author: COLLINGS, Justice.

text:
    Barney MALONE et al., Appellants, v. Ben DIXON, Appellee.
    No. 4111.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 16, 1966.
    Rehearing Denied Jan. 13, 1967.

      Jones, Fillmore, Robinson & Lambert, Wichita Falls, Thomas F. Glover, Seymour, for appellant.
    Fillmore & Fillmore, Wichita Falls, R. J. Balch, Clyde Whitesides, Seymour, for ap-pellee.
   COLLINGS, Justice.

Ben Dixon brought suit in the County Court of Baylor County seeking a judgment declaring him to be the adopted son of Marenda J. Gist, deceased, by estoppel. Defendants were Barney Malone and other collateral heirs of the said Marenda J. Gist. Judgment was rendered in the County Court adverse to plaintiff’s claim and he appealed to the District Court. After a trial before a jury, judgment was rendered in the District Court decreeing Ben Dixon to be the adopted son of Marenda J. Gist, deceased, by estoppel and the sole and only heir entitled to inherit' all of her estate. The defendants have appealed.

Appellee, Dixon, alleged that W. J. Gist and wife Marenda Gist entered into an agreement with Rev. I. Z. T. Morris, which agreement was partly oral and partly in writing during the later part of 1912 or 1913 whereby Mr. and Mrs. Gist agreed to adopt appellee. W. J. Gist died in October of 1930.

The jury found that (1) during the year 1913, W. J. Gist and wife Marenda Gist agreed with Rev. I. Z. T. Morris that they would adopt Ben Dixon, (2) that Ben Dixon relied upon such agreement of the Gists to adopt him, (3) that Dixon in relying upon such agreement performed his duties and responded in a manner consistent with the relationship of a child toward its parents, and (4) Mr. and Mrs. Gist from and after April of 1913, reared, cared for and treated Ben Dixon as a member of their family and as if he had been their own child.

Appellants present points contending that the court erred in overruling their motion for judgment non obstante veredicto in connection with special issues Nos. 1, 2 and 3, because there was no evidence to support such findings, that the evidence was insufficient to support such finding and that such findings are against the great weight and preponderance of the evidence. The following is a summary of a portion of the voluminous evidence material to a determination of appellants’ points.

Ben Dixon was born in Dallas, Texas, and was seven years of age when his surviving parent, his mother, passed away. After his mother died he lived for about two years with an aunt and uncle in Dublin, Texas, and was then taken by his aunt to an orphans’ home in Fort Worth, Texas, where he spent another two years. On one occasion during this two year period he was sent to a foster home in Gainesville but was returned to the home in Fort Worth after about three weeks. Sometime thereafter he was told by one of the matrons of the home that he was being sent to a ■new home; that he was placed on a train at the station in Fort Worth with a ticket to Wichita Falls. When he arrived at Wichita Falls he was met by Mrs. W. J. Gist and carried to the Gist home in the community of Shady, about ten miles from Seymour, Texas. At that time Ben Dixon was eleven years of age. Appellee Dixon testified that he was raised in the Gist home and resided there until he left to enter the armed services in 1920. He stated that Reverend I. Z. T. Morris was connected with the orphans’ home in Fort Worth; that about six months after he went to the home of the Gists he had a conversation with Reverend Morris who asked him how he liked his new home; and that he informed Reverend Morris that he liked his new home fine.

Mr. Sproesser Wynn, a Fort Worth attorney, testified that he had represented the orphan’s home in question as general counsel since 1937 and that he is presently secretary of the corporation. Concerning the history of the home he stated that in about 1896 an unincorporated association was formed by some of the civic leaders in Fort Worth under the name of the Texas Children’s Home and Aid Society; that this association was incorporated in 1904; that in 1950 its charter was amended changing the name to its present name which is the Edna Gladney Home. Mr. Wynn testified that in the beginning the superintendent of the home was Reverend I. Z. T. Morris, and that it was sometimes called the Morris Home; that after Mrs. Gladney became the superintendent in 1925, Reverend Morris retired and that the home was often thereafter referred to as the Gladney Home even before the name was officially changed.

Mr. Wynn stated that in his capacity as secretary of the home he had supervision and control of its records. He identified the W. J. Gist file, which was also designated on the label as “Cradle Name Ben Dixon.” From this file several exhibits were marked and introduced into evidence. One of the exhibits was a letter dated November 1, 1912 from Mrs. W. J. Gist addressed to Reverend I. Z. T. Morris stating that she would like to get a healthy, intelligent orphan boy of about five or ten years of age. She further stated in the letter that “we are so situated as to give one a good opportunity to be somebody.” Mrs. Gist stated in her letter that they lived close to a Methodist Church and that Reverend Joe McReynolds was the pastor of the church. Another of the exhibits introduced was a letter from Mrs. Gist to Reverend I. Z. T. Morris dated April 15, 1913. This letter stated: “I can meet him in Wichita Falls and I will keep him the ninety days and if satisfactory we can have the papers fixed up.” Mr. Wynn testified that he knew of no other papers that Mrs. Wynn could have had reference to in this letter other than adoption papers. Another of the exhibits introduced was a letter dated November 20, 1915 written by W. J. Gist and addressed to Reverend I. Z. T. Morris. This letter stated that “Ben, the boy we got from you” was getting along fine; that he was healthy and well satisfied, was being sent to school; that the boy would be educated, if he would take it, and that if he proved worthy he would be given a good start. The letter further stated that the family had gone to church and Sunday School every Sunday “that was fit” since the boy had been with them.

Mr. Wynn explained to the court and jury how formal adoptions were accomplished prior to 1931 and described how such procedure was reflected in the records of the orphan’s home. He stated that in many of the files there was absolute proof of the adoption deed under the procedure prior to 1931; there was in some cases reference to or copies of, but no proof of the execution and filing of an adoption deed, and that in many other files there was nothing in the record of the home one way or the other.

Another of the exhibits introduced in evidence contains written conditions on the face of the application blank to obtain a child from the orphan’s home in question. Mr. and Mrs. Gist signed such an application blank. Among the written conditions were:

“3. In no case shall a child be given away to the third party without the written consent of the Society.
4. Unless the child is legally adopted, foster parents will make reports when requested.

S. It is desired that the younger children shall be legally adopted; but Court papers cannot be taken out until the written consent of the Society is given * * *

Adoption papers will be furnished by the Society free of charge.

Dear Sir: We have carefully read the above conditions and signify our concurrence therein by making the following application.”

Mr. Wynn further testified that there was no requirement that the foster parents adopt the children taken into their homes.

