text:
    G. C. GREGORY, Appellant, v. Wanda Jean GREGORY, Appellee.
    No. 14832.
    Court of Civil Appeals of Texas. Houston.
    June 9, 1966.
    Rehearing Denied July 7, 1966.
    Harry W. Patterson, Bob Casey, Jr., and Ronald C. Kline, Houston, Bracewell & Patterson, Houston, of counsel, for appellant.
    Wade & Howard, Virgil Howard, Corpus Christi, for appellee.
   COLEMAN, Justice.

This is an appeal from the judgment of the 61st District Court granting appellee recovery on a promissory note executed by appellant as part of a property settlement agreement. This agreement was approved by the District Court of Nueces County, Texas, and was incorporated into the judgment of that court in Cause No. 59455-A, which granted appellee a divorce. It is the contention of appellant that the note was alimony and, therefore, unenforceable.

The evidence in this case consists of the judgment rendered by the District Court of Nueces County, the property settlement agreement, the note, and testimony showing that the note was past due, that demand for payment had been made, and that appellant had refused to pay the note. Appellant admitted execution of the note and property settlement agreement. The note recites that it was executed in accordance with the contract of property settlement entered into between the parties in Cause No. S945S-A in the District Court of Nueces County, Texas. It recites that it is given as payment for a portion of the community estate of the parties and is tendered to Wanda Jean Gregory in satisfaction of her claims to the community estate of such parties.

The property settlement agreement recites that during the marriage of appellant and appellee, appellee has worked and contributed to the support of the family and that as a result of her activities appellant has substantially completed the requirements for a degree in dentistry. It then recites that it is agreed between the parties that the education and degree in dentistry constitute a community asset of the parties and further agreed that its value is at least the sum of $20,000.00.

The agreement then recites that the parties possess certain household goods, funds in checking accounts, and own a 1950 model Dodge and a 1951 model Chrysler. It provides that the 1950 Dodge shall be the property of appellee and the Chrysler the property of appellant. The agreement then reads:

“Instead of attempting an exact apportionment of the unspecified community assets, it is agreed by and between Plaintiff and Defendant that Plaintiff’s share of the community estate (in addition to the two automobiles hereinabove described) is the sum of Eleven Thousand Dollars ($11,000.-00). Defendant has agreed that he would furnish Plaintiff a note in such amount, same to be payable in installments in accordance with expected increase in his professional income, and has simultaneously herewith executed the original of that certain promissory note, a copy of which is attached hereto and made a part hereof as Exhibit ‘A’. It is expressly agreed that such note constitutes and forever shall be considered to be the sole and separate property of plaintiff and constitutes her portion of the net community estate of plaintiff and defendant, * *

Appellant agreed to pay certain specified indebtednesses of the parties amounting to the sum of $9,341.82, and to hold appellee harmless from any and all liability arising from same.

The judgment in Cause No. 59455-A refers to the fact that a property settlement agreement was entered into by the parties and had been examined by the court, who was of the opinion that it was fair to all parties. The court decreed that the prop-, erty be apportioned in the manner prescribed in the contract filed in the records of the cause and that the plaintiff have and hold as her separate property the note in the amount of $11,000.00 described in the Contract, that defendant assume the indebtedness set forth in the contract, and that all other property of the community be apportioned in the manner specified in such agreement. The judgment was rendered on the 20th day of October, 1956, and no appeal was taken, nor has the judgment been attacked by bill of review.

The note was dated September 10, 1956, and was payable in installments. The first payment, $1,000.00, was due September 1, 1961, and all of the remaining installments in the amount of $2,500.00, $4,000.00, and $3,500.00, are now due. Interest and attorney’s fees were provided in the event the installments were not paid at maturity.

Appellant presents two points of error: (1) that portion of the judgment in Cause 59455-A was void because there was no jurisdiction of the subject matter; and (2)the court should have held as a matter of law that the note was alimony.

While other interesting questions arise on this record, we will confine our discussion to these points. Appellant argues that the property settlement agreement reflects that the Corpus Christi court attempted by his decree to divide the agreed value of appellant’s dental training which was not property and that the court, therefore, lacked jurisdiction of the subject matter, rendering that portion of the decree void.

The subject matter over which the court had jurisdiction and which was properly invoked in Cause No. 59455-A was the status of the parties and the community property of the parties. The court had jurisdiction to divide the community property of the parties in a manner fair and equitable to each. If he improperly considered the agreed valuation of appellant’s dental training, he was in error. There was community property and it was divided. Judicial error of this nature cannot be reached on a collateral attack.

The trial court did not err in refusing to hold as a matter of law that the note constituted alimony. The property settlement agreement and the recitations in the note establish that it was in fact given in consummation of a property settlement agreement and that in return appellant received certain community property of unspecified value. While we might suspect that the amount of the note was greater than the value of the property received by appellant, this is not a fact established by evidence. The record does not establish conclusively that the note constitutes alimony.

Where the property settlement provisions of a divorce decree require one party to make payments to the other party after the divorce, such payments are not construed to be in the nature of permanent alimony if they are referable to any property which either spouse may have owned or claimed. McBean v. McBean, Tex.Civ.App.1963, 371 S.W.2d 930; Wilmeth v. Wilmeth, Tex.Civ.App.1958, 311 S.W.2d 292; McBride v. McBride, Tex.Civ.App. 1953, 256 S.W.2d 250.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    SPRING BRANCH BANK, Appellant, v. Cecil G. WRIGHT et ux., Appellees.
    No. 14757.
    Court of Civil Appeals of Texas. Houston.
    June 9, 1966.
    Rehearing Denied July 7, 1966.

      Barrow, Bland, Rehmet & Singleton, Houston, Vincent W. Rehmet, Houston, of counsel, for appellant
    Joseph D. Jamail and John Gano, Houston, for appellees.
   COLEMAN, Justice.

This is a suit for damages by reason of personal injuries. The trial court entered a judgment for the plaintiff based on a jury verdict, and the Bank has appealed.

Mrs. Wright and her husband own and operate a florist business and were engaged to decorate Spring Branch Bank for the Christmas season in 1962. On December 19, 1962, Mrs. Wright undertook to do this work personally. She took two small ceramic vases containing an arrangement of artificial flowers suitable for the Christmas Season and walked to a drive-in teller’s booth located outside the main building. She went to the front of the booth and asked the employee in charge to admit her. At the rear of the booth there is a solid door, locked from the inside. The entire floor area of the booth is recessed nine inches below the level of the door and the sidewalk outside. This condition was unknown to Mrs. Wright. As she stood before the door, the bank employee unlocked and opened it. Mrs. Wright stepped inside, lost her balance and twisted one of her knees. The jury found that the Bank was negligent in failing to warn Mrs. Wright of the step-down, which was a proximate cause of her injuries. It acquitted Mrs. Wright of negligence in failing to determine the level of the floor inside the booth.before entering, and found her damage to be the sum of $18,000.00.

Appellant contends that the difference in floor level was an open and obvious condition and not such a concealed danger as to give rise to a duty on the part of the Bank to warn an invitee.

The drive-in bank consisted of two masonry booths connected by a common roof. Ample space was provided between the booths to permit an automobile to enter. On one side of this space was the teller’s window for one booth. Directly opposite this window was the door providing an entrance to the other booth. The teller’s window for this booth faced the parking lot and was shaded by the overhang of the roof. Appellee entered the booth from the driveway separating the two booths. There was no sign warning her of the step-down, and no other warning was given her. A picture of the door, defendant’s Exhibit #4, indicates that the sidewalk in front of it was about two inches higher than the driveway. Its threshold appears to be an inch, more or less, in height. There is nothing about the outside appearance of the entrance to indicate the possibility of a change in elevation of the floor inside the door from the outside.

Appellee testified that the accident happened about noon on a day when the sun was shining brightly, and that it was not as light inside' the building as outside. As she was standing at the door, the teller opened it and she stepped in. She was walking with her head up and did not look down. It can be inferred from the testimony that the flowers she was carrying interfered with her vision to some extent as she looked down. The door opened to the inside. As she opened the door, the teller said something. She turned and walked to the window as appellee stepped in and did not see the accident. It can be inferred that this activity attracted appellee’s attention as she was entering the doorway. Ap-pellee testified that she could not see the step-down from where she was standing with the flower arrangements in her hands when the door was opened.

Appellant owed a duty to appellee, an invitee, to use ordinary care to keep the premises in a reasonably safe condition. Renfro Drug Co. v. Lewis, 1951, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 114. It is undisputed that the door in question opened immediately upon an abrupt step-down ; that there was no platform inside the door on a level with the sidewalk; that the door was solid and masked the difference in floor levels; and that the door opened to the inside. The management of the Bank knew of these conditions. While in Renfro Drug Co. v. Lewis, supra, there was expert opinion evidence that any one of these conditions created a dangerous situation and made the entrance unsafe for use, and such opinion evidence from architects was not presented in this case, we are of the opinion that the trial court properly concluded as a matter of law from these undisputed facts that the entrance was unsafe.

