author: PER CURIAM.

text:
    Ella Marie YANCY, Individually and as next friend for Carolyn Ann Yancy, a Minor, Appellants, v. TEXAS GENERAL INDEMNITY COMPANY, Appellee.
    No. 314.
    Court of Civil Appeals of Texas. Tyler.
    July 20, 1967.

      Phenix & Wilder, Bill Wilder, Henderson, for appellants.
    Otto A. Ritter, Fred Erisman, Longview, for appellee.
   PER CURIAM.

ON APPELLEE’S MOTION FOR REHEARING

Earlier in this term we overruled appel-lee’s motion to dismiss this appeal for the want of prosecution pursuant to Rules 414 and 415, Texas Rules of Civil Procedure.

Appellee has filed its motion for rehearing, accompanied by its brief in support of said motion, in which it contends this court erred in overruling its motion to dismiss for the lack of prosecution because the appellants (1) have failed to timely file their brief as required under Rules 414 and 415, T.R.C.P.; (2) have made no effort to show good cause for the failure to file their brief; and.. (3) have failed to overcome the presumption of injury to appellee as a result of their failure to timely file their brief.

STATEMENT OF THE FACTS

Upon a hearing of appellee’s plea in abatement, judgment was granted dismissing appellants’ alleged cause of action. From this judgment the appellants timely perfected their appeal to this court.

Appellants timely filed their transcript and statement of facts on May 16, 1967, and May 22, 1967, respectively. Thereafter, on June 26, 1967, appellants ‘ filed their brief in this court. On June 28, 1967, appellee filed its motion to dismiss the appeal. Simultaneously therewith, appellee also filed its motion for an extension of twenty days in which to file its brief, from the date the court enters its order on the motion to dismiss, in the event said motion to dismiss is overruled.

On July 6, 1967, this court overruled ap-pellee’s motion to dimiss without written opinion and on same date granted appellee the extension of time within which to file its brief as requested.

At no time prior to the filing of the brief did appellants request an extension of time, nor have they ever alleged or attempted to show any good cause whatsoever for the delay.

Under Rules 414 and 415, power of Courts of Civil Appeals to allow late filing of brief is not limited to instances where good cause may be shown unless late filing would result in material injury to opposite party, and late filing may be allowed where opposite party will not be injured even though good cause is not shown or a formal motion filed. When construed together, Rules 414 and 415 mean that Courts of Civil Appeals may allow late filing of brief if no injury results to opposite party and must do so if good cause is shown and no harm results to opposite party. Poser v. Gene Mohr Chevrolet Company, 377 S.W.2d 732, (Tex.Civ.App., Houston, 1964, reversed on other grounds, 384 S.W.2d 335); see also Texaco, Inc. v. Joffrion, 363 S.W.2d 827, (Tex.Civ.App., Texarkana, 1962, writ ref., n. r. e.). In the Poser case, as in the instant case, the appellant did not timely file his brief and did not request an extension of time, nor attempted to show any good cause whatsoever for his failure to timely file his brief.

We are not required, as a matter of law, to dismiss the appeal for want of prosecution because appellants have not complied with Rule 414, requiring the time-' ly filing of their brief. Hoke v. Poser, 384 S.W.2d 335, (Tex.Sup., 1964).

As this court has heretofore granted appellee’s motion for extension of time within which to file its brief and as the case has not been set for submission, the late filing has not delayed earlier submission of the cause in this court nor prejudiced appellee’s opportunity for answering thereto. Red Ball Motor Freight, Inc. v. Cordova, 332 S.W.2d 753, (Tex.Civ.App., Beaumont, 1960, n. w. h.).

We adhere to our original action in overruling appellee’s motion to dismiss and therefore we respectfully overrule appel-lee’s motion for rehearing.

      . Briefs of each party shall be subscribed by at least one of his attorneys, shall give the post-office address of each attorney whose name is signed thereto, and shall state that a copy of such brief has been delivered or mailed to each group of opposing parties or counsel thereof. Appellant shall file three copies of his' brief in the Court of Civil Appeals within thirty days after the filing therein of the transcript and statement of facts, if any, having theretofore delivered or mailed an additional copy to opposing parties or their counsel. Appellee shall file three copies of his brief in said court within twenty-five days after the filing of appellant’s brief and at the same time deliver or mail an additional copy to each group of opposing parties or counsel thereof. Any Court of Civil Appeals may by rule permit the filing there-rn of a less number of briefs. Upon good cause shown, the Court of Civil Appeals may grant either or both parties further time for filing their respective briefs, and may extend the time for submission of the case. The court may also shorten the time for filing briefs and the submission of the cause in case of emergency, where in its opinion the needs of justice require it.

      . When the appellant has failed to file his brief in the time prescribed, the appellate -court may dismiss the appeal „ for want of prosecution unless good cause is shown for such failure and that ap- . pellee has not suffered material injury thereby. The court, may, however, decline to dismiss the appeal, whereupon it shall give such direction to the cause as it may deem proper.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    SHELBY BISCUIT COMPANY, Inc., Appellant, v. Charles ROBBINS et ux., Appellees.
    No. 4625.
    Court of Civil Appeals of Texas. Waco.
    July 13, 1967.
    Rehearing Denied Aug. 3, 1967.

