author: COLLINGS, Justice.

text:
    PREMIER OIL REFINING COMPANY OF TEXAS, Appellant, v. W. A. BATES, Appellee.
    No. 3757.
    Court of Civil Appeals of Texas. Eastland.
    April 12, 1963.
    Rehearing Denied May 17, 1963.

      Liddell, Austin, Dawson & Sapp, Houston, for appellant.
    J. Ray Martin, Snyder, for appellee.
   COLLINGS, Justice.

W. A. Bates brought suit against Premier Oil Refining Company of Texas, Division Western Natural Gas Company, seeking damages from defendant because of the breach of an alleged lease agreement covering a service station site in Snyder, Texas. The pleadings of the defendant urged defenses based upon the claim that there was no written agreement signed by the parties, the statute of frauds and that there had been actual and constructive eviction and surrender. The case was tried before a jury and based upon its findings judgment was rendered awarding W. A. Bates a judgment against the defendant in the amount of $3,000.00, plus 6 per cent interest from the date of judgment and costs of suit. Defendant Premier Oil Refining Company has appealed.

The undisputed evidence shows that in June of 1960, R. B. Sears contacted appellee Bates inquiring about the possibility of leasing the service station property in question. Bates told Sears he would only lease the premises to a company and not to an individual. Sears was an independent buyer of gasoline and gasoline products and was not an employee, agent or representative of Premier although he did handle Premier products. At Sears’ suggestion Bates called Premier concerning a proposed lease of the filling station and thereafter negotiations commenced between Premier and Bates. Mr. Ferrell handled the negotiations for Premier. Bates submitted to Ferrell a written lease agreement which was introduced in evidence over appellant’s objection as plaintiff’s “Exhibit A;” The proposed written lease agreement provided for a term of three years at a monthly rental of $135.00. Ferrell acknowledged that the written lease was received but it is undisputed that the instrument was never returned to Bates as an executed lease. There is a dispute between the parties concerning the question of whether the instrument was signed by Bates before it was delivered to Ferrell.

The findings of the jury upon which the judgment is based are that Bates and Premier agreed to all the terms and provisions of the instrument described as plaintiff’s “Exhibit A”; that Premier allowed Sears to enter into possession of the filling station and accepted or allowed Sears to accept benefits provided by the terms of the form of the proposed written lease, which provided for a term of three years beginning July 10, 1960; that Premier thereby took possession of the premises; that Sears paid rentals to Bates on behalf >of Premier for the use of the filling station; that Bates did not evict Premier from the premises and did not give Premier written notice of default and intention to declare the alleged lease forfeited; that Bates and Premier did not agree to terminate the lease and that Bates and Sears did not agree that Sears would rent the premises in question. The jury further found damages to Bates caused by the failure of Premier to pay or cause to pay the unpaid rental provided by the terms of said lease to be $3,-000.00.

Appellant Premier Oil Refining Company urges points contending that the court erred in entering judgment for Bates because the undisputed evidence established that both parties to the alleged contract intended to finalize the lease negotiations with an executed, delivered written lease, and that no lease was ever executed and delivered; that the alleged lease is unenforcible under the Statutes of Frauds; that the evidence shows, as a matter of law, that if any valid lease ever existed, Bates evicted appellant from"the premises, in that he put Sears in possession thereof on July 10, 1960 and in that he, Bates, used the premises himself during March and April of 1961, and that Bates accepted surrender of the premises in 1961 and thereby waived any claim for damages for the alleged breach of the lease.

We first consider appellant’s contention that the evidence shows conclusively that no contract was ever consummated between the parties. It is held that there is no valid contract between negotiating parties until they have reached an agreement concerning all the material terms of a proposed contract. Appellant contends that no contract was ever entered into because the parties were negotiating a contract which contemplated a written agreement as the consummation of the negotiations and the intention of the parties was that there was to be no contract until a writing setting out the agreement was signed by both parties thereto.

Appellee Bates contends that there was an oral contract of lease of the filling station; that “Exhibit A”, a proposed written lease was prepared and signed by him which set out the full agreement between the parties; that although Premier did not sign the lease all the terms thereof were fully agreed to by both Bates and Premier; that the writing was a convenient memorial of the contract entered into between the parties; that Sears entered upon the property under the terms of the lease and operated the station in accordance therewith for a period of about 8 months. Appellee contends that Ferrell, Premier’s agent, although Sears had so entered into possession of the property for Premier, attempted by introducing a slightly altered redraft of the original memorial of the contract to show that there was never any contract, either written or oral, made and consummated between the parties.

It is a settled proposition of law that if parties negotiating a contract intend that the contract shall be reduced to writing and signed by the parties, and consider a written agreement as the consummation of their negotiations and a prerequisite to a binding contract, then the agreement is incomplete and either party may withdraw and decline to consummate the agreement at any time before the written agreement is drawn up and signed by both parties. It is also well settled that the parties may, if they so desire, at any time during the negotiations enter into an oral contract, if the subject matter of the contract permits.

In 17 C.J.S. Contracts § 49, at page 391, it is stated that:

“Whether an informal agreement, which according to the understanding of the parties is to be reduced to writing, takes effect as a complete contract at once, or only when a formal written contract is executed, depends on the intention of the parties as construed from the facts of the particular case. * * * there is not a binding contract where, although its terms have been agreed on orally, the parties have also agreed that it shall not be binding until evidenced by writing.”

The above stated principal of law is recognized by our Supreme Court in Simmons and Simmons Construction Company v. Rea, 155 Texas 353, 286 S.W.2d 415, in which Chief Justice Calvert, in applying the law to the facts of that case, stated as follows:

“At the close of the evidence petitioner might have gone to the jury on either of two theories: (1) that it and respondent had entered into an oral contract and the written instrument, signed by it but unsigned by respondent, was but a convenient memorial of their contract; or (2) that it and respondent had put the terms of their agreement in a written instrument which they intended to be binding as a contract whether or not signed by them. It chose to go to the jury on the latter theory when it accepted, without complaint, the issue submitted by the court. It thus agreed, in effect, that there was no contract between the parties until the terms of the agreement had been incorporated in the written instrument.”

The jury in the instant case found-in effect that Bates and Premier did enter into a lease contract in accordance with alt the terms and provisions of appellee’s-Exhibit A. The question then, is whether the evidence supports the finding, that is,does the evidence support the conclusion that there was a meeting of the minds-between Bates and Ferrell that the contract as set out in the writing prepared by Bates' was to become effective immediately, regardless of whether the writing was signed by the parties, or whether the signature of both parties was considered a condition precedent to the consummation of the contract. The test in determining whether there is evidence of probative force to support a finding is whether the evidence is such that reasonable minds might reach tlie same conclusion. Simmons and Simmons Construction Company v. Rea, supra.

It is undisputed that Ferrell, agent of Premier, and Bates entered into negotiations concerning a lease agreement on Bates’ property in Snyder. Bates testified that Ferrell asked him to draw up a lease and that after the writing was prepared he, Bates, signed it, had his acknowledgment taken thereto, and then mailed it to Ferrell. He testified that a few days later he called Ferrell at Longview and was told that the lease was all right except that the name of Premier Oil Refining Company of Texas, Division Western Natural Gas Company, was not correctly stated; that “the lease part was all right”; that everything else was all right, and that he, Ferrell, would make a change to correct the name of Premier on the copies he had and send Bates’ copy back to him. Bates further testified that after he had been informed by Ferrell that everything was all right he talked to Sears, who said that he had heard nothing from Ferrell, and that in a few days Sears paid the first month’s rent, moved into the station and started operating it; that he, Bates, did not tell Sears to-move in. Ferrell testified that he had discussed with Sears the possibility of subleasing the station to him in case Premier leased the 'property from Bates, but denied that any such lease had been consummated. Sears did not testify that Premier had leased the station to him. Ferrell stated that he had 'never entered into any kind of written agreement with Sears; that he did prepare another form of lease, correctly showing the name of Premier, and containing other provisions different from the lease prepared by Bates, among which was a provision that the station could be subleased; that when he came to Snyder with the purpose of consummating the transaction if the form of the lease was agreeable to Bates he found Sears in possession of the premises and decided to let the matter drop. Sears stated that prior to his taking possession of the station Bates had told him that Premier had leased it and that it was his understanding that Premier was to have possession after July 10th. It is undisputed that Sears did enter into possession of the property and paid Bates $135.00 for one month’s rent, which was the rent provided for' by the terms of the proposed lease. Sears continued making such monthly rental payments for eight months. Bates testified that Sears operated the station under the terms of the lease. Sears sold Premier products during the time he operated the station. Bates further testified that Sears knew about the lease and discussed it with him; that Sears recognized it and complied with it for approximately eight month's; that he and Sears never had any difficulty, but that before Sears left, Mr. Ferrell on one occasion told him that he was having some difficulty with Sears, although he did not know anything about the business arrangement between them; that soon thereafter Sears moved out without any notice and he never knew why Sears left.

The above evidence does support the conclusion that Bates and Premier had agreed upon 'the -terms of a lease contract on Bates’ property but it falls short of meeting the burden which rested upon appellee. The evidence is undisputed that in the beginning of the negotiations a written lease was contemplated by both parties. It is undisputed that no written contract was ever entered into. The question is did the parties enter into an oral lease contract, which they intended to be effective regardless of whether the writing which had been prepared was signed by the parties? Bates’ testimony may support the conclusion that he so intended, but such an intention by both Bates and Premier’s agent, Ferrell, was necessary to constitute a binding contract. The evidence, in our opinion, does not support such a conclusion.

