author: DIXON, Chief Justice.

text:
    Fred R. FREYER, Appellant, v. David B. MICHELS, Appellee.
    No. 15999.
    Court of Civil Appeals of Texas. Dallas.
    July 13, 1962.
    Rehearing Denied Sept. 28, 1962.

      Wm. Andress, Jr., Dallas, for appellant.
    Charles J. Winikates, Dallas, for appellee.
   DIXON, Chief Justice.

Our former opinion in this case is withdrawn and the following is submitted in lieu thereof:

Appellant Freyer filed suit against appel-lee for the balance alleged to be due under the terms of a written residential lease contract covering a period of twelve months. The petition alleged that after occupying the property in question for eight months and paying eight monthly rental installments, appellee moved from the premises and refused to pay the four remaining monthly installments. Appellant also sued for yard work paid for by appellant during the four months period, for certain damages alleged to have been done to the property, and for reasonable attorney’s fees.

In his answer appellee alleged that appellant failed to keep his promise to repaint two screen doors, failed to paint the back door and garage, failed to put the attic fan in working order and failed to repair certain concrete steps and a rotting trellis.

But the principal issues on the trial and the present appeal were raised by appellee in a cross-action in which he prayed for cancellation of the lease contract because appellant, the landlord, had “sealed off” a portion of the attic and was using the space for storing certain personal property, thus denying appellee, the tenant, full use of the attic.

Appellant answered the cross-action with a supplemental petition in which he pled waiver and estoppel.

After trial before a jury judgment was entered denying appellant any recovery under the lease contract and awarding appel-lee a judgment for $148.00 on his cross-action. The last named sum had been found to be the rental value of the portion of the attic used by appellant as storage space.

Some of the facts are undisputed. Appellant, an airplane pilot, the owner of the property, formerly occupied the premises as his home, but was transferred to Florida where he now resides. Rental of the property is being handled by the Gordon Jackson Realty Company. C.'Gordon Jackson, Jr. handled most of the matters relating to the lease here involved, though his father, C. Gordon Jackson, Sr. was active too.

Sometime in July 1958 appellee, also an airplane pilot, was transferred from Baltimore, Maryland to Dallas, Texas. Gordon Jackson, Jr. twice showed him the subject property. On August 3, 1958 appellee signed a lease covering a period of one year beginning August 15, 1958 for a consideration of $2,220 payable $185 per month. The lease provided that appellee would accept the premises in their present state and condition.

On the two occasions when appellee looked at the house prior to executing the lease he inspected the entire house except the attic. Jackson had shown him the disappearing stairway leading to the attic, but appellee had not bothered to climb up to look at the attic. Both appellee himself and Gordon Jackson, Jr. testified that no attempt was made to keep appellee from inspecting the attic, and that he could have done so had he desired.

Appellee soon discovered that a portion of the attic had been set apart by a padlocked chicken wire fence. He made the discovery while the trucks were moving in his belongings on or about August 15, 1958. Within the space appellant had stored a trunk and some personal belongings. Nevertheless, appellee finished moving into the premises and thereafter for eight months regularly made the rental payments of $185 per month.

On March 15, 1959 appellee addressed a letter to appellant’s real estate agents advising that he, appellee, was vacating the property. In this letter he made no complaint or even mention of the space in the attic which the landlord had continued to use for storage purposes. He made no mention of the fact that he had recently bought a home and was planning to move into it.

Here the undisputed facts may be said to end. It is disputed whether appellee ever complained about his not having been given full possession of the attic. Appellee says he made several telephone complaints about the attic situation and other matters. Both Gordon Jackson, Jr. and Gordon Jackson, Sr. deny that appellee ever complained to them about the attic. They further testified that though their complaint file shows complaints from appellee about the plumbing, door knobs and painting, their records do not show any complaint about the attic.

The Jacksons testified that in small routine matters they had authority to act without consulting appellant, their client. For example in regard to the plumbing and other complaints they sent out repair men to remedy the defects. With reference to the painting of the garage and other portions of the house, they wrote to appellant for instructions. They testified that they had authority to remove appellant’s personal property from the attic if appellee complained.

The jury returned a verdict finding (1) against appellant as to any reasonable charge for yard work during the four months’ period; (2) that appellee delivered up the premises to appellant in good order and condition; (3) that $148 would compensate appellee for the part of the premises that was not made available to appellee; and (4) that after appellee knew that a portion of the attic was occupied by appellant’s belongings he did not intend to use the remainder of the premises to the benefit of his family and himself as their residence.

Appellant’s first, second and third points on appeal assert in substance that lessee had no right to terminate or rescind the lease after occupying the premises for eight months of a twelve months’ lease because of a reservation of a portion of the attic (1) when he knew of the reservation immediately upon going into possession, (2)when the lease expressly provides that the lessee accepts the premises in their present state and condition; and (3) when there is no finding of a demand for possession and its refusal.

We shall not hold that the lease provisions about accepting the premises in their present state and condition preclude appellee from complaining in the present case. But we have concluded that appellant’s first three points on appeal should be sustained on other grounds.

In this case appellee pled fraud, but no issues were requested and none were submitted in regard to fraud. Appellee’s judgment for rescission rests on breach of contract. Though there are some exceptions to the rule, it is held generally that the equitable relief of rescission will not be granted for a mere breach of contract in the absence of a finding of fraud. In such cases the complaining party will be relegated to his remedy of damages. Minneapolis Moline Co. v. Purser, 361 S.W.2d 239; Chenault v. County of Shelby, Tex.Civ.App., 320 S.W.2d 431; Davis v. Commercial Standard Ins. Co., Tex.Civ.App., 194 S.W.2d 599, 605; Cheek v. Metzer, 116 Tex. 356, 291 S.W. 860, 863; Johnson v. Johnson, Tex.Civ.App., 272 S.W. 225, 227; 10 Tex.Jur.2d 305; 12 C.J.S. Cancellation of Instruments § 29, p. 982.

Even when fraud has been found one who seeks to rescind a contract must act with diligence after discovering the fraud. Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892; Dobbs v. Johnson, Tex.Civ. App., 230 S.W. 1035; Deep South Oil Co. of Texas v. Texas Gas Corporation, Tex.Civ.App., 328 S.W.2d 897, 906-907. Here appellee discovered the situation in the attic when he moved into the premises, yet he continued his occupancy for eight months. When he notified appellant by letter that he was vacating the property he did not complain about the attic. In fact it is disputed whether he even complained about the attic in any form, verbally or in writing, until he filed his cross-action sometime subsequent to December 18, 1960.

In our opinion appellee has failed to show that he has no adequate remedy at law. His pleadings and the undisputed facts fail to demonstrate that he will sustain serious and irreparable pecuniary injury unless the relief of cancellation is granted. These are essential factors in a suit for rescission. Chenault v. County of Shelby, Tex.Civ.App., 320 S.W.2d 431.

It is also a general rule in connection with rescission that the party seeking the equitable remedy of rescission must do equity, that is, he must restore the original status. He will not be allowed to repudiate the instrument and retain the benefits received under it. Texas Company v. State of Texas, et al., 154 Tex. 494, 281 S.W.2d 83, 91. Here appellee, by occupying the premises for two-thirds of the lease term, without protest or complaint so far as any jury finding is concerned, has placed it beyond his power to restore the status quo. Under the circumstances ap-pellee is not entitled to the equitable remedy of rescission.

Appellee objected to the court’s charge because it failed to submit the question whether appellee ever demanded and was refused possession of that portion of the attic occupied by appellant’s belongings. The court refused to submit such an issue.

The evidence was in conflict on the question whether appellee demanded and was refused such possession. Appellee says he did complain. The two Jacksons say he did not. If appellee demanded possession and was refused, it was still his duty after such refusal, to act promptly if he desired to rescind the contract. If, as the Jacksons testified, he never1 made demand for full possession of the attic though ne knew part of it was being used by appellant, the question of waiver would be present even as to appellee’s action for damages.

Appellee says the question is not material whether appellee demanded and was refused possession. In support of his view he cites Langham’s Estate v. Levy, Tex.Civ.App., 198 S.W.2d 747 and Moore v. Mansfield, 182 Mass. 302, 65 N.E. 398. Neither of the cited cases is in point.

In the Langham’s Estate case the court simply held that appellee was not under any obligation to demand or take possession of the premises so long as they were not ready for occupancy by him. There is no holding that appellee could move into the premises with knowledge of their condition, occupy them for two-thirds of his lease, then repudiate the contract.

In the Moore case it was definitely established that the tenant did demand and was refused possession of the attic, and that he insisted on his rights. In obiter dictum the court said that the question of demand and refusal would have been material if the question of waiver had been involved. Waiver was not involved in the Moore case. It is involved in the present case.

Under the circumstances appellee is not entitled to the equitable remedy of rescission.

Appellant’s first three points are sustained.

In his fourth point appellant says that there was no evidence to support the jury’s answers of “none” in answer to the issue inquiring as to the total recoverable and necessary charge for yard maintenance work done by appellant’s agents between May and August 15, 1959. This point was not preserved in appellant’s amended motion for new trial so cannot be considered on appeal. Rule 374, Texas Rules of Civil Procedure.

In his fifth point appellant says that there was no evidence to support the issue inquiring- as to the amount that would compensate defendant for the part of the premises not made available to him.

Appellee testified that he estimated the attic space occupied by appellant’s belongings constituted one-tenth of the entire square footage of the house; and that one-tenth of the rental for the eight months occupancy by appellee (¾0 X 8 X $185) amounts to $148. We cannot say that the jury finding has no support in the evidence. Appellant’s fifth point is overruled.

Having sustained appellant’s first three points, we reverse the trial court’s judgment and remand the cause for another trial.


source: Caselaw Access Project

author: McNEILL, Justice.

license: Public Domain

text:
    Harry A. WIBERG, Appellant, v. GULF COAST LAND & DEVELOPMENT COMPANY et al., Appellees.
    No. 6551.
    Court of Civil Appeals of Texas. Beaumont.
    June 21, 1962.
    On Rehearing Sept. 5, 1962.

