author: PER CURIAM.

text:
    DEL RIO INDEPENDENT SCHOOL DISTRICT OF VAL VERDE COUNTY, Texas, et al., Appellants, v. Cristobal P. ALDRETE et al., Appellees.
    No. 14449.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 16, 1965.
    Rehearing Denied Jan. 19, 1966.

      Dobbins & Howard, San Antonio, W. S. Nixon, Del Rio, for appellants.
    Montague & Thurmond, Del Rio, Hart Johnson, Fort Stockton, for appellees.
   PER CURIAM.

This is a contest of an election to consolidate Common School District No. 5 of Val Verde County, hereinafter referred to as C. S. D. #5, with the Del Rio Independent School District, hereinafter referred to as Ind. S. D. The proposition carried in Ind. S. D. by a vote of 565 to 43, but was defeated in C. S. D. # 5 by a vote of 113 to 83. This contest was duly filed by certain trustees of Ind. S. D. and some residents of C. S. D. # 5, who favored consolidation. A lengthy non-jury trial was had wherein challenges were asserted against a substantial number of voters in C. S. D. #5 by both contestants and contestees. Judgment was entered in favor of contestees declaring the true vote in C. S. D. #5 as 50 votes “For Consolidation” and 71 votes “Against Consolidation” and decreeing that the proposed consolidation failed to carry by a majority of 21 votes.

Contestants complain on this appeal of the trial court’s action relative to 76 ballots, and their complaints are divided into three general classifications. 1. Twenty-six voters who favored consolidation were found to be non-residents of C. S. D. #5 and their votes disqualified, after the trial court located the common boundary line between C. S. D. #5 and Ind. S. D. 2. It is asserted that the trial court erroneously overruled contestants’ challenges based on the residence of twenty-nine voters who voted against consolidation. 3. Contestants also complain of the trial court’s refusal to hold invalid twenty-one absentee ballots because of alleged irregularities in the conduct of the absentee election. By cross-assignments, contestees assert that the trial court erred in holding that twelve voters who had voted against consolidation were non-residents of C. S. D. #5.

The common boundary line between Ind. S.D. and C. S. D. #5, which is in controversy, was defined by the County School Board in 1949 as the north line of Survey No. 6 and the south line of Survey No. 8, Block 4, I & GN RR Co. Survey. All of Survey No. 6 was placed in Ind. S. D. and all of No. 8 was placed in C. S. D. #5. The boundary line was not located on the ground at this time. The controlling question concerning the legality of these twenty-six voters found by the trial court to be non-residents is whether the trial court was authorized in this proceeding to locate the boundary line between these districts in accordance with a boundary line located on the ground by a survey made subsequent to this election, or was bound by the well-recognized boundary line before and at the time of the election.

The undisputed evidence shows that in 1951 Mr. Conger Jones, a registered land surveyor, had located a boundary line on the ground which was uniformly recognized for all purposes at the time of this election, as the common boundary line between the two districts. Mr. J. A. Conklin, a licensed land surveyor and public surveyor, was employed by the contestees shortly after this election contest was filed to verify the Jones line and to establish the correct line. These two surveyors testified fully at the trial as to the location on the ground of the common boundary line as established by each surveyor. The trial judge found that the true line was that established by Conk-lin. Twenty-six voters, otherwise qualified, who had cast votes “For Consolidation” lived north of the line established by Jones, but south of the line established by Conklin, and their votes were declared illegal by the trial court and not counted in the judgment.

In November, 1951, Jones was employed by the owners of the part of Survey No. 8 and the northern part of Survey No. 6, where the disputed voters now reside, to survey No. 8 on the ground in connection with a proposed sale. In doing so he was required to locate on the ground the common boundary line between these two surveys. In 1953 a plat containing his field notes and the boundary line located by him was filed in the Surveyor’s Map Records of Val Verde County. Although Surveys No. 6 and No. 8 are in the center of a tier of four surveys in Block 4, Jones surveyed only No. 8. He discovered an apparent excess acreage of 43.9 acres in Survey No. 8. His field notes were filed with the General Land Office, and on December 10, 1954, the Commissioner issued a deed of acquittance in according with the Jones “corrected field notes” whereby the 683.9 acres of land contained in Survey No. 8, as described by metes and bounds in said deed, were acquitted to the original grantee.

The primary reason for the survey work was in furtherance of plans to subdivide the area for residential purposes. On May 24, 1955, a plat of the Frank Newton Subdivision was filed with the City Secretary and Mayor of Del Rio. On June 12, 1956, a map of the Buena Vista Subdivision was approved and filed in the New Map Records of the City. On June 27, 1956, a plat of the Buena Vista Subdivision was filed with the Val Verde County Clerk. Each of these plats was prepared by Jones and shows the common boundary line of Surveys No. 6 and No. 8 in the area in question to be forty-six feet north of and parallel with the north line of Stricklen Avenue.

The trial court found that as homes were built in the Buena Vista Subdivision and such improved properties were assessed for taxation, the Tax Collector for Ind. S. D. and the County Tax Collector (who was assessing and collecting the taxes for C. S.D. # 5) in assessing and collecting school taxes for the respective school districts, used the boundary line as shown by the Jones plats as the common line and they assessed and collected taxes on this basis.

The trial court further found that the census takers, acting under instructions of the County School Superintendent of Val Verde County, used the boundary line as shown on said plats in making the scholastic census, and that the County School Superintendent returned such census reports to the State Board of Education in accordance with this boundary line. Transfer fees were paid consistently after 1958 on the children who lived north of such boundary line but attended schools in Ind. S. D. (The twenty-six disqualified voters had paid transfer fees on their children sent to school in Ind. S. D.)

It was further found that the Commissioners’ Court of Val Verde County from and after the time the Jones plats were filed had approved the tax rolls which showed the land north of this boundary line as being subject to C. S. D. #5 school taxes. The County Judge in approving the petition seeking the consolidation election and in determining that the petition was signed by the requisite number of residents of C. S. D. # 5, recognized the boundary line as established by the Jones plats. All twenty-six voters, including the presiding judge, of one of the C. S. D. #5 voting precincts were issued poll tax receipts and were on the poll lists as residents of Survey No. 8.

Mr. Conklin testified that when he checked the field notes of Jones he found they were erroneous and not based upon any markers contained in the original patent to Block 4, which was an office survey. Conk-lin found an excess in the entire tier of four surveys, and, after prorating this excess equally among the four surveys, he established the common boundary line 276 feet north of the line established by Jones.

It is our opinion that where the location of a boundary line is not certain, the residence of the voters should be determined in accordance with the recognized line. Such a rule is set forth in 29 C.J.S. Elections § 54. Lovewell v. Bowen, 75 Ark. 452, 88 S.W. 570 (1905), and Smith v. Combs, 310 Ky. 755, 221 S.W.2d 672, Ky.Ct. of App., are cited in support of this rule. See also Nunnelly v. Doty, 210 Ky. 642, 276 S.W. 152, Ky.Ct. of App; Stice v. Parsley, 217 Ky. 716, 290 S.W. 471, Ky.Ct. of App.

In Harrison v. Jay, 153 Tex. 460, 271 S.W.2d 388 (1954), the Supreme Court, in answer to a certified question, held that Art. 2.06 of the Election Code, V.A.T.S., by its very terms requires that a voter must cast his vote in the voting precinct where he resides. In Harrison the precinct lines had been in existence for many years and the challenged voters were found to have voted in other precincts because it was more convenient to vote there, because of their desire to vote in that particular precinct, or because of their failure to acquaint themselves with the precinct lines. The Supreme Court recognized that a different rule applies where the Commissioners’ Court had, through inadvertence or uncertainty as to the election precinct lines, designated the polling place outside the legal boundaries.

In Tondre v. Hensley, Tex.Civ.App., 223 S.W.2d 671, no writ history, this Court recognized the distinction between a case where a voter, through inadvertence or mistake, votes in the wrong precinct and a case where the boundary line of the precinct is uncertain. The Court said: “However, it is a different matter when contiguous or near at hand voting precincts are involved and the poll taxpayer is mistaken as to the location of precinct lines and this confusion is also shared by the tax assessor-collector, the issuing authority for poll tax receipts. Voters should not be disqualified where uncertainty exists both in the minds of the tax assessor-collector and the voter as to where a precinct line runs.” In Ralls v. Parish, Tex.Civ.App., 151 S.W. 1089, no writ history, the Court refused to disfranchise votes cast at a polling place located in a disputed area between counties, although it was actually found to be in the second county. The Court said: “It would be a harsh rule that would disfranchise a whole community because of an honest mistake or because surveyors could not agree as to the true line.”

In our case all officials concerned with the boundary line, from 1953 to the time of this trial, recognized the Jones line as the common boundary. In fact, there is no evidence of any uncertainty about this line prior to this election. Assuming that the Conklin line is actually correct, a statutory election contest is not the proper proceeding for establishing a new boundary line. To do so could only result in havoc because of the impossible burden it would place on the voter and the resulting uncertainty it would create. It is settled that such an action is a legislative and not a judicial proceeding. Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627 (1957). The court had no jurisdiction in this proceeding to determine matters which did not pertain strictly to this election. Harrison v. Jay, supra.