Another exhibit introduced into evidence was a letter from Ben Dixon’s aunt dated January 13, 1919 addressed to the home inquiring about Ben Dixon and his whereabouts. Another exhibit was a memo made by the home in the Ben Dixon file dated November 17, 1932 stating “we are writing to the foster parents of the two children today”, and another memo dated January 25, 1933 indicated that a Mrs. Faggard had been informed of the addresses of both Mary Frances and Ben Dixon. Another exhibit was a letter to the Gists from the superintendent of the home dated January 24, 1933 stating as follows:

“We appreciate the homes that our foster parents give these children and want always to carry out their wishes in a case like this; but since Ben was such a big boy when you took him, I am just taking it for granted that you would not object to him knowing his cousins, and have written him today. We would like to hear from you, as to how the boy got along at school and in your home.”

Reverend Joe McReynolds testified by way of written interrogatories. He stated that he was pastor of the Methodist Church in the Shady Community during 1912 and ’13; that he is now retired from the ministry and resides in Midland, Texas. He stated that he was well acquainted with Mr. and Mrs. Gist; that they lived close to the community of Shady and about half a mile from the church of which he was pastor; that he thought he had a conversation with the Gists about the adoption of a child but couldn’t be sure about it, but did know that the Gists obtained a child from Reverend I. Z. T. Morris; that he knew Reverend Morris before, after and during the time in question; that he recommended Mr. and Mrs. Gist to Reverend Morris and participated in arranging for Ben Dixon to come and live with the Gists. Reverend McReynolds stated in answer to interrogatory No. 24 that Reverend Morris told him that Mr. & Mrs. Gist had agreed to adopt Ben Dixon. Appellants’ 11th point complains of the introduction of interrogatory number 24 propounded to Reverend Mc-Reynolds and his affirmative answer thereto on the ground that it was hearsay. In our opinion no reversible error is presented in this point. The admission of the evidence complained of was harmless because it was cumulative. The existence of an agreement between Reverend Morris and the Gists that they would adopt the child Ben Dixon was fully established by properly admissible evidence. The evidence shows that the principle purpose of the home was to take orphan children and place them for adoption. Although the written application for a child provided by the home did not by its terms require an agreement to adopt it did plainly contemplate an adoption. The Gists signed this written application and in a letter to Reverend Morris stated they “would like to have this boy.” There was positive testimony by two disinterested witnesses that Mrs. Gist stated to them that she and her husband had agreed to adopt the boy. Many circumstances in evidence are consistent with and tend to show an agreement to adopt. The admission of this cumulative evidence over appellants’ objection did not constitute reversible error. Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366; Highway Insurance Underwriters v. LeBeau, 184 S.W.2d 671 (Tex.Ct.Civ.App.), reversed on other grounds 143 Tex. 589, 187 S.W.2d 73; Lewis v. Bergess, 22 Tex.Civ.App. 252, 54 S.W. 609 (1899). In this connection Rev. McReynolds testified that he was well acquainted with Reverend Morris who represented the home and that he had participated in placing eight or ten children from the home. He stated, in effect, in answer to interrogatory number 27 that never to his knowledge had Reverend Morris permitted any of the children he had helped place to remain with the prospective parents unless they agreed to adopt the children. We overrule appellants’ point number 10 which complains of the action of the court in overruling their objection to the admission of this interrogatory. The objection was waived because similar testimony was elicited by appellants from the witness on cross examination. It was harmless because cumulative.

Mrs. Ben Dixon, the wife of appellee testified that she was married to Ben Dixon in 1928 when he was working in Olney, Texas; that during the first years of their married life they lived in Olney. She stated that she and her husband frequently visited Mr. & Mrs. Gist after they were married and enjoyed a congenial relationship with them. She testified that on the occasion of her wedding to appellee on August 2, 1928 she observed Mr. and Mrs. Gist who were present and that Mr. Gist was emotionally upset and cried. Other witnesses also stated that Mr. Gist showed emotion at the wedding. Mrs. Dixon testified that after the death of Mr. Gist in 1930, she and her husband continued to visit with Mrs. Gist and enjoyed a close relationship; that she took it to be a relationship between a son and his mother; that on occasion she had heard Mrs. Gist introduce her husband Ben Dixon to people as her boy. She also heard Mrs. Gist refer to herself as grandmother to Ben Dixon’s children. Mrs. Dixon also stated that at the request of Mrs. Gist the witness and her husband on several occasions left their regular employment and moved from other parts of the State to return to the home of Mrs. Gist to render services, care and attention required for her well-being; that on one occasion Mrs. Gist had some people on her farm who were leaving and that she “wanted us to come back and take care of her cows and help with things on the farm.” Mrs. Dixon stated that in compliance with Mrs. Gist’s request they did go to her farm and helped with the work; that they milked seventeen cows night and morning; that her husband quit, his job and moved to the farm with Mrs. Gist and remained there on that occasion for about two years. Mrs. Dixon testified that on three other occasions she and her husband at the •request of Mrs. Gist came back to Mrs. Gist’s farm to help her; that on each of these occasions Mr. Dixon was working somewhere else and quit his job to return qnd help Mrs. Gist with her cattle, stock and farm; that on these occasions she and her husband were not paid a salary; that Mrs. Gist lived with them on the farm and would buy the groceries; that sometimes she gave us the cream money. Mrs. Dixon further testified that she and her husband and their children spent the Christmas and Thanksgiving holiday seasons with Mrs. Gist either in appellee’s home or in the home of Mrs. Gist. Mrs. Dixon further testified that during Mrs. Gist’s declining years when her health began to fail that she and her husband continued to care for and administer to her needs. She testified that Mrs. Gist gave them the home in which they were living at the time of the trial; that she had the house built for them and also gave them a tractor and some cattle.

Mr. James Bernard Furr testified as a witness for appellee. He stated that he got acquainted with Ben Dixon while they were both working for a telephone company on a job at Benjamin, Texas; that during the time they worked together they would prior to appellee’s marriage spend many of their off duty hours together; that they would sometimes spend the weekends in the home of Mr. and Mrs. Gist which was some 30 or 40 miles from the place where they were then working. Mr. Furr stated that on these occasions he and appellee would sometimes use the Gist family car and double date; that on numerous occasions he had opportunity to observe the relationship between appellee and Mr. and Mrs. Gist; that the relationship appeared to him to be a normal family relationship, that is a mother, father and son relationship. He stated that Mr. Gist, whom he referred to as Uncle Bill, would often come to the company warehouse and appeared to be greatly interested in Ben’s well-being and had pride in his work. He stated that Mr. Gist was complimentary of Ben’s work as a boy on the farm; that Mr. G. H. Williams was Ben’s boss and it seemed to the witness that Mr. Gist was trying to build Ben up with his boss.