      Sonfield & Sonfield, Houston, for appellant.
    N. A. Smith and J. P. Madole, Jr., Pasadena, for appellees.
   McNEILL, Justice.

This action was instituted by appellant against two corporations, Tex-America Trust Company and Gulf Coast Land & Development Company, appellees, to recover commissions on sale of corporate stock of Tex-America Trust Company which were alleged to be due him. As will be explained herein, the suit finally became one against the Gulf Coast Land & Development Company, successor to Tex-America Trust Company. Gulf Coast Land & Development Company will be referred to as appellee and appellant will at times be referred to as Wiberg.

The Tex-America Trust Company was formed in 1953 by H. C. Donahoe, Carter Chase and appellant, Harry A. Wiberg. Its charter was granted by the Secretary of State with capital stock of 300 shares at $1.00 par value. These three men were the directors of said corporation. All of the stock was owned by the three, except certain qualifying shares in the names of two other persons. It was determined by the stockholders on April 11, 1955, to amend the charter of the corporation and increase the stock so that it would have one million shares of stock of no par value. The amended charter filed with the Secretary of State reflected that the three directors subscribed and paid for corporate stock of the value of $133,633.36. Upon being advised on May 6, 1955, that the Secretary of State had filed the amended charter, a special meeting of the Board of Directors of the company was held at which time the entire Board composed of Donahoe, Chase and Wiberg, were present. Among the matters attended to at this meeting was the question of need of a successful completion of the stock sales program, and it was decided that Chase and Wiberg would handle this. Accordingly, on resolution proposed by Dona-hoe and seconded by Chase, it was:

“RESOLVED: That Carter Chase, President, and Harry A. Wiberg, Secretary, be given a contract of employment, whether by management-type contract or otherwise, for a period of one year from August 1, 1955, renewable annually thereafter for four additional years, under the terms of which, in consideration of their devoting their entire time to Tex-America Trust Company, each of them shall be compensated as follows: A salary, payable semi-monthly on the 1st and 15th, equal to 7^/2% to Wiberg and 7½% to Chase of the total sales price of capital stock of the company sold during the two weeks period next preceding.”

The minutes of this meeting recited that Chase called attention to the fact that he and Wiberg had devoted many months of effort to the affairs of this corporation, and would be expected to devote their entire time between the date of this meeting and August 1, 195S, effective date of such contract, for which services they had not received nor would receive compensation. Chase and Wiberg both stated they would waive compensation prior to August 1,1955, “ * * * provided they were protected in some manner against the possibility of their respective contracts not being renewed from year to year during the five year period stated.” Accordingly, on motion of Mr. Chase and seconded by Mr. Wiberg, it was

“RESOLVED: That in the event of the Board of Directors elects for any year of the five year term of the contract of employment given Chase and Wiberg, not to renew the same, then Chase and Wiberg shall each be paid 7½% of the gross sales price of all capital stock of the corporation sold between May 6, 1955, and the date of such termination, less the amounts of salary with which they have each been credited.”

A special meeting of the stockholders and the Board of Directors of Tex-America Trust Company was held the next day, May 7, 1955, at 3 p. m., at which all the directors of said corporation attended. The same persons, owning a majority of the stock of the corporation, were also present and acted as stockholders. At this meeting the accounting firm of Farb-Brockstein & Company, CPA’s, were employed as auditors and accountants for the company on a year to year basis. The minutes of this meeting also reflected the following:

“Secretary Wiberg then read to the meeting the minutes of a special meeting of the Board of Directors held on May 6, 1955. By unanimous vote on motion duly made and seconded, those present, acting both as stockholders and directors, approved the action of the Board of Directors as taken at such meeting and as reflected by such minutes.”

No further formal action toward making a completed contract was taken than the resolutions thus stated. However, Chase and Wiberg entered upon and started performing their duties in connection with the sale of the corporate stock under the resolutions passed by the Board on May 6, 1955. The record does not indicate clearly just how well the stock sales moved along for awhile, but at any rate the stock was sold for various amounts, beginning as low as 66^rd cents per share and gradually increasing in 1956, the price set by the Board was $6.60 per share and thereafter some was sold for as high as $8.25 per share. These two men, Chase and Wiberg, employed a sales force and they paid these employees out of commissions they, Chase and Wiberg, were to earn. Daily deposits of proceeds of stock sales were made to the credit of the company in the proper bank, and at each Board of Directors’ meeting thereafter reports were made by Wiberg reflecting the progress made. The sales had not grown to any material amount until the latter part of December, 1955, and on account of ill health of Chase he resigned from the company and gave up the sale of stock operations, effective February 24, 1956. Thereafter all stock sales were handled for the company by appellant until he was notified at a Directors’ meeting, held on June 23, 1957, that no further sales of stock were to be made under the arrangements existing with him.

Appellant’s suit for commissions earned and unpaid amounted to the sum of $33,-292.00. This amount was arrived at and based upon proceeds of sales of stock between May 6, 1955 and June 23, 1957 of $443,833.36, from which amount of sales appellant claims he received no compensation. It was further alleged that he sold 737,515 shares of such stock, which produced $718,873.36 on which he had been paid the sum of $39,659.87, and there was a balance owing him of $33,292.00. An alternative plea was made that he recover such sum on the basis of value of services rendered with full knowledge, consent and acceptance of defendant. However, this count is not urged on this appeal and no further 'comment thereon will be made.

Appellee answered appellant’s suit and urged, among other defenses, that since no written contract, other than the resolutions was prepared and executed by the contracting parties, no completion of the contract was made as appeared to be contemplated by the resolutions, and no contract existed between the parties. It was further urged that if a contract existed, since Chase and Wiberg were members of the board of three directors, their vote therefor was necessary and they having voted to approve this contract between them and their corporation, the contract was void as against public policy and cannot be enforced in this suit.

It is proper to state that during the time the stock sales program was carried on Tex-America Trust Company formed the Gulf Coast Land & Development Company as a subsidiary which was wholly owned and controlled by Tex-America Trust Company. But before this suit was filed the corporate existence of Gulf Coast Land & Development Company had been dissolved, its assets and liabilities passed to Tex-America Trust Company and the name of Tex-America Trust was changed to Gulf Coast Land & Development Company; hence the style of this suit.

Trial was to a jury and special issues were submitted. The substance of the jury’s findings insofar as pertinent here, are:

(1)Wiberg and Tex-America Trust Company intended the resolutions of the Board of Directors of said corporation of May 6, 1955, were to be the agreement whereby Wiberg was employed to sell its stock (Special Issue No. 1 and answer);
(2) That the resolutions adopted by the Board of Directors of said company on May 6, 1955 were thereafter ratified and confirmed by such corporation (Special Issue No. 4 and answer) ;
(3) That Chase, Donahoe and Wi-berg subscribed and paid for stock to the amount of $133,633.36 before May 6, 1955, (Special Issue No. 7 and answer) .

Upon this verdict, appellant moved for judgment in his favor for the sum of $33,-292.00 or in the alternative for the sum of $24,085.56. The court granted judgment in his behalf for $4,233.13 and the further sum of $1,500.00 as attorneys’ fees.

Both parties have appealed from this judgment. And both have filed helpful briefs, as well as supplemental briefs. In addition, after this cause was orally argued before us, we granted appellee’s motion to perfect the record. By motion to strike, appellant urges this was error. Since appellee properly complained of the question in its motion for instructed verdict at the close of the evidence, as is pointed out in the next paragraph below, it is unnecessary to act on appellant’s motion to strike the supplemental transcript filed.

The first question to be disposed of is the defense urged by appellee that the resolutions passed by the Board of Directors on May 7, 1955, whereby Chase and Wiberg “be given a contract of employment, whether by a management-type contract or otherwise” was not sufficient to create the contract, as the quoted language indicated something additional was to be done before the contract could be held a completed one. And further that this was a question of law to be determined by the court, and special issue No. 1 should not have been submitted to the jury. Since appellee filed its timely motion for instructed verdict urging this point, brought forward in its motion for new trial, the point is properly raised. Gray v. Blau, Tex.Civ.App., 223 S.W.2d 53. The point, though, is without merit. The facts on this issue, aside from the ambiguous language of the resolution just quoted from, are without dispute. All the directors of the company at the date of the resolution, as well as succeeding directors, and all officers and employees of the company acted upon and treated the stock sales program set forth in the resolutions as the contract for over two years. Great sums of money were obtained by the company over this period of time and commissions paid every two weeks for stock sales of this period. Application was made during this time for registration of securities with the Secretary of State in which these commissions were set forth; and this application was prepared by legal counsel for the company. By common consent and actual dealings, all parties recognized the resolutions passed as the contract itself, and their practical construction should be upheld. 13 Tex.Jur.2d, Sec. 91, pp. 238-241, Sec. 128, p. 300. The word “otherwise”, in the expression “whether by a management-type contract or otherwise”, means, “In another manner; differently.” The actual dealings and conduct of the parties as here delineated is sufficient to make the contract enforceable. Johnson v. Breckenridge-Stephens Title Co. (Com.App.), 257 S.W. 223. The submission of the issue to the jury was, therefore, harmless.

Appellee maintains that since Tex-America had but three directors, Donahoe, Chase and Wiberg, it took at least two disinterested directors to approve the contract. It asserts Chase and Wiberg being recipients of the contract and therefore personally interested could not vote to approve the contract, and the action taken by the Board was against public policy. Appellant counters by asserting that since the acts of the directors were ratified by the special stockholders’ meeting on May 7, 1955, and by the special stockholders’ meeting of September 22, 1955, at which there were 80% of the stockholders in attendance and all voted in favor of approving all acts of the officers done since May 8, 1955, the contract made was fair, just and beneficial to the corporation, and full disclosure of the circumstances surrounding such contract was made by Chase and Wiberg, the contract should be upheld. The parties have cited many cases in their briefs. From these cases and others we have found, we summarize the following principles of law controlling the present case:

The director of a corporation stands in a fiduciary relationship to his company. He must act fairly and honestly with it and make full disclosure of all pertinent information in relation to the subject matter of any contract he would negotiate with it in which he has a personal interest. Tenison v. Patton, 95 Tex. 284, 67 S.W. 92. And it is improper for a director to vote on a transaction in which he is personally involved. Vol. 3 Hildebrand, Tex.Corps., Sec. 698, p. 61. He is not, however, in the strict sense a trustee. Paddock v. Siemoneit, 147 Tex. 571, 218 S.W.2d 428.