      Foreman, Dyess, Prewett, Henderson & Cantey, A. D. Dyess, Jr., Houston, for appellant.
    Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, Houston, for appellees.
   OPINION

WILSON, Justice.

Defendant-appellant’s truck struck plaintiff-appellee’s automobile in the rear while the latter vehicle was stopped at a signal light. Judgment for plaintiff was rendered on a jury verdict. We affirm.

Appellant challenges numerous adverse jury findings as to negligence and proximate cause on the grounds there is no evidence, or insufficient evidence, to support them. It is necessary only to consider these contentions as to one ground of recovery.

The jury found appellant’s negligence in the following respects was a proximate cause of the collision: failure of its driver to apply the emergency brake, failure to have its truck equipped with brakes capable of bringing the truck to a stop within 30 feet at 20 miles per hour (Art. 6701d, Sec. 132(b), Vernon’s Ann.Civ.Stat), failure to maintain the brakes in good working order (id., Sec. 132(c), V.A.C.S.), and failure to properly inspect the brakes. Negative answers were returned concerning “emergency” and unavoidable accident.

The evidence was adequate to support the jury findings that the failure of appellant’s driver to apply the emergency brake on his truck was negligence and a proximate cause.

Appellant’s truck was following the automobile in which plaintiff was riding. The street was wet; traffic in the one-way street was heavy, and all four of its lanes were filled. Appellant’s driver testified he was moving at about 20 miles per hour when plaintiff’s car stopped, second in line, for the traffic signal. It was the truck driver’s opinion he could have stopped if his hydraulic brakes had worked properly. He testified he had been following plaintiff’s car about 30 feet behind before he “began to slow for the intersection.” He slowed his vehicle as he crossed a railroad track about 200 yards from the intersection.

He testified: “All the traffic was slowing down. I stepped on my brake pedal and it went to the floor. I re-pumped it, and I didn’t have any brakes at all. I might have slowed down to about ten miles an hour.” When he discovered he had no brakes, he said he “looked both ways in the mirror to see if I could dodge. I shifted into second gear to try to slow it. I tried to shift into low, but I couldn’t get it in low.” Asked approximately how much time elapsed from the time he found his hydraulic brakes were ineffective until the impact, he answered, “I will say a couple of seconds at most.”

The emergency hand brake lever was on the right side, and could be reached by leaning over and grabbing. “It wouldn’t take more than a second or two”, the driver testified. The mechanical hand emergency brake, as required by Art. 6701d, Sec. 132, was operated independently of the hydraulic brake system. The hydraulic brakes had been dragging and grabbing before the accident. The truck driver said at the time of the accident, it was testified, “My brakes were bad and went out. I had been trying to get them fixed, and they had put some brake fluid in them that morning, and they couldn’t get them fixed. They had been that way for several weeks.” Appellant’s mechanic, however, testified no complaint as to grabbing or dragging of brakes had been made to him, and he had not added any brake fluid.

Appellant argues that since the driver testified he had no more than two seconds in which to act, reaction time being taken into account, there was not time to apply the emergency brake, the failure to apply it was not negligence or a proximate cause, and the accident would have occurred even if the brake had been applied.

The jury was not required to accept the estimates of appellant’s driver as conclusively establishing speed, time and distance factors testified to by him. His testimony is not clear and without contradiction in these respects. The jury could properly consider that the driver anticipated a hydraulic brake failure, since he testified to defects and inadequacy; that he testified he had time to look to right and left to see if there was space to turn; that he had time to “gear down” to second gear, and to attempt to reduce to low; that in view of the point at which he testified he began to retard his speed, the distance between vehicles was much greater than 30 feet when his hydraulic brakes failed, and consequently, he had a much longer interval, even at ten miles per hour, in which to act.

The evidence, therefore, supports the findings relating to failure to apply the emergency brake.

Appellant then insists these findings conflict with the answer “we do not” to the issue inquiring whether the jury found from a preponderance of the evidence that its driver was acting under an emergency. The syllogism is, as we understand it, that the driver was under no duty to use his “emergency brake” if there was no “emergency”. The shadowy position is most readily answered by the fact that “emergency” was defined as a condition not proximately caused by defendant’s negligence. The findings are not in conflict, but are consistent.

It is unnecessary to pass on appellant’s attack on other negligence findings. What we have said above is a basis for overruling complaints as to the sufficiency of evidence on the finding the collision was not the result of an unavoidable accident, and on that concerning “emergency”.

A point asserting a juror had a preconceived notion that the driver of the rear vehicle was always at fault in rear end collisions is not sustained by the record. Appellant’s contention requires our acceptance of an affidavit of the juror attached to the motion for new trial. It is hearsay, and may not be considered as evidence. Elliott v. Shaw, Tex.Civ.App., 410 S.W.2d 247, syl. 1, and cases cited.