Mrs. G. H. Williams testified that she and her husband, who was the manager of the telephone company in question, came to Seymour in 1926. Mrs. Williams stated that she was associated with Mr. and Mrs. Gist and with Ben Dixon on numerous occasions. She stated that the relationship appeared to her to be the normal parent and son relationship; that “Uncle Bill” called Ben his boy. She stated that Ben Dixon and his wife were married in her home and that after the wedding she continued to visit the Gists and the Dixons quite often. She testified that Mrs. Gist once told her that she had made an agreement at the home to adopt Ben but never did get the papers signed. Mrs. Williams stated that Mrs. Gist told her that both she and Mr. Gist had agreed to adopt Ben.

Mrs. Estelle Slaggle testified as a witness for the plaintiff and stated that Mrs. Gist told her that she got Ben from a home in Forth Worth and that they made an agreement to adopt him but never did go through with it.

Mr. Bill Elliston, a funeral director in Seymour, testified that he was in charge of the arrangements for the funeral of Mrs. Gist; that in taking care of such arrangements he took a history from some of the appellants herein and that based upon the information given by such appellants Mr. Elliston listed Ben Dixon as “adopted son” of Mrs. Gist. The witness stated that prior to this conference with appellants he had never known or heard of Ben Dixon.

Several witnesses testified in behalf of the defendants. Mrs. Barney Malone, wife of one of the defendants, testified that in all of her close association with the Gists they never mentioned an agreement to adopt Ben Dixon; that in 1961 Mr. and Mrs. Ben Dixon came to them and Mrs. Dixon wanted Barney Malone to come and get Mrs. Gist out of their home. She stated that it was not the Dixon’s place to take care of her, but was rather the responsibility of Barney Malone. She further testified that prior to giving the farm land to Ben Dixon Mrs. Gist had stated that if she didn’t give him something he would not get anything because they didn’t adopt him.

Mrs. Sam Henyan testified that in 1928 or 1929 Mrs. Gist told her that Ben Dixon was not an adopted son that she took him to raise and didn’t intend to adopt him.

George Sizmore testified that Mr. and Mrs. Gist in 1927 stated in his presence that they had not adopted Ben Dixon, didn’t intend to adopt him and that he was a problem child.

Mrs. Elsie Shepperd testified that she and her husband lived in Mrs. Gist’s home from January 20, 1960 until February of 1962; that during this period of time Ben Dixon never visited with Mrs. Gist; that Mrs. Gist referred to Ben Dixon as her foster son and stated that she was not going to give him any more land because he hadn’t done anything with the 113 acres she had already given him. Mrs. Shepperd further stated that sickness required her and her husband to leave town, and that Ben Dixon refused to keep Mrs. Gist stating that he was not obligated to keep her and that she should be taken to Barney Malone or Cletus Malone. Appellants’ 12th point urges that the court erred in sustaining appellee’s motion to strike all of the testimony of Mrs. Shepperd concerning statements and transactions of Mrs. Gist in her presence after Mrs. Gist was placed under guardianship. The fact that Dixon refused to keep Mrs. Gist when she was old and in need of help and his disclaimer of responsibility was not evidence of the lack of an agreement on the part of the Gists to adopt him but it was relevant in that it showed his attitude and feeling about the mother. In our opinion, however, the striking of this testimony was not reversible error. The evidence was cumulative of other evidence which- showed the existence of similar and even stranger facts and circumstances.

Kenneth Ray Olive testified that he was one of the owners of the Taylor Nursing Home in Wichita Falls; that Mrs. Gist was admitted to his rest home in August 1962; that the arrangement was made by her brothers, B. M. Malone and C. B. Malone, and that the latter was noted as her guardian; that Grady Ward and B. M. Malone were noted as interested parties to be notified; that Mrs. Gist died while in this rest home in 1964, and that Ben Dixon wag never seen at the home nor were any letters or correspondence received from him during Mrs. Gist’s stay at the home.

A joint will between W. J. Gist and Marenda Gist, executed February 6, 1930, was introduced in evidence. This will makes no mention of Ben Dixon. A deed from Mrs. Gist to Ben Dixon dated June 3, 1948 conveying certain lands refers to Ben Dixon as a “foster son.” Another deed from Mrs. Gist to Ben Dixon dated March 26, 1948 also refers to the grantee Ben Dixon as “foster son.”

The jury found and appellants do not question the fact that after Ben Dixon came to the home of Mr. and Mrs. Gist in 1913 they reared, cared for and treated him as a member of the family and as if he had been their own child. Appellants do question the findings in answer to special issues 1, 2 and 3 to the effect that the Gists agreed with Reverend Morris that they would adopt Ben Dixon, that Ben Dixon relied upon such agreement and responded in a manner consistent with the relationship of a child toward its parents. Where an adoption is claimed by estoppel because of an alleged agreement made prior to the death of adopted parents the agreement may be proved by the action, conduct and admissions of the parties and by other relevant facts and circumstances. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951). Two witnesses testified that Mrs. Gist told them that she and Mr. Gist had agreed to adopt Ben Dixon. This constituted some evidence in support of the finding of an agreement to adopt. In addition there were facts and circumstances in evidence consistent with and tending to show an agreement to adopt. We overrule appellants’ points contending that there was no evidence to support the findings to special issues 1, 2 and 3.

It is true that other facts and circumstances in substance as above set out are inconsistent with an agreement to adopt and tend to show that there was no such agreement. As pointed out by appellants none of the exhibits of the records and files of the home showed an agreement to adopt. However, such exhibits do not show that there was no agreement to adopt. Appellants particularly urge and emphasize the fact that Ben Dixon’s name was never changed after he went to live with the Gists. It is true that this does not tend to support the findings of the jury but it is not necessarily inconsistent therewith. In any event it is only one of the facts and circumstances to be considered. Ben Dixon was eleven years old when he went to the home of Mr. and Mrs. Gist. Mr. Wynn who has represented the orphan’s home for many years testified that when an older child is adopted he will frequently retain his own name.

Appellants further urge the fact that Mrs. Gist executed deeds to Ben Dixon in which he was referred to as a “foster son” and contend that this shows there was no agreement to adopt. This fact also is just one of the circumstances in evidence and is not conclusive on the question of an agreement to adopt.

Appellants urge that the finding of an agreement to adopt is wrong and cannot serve as a basis of judgment because, appellants contend, Reverend Morris did not have authority to enter into such an agreement to adopt. They insist that the written regulations of the home prohibited any contract to adopt unless the contract was in writing. The application does provide as follows: “It is desired that the younger children should be legally adopted but court papers cannot be taken out until the written consent of the Society is given.” In the first place the provision by its terms applies to “younger children” and in addition there is no evidence one way or the other concerning whether written consent to adopt was furnished Mr. and Mrs. Gist. The testimony of Mr. Wynn indicates that many adoptions did occur during that period without any record of written consent.