If the contract is made with a director and his vote is necessary to authorize the contract, the contract is unenforceable. Davis v. Nueces Irrigation Co., 103 Tex. 243, 126 S.W. 4; Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148; McLendon Hdwe. Co. v. Black, Tex.Civ.App., 264 S.W. 1011. If in the last instance, however, the contract appears to be one that was fair, just and beneficial to the corporation, and the director personally involved has made a full disclosure, such contract may be ratified by a majority of the stockholders of the company. Pruitt v. Westbrook, Tex.Civ.App., 11 S.W.2d 562; 19 C.J.S. Corporations § 783, pp. 156, 157. Appellee urges the holding in Dunagan v. Bushey, supra, as authority for the proposition that only 100% of the stockholders could ratify the contract. The facts in that case are materially different from those before us now. There the contract was actually detrimental to the corporation involved.

The record before us shows that the commissions charged were reasonable and the contract was fair, just and beneficial to the corporation. It was ratified by over a majority of the company’s stockholders. No fraud or overreaching was alleged or proved. From the facts it appears that the directors personally interested did not hold back from the company any pertinent information involving the contract. We, therefore, uphold it.

What we have said disposes of the points and cross-points on this appeal.

There remains to be determined the proper judgment upon the facts. The total sales price of all stock sold for the corporation was $718,873.36'. The jury’s anwer to Issue No. 7 reflected that the sum of $133,-633.36 was the amount of stock subscribed and paid for by appellant and his fellow directors before May 6, 1955, the date the resolution was passed authorizing Chase and Wiberg to sell stock. The trial court deducted this sum from the total sales price of stock sold. Appellant asserts that this was error. He urges that in some way, which is not satisfactorily explained, this stock which had been subscribed and paid for by the directors was again sold and the corporation received the proceeds thereof. The burden was on appellant to show his right to recover his commission upon such amount, which he has failed to do. The facts in these circumstances are therefore construed against him. 19 C.J.S. Corporations § 781, p. 154. This sum is deducted from the total sales price of all stock sold. This leaves $585,240.00 upon which amount appellant is entitled to 7½'%, or $43,893.00, less what he has already received. It was stipulated at the trial that appellant had been paid $39,659.87. The amount, then, due him and unpaid is $4,233.13. This was the amount allowed by the trial court. We, consequently, affirm its judgment.

Affirmed.

ON MOTION FOR REHEARING

On further consideration we conclude that appellant is entitled perforce Art. 5070, R.C.S. 1925, to interest at six percent per annum from June 25, 1957, the date the commission contract was terminated by appellee. Federal Life Ins. Co. of Chicago v. Kriton, 112 Tex. 532, 249 S.W. 193; Trice Production Co. v. Dutton Drilling Co., Tex.Civ.App., 333 S.W.2d 607; Sullivan v. Brininstool, Tex.Civ.App., 358 S.W.2d 898. The judgment below is therefore reformed so as to bear interest at six percent per annum from June 25, 1957, and in all other respects is affirmed. The costs of appeal are taxed three-fourths to appellant and one-fourth to appellee.

In all other respects appellant’s motion for rehearing is overruled.


author: GRISSOM, Chief Justice.

text:
    The TEXAS & PACIFIC RAILWAY COMPANY, Appellant, v. H. A. PORTER, Appellee.
    No. 3735.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 7, 1962.
    Rehearing Denied Sept. 28, 1962.

      Mays, Leonard, Moore & Dickson, Sweet-water, R. H. Weaver, Big Spring, for appellant.
    Jack Little, Big Spring, for appellee.
   GRISSOM, Chief Justice.

H. A. Porter sued The Texas & Pacific Railway Company for damages caused by his automobile being struck by defendant’s train at a crossing on a county road. A jury found the railway company guilty of negligence which was a proximate cause of the collision in failing to keep the crossing in good repair. Based on said findings, judgment was rendered for the plaintiff. The defendant has appealed.

The automobile was driven by Mr. Porter’s 14 year old daughter, who was accompanied by another girl, Miss Beverley Thurman. As Miss Porter drove on the crossing a wheel went off the end of one of the crossing boards and, when she attempted to drive off the crossing, a rear wheel spun and dug a hole in the dirt causing the automobile to be suspended on the rails. These facts are undisputed. On the trial, plaintiff contended that the ends of some of the boards of defendant’s planked crossing were eroded or chipped off so that the planks which had originally constituted a 16 foot wide crossing had at such places been reduced to about 14 feet; that it was necessary for a person to drive on the edge of the planked crossing because as one approached it he could not see a vehicle coming from the opposite side; that when plaintiff’s daughter drove to her right on the edge of the planked crossing, because the ends of some of the boards had eroded or had been “chipped off”, a wheel slipped off the end of such a board and caused Porter’s automobile to be suspended so that she could not drive off the crossing. Defendant’s contention was, in effect, that the girl simply negligently drove off the side of the crossing. Plaintiff alleged that as his daughter approached the crossing it was necessary for her to first jog to the left, or east, then make a 90 degree turn to the right up a steep embankment; that the embankment was so high it was impossible to see whether an automobile was approaching from the opposite side, and, therefore, it was necessary for her to stay on her extreme right; that the right front wheel of plaintiff’s automobile slipped off the eroded or chipped ends of some crossing boards causing the automobile to become stuck on the tracks and be hit by defendant’s train. Plaintiff alleged, among other things, that defendant was negligent in failing to keep said crossing in good repair.

The jury found that defendant failed to keep the crossing at the site of the accident in good repair and that this was negligence and a proximate cause of the collision.' Appellant contends the court erred in overruling its motion for judgment non obstante veredicto because all issues requiring whether specific acts of the defendant were negligent were answered in favor of defendant “and the general charge embodied in Special Issue No. 1 will not — support the judgment” and that the court erred in rendering judgment against defendant “based solely upon the general, global issue that appellant failed to keep the railroad crossing ‘in good repair’ ”. Appellant says that special issues submitting negligence should be restricted to specific acts of negligence alleged and proved and that it is improper to submit the question of defective condition globally without mentioning the particular item of defectiveness pleaded. It cites in support thereof such cases as Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99; Weidmer v. Stott, Tex.Civ.App., 48 S.W.2d 389, (Writ Ref.), and the like. The cases cited by appellants so hold, but, after a study of the entire record, we think it is evident that the case was tried upon plaintiff’s theory that a wheel slipped off the planked crossing because the ends of some of the boards had rotted away and upon defendant’s contention that plaintiff’s daughter simply negligently drove off the edge of the planked crossing. We find no specific objection to* the issues relative to appellant’s failure to keep the crossing in good repair, distinctly pointing out to the trial judge that same should have been more specific and inquired whether appellant was negligent in failing to repair the planks which had eroded, or had been chipped off at the end, if they were. See Texas Rules of Civil Procedure, rule 274; Gulf C. & S. F. Ry. Co. v. Bouchillon, Tex.Civ.App., 186 S.W.2d 1006, (Ref. W. M.); Frozen Foods Express v. Odom, Tex.Civ.App., 229 S.W.2d 92, (Ref. N. R. E.). Appellant says the finding that it failed to keep the crossing in good repair is insufficient to support the judgment; that the proper issue was whether appellant breached its legal duty by failing to maintain the crossing in such a condition that an ordinary prudent person, exercising reasonable care for his own. safety, would have been able to use the crossing in safety, and that in the absence of such a finding appellant cannot be held liable. Under the circumstances, we think the court did not commit reversible error in such submission and that said findings do support the judgment. See 35 Tex.Jur. pp. 173, 174 and 445, 450; Dillingham v. Fields, 9 Tex.Civ.App. 1, 29 S.W. 214, (Writ Ref.); Gulf, C. & S. F. Ry. Co. v. Hector, Tex.Civ.App., 283 S.W. 562; International & G. N. R. Co. v. Douglas, 7 Tex.Civ.App., 554, 27 S.W. 793 (Writ Ref.); 32 Tex.Digest Railroads <⅞=3302; Miller v. Panhandle & S. F. Ry. Co., Tex.Civ.App., 35 S.W.2d 194 (Writ Dis.).

Appellant contends that the court committed reversible error in excluding the statement of Miss Thurman to the conductor, which it says was made less than five minutes after the collision and admissible as res gestae, to the effect that appel-lee’s daughter missed the crossing, lost control of the automobile and dropped off the crossing. Appellee replies that there was no showing that the excluded evidence was a part of the res gestae and, further, that it was inadmissible because it was an opinion and conclusion. Appellant says the conductor reached the crossing where Miss Thurman was within 5 minutes after the collision and that said statement to him at that time was admissible as res gestae and was pertinent to the vital issue relative to Miss Porter’s actions in getting the automobile hung on the rails and specially pertinent to Issue 14, which inquired whether Miss Porter was negligent in driving the front wheel off of the crossing boards, and that such improper exclusion probably resulted in an improper judgment. In support thereof it cites Pacific Mutual Life Insurance Co. v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709, 712, 24 Tex.Jur.2d 102 and McCormick & Ray, Texas Law of Evidence, page 683. Appellee says that appellant’s brief is misleading in inferring that the time element involved was only 5 or 6 minutes; that the statement of Miss Thurman related to the suspension of the automobile on the crossing and not to the collision itself and that appellant did not attempt to show the time that elapsed between the time the car was hung on the crossing and the time Miss Thurman made said statement; that the record shows that after the car was hung on the crossing Miss Porter tried unsuccessfully to drive it off; that, thereafter, Mrs. Reed, who lived about 200 yards from the crossing, came over and attempted to drive the car off and when she was unable to do so Mrs. Reed’s son obtained a tractor, brought it to the crossing and tried to pull the car from the crossing; that a tow-chain broke and he was unable to budge the car; that, after all this had happened, Miss Porter ran down to the curve to attempt to stop any approaching train; that the curve is about 100 yards East of the “crossing board” and that the crossing board is between four or five hundred yards East of the crossing. Appellee further says, and we think correctly, that appellant had the burden of presenting a sufficient predicate for the admission of Miss Thurman’s statement and, having failed to do so, that we cannot hold that the court erred in refusing to admit it. From the slight testimony introduced pertinent to its admissibility, we conclude that it does not raise a reasonable presumption that her statements were “spontaneous utterances of thoughts created by or springing out of the transaction * * Pacific Mutual Life Insurance Co. v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709, 712. It does not show that the statement was volunteered, nor does it show that Miss Thurman knew about the matters with reference to which the statement was made. On the contrary, it indicates that it was merely her opinion and conclusion. See San Antonio Public Service Co. v. Alexander (Tex.Com.App.) 280 S.W. 753, 754 and Southerland v. Porter, Tex.Civ.App., 336 S.W.2d 841 (Ref. N. R. E.). The record does not show that the court erred in excluding said statement.