The boundary line to be recognized in this election contest is the line which had been recognized by custom and usage, and according to which taxes were assessed and paid, the residence of scholastics established and tuition paid, rather than a new boundary line located by a survey made subsequent to the election, which had never before been used and recognized by the school authorities. Especially is this true where there are no markers which would make the new line certain.

The trial court erred in disqualifying the votes of the twenty-six residents of the area north of the recognized Jones line. These twenty-six votes cast “For Consolidation” are sufficient to carry the proposed consolidation in C. S. D. #5, by a vote of 76 votes “For Consolidation” and 71 votes “Against Consolidation.” Contestants’ other complaints are immaterial unless contestees’ cross-assignments change this result.

Contestees urge by cross-assignments that the trial court erred in sustaining contestants’ challenges to twelve voters who had voted “Against Consolidation” after finding that they were not residents of C. S. D. #5 at the time of the election. Contestants in their pleadings challenged seventy-seven voters as being non-residents. Testimony was heard as to each challenged voter and, at the conclusion of the four-week trial, findings of fact were filed concerning each voter. Based on these findings the trial court concluded that forty of the challenged voters who had voted in C. S. D. #5 “Against Consolidation” did not reside in that district at the time of the election and that their votes are void. Contestees complain of the trial court’s action in declaring twelve of these votes void. (Contestants assert error in the trial court’s failure to disqualify the votes of twenty-nine other persons who voted “Against Consolidation.”)

C. S. D. #5 comprises about 885 square miles and contains many large ranches. Most of the voters challenged owned or leased ranches in this area. Many also owned homes in Del Rio where their children attended the public schools as residents of Ind. S. D. However, during summers, week-ends and on holidays, the families stayed at the ranches. Many had secured their poll tax receipts in previous years as residents of precincts within Ind. S. D. After this consolidation election was called, over fifty voters transferred their poll tax receipts from a precinct within Ind. S. D. to C. S. D. #5. All testified they intended for their residence to be in C. S. D. #5.

Contestees complain of the disqualification of L. E. Davis, Therrell Rose and wife, Lewellen, Hussie Galloway, Sparks Rust and wife, Yvonne, F. M. Harrison and wife, Marilee, Carroll R. Pusard and wife, Joy, and Bob Gurley and wife, Dorothy.

Mr. L. E. (Linn) Davis did not testify, but his granddaughter’s husband, Mr. Jack Brown, testified that Davis had moved to Del Rio on doctor’s orders, after having a series of strokes. Davis had an exemption certificate issued from a Del Rio precinct and he voted there in the 1964 general election. This certificate was changed to the ranch location on December 21, 1964. His ranch house is now occupied by Brown’s family. Mr. and Mrs. Brown’s votes were challenged, but they were found to be residents of this ranch house.

Therrell Rose, testified that he and his wife have owned and occupied a home in Del Rio for twenty-five years and that both of his sons attended Ind. S. D. as residents of the district. He has served as trustee for Ind. S. D., and voted in primary and general elections in 1964 as a resident of a precinct in Ind. S. D. During the years of their marriage, Mr. and Mrs. Rose have voted sometimes at the ranch and sometimes in Del Rio.

Mr. Hussie Galloway testified that he owned a ranch in C. S. D. # 5, but since January, 1963, has lived with his wife in a Del Rio apartment house. His wife has taught school in Ind. S. D. since 1957. He has to live in Del Rio because of stomach ulcers. In 1964 he voted in Del Rio at a precinct in Ind. S. D. Mrs. Galloway did not change her poll tax receipt to C. S. D. #5.

Sparks Rust, Jr., and his wife have owned a home in Del Rio since 1961 and rented there before buying their home. They have three children .who are attending school in Ind. S. D. as residents. The poll tax receipts for Rust and his wife show the Del Rio address and he voted there in 1964. His wife teaches school in Ind. S. D. and they belong to a church there. Rust owns no other land, but his father leases a ranch in C. S. D. # 5, and he is foreman for his father. There is a house on this ranch which is occupied by Rust and his family when the children are not in school.

Mr. Felix M. Harrison and wife, Marilee, have lived in a house owned by them in Ind. S. D. since he suffered a heart attack in 1958. He also owns a ranch in C. S. D. #5. Although he spends practically all his nights at the town house, Mr. Harrison has always voted in C. S. D. # 5, and at the present time is a county school trustee from this district. He has no plans to move back to the ranch.

Both Carroll R. Pusard and his wife, Joy, testified in this case. The family has owned a homestead in Del Rio since 1960, and their daughter attends school in Ind. S. D. as a resident. Mr. Pusard served as a school trustee of Ind. S. D. from 1953-1957, and has voted in a precinct within Ind. S. D. since 1953. His 1963 poll tax receipt was from that precinct until it was transferred after this consolidation election was scheduled. He and his wife own no property in C. S. D. #5, but he manages a ranch in that district, owned by his father-in-law, Mr. F. M. Harrison, and the family spend the summers there. He served as election judge of one of the precincts in C. S. D. #5 at the consolidation election.

Bob Gurley testified that his wife owned a house in Del Rio and that he and his wife have a daughter who attends schools in Ind. S. D., as a resident. The trial court found that they spent most of their nights just before December, 1964, in the Del Rio house. Mrs. Gurley has an interest in the Gillis Ranch where they also have a home. Mr. Gurley voted in the Del Rio City Election, and in a precinct within the Ind. S. D., for the last ten years. He was a precinct chairman until he resigned on December 9, 1964, and changed his residence to the Gillis Ranch.

Art. 5.08 of the Election Code, V.A.T.S., defines the “residence” of a single man as where he usually sleeps at night; that of a married man as where his wife resides, or if he be permanently separated from his wife, his residence is where he sleeps at night. All the above voters, with the exception of Davis, were married and none were permanently separated.

In Mills v. Bartlett, 377 S.W.2d 636 (Tex.1964), the Supreme Court recently considered the question of “residence”. It was there said: “The term ‘residence’ is an elastic one and is extremely difficult to define. The meaning that must be given to it depends upon the circumstances surrounding the person involved and largely depends upon the present intention of the individual. Volition, intention and action are all elements to be considered in determining where a person resides and such elements are equally pertinent in denoting the permanent residence or domicile.” The Court further held that residence cannot be determined solely by intention.

Other cases have emphasized the rale that the question of residence for voting purposes is one which must be determined by reference to the actual facts and circumstances ; one of which will be the intention. See Cavallin v. Ivey, Tex.Civ.App., 359 S.W.2d 910, no wr.hist.; Jordan v. Overstreet, Tex.Civ.App., 352 S.W.2d 296, no wr. hist.; Cramer v. Graham, Tex.Civ.App., 264 S.W.2d 135, wr.ref.; McBride v. Cantu, Tex.Civ.App., 143 S.W.2d 126, no wr.hist.; 36 Tex.Jur.2d, Elections, § 36.

It is our opinion from a review of the findings of the trial court relative to these twelve voters found to be non-residents, as well as the evidence upon which same are based, that the trial court did not abuse its discretion in finding that each of these voter’s intention to be a resident of C. S. D. #5 at the time of this election, was overcome by other evidence. This evidence includes poll tax receipts, declaration on school census, prior votes in Ind. S. D. precincts, and other acts which occurred prior to this expressed intention. There was no evidence that any of these voters had moved or taken any action in support of a change of intention after the above acts occurred. There is evidence to support the judgment of the trial court with respect to these twelve voters and this Court is bound by the trial court’s findings. We therefore overrule contestees’ cross-assignments.

The judgment of the trial court is reversed and judgment here rendered declaring the consolidation election to be carried in C. S. D. #5 by a vote of 76 votes “For Consolidation” to 71 votes “Against Consolidation.”


source: Caselaw Access Project

author: WILLIAMS," Justice.

license: Public Domain

text:
    CLarice SCHAD et al., Appellants, v. W. J. WILLIAMS et al., Appellees.
    No. 16650.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 31, 1965.
    Rehearing Denied Jan. 28, 1966.

      Clair F. Achenbach, Dallas, for appellants.
    Finklea & Finklea, Dallas, for appellees.
   WILLIAMS," Justice.

Alleging false representations, breach of oral warranty and implied warranty, appellants brought this action against appellees to recover damages for the alleged construction defects of a house purchased by appellants from appellees. The case was submitted to a jury upon special issues and in answer thereto the jury found (1) that prior to the signing of the contract of sale appellees represented to appellants that the house in question would be constructed with good workmanship and good materials; (2) that when such representations were made appellees intended to construct the house in question with good workmanship and good materials; (6) that prior to the time appellants purchased the house in question appellees represented to appellants that the house in question was constructed of good workmanship and good materials; and (7) that such representations so made by appel-lees were not untrue. Based upon such verdict the trial court rendered judgment that appellants take nothing against appellees.