As heretofore noted Ben Dixon was taken into the Gist home in 1913 when he was eleven years of age. He continued to reside in the home in an apparently normal parent and son relationship until he went into the Armed Forces in 1920. The evidence supports the conclusion that during that period Ben Dixon conducted himself in a normal dutiful manner of a son. After the death of Mr. Gist in 1930 appellant for many years continued such attitude and conduct toward Mrs. Gist. There was evidence both in favor of and against the findings of the jury in answer to special issues 1, 2 and 3. Based upon a consideration of the entire record we hold that the evidence is sufficient to support the findings of the jury in answer to special issues 1, 2 and 3 and that such findings are not against the great weight and preponderance of the evidence.

It is undisputed that there was no legal adoption. The question is whether the evidence and findings show an adoption by estoppel. In our opinion the elements of an adoption by estoppel are shown. It was shown that Mr. and Mrs. Gist agreed with Reverend Morris, who was acting for the benefit of the eleven year old Ben Dixon, that they would adopt him; that in pursuance with that agreement the Gists took Ben into their home and cared for him as they would a natural child and Ben Dixon in return rendered the duties and affections of a natural child to Mr. and Mrs. Gist. Cavanaugh v. Davis, supra; Bigleben v. Stevens, 262 S.W.2d 785, (Tex.Ct.Civ.App.1953), Ref. N.R.E.; Cubley v. Barbee, 123 Tex. 411, 73 S.W.2d 72 (1934); Albright v. Bouldin, 394 S.W.2d 681 (Tex.Ct.Civ.App.1965, N.R.E.); Garcia v. Quiroz, 228 S.W.2d 953 (Tex.Ct.Civ.App.1950, Ref. N. R. E.).

Appellants’ points 13, 14 and 15 complain of the action of the court in refusing their requested special issues 4, 5 and 6 inquiring (4) whether the Texas Childrens’ Home required written permission from the home prior to the adoption of a child taken therefrom, (5) whether the home authorized in writing any agreement between Reverend Morris and the Gists to adopt Ben Dixon and (6) whether the home ever relinquished its authority of Ben Dixon during the time he lived in the Gist home. Appellants contend that such requested issues are ultimate issues presenting a defensive theory of their case and that the court therefore erred in refusing to submit them. These points are overruled. The requested issues were eviden-tiary and not ultimate. It is undisputed that the home stood in loco parentis to Ben Dixon. It is likewise undisputed that Reverend I. Z. T. Morris was, at all times material, superintendent and agent of the home. In agreeing with the Gists that they would adopt the child, Ben Dixon, Reverend Morris was acting for the child’s benefit. Both the Gists and appellants are estopped to deny the authority of Reverend Morris to represent the home in such an agreement.

The judgment is affirmed.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Justice.

license: Public Domain

text:
    Ira C. LITTLE, Sr., Appellant, v. Jack PERRY, Appellee.
    No. 16805.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 18, 1966.
    Rehearing Denied Dec. 23, 1966.

      Wynne, Jaffe & Tinsley, and Yandell Rogers, Dallas, for appellant.
    Bracewell & Patterson, Joseph Jaworski, R. Craig Parker, Houston, for appellee.
   CLAUDE WILLIAMS, Justice.

Contract action. Jack Perry brought this suit against Ira C. Little, Sr. seeking damages allegedly resulting from a breach by Little of a written agreement to purchase 5,000 shares of stock from Perry. The trial judge granted Little’s motion for summary judgment from which decree an appeal was perfected. Upon equalization of the dockets of the Courts of Civil Appeals by the Supreme Court the matter was referred to and decided by the Tyler Court of Civil Appeals. That court held that issues of fact were presented and that the cause should be reversed and remanded. See Perry v. Little, Tex.Civ.App., 377 S.W.2d 765.

Following remand the case was tried before a jury and special issues were answered favorable to Perry. Judgment for $30,870.91 was rendered against Little who brings this appeal.

In his trial petition appellee Perry alleged that he was the owner of Certificate No. 109 issued by the Medical Specialties Sales Corporation of Dallas, Texas, which represents 5,000 shares of the common stock of said corporation; that on the 11th day of July, 1961 he and appellant Little, for a valuable consideration, made a written agreement whereby Little agreed to purchase the stock from Perry at the price of $5.00 per share provided that one C. W. Deaton had not exercised his right to purchase said stock and if Perry was holding same on January 22,1962. The letter agreement relied upon by Perry and introduced in evidence provides:

“July 11, 1961
“Mr. Jack Perry
“806 Waugh Drive
“Houston, Texas
“Dear Sir:
“This is to advise that you are holding 5,000 shares of Medical Specialties Sales Corporation stock which I will purchase from you at $5.00 per share on January 22, 1962. This commitment to purchase is good in the event you are holding the stock on this date.
“It is further understood that C. W. Deaton has the right to pick up this stock from you on or before January 22, 1962 at $5.00 per share.
“In the event Mr. Deaton should want to pick up this stock from you, I want you to have him procure a letter in writing from me before you release the stock.
“Yours very truly,
“I. C. Little /s/
“I. C. Little”

In his petition Perry says that:

“Plaintiff accepted such contract orally in a telephone conversation with Defendant subsequent to the date the agreement was written and signed by Defendant; and, thereupon, both parties mutually agreed to the terms and conditions stated therein.”

At the trial appellee Perry testified that this letter was delivered to him in Houston by Mr. C. W. Deaton, in person, and that at about 12:00 noon on July 12, 1961 he telephoned appellant Little in Dallas. During this conversation he said he told Little that he would accept the contract. Little testified that he had two telephone conversations with Perry on July 12, 1961, neither of which was at noon, and that such conversations related to a conditional delivery of the letter to Perry. He denied positively that Perry told him he would accept the contract terms.

It is uncontroverted that there was no further communication between the parties until January 23, 1962 when Perry wrote Little, as follows:

“January 23, 1962
“Mr. I. C. Little
“I. C. Little Contractors
“Suite 603
“Fidelity Union Life Building
“Dallas, Texas
“Dear Mr. Little:
“In accordance with your letter of July 11, 1961, I am writing you to let you know that I am holding 5,000 of Medical Specialties Sales Corporation stock which you have agreed to purchase from me at $5. per share.
“I am also informing Mr. C. W. Deaton of the due date in case he wants to exercise his option to pick it up.
“I am looking forward to hearing from you regarding this matter.
“Sincerely,
“Jack Perry”

The record is silent as to any reply by Little or any communication between the parties until January 26, 1962 when Perry’s attorney, E. Mitchell Smith, Jr. of Houston, Texas, wrote Little the following letter:

