text:
    Virgilio H. GUERRA et al., Appellants, v. Amando PENA et al., Appellees.
    No. 14545.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 23, 1966.
    Rehearing Denied Oct. 3, 1966.

      Hill, King & McKeithan, Mission, Arnulfo Guerra, Roma, for appellants.
    Luther E. Jones, Jr., Corpus Christi, Frank R. Nye, Jr., Emilio F. Gutierrez, Glenn H. Ramey, Rio Grande City, for ap-pellees.
   PER CURIAM.

This is an election contest filed by appellants, Virgilio H. Guerra and Horacio-Vela, contesting the results of the 1966 Starr County Democratic Primary for nomination to the officers of County Commissioner, Precinct 2, and Justice of the Peace, Precinct 2, respectively. Appellees, Amando Pena and Mrs. Minerva R. Pena, were certified to be the successful nominees for these respective offices by the Starr County Democratic Executive Committee.

The two contests were apparently brought and tried as one suit because both contestants are members of the “Old Party” whereas contestees are members of the “New Party” in Starr County, and since the boundaries of the two offices are similar most of the challenged votes affect both candidates of each “party” in similar fashion. A substantial number of ballots, most of which were voted absentee, were challenged in the trial court by contestants and contestees. After a lengthy hearing, the trial court made findings relative to 158 ballots, resulting in the following final recount, and judgment was entered declaring that both contestees were duly nominated :

It is seen that to prevail on this appeal it is necessary that contestant Guerra change the findings of the trial court to a net of 35 votes, whereas contestant Vela must change the findings to a net of 44 votes. Contestants’ appeal relates to a total of approximately 125 ballots, although several are challenged for more than one reason. By counter-points, contestees complain of the trial court’s findings as to 13 ballots.

Contestants urge that the trial court erred in not voiding 69 absentee ballots which were allegedly secured by applications based upon medical certificate signed by Dr. Rene A. Solis, although none of such certificates had been requested by the voter or by any one at his direction. There is no contention that any of the persons were not actually disabled, and the un-contradicted evidence shows that a medical examination was made by Dr. Solis before he signed each certificate. Contestants assert, however, that there is no evidence, or insufficient, evidence of a request for a certificate in the manner required by law.

The only testimony on this point came from Dr. Solis, who has been Starr County Sheriff for 18 years and, although obviously a leader in the “New Party,” was called by contestants as a witness. Dr. Solis testified that he signed medical certificates for “many absentee voters” between April 19 and May 2, 1966. Although Dr. Solis had a notebook which contained, in chronological order, the names and summary of each person examined, the notebook was not offered in evidence and only three persons were identified as having been examined by Dr. Solis. Contestants urge that the identity of the other 66 voters may be ascertained by an examination of the applications contained in the absentee ballot boxes.

The trial court refused to make this examination and it is our opinion that an abuse of discretion is not shown by this refusal, in that contestants did not make out a prima facie case of illegality as to these voters to justify the trial court’s examination of these ballots. Art. 13.30, Election Code, Vernon’s Ann.Civ.St.; McIver v. Starkey, Tex.Civ.App., 271 S.W.2d 314, no writ; De La Garza v. Salinas, Tex.Civ.App., 255 S.W.2d 396, no writ; Markowsky v. Newman, Tex.Civ.App., 138 S.W.2d 896, wr. dism. The voting lists show that an absentee vote was cast by a person of a name identical to each of the challenged voters. However, contestants failed to show that these challenged voters secured their ballots by medical certificates furnished by Dr. Solis.

A more difficult question is presented as to the ballots of Ascencio Canales, Nicholas Escobar and Blasa R. Salinas, in that the testimony of Dr. Solis shows that he issued a medical certificate for each. Dr. Solis testified that “the certificates” and therefore presumably “these” certificates were signed at the place of examination, which was usually at the voter’s home, and that the request for the examination was made by a “party” representative who accompanied him when the examinations were made. There was no evidence from any of the voters, or the “party representative” as to whether the voter directed the representative to arrange for the examination.

The contestants had the burden of introducing evidence that these voters did not direct the “party representative” to request Dr. Solis to make the examinations. This Court has repeatedly held that in an election contest, the contestant has the heavy burden of overcoming the presumption that the election officials discharged their duty properly in receiving or rejecting a ballot. Guerra v. Ramirez, Tex.Civ.App., 364 S.W.2d 720, wr. dism.; Guerra v. Ramirez, Tex.Civ.App., 351 S.W.2d 272; Solis v. Martinez, Tex.Civ.App., 264 S.W.2d 956, wr. dism.

Contestants urge that they discharged their burden under the holding in McGee v. Grissom, Tex.Civ.App., 360 S.W.2d 893, no wr. hist. The question of who has the burden of going forward with the evidence is not considered in this opinion. The appellate court there upheld the trial court’s ruling in voiding 21 absentee ballots which were obtained, completed and delivered fraudulently. The evidence showed that the applications with blank medical certificates attached were delivered by the contestant and his wife to an elderly retired physician who was not the family physician of any of the voters and further did not have personal knowledge of the physical condition of any of said voters.

The facts which supported the finding in the McGee case that the medical certificate was obtained fraudulently are distinguishable from the uncontradicted evidence in this case, in that Dr. Solis examined each of the voters before signing the medical certificate and each was in fact entitled to vote absentee for this reason. Further, there was evidence that Dr. Solis had examined these persons for the purpose of their securing medical certificates at many prior elections. In our opinion, the trial court did not abuse its discretion in refusing to examine the certificates and ballots of these voters.

Contestants urge that four voters, including the three identified as having been given a medical certificate by Dr. Solis, were continuously unconscious or insane and therefore their ballots should be voided. Two of the four had died before the trial. The evidence was sharply conflicting as to the mental and physical disabilities of these four voters. They were found qualified by the election officials and there is sufficient evidence to support the trial court’s finding that none were shown to have been mentally disqualified from voting.

Contestants urge that two procedural errors affected the case as a whole by denying them due process, and specifically affected a number of voters who cast ballots for contestants which were rejected by the election officials. Shortly after contestees filed their answer in this cause, contestants served contestees with a request for admissions in accordance with Rule 169, Texas Rules of Civil Procedure, and with notice of intention of taking the deposition by written interrogatories of 32 witnesses whose ballots had been rejected. Prior to the expiration of the time for reply to these requests and for issuance of the commissions, contestees filed motions with the trial court seeking to be excused from answering a number of the requests for admissions and also seeking to enjoin the issuance of the commission for the depositions, unless a “time and place” for the taking of such depositions were stated. Both of these motions were substantially granted.

The request for admissions contained 23 requests with several containing many subsections. The first twelve requests relate to formal or jurisdictional requirements of this suit; i. e., precinct boundaries, the certified election results, and identity of the parties. All but two of these requests were admitted by contestees. The remaining eleven relate to the specific grounds for challenging the action of the election officials; i. e., questions were asked relative to each of the persons listed in the various exhibits attached to contestants’ petition and contestees were asked to admit that they were non-residents or residents, according to how the result would affect contestants, the specific grounds for rejection by the election officials of numerous ballots and similar matters which went to the merits of the lawsuit. The trial court found that the information requested was subject to proof by neutral witnesses and the information was not known to con-testees. It accordingly excused contestees from replying to these requests.

Contestants urge that contestees could have answered most of the requests by making a reasonable inquiry and therefore the requests should be taken as admitted. Here, however, the trial court excused contestees from replying. This action, even if erroneous, relieved contestees of the necessity of timely responding to these requests. It is further our opinion that the trial court did not abuse its discretion in entering this order. We do not believe that Rule 169, supra, should be used so as to cast upon respondent the burden and expense of proving the movant’s lawsuit. Rather, the purpose of this rule is to simplify the trial by eliminating matters that really are not in controversy. Stáyton, 20 T.L.R. 19; Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206; Masten v. Masten, Tex.Civ.App., 165 S.W.2d 225, wr. ref.

Reversible error is not shown by contestants’, complaint of the action of the court in enjoining issuance of commissions to take written depositions. Although this action was done just prior to the date set for hearing of the contest, the trial court offered to keep the case open until contestants had the opportunity to take the written deposition of any witness they desired. Contestants made no effort to do so, nor have they shown by bill of exceptions the testimony of any of such witnesses. Therefore reversible error is not shown. Guerra v. Ramirez, Tex.Civ.App., 364 S.W.2d 720. Furthermore, we do not believe the trial court abused its discretion in requiring contestants to set these depositions for a specific time and place. Rule 186b, T.R. C.P.

Contestants urge that 21 ballots which were cast for contestees should be declared void because of the improper campaign activity of a Starr County employee. Saul F. Hinojosa, who was a member of the “New Party,” was in California for sixteen or seventeen days in April, 1966, campaigning on behalf of the “New Party” candidates. In this connection he visited a number of migrant worker camps where workers from Starr County usually were found. He took absentee application forms with him and these 21 voters were among some seventy to seventy-five persons that he contacted and encouraged to vote absentee. There is a strong indication from the physical evidence that a substantial portion of many of the application forms were filled out at one time, and therefore outside the presence of most of the voters, in that the information was written on the same typewriter.

We have not found any provision in the Election Code to prohibit campaigning outside the State or the encouragement of an eligible voter to cast an absentee vote. The absentee voting papers of each voter are in regular form, including a statutory affidavit on the carrier envelope executed by each voter before one of several notaries public in California. There was also testimony identifying each of these voters, together with his signature. The trial court did not err in refusing to reject these ballots because of the political activity of Hinojosa.