We have considered complaints as to the damage issues and findings. They are overruled. Affirmed.


author: McDONALD, Chief Justice.

text:
    Florence D. FLORA, Appellant, v. Grant MILLS, Appellee.
    No. 4632.
    Court of Civil Appeals of Texas. Waco.
    July 27, 1967.
    Rehearing Denied Aug. 17, 1967.
    Sam Lee, Angleton, Bob S. Owen, Alvin, Hardy, Galindo & Sharpe, Thomas G. Sharpe, Jr., Brownsville, for appellant.
    Jack Price, Longview, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant, Florence Flora, from a judgment decreeing a ranching partnership between her and plaintiff, Grant Mills, from June 11, 1954 to May 26, 1963, decreeing plaintiff judgment against defendant for $69,788.83; and ordering appointment of an auditor.

Plaintiff Mills brought suit against his mother, defendant Flora, alleging that on or about June 11, 1954 they made a verbal agreement whereby they entered into a ranching partnership in Brazoria County; that plaintiff was to supervise the cattle and their increase; and bind himself by signing a guarantee of renewal notes of defendant with Houston Agricultural Credit Association for $15,000. Plaintiff further alleged defendant was to furnish 176 cows and bulls and 71 heifers and 77 acres of land; and that plaintiff was to receive an undivided one-half interest in all assets of the partnership; that the partnership continued until May 26, 1963 when defendant caused plaintiff to withdraw from the management of the partnership. Plaintiff alleged his interest was of the approximate value of $60,000., and prayed for the appointment of an auditor and receiver, and for general relief.

Defendant filed verified denial of the existence of any partnership between herself and plaintiff.

Trial was to a jury which, in answer to special issues submitted, found:

1) On or about June 11, 1954, plaintiff and defendant entered into a verbal agreement to form a ranching partnership.
2) The profits were to be divided fifty-fifty.
3) As of May 26, 1963 the reasonable market value of the assets of the partnership was: cattle — $79,210.; land —$45,300.; cash — $11,721.; equipment —$12,295. (total $148,526.)
4) The liabilities of the partnership as of May 26, 1963 were $12,000.
5) Plaintiff contributed $3061.54 to the operation of the ranching business from June 11, 1954 to May 26, 1963.
6) Plaintiff rendered $16,555.75 worth of services to the cattle ranching business between June 11, 1954 and May 26, 1963.
7) Defendant wrongfully terminated the partnership between herself and plaintiff.
8) Plaintiff sustained no damage by reason of such wrongful termination.

The trial court entered judgment establishing the partnership existing since June 11, 1954 and found it was terminated by the wrongful act of defendant on May 26, 1963; found the net assets to be of a value of $136,526.13 ($148,526.13 less debts of $12,-000 = $136,526.13). The judgment awarded plaintiff the $3061.54 he contributed plus $66,727.29 totalling $69,788.83, together with interest from May 26, 1963; and ordered the appointment of an auditor to determine withdrawals of profits by defendant between June 11, 1954 and May 26, 1963, and the amount of profits after May 26, 1963.

Defendant appeals, contending, among other things, that the evidence is insufficient to establish a partnership between defendant and plaintiff commencing on or about June 11, 1954. We sustain the contention.

Plaintiff is the son of defendant; defendant’s husband died prior to June 11, 1954; defendant owned 77 acres and some 244 head of cattle, (subject to a debt of $15,000); and had been engaged with her husband in ranching.

Plaintiff testified he and defendant verbally entered into a ranching partnership on June 11, 1954, whereby he was to guarantee the $15,000 note at the Houston Agricultural Credit Corporation; was to help defendant look after the cattle on evenings and weekends, and that profits were to be shared fifty-fifty; that defendant’s cattle were to form the nucleus of the partnership herd and everything accumulated thereafter would become partnership assets; that he signed a guarantee of the note at the Credit Corporation, looked after the cattle on evenings and weekends; that the partnership purchased some 111 acres additional land and by 1963 had assets of net value of approximately $134,000.

Defendant denied entering into a ranching partnership with plaintiff in 1954; but testified she and plaintiff entered into a partnership in July, 1961 with the purchase of 100 cattle called the Wet Moon Cattle; testified that plaintiff did help her on the ranch occasionally in the evenings and on weekends before 1961; that plaintiff sometimes paid for ranch labor, but that she reimbursed him for such payments.

The record reflects plaintiff and defendant had no written partnership agreement; that plaintiff never told his brother of the partnership; that plaintiff was incapacitated, due to an injury, from October, 1954 to November, 1955, and that he was a full-time student at the University of Houston from 1956 to 1958; that he went to work for an accounting firm in 1958 and worked for them to December 1, 1961. All lands acquired were acquired in defendant’s name. No partnership Income Tax Returns were filed for 1954, 1955, 1956, 1957,1958,1959 and 1960; and plaintiff’s income tax return for the years 1954 through 1960 reflected no income or loss based on the asserted partnership. After the Wet Moon Cattle Partnership was formed between plaintiff and defendant in 1961, plaintiff and defendant filed a partnership return for the years 1961 and 1962.

Defendant deposited $10,000 in the Gibraltar Savings and Loan on January 25, 1960, and made payable to defendant or plaintiff as joint tenants with right of survivorship.

Defendant reimbursed plaintiff for expenses he paid in the sum of $2713.58, (checks being in evidence), and gave plaintiff ¾ acre for a homesite and drilled a well on same at a cost of $438.25.