In a recent article (Vol. 28, No. 1, Texas Bar Journal, January 22, 1965) Associate Justice Greenhill in discussing what conditions are “open and obvious,” stated:

"When are defects open and obvious? Open and obvious to whom? My understanding of ‘open and obvious’ in ‘no duty’ cases is expressed by the popular phrase of the comic-strip character, Li’l Abner: the defect must be one that ‘any fool can plainly see.’ It must be so obvious as to charge the plaintiff with knowledge of it. Examples of this are obviously slick floors (Hausman Packing Co. v. Badwey) ; a pane of glass by a door (Burton Co. v. Stasney); worn stairs (Houston National Bank v. Adair) ; or a rise in the sidewalk at a building entrance (Marshall v. San Jacinto Building, Inc.), (emphasis supplied)

“Logically, whether a defect is so plain that anyone should see it is a law question. In each of the cases mentioned above (all written or approved by the Supreme Court), the question was held to be one of law, and the cases were disposed of on instructed verdict or by some similar device.”

Here there was a dangerous condition, of which the invitee was unaware. While it is argued that when the door was opened it could be seen, it is obvious that one standing near the door would not see the step-down unless he hesitated before entering long enough to look down and make a more careful examination of the premises than is ordinarily done. It is a matter of common knowledge that a person walking usually looks ahead and cannot see distinctly the area on the ground for several feet in front of him. When an invited guest reaches the doorway of his host’s home and the door is opened for him from within, he takes this for an invitation to enter; centers his attention on his host; and ordinarily does not look down before entering. It was not an open and obvious condition. Renfro Drug Co. v. Lewis, supra; Walgreen-Texas Co. v. Shivers, 1941, 137 Tex. 493, 154 S.W.2d 625.

The cases cited by Justice Greenhill in the quotation from the Bar Journal article, infra, may be distinguished by the fact that the step-down was concealed by the door until the door was opened to permit entry. The same fact is the principal feature distinguishing this case from various cases cited by appellant, including Marshall v. San Jacinto Building, Inc., Tex.Civ.App., 67 S.W.2d 372; A. C. Burton Co. v. Stasny, Tex.Civ.App.1949, 223 S.W.2d 310; Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Acme Laundry Company v. Ford, Tex.Civ.App.1955, 284 S.W.2d 745; Pogue v. Allright, Inc., Tex.Civ.App.1964, 375 S.W.2d 533. It also appears that in all of these cases the plaintiffs had actual knowledge of the conditions of which complaint was made, with the exception of the Marshall and Pogue cases. In the Marshall case the plaintiff had used the doorway many times, and in the Pogue case the plaintiff was a licensee rather than an invitee.

In Marshall v. San Jacinto Building, supra, the court quoted with apparent approval from Watkins v. Piggly Wiggly Bird Co. (C.C.A.), 31 F.2d 889, as follows:

“ 'In the cases cited by plaintiff, wherein the construction was at all similar to that maintained by the defendant in this case, recoveries were permitted because the light was insufficient, or the opening into which, or the step from or over which, the plaintiff fell, was concealed in some way, or the attention of the person injured directed to merchandise on display, or a door opening into a basement, an elevator shaft, or other dangerous place by its location near another door, which the public was invited or the person complaining had the right to enter, became a trap for the ignorant.’ ” (emphasis supplied) Here the danger was concealed.

In support of his position that in this case the dangerous condition was “open and obvious,” appellant cites three cases by the Supreme Court of North Carolina: Benton v. United Bank Bldg. Co., 1944, 223 N.C. 809, 28 S.E.2d 491; Little v. Wilson Oil Corporation, 1959, 249 N.C. 773, 107 S.E.2d 729; and Reese v. Piedmont, Inc., 1954, 240 N.C. 391, 82 S.E.2d 365. While in the Benton case a door opened immediately upon a step-down, the door was made of glass. In the Little case the condition complained about was a concrete slab raised about 1 ¾ inches above the asphalt driveway of a filling station, and in the Reese case there was a difference in the floor levels within the same room. However, the language used in the opinions leads us to the conclusion that the courts of North Carolina would hold the condition with which we are faced in this case “open and obvious.” We have not found any cases where the Supreme Court of Texas has adopted the reasoning of the North Carolina courts, and we are of the opinion that these decisions are not in harmony with the decisions of the Supreme Court of Texas in the Renfro Drug Co. and Walgreen-Texas Co. cases, previously cited, and Scott, d/b/a Tidelands Motor Inn v. Liebman, Tex., 404 S.W.2d 288.

In Halepeska v. Callihan Interests, Inc., Tex.Sup.1963, 371 S.W.2d 368, the Court said:

“ * * * in a suit by an invitee against the occupier, the invitee must not only prove that he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm, but he must also prove, as part of the plaintiff’s case, that the occupier owed him a duty to take reasonable precautions to warn him or protect him from such danger,

The court also said:

“If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them ‘no duty’ to warn or to protect the invitees. This is so, the cases say, because there is ‘no duty’ to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof.”

An abrupt step-down of nine inches behind a solid door which is closed and locked except when being used is a condition of the premises involving an unreasonable risk of harm. The condition was not so patently open and obvious that appellee must have seen it as an ordinarily prudent person under the circumstances. Whether she should have seen it, or should have known of the condition, are issues of contributory negligence. Scott, d/b/a Tidelands Motor Inn v. Liebman, supra.

There was no actual or charged knowledge of this condition, and no warning was given appellee. There is no contention that a warning would have been useless. The jury acquitted appellee of contributory negligence and the evidence set out in this opinion is sufficient to support this finding.

Appellant complains that the trial court erred in excluding testimony given by Mr. Wright at the trial of another law suit some years before that he was the “head of the concern” for the reason that it tended to impeach his testimony given at the present trial that his wife was the “back-bone of the business” and that he was “only a helper.” A careful reading of the excluded testimony leads us to the conclusion that when he used the phrase “head of the concern” in the prior testimony Mr. Wright had reference to both himself and his wife. It is undisputed that both were active in the business. The exclusion of this testimony was not error.

Error is also claimed by reason of the exclusion of the pleading filed on behalf of Mrs. Wright in a previous law suit in which it was alleged that as a result of an automobile collision Mrs.- Wright sustained “painful and permanent injuries to her ankle and knee.” This testimony was offered to impeach the testimony of Mr. Wright who denied that Mrs. Wright had sustained an injury to her knee in the 1956 automobile collision and that they had so asserted in the law suit growing out of that collision. It is also contended that the evidence offered tended to impeach the testimony of Mrs. Wright that any injuries sustained by her prior to 1962 did not prevent her from doing her work. It is also contended that Mrs. Wright denied that after the collision in 1956 she was under medical treatment and unable to fully perform her duties as a housewife and assist in the operation of the florist business. Appellant contends that the court erred in refusing to admit sworn deposition testimony from the previous case taken in 1958 to the effect that as a result of injuring her left foot in the collision the foot was taped up “off and on for six months,” that (one and one-half years after the collision) she still used a bandage on the foot at times and was still seeing a doctor and that she was only able to work an hour or two in the florist business ■ after the collision.

Appellant also contends that the court erred in refusing to admit proffered deposition testimony of Mrs. Wright that she had hired a maid five or six days a week following the 1956 collision to impeach her testimony denying that prior to 1962 she had hired a maid up to five or six days a week. This testimony was claimed to be material because Mrs. Wright testified as an element of damage that she had to hire a maid two days week because of the injuries sustained in the fall.

Prior inconsistent statements, whether contained in depositions or pleadings, are admissible in evidence to impeach a witness. The statements must be inconsistent in fact and directed to the same occasion. If the inconsistent statements are contained in pleadings, it must be shown that they were made with the knowledge, authority, or acquiescence of the party. The party to be impeached must deny having made the prior statement or testify that he did not remember making it. In impeaching a witness by his prior statements resort may not be had to statements about immaterial and collateral matters. McCormick and Ray, Texas Law of Evidence, 2nd Ed. § 690 et seq.

It is well settled that such prior inconsistent statements cannot be used as substantive evidence of the truth of the facts stated. McCormick and Ray, Texas Law of Evidence, 2nd Ed. § 688.

The testimony concerning the hiring of a maid was not admissible because not inconsistent with the testimony given at the present trial since the statements relate essentially to different periods of time.

Mr. Wright testified that Mrs. Wright received no injury to her knee in the 1956 collision, but later qualified this testimony by stating: “ * * * not to my knowledge about any knee injury, but I went back and asked Mrs. Wright a minute ago if there was any knee brought up in it and she said if she had a knee injury it was just a bump.” Mrs. Wright testified that her knee could have been injured in the 1956 accident, “but not to any great extent.” While it does not appear definitely that the knee injured in the collision was the same knee injured by the accident of which complaint is here made, it does appear that an inconsistency exists between the allegations of the petition in the previous case and the testimony of Mr. and Mrs. Wright at this trial. The trial court erred in excluding the petition. This error did not amount to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure.