Sixteen of these ballots were rejected by the election officials and contestants urge that the trial court erred in reinstating them, in that contestees did not discharge their burden of showing by clear and satisfactory proof that such voters were legally qualified in every respect. See Guerra v. Ramirez, Tex.Civ.App., 351 S.W.2d 272. Specifically, it is asserted that there is no proof that any of said voters “marked his ballot before a notary public or other person authorized to administer oaths” as required by law. Election Code, Art. 5.05, Subd. 4. The affidavit on the carrier envelope is prima facie evidence that this requirement was met, and in the absence of any evidence to the contrary, the trial court properly counted these ballots.

Contestants urge that the trial court erroneously counted ballots of 47 voters who were non-residents of the two precincts in question. The boundaries of both contested offices lie within voting Precincts 6 and 7. These 47 voters must be divided into two categories because the burden of proof differs as to each category. Twenty-three of these ballots were rejected by the election officials, but were reinstated by the trial court. The remaining twenty-four were counted by the election officials as well as by the trial court.

The law presumes that the rejected ballots were cast by an illegal voter and the burden of proof was upon contest-ees in the trial court to show by clear and satisfactory proof that each of such voters was a legally qualified voter in every respect. On the other hand, the burden of proof was upon contestants to demonstrate to the trial court by clear and satisfactory proof that the twenty-four ballots cast by the other challenged voters were illegal. Guerra v. Ramirez, Tex.Civ.App., 351 S.W.2d 272.

A substantial part of the lengthy statement of facts relates to the question of residence of over 100 voters challenged in the trial court. These voters fall into two basic categories: 1. Migrant workers, who although born and reared in Starr County, spend several months each year working in different parts of the United States; 2. voters who, although American citizens, live in Mexico, primarily because of marriage to a Mexican citizen. Most of the challenged voters cast absentee ballots and very few were present at the time of the trial. Testimony relative to their residence or non-residence was from relatives and acquaintances of the voters in most instances. This evidence, which was from party officials and persons vitally interested in the election, is sharply conflicting. We must presume on this appeal that the conflicts as to these 47 voters were resolved by the trial court as the trier of the facts in a manner favorable to contestees.

The voting residence of a person as defined in Art. 5.08 of the Election Code has recently been considered by the Supreme Court in Mills v. Bartlett, Tex., 377 S.W.2d 636 (1964) and by this Court in Del Rio Ind. School Dist. v. Aldrete, Tex.Civ.App., 398 S.W.2d 597, writ dismissed. In Mills, it was 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.” In Aldrete, we said: “Other cases have emphasized the rule 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.”

In McBride v. Cantu, Tex.Civ.App., 143 S.W.2d 126, no history, this Court adopted the following rule from Reid v. King, Tex.Civ.App., 227 S.W. 960: “A removal to divest one of his right to vote must be accompanied by an intent to make a new domicile and quit the old. Mere removal, coupled with an intent to retain the original domicile and return to it, will not constitute a change.” See also Jordan v. Overstreet, Tex.Civ.App., 352 S.W.2d 296; Spraggins v. Smith, Tex.Civ.App., 214 S.W.2d 815.

We have examined the record relative to the residence of these 47 voters in the light of these legal principles. Insofar as the 24 ballots counted by the election officials and the trial court are concerned, contestants wholly failed to introduce clear and satisfactory proof that the following migrant workers were not residents of either of these voting precincts: Leonel R. Lozano, Narcisso Salinas, Macario Sandoval, Gilberto G. Sandoval, Aracelia G. Sandoval and Lorenzo Gomez. There was evidence that each maintained a permanent residence in one of these precincts and was gone a part of each year because of his work. Contestants did not meet their burden of proof as to voters Margarito Rosa and wife, Apolonia M. Rosa, or Donato Gonzalez.

A number of other voters in this category were shown to be working in other counties, i. e., Mrs. Oscar Canales teaches school in Hidalgo County; Mora Dolores Guerra teaches school in Jim Wells County; Luisa Naranjo teaches school in Hidalgo County; Hector H. Hinojosa, accompanied by his wife, Rosabel G. de Hinojosa, is working in a Galveston shipyard while waiting for a job in Starr County with the Texas Liquor Control Board; Manuel Santiago Guerra is working in Austin pending sufficient funds to return to the University of Texas; the husband of Velma H. Ramos works four or five months each year in California on construction jobs; and Oscar Canales works for a pipe line company which is now working in Hidalgo County. Rafula H. Gonzalez is temporarily out of the county nursing her sick husband. There is evidence that each of these voters has at all times maintained his or her voting residence in Starr County. Several maintain homes in Starr County, while others have rented rooms. All keep some of their furniture or clothes in their Starr County residences. Contestants failed to show that these voters were not residents.

In Cavallin v. Ivey, Tex.Civ.App., 359 S.W.2d 910, no history, the Court recognized the problem of determining residence where an American citizen marries a Mexican citizen living in a nearby Mexican city. Under the holding in that case the husband’s legal residence in the United States is not affected by the fact that his wife resides outside the United States, where it is shown that the husband physically resides in the United States and only visits his wife periodically. Voters Marshall Littleton, Aman-do Garcia, and Cresencio Talamante, were shown to be in a similar domestic situation and the court did not err in overruling the challenge as to their ballots.

Contestants showed by clear and satisfactory proof that three of the 24 voters in this category were not legal residents of Precinct 6 or 7. Alma Yolanda Canales is a single girl, twenty-seven years of age, and under the undisputed evidence she has worked over a year at a factory in Houston; Reymundo Feugero is divorced and has worked full time for a radio shop in Evanston, Illinois, for the last one and one-half years. The fact that these two single people return on holidays to visit their parents in Starr County would not qualify them as residents.

The parties stipulated that voter C. J. Duggan lived in Precinct 6 until he moved to Precinct 7 in August 1965, and on election day, instead of voting in Precinct 7, he went back and voted in Prec. 6. This stipulation was sufficient to show that he voted in the wrong precinct. Therefore, his ballot is void. Harrison v. Jay, 271 S.W.2d 388 (Tex. 1954); Boroughs v. Williamson, Tex.Civ.App., 312 S.W.2d 717, writ dism.

More difficult questions are presented as to the 23 voters whose ballots were rejected by the election officials but reinstated by the trial court. Thirteen of these voters were shown to be migrant farm workers with a permanent residence in Precinct 6 or 7. This evidence supports the trial court’s finding that they were qualified voters.

Contestants assert that six members of the Munoz family (father, his two sons and their wives) live in Seagoville in Kaufman County, Texas. None of them testified at the trial. However, a relative testified that they live in Precinct 6, and identified the signatures of each on a stub. He testified that each has always claimed Precinct 6 as his residence. Since their work in Seago-ville is only seasonal, they spend about half of each year at a house in Precinct 6, and still have furniture and clothes in this house. In rebuttal to this evidence, a friend of the Munoz family testified that he had visited in their homes at Seagoville, just a few days before the trial, and that all three families lived in houses on a ranch in Kaufman County where they had worked for several years. The trial court apparently believed the testimony of the relative rather than that of the friend, although the relative was then under two indictments for burglary. This testimony establishes their residence in Starr County.

Contestants urge that the evidence was not clear and satisfactory that the four Ramos voters (two brothers, Cleofas and Jose, their cousin’s husband, Raul Barrera, and his sister, Ofilia B. Ramos) were residents. The burden was upon contestees to show this in the trial court, by clear and satisfactory proof, since the election officials rejected their votes. Only Cleofas testified at the trial. He testified that he and his wife rented a house in Precinct 6, and, although he went to California as a migrant farm worker, his wife and children remained in Roma. He testified his brother Jose and family resided in this house with him. He further' testified that Ofilia B. Ramos and Raul Barrera live in Precinct 6 with her two daughters and their husbands, although this address was not identified. He admitted Jose, O filia and Raul are married to Mexican citizens who live in Mier, Mexico. The only address on the ■poll tax receipts for these three voters is a post office box in Roma, Starr County. A witness called by contestants testified that all had homes in Mier, Mexico. In our opinion the evidence is not clear and satisfactory that Jose, Of ilia or Raul were residents of Precinct 6.

Contestants complain of six ballots favorable to them which were marked “challenged” by the election officials prior to being deposited in the ballot box. Although placed in the ballot box, they were subsequently removed by the officials and rejected. This procedure was highly improper. Marking the voter's ballot so that it could later be identified destroyed the secrecy of the ballot. Art. 8.09, Election Code, provides the proper procedure to be followed by the election officials where a prospective voter is challenged. In our opinion these votes should therefore be presumed legal. In McCrary on Elections, § 279, the applicable rule is set forth: “The inspectors of an election having received the vote of a person, and deposited the same in the box, can not afterward enter into any inquiry as to the right of such person to vote.”

Contestants assert challenges as to nine additional ballots. Inasmuch as these points, even if sustained, would not change the result in either contest, we do not deem it necessary to discuss these points or con-testees’ counter-points.

The judgment of the trial court is affirmed. Any motion for rehearing must be filed within five days from this date.

      . Subd. 2, Art. 5.05 of the Election Code, V.A.T.S. sets forth the provisions for making application for an absentee ballot. This section requires the application to be aecompanied by a medical certificate where sickness or physical disability is given as the reason for the application. This section also, provides substantially that any person who requests a physician to execute a certificate for another person without having been directed to do so, or any physician who knowingly executes a certificate except upon request of voter or someone at voter’s direction shall be guilty of a misdemeanor.

      . This article provides in part as follows: “The ‘residence’ of a single man is where he usually sleeps at night; that of a married man is where his wife resides, or if he be permanently separated from his wife, his residence is where he sleeps at night; * *


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    ST. PAUL MERCURY INSURANCE COMPANY, Appellant, v. SUGARLAND INDUSTRIES, INC., Appellee.
    No. 4091.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 9, 1966.
    Rehearing Denied Oct. 7, 1966.