Neighbors saw plaintiff and defendant both working on the ranch at various times, and the testimony differs as to which was the best cowhand. Defendant’s son, Joe, likewise helped on the ranch at various times.

The president of the Houston Agricultural Credit Corporation testified his organization had not taken a guarantee from plaintiff on defendant’s note, and looked solely to defendant for payment of the note; further it was the corporation’s policy to require a partnership agreement, if business were to be conducted with a partnership; and that no agreement was on file with his company; that a financial statement is required of a guarantor if a guarantee is executed, and that no such statement on plaintiff was present in the company’s files.

All cattle purchases from 1954 to July 1, 1961 were made in the name of defendant; the parties had no partnership bank account for the years 1954 through 1960; and, as noted, no partnership income tax returns were filed until 1961, when partnership returns on the admitted Wet Moon Cattle partnership between plaintiff and defendant were filed.

Plaintiff admittedly has an interest in the Wet Moon Cattle operation which commenced in 1961, but there has been no accounting as to assets and liabilities of this operation.

A number of persons related to both plaintiff and defendant .testified they had never heard plaintiff and defendant were ranching partners between 1954 and 1961. No unrelated third parties testified there rwas a holding out of a partnership between 1954 and 1961. No firm books evidencing a partnership from 1954 to 1961 are in evidence; all cattle sales prior to the admitted Wet Moon partnership in 1961 were in defendant’s name only (with one exception), and all land and cattle purchased were purchased in defendant’s name.

We have carefully examined the record, and conclude from the record as a whole that the evidence is factually insufficient to establish that plaintiff and defendant verbally entered into a ranching partnership on June 11, 1954.

Reversed and remanded.


text:
    Mrs. Hattye H. GIBSON, Individually and as Independent Executrix etc., Appellant, v. AMERICAN NATIONAL INSURANCE COMPANY, Appellee.
    No. 4615.
    Court of Civil Appeals of Texas. Waco.
    Aug. 3, 1967.
    Rehearing Denied Aug. 24, 1967.

      Markwell, Stubbs, Decker, Dalehite & Youngblood, Theodore B. Stubbs, Galveston, Fountain, Cox & Gaines, Joyce Cox, Houston, for appellant.
    Dibrell, Dibrell & Greer, Louis J. Dibrell, Roland L. Bassett, Galveston, for ap-pellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Gibson from a summary judgment that plaintiff take nothing in her suit against defendant insurance company, to recover an apportionment of the company’s surplus profits and a reasonable dividend on a certain profit-sharing life insurance policy issued on the life of William Hammersmith.

Plaintiff is heir and Independent Executrix of Ida Hammersmith, deceased, who was the widow of William Hammer-smith, deceased.

William Hammersmith took out a $5,000. life insurance policy in 1906 with defendant Insurance Company. The policy provided for an annual premium of $184.50 to be paid for 20 years, and further:

“IX Dividend
“If the insured be living and this policy in force on 8 February, 1926, the Company will pay to the Insured, or assigns, a CASH DIVIDEND, consisting of this Policy’s full share of Sur■plus Profits, as determined by the Actuaries of the Company, and this Policy may then be continued or surrendered by said Insured, or assigns, under one of the following options. Until said date no dividend shall be apportioned to this Policy.”
“Options * * *
“3) Draw dividend in cash and continue Policy as a paid up life Policy for its full amount * * *.”
“XI Trust Fund Privilege
“At the time this Policy becomes payable as a claim the proceeds * * * may be left during the lifetime of the beneficiary in trust with the Company, and the Company will pay thereon, so long as the said amount remains with the Company, interest at the rate of 3% per annum, together with such annual dividend as may be apportioned by the Company. The said trust fund shall be paid at the death of the beneficiary to the executors * * *, but may be withdrawn at any time with accrued interest.”

William Hammersmith paid the premiums for the 20 years and subsequent to 8 February, 1926 elected Option 3, supra, to continue his policy as a paid up life policy for its full amount. The record reflects that Hammersmith was paid $1567.99 subsequent to 8 February, 1926 and prior to April, 1941.

Hammersmith died on May 4, 1941 and his widow beneficiary, Ida Hammersmith, elected under provision XI, supra, to leave the $5,000.00 face of the policy with the Company to be held as set out in the “Trust Fund Privilege” provision of the policy.

Thereafter, Ida Hammersmith received each year $150 (or 3% interest on the $5,000.), but received no other apportionment on such policy from the Company. Mrs. Hammersmith died in 1957. Defendant Insurance Company, in August, 1958, paid the $5,000 face of the policy, plus $50.50 accrued interest to plaintiff.

Plaintiff, as executrix, filed this case in 1961, alleging that defendant Insurance Company had not made a reasonable apportionment of the company’s surplus profits for annual dividend during the period from 1926 to the death of Mr. Hammersmith in 1941, nor during the period from 1941 until the death of Mrs. Hammersmith in 1957.

Defendant moved for summary judgment that plaintiff take nothing, asserting plaintiff’s causes of action were barred by the Four Year Statute of Limitations; that dividends were paid to Hammersmith during the 1926-1941 period; that plaintiff was entitled to no recovery as a matter of law under Paragraph XI of the policy because such provides “such annual dividend as may be apportioned by the Company,” and attached affidavit of the Vice President and Actuary of the Company reflects no dividends were in fact apportioned by the Company during the 1941 to 1957 period.