Finally appellant contends that the trial court in effect coerced the jury into returning a verdict in the case after having been advised that the jury could not agree on the answers to the special issues. Appellant’s Bill of Exceptions No. 2 reflects that the procedure followed by the trial court was made known to the lawyers in advance and that no- objections were made. We cannot agree that either the questions asked of the jurors individually, or the statement made to them collectively, under the circumstances reflected in the Bill of Exceptions, had a tendency to coerce them into reaching a verdict. There was no error in the procedure followed by the court. Foreman v. Texas Employers’ Insurance Association, 150 Tex. 468, 241 S.W.2d 977.

The judgment of the trial court is affirmed.


author: COLLINGS, Justice.

text:
    James SHOOMAN, Appellant, v. Mrs. D. E. (Lemma) McAUGHAN, a widow, et al., Appellees.
    No. 4090.
    Court of Civil Appeals of Texas. Eastland.
    June 10, 1966.
    Rehearing Denied June 24, 1966.

      Thomas E. Lucas, Hal S. Hudson, Houston, for appellant.
    Bobbitt & Kraft, James F. Bobbitt, D. R. Bernard, Houston, for appellees.
   COLLINGS, Justice.

Mrs. D. E. (Lemma) McAughan, a widow, and the estate of Henry Kaplan, deceased, by and through the executor and trustee under his will, brought suit against Charles Lozano and James Shooman to recover rentals under a 5 year lease contract entered into between Mrs. McAughan and Henry Kaplan, as lessors, and James Shooman and Charles Lozano, as lessee. The defendants filed a general denial. Plaintiffs filed a motion for summary judgment which was set for hearing and granted. James Shoo-man has appealed.

Appellees attached as exhibits to their original petition the lease which is the basis of this suit. By the terms of the lease, the lessees covenanted to pay lessors $24,000.00 in monthly installments of $400.00 each. Appellees alleged that on August 15, 1963, Chares Lozano, one of the lessees, assigned the lease to appellant James Shooman, the other lessee. A copy of this assignment was also attached to appellees’ petition. By the terms of the assignment Shooman covenanted to: “ — assume and to pay and perform all rents and other obligations due or to become due under the terms of said lease to Mrs. D. E. (Lemma) McAughan and Henry Kaplan, lessors.” The assignment further provided that: “This assignment is made subject in all things to the terms and conditions of the aforementioned lease and subject also to the terms and conditions of the Consent of Lessors appearing below.” The appellees herein, lessors in the lease, signed the following consent: “Consent to the foregoing Assignment of Lease is hereby given. Executed this 15th day of August, 1963.” Appellees’ petition also incorporated a second assignment, dated March 17, 1964, made by appellant, James Shooman back to Lozano. It provides in part as follows: “For value received, all right, title and interest of James Shooman in and to the lease hereto attached * * heretofore on August 15, 1963, assigned to James Shooman, is hereby transferred, assigned and conveyed by the said James Shooman, Lessee-Assignor, to the said Charles Lozano, Lessee-Assignee, and in consideration thereof said Assignee, Charles Lozano, agrees to assume and to pay and perform all rents and other obligations due or to become due under the terms of said lease * * *. This assignment is made subject in all things to the terms and conditions of the aforementioned lease, and subject also to the terms and conditions of the Consent of Lessors appearing below.” The consent to this assignment, signed by the lessors, appellees herein, provides: “Consent to the foregoing Assignment of Lease is hereby given. Executed this the 18th day of March, 1964.”

The appellant, James Shooman, filed in the cause only a denial which was sworn to. Upon the filing’ by appellees of their Motion for Summary Judgment and supporting affidavit, the appellant, James Shooman, filed no contravening affidavits. The court sustained appellees’ Motion for Summary Judgment, holding that the interpretation of the lease and the (second) assignment from Shooman to Lozano, presented purely a legal question for the court.

Appellant presents one point urging that the court erred in granting appellees’ motion for summary judgment. He contends that there was a genuine issue as to a material fact, that is, concerning the interpretation of the March 17, 1964, assignment of the lease from appellant to Charles Lo-zano, in which Lozano agreed to pay and perform all rents and other obligations under the lease, which assignment was consented to by appellees. The point is not well taken and is overruled.

Appellant was one of the original lessees and was thereafter an assignee from his fellow lessee. Under both the original lease and the assignment to appellant he expressly agreed to pay all rents and perform all covenants contained in the lease. Appellant thereafter, on March 17, 1964, assigned the lease back to Lozano and Lozano therein agreed to assume, pay and perform all rents and other obligations under the terms of the lease. The assignment provided that it was subject in all things to the terms and conditions of appel-lees’ consent thereto. The terms of the written consent by appellees were simply that they consented to the assignment. There was no novation of the lease contract whereby the lessors agreed to release appellant from his obligation to pay the rent. Contrary to appellant’s contention there was no ambiguity in the assignment or ap-pellees’ consent thereto which presented any issue of fact concerning appellant’s obligation to pay rent according to the terms of the lease. It is a well settled general rule that a lessee is not released from his obligation to pay rent by the fact that he has assigned the lease with the lessors’ consent. 36 Tex.Jur.2d page 85; Cauble v. Hanson, 249 S.W. 175, (Com.App.); Carter v. Stovall, 291 S.W.2d 411, (Tex.Civ.App., n. r. e., 1956), and cases cited therein.

The judgment is affirmed.


author: SELLERS, Justice.

text:
    M. MOORE et al., Appellants, v. STATE of Texas et al., Appellees.
    No. 218.
    Court of Civil Appeals of Texas. Tyler.
    June 9, 1966.

      Harry M. Jones, Jones & Jones, Mineóla, Clyde Elliott, Jr., Elliott & Elliott, Canton, for appellants.
    James T. Flynt, Quitman, for appellees.
   SELLERS, Justice.

This is a condemnation case in which the State of Texas and the County of Wood recovered of appellant Moore 0.276 acre of land for road purposes. After a trial in the County Court of Wood County, the jury found that the 0.276 acre of land taken for the road had a value of $2,000.00, and that the difference between the remainder of the property before and after taking was $2,000.00, making the damages due the appellants in the sum of $4,000.00. The State filed a motion for new trial in which it asked the Court to grant a re-mittitur in its favor in the sum of $2,000.00 which the Court granted and entered a final judgment for appellants in the sum of $2,000.00 from which judgment the appellants have duly prosecuted this appeal.

The one question on this appeal is whether the trial court abused its discretion in granting the remittitur. This court has concluded that it did.

The appeal brings up an agreed statement of facts from which we quote the testimony of Mr. Pegues:

“TOM PEGUES: After having been duly sworn testified that he was 44 years old, lived in Mineóla, Texas, and had been a licensed real estate broker in Wood County, Texas, for the past twenty years. He further testified that he was also in the insurance business and appraisal business, that he had appraised real properties for the Texas State Highway Department, for banks, for savings and loan associations, for Wood County, Texas, and for individuals. Shortly after suit was filed in this case he was requested by Mr. Moore, the defendant, to appraise his property. He first went upon the property in February of 1965 and after an investigation found that 0.276 acre of land was being taken for right-of-way purposes; that prior to the taking Mr. Moore had 4.44 acres of land; that after the taking, Mr. Moore had a remainder of 4.164 acres of land and that the strip being taken was from 39 feet to 45 feet wide and approximately 320 feet long; that the property prior to condemnation had a brick home situated upon same with 2800 square feet of living space, a small barn at the rear of the home and a double carport; that the home was located approximately four miles North of Mineóla and five or six miles South of Quitman; that the home was approximately six years old, well maintained and well furnished with draperies and carpets; that the home contained three bedrooms, two baths, a den, kitchen, living room and dining room; that the home had utilities of telephone and electricity and butane gas; that such home was in a nice neighborhood; that across the highway Mr. Long owned a home in the $150,000 category; tha.t next-door on the same side of the highway as the Moore property, Mr. Gearner owned a $25,000 home immediately to the South of the Moore property and next-door on the same side of the highway to the South of the Moore property, the Ludlams owned a home in the $15,-000 to $16,000 class.
“Mr. Pegues further stated that he knew the market value of real property in Wood County, Texas, and that after having examined the Moore property involved in this lawsuit, he formed an opinion that the cash market value of the entire property immediately before condemnation was $27,500.00; that in addition to the other utilities, the Moore home was furnished water from a deep well located upon the property which was pumped -and piped into the house.
“Mr. Pegues testified that the part taken had three large shade trees, two pecans and one elm; that the pecan trees were approximately 25 years old and the elm tree was approximately 20 inches in diameter; that prior to condemnation the 0.276 acre of land was a portion of the lawn to the Moore property; that in addition to the three shade trees and the 39 to 45 feet of lawn taken for right-of-way purposes that a portion of the paved driveway leading from the highway to the house was also taken.
“Mr. Pegues testified that, in his opinion, the cash market value of the 0.276 acre taken for right-of-way purposes immediately prior to January 12, 1965, was $2,000.00.
“He testified that the 4.164 acre remainder immediately prior to condemnation, in his opinion, had a reasonable cash market value of $25,500.00.
“He stated that, in his opinion, the taking of the 0.276 acre for right-of-way purposes damaged the remainder of 4.164 acres in the following respects:
“That it would be necessary to re-landscape the area between the house and the highway because the shade trees had been taken, that it would be necessary to sandblast the brick to remove the dust created during construction and which would accumulate upon the brick to the house, that the taking of the 0.276 acre of land, considering that the State would build additional highway upon it would necessarily mean the house closer to the highway and, in his opinion, make the remainder less desirable among prospective purchasers in the market. After considering these elements of damage, Mr. Pegues testified that, in his opinion, the cash market value of the 4.164 acre remainder immediately after the taking of the 0.276 acre part for right-of-way was $23,000.00.
“Mr. Pegues testified that in the immediate area of the Moore property he could not find any sales which he considered comparable to the Moore property within the past five years, however, he did testify that he was acquainted with sales of property three and four miles from the Moore property along the same highway but because of the conditions of such property they were not, in his opinion, sufficiently comparable to use as a basis for forming his opinion. He testified that he had gone upon the Moore property four times during the period from January 12, 1965, until the time of the trial and that he based his opinion on market value of this particular property, upon his experience in the real estate, appraisal and insurance business as well as his experience in having bought and sold property himself in Wood County, Texas; he further testified that he did not charge Mr. Moore for this appraisal or for coming to Court.”