      Butler, Binion, Rice, Cook & Knapp, Frank J. Knapp, Houston, George Roane, Rosenberg, for appellant.
    Baker, Botts, Shepherd & Coates, Alvin M. Owsley, Jr., and John C. Held, Houston, for appellee.
   WALTER, Justice.

J. T. Falco and others purchased cotton seed from Sugarland Industries. Sugarland represented to Falco that the seed had a germination rate of 80%. Falco filed suit against Sugarland for lost profits because the seed did not have a germination rate of 80%. Sugarland called upon St. Paul Insurance Company to defend such suit because, it contended, it was covered by a policy which it had with St. Paul. The insurance company denied coverage and refused to defend. Sugarland provided its own defense and lost the case, which is reported in 360 S.W.2d 806, Sugarland Industries, Inc. v. Falco, (Waco Ct.Civ.App. 1962, writ ref. n. r. e.), to which reference is made for a more detailed statement of the facts.

Sugarland filed this suit against St. Paul to recover the amount it paid out on the Falco case contending that its policy covered the hazard involved. In a non-jury trial, it recovered a judgment and St. Paul has appealed.

Appellant states its position as follows:

“Appellant has taken the position from, the inception of this controversy that its policy of liability insurance does not afford any coverage for the kind of claim and demand made by Falco and others and subsequently asserted and recovered by them ir. their suit against Sugarland, and that same is not within the purview of a policy of liability insurance. Broadly stated, Appellant says that the liability fixed against Appellee in the Falco case is an ordinary commercial loss arising out of a sale of goods under a contract of sale in which the purchaser has asserted and recovered lost profits growing out of the failure of the goods to measure up to the quality and character of the goods that were bargained for, and as they were represented to be by the vendor. Appellant denies that the liability claimed and fixed against Sugar-land in the Falco action is one ‘caused by accident’ within the meaning of its liability policy, and denies that the claim and recovery of Falco and others was one for damages ‘because of injury to or destruction of property, including the loss of use thereof’ within the insuring agreements of such policy. Appellant says that a holding that its policy affords coverage to this type of situation would have the effect of converting a liability policy into an agreement to indemnify the insured against liability for the insured’s failure to faithfully perform its contractual obligations and would make the insurer a guarantor of the quality, quantity and satisfactory performance of its insured’s products sold by it in ordinary vendor-vendee relationships without regard to the language of the insuring agreements, conditions and exclusions of the policy which are referred to in Appellant’s answer.”

Appellee says that the relevant portions of the policy are as follows:

“DECLARATIONS
Item 3. Coverages
C. Property Damage Liability — Except Automobile
$500,000 aggregate products
Item 4. The declarations are completed on attached schedules designated A, B.
ST. PAUL MERCURY INSURANCE COMPANY * * *
AGREES with the Insured, * * *
INSURING AGREEMENTS
I. Coverage C — Property Damage Liability — Except Automobile
To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.
II. Defense, Settlement, Supplementary Payments
With respect to such insurance as is afforded by this Policy, the Company shall:
(a) defend any suit against the Insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the Company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient ;
(b) (1) pay all premiums on bonds to release attachments for an amount not in excess of the applicable limit of liability of this Policy, all premiums on appeal bonds required in any such defended suit, the cost of bail bonds required of the. Insured in the event of automobile accident or automobile traffic law violation during the Policy period, not to exceed $100 per bail bond, but without any obligation to apply for or furnish any such bonds;
(2) pay all expenses incurred by the Company, all costs taxed against the Insured in any such suit and ail interest accruing after entry of judgment until the Company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the Company’s liability thereon;
(3) pay expenses incurred by the Insured for such immediate medical and surgical relief to others as shall be imperative at the time of the accident;
(4) reimburse the Insured for all reasonable expenses, other than loss of earnings, incurred at the Company’s request;
and the amounts so incurred, except settlements of claims and suits, are payable by the Company in addition to the applicable limit of liability of this Policy.
EXCLUSIONS
This Policy does not apply:
(a) to liability assumed by the Insured under any contract or agreement except under coverages A and C, (1) a contract as defined herein or (2) as respects the insurance which is afforded for the Products Hazard as defined, a warranty of goods or products;
⅝ ⅝ ⅜ ⅜ ⅜: ⅝
(j) under coverage C, to injury or to destruction of * * * (4) any goods, products or containers thereof manufactured, sold, handled or distributed or premises alienated by the named Insured, or work completed by or for the named Insured, out of which the accident arises; * * *.
CONDITIONS
3. Definitions
(g) Products Hazard. The term ‘products hazard’ means;
(1) goods or products manufactured, sold, handled or distributed by the named Insured or by others trading under his name, if the accident occurs after possession of such goods or products has been relinquished to others by the named Insured or by others trading under his name and if such accident occurs away from premises owned, rented or controlled by the named Insured * * *; provided, such goods or products shall be deemed to include any container thereof, other than a vehicle, * * *.
13. Action Against Company. No action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this Policy, nor until the amount of the Insured’s obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company.
Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this Policy to the extent of the insurance afforded by this Policy. Nothing contained in this Policy shall give any person or organization any right to join the Company as a co-defendant in any action against the Insured to determine the Insured’s liability.”

The rules of construction which we are to follow in construing the pertinent provisions of said policy have been summarized by Chief Justice Chadick in Kelley v. American Insurance Company, Tex.Civ. App., 316 S.W.2d 452, 455 (affirmed 160 Tex. 71, 325 S.W.2d 370) as follows:

“In construing the American policy it is necessary to apply certain elementary rules of construction (all rooted in the same basic concept), including these: (1) An insurance policy will be construed strictly against the insurer; (2) when the terms of an insurance contract are capable of two or more constructions and under one a recovery is allowable and under the other it is denied, the construction which permits recovery will be given the policy; (3) forfeitures of insurance coverage is not favored; and (4) if a fair and reasonable construction of an insurance contract will permit, a meaning will be given to its language that effectuates a contract of insurance rather than defeats it. See 24—B Tex.Jur., Insurance, Secs. 26, 27, 28, 29, 30, 31 and 32, pp. 86-109, and authorities there listed * *

In Vaughn v. Atlantic Insurance Company, 397 S.W.2d 874 at page 875 (Ct.Civ.App. 1965, n. r. e.) the court said:

“If the words used in a policy are plain and unambiguous, it is the duty of the court to give effect to such language in accordance to its plain, ordinary meaning, and not make a new contract for the parties by arbitrary judicial construction. 32 Tex.Jur.2d, pars. 54 and 60.”

St. Paul contends that the court erred in holding that the damages sustained by Falco were caused by accident. In Sugarland Industries, Inc. v. Falco, 360 S.W.2d 806, the court said:

“Plaintiffs grounded their action upon a knowingly fraudulent misrepresentation of the germination rate of certain cotton seed which was sold by defendant to them.”

The jury found:

“ * * * that the plaintiffs lost profits in the amounts of $52,241.08 during the year of 1959 as a proximate result of the cotton seed’s not having had a germination rate of 80% * * *.”

Falco did not contend that the loss of profits was caused by accident or that the loss was the result of Sugarland’s negligence. The opinion in the Falco case does not assert that the cotton farmers were claiming damage “because of injury to or destruction of property, including the loss of use thereof, caused by accident.”

Sugarland relies on Orkin Exterminating Company, Inc. v. Massachusetts Bonding and Insurance Company et al., 400 S.W.2d 20 (Tex.Civ.App.1965). In construing the words “caused by accident”, the court said:

“While there is authority to the contrary, the majority rule appears to be that stated in Appleman, Insurance Law and Practice, Vol. 7 A, Sec. 4492, p. 7, as follows: ‘Injuries resulting from ordinary negligence are considered to have been accidental as has been the case even though gross negligence were shown, where there was no actual intent to injure’.”

The court held that an act caused by negligence could be an occurrence caused by accident. We do not consider the Orkin case in point and do not consider it applicable to the facts in this case as there are no pleadings of negligence or accident.

Sugarland says “ * * * an accident did occur in this case when the seeds failed to sprout since it was undesigned and unforeseen that such failure would occur.” Sugarland contends that Hauenstein v. Saint Paul-Mercury Indem. Co., 242 Minn. 354, 65 N.W.2d 122 (1954), is the leading case on what “caused by accident” means. The court there said:

“There is no doubt that the property damage to the building caused by the application of the defective plaster was ‘caused by accident’ within the meaning of the insurance contract, since the damage was a completely unexpected and unintended result. Accident, as a source and cause of damage to property, within the terms of an accident policy, is an unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.”

Hauenstein sold plaster to a contractor who used it on a job. The plaster shrunk and cracked making it necessary to remove it and re-plaster. The contractor sued Hauen-stein for breach of warranty. Hauenstein was covered against liability for accidental property damage by an insurance contract with the defendant insurance company under which contract the insurance company agreed:

“TO PAY any loss by reason of the liability imposed by law or contract upon the Insured for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.”

The insurance company refused to assume any responsibility for the claim and Hauen-stein filed a declaratory judgment suit to fix the insurance company’s liability for the contractor’s claim. The court said:

“The question remains, however, whether the use and application of the plaster by the consumer or his contractor has accidentally brought injury to property— including the loss of use thereof — whereby plaintiffs have incurred liability for damages. Aside from any injury to the plaster itself, was the building injured and damaged by its application ? It is undisputed that after this new type of plaster had been applied it shrunk and cracked to such an extent that it was of no value and had to be removed so that the walls and ceilings could be replastered with a different material. No one can reasonably contend that the application of a useless plaster, which has to be removed before the walls can be properly replas-tered, does not lower the market value of a building. Although the injury to the walls and ceilings can be rectified by removal of the defective plaster, nevertheless, the presence of the defective plaster on the walls and ceilings reduced the value of the building and constituted property damage.”