Appellants seek reversal of the judgment upon the following points of error:

“(1) The error of the trial court in refusing appellants’ written requested special issues.
“(2) The error of the trial court in forcing an election of the theory of recovery.
“(3) The error of the trial court in overruling appellants’ motion for judgment non obstante veredicto.
“(4) The error of the trial court in overruling appellants’ motion for new trial.”

Before giving consideration to these points we take notice of a request by ap-pellees that we consider only those points of error which are properly germane to assignments of error presented by appellants in their original motion for new trial and not those contained in their alleged “Motion to Reconsider” or “Amended Motion for New Trial”. The record reveals that following the jury’s verdict appellants’ motion for judgment non obstante veredicto was overruled and judgment was rendered for appellees on April 27, 1965. Appellants filed a motion for new trial on April 29, 1965 and the trial court overruled this motion on May 14, 1965 by written order duly signed and entered on May 28, 1965. On May 27, 1965, twenty-eight days after the filing of the original motion for new trial, and after the court had heard the motion for new trial and acted upon the same, appellants filed a motion which was styled “Motion to Reconsider” but in the body of which the designation is that of “Amended Motion for New Trial”. The court heard this motion on June 4, 1965 and overruled the same. Rule 329b, Texas Rules of Civil Procedure, controls the filing of amended motions for new trial and provides that an original motion for new trial may be amended before the original motion is acted upon and within twenty days after the original motion for new trial is filed. Appellants’ so-called “Motion to Reconsider” or “Amended Motion for New Trial” violates this rule in that it was filed after the court had acted upon the original motion for new trial and was filed more than twenty days after the filing of the original motion for new trial. In this state of the record the second motion filed by appellants is of no effect. Accordingly, appellants are limited on their appeal to those points which may have been properly raised in their original motion for new trial, together with such other matters which we may consider under the provisions of Rule 324, T.R.C.P. Dyche v. Simmons, Civ.App., 264 S.W.2d 208; Arana v. Gallegos, Civ.App., 279 S.W.2d 491.

Appellants’ first point of error fails to comply with Rule 418, T.R.C.P. which states that a point of error should direct the attention of the court to the specific error relied upon. The point is multifarious in that it charges the trial court with error in refusing all of appellants’ written requested special issues without enumerating any one or more of same. However, in the spirit of liberal construction of briefing rules we have carefully examined the statement and argument of appellants under their first point of error in an effort to ascertain the exact error complained about. Fambrough v. Wagley et al., 140 Tex. 577, 169 S.W.2d 478. From this examination of appellants’ argument we conclude that the complaint is directed to the alleged action on the part of the trial court in refusing to submit a special issue relating to the allegation of implied warranty. In Paragraph 3 of appellants’ motion for new trial it is alleged that the trial court committed error in refusing to give a timely requested special issue of plaintiffs covering implied warranty as follows: “Do you find from a preponderance of the evidence that the house in question was not constructed with good workmanship and good materials?” However, upon examination of the special issues requested by plaintiffs prior to the time the court submitted his charge to the jury we do not find such issue requested in any of them. In plaintiffs’ objections and exceptions to the charge of the court we find the following statement:

“Plaintiff further excepts to the special issues submitted for the reason that there is no special issue submitted prior to Special Issue No. 11 of the nature and tenure as follows:
“Do you find from a preponderance of the evidence that the house in question was constructed with good workmanship and good materials? Answer ‘yes’ or ‘no’. The same being a necessary special issue for submission to the jury to establish a basis for implied warranty and recovery thereunder.”

It is to be observed that the quoted special issue contained in the original motion for new trial is not the same as that quoted in the plaintiffs’ objections and exceptions to the court’s charge. The one contained in the objections and exceptions is so framed to place the burden of proof upon the defendant, or appellees here.

Rule 279, T.R.C.P. is a comprehensive rule dealing with the submission of special issues in a case tried before a jury. It is therein provided that “Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment ⅜ * It is generally held that a mere objection or exception to a charge on the ground that it fails to submit a particular issue is not a sufficient request for such submission. 3 Tex.Jur.2d § 147, p. 420, and cases therein cited. In a few instances it has been held that where the objection clearly directs the court’s attention to the failure to submit an issue and sets forth the proper issue sought to be given, such does amount to a request for the submission of such issue. Richards v. Westmoreland, Civ.App., 63 S.W.2d 715. However, we think that the spirit of the rule, as well as the express provision thereof, is clearly to the effect that, regardless of how the request is made, that is, whether it is made in the form of a requested special issue or incorporated in the objections and exceptions to the charge, yet such request must be in substantially correct form. In this instance a careful examination of appellants’ objections and exceptions, copied above, reveals that they do not specifically request the court to give the issue and, moreover, the issue, as set forth in the objections and exceptions, improperly places the burden of proof upon the appellees, defendants below. The submission of the issue in the form set out by appellants would have constituted error and therefore cannot be said to be substantially correct. Mitchell v. Mills, Civ.App., 264 S.W.2d 749. Having carefully considered appellants’ position in this matter and applying the most liberal construction upon the rules, we are compelled to the conclusion, and so hold, that appellants have failed to comply with Rule 279, T.R.C.P. in making request for the submission of an affirmative issue.

There is an additional reason why we believe that appellants’ first point is not well taken. The jury found, in answer to Issues 6 and 7, that appellees represented to appellants that the house had been constructed with good workmanship and good materials and that such representation was true. This, in effect, amounts to a finding that the house had been constructed of good workmanship and good materials. Rule 279, T.R.C.P. provides for the submission of controlling issues and prohibits the case being reversed because of the failure to submit other and various phases or different shades of the same issue.

Appellants’ second point, in which it is alleged that the trial court forced an election of the theory of recovery, is not germane to any assignment contained in appellants’ motion for new trial and may therefore not be considered here. Rules 374 and 418, T.R.C.P.; Johnson Aircraft v. Wilborn, Civ.App., 190 S.W.2d 426; Reid v. Nortex Construction Co., Civ.App., 366 S.W.2d 870. Even if germane the point is without merit since the record fails to reveal any action on the part of the trial judge which could conceivably be construed as coercing or requiring appellants to make an election of grounds of recovery.

Appellants third point complains of the trial court’s action in not sustaining their motion for judgment non obstante veredicto. We have carefully examined the argument and authorities under appellants’ Point 3 and find that the complaint seems to be directed towards the action of the court in submitting Special Issues Nos. 2, 6 and 7. However, these complaints are not brought forward in appellants’ motion for new trial or briefed in appropriate points of error.

An attack upon the action of a trial judge in overruling a motion for judgment non obstante veredicto must of necessity constitute a “no evidence” point as opposed to an “insufficiency of the evidence” point. Appellants argue that they were entitled to a directed verdict in this case, although the record fails to reveal that one was requested. A directed verdict is only proper where there is no evidence to support the submission of an issue to the jury. We have examined this record in the light of the rule announced by our Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W. 2d 660, and find ample evidence to support the submission of the various special issues to the jury. Accordingly, appellants’ com plaint must be overruled. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682; Davidson v. Methodist Hospital of Dallas, Civ.App., 348 S.W.2d 400.

Appellants’ fourth and final point of error complaining of the action of the trial court in “overruling appellants’ motion for new trial” is obviously insufficient to meet the requirements of any of the briefing rules. It amounts to an effort to group together all points contained in the motion for new trial and is therefore multifarious. It does not direct our attention to any particular act or omission on the part of the trial court which might constitute reversible error. We are not aided by the statement or argument of appellants under this point in our effort to determine specifically what appellants are aiming at in this “shotgun” point. We have carefully examined each assignment contained m appellants’ motion for new trial and find none to reflect reversible error.

The judgment of the trial court is

Affirmed.


author: MOORE, Justice.

text:
    J. M. LEGGIO, Appellant, v. MILLERS NATIONAL INSURANCE CO., et al., Appellees.
    No. 174.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 30, 1965.
    Rehearing Denied Feb. 3, 1966.

      Wm. Andress, Jr., Andress, Woodgate, Richards & Condos, Fleming Waters, Sanders & Nolen, Dallas, for appellant.
    Robert M. Ewing, Witts & Ewing, Dallas, for appellees.
   MOORE, Justice.

Appellant J. M. Leggio brought this suit against appellees, Millers National Insurance Co., Commercial Union Insurance Co. of New York, Agricultural Insurance Company and Security Insurance Company of New Haven, upon four separate fire insurance policies issued by each of the ap-pellees in the sum and amount of $5,000.00, insuring a building owned by appellant and situated in the City of Dallas. Appellant’s pleadings allege that on October 31st, 1963, the said building was destroyed by fire resulting in a total loss. Appellees denied liability on the policies, alleging that the appellant had no insurable interest in the building at the time of the fire and further alleged that even though he did have insurable interest, he suffered no pecuniary loss because his tenant later constructed a building of equal value on the premises. Trial was before a jury and in response to the five Special Issues submitted by the court, the jury found that: (1) the fire caused a total loss of the building in question ; (2) the reasonable cash market value of the building in question immediately before the fire was $17,500.00; (3) appellant J. M. Leggio had an insurable interest in the building; (4) the building in question was not vacant for a period of more than 30 days immediately preceding the fire; (5) the removal by J. M. Leggio of the front door, wood paneling, flooring, light fixtures and other items, if any, from the building before the fire did not materially increase the hazard of fire.

