Lessee contends that it was unlawfully evicted from both broiler farms on September 8, 1958. It claimed that it was entitled to recover $3,682.00 for the unused rentals under the first lease, and $5,147.00 under the second lease.

Lessee failed to obtain jury findings which would support a judgment in its favor. There was no finding that the lessor evicted the plaintiff from either of the premises. There was testimony that the lessor re-entered after the lessee vacated the premises, and that he did this to preserve his equipment. Lessor testified that he entered the property about thirty or forty days after lessee vacated it, because his equipment was torn up, trucks had been driven through his broiler houses, water had run from troughs into and was standing in the broiler houses, brooders were knocked down, and gas lines were loose. He did not lock the first facility, but put a lock on the second facility to protect it. With this evidence in the record, the lessee needed a finding that it had been unlawfully evicted.

Lessee contended that the written agreement was amended orally and that the lessor agreed to reduce the rental on the first facility from $10,500 to $8,400. The jury found that there was no such oral agreement. Plaintiff also contended that there was an oral lease for nine months and eighteen days of the second facility and that the rental was $8,400. The jury found against this also. There was no basis left for a judgment in favor of the lessee.

BARROW, J., not participating.