The rule to govern this Court in passing upon a remittitur granted by the trial court as announced by the Supreme Court in the case of Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835, opinion by Justice Smith, is as follows:

“We interpret the above holding as meaning that where the trial judge has ordered a party to remit a portion of the jury verdict as a condition for overruling a motion for new trial, the Court of Civil Appeals, in passing upon such action under Rule 328, supra, should allow the trial court’s action to stand unless it be of the opinion that the re-mittitur ordered by the trial court, when considered in the light of the whole record, would render the order of remittitur manifestly unjust. If, in the light of all the facts and circumstances, the trial court’s order of remittitur was manifestly unjust, the Court of Civil Appeals should restore the remittitur or such part thereof as the Court of Civil Appeals deems necessary to prevent the order from being manifestly unjust and render such judgment as the trial court should have rendered.”

This court has reached the conclusion that the trial court’s remittitur is manifestly unjust under the record as presented to this Court and in our opinion a restoring of the full amount of the re-mittitur will better prevent an unjust judgment. This Court therefore reverses the judgment of the trial court and here enters judgment for the appellants for the sum of $4,000.00, the same being in our judgment, the amount for which this Court feels should be recovered by appellants in order to prevent the judgment from being manifestly unjust, and it is so ordered.

The judgment of the trial court is reversed and judgment here rendered for appellants in the sum of $4,000.00.


author: CODLINGS, Justice.

text:
    Isadora REICHEK, Appellant, v. Harry H. ZEHNER, Appellee.
    No. 4060.
    Court of Civil Appeals of Texas. Eastland.
    June 10, 1966.
    Rehearing Denied July 8, 1966.

      R. Philip Schulze, Houston, Clawson, Jennings & Clawson, Houston, Max H. Jennings, Houston, for appellant.
    White & Davidson, Houston, Frank O. White, Houston, for appellee.
   CODLINGS, Justice.

Harry H. Zehner brought suit against Isadore Reichek and Best Barber and Beauty Supply Company, Inc., for damages. Plaintiff alleged that he suffered damages which resulted from personal injuries sustained in an automobile collision; that the automobile he was driving was struck from the rear by a truck owned by Best Barber and Beauty Supply ■ Company, Inc., and operated by Isadore Reichek. The case was tried before a jury. Based upon the verdict, judgment was rendered for plaintiff against Reichek for $7,609.60. Judgment was entered denying recovery against Best Barber and Beauty Supply Company, Inc. Reichek has appealed.

Appellant urges one point of error in which he contends that the trial court erred in refusing to submit to the jury his requested special issue on the question of unavoidable accident. The special issue and accompanying definition requested by appellant was as follows:

“Requested Special Issue No. A
Do you find from a preponderance of the evidence that the collision in question was not the result of an unavoidable accident?
Answer: ‘It was not the result of an unavoidable accident’ or
‘It was the result of an unavoidable accident’
By the term ‘unavoidable accident’, as used in the foregoing Special Issue, is meant an accident that occurred without either the Plaintiff, Harry Zehner, or the Defendant, Isadore Reichek, being guilty of negligence in doing, or omitting to do, anything which was a proximate cause of the collision in question.”

The evidence shows that at -the time of the -collision the parties were travelling south on Milam Street in downtown Houston at about 5:00 p. m. The evidence shows that the traffic was heavy and the streets were wet and slippery; that ap-pellee Zehner was driving a station wagon and appellant Reichek was driving a pickup truck belonging to Best Barber and Beauty Supply Company. Both vehicles were in a center lane of the six lane one-way street and other cars were in lanes to their right and left. There was evidence tending to show that Zehner stopped his vehicle ten to fifteen feet behind a car at an intersection red light and that he had started to light a cigarette when the rear of his car was struck by appellant’s truck. Appellee gave no hand signal when he stopped, but testified that his rear lights were in working order and showed his intention to stop. There was evidence to the effect that appellant Reichek was, immediately preceding the collision, travel-ling south on Milam Street at about fifteen miles per hour; that he had just gone through an intersection when the automobile some fifteen to twenty feet ahead of him stopped suddenly and without warning. Appellant testified that he immediately put his foot on his brake, but that his foot slipped off the brake pedal and as a result thereof his truck proceeded to strike the rear end of the car in front of him, which was appellee’s station wagon. Appellant testified that his foot slipped off the brake pedal because the soles of his shoes were wet from having walked on the wet sidewalk and street to his truck just prior to driving to the place where the collision occurred. Appellant further testified that he had stopped for traffic lights and stop signs at several intersections just prior to the collision with appellee’s automobile and that his foot had not slipped off the pedal on such prior stops. Appellant stated that his effort to stop behind appellee was the only time on the occasion in question that he had to make a sudden stop. He testified that there was traffic on both his right and left which contributed to his inability to avoid a collision. The record shows that appellee Zehner did not strike the car in front of him and that appellant Reichek was not struck by the car behind him. Appellant described the impact of the collision as being very light. He testified that after the collision both parties pulled over to their right side of the street and stopped to talk; that they agreed that they would not call the police to investigate the collision and that after appellant made a telephone call at a nearby service station both parties drove away from the scene of the collision.

The issue of unavoidable accident, if raised by the evidence, is for the jury. 40 Texas Jur.2d 708. It is said that the issue is raised “when, and only when, there is evidence tending to prove that the injury resulted from some cause other than the negligence of the parties”. 65 C.J.S. Negligence § 264, pp. 1192, 1193; Texas & Pacific Railway Company v. Day, 145 Tex. 277, 197 S.W.2d 332; Strauss v. LaMark, 360 S.W.2d 583 (CCA 1962), Revd. on other grounds 366 S.W.2d 555 (Sup.Ct.).

Appellant’s pleadings included an allegation that the collision was the result of an unavoidable accident. The court submitted appellee’s affirmative issues concerning appellant’s negligence and proximate cause in regard to look out, proper application of brakes and following distance. The court refused, however, to submit appellant’s requested issue on unavoidable accident. Appellant Reichek testified that he was keeping a proper distance between his track and appellant’s car and that he made a proper application of his brakes under the circumstances. The jury found against appellant on all these issues. In this connection Reichek stated that the soles of his shoes were slick at the time; that his shoes were wet and slick because it had been raining and that he had walked on the wet street to get to his track; that he thereafter made several normal stops at intersections just prior to the collision without trouble, but that appellee stopped suddenly in front of him and that he, appellant, had to make a sudden application of his brakes in an effort to avoid a collision; that under these circumstances appellant momentarily lost control of his ability to brake his truck because his shoe slipped off the brake pedal, thereby causing the collision.

In our opinion the above testimony raised the issue of unavoidable accident. That issue is raised when there is evidence tending to show that the accident resulted from something other than acts of negligence of either of the parties involved. Dallas Railway & Terminal Company v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952).

Of course, if the evidence is conclusive that one of the parties to the suit was guilty of negligence proximately causing the accident, the issue of unavoidable accident would not be raised. There was no such conclusive evidence. Appel-lee does contend that the evidence strongly supports the conclusion that Reichek was negligent in following appellee too closely and that such negligence was a proximate cause of the collision. Actually, issues concerning such facts were submitted to the jury which found appellant was so negligent, proximately causing the accident. However, we do not understand appellee to contend that such facts were established as a matter of law. In any event, it is our opinion that the evidence raised the issue of unavoidable accident. Under the evidence it could reasonably be concluded that appellant Reichek lost control of his track because, and only because, his shoe slipped off the brake pedal. The undisputed fact that he was driving his motor vehicle when the soles of his shoes were wet and slick does not under the circumstances constitute negligence as a matter of law. This is particularly true in view of the fact that he had made several stops at intersections just prior to the collision without trouble. The evidence raises the issue of unavoidable accident and the court erred in not submitting it to the jury. Luvual v. Henke & Pillot, Division, of Kroger Company, 366 S.W.2d 831 (Civil Appeals, 1963), (Ref. N.R.E.); Wichita Transit Company v. Sanders, 214 S.W.2d 810 (Civil Appeals, 1948), (no writ history) ; Deal v. McLeroy, 346 S.W.2d 934 (Civ.App. 1961, no writ history); Vergauwen v. Parsons, 294 S.W.2d 863, (Civ.App. 1956, no writ history); Kuykendall v. Doose, 260 S.W.2d 435 (Civ.App., 1953, Ref. N.R.E.).