Upon motion of the appellees, the trial court granted a judgment notwithstanding the verdict denying appellant, J. M. Leggio, any recovery upon the policies of fire insurance. Appellant has perfected this appeal, contending that the jury’s verdict was supported by the evidence and the trial court therefore had no authority to grant judgment non obstante.

The record reveals that on July 15, 1963, Leggio leased the building to Anthony’s, Inc. to be used as a restaurant. The company made considerable improvements in the building such as installing lighting fixtures, paneling the walls, installing new floor decking, replacing the front door and installing other equipment ordinarily found in a rather exclusive cafe. Shortly before the fire, Anthony’s, Inc. went out of business and assigned the lease to Hughes-Peters who subsequently assigned it to Miracle Ford Company.

Section 14 of the lease provided that in the event the building should be totally destroyed by fire or damaged to such an extent that repairs could not be completed within 120 days the lease would terminate, but if not so damaged and repairs could be completed within 120 days, the landlord was obligated to rebuild or repair the same in substantially the same condition as existed prior to the fire.

Section 27(B) granted the lessee the following option:

“Tenant shall have the right to tear down and remove the existing structures provided he replaces the same with equal or better structures, submits to landlord for approval written plans and specifications for the new structures, 30 days prior to the removal of existing structures, and when new structures are completed to pay all ad valorem taxes to all taxing authorities thereafter. Any new structures placed upon the demised premises shall become the property of landlord.”

Section 27(D) provides:

“Notwithstanding other provisions of this lease regarding damage and repairs to the property, landlord shall not be required to expend more than $20,-000.00 in repairing or rebuilding the improvements that might be damaged by fire, tornado or other casualty but tenant may make such additional contribution to repairs as he wishes and may carry insurance to cover such additional repairs.”

Appellees take the position that the evidence shows as a matter of law that appellant Leggio had no insurable interest at the time of the fire because Miracle Motor Company had theretofore exercised their option to demolish the building and replace the same with a new building and that appellant had accepted and approved such plan. The argument advanced by the ap-pellees is that after the option was exercised and approved by Leggio, the building was of no further use to him and therefore he could not expect any pecuniary benefit or advantage by its preservation and continued existence. In effect, they contend that he had disposed of the building and therefore could have no insurable interest, hence the court correctly denied any recovery for a total loss of the building. In any event, appellees contend that under the undisputed evidence, Leggio suffered no pecuniary loss because Miracle Ford Company rebuilt other structures on the property in excess of the amount of insurance and thus for this additional reason, they contend the trial court correctly denied appellant any recovery.

Upon the question of insurable interests, the Supreme Court of this state in Smith v. Eagle Star Insurance Co., 370 S.W.2d 448, adopted the following quotation contained in 29 Am.Jur. 781, Insurance, Sec. 438:

“ ‘The principle may be stated generally that anyone has an insurable interest in property who derives a benefit from its existence or would suffer loss from its destruction.’ ”

Upon the question of whether or not an insured has sustained a pecuniary loss, the Supreme Court of this state in Paramount Fire Insurance Company v. Aetna Casualty & Surety Company, 163 Tex. 250, 353 S.W.2d 841, has adopted the rule that there is no pecuniary loss when the loss has been made good out of a related transaction, holding as follows:

“The court looks to the substance of the whole transaction rather than to seek a metaphysical hypothesis upon which to justify a loss that is no loss. This is not a case where a stranger to the transaction, out of charity, or for other reasons, might make good the loss * * *. The loss has been made good out of a related transaction * * ⅜»

It may be conceded that the foregoing cases form the basis of the defenses asserted by appellees.

Before applying these legal principles, however, we must first determine the primary question of whether or not at the time of the fire, the lessee had exercised its option to demolish and rebuild in accordance with the terms of the lease as set forth in Paragraph 27(B) and whether the lessor had accepted and approved the exercise of the option. If the option was effectively exercised and accepted before the fire, appellant would no longer have any pecuniary interest in the continued existence of the building and would thus have no insurable interest. If, on the other hand, the option was not exercised and accepted before the fire, appellant would have continued to have an insurable interest because of his pecuniary interest in the building and the lease contract and there would he no related transaction. The inquiry therefore involves questions of fact.

In 13 Tex.Jur.2d, page 16-1 — 2, Sec. 37, it is said:

“An option is merely an offer that binds the optionee or holder of the option to do nothing; he may or may not accept the offer, as he chooses, within the time specified. Until it is accepted, an option is not, in legal effect, a completed contract. However, when accepted within the time limited and in the manner specified, an option becomes a completed contract that is binding on both parties.”

In Vratis v. Baxter, Tex.Civ.App., 315 S.W.2d 331, at 337, the court held:

“The acceptance of an option, to be effectual, must be unqualified, absolute, unconditional, unequivocal, unambiguous, positive, without reservation, and according to the terms or conditions of the option. Substantial compliance with the terms of the option is held not sufficient to constitute an acceptance; to be effectual, the acceptance must be identical with the offer, or, at least, there must be no substantial variation between them. An acceptance of an option must be such a compliance with the conditions as to bind both parties, and if it fails to do so it binds neither.”

By granting a judgment notwithstanding the verdict of the jury, the trial court ruled, in effect, that as a matter of law appellant had no insurable interest at the time of the fire, or if he did have, he suffered no pecuniary loss because of a related transaction. We find ourselves unable to agree with the conclusion for the following reasons.

It is fundamental that a reviewing court, in passing upon a contention that there is no evidence to sustain a jury’s finding, whether raised by a “no evidence” point or by a motion for judgment notwithstanding the verdict or by a motion for instructed verdict, must view the evidence in a light most favorable to the appellant, indulging every legitimate conclusion favorable to him, and disregard all evidence adverse to the appellant. Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256; Texas & P. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236.

Viewed in a light most favorable to appellant, we think the testimony shows that while both parties to the lease contemplated that the option would be exercised and had actually made some preparation for the demolition of the building prior to the fire, yet they had not gone far enough to reach a definite agreement.

In our search of the record we have been unable to find any evidence that either Miracle Ford or any of the previous lessees ever complied with the provisions of Section 27(B) of the lease. This section specifically provides that the existing building was not to be torn down until lessee “ * * submits to landlord for approval written plans and specifications for the new structures, 30 days prior to the removal of existing structures, * * ⅜ ” (Emphasis ours).

Richard L. Blosser, president of Miracle Ford, testified that at the time of the fire the building was still in use and although he gave the appellant and his family permission to remove various items from the building and was contemplating building a new building, demolition had not commenced. Nowhere in his testimony does he state that he delivered written plans and specifications of a new building to appellant which were approved by him.

Subsequent to the fire, he testified that Miracle Motor Company constructed on the premises a building at a cost of $12,500.00, together with appurtenances at a cost of five to six thousand dollars and also another metal building at a cost of ten to twelve thousand dollars. Nowhere, however, did he testify that these improvements were constructed in accordance with plans and specifications approved by the appellant prior to the fire. There is nothing in his testimony showing that Miracle Motor Company ever called upon appellant to rebuild or repair in accordance with the lease contract.

Appellant testified that at various times he had given each of the tenants his consent to proceed with the construction of another building; however, we find nothing in his testimony indicating that he was ever furnished any written plans and specifications of the proposed building or that he ever approved such. At one point in his testimony he did admit that “with the construction of the new building, they had submitted some plans and a sketch,” however, he did not admit that he ever approved same, nor does his testimony show whether the “plans and sketch” were submitted before the fire or whether they were submitted after the fire just prior to the time Miracle Motor made their improvements. The “plans and sketch” were never produced in the trial court and are therefore not before us. Appellant also testified that the improvements made by Miracle Motor Company consisted of only a sales office containing 400 square feet which was not of like value to the building destroyed.

At most, we think the evidence will only raise an issue of fact upon the question of whether or not the option was exercised and accepted, and would not be sufficient to establish the question as a matter of law. The trial court, however, failed to submit any issues inquiring of any of the facts and circumstances in connection with the exercise or acceptance of the option.

Both the question of insurable interest and the question of whether appellant’s loss was made good by a related transaction were legal defenses raised by appellees’ pleadings. The basis of these defenses must turn upon the facts and circumstances surrounding the alleged exercise and acceptance of the option.

It is without dispute that at the time the policies were issued appellant had an insurable interest. If the facts and circumstances had changed in the meantime, the insurance companies had the burden of proving facts showing a lack of insurable interest. Texas Lloyds Ins. Co. v. Harburger, (Tex.Civ.App.) 252 S.W.2d 957; 32 Tex.Jur.2d, par. 528, page 773.

In order to establish their defense, appellees had the burden of requesting the submission of issues inquiring of the status of the fact situation created by the appellant and his lessee at the time of the fire. This the appellees failed to do and therefore waived the submission of these issues forming the basis of the alleged defense. The defenses, not having been conclusively established, must be deemed to have been waived. Rule 279, Texas Rules of Civil Procedure.