“January 26, 1962
“Mr. I. C. Little
“I. C. Little Contractors
“Suite 603
“Fidelity Union Life Building
“Dallas, Texas
“Dear Mr. Little:
“It was certainly nice to talk to you yesterday while in Dallas. I am sorry that it involved such unpleasant subject matter.
“I did want to take the opportunity to discuss with you regarding your letter of July 11, 1961. As you know your letter states that you will purchase from Mr. Jack Perry five-thousand (5,000) shares of Medical Specialties Sales Corporation stock for $5. per share. Relying upon this letter and upon your long distance telephone call to Mr. Perry, along with your excellent credit report, Mr. Perry, as an innocent party, loaned money to C. W. Deaton.
“I am sure you are aware of the legal implications of this letter. I am equally sure that, should the situation present itself, you will live up to the excellent business reputation you have.
“Either Mr. Perry or I will be in touch with you the first of next week regarding this matter. In the meantime we will be trying to reach Mr. Deaton to see what his intentions are.
“Again it was certainly a pleasure to talk with you yesterday, and I am looking forward to meeting you soon.
“With kindest personal regards, I am
“Sincerely,
“Mickey Smith /s/
“Mickey Smith”

Prior to the submission of the court’s charge to the jury appellant Little objected to same because it did not contain an issue inquiring whether Perry’s acceptance of the offer was ever communicated to Little or whether Perry had made a tender of the shares of stock to Little either on January 22, 1962 or at any time prior to the filing of this action. The court overruled appellant’s objections and did not submit either issue to the jury.

In his first two points of error appellant contends that under the terms of the contract sued upon time was of the essence and since there was no evidence or jury finding that appellee Perry performed, or tendered performance of the contract sued upon, either on the day provided for in said contract or at any other time subsequent thereto, the trial court erred in rendering judgment for breach of the contract.

We think that the Court of Civil Appeals at Tyler in its opinion deciding the first appeal of this case correctly summarized the contract in question as “an offer to purchase a certain amount of stock at a fixed price and at a specified time, in the event certain contingencies came to pass.” Perry v. Little, Tex.Civ.App., 377 S.W.2d 765. The contract between the parties consisted of a promise on the part of Little to purchase and pay for shares of stock, and a mutual and dependent promise on the part of Perry to sell and deliver the shares. These mutual obligations were obviously, according to the terms of the agreement, to be performed simultaneously. Being mutual and dependent promises it is elementary that neither party would have been able to maintain an action upon such contract without first performing, or tendering performance. Investors’ Utility Corp. v. Challacombe, Tex.Civ.App., 39 S.W.2d 175; Federal Sign Co. of Texas v. Fort Worth Motors, Tex.Civ.App., 314 S.W.2d 878; Lewter v. Parker, Tex.Civ.App., 354 S.W.2d 945; 13 Tex. Jur.2d Contracts, § 284, p. 521; 17A C.J.S. Contracts § 344, p. 334.

We think that it is obvious that from a study of this contract that time was, indeed, of the essence. While it is true that under ordinary circumstances time is not of the essence of a contract, in the case of contracts for the sale of personalty time is generally deemed to be of the essence of the agreement. 13 Tex.Jur.2d, Contracts, § 288, p. 526, § 289, p. 528. This rule is even more applicable where, as here, the personal property involved is subject to rapidly fluctuating value. Taylor Milling Co. v. American Bag Co., Tex.Civ.App., 230 S.W. 782; Von Harten & Clark v. Nevels, Tex.Civ.App., 234 S.W. 676; United Irrigation Co. v. Carson Petroleum Co., Tex.Civ.App., 283 S.W. 692; 13 Tex.Jur.2d, Contracts, § 289, p. 529. Moreover, whether or not time is of the essence of the contract depends on the intention of the parties, same being determined from the language used in the agreement as well as from the circumstances attending its making. The contract between the parties is plain and specific that the performance date is January 22, 1962. Even assuming Deaton’s option to purchase the shares not later than midnight, of January 22, 1962, his failure to exercise such option would, in the light of the overall terms of the agreement, cause the time for performance of selling or purchase to be immediately after midnight on that date.

There can be no doubt that Perry, seeking to legally enforce the contract, must both plead and prove a tender of performance on his part. Investors’ Utility Corp. v. Challacombe, Tex.Civ.App., 39 S.W.2d 175; 13 Tex.Jur.2d, Contracts, § 284, p. 521. We think the obligation of Perry to establish tender of performance is even more strict in law since we are here dealing with chattels of fluctuating value. “A promise to pay in chattels, or in anything of a fluctuating value, must be strictly complied with as to time, and a tender of the thing to be paid cannot be made before or after the day fixed for payment.” 17A C.J.S. Contracts § 482, p. 682.

The question of the sufficiency of tender in this case is governed by well established rules of law. The tender must be definite and certain. It is not enough for the party seeking to enforce the contract for its breach to show only that he had merely informed the other party of his readiness to perform. 13 Tex.Jur.2d, Contracts, § 284, p. 521; Richey v. Stanley, Tex.Civ.App., 38 S.W.2d 1104.

Also, to constitute a valid tender the thing to be tendered must be actually produced and offered to the party entitled thereto. Cornelius v. Cook, Tex.Civ.App., 213 S.W.2d 767; Johnson Mfg. Co. v. Edwards, Tex.Civ.App., 344 S.W.2d 506.

This court, speaking through Justice Bateman, in Cockrum v. Cal-Zona Corp., 373 S.W.2d 572, reiterated the rule previously announced that a valid tender is not accomplished until the tenderer places the property in such a position that his control over it is relinquished for a sufficient time to enable the tenderee, if he so desires, to reduce it to possession by merely reaching out and laying hold of the property; and a person is not bound to say whether he will accept the property until it is so produced.

Viewed in the light of these well established principles of law it is our judgment that the record fails to support ap-pellee’s contention that he made a valid tender of the shares to appellant either on or immediately after January 22, 1962 or at any time prior to the filing of the suit. It is undisputed that from July 12, 1961 through and including January 22, 1962 Perry had no communication, either oral or written, with Little. By his letter dated January 23, 1962 Perry did nothing more than advise Little that he was “holding 5,000 shares of Medical Specialties Sales Corporation stock” and that he was informing C. W. Deaton, in case Deaton wanted “to pick it up.” Further, in the letter from appellee’s attorney, Smith, several days later, he says nothing more than that he feels “equally sure that, should the situation present itself, you will live up to the excellent business reputation you have.” He also says that “In the meantime we will be trying to reach Mr. Deaton to see what his intentions are.” We find nothing in this letter to lead to the conclusion that such constituted a tender as contemplated by the law. Instead, the impression is left from such letter that Deaton still had some rights and that the performance of the contract depended on his exercise thereof.