The judgment is reversed and the cause is remanded for another trial.


author: MOORE, Justice.

text:
    Edith M. ABRAM, Appellant, v. SOUTHEASTERN FUND et al., Appellees.
    No. 212.
    Court of Civil Appeals of Texas. Tyler.
    June 16, 1966.
    Rehearing Denied July 7, 1966.

      Charles E. Coleman, Tyler, for appellant.
    Wm. M. Williams, Jr., Lawrence & Lawrence, Tyler, for appellee, Southeastern Fund.
    Jerome L. Prager, Hoppenstein & Prager, Dallas, for appellee, Triangle Aluminum Industries, Inc.
   MOORE, Justice.

Edith M. Abram, a widow, brought this suit against appellees, Triangle Aluminum Industries, Inc. and Southeastern Fund, a corporation, in trespass to try title seeking to recover a house and approximately one acre of land. In addition to the statutory allegation of trespass to try title, appellant further alleged that in the latter part of 1962, Triangle Aluminum Industries, Inc. offered to cover her home with aluminum siding for the sum of $299.00. She alleged that although she did not accept the offer, the company nevertheless placed the siding on her home and thereafter caused to be recorded in the Mechanic’s Lien Records of Smith County, a mechanic’s and material-man’s lien and deed of trust reflecting that she had agreed to pay the company the sum of $2,959.80 for the performance of such work. She further alleged that shortly thereafter, Triangle Aluminum Industries, Inc., assigned the lien to appellee, Southeastern Fund, who then caused her property to be sold under the terms of the deed of trust; that Southeastern Fund purchased the property at the trustee’s sale and now claims same under a deed from the trustee. In both her pleadings and by separate affidavit, she alleged that the signature on the mechanic’s and materialman’s lien and deed of trust was a forgery. She further alleged numerous other reasons why the trustee’s deed was void and of no force and effect, and prayed for the cancellation of the mechanic’s and materialman’s lien and the deed from the trustee. In an alternative plea, she alleged that at the time of the execution of the lien, she was old and infirm and by reason thereof, incapacitated to properly attend business and that Triangle Aluminum Industries, Inc. fraudulently took advantage of her infirmity and incapacity and without her consent caused to be recorded the mechanic’s and materialman’s lien contract and deed of trust and that as a result she lost her property and had thereby suffered damages in the amount of $10,000.00 for which she prayed for judgment in the amount of $10,000.00 against Triangle Aluminum Industries, Inc.

Appellee, Triangle -Aluminum Industries, Inc., filed a disclaimer and answered with a general denial and a plea of not guilty. Southeastern Fund likewise denied the allegation of appellant’s petition and specially pled that it had purchased the mechanic’s and materialman’s lien contract and deed of trust from Triangle Aluminum Industries, Inc. for valuable consideration, before any payments thereon had been made and without notice of any of the alleged infirmities, and was therefore an innocent purchaser and holder in due course.

Prior to trial all parties entered into a stipulation wherein it was agreed that one Ida Bell Muckelroy was the common source of title. In proving her title, appellant offered in evidence two warranty deeds from Ida Bell Muckelroy, the agreed common source. In connecting appellee, Southeastern Fund, with the common source, she also offered in evidence the alleged forged mechanic’s and materialman’s lien and deed of trust above referred to. Upon its face, this instrument showed to have been signed and executed by appellant, Edith M. Abram, to Triangle Aluminum Industries, Inc., and thereafter assigned to Southeastern Fund. It also showed that appellant duly acknowledged the execution of the instrument before a Notary Public in Smith County, Texas. When this instrument was introduced in evidence, counsel for appellant stated that the same was being offered for the “limited purpose of cancellation.” Although appellant alleged in her petition that the lien was foreclosed and was deeded to Southeastern Fund by the trustee, there was no proof thereof. The trustee’s deed was never offered in evidence. However, since appellant pleads title in Southeastern Fund by virtue of the trustee’s deed and cites the volume and page where same is recorded, her pleading amounts to an admission of such facts. McCormick and Ray, Vol. 2, Sec. 1144, p. 33. Therefore, we should hereafter assume that Southeastern Fund holds title under said deed.

On direct examination, appellant at first denied execution of the mechanic’s and materialman’s lien contract and deed of trust; but upon being asked if she was certain she did not sign such an instrument, she replied: “I don’t remember — don’t think so.” On cross examination, she admitted that she did sign some type of instrument agreeing to allow Triangle Aluminum Industries, Inc. to place the aluminum siding on her home. The reason she signed such instrument, she said, was because she understood that same would be installed free of charge.

Trial was to a jury and after appellant had concluded with the introduction of her evidence, each of the appellees moved for an instructed verdict. The court granted the motions and accordingly entered judgment for each of the appellees denying appellant any relief, from which ruling she perfected this appeal.

Appellant first contends that the judgment is erroneous because her evidence of record title from the common source, standing alone, was sufficient to show a superior title in her. She relies upon Rule 798, Texas Rules of Civil Procedure, which in effect provides that evidence introduced by plaintiff to show common source cannot be considered as evidence of title in the defendant unless offered by him. She therefore contends that since she offered the defendants’ title under the alleged forged lien and deed of trust only for the limited purpose of cancellation, the effect of her affidavit of forgery was to shift to the appellees the burden of going forward and showing that the lien and deed of trust was executed by the appellant, and since appellees did not prove same was executed by appellant, her title was superior and the court therefore erred in instructing a verdict against her. We do not share this view.

As pointed out before, appellees answered by a plea of not guilty and for equitable relief in the event appellant prevailed, but did not affirmatively seek to recover title in themselves. They only resisted appellant’s claim of superior title. In such case any evidence introduced by appellant tending to establish common source inured to the benefit of appellees, who are not required to go forward and themselves introduce the same evidence in order to avail themselves of the benefit: Nye v. Haywood, (Tex.Civ.App.) 182 S.W. 2d 14; 87 C.J.S. Trespass to Try Title § 58, p. 1172. Moreover, the instrument was not offered for the purpose of proving common source, nor was such proof limited to proof of common source. Appellant thus having pleaded and proved title in Southeastern Fund must assume the burden of avoiding the effect thereof.

In order to make out a prima facie case under a common source of title, the plaintiff must show that his title thereunder is superior; and furthermore, if from the evidence of common source introduced by the plaintiff, defendant appears to have the superior title, then the plaintiff cannot stop, but must proceed further and show that the defendant’s title thus exhibited, although apparently superior to that of the plaintiff, is not, for proven reasons, so. Hovel v. Kaufman, (Tex.Civ.App.) 266 S.W. 858, 861; aff. S.Ct., 280 S.W. 185, 188.

Appellant did not rest her claim upon her own superior title under her formal plea of trespass to try title. She went further and specially alleged her grounds for title, thereby limiting her right to recover on those grounds. Franzetti v. Franzetti, (Tex.Civ.App.) 124 S.W.2d 195, writ ref.; Goode v. Davis, (Tex.Civ.App.) 135 S.W.2d 285. She specially pled a title in appellee, Southeastern Fund, sufficient, if valid, to vest it with title and to defeat her title; that is, she pled Southeastern Fund had purchased the title from the trustee and claimed under the trustee’s deed. However, she pled that such title was void because of the forgery of the mechanic’s and materialman’s lien and deed of trust. She then prayed for cancellation. Thus having pleaded the issue of forgery, she rested under the burden of sustaining it, for if the title pled was void, appellant had no title.

Appellant’s proof of record title shows the title of appellee, Southeastern Fund, to be superior to the title of the appellant. As stated before, appellant admitted in her pleadings that Southeastern Fund took possession under the trustee’s deed. The debt evidenced by the lien was unpaid and under these circumstances, the rule is that a mortgagee lawfully in possession has a right to retain possession until his debt is paid. Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329. The instrument not being void on its face, appellant had the burden of proving that the title of Southeastern Fund thus exhibited, although apparently superior to that of the appellant, was not, for proven reasons, so.

Therefore, the question presented is whether or not the proof offered by her upon the issue of forgery, when viewed in a light most favorable to appellant, was sufficient to raise a question of fact for the jury.

Appellant contends that her affidavit charging forgery filed under the provisions of Article 3726, Vernon’s Ann.Tex.Civ.St., together with her testimony, was sufficient to place the burden of proof upon the ap-pellees to prove that the instrument attacked was not a forgery. In other words, she contends that her proof presents a prima facie case entitling her to judgment in the absence of any proof by the appellees.