The Hauenstein case is distinguished from the present case because in Hauenstein there was an accident and damage to property.

As found by the jury in the Falco case, the lost profits were the result of the “cotton seeds not having had a germination rate of 80%.” There were no pleadings nor findings nor evidence of negligence or accident after Falco received the seed. The dead seed failed to sprout resulting in lost profits, but there was no accident, neither was there any damage to property.

Sugarland has failed to establish coverage under its policy and we are compelled to reverse the judgment.

Appellee presents one cross point complaining about the alleged improper rejection of evidence. We fail to find in its brief any reference to the pages of the record where it may be found as required by Rule 418, Texas Rules of Civil Procedure. It also failed to cite any authorities in support of its point. Points that are not briefed are waived. Garcia v. Lacey, 316 S.W.2d 183, CCA 1958 (no writ history).

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


author: WERLEIN, Justice.

text:
    Cleo COOPER, Appellant, v. Leon BOOKER, Appellee.
    No. 14837.
    Court of Civil Appeals of Texas. Houston.
    Sept. 22, 1966.

      James N. Adams, Houston, for appellant.
    John O. Hoyt, Humble, for appellee.
   WERLEIN, Justice.

Appellee, Leon Booker, brought this suit in trespass-to-try title against appellant to recover the title and possession of Lots 2, 3 and 4 of the Frances E. Wilson Subdivision of the A. G. Holland and R. Beach Surveys, according to map thereof in Vol. 572, page 104 of the Deed Records of Harris County, Texas. Appellee claimed title to such land under a general warranty deed dated June 6, 1958 from A. R. White, the common source, in which deed a vendor’s lien and superior title were retained to secure a purchase money note in the sum of $2,200.00, also secured by a deed of trust executed by appellee. Appellant filed a plea of not guilty and in response to appellee’s demand filed an abstract of title including, among other instruments, the deed from A. R. White and wife to Leon Booker dated June 6, 1958, warranty deed from Leon Booker to Artie White, dated April 3, 1960, and deed from A. R. White and wife to appellant, Cleo Cooper, dated May 15, 1961.

The court entered judgment for appellee on the jury verdict, the jury having found that the signature of Leon Booker on the deed to Artie White, dated April 30, 1960 was forged, and that the reasonable rental value of the property in question from December 27, 1960 to date was $131.15.

On the trial of the case, which commenced on November 15, 1965, appellee, Booker, testified that at such time there was past due on the note approximately $1,450.00. He testified that his vendor, White, would not cooperate with him, and that he started to act up from the very first month after he purchased the property. He also testified when asked why he didn’t continue to make payments on the note, that White wouldn’t accept them. He further testified that he had offered to make payments to White and to make payments on the balance unpaid on the note. The following testimony was adduced:

Q Have you ever offered to make any payments to him?
A Sure. That is right.
Q Have you ever offered to make the payments on the balance?
A Sure. I offered to make them. He told me, he says, “I ain’t got nothing to do with it.” He just wouldn’t talk.
Q How long afterwards did you make this offer? Was that after he had already sold it to Cooper ?
A No. I made him that offer just altogether. “Why don’t you let me pay you up ?” He started acting that way from the first payment.

White was present in court and testified as follows:

Q Did you sell any land to Booker ?
A He bought a — he offered to buy some. He never did pay for it.
Q Did you ever ask him to pay for it?
A Me? Yes. But he never did pay for it.

The evidence is undisputed that appellee did make substantial payments on the note, but the note was in default since the last payment thereon was made in 1959, and there was owing on the note approximately $1,450.00 according to appellee’s testimony. Appellee asserts that his failure to make payments on the note was due to White’s refusal to accept the same. No issue, however, was requested by him with respect to such matter and none was submitted to the jury. White testified that he did ask appellee to pay for the land, but that he never did pay for it. Thus, there was a disputed issue of fact. Appellee did not testify that he offered at any time to pay the full amount owing on the note. He did testify that he went to his attorney and told him “that he (White) was not going to accept the money.” When asked, “As far as you are concerned, has your attorney ever, with your authority, made any offer to pay the balance of $1,400.00?” he answered, “No, not exactly.” Appellee made no offer or tender in his pleading to pay the amount due on the note nor did he tender in court any sum whatever, nor did he ask for any equitable relief. There is no evidence that the vendor’s lien and superior title which were reserved in the deed from White to appellee were ever released.

The evidence shows that the consideration recited in the deed from White and his wife to appellant was $10.00 and the assumption by appellant to pay when due all valid debts, liens and encumbrances on and to the property in question. The undisputed testimony of appellant was that he paid in all on the property the sum of $1,495.24, including County and State taxes and an indebtedness owing by White to Central States Life Insurance Company, and that there was no further indebtedness on the property at the time of the trial. The evidence further shows that appellant was in possession of the property, and that appellee was at no time in possession thereof.

Appellee, who brought this suit, was required to establish that he had the superior legal title to the land in question under the common source. This he failed to do. So long as the indebtedness which he owed White evidenced by the note was not paid he could not assert a superior title to that reserved in the deed from White to him. Rooney v. Porch, Tex.Com.App.1922, 239 S.W. 910; Bound v. Dillard, Tex.Civ.App., 140 S.W.2d 520; 58 Tex.Jur.2d, p. 488, Vendor and Purchaser, § 262. The retention of the vendor’s lien and superior title by White enabled him, or his successor in interest, in case of ap-pellee’s default in the payment of the purchase money, not merely to enforce the vendor’s lien, but at his election to rescind the sale and recover the property from the purchaser or anyone holding under him. Roth v. Connor, Tex.Civ.App., 25 S.W.2d 246; Stephens v. Matthews’ Heirs, 69 Tex. 341, 6 S.W. 567; McCamly v. Waterhouse, 80 Tex. 340, 16 S.W. 19; Ridge v. Wood, Tex.Civ.App., 140 S.W.2d 536, error dism., judgment correct.

In Barker v. Temple Lumber Company, 1931, 120 Tex. 244, 37 S.W.2d 721, the court said:

“ * * * plaintiffs in error, who were not in possession of the land, will not be permitted to recover the same in an action of trespass to try title against the original vendor, or any one holding under him, so long as a portion of the purchase money remains unpaid. McPherson v. Johnson, 69 Tex. 484, 6 S.W. 798; Harris v. Catlin, 53 Tex. 8; Jackson v. Palmer, 52 Tex. 427.”

Once the plaintiff has established that the title of both plaintiff and defendant emanates from a common source, the plaintiff must prove that he has the superior title under the common source to recover. Sebastian v. Martin Brown Co., 75 Tex. 291, 12 S.W. 986; Hutchison v. East Texas Oil Company, Tex.Civ.App., 167 S.W.2d 205, error ref., w. o. m. Although the older title is ordinarily the better title, the failure of the one claiming under the older title to pay an outstanding purchase money note secured by a vendor’s lien is fatal to the prior title in that the holder thereof has failed to show the performance of a condition precedent to the perfection of his title. 56 Tex.Jur.2d p. 133, Trespass to Try Title, § 37. As stated in Young v. Fitts, Tex.Com.App.1942, 157 S.W.2d 873: “A vendee, until he pays all the agreed purchase price, cannot dispute his vendor’s title and when default in such payment occurs the vendor, or his transferee, may have his action in trespass to try title; * * * ” See also Bound v. Dillard, supra. Appellee was not in possession of the land, and will not be permitted to recover the same in an action of trespass to try title against the original vendor, White, “or any one holding under him,” so long as a portion of the purchase money remains unpaid. Barker v. Temple Lumber Company, supra.

Judgment reversed and rendered.


author: BELL, Chief Justice.

text:
    G. L. SHANNON, Guardian, Appellant, v. George L. SHANNON, as Next Friend, Etc., Appellee.
    No. 14885.
    Court of Civil Appeals of Texas. Houston.
    Sept. 22, 1966.
    Rehearing Denied Oct. 13, 1966.

      Herman W. Mead, Houston, for appellant.
    Hofheinz & James, Carl Hendrix, Houston, for appellee.
   BELL, Chief Justice.

This is an appeal from a judgment denying appellant a temporary injunction. Appellant’s petition for the injunction was by way of a cross-action asserted against George L. Shannon who had instituted suit as next friend for his mother, Madge Irene Shannon, a person who was mentally incapable of taking care of her affairs, against G. L. Shannon and others.

There is no statement of facts. It is agreed by the pleadings and briefs of both parties that appellant G. L. Shannon, the husband of Madge Irene Shannon, has been appointed by the Probate Court of Harris County as guardian of her estate. There is nothing, however, to show whether the guardianship encompassed any of the ward’s share of the community estate or merely her separate property.

In the Second Amended Original Petition George L. Shannon as next friend for Madge Irene Shannon an incompetent sued G. L. Shannon, Cecile Ruby, Howell Evans, a real estate agent, and two banks. The appellant Shannon is not named as defendant in his capacity as guardian. However, one paragraph reflects that appellant has been appointed guardian by the Probate Court of Harris County, but it is asserted that he, as guardian, because of the nature of this proceeding, is disqualified from representing her. The substantive allegations assert that there is community property of G. L. Shannon and his wife in possession of G. L. Shannon that G. L. Shannon is wrongfully dissipating. It is alleged to consist of specified real estate, bank accounts and personal property. It is asserted it is unnecessary to dispose of any of the property. Too, it is alleged appellant and Cecile Ruby have in their possession certain separate property of Mrs. Shannon.