Appellant’s last two points are that the court erred (1) in permitting appel-lee’s witness Tune to testify to the market value of appellee’s automobile before the collision because his testimony was based on hearsay, and (2) that there is no competent evidence to support the finding that the automobile was reduced in value $1,530.-00. There seems to have been no contest of the testimony of another witness as to the value of the automobile after the collision. Appellant cites Galveston, H. & S. A. Ry. Co. v. Hillman, Tex.Civ.App., 118 S.W. 158 and Aronoff v. Texas Turnpike Authority, Tex.Civ.App., 299 S.W.2d 342, as authority for said contentions. In the Hillman case it was held merely that evidence of value based upon information derived from an unidentified and undescribed catalogue was not admissible. Mr. Tune gave the only testimony as to the value of the automobile before the collision. We think his testimony is reasonably susceptible to the interpretation that, based to some extent upon his extensive dealings in the sale of new and second-hand automobiles in the vicinity, but relying chiefly upon the value of the kind, age and equipment of the automobile owned by appellee as fixed by the National Automobile Dealer’s Association Guide Book that, in Tune’s opinion, the automobile was worth $1,635.00 before the collision. If this is a proper conclusion from all his testimony it was admissible and sufficient to support a finding of the value of appellee’s automobile before the collision. Tune testified that he had worked for new car dealers locally since 1953 and had been in the used car business for himself since 1956; that he could tell what automobiles were worth, “along with the book”; that most automobile dealers in that territory use said book and rely heavily upon it and that it was commonly used in that vicinity. In addition, we think it is a matter of common knowledge that said book is generally used by those who deal in automobiles as a guide in determining value.. Such testimony was not subject to the objection that it was based on hearsay. Mr. Porter had previously described his automobile and its condition before the collision.

In support of the conclusions stated we cite the following authorities: Texas & P. Ry. Co. v. Donovan, 86 Tex. 378, 25 S.W. 10; Southland Greyhound Lines, Inc. v. Richards, (Writ Dis.), Tex.Civ.App., 77 S.W.2d 272; Curtis v. Schwartzman Packing Company, 61 N.M. 305, 299 P.2d 776, 778; Fulwiler v. Traders & General Insurance Company, 59 N.M. 366, 285 P.2d 140, 147; Vise v. Foster, Tex.Civ.App., 247 S.W.2d 274, 281, (Ref. N.R.E.); Southern Kansas Ry. Co. of Texas v. Bennett, 46 Tex.Civ.App. 379, 103 S.W. 1115; Chicago, R. I. & T. Ry. Co. v. Halsell, Tex.Civ.App., 81 S.W. 1241, 1242; King v. Shawver, Tex.Civ.App., 30 S.W.2d 930, 931; Western Cotton Oil Co. v. Mayes, Tex.Civ.App., 245 S.W.2d 280, 283.

After a careful consideration of the record we are of the opinion that reversible error is not shown. All points are overruled. The judgment is affirmed.


author: STEPHENSON, Justice.

text:
    W. R. LAUGHLIN, Appellant, v. GALVESTON-HOUSTON BREWERIES, INC., et al., Appellees.
    No. 6556.
    Court of Civil Appeals of Texas. Beaumont.
    June 7, 1962.
    Motion for Rehearing Overruled June 27, 1962.

      Ted Musick, Houston, for appellant.
    Andrews, Kurth, Campbell & Jones, Houston, Royston, Rayzor & Cook, Galveston, for appellees.
   STEPHENSON, Justice.

Plaintiff brought this action upon an oral contract to recover a 5 percent commission for the sale of a corporation. The defendant’s motion for summary judgment was granted by the trial court. The parties will be referred to here as they were designated in the trial court.

Plaintiff alleged that the president of the defendant corporation agreed to pay plaintiff a 5 percent commission to sell the defendant corporation. Plaintiff further alleged that he found a purchaser to whom the corporation was sold.

Defendant alleged that the sale included land, together with the other assets, and relied upon the Statute of Frauds and upon Sec. 28, Article 6573a, Vernon’s Ann.Revised Statutes, and upon other defenses. Sec. 28, Article 6573a, reads as follows:

“No action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunder lawfully authorized.”

Defendant attached a portion of plaintiff’s deposition to the motion for summary judgment, which showed that plaintiff was not a licensed dealer under the Real Estate Dealers License Act, and that all plaintiff had was a securities license to sell stock.

The order granting the motion for summary judgment contained the following recitation :

“ * * * and the parties thereupon in connection with such motions and reply thereto, introduced in evidence from the deposition of the plaintiff, W. R. Laughlin and from the deposition of Edward A. Stenzel and certain other evidence, including admissions from sworn pleadings * *

There is no statement of facts, no findings of fact set out in the judgment, and no findings of fact and conclusions of law in this record.

The pleadings raise an issue of fact. If this transaction was the sale of corporate stock, then no agreement in writing was necessary and the Statute of Frauds, and Sec. 28, Article 6573a would have no application. On the other hand, if this transaction was the sale by the corporation of its assets, including real estate, then the Statute of Frauds and Sec. 28, Article 6573a would be valid defenses. The duty of the trial court hearing the motion for summary judgment was to determine whether there were any issues of fact to be tried, and not to weigh the evidence and determine its credibility. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. However, mere pleadings do not show that there is a genuine issue of fact thus preventing a summary judg-ent, but the showing is to be made by deposition, admissions, affidavits or like proof, one, some or all. Doneghy v. State, Tex.Civ.App., 334 S.W.2d 506.

The burden of proving that there was no genuine issue of any material fact was upon the party moving for judgment and all doubt as to the existence of a genuine issue of any material fact must be resolved against the party seeking the summary judgment. Gulbenkian v. Penn, supra. However, this court must assume that the trial court heard all of the evidence and properly concluded there was no genuine issue as to any material fact. Where there is no statement of facts in the record, every presumption must be applied in favor of the trial court’s judgment. Salmon v. Fidelity Bank & Trust Co., Tex.Civ.App., 258 S.W.2d 837. See, also, McElyea v. Parker, 125 Tex. 225, 81 S.W.2d 649.

The judgment is affirmed.


author: WERLEIN, Justice.

text:
    Richard W. GORSALITZ et ux., Appellants, v. Dr. G. G. HARRIS, Appellee.
    No. 13978.
    Court of Civil Appeals of Texas. Houston.
    Sept. 20, 1962.
    Rehearing Denied Oct. 11, 1962.
    John H. Holloway, Houston, for appellants.
    Joe Kegans, Fulbright, Crooker, Freeman, Bates & Jaworski, Quentin Bates, Houston, for appellee.
   WERLEIN, Justice.

Appellants, Richard W. Gorsalitz and wife, brought this suit against Dr. G. G. Harris, a dentist, to recover damages for personal injuries allegedly sustained by Mrs. Gorsalitz and proximately caused by ap-pellee’s negligence in connection with the extraction of her upper right first molar and post-operative treatment thereof. At the conclusion of appellants’ evidence, the court on motion of appellee instructed a verdict in favor of appellee, and entered judgment thereon that appellants take nothing.

It is necessary to review briefly the evidence in an effort to determine whether appellants alleged and established acts or omissions of negligence on the part of appellee proximately causing injury to Mrs. Gors-alitz. Mrs. Gorsalitz testified that appellee in extracting her tooth on July 14, 1958 broke the tooth; that after probing around in the cavity and extracting three little pieces, appellee took an x-ray and stated he had it all; that he sewed up the wound and advised her to use a salt rinse and return in a week; that when she returned he postponed removal of the stitches for another week; that when she went back three weeks from the date of the extraction he said that it hadn’t healed up but he would go ahead and remove the stitches because if it hadn’t healed in three weeks, it wasn’t going to heal; and that the swelling in her jaw gradually went down after the stitches were removed.

She further testified that in September, 1959, she started having trouble and went to another dentist, Dr. Henry Rosenbloom, who took x-rays showing a tooth root tip in her jaw; that she then called on appellee and showed him the x-ray; that appellee removed the root tip; that about three weeks after he removed the root tip he took the stitches out; that he informed her there was a hole that had not closed, and told her to see an oral surgeon; that she then saw one Dr. McKay, general practitioner, who gave her penicillin shots, and referred her to Dr. C. Amberson Curl, who x-rayed her jaw and sent her to the Medical Arts Hospital where on October 13, 1959 an operation was performed to effect a closure of the hole at the base of the sinus. The stitches were removed three weeks thereafter.

The three dentists who testified: appel-lee, Dr. Curl and Dr. Rosenbloom, were all from the same school of dentistry. Appel-lee admitted that the root tip that was removed by him came either from the tooth which he had extracted or from a tooth extracted some years before by a dental surgeon in Washington, D. C. Dr. Rosen-bloom testified positively that the root tip in question was from the first upper right molar, which had been extracted by Dr. Harris, and that the x-ray showed it was right next to the second molar. Appellee testified that when Mrs. Gorsalitz first came to him, she had a generalized infection around the tooth in question and all the remaining teeth; that in extracting the tooth he found that the floor of the sinus was fused to two of the three roots of the upper molar, and in pulling the tooth a part of the floor of the sinus or antrum to which the roots were fused came out and the sinus was completely exposed through the socket; that he told Mrs. Gorsalitz that he had torn part of the “roof” of the sinus away; that the root tip was a type of foreign matter which he definitely would not want to put into a sinus cavity, and that if it were injected into the sinus cavity there was probably a 50% chance that nothing would occur, but also a 50% chance that it would cause chronic sinusitis or sinus infection or a continuance of an infection.