We do not overlook the fact that in response to Special Issue No. 3 the jury found that appellant had an insurable interest; however, since the question propounded to the jury was a legal question, we think the court was authorized to consider the finding as immaterial. Jones v. Winter, (Tex.Civ.App.) 215 S.W.2d 654.

There being ample evidence to support the jury’s finding that the building was a “total loss” and appellees having failed to sustain their burden of obtaining jury findings establishing their defenses, the cause must be reversed and rendered in favor of appellant J. M. Leggio.

Reversed and rendered.


author: PHILLIPS, Justice.

text:
    CITY OF LAMPASAS, Appellant, v. Don D. ROBERTS et ux., Appellees.
    No. 11355.
    Court of Civil Appeals of Texas. Austin.
    Jan. 12, 1966.
    Rehearing Denied Feb. 2, 1966.

      J. J. Byrne, Lampasas, Stubbeman, Mc-Rae, Sealy & Laughlin, Charles Tighe, Midland, for appellant.
    Pat Cain, Jack Garey, Austin, for ap-pellees.
   PHILLIPS, Justice.

This is a suit for damages for the death of Donald Wayne Roberts, 6½ years of age, brought by his parents against the City of Lampasas.

The court, upon a jury’s answers to Special Issues, awarded a judgment of $17,500.-00.

We affirm the judgment of the trial court.

I.

Donald Wayne had gone with his parents to a family reunion and picnic at Hancock Park in Lampasas, Texas in June of 1964. Hancock Park is a public recreation facility maintained by the City.

The picnic area, where the reunion and picnic were held, contained tables for eating, a sand pile and playground equipment for the use of children. This area was open to the public without charge.

Alongside this area, and separated therefrom by a single-strand smooth wire, was the golf course. In this golf course area immediately adjacent to the picnic area, that we have just described, were some 55 gallon steel barrels or drums which held liquid fertilizer used on the golf course. In order to take the liquid fertilizer out of the barrels a spigot was inserted in the end of the barrel and the barrel was turned on its side, against a log or a piece of wood, so that when the spigot was open, the liquid fertilizer would flow out of the barrel. The barrels containing the liquid fertilizer were usually left in an upright position because, as the City Manager testified, he had instructed his employees “to keep those barrels turned up. Some child or teenager through vandalism or other reason might drain that [liquid chemical fertilizer] out.”

On the day prior to the picnic that Donald Wayne and his parents attended, one of defendant’s employees had been using the fertilizer, but had forgotten to leave it in an upright position. It was left in the tilted, horizontal position wherein the spigot could be used through gravity flow to release the liquid fertilizer.

Thus it was on that day in June when Donald Wayne and his parents came to the picnic area for the family reunion. They arrived around 10:30 or 11:00 a. m. After eating, Mr. Roberts went to play golf and Donald Wayne remained with his mother and played in the area on both sides of the wire strand that separated the playground from the golf course area. Using a cup that he had brought from the picnic area Donald Wayne drew some of the liquid fertilizer from the barrel, drank one swallow and died therefrom that night.

II.

Appellant City is before this Court with twenty-one points of error. The first six points, briefed together, are the error of the trial court in overruling appellant’s Motion for Judgment Notwithstanding the Verdict and to Disregard, and appellant’s Motion for Judgment and in entering judgment for appellees because the appellant did not owe the duty of ordinary care to Donald Wayne Roberts; because the verdict provides no basis for the imposition of duty of ordinary care on appellant; because Special Issue 2-A, and the affirmative answer of the jury to A, is insufficient as a basis for the imposition of the duty of ordinary care on appellant; because there was no evidence to support the affirmative answer of the jury to Special Issue 2-A; because of insufficient evidence thereto; because the answer of the jury to Special Issue 2-A was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

We overrule these points.

Special Issue 2-A is as follows: “Do you find from a preponderance of the evidence that at the time and on the occasion in question employees of the defendant in the exercise of reasonable care knew or should have known that children would be likely to go west of the single strand wire fence in the area of the barrels?” The jury answered in the affirmative.

We find no difficulty in holding that Donald Wayne was an invitee in this public park, both in the picnic and the golfing area, and as an invitee was entitled to the concomitant care requisite of this class.

The City, in this case, is in the same position as any other business man or property owner opening his premises to the general public. By the very nature of this public facility, the City could and should expect the use of these premises by large family groups including children. As stated in 40 Tex.Jur.2d, page 569:

“A store owner is under a duty to use due care to make the premises safe for all invitees, both adults and young children, and though he owes the same degree of care to both, different precautions must be taken for children if the store owner’s conduct is to measure up to the standard of due care under all the circumstances.”

In this regard see: Thacker v. J. C. Penney Co., 254 F.2d 672, 5th Cir. 1958.

We are not impressed with appellant’s attempt to draw a distinction between the picnic-playground area and the golf course and their argument that Donald Wayne was at best a mere licensee on the golf course because of the wire strand separating the area and the green fee charged for the use of the course.

The green fee was for the use of the course and was not an admittance fee to that part of the park. It is common knowledge that golfers are often accompanied by non-playing friends or family members who pay nothing to get on the golf course. They are entitled to the same duty of reasonable care on the part of the City as the fee paying golfers. See Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W. 2d 1073.

Nor are we impressed with appellant’s attempt to show that the area of the park containing the barrels and some other work implements constituted off-limits area separate from the park itself and the golf course.

As stated above, these barrels were lying in an area immediately adjacent to the playground equipment. In one instance they lay but a few feet from one of the games that the City had provided. The City employees knew that children played in this area and during the family reunion described herein, the children had been playing in and out of the area without causing any concern to the parents. There was no way whatsoever for the parents to have known that the barrels contained liquids dangerous to children and the barrel that contained the spigot from which Donald Wayne drank was turned in such a manner so that the spigot could not be observed from the playground area where the parents were gathered.

The jury found that the City employees “knew or should have known that children would be likely to go west of the single strand of wire in the area of the barrels.”

The test of whether a person is an invitee at the exact place of injury is whether the owner of the premises ought to have anticipated the presence of a member of the public at that particular point on the premises that are devoted to public use. Burton Construction and Shipbuilding Company v. Broussard, 154 Tex. 50, 273 S.W.2d 598; Texaco Country Club v. Wade, Tex.Civ.App., 163 S.W.2d 219.

If the appellant desired to create a zone in this public park where children or others were not allowed, it was incumbent upon it to either adequately fence off the area, so as to keep the children or others out or, at least, apprise the parents of impending danger either through appropriate signs or through other methods.

Under the facts of this case there was no reason for Donald’s parents to have anticipated any danger from chemicals and they cannot be designated as being negligent for failing to keep him away from the barrels.

III.

Appellant City’s points of error seven through thirteen complain of the error of the trial court in entering judgment for ap-pellees on the basis of Special Issues Nos. 1, 2-B, 3 and/or S because each is based on a standard of duty not applicable to appellant; because there was no evidence of negligence on the part of appellant to support the answers of the jury to each of these issues; because of insufficient evidence to support them; because the affirmative answer thereto by the jury to each of these issues was so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust; because of no evidence of proximate cause with respect to Special Issues 2, 4 and/or 6; because of insufficient evidence of proximate cause thereto; because in entering judgment for appellees on the basis of Special Issues Nos. 2, 4 and/or 6; because the affirmative answer of the jury to each of these issues was so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.

We overrule these points.

In Special Issue No. 1 the jury was asked whether or not appellant was negligent in leaving barrels of liquid fertilizer at the place and in the manner and condition in which they were left; in Special Issue No. 2 whether or not such negligence, if any, was a proximate cause. In Special Issues Nos. 2-B, 3 and 4 the question of negligence, and proximate cause, were submitted on an issue of whether or not appellant failed to provide an adequate fence around the barrels, and Special Issues Nos. 5 and 6 submitted the question of whether or not appellant was negligent in failing to display warning signs in the area where the barrels were kept.

Appellant contends that all of these issues are without evidentiary support because appellant neither knew nor should have known, that small children were likely to frequent the place and play about it, nor did appellant know, nor should it have known, that the condition involved an unreasonable risk of death or serious bodily harm to children. That these findings, supported by the evidence, are necessary in order to hold appellant liable.

We hold that there is ample evidence to support these findings.

Appellant undertook to operate and maintain a public park where, by the very nature of the use to which it was put, family groups and small children in large numbers would be expected to be on and about the premises. The Roberts family reunion group of approximately 75 adults and 35 children was the type of gathering that could reasonably be expected to use the park premises and were welcomed by the park management.

Appellant’s witnesses and employees agreed that the single strand of wire running through the area was not any deterrent whatsoever to small children. The park employees and supervisors testified that they had actual knowledge that children did play on both sides of the wire. These men further testified that the barrels of liquid chemical fertilizer were always, before the day in question, kept upright with the spigots detached. This was done because, as testified to by the City Manager, “some child or teenager through vandalism or other reason might drain [the liquid fertilizer] out.” The park employees were instructed to keep the barrels upright with spigots out. This was done with the one exception that proved fatal to Donald Wayne Roberts. In addition, each of the City’s witnesses admitted that they knew the liquid fertilizer was potentially harmful or dangerous if taken internally.