While the above is a very brief statement, it suffices to show that the main suit was one by a next friend for an incompetent, who has a duly appointed guardian who has jurisdiction as to the incompetent’s separate property, the next friend seeking for the incompetent to protect her share of the community estate, which is not shown to be the subject of the guardianship, from being wrongfully dissipated by the husband.

The prayer of the petition is in substance that G. L. Shannon and Cecile Ruby be required to file an inventory of the community property and Mrs. Shannon’s separate property in their possession and that they be enjoined from disposing of any such property or encumbering it. Too, an injunction is sought to prevent withdrawal of funds from any bank accounts. Further a determination is sought as to the rights of Mrs. Shannon in and to her community and separate funds in the possession of the defendants. Also support for Mrs. Shannon is sought from G. L. Shannon, such support to be made a charge against the community property.

We are not certain, but as we interpret the petition it is not a suit against G. L. Shannon in his capacity as guardian but is against him in his individual capacity and seeks to affect, at least as to community property, property not affected by the guardianship.

To this petition G. L. Shannon first filed a plea to the jurisdiction on the grounds that he was the legally appointed guardian and the matters complained of were within the exclusive jurisdiction of the Probate Court. This plea to the jurisdiction was overruled. G. L. Shannon, subject to his plea to the jurisdiction, filed his cross-action, suing both in his individual and fiduciary capacities. In it he questioned any right of George L. Shannon to maintain the suit asserting he had no jus-ticiable interest and had no authority to represent Mrs. Shannon. He alleges he is the duly appointed guardian for Mrs. Shannon. He alleges the effect of George L. Shannon’s suit is to prevent him from meeting his obligations to care for Mrs. Shannon ; and that making the banks parties to the suit has deprived him of the use of his own funds all of which is community property of himself and Mrs. Shannon. Then it is alleged that all cash on hand and in the bank accounts is community property and he is entitled to use at least his one-half thereof. Then it is alleged that to take care of his wife it became necessary to sell certain specified real estate and that the Probate Court had ordered and confirmed the sale. There is no allegation from which we can draw the inference that the community estate was placed under the guardianship. Also it was alleged that George L. Shannon had physically mistreated appellant and appellant was in fear of him. Prayer was in substance that George L. Shannon be enjoined temporarily and ultimately permanently from interfering with appellant’s handling of the bank accounts, appellant’s one-half of the community, from interfering with appellant’s care of Mrs. Shannon, and from interfering with the sale of the real estate which had been authorized by the Probate Court.

From the action of the trial court in denying the temporary injunction appellant gave notice of appeal both in his individual and fiduciary capacities.

Appellant has filed no bond, contending such is not required by reason of the provisions of Article 2276, Vernon’s Ann.Tex. Civ.St. Appellee has filed a motion to dismiss the appeal because there is no bond, taking the position that appellant appeals in his individual capacity because he sued in his cross-action individually and as guardian but that he is disqualified in the suit filed and in the cross-action from representing the ward because their interests in the matters involved are antagonistic. Appellee says the matters involved personally concern appellant.

Appellant in his cross-action sued for an injunction both in his individual capacity and in his capacity as guardian. He gave notice of appeal from the judgment denying the injunction in both capacities. In so far as he complains in his individual capacity his appeal is dismissed because he filed no appeal bond. In so far as he appeals in his capacity as guardian he was not required by Article 2276, V.A. T.S. to file an appeal bond and the motion to dismiss this phase of the appeal is refused. Hickman v. Hickman, 228 S.W.2d 565 (Tex.Civ.App.), aff’d 149 Tex. 439, 234 S.W.2d 410.

In brief and argument here the only point of error asserts the District Court had no jurisdiction but since G. L. Shannon had been appointed guardian of the estate of Mrs. Shannon, an incompetent, the Probate Court has exclusive jurisdiction. Under such point the argument in the brief and on oral presentation to this Court shows that appellant is in fact attacking the action of the trial court in overruling his plea to the jurisdiction over the cause of action set out in George L. Shannon’s Second Amended Original Petition. An order overruling a plea to the jurisdiction is interlocutory and therefore not appealable, there being no statute or rule authorizing an appeal. Carpenter Body Works, Inc. v. McCulley et al., 389 S.W.2d 331 (Tex.Civ.App.), writ ref.

There is no point of error that the trial court erred in denying the temporary injunction. Even if there were we could not reverse because there is no statement of facts. The judgment recites evidence was heard. We must presume therefore that there was evidence supporting the judgment denying the injunction prayed for by appellant in his cross-action.

In so far as appellant appeals in his individual capacity his appeal is dismissed.

In so far as the judgment is against him in his representative capacity denying the temporary injunction it is affirmed.


author: COLLINGS, Justice.

text:
    B. K. EUBANK, Appellant, v. TWIN MOUNTAIN OIL CORPORATION, Appellee.
    No. 4096.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 23, 1966.
    Rehearing Denied Oct. 14, 1966.

      John O. Harris, Coleman, for appellant.
    Jennings, Montgomery & Dies (Elton M. Montgomery) Graham, for appellee.
   COLLINGS, Justice.

Twin Mountain Oil Corporation brought suit against B. K. Eubank to remove cloud on its title to a mineral leasehold estate covering a 50 acre tract of land and for equitable relief. The case was tried before the court without a jury and judgment rendered quieting plaintiff’s title, and decreeing that Eubank had the right to remove all of his personal property and equipment except the casing in the three wells located thereon. The court further found that $1800.00 would compensate Eubank for the recoverable casing that he was not permitted to remove and decreed that, upon depositing such sum by plaintiff into the Registry of the court, title to the casing would vest in plaintiff. The court decreed that Twin Mountain Oil Corporation be responsible for plugging the wells. Eubank has appealed.

Appellant presents points contending that since the oil field casing is a trade fixture and the right to remove same was reserved by him it was error to prohibit and enjoin him from pulling and removing such casing from the wells; that the court erred in holding that to allow appellant to pull his casing from the wells would constitute a waste of natural resources which appellee had the right to enjoin; erred in holding that title to the casing would, on depositing by appellee of $1800.00 into the Registry of the Court, divest out of appellant and into appellee; erred in not allowing appellant the cost of drilling the three wells, together with the value of the 5250 feet of casing therein, without deducting the estimated cost of pulling, plugging and non-recoverable casing, and erred in not requiring ap-pellee to deposit sufficient security to indemnify and protect appellant from liability in plugging the wells.

Appellant Eubank at one time held producing leases on the 50 acre tract involved. He became “operator”, or in charge of the management of the lease, in March 1958. He was the owner of the 5250 feet of casing in the three wells. These wells had produced oil but none has been produced since 1959. No oil has been sold or marketed off the premises by Eubank since July 1958, when his pipeline connection was severed by an order of the Railroad Commission. Apparently, Eubank continued to produce oil from the lease after the pipeline severance but, in January 1959, the electrical hookup to the pumping units was disconnected. He, nevertheless, continued to report some monthly production, although no sales, through September 1959. 'The record does not show that the wells produced ®oil in paying quantities.

In December 1964, appellee, Twin Mountain Oil Corporation, acquired its leases on the premises. Prior to that time some of the mineral owners had repudiated appellant’s lease and advised him to remove his equipment from the premises. In November 1965, Eubank wrote the Railroad Commission to protest appellee’s designation as the operator of the premises entitled to possession thereof. This suit was instituted to determine that matter. Appellant still claimed title to the leasehold at the time of the trial.

None of Eubank’s equipment had been removed from the lease in December 1964 when appellee acquired its leases. There was testimony by appellee’s Vice President and Production Superintendent, H. T. Hunnewell, to the effect that at the time of the trial the tubing and rods had been removed from the three wells but that the casing remained and was cemented at intervals of from 1650 to 1750 feet beneath the surface; that the wells could be made to produce again by using the casing as in the wells and that such procedure would be the most efficient way of getting back on production; that pulling of the casing could not be accomplished without exploding the casing in the bottom of the hole away from the cement, and that if the casing should be so removed the well bores in the three wells would be destroyed with resulting waste of natural resources. The witness stated that appellee intended to and would develop the lease by using the casing in the three wells as now situated.

It is undisputed that Eubank owned the casing when production of the wells ceased in 1959. The leases under which appellant operated expressly gave him the right to remove such casing. As found by the court the leases under which appellant operated are no longer in effect, but terminated in 1959 because of cessation of production of oil and/or gas which was necessary to perpetuate said leases under the terms and provisions thereof. Appellant thereby lost such leases. He did not at that time remove the casing from the wells as he had the right to do. More than five years later, in December of 1964, when appellee acquired its leases on the land the casing had still not been removed. During all of this time there had been no production. It has been held where a lessee allows five years to pass before making claim to casing which he left in an abandoned well that he has lost his right of removal. This judgment, however, is based upon the theory that appellant at the time of the trial was still the owner of the casing and had the right to remove it, except for the equitable considerations involved.

The court found that, based upon geological and engineering information, the wells if re-entered and re-worked were reasonably capable of producing and probably would produce oil in paying quantities, and that under such circumstances the removal of the casing would constitute a waste of natural resources in that it would destroy the well bores and thereby reduce the net oil recoverable from the premises. The court further found that appellant would suffer loss by reason of being denied the right to remove the casing, but that the casing did not have unique characteristics which would make it more valuable than casing of similar size and weight available for purchase on the market. It is held that the owner of casing in an oil well does not have the right to destroy a producing well by taking away the casing. 42 Tex.Jur.2d page 650. Wisconsin-Texas Oil Co. v. Clutter, Tex.Civ.App., 258 S.W. 265; Southwestern Oil & Gas Co. v. Kimball Oil & Development Co., Tex.Civ.App., 224 S.W. 1111. In our opinion the court did not err in denying appellant the right to remove the casing from the three wells which are reasonably capable of producing and probably will produce oil in paying quantities. Woodson Oil Company v. Pruett, Tex.Civ.App., 298 S.W.2d 856 (1957, ref. n. r. e.) and cases and authorities cited therein.