Material to the question of tender is also the question of place of performance. It is a general rule of law that in any contract requiring the payment of money, the place of payment is ordinarily regarded to be the domicile of the payor, if the contract says nothing about the place of payment. 13 Tex.Jur.2d, § 298, p. 545; Texas Farm Bureau Cotton Ass’n v. Stovall, 113 Tex. 273, 253 S.W. 1101; Texas Gas Products Corp. v. Rowan, Tex.Civ.App., 317 S.W.2d 815. Since the agreement in this case is silent as to the place of performance it would seem evident that Perry’s tender and the payment of money for the shares would necessarily be in Dallas, Little’s residence.

Concluding, as we do, that Perry has completely failed to establish his burden of proving and securing a jury finding as to a valid tender of the shares in question either on or about the date agreed upon for performance, or at any other time prior to the filing of this suit, it was obvious that the trial court erred in rendering judgment against Little for breach of the agreement.

Appellant’s points 1 and 2 are sustained.

By his points 3 and 4 appellant complains of the failure of the court to submit to the jury an issue as to whether any alleged acceptance of the offer stated in the letter of July 11, 1961, was ever communicated to Little. We agree with appellant and sustain these points.

Special Issue No. 1, as submitted to the jury, inquired as to whether Perry agreed to and accepted Little’s offer contained in his letter of July 11, 1961, to which the jury answered “Yes.” Prior to submitting the case to the jury appellant Little objected to the failure of the court to submit an issue as to whether such acceptance was ever communicated to Little.

The testimony, as above related, is sharply in dispute on the question of communication of acceptance of the offer. Perry, as well as other witnesses, testified that he telephoned Little in Dallas from Houston and advised him that he was accepting the offer contained in the letter of July 11, 1961 delivered by Deaton. On the other hand, Little positively denied that Perry communicated acceptance to him in any telephone conversation.

It is elementary that in order to form a binding contract it must appear that the party to whom the offer is made not only accepts the offer but communicates such acceptance to the person making the offer. American Nat’l Ins. Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161, 1164.

The issue of communication of acceptance was raised by appellee’s pleadings and his evidence. The issue was one necessary to establish appellee’s cause of action. Appellee therefore had the burden of securing the submission of an appropriate issue. Appellant was not obligated to request the submission of an issue in substantially correct verbiage. His complaint, timely made, is sufficient to preserve the point. Rule 279, Vernon’s Texas Rules of Civil Procedure.

For the reasons stated, the judgment of the trial court is here reversed and rendered that appellee take nothing against appellant.

Reversed and rendered.


author: NORTHCUTT, Justice.

text:
    EMPLOYERS CASUALTY COMPANY, Appellant, v. W. W. WEST, Appellee.
    No. 7660.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 12, 1966.
    Rehearing Denied Jan. 16, 1967.
    See also Tex.Civ.App., 383 S.W.2d 251.

      Crenshaw, Dupree & Milam, Lubbock, Tom S. Milam and Cecil Kuhne, Lubbock, of counsel, for appellant.
    Stovall & Stovall, Plainview, Frank Sto-vall, Plainview, of counsel, for appellee.
   NORTHCUTT, Justice.

This is a suit by W. W. West against Employers Casualty Company to recover damages sustained from alleged breach of a comprehensive liability insurance policy issued by appellant to the appellee based on appellant’s refusal to defend a suit brought against appellee by a third party, Mrs. Carpenter, and husband, and appellant’s refusal to pay the judgment rendered against West therein. The third party suit against West was based upon damages to the third party’s land from the blowout of an oil and gas well drilled upon the land by West under an oil and gas lease.

On December 3, 1956, an oil and gas lease was made and entered into by and between Minnie Carpenter and husband, W. H. Carpenter, as lessor, and W. W. West, as lessee. In said lease the lessee contracted and agreed with the lessor as follows:

“Lessee shall pay a sum equal to one and one-half (1½) times the value of growing crops on said land as damages caused by operations under this lease to such crops. Since said land is irrigated farm land, Lessee shall use extraordinary care and precaution in all operations conducted on said land and shall not cause nor allow to exist any permanent or irreparable damage and, shall conduct all operations so as to occupy only such surface area as is reasonably necessary. Lessee shall remova all slush, mud and BS from the land, fill and level all pits, mounds and excavations and otherwise restore the land so that it shall be suitable for the continuation of farming operations.”

The lessee failed to pay lessor for the damages to the growing crops and remove the slush, mud and BS from the land and to restore the land as provided. Thereafter Minnie Carpenter joined by her husband brought suit against W. W. West alleging a breach of the oil and gas lease contract. Based on a jury verdict the trial court entered judgment for the Carpenters in the amount of $5,448.68. From that judgment W. W. West perfected his appeal as shown in the case of West v. Carpenter, 366 S.W.2d 826 (Tex.Civ.App.-Amarillo, 1963, ref’d nre). In that opinion it was held as follows:

“Appellant agreed by the terms of the oil and gas lease to use extra ordinary care and precaution. It is appellant’s contention the issue of whether appellant failed to use extra ordinary care should not be submitted in one issue, but should be separated into several elements, separately submitted. In our opinion, this contention is without merit. The case was tried on the theory of an alleged breach of contract and not one of negligence." (Emphasis ours).

Hereafter Employers Casualty Company will be referred to as appellant and West as appellee. The appellee brought this suit alleging the third party suit (366 S.W.2d 826) was within the coverage of the liability policy and in the alternative that they were entitled to recover under the theory of estoppel or fraud and contended appellant assured appellee that it would protect appellee against the claims of the Carpenters and that he relied upon such promise and but for such promise he could have settled the Carpenter’s claim for $1,-000. The case was tried to a jury upon eight special issues arid the court in considering appellant’s motion to disregard the findings of the jury held that the motion to disregard certain jury findings should be sustained and sustained the motion to disregard the findings as to Issues Nos. 6, 7 and 8 but overruled said motion as to the findings as to Issues Nos. 1, 2, 3, 4 and 5. We will not consider Issues 6, 7 and 8 any further.

Special Issues 1 through 5, upon which judgment was rendered, constitute the submission of plaintiff’s estoppel theory, the jury having found in such issues:

(1) That defendant represented to West that it would protect him against liability on the Carpenter claim;
(2) That West relied upon such representations ;
(3) That West, in reliance upon such representations, failed to negotiate a settlement of the Carpenter claim;
(4) That West could have settled the Carpenter claim for an amount less than the ultimate judgment;
(5) That he could have settled the Carpenter claim for $1,000.

From that judgment appellant perfected this appeal.

Although appellant presents this appeal upon thirteen points of error, they are grouped together for argument. The appellant issued a comprehensive general liability policy to appellee effective September 1, 1956, to September 1, 1957. The policy provided certain coverage for liability injury and property damages and appellee’s business was described as “oil producing and oil well drilling.” Among the specific exclusions in the policy were “(c) To injury, sickness, disease, death or destruction caused intentionally by or at the direction of the insured; (e) Under the liability coverage, to liability assumed by the insured under any contract or agreement except liability of other assumed under a written contract relating to the premises.”