There was no testimony by any witness to the effect that Ferrell intended for Premier to enter into an oral lease contract. All of the testimony which bears upon this question is to the contrary. In this connection Bates himself testified that both he and Ferrell wanted a written lease. He stated in effect that he wouldn’t think Premier would want to take the lease and put property on the premises without such a lease; that both parties contemplated that after the negotiations were all over they would have a written agreement; that they anticipated this all the way through the transaction; and that no signed lease agreement was ever received from Premier. Bates’ testimony concerning his telephone conversation with Ferrell, which is particularly relied upon by appellee, likewise fails to show that Ferrell intended for Premier to enter into- an oral lease contract. Bates testified that Ferrell indicated that the terms of the lease were all right, but he did not say that Ferrell stated his intention to enter into an oral contract. What Bates testified in this connection was that Ferrell said he would make an immaterial correction in the writing and would then return to Bates his copy. This testimony is not consistent with the conclusion that Ferrell had abandoned his intention that any lease contract between the parties should be in writing, and that he thereby indicated an intention to enter into an oral lease contract. In our opinion, Bates’ testimony concerning the intention of Ferrell that any lease contract on the premises should be in writing' must be construed as binding upon him. Southern Surety Company v. Inabnit, Tex.Civ.App., 1 S.W.2d 412.

In support of the contention that the parties hereto consummated an oral lease contract appellee Bates also urges his testimony and that of Sears concerning Sears’ payment of rent and entering into possession •of the premises, and of the dealings and •conversations between him and Sears about the matter. Sears was not an agent or representative of Premier and Premier was not bound by any conversations or deals between him and Bates. Sears did not testify that Ferrell ever told him that ■Premier had leased the premises or that Premier had subleased the premises to him. Neither did Bates testify that Ferrell ever told him that Premier had subleased the premises to Sears. The action of Sears in •entering upon the premises and paying rent is likewise not binding upon Premier in the •absence of some showing that Premier •authorized such action by Sears.

In summary, the evidence is conclusive that Bates and Premier both intended to •consummate their negotiations with a written lease. Bates himself so testified. Bates prepared a written lease which showed a space for both parties to sign and acknowledged same and sent it to Ferrell. Bates testified although it is disputed that he did •sign and acknowledge the copies of the ■proposed lease sent to Ferrell and requested Ferrell to have a copy of the lease signed •and returned to him. It is undisputed that the writing was not signed by Premier and Teturned to Bates and there is no evidence that Premier ever intended to be bound -in the absence of the contemplated written •agreement. Appellant’s point in effect that ■the court erred in entering judgment for Bates on the basis of an oral contract be•cause the undisputed evidence shows that ■the parties intended to finalize their negotiations with an executed and delivered written lease contract and that no such •contract was ever executed and entered into is well taken and is sustained. Our determination of this point requires that the judgment be reversed and rendered for appellant. It is therefore unnecessary to discuss other points presented.

The judgment is reversed and judgment is here rendered for appellant.


source: Caselaw Access Project

author: HIGHTOWER, Chief Justice.

license: Public Domain

text:
    Leo A. DEMARIS and Raymond Lefkowitz, Appellants, v. The STATE of Texas, Appellee.
    No. 6541.
    Court of Civil Appeals of Texas. Beaumont.
    April 25, 1963.
    Rehearing Denied May 22, 1963.

      James S. McGrath, Walter. M. Sekaly, Beaumont, for appellants.
    W. G. Walley, Beaumont, for appellee.
   HIGHTOWER, Chief Justice.

■This is' an appeal from a judgment of the trial court declaring certain articles and paraphernalia seized in a raid by police ■officers July 8, 1961, on an establishment .run ■ by appellants known' as the Oyster ■Bar; to be gambling devices, equipment and ■paraphernalia and confiscating the money found therewith in accordance with Articles 636-637, Penal Code of Texas, Vernon’s Ann.P.C., and finding that said place was a gambling house. The substance of appellants’ first five points is that there is no evidence or insufficient evidence to warrant the court’s confiscation of the sum of Three Thousand Three Hundred Sixty-four Dollars and Ten Cents ($3,364.10) in cash and checks seized by the officers on the day of the raid in said establishment.

The Statement of Facts unequivocally shows that the Oyster Bar was a gambling house, as that term is defined in Schepps v. City of El Paso, Tex.Civ.App., 338 S.W.2d 955, so it is unnecessary to relate the evidence in this respect. Suffice it to say that the State proved by several witnesses, and there was no evidence to the contrary, that said witnesses had made several bets on horse races and baseball during the year immediately preceding the raid, and that one had actually made two such bets aggregating the sum of $105.00 on the day of the raid.

The following pertinent parts of Articles 636-637, Penal Code of Texas, control our decision in the matter:

Article 636:
“It shall be the duty of every * * * peace officer * * * to seize and take into his possession all gaming tables, devices and other equipments or paraphernalia of gambling houses * * *. Thereupon * * * [the] district judge shall * * * issue a written notice to the owner * * * commanding him to appear * * * and show cause why such articles should not be destroyed. * * * ”
Article 637, Sec. 3:
“If upon a hearing of the matter referred to in Article 636 * * * the * * * District Judge * •* * shall determine that the property seized is a .gaming, table, bank or gambling para-. phernalia and equipment per se, or * * * shall determine that the same, or any part thereof, was in fact used as equipment or paraphernalia for a gambling house or was being used for gaming purposes, then any money or coins seised in or with said equipment or paraphernalia shall, by order of the Court, be declared confiscated * * (Emphasis added.)

We have no hesitancy in declaring that Sec. 3 of Art. 637, supra, does not mean that any and all money, simply because it is seized in or with a raid on a gambling house, is subject to confiscation. Rather, we construe it to mean that such money is subject to confiscation only if it is shown to have been commingled in or with said equipment or paraphernalia in such manner as to constitute it an integral part thereof. So, we come to the point of determining whether the sum of Two Thousand Two Hundred Sixty-nine Dollars and Thirty-three Cents ($2,269.33) in cash and checks found on the person of appellant Leo Demaris was of such nature, and we hold that it was not.

H. C. Walling, a lieutenant in the Special Service Detail of the Beaumont Police Department, along with several other persons, personally conducted the raid on the day in question. Armed with a search warrant and order of seizure, he testified that he personally searched appellant Demaris and took from his person the amount of money and checks above referred to. He testified that he also took 57 “bet slips or wagering slips, baseball parlays, whatever you want to call them * * * from the person of Leo Demaris.” He qualified as an expert in the investigation of vice and gambling, etc., and stated that he had made a special study of gambling paraphernalia and bookmaking procedures and had become familiar with methods, techniques, paraphernalia and tools in the so called occupation of bookmaking. His testimony is undisputed in the record that the bet slips, etc., that he obtained from the person of Demaris was gambling equipment. However, the record is devoid of any showing that this gambling equipment was commingled or connected in any manner with the money and checks taken from Demaris’ person. Although the money and checks were stated to have been obtained from Demaris’ pants pockets, there is no showing of what parts of his person said gambling equipment was taken. On the basis of our construction of Art. 637, supra, we hold that the trial court erred in confiscating the property taken from the person of appellant Demaris.

The State correctly urges that it had the right to prove its case by circumstantial evidence. Mills v. Browning, Tex.Civ.App., 59 S.W.2d 219. However, we find no evidence of such nature beyond a scintilla of conjecture and surmise.

We hold similarly in regard to the sum of $884.70 and a diamond ring taken from the person of appellant Lefkowitz during the raid and in regard to the sum of $144.07 taken from the cash register of the establishment, and the sum of $66.00 taken from a cigar box therein. We make this holding on the basis that there is no evidence in the record that said sums of money and ring were found commingled in or with any gambling equipment or paraphernalia as contra-distinguished from the fact that they were found in or with the carrying-out of the .raid.

Taken out of context with his own and other testimony in the record, that of witness Walling’s makes it appear that the property above referred to as taken from the person of Lefkowitz was commingled with gambling equipment so as to have been an integral part thereof. His testimony in this respect is as follows:

“Q. What is the next item of property or paraphernalia in connection with the search warrant introduced into evidence?
“A. Several baseball ' odd sheets, price list of odds on different baseball teams.
“Q. From whom did you take those ?
"A. From the person of Raymond ’Lefkowitz.”

Notwithstanding this testimony, the record indisputedly reflects that Walling did not personally search or take any objects whatsoever from the person of appellant Lefkowitz. The discrepancy in his testimony is easily reconciled however by reason of the fact that it appears that he was the person primarily in charge of the raid and, although he did not personally search and obtain anything from the person of Lefkowitz, that the said sum of money and ring were actually taken from said person by one Lt. Lawhon, who subsequently turned it over to Walling. The following testimony of witness Walling is pertinent:

“Q. What else did you take, Captain, at that time, pursuant to that search warrant ?
“A. Currency taken from the person of Raymond Lefkowitz by Lt. Lawhon. (Emphasis added.)
“Mr. McGraff: We’object to that hearsay unless this officer was there and saw it.
“The Court: Sustain the.objection.”

It is quite clear from testimony of said witness Lt. Lawhon that he alone, not Captain Walling, personally made the search and seizure on the person of appellant Lefkowitz and that although he stated that he found bet slips on Lefkowitz’ person, that he was unable to locate them at the time of trial and they were not identified or introduced in evidence. Therefore, we hold that the trial court erred in its findings in regard to the property taken from the person of Lefkowitz.