IV.

Appellant’s points of error fourteen through sixteen are the error of the trial court in entering judgment for appellees on the basis of Special Issues Nos. 10, 11, 12, 13, 14 and/or IS because there was no evidence to support the negative answers of the jury to these issues; because of insufficient evidence thereto, because the negative answers of the jury to each of these issues were so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.

Special Issues Nos. 10 and 11 inquired as to whether or not Donald Wayne was negligent in drinking the liquid fertilizer, and if so, whether such negligence was a proximate cause of the occurrence in question. Special Issues Nos. 12 and 13 inquired as to whether Donald Wayne was negligent in going west of the single strand wire fence and whether such negligence, if any, was a proximate cause of the occurrence in question. All of these issues were answered in the negative. It is appellant’s position that these answers are not supported by the evidence.

We overrule these points.

As a 6 year old, Donald Wayne was approaching the threshold of an age where the law will not conclusively presume that he could not have been contributorily negligent, however, he was not yet at this age. As stated in 40 Tex.Jur. S84:

“As a general rule, a child under the age of seven years is presumed not to have discretion such as will enable him to avoid danger or dangerous places; as to children between the ages of seven and fourteen years, it is a question of fact as to whether they possess such discretion; and as to children over fourteen years of age, the presumption is that they have such discretion.”

We cannot say, under the circumstances, that as a matter of law that the jury was wrong in its findings here either because of no evidence or insufficient evidence.

Paper cups were available to the children so that they could help themselves to the liquid refreshments available to the picnic group. The fact that he had been admonished from going out on the golf course would hardly be any deterrent from getting a drink in the very area where children of his age had been playing at various times throughout the day without objection from parents on the scene.

The jury’s answers were logical conclusions from the facts presented them.

V.

Appellant’s points seventeen through twenty, briefed together, complain of the error of the trial court in entering judgment for appellees for $17,500.00 because there was no evidence to support the verdict of the jury for this amount; because of insufficient evidence thereto; because this amount was excessive as to clearly show that the jury was motivated by passion and prejudice; because that this amount was so excessive and without support in the evidence that, in the alternative, a remittitur should be ordered.

We overrule these points.

Appellees originally brought suit for $25,000.00, however the jury found the $17,500.00 as their pecuniary loss and did not award the additional amount sought for conscious pain and suffering of Donald Wayne. We do not think that this indicates that the jury was motivated by passion or prejudice.

Under Rule 328, Texas Rules of Civil Procedure, as interpreted by the Supreme Court in Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835, this Court is required to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation for the injury sustained. This we have done in the light of the whole record.

The Roberts family contained a history of help to parents by children in non-farm employment. Donald Wayne’s parents are of modest means. On an actuarial basis, Donald’s mother can be expected to live eight years longer than his father and could reasonably have looked to financial aid from Donald Wayne, her oldest son who would have been approximately 43 years old at his father’s death.

VI.

Appellant’s twenty-first point of error is that of the trial court in overruling appellant’s Motion for Mistrial on the grounds of improper jury argument.

We overrule this point.

Appellant quotes portions of appellees’ arguments to the jury relative to numerous issues submitted and contends that appellees were not merely asking the jury to answer the respective issues favorable to appellees which is proper, Sec. 57 Tex.Jur. 2d, Sec. 525, f. n. 3 and 4 and cases cited therein, but was indicating to the jury the legal effect of their answers upon the judgment to be rendered which is improper.

We have read the portions of appellees’ arguments indicated by appellant however to set them out here would unnecessarily lengthen this opinion. The arguments were merely an attempt on the part of appellees to sway the jury in their direction on each issue. They were not arguments calculated to apprise the jury of the legal effect of their answers. In any event, there was no objection by appellants thereto so that the court had no opportunity to rectify any supposed error. Consequently any possible error was waived. See Younger Bros. v. Myers, 159 Tex. 585, 324 S.W.2d 546.

Finding no error we affirm the judgment of the trial court.

Affirmed.


author: FRASER, Chief Justice.

text:
    John Craige McGRATH, Independent Executor of the Estate of J. P. McGrath, Jr., Deceased, Appellant, v. SAN ANTONIO AND FARMERS DAIRIES, a co-partnership, Appellee.
    No. 5743.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 8, 1965.
    Rehearing Denied Jan. 26, 1966.

      Brewster & Hoy, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, James L. Gallagher, El Paso, for appellee.
   FRASER, Chief Justice.

This is a summary judgment case wherein the trial court granted the motion of ap-pellee, who was plaintiff below. Appellee brought its suit against appellant arising out of and based on a judgment rendered in another district court of El Paso County in a suit entitled Samuel G. Nicolosi, et ux, Plaintiffs, vs. J. P. McGrath, Jr., Defendant, No. 100564. This particular lawsuit was between two former partners and involved an insurance agency business. The judgment in the former suit incorporated the report of a receiver who had been appointed to take over the affairs of the partnership. In this report, the receiver set forth the amount that each partner was entitled to, or owned, in the partnership, and also set out a long list of customer credit balances, which is referred to as Schedule No. 12 of the Third Accounting of the Receiver. The plaintiff-appellee based its motion for summary judgment in this case largely on the fact that the prior judgment had become final, and the court in said judgment had approved and recognized the findings of the Receiver, one of which was that the appellee had a customer credit balance due it of $1,263.87. The finality of this judgment is not contested, but we think that the wording of a part of said judgment is necessary, as it is apparently the main background of plaintiff-appellee’s claim. The court in the other case said, inter alia, as follows:

“And it being shown to the Court that R. A. HANLEY, said Receiver pursuant to the Order of this Court, did on the 30th day of March, 1962, sell to ROBERT H. BROWN for the sum of $14,783.00 cash, all of the assets of the insurance agency known as McGrath-Nicolosi & Company and that said Receiver has duly prepared and filed with this Court his final account, the same being designated as the Third Accounting of Receiver, said account is hereby in all things approved and ORDERED filed among the papers of this cause as part of the record thereof and is hereby incorporated in this Judgment by reference as fully as though set out at length herein and said Receiver is hereby ORDERED to make disbursement in accordance with said accounting and to pay the indebtedness of Mc-Grath-Nicolosi & Company as reflected by said accounting but the Customers credit balances as shown by Schedule No. 12 of said Third Accounting of Receiver, the same being in the sum of $5,141.82 are hereby ORDERED held in trust by J. P. McGRATH, JR., to be paid to the customers reflected by said Schedule No. 12 in the amount indicated thereby by the said J. P. McGRATH, JR. and the said SAMUEL G. NICO-LOSI and wife, FLORENCE NICO-LOSI, are hereby relieved of any and all liability for payment of same and the said J. P. McGRATH, JR., shall hold and save them harmless from any claims for said sums of money or any part thereof up to the aforesaid sum of $5,141.82.” (Emphasis ours.)

Appellee maintained in the lower court that this was a final adjudication to the effect that the trustee there, who is defendant here, was ordered to hold the sum of money mentioned therein and to pay it out in accordance with Schedule 12 hereinabove mentioned. Appellee, as plaintiff below, filed its suit against the defendant demanding payment of this customer credit balance of $1,263.87, and stated that it was due because of the prior judgment in the other case which had become final.

The defendant-appellant filed his answer in which he sets up and alleges, among other things, that there existed an offset or counter-claim in jiis favor against the plaintiff in this case. He also urges this matter as a defense as well. The information applicable thereto is found in the pleadings and in the answers to the interrogatories and/or admissions contained within the record now before us. In addition, this record contains an affidavit by J. P. Mc-Grath, Jr., who was a partner in the business and a party in the former lawsuit (No. 100564). We believe the admissions and statements in answer to the interrogatories, as well as the opposing affidavit by Mr. J. P. McGrath, Jr., are sufficient as far as the defendant is concerned, to establish the possible existence of a definite counter-claim or offset requiring exploration or determination as a material fact issue. His pleadings, opposing affidavit, and the admissions and answers to interrogatories show that the defendant claimed, and claims here, that Mr. Nicolosi, one of the parties to the other lawsuit and a former partner involved in the prior lawsuit, had sent an invoice, letter or bill to the appellee company on the letterhead of McGrath-Nicolosi & Company for a sum of money, and Mr. Nicolosi had written in longhand across the top of the invoice, “Make out to Samuel G. Nicolsi and hold”. The word “hold” is underlined three times. Subsequently Mr. Nicolosi picked up the checks from a Mr. Lembo, described as comptroller of the plaintiff, and eventually cashed them. It was alleged that the Lembos and Nicolosis were bowling, social and party friends and frequently eiitertained each other. Appellant also sets out in this narrative-type affidavit that the close friendship between Lembo and Nicolosi was the reason that Lembo delivered to Nicolosi the two checks totaling $1,049.51. It is apparently uncontroverted that Mr. Nicolosi and his wife cashed these checks and used the money for their own purposes, and that none of it was ever actually received by the other partner or the partnership. There is much controversy in the record before us as to whether the appellant successfully controverted, or could controvert, appellee’s demand for a summary judgment.