Appellee further testified that he took an x-ray of the cavity or socket after extracting the tooth and before probing therein; that his x-ray did not show the root tip; that the three prongs were intact on the tooth when extracted and it was not broken and all bone came out with it; that the extraction was not a normal one due to the fusion of two of the roots to the floor of the sinus, but that while unusual, it was not out of the ordinary in such case for a part of the floor of the sinus to come out; that in extracting the tooth he also pulled out about one inch of the membrane from within the sinus cavity; that from medical standards of his profession the leaving of a root tip or a foreign unattached body in the gum or sinus area without referral to an oral surgeon would be lack of due care; that it would be careless for a doctor of dentistry such as he not to ascertain that all of the fragments of an extracted tooth had been removed before releasing the patient from his office unless released to go to another dentist or oral surgeon; that after the extraction on July 14, 1958, when Mrs. Gorsalitz came back for post-operative examination she had a cold and .her sinus had reopened and he referred her to Dr. Curl and gave her an antibiotic prescription to have filled; that he didn’t remember whether the hole was still open when she came back on August 6, 1958; that it was obvious she didn’t go to Dr. Curl since she didn’t tell him about it; and that the root tip was removed by him on September 18, 1959 from the same socket from which he had removed the molar. No charge was made for its removal.

Appellants introduced an exhibit in the handwriting of appellee consisting of a certificate for Hughes Tool Company, dated October 15, 1959, in which was written: “Root tip from previous extraction entered sinus opening of affected area. Removed and tissue closure again attempted 9/14/59 —unsuccessful. Needs closure by oral surgeon.”

Dr. Curl testified in substance that when Mrs. Gorsalitz came to him on September 30, 1959 she had a hole in the antrum which needed to be closed; that such hole was probably large enough for the root tip in question to be induced into the sinus cavity; that if a closure does not follow the extraction within two weeks, a normal dentist would have some suspicion that something might be wrong and refer the patient to an oral surgeon or an ear, nose and throat man if the cause was a root tip; that in the case of Mrs. Gorsalitz an infection kept the hole from closing; that he felt the failure to close was the result of generalized sinusitis but that he couldn’t tell what caused the infection; that it could have resulted from bacteria in the air; that a root tip could cause it and could be a contributing factor; that.it would be a want of care on the part of a dentist not to advise the patient that the sinus cavity had been opened by a tooth extraction; that it would be lack of care if he failed to tell the patient that part or all of the membrane had come out of the sinus cavity with the extraction; that if the dentist has some question in his mind whether he is competent to do a closure, it would be lack of ordinary care on his part not to send the patient on his first occasion to a qualified oral surgeon; that if a root tip is broken off a molar, he would not probe the socket before making an x-ray if he couldn’t see the root tip; that it would not be ordinary care to probe first and would be a violation of general dentistry practice; that it would be careless to probe if you knew that the cavity had been opened by the extraction, and would be more careless to probe without an x-ray; and that the operation in October, 1959 was the same type he would have performed in August or September, 1958, a month or two after the extraction.

Dr. Curl testified further, as follows:

“Q Doctor, it not only reasonably probably could have contributed to it, but the requirment of taking it out was a contributing cause, wasn’t it?
“A It may or may not have been, sir. I don’t know how hard it was to get out.
“Q I am saying that the opening back up of that cavity to take the tip out was one of the reasons that it was necessary to close it, wasn’t it? When you did effect the closure?
“A It could have contributed thereto.”

In viewing the evidence most favorably from the standpoint of appellants, we have concluded that there are fact issues in the case with respect to negligence on the part of appellee. Indeed, appellee’s counsel, while not conceding negligence on the part of appellee, has not undertaken in his brief to contend seriously that there are not fact issues in the case which would warrant findings of negligence. Appellee contends, however, that appellants have failed to establish that any act of negligence on his part was a proximate cause of damage to appellants.

After a very careful study of the record, we have concluded that appellee’s contention must be sustained. Mrs. Gorsalitz testified that the swelling of her jaw went down the next week after removal of the stitches following the extraction of her tooth in 1958. She continued to work, suffered no pain, had no trouble with her sinuses from the root tip, and was not bothered in any way whatever. In September, 1959, more than a year later, she started having trouble and went to Dr. Rosen-bloom to get an estimate on a dental plate. Dr. Rosenbloom took x-rays preliminary to doing the work and discovered that one of the x-rays showed the root tip in the socket of the first molar and right next to the second molar. At such time she had an infection and abscess. There is no medical testimony that such condition was probably caused by the root tip. The medical evidence at best shows that the root tip could have caused or contributed to the infection and the necessity for an operation to effect a closure and the alleged injury and expense resulting therefrom. It was not shown that the root tip, whether in the sinus or in the socket next to the second molar, probably kept the floor of the sinus open and necessitated the operation to effect a closure. Dr. Harris testified that in 50% of the cases a root tip in the sinus would not cause any trouble at all. The testimony of Mrs. Gorsalitz shows that for more than a year after the stitches were removed following the extraction she had no sinus trouble or trouble of any kind. The medical evidence shows also that an infection such as she had which kept open the hole in the floor of the sinus could have resulted from causes other than a root tip.

It seems clear that under the authorities in this State it is necessary for a plaintiff, in order to recover against a doctor or dentist in a malpractice suit, to show that the injury or condition was probably caused by some negligent act or omission on the part of the doctor or dentist and not merely that such negligent act or omission could or might have caused the injury or condition. In Bowles v. Bourdon, Tex.1949, 219 S.W.2d 779, the court stated:

“It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries.” In that case the evidence showed that if there was negligence it was only a possible and not a probable cause of the injury. The court quoted with approval the language of Circuit Judge Taft in Ewing et al. v. Goode, 6 Cir., 78 F. 442, 444, as follows:

“ ‘ * * * when the burden of proof is on the plaintiff to show that the injury was negligently caused by defendant, it is not enough to show the injury, together with the expert opinion that it might have occurred from negligence and many other causes. Such evidence has no tendency to show that negligence did cause the injury.’ ”

The court also quoted with approval the following language from Ramberg v. Morgan, 209 Iowa 474, 218 N.W. 492, 498: “The proof must establish causal connection beyond the point of conjecture. It must show more than a possibility. Verdicts must rest upon reasonable certainty of proof.”

See also Kaster v. Woodson, Tex.Civ.App., 123 S.W.2d 981, writ ref., in which the court said:

“So, without medical testimony as to the probable cause of an infection or its source, the court and jury are not qualified to pass upon the question. The mere fact that infection set up in appellant’s arm three or four days after a hypodermic needle was injected will not suffice as proof that the physician, or his nurse who gave the injection, was negligent in failing to sterilize the needle or skin of appellant’s arm before the injection. Infection comes from many sources, and there must be affirmative proof of such negligence or lack of care, and that the injuries complained of resulted therefrom; *

See also Giesenschlag v. Valenta, Tex.Civ.App., 225 S.W.2d 914, writ ref., n. r. e.; Devereaux v. Smith, Tex.Civ.App., 213 S.W.2d 170, writ ref., n. r. e.; Barker v. Heaney, Tex.Civ.App., 82 S.W.2d 417, writ dism.

The judgment of the trial court is affirmed.

On Motion for Rehearing

In their amended motion for rehearing appellants have called our attention to certain fact issues which we failed to consider in the foregoing opinion. There is ample evidence raising a fact issue as to whether the leaving of the root tip in Mrs. Gors-alitz’s gum or sinus constituted negligence on the part of appellee. We adhere to our original opinion that there is no medical testimony that any such negligence probably caused the conditions necessitating the closure of the sinus cavity and the damages Resulting therefrom. On reviewing the record we have concluded, however, that there is testimony which would warrant findings that such negligence, if any, necessitated the operation to remove the root tip and was a proximate cause of damages resulting therefrom.

There is evidence that in removing the root tip, appellee made an incision in Mrs. Gorsalitz’s gum and then sewed it up, and that she was in appellee’s office some 45 minutes to an hour and had to return three times before the stitches were removed. After the stitches were removed she was advised to see an oral surgeon to effect a closure of the sinus cavity. It is a matter of common knowledge that the operation for extraction of the root tip necessarily caused some pain or suffering, both physically and mentally. Houston Clinic v. Busch, Tex.Civ.App., 64 S.W.2d 1103, writ dism.

Since the case will have to be retried, we think it will serve no useful purpose to discuss the evidence further. The motion for rehearing is granted and the cause is reversed and remanded for new trial.


author: MURRAY, Chief Justice.

text:
    CUPPLES CORPORATION, Appellant, v. Charles SNELL, Appellee.
    No. 13983.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 26, 1962.

      Levey & Goldstein, San Antonio, for appellant.
    Glasscock & Glasscock, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by Charles Snell in the County Court at Law No. 1 of Bexar County, Texas, against Cupples Corporation, I. Wolf and Frances Levenson, seeking to recover the sum of $252.00 as the contract price for a job of painting done by plaintiff for defendants on the exterior of an apartment house owned by defendants, located at 1509 Cupples Road, San Antonio, Texas.

The trial was before the court without the intervention of a jury and resulted in judgment in favor of Charles Snell against Cupples Corporation in the sum of $252.00, together with interest, from which judgment Cupples Corporation has prosecuted this appeal.