The money above referred to as having been seized from the cash register and cigar box of the establishment was likewise unidentified or proved to have been taken in or with gambling equipment or paraphernalia within the meaning of Art. 637, supra, as we have hereinabove construed it. It appears from the record that the Oyster Bar was a typical beer serving establishment, as well as a gambling house, and served were items such as sandwiches, potato chips, soda water, cold cuts and oysters on the half shell. It appears that money taken from the cash register and cigar box was used in connection with the sale of such articles. A witness for the State, Clyde Rush, who was Acting Inspector of Detectives of the Beaumont Police Department on the day of the raid, seized these monies. He stated that there was nothing about the cash register itself that indicated that it had anything to do with gambling; that it was located at a convenient place behind the bar for the selling of food, soft drinks, etc.; that he didn’t know of his knowledge if this money had anything to do with or was connected with gambling. His testimony .regarding the money in the cigar box was the same. There was no testimony to the contrary. We, therefore, conclude that the trial court also erred in its findings in connection with these sums of money. In fact, there was no evidence that any of the money herein involved had been used for gambling. Although there is much evidence that many bets were made at the Oyster Bar, there is no evidence that any bets were actually paid off there, or any place else, with any money .from any source.

We find it unnecessary to consider the appellant’s last point of error. The judgment of the trial court is reversed and judgment is here rendered in favor of all appellants in accordance with our opinion.

Reversed and rendered.


author: MCDONALD, Chief Justice.

text:
    PERRY CONSTRUCTION COMPANY, Appellant, v. Ardessa WATKINS, a Widow, et al., Appellees.
    No. 4101.
    Court of Civil Appeals of Texas. Waco.
    April 25, 1963.
    Vinson, Elkins, Weems & Searls, Don Hargrove Smith, Houston, for appellant.
    Hay, Kirk, Van Keuren & Baggett, Russell T. Van Keuren, Houston, for appellees.
   MCDONALD, Chief Justice.

This is a venue case. Plaintiffs are the widow and minor son of Clarence Watkins, deceased, and brought suit in Wharton County against defendant construction Company for damages for Clarence Watkins’ death. Plaintiffs alleged, among other things, that defendant contracted with the State of Texas to do certain construction work on F M Road 442 in Wharton County. Such contract provided:

“During the progress of the work the Contractor shall provide for local traffic to private property within the closed portions of the highway. * * *
“The Contractor shall at all times provide for egress and ingress to private property where existing facilities cannot be used due to construction operations * * *.
“The safety of the public and the convenience of traffic shall be regarded of prime importance, during construction. * * * public safety and convenience and provisions therefor, made necessary by the work, shall be the direct responsibility of the Contractor, and shall be performed at his entire expense.”

Plaintiffs further alleged that the deceased lived on the road under repair and utilized the land on both sides of such road for his farming operation; that there were ditches on each side'of the road with culverts over same to permit passage; that defendants tore down such passage ways without providing deceased and other parties with a way of ingress and egress; that on 24 March, 1961, one of deceased’s cows bogged down in the field across the road and deceased got on his tractor and crossed the road and was trying to cross the ditch to get to the cow, when the tractor turned over upon him, crushing and killing him.

Plaintiffs alleged that defendant breached its contract to provide a safe way of ingress and egress to adjacent private property; and further that defendant failed to give deceased any warning of the dangers involved in attempting to cross the ditch with any type of farm equipment such as a tractor; that because of such breach of contract, and further because of defendant’s failure to exercise ordinary care, a condition was caused to exist along the road which was dangerous to parties living along the road, which could have been reasonably foreseen by defendant; and which was dangerous and constituted negligence proximately causing deceased’s death and plaintiffs’ damages.

Plaintiffs sought recovery of damages for deceased, and for themselves, occasioned by defendant’s negligence.

Defendant filed its plea of privilege to be sued in Bexar County, the county of its residence. Plaintiffs controverted such plea, asserting venue in Wharton County under subdivisions 9, 9a, 4 and 5 of Article 1995, Vernon’s Ann.Tex.St.

Trial was before the Court without a jury, which after hearing, overruled defendant’s plea of privilege. Defendant appeals, contending the Trial Court erred in overruling its plea of privilege because:

1)Plaintiffs failed to prove a cause of actionable negligence on the part of defendant in Wharton County, because the evidence shows as a matter of law defendant breached -no duty to deceased, and the deceased voluntarily encountered the risks of the occurrence made the basis of suit.
2) Plaintiffs failed to prove deceased was a 3rd party beneficiary under the contract between the State and defendant.
3) The evidence failed to show that any exception to exclusive venue in the county of defendant’s residence exists.

The proof showed that defendant contracted with the State to repair the road in front of deceased’s home; that such contract was performable in Wharton County; and required defendant to provide for local traffic to private property along portions of the highway under construction. It is undisputed that defendant breached the contract and did not provide a way over the ditches along the road onto property upon which deceased conducted farming operations; nor did defendant warn deceased, or erect warning signs, apprising of the danger of crossing the ditches at the side of the road. It is undisputed that deceased attempted to cross the ditch on his tractor; and that the tractor turned over and killed deceased. The record reflects that by putting some dirt in the ditch during the time the bridges were out, would have made them safely negotiable with a tractor, and that it was common practice for contractors to provide such dirt for ingress and egress over ditches in this situation; and that such could have been done in less than 30 minutes’ time.

We think the record amply reflects that the defendant had the duty to provide deceased with egress and ingress facilities over the ditch, as well as to provide warning signs, warning of the condition as it existed and the dangers involved; that defends ant breached these duties; and that such breaches were proximate causes of deceased’s death and plaintiffs’ injuries. Venue is maintainable in Wharton County by virtue of subdivision 9a, and perhaps other sections relied on by plaintiffs.

Defendant contends that since deceased could see the ditch, and since the ditch was open and obvious, that plaintiffs are precluded from recovery as a matter of law, by the doctrine announced in McKee v. Patterson, S.Ct., 153 Tex. 517, 271 S.W.2d 391. Such case and doctrine is applicable to an “invitee” only, and has no application to the factual situation of the case at bar. Defendant’s contentions therefore go to possible contributory negligence on the part of deceased (which is a fact question in trial on the merits), and are inapplicable in the determination of venue.

Defendant’s contentions are overruled and the judgment of the Trial Court is Affirmed.


author: MURRAY, Chief Justice.

text:
    Eliseo CUELLAR and Anastacia Garcia Cuellar, Appellants, v. Keith E. COOK, Appellee.
    No. 14092.
    Court of Civil Appeals of Texas. San Antonio.
    May 1, 1963.

      Werner A. Gohmert, Alice, for appellant.
    Perkins, Floyd, Davis & Oden, Alice, for appellee.
   MURRAY, Chief Justice.

This is a suit in trespass to try title, instituted by Eliseo Cuellar and wife, Ana-stacia Garcia Cuellar, against Keith E. Cook, seeking to recover the title to and possession of 157 acres of land located in Jim Wells County. Keith E. Cook filed a motion for summary judgment, which was granted by the trial court and judgment entered that plaintiffs take nothing, from which summary judgment Eliseo Cuellar and wife have prosecuted this appeal.

Appellants make but one point, reading ■as follows:

“The trial court erred in sustaining Appellee’s motion for a summary judgment.”

The 157 acres involved were originally owned by the parents of Eliseo Cuellar. His parents died intestate leaving seven ■children surviving them, who inherited the 157 acres of land. As it would be a difficult matter to divide the land among the heirs, and as there were debts to be paid, Eliseo Cuellar decided to borrow money, buy out the other heirs, and become the owner of the land. So appellants went to see appellee, Keith E. Cook, who had been in the insurance and real estate business since 1946, and obtained loans for people on real estate. Appellee deals in all kinds of property and does appraisal work. Appellants went to appellee in order to secure a loan, so that they could pay off the other heirs and own the land themselves. Appellants were told by appellee that before he could get a loan on the land it would be necessary for all the heirs to sign a sales contract. This they did on November 9, 1956, and on December 4, 1956, appellee obtained a loan from the First State Bank of Alice in the sum of $5,000.00, secured by a deed of trust, signed by him, on the 157 acres of land. A deed was signed and acknowledged by the seven heirs to the land and their spouses on December 3, 1956, conveying the property to appellee.

Thereafter, on December 10, 1956, ap-pellee as seller and appellants as buyers, made and entered into a contraot of sale of the 157 acres of land by the terms of which appellee agreed to sell this property to appellants for the sum of $9,400.20, with no cash down, but payable in equal monthly installments of $156.00, beginning on the 1st day of December, 1956, and a like payment being due and payable on or before the 1st day of each month thereafter for sixty months, until such purchase price was fully paid. Thereafter, appellants defaulted and appellee terminated the contract of sale and took possession of the 157 acres, during the month of December, 1958, and has been in possession of same at all times since such date.

Appellants admit signing the above written instruments and offer no legal reason why they should not be bound by them. They contend that there was a confidential and fiduciary relation existing between them and appellee. The evidence does not raise a fact issue as to such relation. The record shows that they were dealing with each other at arm’s length and solemnly executed the above instruments. Thigpen v. Locke, Tex., 363 S.W.2d 247.

In support of this contention appellants cite the cases of Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985; Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401; Cartwright v. Minton, Tex.Civ.App., 318 S.W.2d 449. The first case involved the fiduciary relation between mother and son; the second, involved the relation of joint adventurers, and the third, that of executor and legatee and devisees. None of these relationships exist here.

Appellants next contend that the deed from Elíseo Cuellar and his sisters and brothers was intended as a mortgage. There is nothing to raise this issue. The admission of Elíseo Cuellar is to the contrary. He admits signing the purchase contract with appellee and finally made the following admission:

“Q. I see. Under the terms, Mr. Cuel-lar, of your contract of sale with Mr. Cook by which you bought the property back, you were to pay him in monthly installments?
“A Yes, sir.
“Q And you were to pay a total of $9,400.20?
“A Well, that was his price.
“Q That was what it said in the contract ?
“A Yes, sir.
“Q And that was to be paid $156.67 a month?
“A That’s correct. * * *
“Q Then the contract did provide that it was $156.67 a month?
“A Yes, sir.
“Q And it was to begin on December 1, 1956?
"A That’s right.
“Q All right. Now, you recognized your obligation to pay that money ?
“A Yes, I did. * * *
“Q You thought what? I’m sorry; I didn’t hear that.
“A He must have — I don’t know what he thought, but he must have thought that it was a chance for him to take hold of the land, so he did. That’s all I know.
“Q And you think that he is not entitled to do that?
“A No, because I was — with all my heart I was planning to pay for it. That was my general intention.”