The trial court entered summary judgment that plaintiff take nothing.

Plaintiff appeals on 6 points, contending the trial court erred in rendering summary judgment that it take nothing; and that the provision for “such annual dividend as may be apportioned by the Company”, does not give the Company the arbitrary right to apportion no dividends whatever.

That part of the case seeking dividends under provision IX of the policy, and for the period between 1926 and 1941, is barred by the Four Year Statute of Limitation. Moreover, the record reflects that Mr. Hammersmith actually received some $1567 as dividends during this period.

Dividends asserted to be due during the period from 1941 to 1957 are governed by provision XI of the policy. Such provided that Mrs. Hammersmith, the beneficiary, could leave the $5,000. due at the death of Mr. Hammersmith, with the Company and receive 3% interest thereon, “together with such annual dividend as may be apportioned by the Company.” It is undisputed that Mrs. Hammersmith received the 3%, and further that no dividend was apportioned by the Company. The contract has been complied with, and has not been breached. Defendant Company has paid the $5,000., together with all interest due to plaintiff after the death of Mrs. Hammersmith.

The summary judgment is correct. All plaintiff’s points and contentions are overruled.

Affirmed.


text:
    Marie DAWSON, Relator, v. FIRST NATIONAL BANK OF TROUP et al., Respondents.
    No. 333.
    Court of Civil Appeals of Texas. Tyler.
    July 28, 1967.

      Weldon Holcomb, Rex Kirby, Tyler, for relator.
    No counsel for respondents.
   PER CURIAM.

This is an original proceeding brought in this court by relator, Marie Dawson, to enjoin and restrain respondent, Ben E. Jarvis, Trustee, from selling certain properties under the power of a certain deed of trust, pending the disposition by this court of the merits of the appeal now pending in this court in Cause No. 332. The appeal in that case is by relator from the action of the 4th Judicial District Court of Rusk County in refusing to grant a temporary injunction restraining the respondents, Ben E. Jarvis and the First National Bank of Troup, from disposing of the properties of relator as described in the deed of trust.

It is shown by relator’s petition for original injunction filed in this court that on June 26, 1967, the respondent, Ben E. Jarvis as Trustee, posted notice of sale of the property that is the subject of the litigation for sale on August 1, 1967. We are asked to enjoin said respondent, Ben E. Jarvis, from selling this property pending the disposition of the appeal by the appellate courts on its merits in order to preserve the status quo of the parties and to protect the jurisdiction of this court to pass upon the merits.

No principle is better settled than that a court will protect its jurisdiction by preserving the subject matter of the litigation in order to make its decrees effective. City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 77 A.L.R. 709; Lee v. Lee, 355 S.W.2d 255 (Tex.Civ.App., Houston, 1962, n. w. h.). In the case of Madison v. Martinez, 42 S.W.2d 84 (Tex.Civ.App., Dallas, 1931, writ ref.), the court said:

“ * * * if the effect of the refusal of the trial court to continue in force the restraining order is to destroy the subject-matter of the appeal, and thereby prevent the effective operation of any judgment this court might render, the jurisdiction of this court would be unlawfully invaded, through the means of the destruction of the subject-matter of the appeal, and the power to issue a proper writ to prevent such condition rests in this court. * * * If this court should hold, on the merits of this appeal, that the district court erred in refusing to grant the temporary writ of injunction, and should reverse the case with instruction to the judge of the district court to grant the temporary writ, there would be nothing in such an event on which such judgment could operate, and the judgment of this court would be a nullity. * * * ” See City of Athens v. Gulf States Telephone Company, 374 S.W.2d 757 (Tex.Civ.App., Tyler, 1964, n. w. h.).

The petition for injunction as prayed for will he granted. In order to protect our jurisdiction and preserve the subject matter of the litigation pending appeal from the order of the trial court denying the temporary injunction, respondent, Ben E. Jarvis, is enjoined from proceeding with the sale of the property being the subject of the litigation and posted for sale for August 1, 1967, until final disposition of the case on appeal. This Writ is issued in accordance with Art. 1823, Vernon’s Ann. Tex.Civ.St. which empowers this court to enforce and protect its jurisdiction pending final disposition of the case on appeal.

No bond is required of relator as a condition to the issuance of this injunction as it is issued under authority of Art. 1823, V.T.C.S., for the purpose of protecting our jurisdiction, the statute requiring no bond. See Bowlen v. Bowlen, 1 S.W.2d 355 (Tex.Civ.App., Fort Worth, 1927, n. w. h.) and Ex parte Lee, 127 Tex. 256, 93 S.W.2d 720; Nelson v. Blanco Independent School District, 386 S.W.2d 636 (Tex.Civ.App., Austin, 1965, n. w. h.).

Nothing done hereby or said herein should be taken or construed as an expression of opinion by us upon the merits of this appeal.

Injunction granted.

SELLERS, J., not participating.


author: DENTON, Chief Justice.

text:
    FIRST BANKERS INSURANCE COMPANY, Appellant, v. Robert O’HAIR, Appellee.
    No. 7726.
    Court of Civil Appeals of Texas. Amarillo.
    June 19, 1967.