The mere filing of an affidavit of forgery does not constitute proof thereof. The party impeaching the deed must sustain his pleadings by lawful evidence. While the mere filing of the affidavit may in some instance cast suspicion on the instrument, sufficient to shift to the opposite party the burden of going forward with proof of execution, it does not apply unless the opposite party pleads .title and offers the instrument in evidence as proof of his title. Article 3726, supra. But even though the statute should be applicable, we fail to see how such an affidavit could have the effect of shifting the burden, when the party making the affidavit negatives the effect thereof by her own testimony. As pointed out before, she does not unequivocally state that she did not execute the instrument. She merely stated that she did not remember. Evidence that does no more than raise a surmise or suspicion that a deed was forged does not justify a submission of the question to the jury. 19 Tex. Jur.2d, par. 79, page 354; Hanks v. Houston Oil Co. of Texas, (Tex.Civ.App.) 173 S.W. 635, err. ref. The standard of proof which the court must find before submitting the issue of genuineness to the jury is that “the proof must be clear and unmistakable.” Stout v. Oliveira, (Tex.Civ.App.) 153 S.W.2d 590; McAllen v. Raphael, (Tex.Civ.App.) 96 S.W. 760; Kirby Lumber Corporation v. White, (5th Cir.) 288 F.2d 566. Since the appellant, in making out her case in chief, did not unequivocally deny the execution of the instrument, we seriously doubt that a finding that the instrument was a forgery would be permitted to stand upon such a state of evidence. Consequently, we think the evidence was wholly insufficient to require the submission of the issue to the jury.

In connection with appellant’s asserted cause of action for damages against Triangle Aluminum Industries, Inc., we have been unable to find any basis in the pleading to support a claim for damage other than the alleged forgery hereinabove discussed. Appellant’s pleading merely asserts that Triangle Aluminum Industries, Inc. fraudulently took advantage of her infirmity and incapacity and without her consent caused the lien and deed of trust to be recorded. There is no allegation of a false representation, whieh was relied upon by appellant to her detriment. As we view the record, there is neither pleadings nor proof of actionable fraud. 25 Tex.Jur.2d, Sec. 13, p. 626.

Appellant next complains of the ruling of the trial court in refusing to allow her to testify as to her conversation with one Wendell Vaughn concerning his admissions of agency with Triangle Aluminum Industries, Inc. While we have no doubt that such testimony was' inadmissible, yet there is no showing as to what the witness’s answers would have been, hence the propriety of the court’s ruling cannot be considered on appeal. Statler Hotels v. Herbert Rosenthal Jewelry Corporation, (Tex.Civ.App.) 351 S.W.2d 579; Nieto v. United States National Bank of Galveston, (Tex.Civ.App.) 384 S.W.2d 395.

Appellant also complains of the action of the trial court in sustaining ap-pellees’ objection to the testimony of one of appellant’s witnesses as to the cash market value of the property in question. In this connection, the record reveals that the witness was not shown to be qualified in that it was not shown that he had knowledge of the reasonable cash market value of the property. We think the court properly sustained the objection. Topletz v. Thompson, (Tex.Civ.App.) 342 S.W.2d 151.

The evidence presented by appellant not being sufficient to raise a fact issue for the jury, the trial court was warranted in instructing a verdict against appellant at the conclusion of her evidence.

The judgment of the trial court is affirmed.


author: GRISSOM, Chief Justice.

text:
    Betty Blount WOOD et al., Appellants, v. Maurine W. JOHNSTON et al., Appellees.
    No. 4077.
    Court of Civil Appeals of Texas. Eastland.
    June 17, 1966.
    Rehearing Denied July 8, 1966.

      Barber & Seale, Jasper, John H. Seale, Jasper, for appellants.
    Dittert & Hruska, Bellville, Dan Hruska, Bellville, for appellees.
   GRISSOM, Chief Justice.

This suit was originally filed by Anna Beth Wilson, widow of E. B. Wilson, against his daughters by a previous marriage. Mrs. Wilson died and her two children by a previous marriage were substituted as plaintiffs. The purpose of the suit was to obtain the widow’s alleged one-half interest in $18,000.00 United States Savings Bonds or her half interest in the money with which they were purchased. Plaintiffs alleged that E. B. Wilson died November 17, 1964; that the Wilsons married in 1947 and that they accumulated community property. (Defendants are the daughters of E. B. Wilson by a prior marriage, the sole devisees in his will and independent executrices of his estate. His will was admitted to probate.) Plaintiffs further alleged that, in 1965, the defendants filed in the County Court an inventory and appraisement of the estate of E. B. Wilson, deceased, and wrongfully failed to include said bonds therein as community property of E. B. Wilson and his surviving wife; that there were ten Series H United States Government Bonds, with a maturity value of $18,000.00, purchased by Mr. Wilson 13, 16, and 17 years, respectively, after the Wilsons married and “obviously were purchased with community funds”; that the action of E. B. Wilson in naming himself or his daughters as payees in the bonds “amounted to manifest fraud or breach of trust tantamount thereto” on the part of the husband, while acting as manager of the community property; that, in accordance with Section 257 of the Probate Code of Texas, the court should order defendants to include said bonds in the inventory as community property, or render judgment against defendants for $9,000.00, Mrs. Wilson’s alleged half interest in the money used to purchase them, and to fix a lien against them to secure payment of said debt. The defendants answered that by virtue of 31 C.F.R., Sections 315.60 to 315.62, inclusive, United States Treasury Regulations, the survivors named in said bonds were the sole owners thereof and they were not any part of Mr. Wilson’s estate. Wherefore, appellees say, said bonds were properly excluded from said inventory. The defendants denied that the fact that Mr. Wilson purchased said bonds and named himself and his daughters as co-owners was a fraud or breach of trust. In a trial to the court, judgment was rendered for the defendants. The plaintiffs, children of Mrs. Wilson, have appealed.

Appellants’ only point is that the court erred in rendering judgment for appellees because the evidence created a prima facie presumption of fraud perpetrated by E. B. Wilson on his wife and such presumption was not rebutted. Appellants say the evidence shows the Wilsons were married for seventeen years; that the bonds were purchased during marriage and no evidence was presented to rebut the alleged presumption that they were purchased with community funds and that said inventory shows said bonds formed a substantial part of the “community” estate.

The statement of facts consists of (1) a copy of Mr. Wilson’s will and (2) an order admitting it to probate, (offered by appellants for the purpose of showing that the devisees were his children by a previous marriage); (3) an inventory, appraise-ments and list of claims of Mr. Wilson’s estate, (showing the value of his separate and community estates), (4) a decree that appellants, Betty Blount Wood and John H. Seale, were the heirs at law of Mrs. Wilson, who died intestate on October 8, 1965, and that no administration on her estate was necessary. In addition, there was only the testimony of Mr. Seale that his mother and E. B. Wilson married in July, 1947, and remained married until Mr. Wilson’s death in November, 1964; that, after Mr. Wilson’s death, he and his mother found said bonds in two lock -boxes, that he was his mother’s attorney, particularly after the death of her father in 1960, when he began handling all her affairs; that he was familiar with her bank accounts and possessions and knew that no transfers were made to her by Mr. Wilson coincident with issuance of said bonds and that he and his mother were surprised when they found the bonds.

The first of said bonds was for the face value of $5,000.00. It was issued in July, 1960, and was payable to E. B. Wilson or Mrs. Johnston, a daughter. The second was for the face value of $5,000.00, issued in July, 1963, payable to E. B. Wilson or Mrs. Noakes, another daughter. The other $8,000.00 in bonds were issued in February, 1964, five $1,000.00 bonds being then issued payable to Mr. Wilson or Mrs. Johnston and three $1,000.00 bonds being payable to Mr. Wilson or Mrs. Noakes.

Appellees’ answers to appellants’ contentions are that (1) since appellees are the sole owners of said bonds under applicable Federal Regulations the court did not err in rendering judgment for them; (2) no evidence having been presented that Mr. Wilson’s action in naming appellees as the co-owners was fraudulent as to Mrs. Wilson, or was done with the intent to deprive her of her interest in community property, the court did not err in rendering such judgment, and that, (3) there being no evidence that said bonds were purchased with community funds, the court did not err in rendering such judgment. We think all of said answers are correct.

Appellees point out the fact that Mr. Wilson had a substantial separate estate and a smaller community estate, each of which consisted of both real and personal property. They quote from Treasury Regulation, 31 C.F.R. Sec. 315.61 as follows:

“If either co-owner dies without the bond having been presented and surrendered for payment or authorized reissue, the survivor will be recognized as the sole and absolute owner.”