Cuellar indicated that because he was eight or ten days late in a payment, ap-pellee foreclosed and that he did not think that was the right thing to do, and when asked:

“Q All right, sir. And is that what this lawsuit is based on?
“A That’s all there is to it.”

The entire situation shows that appellants did not intend that the deed to appellee should be only a mortgage. Even if the deed was intended to be only a mortgage, appellee being a mortgagee in possession of the land, appellants could not recover the land without repaying the $5,000.00 they received, and they have neither plead nor attempted to prove that they are willing to repay the $5,000.00.

The judgment of the trial court is affirmed.


author: NORTHCUTT, Justice.

text:
    Wallace A. THOMPSON, Appellant, v. George Carroll CLAY et al., Appellees.
    No. 7247.
    Court of Civil Appeals of Texas. Amarillo.
    April 15, 1963.
    Rehearing Denied May 13, 1963.

      Monning & Monning, Amarillo, Hugh Umphres, Jr., Amarillo, of counsel, for appellant.
    Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, Don Dean, Amarillo, of counsel, Tom M. Seay, Amarillo, for ap-pellees.
   NORTHCUTT, Justice.

This suit was brought by the appellant to recover from appellee Clay the balance due under an executory contract for the sale of land and to foreclose an implied vendor’s lien securing its payment. The appellee impleaded the other appellees herein, asserting that if he owed such balance then he was entitled to recover that amount from the other appellees on the theory that he had paid them that amount upon their representation they had acquired the original vendor’s interest in the land at an execution sale held for the dual purpose of satisfying their judgment against such vendor and foreclosing an abstract of judgment lien created by virtue of such judgment, and that in reliance upon such representations he, Clay, repurchased the land from them. Appellant’s suit was defended on two theories. First that appellant had no right or title to any sum which may be due under said executory contract, if it be conceded that any amount is due under such contract; and second, that by virtue of such execution sale all rights under the executory contract were extinguished. Appellant disputed these contentions, asserting that as grantee under a deed from Coursey (the original vendor in said contract of sale) appellant acquired all rights of Coursey under the previously executed contract of sale; that no judgment lien against the land in question was ever created; and that the writ of execution and sale thereunder did not operate upon such land.

The trial court entered judgment that appellant take nothing; that appellee take nothing on his cross action; and that the other appellees recover the amount deposited in the registry of the court by Clay as the amount due by him to the other ap-pellees under the terms of said sale. From that judgment appellant perfected this appeal. So far as this record is concerned,, Aubray Coursey was the original owner of the property here in question. The instruments here involved occurred in the following chronological order:

1. February 4, 1953, in Cause No. 11724 on the Potter County Court docket F. C. Jupe, John Jupe, Dan Jupe, Fred C. Jupe, and Woody Bruza d/b/a Jupe Motor Supply filed suit against Aubray Coursey to recover the unpaid balance alleged to be due on a note in the principle sum of $420 alleging the note to be payable to such plaintiffs. The note as set forth in the petition was payable to Jupe Motor Supply.
2. March 3, 19S3, judgment in said Cause No. 11724 was entered against Aubray Coursey and in favor of said individuals for the sum of $427.94 plus interest.
3. February 15, 1957, Aubray Coursey entered into an executory contract of sale with appellee, Clay, under the terms of which agreement Coursey agreed to sell and Clay agreed to purchase Lot 4 in Block 54 of Glenwood Addition, an addition to the City of Amarillo, Texas.
4. January 14, 1960, alias execution in said Cause No. 11724 was returned as purportedly executed by levy upon said Lot 4 in Block 54 of the Glenwood Addition.
5. January 15, 1960, Coursey conveyed said Lot 4 in Block 54 to appellant, the conveyance being made subject to the said contract between Coursey and Clay.
6. By letter dated March 10, 1960, appellant notified appellee Clay that he had purchased all of Coursey’s interest in the contract for deed.
7. April 5, 1960, the sheriff sold said Lot 4 under the writ of execution returned January 14, 1960, conveying the same to John and Dan Jupe and Woodrow Bruza, who paid for same by crediting said judgment.
8. April 5, 1960, and after such sheriff sale, John and Dan Jupe and Woodrow Bruza entered into an executory contract to sell said lot to appellee, Clay.

In addition to the foregoing facts the uncontroverted testimony shows that on March 6, 1953, a purported abstract of judgment of said Cause No. 11724 was filed. The instrument being filed in the office of the Potter County clerk and recorded in Volume 10 and Page 247 of the Judgment Records. It was contended by appellant that the only issue here involved is whether or not Coursey’s rights in the contract were lost or incumbered by the filing of abstract of judgment in said County Court No. 11724 and sale under execution issued in said cause and if not whether or not Coursey has conveyed his rights in said contract to appellant. It being the contention of appellant that because the abstract of judgment shows that Jupe Motor Supply owned the judgment while the judgment was taken in the individual names of the partnership and that the individual names were not properly indexed and because of such errors in the abstracting of such judgment there was no proper judgment lien established against said property.

This appeal is presented upon two points of error contending the trial court erred in refusing to render judgment in favor of appellant and against appellee Clay as prayed for because the undisputed .evidence showed as a matter of law that such obligations were a valid and subsisting debt and in failing to enter judgment foreclosing the implied vendor’s lien as prayed for in appellant’s original petition because the undisputed evidence showed as a matter of law that it was a valid and subsisting lien securing a valid and subsisting obligation owned by appellant and sued upon in this cause.

The style of the suit in Cause No. 11724 was Jupe Motor Supply v. Aubray Coursey. The petition begins “Now comes, F. C. Jupe, John Jupe, Dan Jupe and Fred C. Jupe, Jr., Woody Bruza, doing business as partners under the partnership name of Jupe Motor Supply, all of Amarillo, Texas, hereinafter called plaintiffs, complaining of Aubray Coursey * * The note sued upon was made payable to Jupe Motor Supply. On March 3, 1953, judgment was entered in favor of the individual partners against Aubray Coursey. An abstract of judgment was filed in the abstract of the judgment record in the office of the county clerk of Potter County, Texas, on March 6, 1953, at 4:45 o’clock p. m. If the abstracted judgment was proper in all respects and properly indexed, it became a lien upon any interest in the real estate owned by Coursey at that time.

There is no question here about the judgment becoming dormant as executions were issued keeping the judgment alive. The abstracted judgment showed Jupe Motor Supply as plaintiff and Aubray Coursey as defendant and was indexed under “J” for plaintiff, Jupe Motor Supply, and under “C” for defendant Coursey. While the judgment was abstracted as herein set out, Coursey on September 15, 1957 entered into an executory contract of sale with appellee Clay for the property here involved. On January 14, 1960, alias execution in Cause No. 11724 was returned showing levy by the sheriff upon the property here involved and on the next day, January 15, 1960, Coursey conveyed the property here involved to this appellant subject to the Clay contract. On April 5, 1960 the sheriff sold said property under the writ of execution conveying the property to John and Dan Jupe and Woodrow Bruza. On the same day, April 5, 1960, John and Dan Jupe and Woodrow Bruza sold the property to ap-pellee Clay and Clay has paid them for the property. Appellant Thompson brought this suit against Clay to recover the balance due under the executory contract entered into between Coursey and Clay and for a foreclosure of an implied vendor’s lien securing the payment of the unpaid balance.

The sole question here involved was whether the abstracted and indexed judgment was sufficient to establish a judgment lien against the property in question since the clerk’s certificate shows the judgment was in favor of the plaintiff, Jupe Motor Supply, and indexed that way instead of naming all the plaintiffs. The purpose of abstracting and indexing a judgment is to place a person interested on inquiry as to the recorded instruments.

Taking into consideration the fact that the note sued upon in Cause No. 11724 was made payable to Jupe Motor Supply and that four of the members of the partnership doing business under the name of Jupe Motor Supply were named Jupe and the judgment abstracted being indexed under “J” showing Jupe Motor Supply as plaintiff and in the reverse index under “C” showing Coursey as defendant, we believe would have been sufficient to place anyone interested on notice of the judgment lien attempted to be placed against the property. We are familiar with the statutes requiring the things to be done in establishing an abstracted judgment lien. There is nothing in this record to show that appellant, a resident of Minnesota, ever checked the record or made any inquiry as to such record although his interest was obtained the day after execution was levied upon the property. We are of the opinion, however, that if there was not a properly abstracted judgment lien, appellant would have been entitled to recover.

It is stated in the case of Carver v. Gray, Tex.Civ.App., 140 S.W.2d 227 (writ dismissed, judgment correct), as follows:

“Our courts have said that the object of the statute is not to encumber the registry with full information concerning the abstract of judgment lien. That may be obtained from the judgment lien itself after it has been located by consulting the index. The latter is designed merely to indicate the source from which the full information may be obtained. It was not necessary that the capacity in which the receiver held the judgment be shown by the index. We think the statute was sufficiently complied with and that the document was indexed in such manner as fully to accomplish the purpose of the law. Willis v. Smith, 66 Tex. 31, 17 S.W. 247; Moseley v. Evangelical Theological College, Tex.Civ.App., 34 S.W.2d 638; Cooke v. Avery, 147 U.S. 375, 13 S.Ct. 340, 37 L.Ed. 209.”