      Stigall ac Maxfield, Dallas, John F. Max-field, Dallas, of counsel, for appellant.
    Kirby & Ratliff, Littlefield, Louis M. Ratliff, Jr., Littlefield, of counsel, for appellee.
   DENTON, Chief Justice.

This is a suit for benefits under a hospitalization insurance policy. The trial court granted the plaintiff’s motion for summary judgment against the insurer, First Bankers Insurance Company.

Appellant contends the trial court erroneously granted the motion for summary judgment because the record contained no copy of the insurance policy upon which the claim was made; and for the further reason the plaintiff’s pleadings and affidavits present a genuine issue as to a material fact. The plaintiff’s unverified motion for summary judgment had attached thereto, supporting affidavits of the plaintiff; the treating doctor; and copies of two Assumption Certificates by which appellant, First Bankers Insurance Company, assumed and reinsured appellee under an insurance policy originally issued by Preferred Service Mutual Life Insurance Company. No copy of the policy was attached to the motion for summary judgment nor to the pleadings. It was not before the trial court nor is it in the record in this court.

Appellee takes the position that although a copy of the insurance policy was not attached or otherwise placed in the record, the trial court correctly rendered judgment for the appellee for the reason an-pellant admitted it had reinsured and a ;- sumed the policy previously issued b • another company; that the terms and conditions of the contract were not in issue or in dispute; and that appellant did not object by pleadings that a copy of the policy was not attached.

Appellee’s original petition alleged “that this is a suit upon a policy of hospitalization or health insurance” and sets out the policy number, date of issuance, and attached thereto the two Assumption Certificates by which the named companies, including appellant, assumed the obligation to perform under the insurance policy. The two Assumption Certificates were also attached to appellee’s motion for summary judgment, however, neither these Certificates nor the pleadings contain any of the provisions of the insurance contract sued upon.

In order for a party to be entitled to a summary judgment, the provisions of Rule 166-A, Texas Rules of Civil Procedure, must be strictly complied with. Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233. The failure to file opposing or counter affidavits is not necessarily fatal. Summary judgments are not granted by default but upon the mov-ant’s discharge of his burden to show the absence of material facts issues. Freeberg v. Securities Investment Co. of St. Louis (Tex.Civ.App.) 331 S.W.2d 825 (Error Ref.). Hatter v. Worst (Tex.Civ.App.) 390 S.W.2d 293 (Ref. N.R.E.).

Appellee’s cause of action is based solely upon the insurance contract. In the absence of a copy of the policy, or pleadings setting forth the applicable provisions of the policy, or admissions to establish the material provisions of the policy relied upon, there can be no basis upon which the court can render a judgment. The amount or extent of the insurer’s liability cannot be determined. The insurance benefits, if any, are derived from the insurance policy itself. In the state of this record these benefits cannot be ascertained. Boswell v. Handley (Tex.Sup.) 397 S.W.2d 213; Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274; Aetna Insurance Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376; Western Casualty Insurance Co. v. Penson (Tex.Civ.App.) 348 S.W.2d 234.

The judgment of the trial court is reversed and the cause is remanded.


author: STORCKMAN, Judge.

text:
    The STATE of Missouri, on the Information of Norman H. Anderson, Attorney General of the State of Missouri, at the Relation of Lawrence CONAWAY, Howard Brown, Dan Halbert, Clark Trask, Duane Sanders and Winston Kehner, Relators, v. CONSOLIDATED SCHOOL DISTRICT NO. 4 OF IRON COUNTY, Missouri, and Woodrow Reed, Tom Wigger, Jesse Ritter, Clive Troutt, Ollie Gene Coleman and Wilbur Crocker, Respondents.
    No. 52582.
    Supreme Court of Missouri, En Banc.
    Aug. 21, 1967.

      G. C. Beckham, Steelville, Dorman L. Steelman, Salem, for appellants.
    Roy W. McGhee, Jr., Piedmont, for respondents.
   STORCKMAN, Judge.

This appeal is from a summary judgment rendered against the relators on their information in the nature of quo warranto. The pleading was filed by leave of court on the information of Norman H. Anderson, attorney general of the state of Missouri, at the relation of six “tax paying residents and qualified voters of the territory known as School District R — 4 of Crawford County,' Missouri.” The respondents are the Consolidated School District No. 4 of Iron County, Missouri, which will sometimes be referred to as the School District, and the six individuals who are the directors of the respondent School District.

The information alleges that on August 10, 1965, an election was held to vote on a proposition to adopt a Consolidated District by merging all of Crawford County Reorganized School District No. 4 and all of Iron County Reorganized School District No. 4 into one district to be known as Consolidated District No. 4; that the vote on the proposition as shown by the certificate of the election officials was 580 for the proposition and 572 against it, but if the votes had been properly cast and counted the proposition would have been defeated. The relators further allege that the respondent school directors, and each of them, usurp, hold, use and exercise the office of director of Consolidated School District No. 4 of Iron County since September 3, 1965, “and since that date have unlawfully claimed and enjoyed the rights and privileges appertaining to said office.”