The undisputed record in this case shows that the third party suit brought by Minnie Carpenter and husband against West was to recover damages caused by West in failing to comply with the terms of the oil and gas lease as he had contracted to do. The pleadings and findings of the jury in that case clearly showed that the case was tried on the theory of an alleged breach of contract and not one of negligence. (It was so determined in 366 S.W.2d 829). Appellee testified in this case that he knew that the policy of insurance did not cover any obligations that he agreed to pay for under the oil and gas lease. He further testified that sometime in the late spring or early summer of 1958 he had a conversation with a Mr. Heckman in which he was advised to say nothing further to Mrs. Carpenter ; that the two-year statute of limitation would soon run on it and they would be released to that extent on the claim. He asked Heckman where that was going to leave him (West) on the contractual liability and that Heckman did not tell him anything. That conversation was over the phone. The third party suit, Carpenter v. West, was filed on November 30, 1960, approximately three years after the damage was done to the Carpenter’s property.

We do not believe under this record the appellee was in any manner misled, but is seeking to invoke the doctrine of estoppel and waiver to bring into existence a contract not made by the parties, but to create a liability contrary to the express provisions of the contract the parties did make.

It is stated in the case of Great American Reserve Insurance Co. v. Mitchell, 335 S.W.2d 707 (Tex.Civ.App.-San Antonio, 1960, writ ref’d) as follows:

“Plaintiff’s claim and recovery run directly contrary to the settled Texas law of waiver and estoppel with respect to risks designated in an insurance policy. Waiver and estoppel may operate to avoid a forfeiture of a policy, but they have consistently been denied operative force to change, re-write and enlarge the risks covered by a policy. In other words, waiver and estoppel can not create a new and different contract with respect to risks covered by the policy. This has been the settled law of Texas since the decision in Washington Nat. Ins. Co. v. Craddock, 130 Tex. 251, 109 S.W.2d 165, 113 A.L.R. 854. See also, Vaught v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 257 S.W.2d 445; Powell v. American Casualty & Life Co., Tex.Civ.App., 250 S.W.2d 744; Massachusetts Bonding & Insurance Co. v. Dallas Steam Laundry and Dye Works, Tex.Civ.App., 85 S.W.2d 937; C. E. Carnes & Co. v. Employers’ Liability Assur. Corporation, 5 Cir., 101 F.2d 739; 29A Am.Jur., Insurance, § 1135; 163 A.L.R. 691; 113 A.L.R. 857.”

See also Orkin Extermination Co. v. Massachusetts Bonding & Ins. Co., 400 S.W.2d 20, (Tex.Civ.App.-Houston, 1965).

The appellee herein contracted to be responsible for the damages recovered by the Carpenters against West and now seeks to recover from appellant for what he, the ap-pellee, contracted to pay to the Carpenters. The appellee herein sued to recover upon the insurance policy and claimed that the exclusions provision in the policy was done away with by reason of a waiver and estop-pel. We regard the law as settled against appellee.

Judgment of the trial court is reversed and rendered that appellee recover nothing by this suit.


author: PHILLIPS, Justice.

text:
    Alfred E. FANT, Appellant, v. Fred HOWELL et ux., Appellees.
    No. 11432.
    Court of Civil Appeals of Texas. Austin.
    Dec. 14, 1966.
    Rehearing Denied Jan. 11, 1967.

      J. W. Thomas, Belton, for appellant.
    Skelton, Bowmer, Courtney & Burleson, Jim D. Bowmer, Bob Burleson, Temple, for appellees.
   PHILLIPS, Justice.

This appeal arose from a suit brought by appellant Fant to enforce specific performance of a contract to convey land. The contract was entered into in April, 1961 with appellees Howell. At the inception of the contract, appellees Howell had title to all of the real estate involved in the contract, however, third persons were then in possession of a part of the property and were holding adversely. This latter fact was known to both of the parties at the time the contract was consummated.

Appellant Fant went into possession of the property, except that portion adversely occupied in April, 1961 under the terms of the contract of sale, and appellees moved to Tyler, Texas and never again had possession.

In 1964 appellant brought suit against the appellees for specific performance of the contract of sale and included in the lawsuit a suit in trespass to try title in which action the third parties in possession were named as defendants.

Upon motion of the third parties in possession, the court dismissed them from the lawsuit, leaving the abovementioned suit for specific performance against appellees Howell.

Appellees answered with a general denial, then made a motion for summary judgment which the court, after considering the motion along with affidavits presented by both parties, granted. Part of this judgment is as follows:

“IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED BY THE COURT AS FOLLOWS:
(1) That plaintiff ALFRED E. FANT take nothing by his suit against defendants FRED HOWELL and wife BESSIE HOWELL, or either of them.
(2) That upon payment by plaintiff ALFRED E. FANT to defendants FRED HOWELL and wife BESSIE HOWELL of the full balance of the purchase price of said property, with all interest thereon to date of payment in the exact manner set forth in the Contract of Sale between the parties dated April 21, 1961, and referred to in the pleadings, the defendants FRED HOWELL and wife BESSIE HOWELL execute, acknowledge and deliver to plaintiff ALFRED E. FANT their warranty deed conveying the land (to be described as it is described in the Contract of Sale between the parties), and containing the other usual and customary provisions common to such a deed, except that the warranty clause of such deed shall read and be as follows:
‘TO HAVE AND TO HOLD the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said ALFRED E. FANT, his heirs and assigns forever and we do hereby bind ourselves, our heirs, executors and administrators, to Warrant and Forever Defend, all and singular the said premises unto the said ALFRED E. FANT, his heirs and assigns, against every person whomsoever lawfully claiming, or to claim the same, or any part thereof, all subject, however, to the following limitations and provisions, to wit:
(a) That such warranty shall be, and is hereby construed as if, and same shall be the same legal effect as if, same had been entered into and this deed executed and delivered by HOWELLS to FANT on April 21, 1961, and not thereafter; and in addition thereto,
(b) that insofar as this warranty is concerned, FRED HOWELL and wife, BESSIE HOWELL, expressly preserve, reserve, have and retain any defenses to an action against them on such warranty, if such defense arises from, or is based upon, any act or omission of ALFRED E. FANT which has occurred since April 21, 1961, and the warranty is further limited to that extent.’ ”

The land in question was described by metes and bounds in the contract of sale as “containing 227 acres of land, more or less (sometimes called 252 acre tract).”

32.58 acres described in the contract has apparently been lost to the abovementioned third parties through adverse possession and it is this portion that appellees refuse to warrant as to title, however, they will convey same with the reservation set out above in the summary judgment. This acreage is the crux of this lawsuit.

A recent survey shows the acreage that the appellees are willing and able to convey by general warranty deed (exclusive of the abovementioned 32.58 acres) to be 226.38 acres.