We have carefully examined this record and are of the opinion the procedure followed in the establishment of a judgment lien herein was substantially complied with such as to place anyone interested on inquiry and that equity requires an affirmance >of the trial court’s judgment. Judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    Nell Creason JETT, Appellant, v. Edna Erle SIDES et al., Appellees.
    No. 4120.
    Court of Civil Appeals of Texas. Waco.
    April 25, 1963.
    Rehearing Denied May 16, 1963.
    Flowers & McManus, Channelview, for appellant.
    Reid, Strickland, Gillette & Ramsey, W. Bruce Ramsey, Baytown, Chas. L. Price, Baker, Botts, Shepherd & Coates, Roger R. Wright, Jr., Houston, for appellees.
   TIREY, Justice.

This is an appeal from the order of the Court of Domestic Relations No. 3 of Harris County, Texas, granting defendants’ motion for summary judgment. Plaintiff went to trial on her original petition which was filed January 3, 1962. Pertinent to this discussion she alleged that on the 1st day of July, 1960, she filed a petition in Cause No. 552,474 in the same court against Arnold J. Jett, asking for an annulment of her marriage to him; that on the same day such court entered a decree purporting to annul the marriage of plaintiff and Jett, which decree is recorded in Vol. 28 of the minutes of such Court; that the decree shows on its face that Jett wholly failed to appear at the time of the hearing and that the judgment roll in such cause showed no citation was ever issued, and that no service was ever had on Jett, and that Jett filed no answer; that the decree further recites that Jett had waived the issuance of citation and service and return on him, and had entered his appearance; that the judgment roll reflects that the purported waiver was executed June 27, 1960 before the suit was filed on July 1, 1960; that the signing of the waiver before the suit was filed was in direct violation of Art. 2224 of Vernon’s Ann.Tex.Civ.St., and that such waiver was void “or at least voidable” and that said decree cast a cloud upon the status of this plaintiff as the widow of Jett, who died in Harris County on August 13, 1961.

The petition further alleges that Jett left surviving him by a former marriage, a son and a daughter, and that Jett left a certain surviving benefit fund with the Humble Oil & Refining Company payable to his widow; and alleged that the Equitable Life Assurance Society of the U. S. had insured the payment of such fund; that the trustees of the annuity and benefit fund of Humble Oil & Refining Company had funds in their account due the plaintiff, and that the payment of these funds was being held up because of the void or voidable decree of annulment heretofore granted to plaintiff.

Plaintiff made the son and the daughter and her husband, and each of the other herein named parties, defendants, and she prayed that she have an order setting aside and cancelling the former decree of annulment heretofore entered. Each of defendants answered and thereafter, on August 22nd, filed a joint motion for summary judgment. Pertinent to this discussion they set up in their motion that there was no genuine issue as to any material facts, and that the plaintiff is not, as a matter of law, entitled to the relief which she seeks; that the annulment decree of July 1, 1960 was a final judgment and that it cannot be vacated except by bill of review, and that plaintiff has no standing to invoke the equity jurisdiction of such court by a bill of review; and further that the plaintiff is estopped to assert that this court did not have jurisdiction to enter the annulment decree since she had invoked such jurisdiction in the first instance; that the sole basis for plaintiff’s attack is that Jett executed the waiver of service of citation 4 days prior to the date plaintiff’s petition was filed, and that since such waiver was executed in violation of Art. 2224, V.A. T.S., the court did not acquire jurisdiction over the person of Jett and that the annulment decree is void; that the annulment decree was entered on July 1, 1960, and since no motion for new trial was made and no appeal was taken, and no writ of error was perfected, the decree became final 30 days from the date of entry by virtue of the provisions of Rule 329-b(5), Texas Rules of Civil Procedure. The motion further alleged that the decree of July 1, 1960 recited the necessary prerequisites for acquiring jurisdiction over the person of Jett and that the judgment is therefore regular upon its face, and that the judgment entered thereon was voidable only, under the authority of Bragdon v. Wright, Tex.Civ.App., 142 S.W.2d 703, writ dismissed.

Appellant’s Points 1 and 2 are to the effect that the court erred because (1) it should not have allowed the defendants to introduce evidence at the hearing on the motion for summary judgment, because Rule 166-A, T.R.C.P., providing for such motions presupposes only law questions and issues of fact made by the pleadings, admissions, depositions and affidavits before the court; (2) that the court should not have overruled plaintiff’s motion to dismiss the motion for summary judgment because the motion did not have attached to it certified copies of the deposition in the case at bar, and the pleadings and judgment in the annulment case. We overrule each of these contentions for reasons hereinafter briefly stated.

First of all, plaintiff filed no reply to the motion for summary judgment. She did file a motion to dismiss it. The sole basis for plaintiff’s attack on the jurisdiction of the court was to the effect that the waiver of citation was executed by Jett on June 27, 1960, four days prior to the time the suit was actually filed on July 1, 1960, and that that was contrary to the provisions of Art. 2224 V.A.T.S. The depositions of plaintiff and her attorney in the annulment suit were taken on April 6, 1962, and were thereafter filed in the trial court. Thereafter, the defendants filed their joint motion for summary judgment, in which they alleged there were no genuine issues of any material facts and that plaintiff was not entitled as a matter of law to the relief she sought.

Defendants’ motion for summary judgment asserted, among other things, that the annulment judgment was not void, and could be vacated at this time only by a bill ■of review, and that plaintiff had no standing to invoke such equity jurisdiction. The motion further alleged that under all the facts, plaintiff was estopped to bring the instant action. It is obvious that the doctrine of estoppel and invited error precludes plaintiff from any relief. See Long v. Long, Tex.Civ.App., 365 S.W.2d 214; also Panos v. Foley Bros. Dry Goods Co., Tex.Civ.App., 198 S.W.2d 494; Spence v. State Nat. Bank of El Paso, Tex.Com.App., 5 S.W.2d 754, 756 (Com.App.); 4 Tex. Jur.2d sec. 766, pp. 275, 276, 277.

As we understand appellant’s position, it is to the effect that the court erred in its failure to dismiss defendants’ motion for summary judgment on the ground that ■certified copy of the plaintiff’s oral deposition and certified copies of the papers in the former annulment suit were not formally attached to the motion for summary judgment. There is absolutely no merit in this contention. It is our view that the summary judgment is supported by the pleadings, the admissions of the plaintiff in her petition, the depositions on file and the certified copies of the instruments filed in the prior annulment suit by the plaintiff, to-wit: the judgment, the waiver of citation and the petition. Actually, the certified copies of the above instruments do not show anything of significance in addition to those allegations already admitted and recited in the plaintiff’s original petition, and they are the same instruments upon which she relies in her suit to set aside the annulment. The material facts are undisputed and uncontroverted. Perhaps we should point out that the depositions on file established without dispute consistent with the allegations in the plaintiff’s petition, that she voluntarily, and without any force or duress, invoked the jurisdiction of the court and filed the annulment suit and obtained a judgment in her favor, solely upon her own testimony; that her attorney prepared all the papers; that he prepared the waiver and had prepared the petition some two weeks prior to filing the suit, and that he waited to file the suit until four days after the defendant came to his office and signed the waiver. It is without dispute that the petition and waiver were filed and the annulment hearing held on the same morning with the plaintiff and her attorney being the only persons present. Both parties knew that the annulment had been granted, and less than two weeks later, her attorney sent three copies of the annulment decree to Jett. Neither party ever attempted to do anything about setting aside the annulment until the instant suit was filed by the appellant, almost one and a half years later, and some five months after the death of Jett, in order that plaintiff could make a claim for property acquired by Jett during his lifetime. It is without dispute that appellant was married to Jett for only eight months prior to the annulment, and that one of the grounds in her annulment suit was that she discovered that he didn’t have as much property as he represented at the time of the marriage. So far as we have been able to find, no Texas court has ever made a requirement that depositions on file be physically attached to the motion before they can be considered by the court in a summary judgment hearing, and we think the contrary is true. See Allen v. Western Alliance Ins. Co., Tex., 349 S.W.2d 590, Sup.Ct.; Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, Sup.Ct.; Gulf, Colorado & Santa Fe Ry. v. McBride, 159 Tex. 442, 322 S.W.2d 492, Sup.Ct.; Brownson v. New, Tex.Civ.App., 259 S.W.2d 277, writ dis.; Stafford v. Wilkinson, 157 Tex. 483, 304 S.W.2d 364, Sup.Ct.; Reese v. Davitte, Tex.Civ.App., 255 S.W.2d 1015; Statham v. City of Tyler, Tex.Civ.App., 257 S.W.2d 742, n. r. e.; Starr v. Ripley, Tex.Civ.App., 265 S.W.2d 225, no writ history; Fowler v. Texas Employers’ Ins. Association, Tex.Civ.App., 237 S.W.2d 373, writ ref.; Shaunty v. Burrus Mills, Tex.Civ.App., 349 S.W.2d 789, no writ history; Watson v. Druid Hills Co., Tex.Civ.App., 355 S.W.2d 65, n. r. e.

With reference to the certified copies of the petition, waiver and annulment decree, plaintiff does not claim that there is any disputed fact issue contained therein. On the contrary, the foregoing are the very instruments referred to and relied upon by her in her petition in this suit, and she alleges and recites some of the provisions contained in the instruments referred to. Needless to say, her contention in this behalf is without any merit. We think it is well settled in Texas that where the documents are court records in the same court of which the trial court may take judicial notice (as is the case here) such instruments may be considered by the court in determining whether there is an issue of material fact without the necessity of their being physically attached to the motion for the summary judgment. See Willoughby v. Jones, 151 Tex. 435, 251 S.W.2d 508, Sup.Ct.; Womble v. Atkins, Tex.Civ.App., 314 S.W.2d 150, aff. 160 Tex. 363, 331 S.W.2d 294; Maxwell v. Campbell, Tex.Civ.App., 282 S.W.2d 957, n. r. e.; Pridgen v. Denson, Tex.Civ.App., 298 S.W.2d 276, n. r. e.