Appellant contends there is no evidence to show that appellee painted the apartment house in a satisfactory manner, and therefore the trial court erred in rendering judgment in appellee’s favor, and, in any event, the finding that the appellee properly performed his contract, was against the great weight and preponderance of the evidence and manifestly unjust. We overrule these contentions. The evidence shows that the paint used was furnished by appellant. Appellee testified that he performed the services as agreed to under the oral contract, and that appellant refused to pay him. Appellee further testified that no complaint as to the painting job was made by the representatives of appellant until he refused to purchase two lots from appellant and have $150.00 of the amount due him applied as a down payment on the two lots. The evidence further shows that appellant tendered to appellee a check for the sum of $126.00, bearing the following notation:

Less: Deposit on lots 1 &
2, block 15, neb 7258, Bexar County, Texas 1126.00
$126.00
Paint Job 1509 Cupples Road

Thus it will be seen that appellant was willing to pay appellee the full contract price of $252.00 for the painting job, provided appellee would buy the lots from appellant and accept one-half of what was due him as a credit on the purchase price. The trial judge could have inferred from the evidence that the contention that the work had not been done in a satisfactory manner was an afterthought which occurred to appellant and its officers when appellee refused to buy the two lots. In an attempt to show that appellee had agreed to purchase the lots, appellant offered in evidence two contracts purporting to constitute a sales contract of the two lots. Neither of these contracts was signed by appellee. He did make some alterations in the first contract and initialed each of the corrections or changes, but appellee did not sign on the line left for his signature at the end of the contract. His wife did sign this contract. No one signed for appellee. The contract was thereafter rewritten, making the changes suggested by both appellee and his wife, but this new contract was not executed by either appellee or his wife. If appellant considered the first contract a fully executed contract, why was the second contract prepared? The initials of ap-pellee upon the first contract could be regarded as appellee’s signing of the contract, if that was his intention. Jones v. Fox Film Corp., 5 Cir., 68 F.2d 116. An examination of the contract shows that ap-pellee was only initialing his suggested corrections or changes, and he swore he never intended to execute the contract, and that he told the representatives of appellant at all times, he was not going to buy any lots. The trial judge had a right to believe him and find in effect that he never agreed in. writing or otherwise to purchase any lots from appellant.

The judgment of the court is supported by evidence of probative force, and is not against the weight and preponderance of the evidence. The judgment is affirmed.


author: WILSON, Justice.

text:
    CITY OF SAN ANTONIO et al., Appellants, v. The CONGREGATION OF the SISTERS OF CHARITY OF the INCARNATE WORD et al., Appellees.
    No. 4064.
    Court of Civil Appeals of Texas. Waco.
    Sept. 20, 1962.
    Rehearing Denied Oct. 11, 1962.

      Crawford B. Reeder, San Antonio, Will Wilson, Atty. Gen., Morgan Nesbitt, Asst. Atty. Gen., Austin, Truehart, McMillan & Russell, San Antonio, for appellants.
    Pat Maloney and Jack Pasqual, San Antonio, O’Quinn, McDaniel & Randle, Austin, Perry Rowan Smith, San Antonio, for appellees.
   WILSON, Justice.

Summary judgment was rendered for ap-pellees in their declaratory judgment action; and the City of San Antonio, the State of Texas and the State Highway Commission were permanently restrained from furthering an attempt to effect conveyance of a portion of Brackenridge Park, or the construction of a highway thereon. Appellants do not contend the judgment was improper because of existence of material fact issues; they urge the judgment was erroneous even if the facts alleged by appellees are true. Appellants’ motion for summary judgment was overruled.

Appellees prayed for a declaration that Arts. 1017-1020 and 1112, Vernon’s Ann. Texas Stat. prohibit conveyance by the City without an election; for a declaration that the City is not authorized to convey; for an injunction, and alternatively, for a declaration that the conveyance would effect divestiture of the City’s title to additional park property. The injunction was the only specific relief granted.

Appellants’ initial contention is that plaintiffs had no justiciable interest authorizing them to maintain an action for injunction and declaratory judgment. The following facts, the parties tell us, may be assumed to be true: Appellees, a religious order and individuals, own and occupy property abutting 390 acre Brackenridge Park in San Antonio. A large portion of the park area was dedicated to the City in 1899 by conveyances providing that jt should not be used for any other purpose than a public park; that the City should never alienate, convey or encumbe^ any part of it; and, in effect, that if these conditions should be breached, the title thereto should vest in the State for the benefit of the University of Texas.

The City passed an ordinance and entered into a contract with the State providing that the City would convey to the State a portion of the park lands as right-of-way for an expressway. Appellees acquired, maintained and improved their lands in reliance on the provisions of the dedicatory deeds and dedication of- the property to exclusive use as a park. The proposed multi-lane highway will carry a heavy volume of traffic which will substantially impair a portion of the park area, rendering it unfit for park purposes; and the valuable property of appellees will be substantially depreciated in value by the proposed construction. Some of these facts are stipulated; others appellants do not conclusively admit, but state the truth of all may be assumed for purposes of this appeal.

We are of the opinion appellees do have the requisite justiciable interest in the subject matter of the suit to entitle them to maintain a portion, at least, of the action. Lamar County v. Clements, 49 Tex. 347; Corporation of Seguin v. Ireland, 58 Tex. 183; City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754; Clement v. City of Paris, 107 Tex. 200, 175 S.W. 672 on certificate from Tex.Civ.App., 154 S.W. 624; Look v. El Paso Union Passenger Depot Co., Tex.Com.App., 228 S.W. 917; Fall v. Thompson, 126 Tex. 326, 87 S.W.2d 712, 713; State v. Clark, 161 Tex. 10, 336 S.W.2d 612, 614; 26 C.J.S. Dedication § 71 p. 569; 39 Am.Jur. 842; 31 Tex.Jur. 1338.

Appellants rely on San Antonio Conservation Society v. City of San Antonio, Tex.Civ.App., 250 S.W.2d 259, writ refused; Halpenny v. City of San Antonio, Tex.Civ.App., 351 S.W.2d 939, no writ; Kingsville Independent School Dist. v. Crenshaw, Tex.Civ.App., 164 S.W.2d 49, writ ref. w. m.; and Clark v. City of Corpus Christi, Tex.Civ.App., 301 S.W.2d 168, no writ, in support of the argument that “only lawfully constituted guardians of the public interest may maintain actions for the redress of injuries to the general public”; and that individual citizens have no such general interest in a park as to entitle them to enjoin diversion to another use, but are limited to relief by an action for damages. That these decisions are not determinative of the present problem is demonstrated in State v. Clark, 161 Tex. 10, 336 S.W.2d 612, 617.

Appellants thereupon say that the State and City have the power of eminent domain over the park land involved, and the City is therefore legally authorized to execute the voluntary conveyance enjoined. Appel-lees answer that the case is governed by the general rule stated in Zachry v. City of San Antonio, 157 Tex. 551, 305 S.W.2d 558, 560, that no use inconsistent with use of dedicated park property may be made so long as it is so used by the public; that neither City nor State is authorized to con-deran the park property already dedicated and devoted to a public use; that the proposed conveyance would violate the provisions of the deed; that no election seeking consent of qualified voters of the City under Arts. 1017-1025 and 1112, V.A.T.S. has been held.

The rule in the Zachry case, above, relied on by appellees, was applied in an attempted alienation by the City to a private person having no. power of eminent domain, and the rule was qualified by holding the municipal corporation could not divest itself of title “without special authority from the legislature.”

We think the provisions of Art. 6674w-3 V.A.T.S. are so comprehensive and specific as to leave no doubt of the intention of the Legislature to empower the State to acquire the land in question by eminent domain proceedings, as well as by purchase. It authorizes condemnation of “Any land or any estate or interest therein; any property rights of any kind or character” which the State Highway Commission deems necessary or convenient to any State highway to be constructed, “regardless of the location of any such land, property rights, or material to be acquired,” including that located within “the confines of any incorporated city.” Only specified property “used and dedicated for cemetery purposes” is excluded. Purchase of any fee simple or lesser estate and “any property right” is authorized. Section 2 of that Article expressly provides that whether purchased or condemned, the property rights encompassed “include those belonging to the public” under the jurisdiction of any city. Since the State through its agency has the express power to acquire the land by purchase or condemnation, it becomes immaterial to determine whether power of condemnation is vested in the City.

Article 6674w-3 authorizes the governing body of every city “to make conveyance of title or rights and easements” owned by it “to any property needed by the State Highway Commission to effect its purposes in connection with the construction or operation of the State Highway system,” including “those belonging to the public” under its jurisdiction. We think the statute is not restricted in application to interstate and defense controlled system highways as appellees contend.

Arts. 1017-1020 and 1112, V.A. T.S. prohibiting the selling of a public park without approval by a vote of the qualified electorate do not preclude the conveyance enjoined here. In City of Tyler v. Smith County, 151 Tex. 80, 246 S.W.2d 601, 607, the Supreme Court directed a county (which asked on rehearing whether the court’s original opinion prevented a street being opened through the dedicated public square of a home-rule city having the power of eminent domain) to refer to Kingsville Independent School District v. Crenshaw, Tex.Civ.App., 164 S.W.2d 49 to see how this could be “accomplished even without resort to condemnation proceedings.” The procedure in the latter case was substantially what is here enjoined. See El Paso County v. City of El Paso, Tex.Civ.App., 357 S.W.2d 783, no writ. To construe the statutes relied on by appellant as making an election prerequisite in the instant case would be to let a negative vote vitiate the specific power granted by Art. 6674w-3. That statute authorizes the governing body of the city to make conveyance “without any form of advertisement”, and had the effect, we think, of obviating necessity for an election in the present situation. The power granted the State to condemn is not subject to consent of the electorate, and so in the present case, the concomitant authority of the City to convey without being subjected to condemnation is not so restricted.

Since the trial court granted the injunction, which is here dissolved, appel-lees’ alternative prayer for judgment declaring that conveyance would effect divestiture of title was not reached, and we think we are here required to render the judgment which should have been rendered. The effect of the proposed conveyance is not determinative of the authority for its execution, the authority of the State to construct the highway, or any consequent rights of appellees now before us. Hence, no justiciable controversy is presented such as would authorize declaratory judgment on that question, even if it be assumed (which we do not decide) that appellees have a justiciable interest under Art. 2524-1, Sec. 2 in the subject matter of the declaration thus sought. McKinney v. Blankenship, 154 Tex. 632, 282 S.W.2d 691, 697; California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780. The alternative prayer calls, consequently, for an advisory opinion. The judgment is reversed, the injunction is dissolved, and judgment is rendered that ap-pellees take nothing.