Appellant urges that the Woodson case and other like cases cited are not controlling because such suits were between lessors and successors in interest and a lessee or its successor in title. We cannot agree with this contention. Appellee, Twin Mountain Oil Corporation, by virtue of the leases under which it holds, is a successor in title to the owners of the mineral interest. It is thereby entitled to possession and control of the premises for the purpose of mineral development including the right to the use of the abandoned oil wells.

The court correctly held that under the facts and circumstances in evidence appellant, even though the owner of the casing involved, was in equity not entitled to remove it from the wells. The owner of casing under such circumstances is entitled to be compensated for the reasonable value thereof. 4 Williams Oil and Gas Law page 213, et seq. The court found upon sufficient evidence that $1800.00 would reasonably compensate Eubank for the removable casing. The judgment for Eubank was based upon this theory and measure of damages. We overrule appellant’s points urging, in effect, that such action of the court was error.

The judgment absolved appellant from any liability in connection with the plugging and abandoning of the three wells and decreed that appellee Twin Mountain Oil Corporation should hereafter be solely responsible and liable for the plugging. We overrule appellant’s point urging that the court erred in not requiring appellee to deposit with the Clerk sufficient security to indemnify appellant from liability in plugging the wells.

Appellant’s contention that the court erred in not allowing him to recover the cost of drilling the three wells in the approximate amount of $3,400.00 each is likewise overruled. His claim of a right to recover on the theory of valuable improvements made in good faith as contemplated by Vernon’s Ann.Tex.Civ.St. Art. 7393 is not tenable. The record does not show that the wells were drilled by appellant under the mistaken belief that he was the owner. Appellant was the owner of oil and gas leases on the land. The wells were drilled in accordance with such leases and oil was produced from the wells. When appellant ceased to produce oil from the premises his leases terminated. The wells are a part of the real estate and upon the termination of the leases the wells became the property of the lessors and appellant had no further title thereto and has no right to recover the cost of drilling such wells.

Appellant’s points are overruled.

The judgment is affirmed.


author: MURRAY, Chief Justice.

text:
    PRODUCTION DRILLING COMPANY, Appellant, v. KIRKWOOD & MORGAN, INC., Appellee.
    No. 14528.
    Court of Civil Appeals of Texas. San Antonio.
    July 13, 1966.

      Jack Leon, Mayo J. Galindo, San Antonio, for appellant.
    Groce, Hebdon, Fahey & Smith, Roy E. Johnston, San Antonio, for appellee.
   MURRAY, Chief Justice.

This cause was filed in this Court on May 27, 1966, and has not as yet been set for submission.

On June 13, 1966, appellant filed a motion asking that his appeal be dismissed and that the order appointing a receiver be vacated for want of jurisdiction.

The only way we could determine whether the order appointing a receiver should be vacated for want of jurisdiction, would be upon a full hearing of the case upon its merits.

Inasmuch as the motion to dismiss was filed before the case had been set for submission and before appellant had filed its brief, we decided that appellant did not desire a hearing on the merits and wanted its appeal dismissed, a right which an appellant ordinarily has a legal right to exercise at any time before such appeal has been heard and determined.

Appellant, on June 29, 1966, has filed a motion for a rehearing on its motion to dismiss appeal, which he calls:

“APPELLANT’S MOTION FOR REHEARING, FOR RE-INSTATEMENT OF APPEAL, FOR SUBSEQUENT DISMISSAL OF APPEAL WITH VACATION OF RECEIVERSHIP, OR IN THE ALTERNATIVE TO RE-INSTATE THE APPEAL FOR CONSIDERATION ON THE MERITS AND FOR EXTENSION OF TIME TO FILE APPELLANT’S BRIEF.”

In this motion appellant asserts that “The action of this Court in summarily dismissing Appellant’s appeal without further relief is in direct conflict with its previous decisions in Low Cost Homes Building Company et al. v. Banks [Tex.Civ.App.], 228 S. W.2d 535, and Greenland v. Prior [Pryor], 360 S.W.2d 423.” We have examined these two cases and find that in the Low Cost Homes Bldg. Co., case it was made known to the satisfaction of our Court that the trial court had appointed a receiver without notice, and that the trial court had vacated the receivership, while here the order appointing the receiver recites that it was done with notice to appellant, and that the appointment would not be effective until the filing and approval of a bond in the sum of $1500. The record further shows that after a motion and hearing the trial court refused to vacate the order appointing the receiver.» The Greenland case was a hearing upon the merits of the case, and did not involve in any way a motion to dismiss appeal.

It now appears that appellant did not wish to have its appeal dismissed and desires a hearing of this cause upon its merits. The motion for a rehearing will be granted, our order granting the motion to dismiss appeal will be set aside, and this cause restored to the docket for submission and a hearing upon its merits. The motion to dismiss appeal is overruled.

Appellant also asks that it be given an additional fifteen days from the setting aside of the order of dismissal within which to file its brief, which is hereby granted.


text:
    M & G FEED COMPANY, Inc., et al., Appellants, v. Edna WINDHAM et al., Appellees.
    No. 4070.
    Court of Civil Appeals of Texas. Eastland.
    June 24, 1966.
    Rehearing Denied July 29, 1966.
    Bean, Manning & Coley (Frank M. Bean), Derral K. Sperry, Houston, for appellant.
    Vern J. Thrower and Sherwood Gaines, Houston, for appellee.
   WALTER, Justice.

Mrs. Edna Windham, a widow, individually and as next friend for her minor daughter, Brenda, filed suit against M & G Feed Company and Frank C. Grünewald for the wrongful death of her husband and father of the minor. She alleged that on June 3, 1964, Prentice A. Windham was traveling horseback in an easterly direction upon the esplanade bordering the north side of the eastbound service road in the vicinity of 2300 North Loop in Houston; that Frank C. Grünewald, who was working for M & G Feed Company, was driving a truck in the same direction; that Grünewald negligently operated the truck in such a manner that the truck was run “against and into the horse on which the said Prentice A. Windham was riding thereby causing him to become disengaged from his saddle and thrown under the vehicle and greatly injured. That as a result of said injuries, Prentice A. Windham died on the 3rd day of June, 1964.” The plaintiffs pleaded res ipsa loquitur and, in the alternative, specific acts of negligence. They pleaded that the defendants failed to comply with Article 801(1) of the Texas Penal Code. They also pleaded that the defendants were negligent:

“(1) In failing to keep a proper lookout.
(2) In failing to apply the brakes of said vehicle in time to have avoided the accident.
(3) In failing to give any warning of Defendant’s approach.
(4) In failing to use the caution that an ordinary and prudent person would have used when passing a horse back rider.
(5) That Defendant observed the peril to which his moving truck exposed the horse back rider, yet failed to take any action to prevent his vehicle or a part thereof from violently striking the. horse back rider or his horse or both.
(6) That Defendant was negligent in accelerating to a speed that was unreasonable under the circumstances then amd there existing.
(7) That Defendant was negligent in failing to change to a different lane of traffic away from the espla-nad.e.”

The defendants filed pleas of privilege to be sued in Colorado County, Texas. In a non-jury trial the court overruled the pleas of privilege. The defendants have appealed. They contend that the court erred in overruling their pleas because there is no evidence and insufficient evidence of negligence, scope of employment and proximate cause.

The- parties stipulated for the purpose of the hearing on the pleas of privilege the following facts:

“1. Plaintiffs are beneficiaries of the deceased, Prentice A. Windham, and by reason of his death on June 3, 1964, made the basis of this law suit that plaintiffs Edna Windham and Brenda Windham have suffered damages.
2. It is further agreed and stipulated by attorney for plaintiffs and defendants that at the time and date made the basis of this law suit that Frank Grünewald was acting in the course and scope of his employment for M & G Feed Company, Inc.”

Frank C. Grünewald testified substantially as follows: On June 3, 1964,1 was working for M & G Feed Company driving a truck and was involved in an accident in the city limits of Houston on the North Loop. Allen Schoeneberg was riding with me. When I arrived at T. C. Jester Boulevard, I stopped for a red light. I then proceeded on and when I arrived at the bridge, I noticed a horse “coming from my left going right — to my right and when I got to the intersection this man was riding — this horse — he pulled back off the street where he was riding I don’t know what they call it in between the escalator — he pulled off and around the light pole and I continued on and at that time it seemed the man had control of his horse and when I got up to the man I looked out my side window and I noticed the horse became upset and he was having trouble with her and at that time I looked and saw the man under my wheels.” At that time I was going between twenty-five and thirty miles per hour.

Lloyd Garring, a Houston policeman, investigated the accident and testified substantially as follows: I talked to Mr. Grüne-wald at the scene of the accident and he told me “that the horse was on the pavement portion of T. C. Jester that was closed to traffic — at that time when he first saw the rider and the horse — then he saw him on the grass portion just next to the intersection — ”. I have seen the horse that was ridden by Mr. Windham since the accident and the horse showed no signs of injury. The truck showed no signs of striking either the horse or the rider, but “we found damage on the saddle that I believe came from the trailer”.