Perhaps we should say that we have examined the opinion in Toliver v. Bergmann, Tex.Civ.App., 297 S.W.2d 208, and also Gardner v. Martin, Tex., 345 S.W.2d 274 by the Supreme Court, and these cases are not applicable to the factual situation here. We think this cause is ruled by Rule 329-b (5), T.R.C.P., which rule is fully discussed' by our Supreme Court in McEwen v. Harrison, Tex., 345 S.W.2d 706. In that opinion we find this statement by our Supreme Court:

“Accordingly, we construe the emphasized provisions of Rule 329-b to mean that when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it. Into this category will fall those cases in which a default judgment is asserted to be void for want of service, or of valid service, of process. * * * With this construction of the Rule, we may assume, without deciding, that Texaco is correct when it says that the default judgment against it is a void judgment and that its motion to vacate is a direct attack on the judgment. We are yet compelled to hold that the order vacating the default judgment is unauthorized and void because the district court had jurisdictional power to determine the validity of the service. (Indeed, it was its duty to do so) and to render the judgment, and Texaco’s motion to vacate it does not qualify as a bill of review.”

The opinion of the Supreme Court is clear and comprehensive and it is applicable to the factual situation here before us, and under the construction given to Rule 329-b (5) aforesaid, it was the duty of the trial court to grant defendants’ motion for summary judgment, and its action in so doing is affirmed. We have considered each of the other points tendered by appellant and each is overruled. All cost is taxed against appellant.


author: DENTON, Chief Justice. CHAPMAN, Justice NORTHCUTT, Justice DENTON, Chief Justice.

text:
    FORT WORTH & DENVER RAILWAY COMPANY, Appellant, v. Mrs. O. B. WILLIAMS et al., Appellees.
    No. 7213.
    Court of Civil Appeals of Texas. Amarillo.
    April 8, 1963.
    Rehearing Denied May 27, 1963.

      Dean & Nowlin, Plainview, Tillery, Hy-der & Law, Fort Worth, for appellant.
    Huff & Bowers, Lubbock, for appellees.
   DENTON, Chief Justice.

A more thorough study of this case upon the motion for rehearing has convinced me a further discussion of the case is advisable. A general statement of the nature and the result of the case has been set out in the original opinion, therefore, a repetition of the general facts surrounding the collision and a restatement of the jury findings are not necessary.

Seventeen of appellant’s points of error contend there was insufficient evidence to support the jury’s answers to the special issues concerning the negligence of the appellant’s employees and contributory negligence of the deceased, O. B. Williams. In addition, appellant urges by nine other points of error that the jury’s answer to the special issues which found the deceased was not guilty of contributory negligence, and the finding that the crossing was extra hazardous was not supported by any evidence.

The first group of points raising the sufficiency of the evidence presents a question of fact. In order to pass on these issues, it is necessary that we review and consider all the evidence. As I understand it, the primary basis for appellee’s cause of action is that the crossing was extra hazardous immediately prior to the collision. The other alleged acts of negligence on the part of appellant’s employees are elements of this broader question. Appellee concedes the crossing itself is not hazardous. There were no natural obstructions in the immediate vicinity of the crossing to obscure the view of approaching motorists. It has long been established that the particular conditions at a particular time may render a crossing extra hazardous. Beaumont, S. L. & W. R. Co. v. Richmond (Tex.Civ.App.), 78 S.W.2d 232. The Commission of Appeals in Tisdale v. Panhandle & S. F. Ry. Co., Tex.Com.App., 228 S.W. 133, 16 A.L.R. 1264 (Opinion Adopted), stated the general rule as follows:

“Conditions surrounding a crossing may and do, change materially from time to time. A flagman might not be required under the law at a certain crossing at one time, and yet it might be negligence to fail to provide one there at another time. The sole question for determination is whether or not at the time of the accident the conditions surrounding the crossing in question rendered it more than ordinarily hazardous or unusually dangerous."

Appellee’s contention, both in the trial and on this appeal, is that the headlight of the passenger engine so obstructed the boxcar at the crossing that the deceased was unable to detect it in time to stop his automobile; and that this condition rendered the crossing extra hazardous. Appellee then contends that under such a hazardous condition the appellant’s employees were negligent in failing to perform certain alleged precautions, to-wit: Place a fuse on the east side of the train; failure to place a signalman on the highway; and that they were negligent in failing to cut the train so as to clear the crossing. If appellee’s theory of this case is sufficiently proved, the many cases which hold a boxcar is so easily seen that extra precautions are not necessary would not be controlling here. In my opinion the pleadings and evidence are sufficient to raise this question of fact. As the deceased, O. B. Williams, was killed almost instantly and his twelve-year old son was asleep in the car at the time, no one was in a position to testify directly to the effect of the light. William G. Chandler, Jr., fire chief of Petersburg, was called to the scene of the collision shortly after it occurred. He testified: “I was remarkably close before I saw the boxcar. And, one of the things that stands in my mind was that all of a sudden seems like there was a boxcar materialized out of the darkness and I was — it seemed close. Now what was the cause of it I don’t know.”

The trial court admitted into evidence an experiment conducted by ap-pellee’s attorney. It was in the form of a moving picture of an experiment designed to simulate the conditions existing at the scene of the collision. Appellant’s objection to the introduction of the evidence was based on the ground the experiment was not under substantially similar conditions as existed at the scene of the collision. In my opinion the question of the admissibility of this type of evidence is largely within the discretion of the trial court, and goes more to the weight than to the admissibility thereof. It was within the province of the jury to consider and weigh this evidence. The attorney who conducted the experiment testified to the technique and equipment used and the circumstances under which this experiment was conducted. The jury had the benefit of this testimony in weighing and considering this evidence. It is to be noted the attorney explained that this experiment was performed only because of his inability to use the facilities of the appellant railroad company. In my opinion the admission of such evidence was not reversible error. It is well settled that ultimate facts in negligence cases may be proved by circumstantial as well as direct evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273. This case is also authority for the rule that the jury is not only the judge of the facts and circumstances proved, but may also draw reasonable inferences and deductions from the evidence adduced before it.

Appellant introduced evidence to show the crossing was open and obvious, and that the approach was from a straight line for some one-half mile. There was evidence the fuse thrown on the west side of the tract was visible to drivers approaching from the east, and that the freight train had stopped on the crossing only a short time before the collision occurred. A physicist testified to certain tests he made with a light meter. He testified a light such as that shown from the engine did not obscure a freight car at a distance of 1,300 feet “if there is no temperature gradient of an unusual nature in the air. That is, it has to be a vertical temperature gradient.” The witness had not known of such conditions in any of his experiments, but there was nothing in the record concerning the “temperature gradient” at the time and place of this collision. Appellant also offered testimony of several witnesses who observed an experiment conducted at the scene by the railway company. The test was conducted by placing freight cars and an engine in the positions they were in at the time of the collision. These witnesses testified they observed the freight cars some 125 to 140 yards ahead, and they saw the lighted fuse at least 100 yards from the tracks. It is obvious that the testimony presented in this case is conflicting and contradictory.

In Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332, Justice Simpson made the following observation, “Each case of a crossing collision is characterized by its own particular facts, and manifestly it would be most difficult to contrive a generalization which would aptly fit every situation.” In this case the crossing was open and the approach was straight and unobstructed. The collision occurred on a clear night at approximately midnight. A freight train was placed on an adjoining sidetrack to permit a passenger train to proceed on the main line. In the process, the freight train blocked the highway crossing. There was evidence the passenger train was some 1,000-1,300 feet from the crossing at the time of the impact. The passenger engine’s headlight was admittedly shining straight ahead as it moved slowly toward the crossing, and it obviously threw its light rays onto the main track which lay to the east of the side track upon which the freight train was situated. The main track was between the freight train and approaching traffic from the east. The passenger train was proceeding toward the crossing at a slow rate of speed. It is reasonable to assume Williams could see the passenger train’s headlight as it approached from his left. In my opinion this constituted a distraction to the deceased. The fuse light shining under the boxcar could likewise have created the illusion that the crossing was open and clear. Under such circumstances, it has been held that the issue of contributory negligence becomes a fact issue to be determined by the jury. Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S.W. 139. Beaumont, S. L. & W. R. Co. v. Richmond, supra.

I am of the opinion this Court’s original opinion was incorrect in citing and following the rule of law laid down by McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391. The holding that the deceased, O. B. Williams, voluntarily exposed himself to a danger he realized, or should have realized, has no application here. On the contrary, the applicable rule of law under the facts and circumstances here is that it is presumed the deceased was doing whatever was reasonably necessary for his own safety. This presumption is strengthened by the fact the deceased’s son was a passenger in the car at the time. International-Great Northern R. Co. v. Acker (Tex.Civ.App.), 128 S.W.2d 506 (Dismissed). Gulf, C. & S. F. Ry. Co. v. Bouchillon (Tex.Civ.App.), 186 S.W.2d 1006 (Refused, WM). Dewhurst v. South Texas Rendering Co. (Tex.Civ.App.), 232 S.W.2d 135 (Refused, NRE). After reviewing all the evidence together with the circumstances and the reasonable inferences the jury may draw from the evidence before them, I am of the opinion the evidence is ■sufficient to support the jury verdict.

Appellant’s next group of points of ■error deal with the contention there was no evidence to support the jury verdict which found no contributory negligence on the part of the deceased. Texas & Pac. Ry. Co. v. Day, supra, is the authority for the rule: “It is only in instances where one crossing a railroad track has failed to exercise any degree of care for his safety that our courts have felt impelled to deny a recovery as a matter of law.” See also Hines v. Arrant (Tex.Civ.App.), 225 S.W. 767 (Error Refused). In passing on these points raising the “no evidence” question we are required to review the evidence in the light most favorable to the verdict and disregard all evidence which is adverse or contrary to the favorable evidence. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. In so viewing this record, I am convinced there was evidence to support the jury’s verdict. These points of' error are without merit and should be overruled.