The prayer of the information is for a judgment (1) that the election held on August 10, 1965, for the purpose of voting on a merger of the two districts “into a new district to be known as Consolidated School District No. 4 was void and of no effect”; (2) that the individual respondents “are usurping and pretending to hold and use the privileges, powers and peroga-tives [sic] of school directors and that they should be ousted therefrom”; (3) that Consolidated School District No. 4 “does not legally exist and that its power and authority has been and is being invalidly and improperly exercised.”

The supreme court has jurisdiction of an appeal in a quo warranto proceedings seeking to oust directors of a consolidated school district since the action involves title to an office under the state within the meaning of § 3 of Art. 5 of the Constitution of Missouri, V.A.M.S. State ex inf. Smoot ex rel. Kugler v. Boyer, Mo., 259 S.W.2d 375, 376[1]; State ex inf. Stipp ex rel. Stokes Mound School District No. 7 v. Colliver, Mo., 243 S.W.2d 344, 346[1]; State ex inf. Taylor ex rel Zeliff v. Whitford, 361 Mo. 184, 233 S.W.2d 694[1]; State ex inf. Kamp ex rel. Rodgers v. Pretended Consolidated School District No. 1, 359 Mo. 639, 223 S.W.2d 484, 485[1]; Utt v. Oster, Mo.App., 235 S.W.2d 577. The appeal is properly lodged in this court.

All of thé factual allegations of the information relate to the legality of the votes and voters at the election of August 10, 1965, and the accuracy of the canvass of the ballots and tally made by the election officials. It is alleged that Clement B. Fox, the acting superintendent of schools of Iron County, purported to authenticate the absentee ballots of sixteen qualified voters but thereafter advised the board of canvassers that such ballots were not valid and the ballots were not counted. It is further alleged that these sixteen absentee ballots were legal and valid ballots and, on information and belief, it is asserted that all sixteen of these voters cast their ballots against the proposition. It is also alleged that twenty-nine persons who were not qualified cast ballots in the election; that one person voted an absentee ballot which was counted although the voter was in the school district on election day and was not prevented from going to the polls on account of illness; that three other persons voted invalid absentee ballots which were counted but should not have been because none of such persons filed a proper application for an absentee or sick ballot. On information and belief it is alleged that in three polling places the ballots were not correctly counted and tallied. The relators conclude that the election held on August 10, 1965, was invalid and of no effect; that there is no lawful incorporation or organization of the purported Consolidated District No. 4; that there could be no office of director of said purported district and, therefore, the respondents are usurping and pretending to hold, use and exercise privileges, powers and prerogatives of office which do not exist. The factual allegations are designed to change the result of the election and to obtain a judgment that the consolidated district has no legal existence.

The prayer for judgment that the election of August 10, 1965, was “void and of no effect” is not justified in the sense that there was some fatal defect going to the entire election. The issues presented relate altogether to the validity of certain ballots and the qualifications of the persons who cast them or undertook to do so. At best the factual allegations would furnish grounds for contesting the result of an otherwise valid election.

Despite the name given plaintiffs’ pleading and their prayer for judgment, the action does not sound in quo warranto but is in the nature of a contest of the results of the election held August 10, 1965. The distinction is stated in 29 C.J.S. Elections § 1(10), pp. 26-27, as follows: “Election contests are distinguishable from quo warranto proceedings in that they are usually instituted within a prescribed period after the election by, or on behalf of, the unsuccessful candidate, for the purpose of establishing his right to the particular office in controversy, while quo warranto proceedings deal mainly with the right of the incumbent to the office, independent of the question who shall fill it. Whether the suit is an election contest or a quo warran-to proceeding to determine the right to office must he determined from the allegations of fact contained in the pleading, and where the questions raised by the litigation necessitate going behind the returns the case presented is an election contest.” Italics supplied. See also State ex rel. Ewing v. Francis, 88 Mo. 557, 561, Morrison v. Crews, 192 Tenn. 20, 237 S.W.2d 1, 5 [6]; State ex rel. Bryant v. Maxwell, 189 Tenn. 187, 224 S.W.2d 833, 836 [4], and Adcock v. Houk, 122 Tenn. 269, 122 S.W. 979, 981 [3],

The rule is well established in Missouri that the character of a cause of action is determined from the facts stated in the petition and not by the prayer or name given the action by the pleader. Kemp v. Woods, 363 Mo. 427, 251 S.W.2d 684, 687-688[4]; Webster v. Sterling Finance Co., 351 Mo. 754, 173 S.W.2d 928, 931 [3]; State ex rel. Nunnelee v. Horton Land & Lumber Co., 161 Mo. 664, 61 S.W. 869, 870[1],

“The right to contest an election is not a natural right, but it exists only under constitutional or statutory provisions, and one seeking relief under such provisions must bring himself strictly within their terms.” 29 C.J.S. Elections § 247, pp. 680-681. This statement of the rule of law is supported by the Missouri decisions. Nichols v. Reorganized School District No. 1 of Laclede County, Mo., 364 S.W.2d 9, 13[6]; Wann v. Reorganized School District No. 6 of St. Francois County, Mo., 293 S.W.2d 408, 411 [2]; State ex rel. Phillips v. Barton, 300 Mo. 76, 254 S.W. 85, 89 [8,9]. We have not been cited to any Missouri statute or constitutional provision authorizing the contest of an election submitting a proposition to consolidate or merge school districts and our own research has not revealed any.