      . Writ ref. w. m., Oct. 14, 1942. Adopted, Kingsville, Independent School Dist. v. Crenshaw, Tex.Civ.App., 252 S.W.2d 1022, writ refused, Oct. 6, 1943, per Clerk, Supreme Court.


author: COLEMAN, Justice.

text:
    Helen S. STRAUSS, Appellant, v. Lewis LA MARK et al., Appellees.
    No. 13916.
    Court of Civil Appeals of Texas. Houston.
    July 13, 1962.
    Rehearing Denied Oct. 11, 1962.

      Milton Schwartz, Mabel Grey Howell, (on motion for rehearing), Houston, for appellant.
    Butler, Binion, Rice & Cook, John L. McConn, Jr., Clyde Bracken, Houston, for appellees.
   COLEMAN, Justice.

This is an appeal from a judgment for •the defendant in a personal injury case.

Appellant, an elderly woman, alleged that she received serious personal injuries by reason of a fall in the beauty shop owned and operated by appellees, caused by tripping over an electrical cord negligently permitted by appellees to remain in an aisle of the shop.

Special Issue No. 1 read:

“Do you find from a preponderance of the evidence that at the time and on the occasion in question the electric cord attached to the hair dryer extended into the aisle of the beauty shop ?”

Other issues inquiring of the negligence of appellees and contributory negligence of appellant were predicated on an affirmative answer to Special Issue No. 1. The jury did not answer these issues since they answered Special Issue No. 1 in the negative. In answer to Special Is'sue No. 9 the jury found that the fall was the result of an unavoidable accident.

Appellant seeks reversal of the judgment on the ground that the jury’s answer to Special Issue No. 1 is contrary to the great weight and preponderance of the evidence and that the jury’s answer to Special Issue No. 9 is supported by no evidence, or insufficient evidence.

We have concluded that this case must be reversed and remanded for a new trial for the reason that the answer made by the jury to Special Issue No. 1 was contrary to the great weight and preponderance of the evidence.

There was testimony by a disinterested witness that the electric cord had extended into an aisle of the beauty shop all the morning prior to the accident. The plaintiff testified that at the time of the accident she felt a pull at her foot and leg and that after she fell she saw the cord and realized that she had tripped over it. No other witness saw the cord in the aisle prior to the accident; neither did any of them testify to facts from which the conclusion could reasonably be drawn that they necessarily would have seen the cord had it been in the aisle. It is undisputed that the cord was in the aisle immediately after the appellant fell and that one of the prongs of a transformer, into which the cord was plugged, was broken off. The chair to which the cord was attached was moved a few inches, but the cord had at least two feet of slack. One of the appellees testified that the chair was very heavy and that bumping into it would scarcely move it, and that it could not be pushed more than two feet because of the conduit beneath it. It is undisputed that the cord was pulled away from the transformer and the transformer broken at the time of appellant’s fall. If the cord was in its accustomed place under the chair prior to the fall, we find no reasonable explanation for its presence in the aisle. In view of the evidence in the record and the wording of Special Issue No. 1, we think it immaterial whether the cord was in the aisle to the rear of, or the side of, the first dryer chair.

Since under the instructions of the court the jury was not permitted to consider the negligence issues, the answer made to Special Issue No. 9 concerning unavoidable accident would not authorize the rendition of a judgment for appellees.

Since the question of unavoidable accident will probably arise on a retrial of this cause, we have considered appellant’s assignments of error relating thereto. In determining whether or not to submit an issue on unavoidable accident, the rule announced by the Supreme Court in Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790: * * * if the evidence does not raise the issue that the something other than the negligence of one of the parties caused the injuries, then it does not raise the issue of unavoidable accident,” must be applied.

Viewing only the evidence favorable to the verdict, we find that appellant testified that immediately before the fall she experienced a pulling sensation on her foot and leg. There was no testimony of slipping or becoming overbalanced. No one else testified as to the cause of the fall. We find no testimony from which an inference of a spontaneous break in appellant’s leg could reasonably be drawn. The trial court erred in submitting the issue of unavoidable accident.

We deem it unnecessary to discuss the other points of error assigned by appellant since they probably will not arise in the event of a retrial of this case.

Reversed and remanded for a new trial.

On Motion for Rehearing

Appellees contend that the judgment must be affirmed despite our conclusion that the answer made by the jury to Special Issue No. 1 was so against the great weight and preponderance of the evidence as to be clearly wrong. Special Issues 2 through 6 inquiring as to the primary negligetice of. appellees were conditioned upon an affirmative answer to Special Issue No. 1. The jury answered this issue in the negative and, under the instructions of the court, made no answers to Issues 2 through 6. Appellant did not object to this conditional submission.

By permitting a conditional submission of Special Issues 2 through 6 without objection, appellant waived her right to have a jury trial on the unanswered issues and the benefit, if-any, she might have received from favorable answers to such issues. Rules 272 and 279, Texas Rules of Civil Procedure; Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985; Whiteside v. Tackett, Tex.Civ.App., 229 S.W.2d 908, error dism.; Duval County Ranch Company v. Foster, Tex.Civ.App., 318 S.W.2d 25, ref., n. r. e.

Under the facts of this, case an objection to the conditional submission could properly have been denied by the trial court. Although we have held that the jury’s answer to Special Issue No. 1 should be set aside, there was evidence which required that the issue be- submitted to the jury. Appellant’s' position is that she should not he required to make what in essence would have been merely a formal objection in order to preserve her right to complain of the subsequent action of the jury. It appears, however, that the law is now settled to the contrary.

In Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, the Supreme Court held that by failing to ob-. ject to the conditional submission of an is-, sue, a party waived his right to a jury trial on the unanswered issue. There the trial court submitted “proper lookout” in such a way that a finding of failure to keep a proper lookout was necessarily negligence. Predicated on an affirmative finding on this issue the Court submitted an issue inquiring whether the failure to keep a proper lookout was negligence. The following issue concerning proximate cause was conditioned on an affirmative answer to the negligence issue. The jury found failure to keep a proper lookout, but returned a conflicting answer of no negligence, and. did not answer the proximate cause issue. The plaintiff had a valid objection to the action of the court in conditioning the proximate cause issue on the unnecessary negligence issue.

The Supreme Court held that Rule 279, Texas Rules of Civil Procedure, required that the unanswered issue on proximate cause be taken as having been answered by the court in such manner as to support the judgment.

This necessarily is a holding that a conditional submission of an issue, where such issue is not answered by reason of such conditional submission, is equivalent to a failure to submit, and, that under the rule, if an unconditional submission is not requested, and no objection to such conditional submission is made, such omitted issue must be deemed found by the court in such manner as to support the judgment.

In Whiteside v. Tackett, supra, the court said:

“Establishment of title by ten years adverse possession was appellants’ sole ground of recovery. The conditional .submission of this issue to the jury was equivalent to no submission at all when the event upon which its submission hinged did not occur. We, therefore, conclude, limitation title not having been established as a matter of law, that appellants waived their only ground of recovery.

“This holding may seem severe in view of our decision that the answer of the jury to the first special issue was unwarranted, but a contrary ruling would be opposed to the law declared by the Supreme Court, as we understand it, would conflict with Rules 272 and 279, T.R.C.P., and would result in the trial of cases piecemeal.”

These cases, and others cited therein, are determinative of the question before us. The motion for rehearing is granted and the judgment of the trial court is affirmed.

      . “Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived; but where such ground of recovery or of defense consists . of more than one issue, if one or more of the issues necessary to sustain such ground of recovery or of defense, and necessarily referable thereto, are submitted to and answered by the jury, and one or more of such issues are omitted, without' such request, or objection, and there is evidence to support a finding thereon, the trial court, * ⅜ ⅛ may * ⅞ ⅜ make and file written findings * ⅝ *, but if no such written findings are made, such omitted issue or issues shall be deemed as found by the court in such manner as to support the judgment.”


text:
    Francisca G. THRASH, Appellant, v. Domitila P. COCHRAN et vir, Appellees.
    No. 13989.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 19, 1962.

      Lloyd, Lloyd & Dean, Alice, for appellant.
    Luther E. Jones, Jr., Corpus Christi, Nago Alaniz, San Diego, for appellees.
   MURRAY, Chief Justice.

This suit is for the custody and care of Dúane Vera Thrash, a girl seven years of age. Mrs. Francisca G. Thrash, on January 15, 1962, filed a petition for a writ of habeas corpus in the District Court of Jim Wells County, Texas, seeking to take the custody of Duane from her mother, who is now Mrs. Domitila P. Cochran, and have such custody awarded to herself. Mrs. Cochran, joined by her husband, James E. Cochran, filed a plea of privilege to be sued in Bexar County, Texas, the county of their residence, and the residence of her daughter. The plea of privilege was controverted by Mrs. Francisca G. Thrash. After notice and hearing, the trial court sustained the plea of privilege and ordered the cause transferred to Bexar County, from which judgment Mrs. Francisca G. Thrash has prosecuted this appeal.

The all important question in this case is whether the petition for a writ of habeas corpus, filed by Francisca G. Thrash instituted a new and independent cause of action or whether it was a part of a former cause pending on the docket of the District Court of Jim Wells County, Texas. Thus it becomes important to state the history of the divorce proceedings of Donald A. Thrash and his former wife, Domitila P. Thrash, now the wife of James E. Cochran.

By a decree entered in the Minutes of the District Court of Jim Wells County, dated October 15, 1957, in Cause No. 10842, styled Domitila P. Thrash v. Donald A. Thrash, Domitila P. Thrash was granted a divorce from Donald A. Thrash and the custody of their two and one-half year old daughter, Duane Vera Thrash, was awarded to her father, with the right of the mother to take her daughter with her from the 15th day of June to the 15th day of August of each year, and it was provided that each parent would have the right to visit the child while in the custody of the other parent.

On June 16, 1961, the mother of the child, joined by her present husband, James E. Cochran, filed a petition for a writ of habeas corpus, complaining of her former husband, Donald A. Thrash, alleging that he had refused to deliver Duane to her for a two months visit, as was provided in the decree, and asking for an order to Donald A. Thrash to immediately deliver the child to her. The trial court granted the temporary order prayed for, and in obedience to this order the child was delivered to her mother.