In the matter before us the court first granted summary judgment to appellee; then, approximately a month or so later, granted it a nunc pro tunc judgment; and still later granted an application and issued an order for the severance of appellant’s counter-claim, or claim or offset, from this summary judgment case.

We have reached the conclusion that this matter was not, in the final analysis, a proper subject for disposition by summary judgment. As we have stated above it appears not only from the pleadings, but from the admissions and opposing affidavit that the appellant was very stoutly asserting an offset, counter-claim or defense based on what he claims was the wrongful act of appellee in making out the checks totaling $1,049.51 to Mr. Nicolosi, and delivering them to him. Appellant urges and argues that this was a knowing act on the part of appellee’s comptroller or agent, based on his knowledge of the facts and perhaps induced by his friendship for Mr. Nicolosi. There is no doubt but that the checks were issued to and paid and used by Mr. Nicolosi, and this amount was apparently used and considered in making up the figure of $1,263.87 that was set up by the Receiver as a customer credit to appellee. In other words, appellee apparently added this figure of $1,049.51 to other credits claimed by it to make the total of the aforesaid figures of $1,263.87. This, appellant claims, is wrong because he alleges this payment was improperly conceived and executed by the appellee’s agent and Mr. Nicolosi, and the partnership did not receive it as such, and it should not be used as an item entitling the appellee to credit in an amount equal to that paid Mr. Nicolosi. We believe these allegations, statements, pleadings, admissions, and the opposing affidavit, all found in the record, establish the existence of a material fact question — to-wit, the appellant’s claim of offset, defense or counterclaim, and whether it should be allowed and, if so, in what amount. Appellee urges and argues that this matter should not be a part of this summary judgment case, but that it should be tried separately because of the nature of the allegations (mainly, that appellee’s suit was based on an item contained in a final judgment), and because the court severed it from this case which has resulted in a summary judgment.

Partial summary judgments have always been considered interlocutory and therefore not appealable until the entire case is disposed of. The record, left as it is, calls for two different lawsuits and two different judgments. In other words, if the appellee is successful here, and the appellant is successful in the counter-claim or offset — which the trial court severed — then there would be two judgments with which to deal, two cost bills and two problems of interest and, of course, the rule against unnecessary multiplicity of suits appears. The appellee itself, in its application for judgment nunc pro tunc, points out that the court did not consider, nor did its order purport in any way to affect, the defendant’s cross-action against plaintiff and third party Nicolosi, and that therefore the order granting the summary judgment did not truly and correctly record the court’s decree because no mention was made that the defendant was left free to assert his claim by way of cross-action against plaintiff and Nicolosi. The order of the court, in addition to other matters, follows this motion by plaintiff below and describes its order as a partial summary judgment. The court further recognizes the existence of appellant’s claim by its order of severance. The appellee states in its motion for such severance that defendant’s cross-action over and against plaintiff is a separate and distinct cause of action, and that plaintiff’s claim and defendant’s cross-action might be properly tried as if it were the only claim in controversy. The court’s order follows, again, the language of appellant’s motion, and in his order of severance orders the defendant’s cross-action docketed as a separate suit against plaintiff and the Nico-losis.

The rules governing the matter of summary judgment have been universally accepted as well set out in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, and the many cases following it. In that and the other cases, it is carefully enunciated and set forth that Rule 166-A, which deals with summary judgments, was never intended to deprive anyone of his day in court or a hearing on a properly presented claim. We think that this matter is one that should not be severed and should not be disposed of, even partially, by a summary judgment. Defendant has raised this question on his pleadings and replies to the interrogatories as a defense as well as a set-off or counterclaim. It will be noted on reading the provisions of the judgment in the prior (and now final) decision that the court there ordered Mr. McGrath to pay some partnership bills and ordered him to receive and hold, as trustee, the sum of $5,141.82 “to be paid to the customers reflected by said Schedule No. 12 in the amounts indicated”. While, as we have stated before, this record is not replete with informative affidavits, nevertheless we feel the opposing affidavit and the admissions and answers to interrogatories are adequate to present an answer in defense to appellee’s motion for summary judgment. The brief of ap-pellee sets forth a quotation from Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, wherein the court states that when facts entitling the moving party to prevail have been established by affidavits, depositions, testimony or admissions, the motion for summary judgment will not be denied merely because the opposite party alleged matters which might require a different judgment. While this case is cited by the ap-pellee in defense of its position, we think that it works both ways; that, on the basis of this opinion in 1960 by the Texas Supreme Court, by the same token facts defeating or preventing a summary judgment can be established by the same method, to-wit, admissions, etc.

We feel that the court itself, and the ap-pellee, both in the motions for judgment nunc pro tunc and order of severance and the wording of the judgment and order, set up a recognition that there did exist a fact issue, which we do not feel was properly severable from the lawsuit. We think justice would be better served here if a trial was had on the merits wherein the appellee can assert its claim and the appellant can present his cross-action and/or offset. While this matter has not been easy of decision, we feel that the appellant has presented adequate evidence to require consideration of his counter-claim or offset along with appellee’s demand for the payment of the customer credit sum of $1,263.-87. The court can hear both sides on a trial of the merits and then determine who owes who, and how much; and, in our opinion, this is the better and the legal way to dispose of this controversy, rather than splitting it into at least two different lawsuits.

Therefore, without itemizing or referring in particular to any one of appellant’s points of error, we hold that appellant has successfully indicated that the trial court was in error in granting summary judgment to ap-pellee and in severing appellant’s counterclaim to be tried as a separate case. This holding is based on the various matters presented by appellant in his points of error, and we do not deem it necessary to itemize or separate any particular point of error, but rather' to say that appellant, in his seven points of error, has indicated to us that the trial court was in error in granting summary judgment and the order of severance.

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


author: GRISSOM, Chief Justice.

text:
    SOUTHERN STATES LIFE INSURANCE COMPANY, Appellant, v. E. R. NEWLON, Appellee.
    No. 4038.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 14, 1966.
    Rehearing Denied Feb. 4, 1966.
    Bracewell, Reynolds & Patterson, Joe H. Reynolds and Stanley B. Binion, Houston, for appellant.

      Davis & David, John L. David, Dalhart, for appellee.
   GRISSOM, Chief Justice.

E. R. Newlon sued Southern States Life Insurance Company for the purpose of having four new life insurance policies cancelled and some old policies reinstated. In a jury trial, judgment was rendered for the plaintiff and the defendant has appealed.

Newlon alleged that on November 10, 1962, the defendant insurance company issued to him four new insurance policies covering the lives of his children; that before November, 1962, he owned three paid up life insurance policies issued by defendant; that he was approached by Sinclair, a general agent for said company, who solicited new insurance and stated that the company was giving its paid up life policy holders paid up insurance policies to release funds held in reserve; that this would benefit both the company and such policy holders; that Newlon informed Sinclair he did not want to buy any new insurance but that he wanted to change the beneficiaries in his three old paid up life insurance policies; that Sinclair presented to Newlon forms for his signature which he said would procure the desired change in beneficiaries. Sinclair represented that it would be necessary for Newlon to deliver his old paid up life insurance policies to him so that he could send them to the company and have the change of beneficiary noted thereon; that, about the 10th of November, 1962, two of defendant’s agents returned to Newlon’s home and returned to him his three old paid up policies together with four new policies insuring the lives of his children; that Whitaker and another agent, who delivered said policies to Newlon represented that they were agents of defendant and again informed Newlon that the four new policies were paid up life insurance policies and that no premiums would ever be required thereon, whereupon, Newlon accepted them and gave the agent a receipt therefor. Newlon alleged he was repeatedly assured that nothing was being done to his old paid up life insurance policies; that they would remain unchanged except as to the change in beneficiary; that Newlon would not have accepted the policies but for the representations of Sinclair and Whitaker, the duly authorized agents and representatives of Southern States; that said representations were made for the purpose of misleading him and inducing him to purchase new policies and surrender his paid up life insurance policies so that a lien for premiums on the new policies could be noted thereon. Newlon alleged that he did not learn of the falseness of said statements until about two months after the policies were delivered to him when another agent informed him that he had obtained a loan against his old paid up life insurance policies and that additional premiums would be charged on the new policies; that about three months after the policies were delivered he informed the company that he did not want any loans against his old policies and that he wanted the new policies cancelled as of the date they were issued and the loan value reinstated on his old paid up policies, but Southern States refused to cancel the new policies and refused to reinstate the loan values on the old paid up life insurance policies. Wherefore, he sued to have the new policies can-celled for fraud and the loan value of his old paid up life insurance policies reinstated.