Appellant further complains of certain jury argument of appellee’s counsel. It is not deemed necessary to set out the arguments complained of, but in my opinion the arguments are not of such a nature as to require a reversal of the case. Appellant has totally failed to sustain its burden of proof as required by Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596.

Appellant urges that the amount of damages assessed by the jury is excessive. In response to the damage issue, the jury awarded Mrs. Williams, the surviving wife and mother, $44,000.00; Linda Gay Williams, a daughter, $2,750.00; Kenneth Brode Williams, a son, $9,000.00; and Rodney Glenn Williams, a son, $11,000.00. This is a total recovery of $66,750.00. Ap-pellee’s pleadings and prayer for damages are somewhat confusing, but a careful analysis of such pleadings indicate the maximum amount that can be justified is a recovery of $60,000.00 for both the surviving wife and children. Under this record it is apparent the judgment is excessive by the sum of $6,750.00. By the authority given this Court by Rule 440, T.C.R.P., I would require a remittitur of such sum and direct that the amount awarded Mrs. Williams be reduced by that amount.

All of appellant’s points of error have been examined and considered, and those which have not been specifically overruled are without merit.

I would, therefore, reverse and remand this case unless appellee, Mrs. O. B. Williams, files a remittitur in the amount of $6,750.00 within fourteen days after the date of this opinion. In the event such re-mittitur is tendered, I would reform and affirm the judgment of the trial court.

CHAPMAN, Justice

(concurring opinion on motion for rehearing).

A study of the dissenting opinion of Chief Justice DENTON prepared after the motion for rehearing of appellee was filed has convinced me this court was in error when it reversed and remanded this case for another trial instead of reversing and remanding unless a remittitur was filed. I therefore concur in the dissenting opinion and respectfully disagree with the result and reasoning that led to the result in the original opinion.

Since these conclusions make it obvious that two members of this court agree that the case should be affirmed if the remit-titur suggested by Chief Justice DENTON is filed within fourteen days, the original opinion must become the dissenting opinion herein in the event the remittitur is filed within the time required.

NORTHCUTT, Justice

(dissenting opinion on motion for rehearing).

This dissent is in part the original opinion handed down on February 18, 1963.

Since the original opinion herein was written by me and now becomes the minority opinion, I deem it necessary to further review the record herein. The crossing here in question was a country railroad crossing and not in a city limits. The freight train had just pulled on to the side track and the passenger train was proceeding to pass on the main track when the accident happened. There is no showing of a necessity for the freight train to have been cut while the passenger train was passing or that it could have been cut'before the passenger train approached. Ap-pellees contend the headlight of the passenger engine so obstructed the boxcar at the crossing that the deceased was unable to see it in time to stop his automobile and that that condition rendered the crossing extra hazardous. The testimony shows that the light on the passenger train was such as required by Article 6372, Texas Civil Statutes, and consequently would not be considered as any act of negligence in making the crossing extra hazardous as it was required by law to have the kind of light it had on the passenger train. The record further shows the appellant had all signals calling attention to the crossing as required by statutes.

The Supreme Court held in the case of Texas & N. O. R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113, that negligence could not be based upon the omission to equip its freight cars with lights and have the same burning at night; to equip its crossing with signal bells or lights or to have a watchman stationed thereat. I am unable to see where there has been shown any negligence in this case on the part of the railroad company and I therefore respectfully dissent to the majority opinion.

Mrs. O. B. Williams, surviving wife of O. B. Williams, brought this suit against the Fort Worth & Denver Railway Company for herself, individually, and as next friend and in behalf of her three minor children, for damages growing out of the death of O. B. Williams, alleged to have occurred as the result of a collision between the car driven by the said O. B. Williams and a freight train of the appellant.

For convenience the railway company will hereafter be referred to as appellant and Mrs'. Williams -and the children as ap-pellees. On the night in question, the freight train here involved in the accident left Lubbock sometime after dark going to Childress. Sometime after the freight train had departed a special passenger train left Lubbock going to Childress. The freight train was to go on the side track at Petersburg to permit the passenger train to pass and proceed in front of the freight train. Both trains were going almost in a northerly direction. Just prior to arriving at Petersburg the freight train crew saw the lights from the passenger train behind them. When the freight train reached the point where it was to go onto the side track, the head brakeman, that rode on the engine, got off of the freight train and threw the switch to permit the freight train to enter the side track and after throwing the switch got back on the engine and rode to the far end of the side track. After the freight train cleared, the main track, the rear brakeman on the freight train dropped off and threw the switch so the passenger train could continue on the main line. Soon after the freight train had cleared the main line the passenger train proceeded down the main line and was approaching the crossing in question when the accident occurred. The passenger train was beside some portion of the freight train when the accident happened. Just how far back from the crossing the evidence varies. The passenger train stopped approximately three hundred feet from the crossing in question. The crossing was not inside the city limits of Petersburg. When the freight train moved into the side track, it extended across the roadway and blocked the highway traffic at that time. Mr. Williams crossed the main track and ran into the boxcar in the freight train on the side track and was killed almost instantly.

It was appellees’ contention that appellant by leaving the freight train on the crossing as it did created an extraordinary dangerous and hazardous crossing and that appellant was negligent in not placing a flagman at said crossing at the time and prior to the alleged accident and such negligence was a proximate cause of the damages of appellees. They pleaded appellant through its agents, servants, and employees was guilty of the following acts and omissions which constituted negligence and a proximate cause of the collision in question:

“1. The defendant was guilty of negligence in failing to place a signalman on said highway to warn the motoring traffic of this unlighted freight box car.
“2. The defendant was guilty of negligence in failing to have said signal.
“3. The defendant was guilty of negligence in displaying brilliant headlights at right angles or approximate right angles to the eyes of the motoring public, thus causing objects on the other side of the light to be obscured from the vision of the motoring public just before the motoring public is required to cross the tracks of the defendant herein.
“4. The defendant was guilty of negligence in not providing the parked freight train with lights to warn the motoring public of the presence of the box car.”

The case was submitted to a jury upon special issues. In answer to such issues the jury found that the crossing was an extra hazardous crossing immediately prior to the collision in question; that appellant failed to place a signalman on the highway after the freight train stopped on the switch before the accident, that it was negligence and a proximate cause of the accident; that the freight train crew failed to throw a fusee on the east side of the freight train immediately before the collision, that it was negligence and a proximate cause of the accident; that the freight train crew failed to keep a proper lookout for the deceased, that it was negligence and a proximate cause of the accident; that the employees were negligent in failing to cut the crossing prior to the time and on the occasion of the collision and that such negligence was a proximate cause of the collision in question; that the deceased was not driving his car at a high and dangerous rate of speed under the circumstances; that deceased was not driving his automobile without keeping a proper lookout for the locomotives and trains at or occupying the crossing in question; that the beam of light from the passenger train engine obscured the freight train beyond such beam of light from the vision of the deceased; that it was not negligence for deceased to continue to drive his car into such light when his vision of objects beyond such light beam was obscured; that deceased did not fail to use ordinary care to observe either the crossarm, re-flectorized signal, or the circular highway crossing marker that he was approaching a railroad crossing; that deceased did not violate Subsection 86(c) or 86(d) of Article 6701d of Texas Statutes; that the accident was not the result of an unavoidable accident. As to damages the jury found for Mrs. Williams in the sum of $44,000; Linda Gay Williams $2,750; Kenneth Brode Williams $9,000; and Rodney Glenn Williams $11,000, making a total of $66,750. Judgment was granted for the appellees for the total $66,750 as found by the jury and from that judgment the appellant perfected this appeal.

By appellant’s first point it is contended the evidence was insufficient to support the findings of the jury that the crossing in question was extra hazardous and also by other points of error assigns errors as to the insufficiency of the evidence as to all other points of negligence. It is admitted by the appellees that the crossing was not an extra hazardous crossing until the freight train blocked the crossing. The deceased was approaching the crossing from the east going west. The freight train was on the side track which was just a few feet west of the main line. There were no obstructions blocking the view of anyone approaching the crossing from the east. Deceased on numerous occasions had crossed this crossing and had passed over it the afternoon prior to the accident that night. There were proper signs on the highway notifying travelers on that highway of the crossing and the crossing could be seen from one-half mile to three-quarters of a mile. The freight train moved into the side track to permit the passenger train to pass and the passenger train was proceeding to pass when the deceased immediately crossed the track in front of the passenger train causing the passenger train to stop. It is appellees’ theory because of the lights on the passenger train engine it so blinded the deceased to the extent he could not see through the light and could not see the freight train on the passing track. The passenger engine had statutory lights as it was required to have. As we view this record, the only theory under which the appellees could hold appellant guilty of any negligence at all would be in its failure to cut the freight train at the crossing. This crossing being situated so that it was open, straight, and upon a level highway it could not have been an extra hazardous crossing. We are familiar with the fact that a crossing may become an extra hazardous crossing from temporary conditions which make it so at the time of the injury. The fireman on the freight train dropped a lighted fusee on the highway, in which deceased was traveling, just west of the freight train and said burning fusee was plainly visible from both sides of the freight train. The testimony shows if a fusee was dropped on the east side of the freight train, that would compel the passenger train to stop. When the front brakeman got off of the freight engine to throw the switch for the freight train to go on the side track, the passenger train was about half a mile behind the freight train. The freight train moved on slowly onto the side track and the passenger train had proceeded on the main line along beside the freight train before the accident in question. There is no showing the freight train crew had time to cut the train or necessity to do so before the passenger train was passing.