Art. 6 of the Missouri Constitution relating to local finances provides in § 26(g) that all elections under this article may be contested as provided by law. Section 5 of Art. 7 dealing with public officers designates the forum for the contest of elections of certain state officers and further provides that the general assembly shall designate by general law the court or judge for the trial of the several classes of election contests and shall regulate the manner of trials and all matters incident thereto. The' general statutes relating to election contests are Chapter 124. It provides for contesting the election of designated public officers and in § 124.240 for contesting the result of an election upon a proposed constitutional amendment or statute submitted or referred to the voters. The secretary of state is designated the contestee. These statutes generally designate the forum and provide an extremely limited time, a matter of days, for instituting contests and require their expeditious processing and determination. It is generally recognized that statutes governing election contests are a code unto themselves. Phelps v. Fenix, 345 Mo. 440, 134 S.W.2d 84, 88[3]. The election here complained of was held August 10, 1965, and this action was not instituted until March 2, 1966. It should be noted by way of contrast that in cases of contested elections for school directors, notice of the contest must be given to the opposite party within twenty days after the votes have been officially counted, and that every court authorized to determine contested elections shall hear and determine them in a summary manner without formal pleading. Sections 124.250 and.124.280, RSMo 1959, V.A.M.S.

In their brief the appellants admit that they, after diligent search, “have not found~a 'tfuo warranto case in the State of Missouri, which holds that the ballots may be opened, examined, counted and compared in a quo warranto proceeding.” They also recognize there is “some very ancient authority” holding that ballots could not be used as evidence in a quo warranto proceeding. See State ex rel. Ponath v. Hamilton, Mo., 240 S.W. 445, 449 [7], and State ex rel. Ewing v. Francis, 88 Mo. 557, 561. The appellants contend, however, these rulings have been changed by virtue of the 1924 amendment of § 3 of Art. 8 of the Constitution which now provides that “in cases of contested elections, grand jury investigations and in the trial of all civil or criminal cases in which the violation of any law relating to elections, including nominating elections, is under investigation or at issue” the election officials may be required to testify and the ballots cast may be opened, examined, counted, compared with the list of voters and received in evidence. The relators assert that this quo warranto proceeding is “a civil case in which numerous violations of the election laws are under investigation” within the meaning of the amended constitutional provision.

The 1924 amendment relaxed the secrecy of the ballot so as to permit the use of ballots as evidence in two additional categories, but it did not create a cause of action where none existed before. Hence, the authority to contest the results of an election remains a matter for legislative action, and the general assembly has not seen fit to grant the right to contest an election for consolidation óf school districts.

Furthermore, § 3 of Art. 8 as amended does not enlarge the scope of quo warranto so as to permit such a contest. The relief obtainable in an action based on an information in the nature of quo warranto as codified in Chapter 531, RSMo 1959, V. A.M.S. and S.Ct. Rule 98, V.A.M.R. remains unchanged notwithstanding the 1924 amendment. The relators direct our attention to a number of cases holding that the corporate existence of a school district can only be questioned by the state in a direct proceeding instituted for that purpose by quo warranto. These consist chiefly of cases attacking the election in its entirety on grounds such as defective compliance with statutory requirements for notice of the election and furnishing essential information to the voters. For example, see State ex inf. Barker v. Smith, 271 Mo. 168, 196 S.W. 17, Utt v. Oster, 362 Mo. 866, 245 S.W.2d 22, and State ex rel. Boyer ex inf. Forst v. Whittle, Mo., 401 S.W.2d 401. None of the cases cited, however, undertake to change the result of an election by a recount of the ballots. The conventional action of quo warranto is not in keeping with the proceedings provided by law for the expeditious disposition of election contests. Section 111.770, RSMo 1959, V. A.M.S., is presently in the language of § 3 of Art. 8 and does not enlarge on the legal effect of the amendment.

The portion of § 3 of Art. 8 relaxing the secrecy of the ballot so as to permit access to the ballots in certain situations has been held effective as a rule of evidence without enabling legislation; however, the right to contest an election for the. purpose of changing its result has been uniformly held not to exist except by grant from the general assembly and under regulations prescribed by it. Nichols v. Reorganized School District No. 1 of Laclede County, Mo., 364 S.W.2d 9, 13[4]; State ex rel. Miller v. O’Malley, 342 Mo. 641, 117 S.W.2d 319[9,10]. In the O’Malley case this court en banc stated: “Undoubtedly, the part of the section permitting the opening of ballots in election contests is not self-enforcing, in the sense that further provision must be made by statute for such contests. But the part which provides for the use of the ballots as evidence in grand jury investigations is self-enforcing, and no legislative default can thwart it.” 117 S.W.2d at page 323.

The courts have no jurisdiction of an action to contest the result of an election to consolidate school districts because the general assembly has not so provided either in a special statutory action or by extending the scope of an information in the nature of quo warranto. State ex rel. Frank v. Becker, 320 Mo. 1087, 9 S.W.2d 153, 154[3]. This action in substance is an election contest and under existing law cannot be maintained.

The judgment is affirmed.

All concur except SEILER, J., absent.