Thereafter, on June 19, 1961, Donald A. Thrash filed an answer and cross-action, asking that the order of June 16, 1961, be dissolved and a hearing be set upon the petition. The trial court dissolved the temporary order of June 16, 1961, and set the matter for a hearing on July 14, 1961. This hearing was never had. On October 2, 1961, the court noted on its docket “Dismissed for want of prosecution.” Also in the court minutes was found the following: “No. 10842 — Domitila Thrash vs Donald A. Thrash — Dismissed for want of prosecution.”

On September 20, 1961, Donald A. Thrash died, and on January 15, 1962, his widow, Francisca G. Thrash, filed, under the same style and number, a petition for a writ of habeas corpus, informing the court of the death of her husband, asking that her name be substituted for that of her deceased husband, and that she be awarded the custody of Duane. It was to this petition that the plea of privilege was sustained and the cause transferred to Bexar County.

The petition filed by Francisca G. Thrash was a new cause of action for the custody of Duane Vera Thrash, the venue of which lay in Bexar County, the domicile of both Mrs. Cochran, the mother, and Duane, the daughter. 20 Tex.Jur.2d, § 343, p. 673. The litigation pending between Mrs. Cochran and her former husband was brought under the provisions of Art. 4639a, Vernon’s Tex.Civ.Stats., and was terminated by the death of Donald A. Thrash, if it had not previously been dismissed by the court. We do not find it necessary to determine whether the notations found on the docket and in the minutes of the court were sufficient to effect a dismissal of the cause.

Francisca G. Thrash had no right to intervene in the proceedings between the original parties to the divorce suit. It is true that her husband had been awarded the custody of his daughter Duane, but this was personal to him. It was a right which his widow could not inherit from him. Neither could he assign the custody of his daughter to his second wife who was a stranger to the blood of Duane. Upon the death of her father, the custody of the •daughter automatically went to her mother. Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79; Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551.

The right of one of the parties to have the custody of a child or children modified or changed, upon a showing of changed conditions since the entry of the divorce decree, is given, by Art. 4639a, supra, only to a party to the original divorce case and cannot be asserted by a stranger to such cause.

In Prock v. Morgan, Tex.Civ.App., 291 S.W.2d 489, this Court said:

“Here we have a suit by an outsider (the paternal grandmother) against the natural mother to take from such mother her child and have the custody awarded to such plaintiff upon a showing only of changed conditions since the rendition of the original decree of divorce. We are of the opinion that, regardless of the fact that there was no plea of want of necessary parties plaintiff, this suit cannot, be regarded as a suit brought under the provisions of Art. 4639a, where changed conditions only are required to be shown. Such a suit can be maintained only by a party to the original decree of divorce.”

When Donald A. Thrash died the controversy between him and his former wife terminated. There was nothing further that could be adjudicated between them under the provisions of Art. 4639a, supra, and Francisca G. Thrash, a person who was not a party in any way to the original suit, could not carry on litigation limited to the parties to the original divorce suit.

If Mrs. Francisca G. Thrash felt that Duane’s natural mother was an unfit person to have the custody of her own daughter, or that Duane was a dependent and neglected child, she should have filed a new and independent cause of action under the provisions of Arts. 2330 and 2331, Vernon’s Ann.Civ.Stats., and the venue of such statute is in the county of the domicile of the mother and daughter. In Adams v. Messer, Tex.Civ.App., 335 S.W.2d 676, the Court said:

“So far as that part of the suit setting up the changed conditions is concerned and relitigating the custody of the children, it is a new suit and would have to be brought in the county in which the children reside. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Poindexter et al. v. O’Neill et vir, Tex.Civ.App., 313 S.W.2d 158. The appellants reside and have their abode in Ector County and Mrs. Adams has the full care, custody and control of the said children and the children reside with her in Ector County and we think venue herein is in Ector County.”

In 20 Tex.Jur.2d, p. 672, Sec. 342, it is stated:

“In a proper case, the decree awarding custody in a suit for divorce may be modified or corrected by the court during the term at which the judgment was rendered. After the close of the term, however, a supplemental or amended judgment changing custody is invalid, since the court does not retain continuing jurisdiction over the matter of custody. The statute granting continuing jurisdiction to alter or change a judgment respecting children of divorced parents applies only to that part of the judgment dealing with orders'requiring parents to support their children and does not relate to that part of the judgment granting custody.”

And Sec. 343, pp. 673 and 674, further states:

“After the expiration of the term at which the judgment in a suit for divorce was rendered, custody may be changed only by bringing of a distinct and independent action, by one of the parties with proper service of citation on the other, in a court having jurisdiction of the child.
“Where the custody of a minor has-been awarded to one of the parents in a divorce suit, the other may, in a subsequent proceeding, have the question of custody reviewed, if a showing is made that since the rendition of the decree conditions have so altered that the welfare of the child requires a change of custody. A suit to relitigate and adjudicate custody of a minor child on the ground of changed conditions, after expiration of the term of court in which the custody was originally, awarded, is not an action to set aside the former judgment and retry the original case, but is treated as an independent action, which has been declared to be in the nature of a habeas corpus proceeding, although it may be otherwise designated as, for example, a motion.”

Thus it will be seen that if the father of Duane, during his lifetime, had desired to have the custody order changed, he would have been compelled to file a new and independent cause for that purpose. It is therefore clear that the only way appellant could take the custody of Duane from her mother and have such custody awarded to herself, was to follow the procedure prescribed in Arts. 2330 and 2331, supra. Appellant has no right to proceed under the provisions of Art. 4639a, supra. Prock v. Morgan, supra; Adams v. Messer, supra; Korn v. Stein, Tex.Civ.App., 225 S.W.2d 244.

The petition, for a writ of habeas corpus filed by Domitila P. Cochran and her present husband on June 16, 1961, was not a suit to change the decree in Cause No. 10842, but to enforce it. Likewise, the answer and cross-action filed by Donald A. Thrash on June 19, 1961, in said cause, did not seek to change the decree as to custody of Duane, but only the visitation rights of the mother.

The trial court correctly regarded the petition filed by appellant as the institution of a new and independent cause, and properly sustained appellees’ plea of privilege. Accordingly, the judgment is affirmed.


text:
    Gene E. BEATY, Next Friend for and on behalf of His Minor Children, Gene Raymond Beaty and William Barton Beaty, Appellant, v. Harry Malcolm LINDEN, Appellee.
    No. 4043.
    Court of Civil Appeals of Texas. Waco.
    Sept. 27, 1962.
    Rehearing Denied Oct. 11, 1962.
    Wells & Power, Irving, for appellant.
    Strasburger, Price, Kelton, Miller & Martin. Eugene Jericho, Dallas, for appel-lee.
   WILSON, Justice.

Defendant’s motion for summary judgment in an automobile guest case was sustained. Plaintiff alleged his two minor children were injured while riding in a car driven by defendant; and that his negligence in driving while intoxicated and while under the influence of drugs at an excessive rate of speed, and in failing to keep a proper lookout, proximately caused the damages asserted. Plaintiff pleaded the conduct asserted constituted heedlessness and a reckless disregard of the rights of others under Art. 6701b, Vernon’s Ann.Civ. Stats. Defendant testified by deposition that his car collided with the rear end of a vehicle stopped at an intersectional stop sign, and that he failed to apply his brakes.

Depositions and affidavits on file raised a genuine issue of fact, under Rule 166-A (c), Texas Rules of Civil Procedure as to whether defendant drove his car in the manner alleged, as above summarized. Defendant seeks to sustain the judgment by the contention this could constitute only ordinary negligence — not gross negligence —as a matter of law.

In Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607, 613, the Supreme Court stated that by declaring the driving of an automobile on public streets while intoxicated to be a penal offense, the legislature declared what every prudent person knows: that it is dangerous to occupants of the vehicle and others for an intoxicated driver to so operate it. It was there held that an occupant who knowingly and voluntarily remained in a vehicle so driven is charged •“with acting in heedless and reckless disregard of his own safety”, and that passengers in that case were “heedless and reckless of their own safety as a matter of law.” In the present case (if it raises the issue), the record does not establish knowledge of defendant’s alleged condition without dispute.

Since the act of a passenger, then, in occupying an automobile under the Rice case facts constitutes heedless and reckless disregard of such passenger’s rights, may it be plausibly argued that the driver’s conduct is of a quality less culpable?

We are not required to decide whether or not the act of driving while intoxicated, taken alone, may constitute gross negligence. We hold that since the record raises an issue as to this conduct, coupled with driving at a speed of from 50 to 60 miles per hour in a 30 mile per hour speed zone, resulting in a rear-end collision and injuries to the children as reflected in this case, a summary judgment is not authorized. See Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, 518, 141 A.L.R. 50; Napier v. Mooneyham, Tex.Civ.App., 94 S.W.2d 564, 568, writ dism.; 60 C.J.S. Motor Vehicles § 258c, p. 633, and n. 62; 4 Blashfield, Automobiles, Sec. 2336, p. 467.

Reversed and remanded.


author: BELL, Chief Justice.

text:
    W. Herbert JONES, d/b/a Galveston Lumber Company, Appellant, v. D. W. STEELE, Appellee.
    No. 13989.
    Court of Civil Appeals of Texas. Houston.
    Oct. 4, 1962.
    Fuhrhop & Jones, Jerome Jones, Galveston, for appellant.
    No appearance for appellee.
   BELL, Chief Justice.

This is an appeal from the judgment of the trial court granting a bill of review and setting aside and holding for nought a default judgment previously rendered. The judgment appealed from did not dispose of the case on its merits so as to finally determine appellee’s liability to appellant. This is no final judgment and we have no jurisdiction. Palmer v. D. O. K. K. Benevolent and Insurance Association, 160 Tex. 513, 334 S.W.2d 149; Clay Lumber Co. v. Patterson, 28 S.W.2d 825, Tex.Civ.App., no writ hist.; McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265; Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280.

Appellant to support his position that the judgment is final cites Ft. Worth & Denver City Ry. Co. v. Reid, 115 S.W.2d 1156, Tex.Civ.App., no writ hist. We regard such decision as not authoritative because at variance with the authorities above cited.

The appeal is dismissed.