A person cannot recover for injuries sustained while voluntarily exposing himself to a danger which he either does or should fully realize and appreciate. McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391. Under the theory of this case deceased was bound to have known of the passenger train if he could not see where he was going because he could not see through its light. One with knowledge of a railroad crossing is charged with knowledge of existing dangers there by reason of moving trains. Muniz v. Panhandle & Santa Fe Railway Company, Tex.Civ.App., 285 S.W.2d 809 (NRE).

It is stated in the case of Texas & N. O. R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113 as follows:

"Another ground relied upon was the failure of the railroad company to use extraordinary means to give warning, such as to equip its freight cars with lights and have same burning at night, to equip its crossing with signal bells or lights or to have a watchman stationed thereat. Negligence cannot be based upon such omissions, for the crossing was not extrahaz-ardous and therefore no duty was cast upon the railroad company to observe these extraordinary precautions. It would be difficult to conceive of a railroad crossing at which the hazards would be more obvious than at this one.”

See also Missouri-Kansas-Texas R. Co. of Texas v. McLain, Tex.Com.App., 105 S.W.2d 206 (Com.App. opinion adopted by Sup.Ct.), as follows:

“It seems to be universally recognized that trainmen in charge of a train which has blocked a public crossing with an object which is easily discernible, like a box car, have a right to assume that one traveling a highway and approaching the obstruction will adopt suitable lights and such a rate of speed as that he can bring his automobile to a stop before coming in contact with the obstruction, and consequently accidents by reason of an automobile driver running his car into a train on a crossing, whether standing or moving, cannot reasonably be foreseen and anticipated as a natural result of blocking the crossing. In addition to those cited above, the following are a few of the illustrative cases: Texas & N. O. Ry. Co. v. Stratton (Tex.Civ.App.) 74 S.W.(2d) 741; Wichita Valley Ry. Co. v. Fite (Tex.Civ.App.) 78 S.W.(2d) 714; Gage v. Boston Ry. Co., 77 N.H. 289, 90 A. 855, L.R.A.1915A, 363; Gallagher v. Montpelier Ry. Co., 100 Vt. 299, 137 A. 207, 52 A.L.R. 744; St. Louis-S. F. Ry. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A.L.R. 1110, and annotation; Philadelphia & R. R. Co. v. Dillon, 1 W. W. Harr. (Del.) 247, 114 A. 62, 15 A.L.R. 894, and annotation.”

We are further of the opinion that there is insufficient evidence to show any negligence on the part of appellant or of any of its employees. It is stated in the case of Texas & N. O. R. Co. v. McMahan, Tex.Civ.App., 144 S.W.2d 1019 affirmed by Supreme Court in 138 Tex. 626, 161 S.W.2d 70, as follows:

“In view of the fact that appellee actually saw the train and called it to the attention of Jeffrey, and that each was very familiar with the crossing and its surroundings, having passed over it many times, and in view of the wide, open, straight and almost level highway upon which appellee was traveling at the time of the collision, we cannot permit this judgment to stand, based upon the alleged negligence of the Railroad Company in not having extraordinary methods of warning ap-pellee and the driver of the car, Carroll Jeffrey, of the presence of the train upon the crossing. Texas & N.O.R. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 741; Texas & N.O.R. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 746; Tex. & N.O.R. Co. v. Berry, Tex.Civ.App., 74 S.W.2d 750; Texas & N.O.R. Co. v. Compton, [135 Tex.Sup. 7], 136 S.W.2d 1113.”

As to appellant’s points of error referring to answers to its defensive issues that the case should be reversed because the answers were wholly without support in the evidence, we consider these assignments be that there was no evidence to support such findings. These points of error as to the issues being wholly without support in the evidence deal with the speed the deceased was driving; deceased driving without keeping a proper lookout; that it was not negligence for deceased to continue to drive his car into such light when his vision of objects beyond the light was obscured; and that deceased did not fail to use ordinary care to observe either the crossarm, reflectorized signal, or the circular highway railroad crossing marker showing that he was approaching a railroad crossing. There is nothing in this record to show the speed that deceased was driving and the jury would not be authorized to hold he was driving too fast or he was not driving too fast. There is no evidence that deceased was keeping a proper lookout or what he was doing at the time, only that he ran into the freight train. The appellant having the burden of proof as to its defensive issues, and the appellees having the burden to prove their issues, the fact the jury was not authorized to hold the deceased was not negligent in these matters would not justify us in holding as a matter of law the deceased was guilty in these matters.

There were issues found by the jury that appellant was guilty of certain acts of negligence and was a proximate cause of injuries claimed. I am of the opinion the evidence is insufficient to support the findings of the jury as to any acts of negligence on the part of appellant or of any of its-employees and for that reason I would reverse and remand.

DENTON, Chief Justice.

On April 13, 1963, appellee, Mrs. O'. B. Williams, filed a remittitur of $6,750.00 in compliance with the suggestion of remitti-tur by this Court’s decision of April 8, 1963. The judgment of the trial court will be reduced by the amount of such remittitur, and as so modified, the judgment of the trial court is affirmed.

Affirmed.


author: WILSON, Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Florencio HINOJOSA, Individually, et al., Appellees.
    No. 4105.
    Court of Civil Appeals of Texas, Waco.
    May 9, 1963.
    Rehearing Denied May 31, 1963,

      Hicks, Dollahon & Wohlt, Houston, for appellant.
    Vinson, Elkins, Weems & Searls, Sam W. Davis, Jr., Houston, for appellees.
   WILSON, Justice.

This action was brought on behalf of a workmen’s compensation carrier and an injured employee, Hinojosa, as judgment creditors of Yeary, appellant’s insured under an automobile liability policy. Efforts to collect the judgment from Yeary being fruitless, judgment was recovered from appellant on the policy issued to Yeary. That judgment was reversed, State Farm Mutual Auto. Ins. Co. v. Hinojosa, Tex.Civ.App., 346 S.W.2d 914, and the cause remanded. The present appellees did not apply for writ .of error; but State Farm, contending judgment should have been rendered, applied for a writ which was denied. It was there held that State Farm, having obtained a nonwaiver agreement from Yeary, did not waive Yeary’s delay in reporting the accident in which Hinojosa was injured by its investigation.

At the re-trial resulting in the present appeal an issue was submitted inquiring whether State Farm’s “handling of the defense” of the subrogation suit by the compensation carrier against Yeary (Yeary v. Hinojosa, Tex.Civ.App., 307 S.W.2d 325, writ ref. n. r. e.), constituted a waiver of Yeary’s late reporting of the accident. The jury answered the issue in the affirmative. Appellant asserts error in the overruling of its motions for peremptory instruction and for judgment non obstante veredicto on the ground there is no evidence to support a determination of waiver. We agree.

The compensation carrier’s subrogation suit against Yeary to recover its payment to the employee for injuries in the automobile accident (Yeary v. Hinojosa, supra) was filed in June, 1954, some 15 months after Yeary executed the nonwaiver agreement referred to in the former appeal, 346 S.W.2d 914. This is the suit concerning defense of which the special issue required. The nonwaiver agreement in the former appeal did not mention defense of suit; it provided only that “investigation” should not waive policy rights. There is no evidence to show anything appellant did with reference to the claim from the time the nonwaiver agreement was signed until it received Yeary’s citation in the 1954 sub-rogation suit, except investigate.

When citation was served on Yeary in 1954 it was delivered to State Farm, whose claims superintendent gave a letter to Yeary stating the case was being referred to its attorney for defense. The letter requested Yeary’s cooperation, called attention again to late reporting of the accident in violation of policy conditions, and stated “we specifically reserve our right to deny coverage to you, and anyone claiming coverage under your policy, and the defense of this action by our attorney in your behalf is not to be considered a waiver of any policy defense which may be involved in this case”. It noted the amount sued for was in excess of the protection afforded by the policy; “there may be personal liability on your part”, and invited Yeary to procure attorneys of his own selection to represent him. The only subsequent conduct of appellant relied on is that it then defended the suit.

Yeary thereupon took the letter to his own attorney who continued to represent him actively, by employment, during the two-year course of the litigation, participating in preparation and trial; advising Yeary with full knowledge of the contents of the reservation of rights letter, and without protest or suggestion of dissatisfaction with the condition on which appellant defended the suit. Yeary and his counsel acquiesced in appellant’s defense under the terms of the reservation of rights letter with full knowledge that State Farm undertook defense of the suit asserting it did not thereby waive rights under the policy. This attorney testified appellant’s counsel defended the case “admirably, and did a good job”; that knowing the contents of the letter, “I wouldn’t say we were not agreeable; neither would I say we were agreeable” to defense of the suit by appellant under its reservation of rights.

To raise the issue of waiver the evidence must warrant an inference that appellant “did or failed to do so something which is inconsistent with an intention to exercise its rights”, New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56, 59, so as to show an intentional relinquishment of these rights. Texas & Pacific Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652, 656; Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74, 78; Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865.

We find no fact or circumstance in this record which will support a reasonable inference that appellant, by its conduct in defending the 1954 suit, intended to relinquish its right to rely on the policy condition. On the contrary, its dear and positive intention was expressed by a specific reservation of that right, and a prompt notification to Yeary before undertaking the defense that it was not to be considered a waiver. The defense of the suit was not a waiver under the facts presented. 7A Appleman, Insurance (1962) Sec. 4694; 38 A.L.R.2d 1161, Sec. 6; 76 A.L.R. 169(5); 81 A.L.R. 1383; 45 C.J.S. Insurance § 714, pp. 686, 687; 7 Am.Jur.2d Secs. 171, 172, pps. 503-506; see Utilities Ins. Co. v. Montgomery, 134 Tex. 640, 138 S.W.2d 1062, 1064, 130 A.L.R. 178. Reversed and rendered.