Such regulations also provide that no judicial determination will be recognized which would defeat or impair the rights of survivorship conferred thereby. 31 C. F.R., Sec. 315.20, 8 L.Ed.2d 180, 184. Ap-pellees cite Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180, in which the facts were that Free purchased with community funds United States Savings Bonds and made them payable to Mr. or Mrs. Free; Mrs. Free died and a controversy then arose between Mr. Free and his wife’s son, Bland, as to ownership of the bonds. Free claimed absolute ownership by reason of said regulations. Bland, the beneficiary in his mother’s will claimed half interest in the bonds by virtue of the Texas community property laws. He asserted a right to one-half the bonds or reimbursement for the loss of Mrs. Free’s community half interest. Free sued Bland to establish his title. A summary judgment was rendered awarding title to Mr. Free, but it was held that Bland should recover one-half the value thereof. The Court of Civil Appeals affirmed the award of title to Free. But, it reversed that part of the judgment awarding Bland one-half the value thereof. (See 337 S.W.2d 80S). The Supreme Court of Texas reversed that judgment holding that it was in conflict with its opinion in Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565. (See 162 Tex. 72, 344 S.W.2d 435). The United States Supreme Court reversed the Supreme Court of Texas, holding that the purpose of federal regulations was to confer absolute ownership upon the surviving co-owners and that the survivorship provisions of federal law prevailed over Texas community property laws. It held that a state law which prohibits a married couple from taking advantage of the survivorship provisions in Treasury Regulations and United States Bonds, merely because the purchase price was paid out of community funds, must fall under the Supremacy Clause of the Federal Constitution. The court did say, however, that such regulations were not intended as a shield for fraud and relief would be granted when it was established that fraud or breach of trust tantamount thereto had been perpetrated on a wife by her husband while he was acting as manager of the community. Appellees also cite Yiatchos v. Yiatchos, 376 U.S. 306, 84 S. Ct. 742, 11 L.Ed.2d 724 and In re McCoy’s Estate, 189 Wash. 103, 63 P.2d 522, in support of their contention, with which we agree, that upon the death of E. B. Wilson his daughters, as co-owners immediately became vested with absolute ownership of the bonds, the daughters’ title being derived from provisions in the bonds and applicable Treasury Regulations. Appellees say that since the bonds were never a part of E. B. Wilson’s estate the probate court had no jurisdiction over them. Appellees further say that, although appellants alleged that such action of E. B. Wilson “amounted to manifest fraud or breach of trust tantamount thereto”, words used by the United States Supreme Court in Free v. Bland, that appellants failed to produce any evidence of fraud. Regardless of whether all of the testimony of Mr. Seale may be considered, we think there was no evidence of fraud. Certainly, fraud was not conclusively established and we are not authorized by the record to set aside the court’s presumed findings in support of the judgment. Furthermore, it was not established that the bonds were paid for out of community funds. It would be difficult to imagine fraud against the wife being established in the absence of proof that the bonds were paid for by money in which the wife had an interest. However, under the decision in Free v. Bland, upon the death of Wilson his daughters became the absolute owners of the bonds, even if they had been paid for with community funds. We agree with appellees that appellants did not establish facts which entitled them to recover.

We have carefully considered all of appellants’ contentions. Reversible error is not shown. The judgment is affirmed.


author: WALTER, Justice.

text:
    Marie DAWSON, Appellant, v. T. C. MORROW, Appellee.
    No. 4079.
    Court of Civil Appeals of Texas. Eastland.
    June 3, 1966.
    Rehearing Denied June 24, 1966.

      Ben E. Jarvis, Tyler, Brigman, Martin & Smith, Fred C. Brigman, Jr., Houston, for appellant.
    Gordon R. Wellborn, Rex Houston, Henderson, for appellee.
   WALTER, Justice.

Marie Dawson, independent executrix of the estate of Pleas E. Dawson filed suit against T. C. Morrow on a sworn account. Morrow filed a verified answer. The court granted defendant’s motion to withdraw the case from the jury and render a take nothing judgment after the plaintiff rested. The plaintiff has appealed.

The appellant contends the court erred in rendering such a judgment because she introduced evidence of probative force on all elements of her cause of action. We must view the evidence in the light most favorable to the appellant in determining whether it was proper for the court to withdraw the case from the jury and render judgment for the defendant. White v. White (1943), 141 Tex. 328, 172 S.W.2d 295; Herbst v. Martinez (Ct.Civ.App. 1957) 307 S.W.2d 633 (no writ history).

The appellee filed a sworn denial in accordance with Rule 185. In Davis v. Gilmore (Ct.Civ.App. 1951), 244 S.W.2d 671, (writ ref.), at page 674, the court said:

“The sworn account was met by a sworn denial which required appellees to establish their account by legal and competent evidence independent of the aid of Rule 185, Texas Rules of Civil Procedure.”

Did the appellant introduce any evidence of probative value showing services performed and that the charges made therefore were usual, customary or reasonable ? Ninety-three exhibits were admitted in evidence. The first was an invoice from appellant to appellee for a unit and operator for ten hours at ten dollars per hour and thirty hours for three extra men at two dollars and twenty-five cents per hour on the Lambert A Lease, Well number two. Exhibit number two was a written instrument dated October 3, 1961, to appellee for a unit and operator for ten hours at ten dollars per hour and thirty hours for three extra men at two dollars and twenty-five cents per hour. This instrument was signed by Jack Ramey, superintendent for appellee. Appellant’s exhibit number ninety-three contained seven purchase orders from ap-pellee, signed by his superintendent, covering some of the invoices which had been admitted in evidence.

Marie Wallesch testified substantially as follows: I have been employed by Mr. and Mrs. P. E. Dawson since August 1957, as a bookkeeper, secretary and general flunky on everything; as far as the books are concerned, I have become well acquainted with the business; I have been in charge of the books since I started working for the Daw-sons; I am the only employee in the office now but in the past I liave had some help, off and on, to help me catch up; I have kept the books or been responsible for keeping the books since I started working for the Dawsons; entries were made in the books in the regular course of business from information furnished me by employees who had personal knowledge of the events; this information was furnished to me in the regular course of business, usually once a week, and sometimes the gang brought them in the middle of the week; based on that information I prepared the invoices; the original invoices were sent to Mr. Morrow once a month; the invoices were made from the work orders; the charges made for such services were usual and customary. She was asked the following questions and she gave the following answers:

“Q. Mrs. Wallesch, how were the charges- listed on these invoices arrived at?
A. You mean what it cost?
Q. Yes, ma’am.
A. They were set charges by all of the well servicing.”

If an issue of fact is raised by the evidence, it must go to the jury even though the court might set aside the verdict because it was not supported by sufficient evidence. Wallace v. Southern Cotton-Oil Co. (1897), 91 Tex. 18, 40 S.W. 399. After giving credit to all evidence favorable to appellant and after indulging every legitimate conclusion which may be drawn therefrom, we have concluded that fact issues were raised and the court erred in withdrawing the case from the jury.

The judgment is reversed and the cause is remanded.


text:
    Barbara BARONOFSKY, Appellant, v. Bernice BARONOFSKY, Appellee,
    No. 14869.
    Court of Civil Appeals of Texas. Houston.
    May 26, 1966.
    Rehearing Denied June 16, 1966.

      Nipper & Knox, Oscar Nipper, Houston, for appellant.
    Ragan & Russell, John L. Russell, Morris, Termini, Harris, McCanne & Lacas, John G. Minniece, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from the judgment of the Court of Domestic Relations of Harris County.

Bernice Baronofsky filed suit for divorce on August 10, 1965, against her husband, Stanley Baronofsky, who answered and filed a cross-action. The case was heard on January 25, 1966, at which time the court made a docket entry reading: “Plf. granted divorce. Attys given 10 days to settle property.” Appellant alleges that on January 29, 1966, she married Stanley Baron-ofsky relying on his representations that he was divorced. On February 23, 1966, Stanley Baronofsky died. No property settlement was filed with the court prior to his death.

On February 24, 1966, appellee filed a motion to set aside all previous orders and proceedings had in the case, for a non-suit as to her action for divorce, and for dismissal of the cross-action. In this motion she called the attention of the court to the fact that no final judgment had been entered in the cause and that none could be entered by reason of the death of the defendant and cross-plaintiff. This motion was granted and judgment entered to that effect on the same day the motion was filed.

On March 4, 1966, the attorney for appellant allegedly delivered to the Clerk for filing an instrument entitled “Petition of Intervention and Motion for Judgment.” This instrument bears a notation “FILED: March 8, 1966.” In it appellant contends that upon the death of Stanley Baronofsky the court was divested of jurisdiction to make any further affirmative adjudication in the cause and that its jurisdiction was limited to the performance of the ministerial action entering a judgment conforming to the judgment previously rendered and entered on the court’s docket sheet.

On April 1, 1966, an order was entered by the court striking the intervention and denying the motion to correct the judgment entered and to enter judgment nunc piro tunc. This order contained a notice of appeal.

On March 28, 1966, the District Clerk of Harris County, Texas, issued his receipt for a cash deposit tendered under the provisions of Rule 354, Texas Rules of Civil Procedure. A transcript was filed in the Court of Civil Appeals on April 26, 1966.

Appellee has filed a motion to dismiss this appeal for the reasons: (1) Notice of appeal not timely filed; (2) appeal bond not timely filed; (3) transcript not timely filed.

Unless the pleading filed in the trial court by appellant, styled “Petition for Intervention and Motion for Judgment,” can be treated as a motion for a new trial, or unless the order denying the petition for intervention and motion for judgment is an appealable order, it is clear that no appeal has been perfected for the first and third reasons assigned by appellee. Rules 353, 356, and 386, T.R.C.P.