Earl Schoeneberg testified substantially as follows: I am thirteen years of age. I was a passenger in the truck driven by Mr. Grünewald at the time of the accident. We were traveling northeast as we approached the intersection of T. C. Jester on the North Loop. We were right even with the horse when he started acting up. I saw the horse acting up through the windshield.

We are compelled to hold that the appel-lees failed to discharge their burden of establishing by a preponderance of the evidence that appellants were guilty of any act or omission of negligence which was a proximate cause of the fatal accident.

The judgment is reversed and the cause of action is ordered transferred to Colorado County.

ON MOTION FOR REHEARING

We have again considered the record and considered only the evidence most favorable to the appellees. We conclude that there -is no evidence that appellants were guilty of any act or omission of negligence which was a proximate cause of the fatal accident.

The motion for rehearing is overruled.


author: BARROW, Justice.

text:
    The MANHATTAN FIRE & MARINE INSURANCE COMPANY, Appellant, v. Ignacio T. ZUNIGA, Appellee.
    No. 14510.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 5, 1966.
    Vickers, Vickers & Garner, Lubbock, for appellant.
    Warren Burnett, Robert D. Pue, Odessa, for appellee.
   On Joint Motion for Dismissal.

BARROW, Justice.

This is a workman’s compensation case which was submitted to this Court and oral argument heard in El Paso on September 12, 1966. The parties to the appeal have filed in this Court their joint motion wherein they state that they have reached an agreement for a settlement of all controversies now involved in this litig'ation.

In accordance with the request of the parties, the judgment of the trial court is reversed and the cause is remanded to the trial court for entry of an agreed j udgment according to the terms of the settlement. Art. 8307, § 12, Vernon’s Ann.Tex. St.; Ruiz v. Travelers Insurance Co., Tex.Civ.App., 405 S.W.2d 425; 63 Tex.Jur..2d, Workmen’s Compensation, § 216. The costs of this appeal are taxed to appellant.

The motion is granted and this cause is reversed and remanded.


author: CHAPMAN, Justice.

text:
    Vashti Hoover GARVER and husband, T. L. Garver, v. FIRST NATIONAL BANK OF CANADIAN, Texas.
    No. 7611.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 6, 1966.
    Rehearing Denied Oct. 10, 1966.
    Crow & Crow, Canadian, J. D. Crow, Canadian, of counsel, for appellants.
    William J. Jackson, Canadian, Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, J. Hadley Edgar, Jr., Amarillo, of counsel, for appellee.
   ON MOTION FOR REHEARING

CHAPMAN, Justice.

This opinion is in lieu of our opinion announced on May 9, 1966. Mrs. Vashti Hoover Garver initiated this action as plaintiff against the First National Bank of Canadian, Texas, and various oil companies in the nature of a suit upon a sworn account under Rule 185 for her one-fourth of the proceeds from the delay rentals on oil and gas leases which had been forwarded by various oil companies to the bank as depository for the benefit of Mrs. Garver, her sister, Louise Hoover, and her two brothers, Dan B. Hoover and Ed Hoover, Jr., and to cancel the oil and gas leases to the oil companies on the Hoover lands. The Sinclair delay rentals were payable to the four parties just mentioned (including their respective spouses) jointly; Union oil delay rentals were payable to them “as a group;” others were paid to the “credit of the parties shown above;” “persons named;” or “all the parties.” The original petition was filed by Mrs. Garver alone. Following the answers of the oil companies a non-suit was taken as to them and a first amended original petition was filed which eliminated them and included T. L. Gar-ver, husband of Mrs. Vashti Hoover Gar-ver, as plaintiff with his wife against the bank alone.

After oral depositions were taken by appellants of H. S. Wilbur, Sr., Chairman of the Board of Directors of the Bank, and Harry Wilbur, Jr., President of the Bank, and after appellee had taken oral depositions of all the Hoover heirs except Louise Hoover, motions for summary judgment were filed both by appellants and appellees. In support of such motion for appellee both of the bank officers made affidavits. J. D. Crow, attorney for appellants, made an affidavit in support of his clients’ motion for summary judgment. Additionally, a supplemental petition and an answer to defendants’ motion for summary judgment were filed by appellants. Following the filing of all such pleadings, depositions, motions for summary judgments, and affidavits in support thereof, the trial court rendered the following judgment:

“On this 1st day of October, 1965, came on to be heard the motions for summary judgment filed on behalf of plaintiffs and defendant, and the Court is of the opinion that both motions for summary judgment should be denied; and,
“It further appearing to the Court, upon its own motion, after hearing the argument of counsel and considering the pleadings, depositions and admissions on file, together with the affidavits, that plaintiffs have no valid cause of action against defendant, and that plaintiffs’ said cause of action should be dismissed;
“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that plaintiffs’ lawsuit be and is hereby dismissed; that plaintiffs take nothing of defendant and that defendant go hence its costs without day.
“MADE, RENDERED AND ENTERED this 18th day of October, 1965, to which action plaintiffs excepted and gave notice of appeal to the Court of Civil Appeals for the 7th Supreme Judicial District sitting at Amarillo, Texas.”

From such order and judgment of dismissal appeal is perfected to this court upon a number of points, the first of which asserts error of the trial court “ * * * in dismissing plaintiffs’ suit upon its own motion without providing plaintiffs an opportunity to amend their pleadings and supply omissions thereof (if any) and without affording the litigants any reason for its action, all of which was an abuse. of the allowable discretion granted by the rules.”

H. E. Hoover died in 1945 and his wife, Mrs. Bragg Hoover, in 1952, each leaving their sons just named as independent executors of their respective estates without bond. The only other children they left surviving them were the two daughters named above.

The principal question to be answered is: Did the trial court have legal authority to dismiss appellant’s alleged cause?

We hold the trial court was without legal authority to dismiss the case upon the record here.

There is no showing of lack of jurisdiction within the purview of Article 5, Section 8, Constitution of Texas, Vernon’s Ann.St. for suits of this nature; no right of dismissal shown for lack of prosecution under Rule 330, Section (d) Tex.Rules of Civil Procedure; no showing of ruling for costs and failure to comply under Rule 143, Tex.Rules Civ.Proc., nor have we been cited to any other rule or statute authorizing the court to dismiss upon its own motion.

Appellants pleaded that prior to August 26, 1964, there had been paid by numerous oil companies to bank as depository the sum of $130,300.53, with directions to deposit one-fourth; i. e., the sum of $32,-575.13, to appellant’s credit; that the sums paid created to them debts and obligations against Bank which is liquidated and unpaid; that they did not learn such monies were not so placed to their credit until on or about the 27th of August, 1964; that due demand has been made; and that no fact or circumstance excuses the action of ap-pellee from making or being compelled to make payment of said amount and appellants have not condoned, or in any manner agreed that Bank could have done otherwise than make payment of such amount to them. As heretofore stated such pleadings were filed under Rule 185 and sworn to by appellants.

Bank’s answer as applicable to such pleadings was: “Defendants specially except to plaintiff’s first amended original petition as a whole because same does not allege a cause of action against it.” It then pleaded numerous affirmative defenses.

The record, except as shown in the judgment itself, does not reveal the bases upon which the case was dismissed, but even if it should be said that a proper special exception was directed to the pleading, and sustained by the court, the case should not have been dismissed without an opportunity given appellants to amend their petition. Harold v. Houston Yacht Club, Tex.Civ.App., 380 S.W.2d 184 (N.W.H.). The following language in the case just cited appears appropriate for our case:

“Assuming, but without determining that appellant has not pleaded a good cause of action, it would be impossible for any court, without proof or evidence, to say that appellant could not possibly amend his petition so that it would state a good cause of action. The law is well established in Texas that the right to amend is mandatory and that before a pleading can be dismissed for want of form or other defectiveness, the party affected must have an opportunity to amend. If he declines to amend, the pleading if insufficient may then be dismissed.”

It has been held that: “Pleadings alone constitute the record to be considered in determining the propriety of an order of dismissal for failure to amend pleadings.” Binz v. Harwood, Tex.Civ.App., 297 S.W.2d 210 (writ ref.). But the record here shows no refusal to amend pleadings, no opportunity to do so, nor even that the case was dismissed because of the failure alone of the pleadings to allege a cause of action. To the contrary, the judgment itself shows that before dismissal the court considered also the “ * * * depositions and admissions on file, together with the affidavits.”

Appellee contends the judgment actually was a summary judgment and it is entitled to cross-appeal from the denial of its motion for summary judgment. It then cites Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 and Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, as authorities for such contention and alleges numerous cross-assignments as defenses to appellants’ alleged cause of action.

Since the original opinion was announced herein the Supreme Court of Texas has announced Ackermann v. Vordenbaum, Tex., 403 S.W.2d 362 in which that court has restricted those cases to the factual situations there involved, holding:

“Undoubtedly, the rule of practice adopted by Tobin v. Garcia is an exception to the general rule that an order overruling a motion for summary judgment is not subject to review upon appeal.
* * * * * *
“The safer rule is one restricting the Tobin-Garcia doctrine to its factual situation and that disclosed in Gulf, Colorado & Santa Fe Ry. Co. v. McBride, that is, to cases in which motions for summary judgment have been filed by all of the real parties at interest and the appeal is prosecuted from a judgment granting one or more of them.”

Here both motions for summary judgment were overruled and the case dismissed. In Ackermann v. Vordenbaum, supra, just as in our case, the appeal was from an order of dismissal. In each case that order was appealed from instead of an order granting a motion for summary judgment.