Southern States Life Insurance Company answered by a general denial. It alleged that in October, 1962, Newlon executed four applications for life insurance on his four children; that he executed said four applications each of which contained provision that it and the policy issued in reliance thereon should constitute the entire contract, and that the company would not be affected by any statement of its agents not contained in said application; that Newlon and wife signed separate instruments designated as assignments of policies to said company to secure loans for payment of some premiums on the new policies and signed instruments directing said company to apply the proceeds of the policy loans on Newlon’s old paid up life insurance policies to payment of the first one and one-half annual premiums on the four new policies insuring his children; that said policies were delivered to Newlon about November 10, 1962, when he signed a receipt therefor stating that each policy was issued as applied for; that the insurance company relied on such instrument signed by Newlon, changed its position and undertook the risk and expense of insuring Newlon’s children; that Newlon knowingly signed the four applications for new insurance each of which was entitled assignment of policy to Southern States to secure policy loans and the two instruments signed by plaintiff instructed ' the defendant to apply the proceeds of the loans on the old paid up policies to payment of the first one and one-half annual premiums on the new policies; that the insurance company relied on these requests and changed its position and incurred risk and expense in issuing the new policies and, therefore, that New-lon was estopped to have the new policies cancelled and the loan value of the old policies reinstated.

Defendant specially pleaded that by signing or accepting said instruments Newlon bound himself by their terms, since a person claiming fraud “must exercise ordinary care for the protection of his own interests and is charged with knowledge of all facts which would have been discovered by a reasonably prudent person similarly situated.” The insurance company concluded that Newlon was estopped to complain of matters which he could have discovered at the time of delivery of the policies by reading them.

The insurance company admitted (1) that Newlon bought from it four life insurance policies about November 10, 1962; (2) that the policies purchased were those sometimes designated herein as the new policies; (3) that before November 10, 1962, Newlon owned three old paid up policies issued by said company; (4 and 5) that Sinclair and Whitaker were agents and representatives of said company on November 10, 1962; (6 and 7) that both Sinclair and Whitaker had authority to sell life insurance policies for appellant at the date of the sale of the new policies to Newlon and (8) that Sinclair received a commission for the sale of said new policies. The insurance company denied that either Sinclair or Whitaker had authority to sell said new policies. It denied that at the time said new policies were sold to Newlon that either Sinclair or Whitaker was under contract to represent it as its agent for the sale of life insurance.

A jury found (1) that Sinclair stated to Newlon that appellant was offering him, as a paid up policy holder, life insurance policies at no cost to him; (2) that Sinclair made the statement as one of fact; (3) that it was false when made; (4) that it was material; (5) that the statement was made with the intention of influencing Newlon to apply for new policies; (6) that at the time Newlon delivered his paid up life insurance policies to Sinclair he relied on said statements; (7) that Newlon was damaged; (8) that such statements were willfully made, that is, purposefully made, knowing the same to be untrue. The jury also found that Whitaker stated to Newlon that appellant was offering New-lon, as a paid up policy holder, life insurance policies at no cost to him; (10) that Whitaker made the statements as a statement of fact; (11) that the statements were false when made; (12) that Whitaker’s statement was material; (IS) that Newlon was damaged by Whitaker’s statements; (16) that Whitaker’s statement was willfully made, that is, purposefully made, knowing the same to be untrue; (17) that appellant received a benefit from the representation by Sinclair to Newlon that appellant was offering him, as a paid up policy holder, new life insurance policies without cost; (18) that appellant received benefit from Whitaker’s representations that appellant was offering to Newlon, as a paid up policy holder, new life insurance policies at no cost to him; (20) that Newlon did not fail to exercise the care of an ordinary person in not reading the four new policies before February 21, 1963; (22) that Newlon did not fail to exercise ordinary care in failing to read the endorsement on the old policies before March, 1965, to the effect that the old policies were subject to a loan, and (25) that Newlon did not fail to exercise ordinary care in not reading the application for the new policies when he signed them.

But, the jury did find that (13) the statement by Whitaker to Newlon that appellant was offering him, as a paid up policy holder, new life insurance at no cost to him, were not made with the intention of influencing Newlon to apply for additional insurance; (19) that Newlon did not exercise ordinary care in failing to read the four new policies when they were delivered; (21) that Newlon by the exercise of reasonable diligence could have discovered that the new policies required payment of premiums; (23) that Newlon by the exercise of reasonable diligence could have discovered that loans were being made against the old policies and (24) that Newlon by the exercise of reasonable diligence could have discovered that premiums on the new policies were being paid by loans on the old.

Newlon filed a motion for judgment on the verdict and asked the court to disregard issues 19, 20, 21, 22, 23 and 24 and the answers thereto because they failed to submit an ultimate issue upon which a judgment could be based; that they referred to a time subsequent to the act of fraud depended upon by plaintiff was practiced on him.

Plaintiff alleged that the jury’s answer to issue 25, which was in substance that Newlon failed to exercise ordinary care in not reading the applications for the new policies when he signed them, was the only defensive issue submitted and that it was answered in plaintiff’s favor; that Newlon did not fail to exercise ordinary care in not reading the applications when he signed them; that the issues set. out above had no relation to the fraudulent acts complained of by Newlon and the injuries sustained by him as shown by issues 1 through 8 and the answers thereto. In other words, that the fraud which induced Newlon to so act took place before the time inquired about in issues 19 through 24 and, therefore, the answers to issues 19 through 24 were not material. Newlon alleged that the answers to issues 19 and 20 were conflicting and should be disregarded; that the answers to issues 22 and 23 were conflicting and should be disregarded and that the answers to issues 23 and 24 were in conflict and should be disregarded. The court sustained plaintiff’s said motion and rendered judgment can-celling said four new policies and reinstating Newlon’s old paid up policies as they were prior to November 10, 1962.

Appellant’s points 1 and 2 are that the court erred in overruling appellant’s motion for judgment on the verdict and in disregarding the answers to issues 19, 20, 21, 22, 23 and 24 because the answers thereto established that plaintiff was negligent and therefore he was barred from rescission; that the answers to issues 19, 20, 21, 22, 23 and 24 established that Newlon was guilty of negligence which precluded rescission. Appellant’s third point is that the court erred in overruling appellant’s motion for an instructed verdict because a person is bound by what he signs in the absence of fraud which prevents him from discovering the nature of the instrument he signs. Appellant’s fourth point is that the court erred in overruling its motion for an instructed verdict because, as a matter of law, Newlon was charged with knowledge of Article 21.04 of the Texas Insurance Code, V.A.T.S., which limits the authority of a soliciting agent. Appellant presents other points to the effect that Newlon, as a matter of law, was bound by the terms of the contracts delivered to him; that the court erred in overruling appellant’s motion for an instructed verdict because both Newlon and his wife testified that they did not examine the policies until months after they were delivered and because, as a matter of law, Newlon was not entitled to rely upon said representations but was under a legal duty to act as a reasonable man in the protection of his own interest. He presents other points to the effect that the court erred in refusing to permit the introduction of certain evidence. Except for the procedural questions, appellant’s contention is to the effect that Newlon was estopped to rescind because he was negligent in failing to sooner ascertain the falsity of appellant’s representations.

We agree with appellee that the contributory negligence of Newlon is not a defense to this action based on fraud and that a fraud-feasor cannot excuse his fraudulent acts by asserting that the defrauded person was unduly credulous and guilty of contributory negligence in believing the fraudulent statements made to him. We think the applicable law is stated in 37 C.J.S. Fraud § 30, page 274 as follows:

“While it has been stated that there is a duty on the part of the representee to use some measure of protection and precaution to safeguard his interest, and that in dealing at arm’s length with the other party he must avail himself of the means of knowledge readily within his reach, see infra § 34, the rule has been enunciated that contributory negligence of the representee is no defense to an action based on fraud. Since the very purpose of fraud is to cheat its victim by making him negligent the precautions essential to prevent injury, and to deny relief because the victim was negligent would encourage dishonesty, and it is held that the fraud-feasor will not be heard to say that he is a person unworthy of belief and that plaintiff was negligent in trusting him and was cheated through his own credulity.”

In Blaine v. Lowery, Tex.Civ.App., 157 S.W.2d 713, it was held that misrepresentation of stock is actionable fraud where the deceived party acted in ignorance of the true facts, and that lack of diligence did not constitute a waiver of the fraud which induced him to so act. In that case it was held that a defendant would not be heard to assert that the innocent victim of his cunning took his chances without proper investigation. That, when it was established that there had been fraudulent misrepresentation by which a person has been induced to enter into a contract, it is no answer to his claim for relief to say that he might have known the truth by the exercise of proper diligence. In Labbe v. Corbett, 69 Tex. 503, 6 S.W. 808 our Supreme Court long ago held that it was not the law in Texas that a person injured by the fraudulent representations of another was required to exercise diligence to discover the falsity of such statements and that, in the absence of knowledge, he had a right to rely and act upon such statements and that such a wrongdoer could not be heard to say that he should have disbelieved the defendant’s fraudulent statements. We think the jury’s findings that Newlon failed to exercise reasonable diligence to timely discover the fraud does not constitute a defense to the findings of fraud perpetrated by the agents of appellants which induced appellee to receive the four new policies and the instruments showing a loan on his old paid up policies.

We conclude that error is not shown in the procedural questions presented and that rhe court properly rendered judgment for Newlon putting him ⅛ the same position he occupied at the time the fraudulent acts were committed by the appellant.

The judgment is affirmed.