An order striking a petition in intervention is not such a final judgment as will authorize an appeal by the inter-venor, before final judgment in the cause. Kimmel v. Lytton, Tex.Civ.App.1963, 371 S.W.2d 927, error ref.

Unless, therefore, the cause in which appellant attempted to intervene is properly before this Court, the action of the trial court in striking the plea in intervention cannot be considered. The appeal must be from the judgment entered in the case.

It is not necessary to determine whether the pleading filed by the intervenor might be considered a motion for new trial. It was filed after a judgment had been entered in the case. The trial court declined to set aside this judgment.

In Comal County Rural High School District No. 705 v. Nelson, 1958, 158 Tex. 564, 314 S.W.2d 956, a plea in abatement and special exceptions were sustained to plaintiff’s petition by the trial court and judgment was entered dismissing the suit. The plaintiff did not except to this judgment or give notice of appeal. A motion for new trial was filed on the fifteenth day after entry of the order of dismissal. Within thirty days of the entry of the dismissal order the State of Texas filed a motion for leave to file a petition in intervention. The motion was overruled. On appeal the State of Texas contended that the trial court abused his discretion in denying its motion to intervene and the Court of Civil Appeals sustained this position and remanded the case for trial on the State’s intervention. The Supreme Court held that the State’s motion to intervene was not timely filed and affirmed the trial court, saying:

“* * * No plea of intervention could be filed in the cause until and unless the district judge set aside his order of dismissal and this he refused to do. We, therefore, are of the opinion that Rule 60, T.R.C.P., is inapplicable. Under the circumstances we conclude that the Court of Civil Appeals was without power to set aside the trial court’s judgment of dismissal.”

In McDonald, Texas Civil Practice, Vol. 1, Parties, § 3.48, pp. 309, 310, this statement appears:

“ * * * intervention is proper at any time before final decision on the merits. Ordinarily no intervention will be allowed after final judgment, though even then it may be proper where the judgment directly affects the intervenor’s rights and his presence is indispensable for his protection.”

The case of Mussina v. Goldthwaite, 34 Tex. 125, 126, is cited in McDonald as authority for permitting intervention after judgment. We are not persuaded that this case stands for that proposition, but in any event we consider that the Comal County case' discussed above is conclusive on this point.

Since in this case the trial court properly struck the petition in intervention, no appeal has been perfected from the judgment of the trial court granting a non-suit to ap-pellee and dismissing the cross-action of Stanley Baronofsky.

The appeal is dismissed.


author: MASSEY, Chief Justice.

text:
    Carl R. DUNGAN et al., Appellants, v. J. E. FOUST, Appellee.
    No. 16741.
    Court of Civil Appeals of Texas. Fort Worth.
    June 3, 1966.

      DeVore, Ashworth & McGahey, and Philip C. McGahey, Jr., Arlington, for appellants.
    Cline & Cline, and J. Everett Cline, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

The most material question posed by the appeal is whether a written lease of real estate which misdescribes the premises by street number may be reformed in a suit brought for that purpose and for the enforcement of the tenant’s liability for the payment of rent according to the provisions of the instrument — after the tenant has moved away following occupancy for only part of the term. The contract will be considered executory as applied to the period the premises were not occupied.

Save for the error in street number the instrument met all the requirements of the Statute of Frauds. Actually the number was 334 Main Street which were the premises intended. In the lease it was given the number of 318 Main Street. On its face the instrument was valid and binding. Through mutual mistake of the parties the number was incorrectly stated, and therefore. did not speak the truth, to-wit: the parties had contracted for the lease of the premises at 334 Main Street.

Courts of equity have power and jurisdiction to so reform an executory contract that is valid and binding on its face as to relieve it of any statement, declaration, or description that has been inserted therein through deception, fraud, or mutual mistake, and to make the statements speak the truth as it was intended to insert them in the instrument. On the other hand, a court of equity has no power or jurisdiction to construct an executory agreement for the parties, or to insert therein new and essential elements, or matter that is required by the Statute of Frauds to be reduced to writing in order to make the contract valid and binding. In other words reformation does not mean recreation of a contract within the Statute. The first question is whether the contract is valid and binding on its face; if it is the court may under proper pleadings hear and consider parol evidence and consider propriety of reformation. Otherwise the court may not hear or consider such evidence and is powerless to create a valid contract for the parties. East v. Garcia, 295 S.W. 239 (San Antonio Civ.App. 1927, error refused); Allen v. Kitchen, 16 Idaho 133, 100 P. 1052, 1057, L.R.A.1917A, 563, 18 Ann.Cas. 914 (1909).

Under such theory of the law reformation is proper to correct misdescriptions of property as found in deeds and other instruments of transfer. 49 Tex.Jur.2d p. 622, “Reformation of Instruments”, § 22, “Faulty descriptions”, and authorities stated. See also at p. 674, § 60, “(Admissibility of evidence) — Parol evidence”. It has been heretofore stated for this court that parol evidence to identify premises intended to be let would be admissible under plea of mistake in the description in a lease on which suit is based. Lovelady v. Harding, 207 S.W. 933 (Fort Worth Civ.App., 1918, no writ history).

Anyway, it has been held that even under a parol lease for more than one year the case was taken out of the Statute of Frauds where the lessee took possession of the premises and paid one or more monthly installments, and the tenant’s obligation to pay rent for the agreed period is enforceable against him. Oak Cliff Realty Corporation v. Mauzy, 354 S.W.2d 693 (Fort Worth Civ.App., 1962, writ ref. n. r. e.), and cases therein cited. See also Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. 273, 278, 54 A.L.R. 1397 (1927).

The trial court reformed the contract of the parties plaintiff and defendant so as to make it speak the truth and in correction of the mistake which occurred through the reduction of their understanding and agreed intent to writing. As so reformed the plaintiff lessor’s suit was thus out of the Statute of Frauds, and the true contract of the parties was enforceable according to their actual agreement. We do not understand that the appellants, defendant lessees, contend to the contrary, but rather that they predicate their appeal on the theory that plaintiff’s case may not be taken out of the Statute. In this they are in error. Plaintiff was entitled to the rental for his property awarded by the trial court.

Judgment is affirmed.


text:
    NORWOOD HOMES, INC., Appellant, v. L. L. MARBURGER, Jr., et ux., Appellees.
    No. 4085.
    Court of Civil Appeals of Texas. Eastland.
    June 10, 1966.
    Rehearing Denied June 24, 1966.

      Bill Hensley, Houston, for appellant.
    J. R. Owen, Taylor, for appellees.
   WALTER, Justice.

Norwood Homes sued L. L. Marburger, Jr. and wife for a deficiency judgment after foreclosure under a deed of trust. Summary j'udgment was rendered for the defendants and the plaintiffs have appealed. They contend the court erred in rendering summary j'udgment and holding as a matter of law that no cause of action existed for the unpaid balance on the note after the foreclosure.

Appellant alleged there was a balance of $18,939.08 owing on the note at the time of foreclosure under the deed of trust, that the property was sold for $12,650.00, and, after the expenses of sale were deducted, there remained a balance due and owing on the note of $6,921.58.

The appellees alleged that the note which they executed had the following provision:

“In the event default is made in the payment of any installment, or in the performance of any of the obligations, covenants or agreements legally imposed by the terms of this note, or in the deed of trust securing its payment, and such default or arrearage shall continue for a period of two months, at the option of the holder, the whole indebtedness evidence hereby may be declared due and payable without presentment or demand for payment or notice of the exercise of such option by the holder, and may be collected by suit or by the exercise of the powers contained in the deed of trust.” Appellees further alleged:

“That construing said note and Deed of Trust together, each in its entirety, it is evident that when plaintiff elected to proceed to collect the indebtedness due on said note by the exercise of the power of sale in said Deed of Trust, the right of plaintiff to collect any of said indebtedness by suit was immediately terminated and therefore, plaintiff is not entitled to recover herein.” In appellees’ motion for summary j'udgment, they set forth copies of the note and deed of trust and contended that, as a matter of law, they were entitled to judgment.

We have concluded that the rights to sell under the deed of trust and to collect the deficiency by suit were cumulative.

In Rushing v. Hall, 74 S.W.2d 761, (Tex.Civ.App.1934, no writ history) at page 763, the court said:

“Under the first three propositions presented in appellants’ brief, it is very earnestly insisted that plaintiff, by pursuing his remedy of sale of the land under the deed of trust for the amount due on the three notes to secure which the trust deed was executed, estopped himself from suing defendants to recover the balance due upon the three notes, and also the amount due upon the $750 note assumed by the defendants. We cannot agree with appellants’ counsel in this view of the law applicable to the facts of this case.
* * * Certainly the parties to the deed of trust never contemplated that, if the land failed to sell for enough to pay the three notes, the holder of the notes and the deed of trust must accept the proceeds of the sale in full satisfaction of the three notes and all other indebtedness of defendants secured by a lien on the land. There is to our minds no rule of equity, law, or reason requiring such effect to be given the sale of the land under the provisions of the deed of trust.”

The judgment is reversed and the cause is remanded.