Accordingly, the case is reversed and remanded. The court will reinstate the case on the trial court’s docket as it was before the court upon its own motion dismissed the case.


author: WOODSON OLDHAM, Special Judge.

text:
    NEWSPAPER PUBLISHERS, INC., a Corporation, Plaintiff-Respondent, v. ST. CHARLES JOURNAL, INC., a Corporation, Defendant-Appellant.
    No. 31921.
    St. Louis Court of Appeals. Missouri.
    July 19, 1966.
    Rehearing Denied Sept. 13, 1966.
    Husch, Eppenberger, Donohue, Elson & Cornfeld, Martin Schiff, Jr., Carroll J. Donohue, Wilbur B. Jones, St. Louis, for defendant-appellant.
    Barksdale, Abbott & Wallace, Victor A. Wallace, St. Louis, for plaintiff-respondent.
   WOODSON OLDHAM, Special Judge.

Plaintiff, an Illinois Corporation, engaged in the newspaper printing business, brought suit to recover for printing the St. Charles Journal for defendant, a Missouri Corporation engaged in publishing several newspapers, under a contract for such services. The defendant counterclaimed against plaintiff for damages sustained as a result of the alleged anticipatory breach of the contract for printing the St. Charles Journal because of plaintiff’s failure to continue performance under the terms of the written contract. A jury was waived and the trial court found for plaintiff on its petition and entered judgment for plaintiff in the sum of $3,497.14 (plus interest) and costs and further found in favor of plaintiff and against defendant on defendant’s counterclaim, holding that plaintiff was not guilty of an anticipatory breach of contract and that defendant voluntarily took its printing from plaintiff by mutual agreement. The amounts involved were less than $15,000.00 and this court has jurisdiction.

The written contract in issue was dated March 31, 1961, and provided that plaintiff was to print the St. Cha'rles Journal newspaper published by defendant on a weekly basis at specified prices per page, with plaintiff to furnish all paper, ink, machinery and other materials, supplies and services. The contract was to continue in effect unless terminated by defendant giving six months written notice or by plaintiff giving eighteen months notice of intention to terminate. The contract was put into effect in July, 1961 when plaintiff commenced printing the St. Charles Tournal, defendant’s newspaper, and continued through the week of July 19, 1962, when defendant withdrew its printing from plaintiff, under circumstances hereinafter discussed, and obtained printing services elsewhere at higher prices. Plaintiff sued for defendant’s failure to pay for printing of the last two issues of the St. Charles Journal and defendant counterclaimed for the amount of the alleged higher prices paid The St. Louis Mirror, owned by defendant and another company, for printing said paper during the period said contract was alleged to be in effect after the alleged anticipatory breach of the contract by plaintiff.

At the trial below and upon this appeal two main issues were presented to the court: (1) That plaintiff was a foreign corporation doing business within this state and was not entitled to maintain its action against defendant because it had failed to qualify to do business in this state under the provisions of Chapter 351, R.S.Mo. 1959, V.A.M.S., before bringing suit, although plaintiff did so qualify by registering with the Secretary of State during the pendency of the suit; (2) That plaintiff’s conduct constituted an anticipatory breach of contract which justified the defendant in obtaining new printing services for its newspaper.

The evidence presented by defendant concerning defendant’s claim that plaintiff was illegally doing business in this state without qualifying to do so under Chapter 351, R.S.Mo. 1959, V.A.M.S., came from interrogatories directed to plaintiff by defendant. These interrogatories dealt generally with plaintiff’s methods of doing business with customers other than defendant in the St. Louis area and revealed that plaintiff “either upon occasion or as a matter of routine” picked up and delivered manuscript, proof and copy from and to Missouri customers, solicited business by advertisement and otherwise, and owned or rented trucks operated by drivers employed by plaintiff for delivery purposes. Plaintiff’s evidence (uncontradicted by defendant) was to the effect that the parties adhered to and carried out the terms of the contract at issue in this case which provided that all services performed by plaintiff for defendant were to be performed at plaintiff’s plant in Illinois. In fact the only evidence as to the services performed under the terms of the instant contract was to the effect that such services were performed by plaintiff at its plant in Illinois and were thus interstate in character.

The burden was upon the defendant to establish that plaintiff was unlawfully doing business within the state and was not entitled to maintain its action upon this contract at issue. Superior Concrete Accessories v. Kemper, 284 S.W.2d 482 (Mo.Sup.1955). Proof of acts constituting the doing of business within the state as to other customers without a license does not prevent the plaintiff from performing another perfectly valid transaction or series of transactions in interstate commerce which is not subject to state regulation and would not prevent the plaintiff from bringing an action as a result of said interstate transactions. Superior Concrete Accessories, Inc. v. Kemper, supra, l. c. 487; British American Portland Cement Co. v. Citizens Gas, 255 Mo. 1, 164 S.W. 468 (1914); Gutta Percha Manufacturing and Rubber Co. v. Lehrack, 201 Mo.App. 556, 214 S.W. 285 (1919).

The evidence conclusively showed that the performance of the conditions of the contract in issue were done in interstate commerce and the finding of the trial court that plaintiff was, as a matter of law, entitled to maintain this action is affirmed.

Having come to this conclusion under the facts and law of this case we deem it unnecessary to consider or pass upon the effect of plaintiff’s registration with the Secretary of State and qualification to do business within the State under Chapter 351, R.S.Mo.1959, V.A.M.S., during the pendency of the suit in spite of defendant’s claim that plaintiff, by so qualifying, tacitly admitted doing business in the State unlawfully since such a tacit admission, if any, would not change the facts and law here involved.

We come now to defendant’s counterclaim for damages as a result of the alleged anticipatory breach of the contract for printing services and in connection therewith must consider the evidence more fully than set out above. As stated, the contract was entered into on March 31, 1961, and went into effect in July, 1961. Early in 1962 (perhaps as early as February) plaintiff began having financial difficulties and began requesting relief from the terms of the contract in the form of per page price increases for printing the St. Charles Journal. These conversations culminated in a meeting of the officers of the two parties on April 2 or April 7 (the date being disputed but immaterial) at which plaintiff delivered to defendant a notice of its intention to terminate the contract, (Exhibit D3), pursuant to the terms thereof and again requesting an increase of the prices paid pending termination of the contract. The notice was prepared at this meeting at the suggestion of defendant’s officers and by them in their office. The parties all testified that defendant agreed to remove their printing from plaintiff’s plant but disagree upon the conditions for so doing.

Plaintiff claims defendant agreed to remove their printing from plaintiff’s plant as soon as possible, giving three weeks notice of withdrawal, and in the interim to pay an increase of $4.00 per page for printing-the Journal. Defendant claims that they agreed to remove their printing from plaintiff’s plant but refused to pay the increased, price per page except upon conditions to> be furnished to plaintiff at a later date. A few days after .the above mentioned meeting the defendant delivered to plaintiff an undated letter setting out conditions for the payment of the increased price. By letter dated ftfay 10, 1962, plaintiff rejected the conditions and insisted upon the increased price per page claimed to have been agreed to at the above mentioned meeting.

It appears from the testimony that there were other difficulties between the parties contributing to plaintiff’s financial difficulties. Plaintiff claimed late delivery of news copy, furnishing of extra proofs and late changes of ad copy after proofs were furnished, caused overtime and increased the cost of printing defendant’s paper to the point where plaintiff was losing money and induced plaintiff to ask for termination of the contract and extra prices per page pending termination. From the testimony of defendant’s officers it appeared that defendant furnished copy as it saw fit, sometimes ahead of schedule, sometimes on schedule and sometimes late, although one of defendant’s witnesses thought “it averaged out being on time.”

The defendant’s officers testified that in January or February 1962 they became interested in cold type printing, then a relatively new process, as being more suited to their needs and allowing more versatility and providing a more attractive publication and began acquisition and installation of machinery for that type printing in the St. Louis Mirror plant. In February, 1962 plaintiff withdrew the printing of the St. Louis Mirror (not covered by the contract involved here) from plaintiff’s plant and commenced printing in the Mirror plant by the new process.

From the time plaintiff first disclosed it was having financial difficulties in February, 1962, until the final withdrawal of the printing of the Journal from plaintiff after the July 19th, 1962 issue (following three weeks notice as agreed by the parties at the above mentioned meeting) defendant continued to acquire and equip the Mirror plant (owned by defendant) with the cold type printing machinery, although not of a capacity to completely handle the Journal printing. When the printing of the Journal was withdrawn from plaintiff’s plant, defendant had sufficient cold type equipment in the Mirror plant so that type for the Journal was set by the cold type process in the Mirror plant, owned by defendant, and printed at the St. Louis Record plant at prices above those provided in the contract. Defendant’s counterclaim is for the increase in the cost of the printing over the contract price.

If the acts and statements of plaintiff’s officers are considered alone, without consideration of the agreement, acts and statements of defendant’s officers, plaintiff was guilty of an anticipatory breach of contract and defendant would be entitled to damages resulting therefrom. Quivirian Development Co. v. Poteet, 268 F.2d 433, 439 (8th Cir. 1959); Hawkinson v. Johnston, 122 F.2d 724, 137 A.L.R. 420 (8th Cir. 1941); Rexite Casting Co. v. Midwest Mower Corp., 267 S.W.2d 327 (St.L.App.1954); Ewing v. Miller, 335 S.W.2d 154, 158 (Mo.1960).

However, it appears from the evidence (and the learned trial judge so found) that the defendant voluntarily agreed to the termination of the contract at the meeting above mentioned and that there was no anticipatory breach of contract by plaintiff and defendant is not entitled to recover on its counterclaim.

There is no dispute as to the fact that defendant had not paid for the printing of the last two issues of the St. Charles Journal and the judgment for plaintiff on its petition and for plaintiff on defendant’s counterclaim is affirmed.

WOLFE, P. J., and ANDERSON, J., concur.