We reverse the judgment of the trial court and remand the case.

Appellant is before this Court with six points of error, the first three, briefed together, are as follows: The court erred in excusing performance of a contractual promise to convey by general warranty deed becoming subsequently impossible, the impossibility of which might readily have been foreseen by promisor and which could have been by him prevented; the court erred in implying as condition precedent, an undertaking of promisee to bring about condition in absence of justifiable assumption therefor; the court erred in granting summary judgment based on either certain supervening impossibility of performance or breach of implied promise (condition precedent) lacking applicable evidence of material circumstances surrounding contract formation.

We overrule these points.

Appellant contends that appellees had the means to perform when they made the promise but had lost that means when the performance became due. That the adverse possession by strangers to the title existed at the time that the contract was entered into and limitations had started to run, that this fact was known to both contracting parties at the time, that when the time came for the appellees to complete the contract, it had become impossible for them to deliver title to the disputed acreage. From this appellant argues that any loss should be borne by appellees by a proportionate reduction in the purchase price for the land. In support of this position, appellant has cited numerous cases and authorities stating that where a supervening impossibility of performance occurs, the loss should be borne by the promisor (appellees) and he could have contracted against such contingency had he chosen to do so. These are not cases involving the sale of land.

This case is controlled by the rule of law announced in Whitaker v. Felts, 137 Tex. 578, 155 S.W.2d 604 (1941), to the effect that the covenantee cannot yield to an opposing claim of title which is inferior to his own, and still hold his war-rantor liable in damages. Under the terms of the contract of sale, appellant’s title was superior to that of the naked trespasser then in possession of the acreage in dispute. Consequently he cannot hold appellees, his warrantors, liable in damages.

Appellees can also prevail under the theory of equitable conversion as announced in Leeson v. City of Houston et al., 243 S.W. 485, (Tex.Com.App.1922, holding approved), where the Court stated:

“By the great weight of authority it is now held that, although the legal title does not pass to the vendee under a contract of sale until actual delivery of a deed to the property still the vendee under such contract of purchase, especially where he goes into possession of the property, is invested with the equitable-title from the date of the contract, or in any event, from the date he takes possession, and any increment, advantage, or enhancement to the property inures to-his benefit, and any detriment, depreciation or loss thereto without fault of either party must be borne by him.”

The Commission of Appeals then concluded with these words:

“That under the contract of sale and delivery of possession to Leeson the equitable title to the property passed to him as of the date of his possession, subject only to the condition that defendant company collect the note left with it for that, purpose, and that from that date he was invested with all benefits and charged with all burdens of ownership.”

Appellant had the right to protect his title against the trespassers. 56 Tex. Jur.2d, Trespass to Try Title Sec. 10,. (1964).

Appellant’s points four and five, briefed together, are as follows: the court, erred, in treating on summary judgment motion, as an admission establishing fact thereof, allegation of pleading on information and belief as against positive factual affidavit controverting allegation, thus-weighing evidence; the court erred in attributing probative value of an admission to an allegation of pleading on information and belief.

We sustain point four.

Under the rule announced by First National Bank of Hereford v. Hogan, 185 S.W. 880, 882 (Tex.Civ.App. Amarillo 1916 writ ref’d) (citing Pope v. Allis, 115 U.S. 363, 6 S.Ct. 69, 29 L.Ed. 393) averments in a pleading are competent evidence in a subsequent suit against the party making them, and the fact that the averments are made on information and belief goes only to their weight, and not to their admissibility. Consequently a fact situation is presented thus precluding summary judgment. Since appellant is seeking specific performance of the contract, if the acreage allegedly held by adverse users has been lost, then this loss miist be borne by appellant, however, if the acreage has not been lost to the adverse users, then appellees are in a position to convey that which they had originally contracted to do.

Appellant’s sixth point of error is as follows: the court erred in admitting, over objection, proof relevant to, and in finding and giving effect to, issues constituting affirmative defense never pleaded.

We overrule this point.

As we understand appellant’s position here, since appellees answered only by a general denial, they were precluded from the right to summary judgment through their motion and attendant affidavits; that appellees were attempting to raise an affirmative defense for the first time in a summary judgment proceeding.

A summary judgment can be proper even though the only formal pleading of the party moving for such is a general denial. Sims v. Auringer, 301 S.W.2d 286, (Tex.Civ.App.—Fort Worth, 1957, writ ref’d n. r. e.).

We reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

Reversed and remanded.

      . Williston on Contracts, Sections 1934-1937; 17A C.J.S. Contracts § 463(1) a., p. 607; Northern Pacific Railway Co. v. American Trading Company, 195 U.S. 439, 25 S.Ct. 84, 49 L.Ed. 269; Houston Ice & Brewing Co. v. Keenan, 99 Tex. 79, 88 S.W. 197; Davis v. Davis, 266 S.W. 797 (Tex.Civ.App.); Gunter v. Robinson, 112 S.W. 134 (Tex.Civ.App.) among others.


author: WILSON, Justice.

text:
    NEUHOFF BROTHERS PACKERS, INC., Appellant, v. Thomas A. BROOKS et ux., Appellees.
    No. 4541.
    Court of Civil Appeals of Texas. Waco.
    Dec. 8, 1966.

      Turner, Rodgers, Winn, Scurlock & Terry, Frank J. Scurlock, James L. Armour, Dallas, for appellant.
    John B. McNamara, Jr., and Vernon Smith, Waco, for appellees.
   OPINION

WILSON, Justice.

The operator of a cattle feed lot appeals from a judgment for plaintiffs, based on jury findings, for damages arising from its operations.

The basic contention of appellant is that plaintiffs tried the case on the theory they suffered only personal injury by reason of a nuisance; whereas the case was submitted to the jury on the basis of property damage to realty.

The petition alleged the manner of operation of the feed lot constituted a nuisance which interfered with, and caused “damage, harm and inconvenience to the plaintiffs in their use and enjoyment of their property,” and resulted in discomfort, annoyance, embarrassment and injury to their health whereby they sustained damage. It was further alleged that because of the conditions described, plaintiffs’ home “has been destroyed as a place where their friends and loved ones can gather;” that they are “damaged and injured in the comfortable use and enjoyment of their home and their property.” The issue submitted inquired as to the damage, if any, which would reasonably compensate plaintiffs for inconvenience, personal discomfort, annoyance, and loss of use and enjoyment of their home, resulting from the operation.

Appellant made no objection to this issue. It objected, however, to the definition of “nuisance” given in connection with another issue inquiring whether the operation of the feed lot was a nuisance, and the objection to the definition is the only one preserved for review. This definition in part was: a “condition brought about by one party in the use of his property, so unusual and excessive that it necessarily causes damage or harm or inconvenience to another party in the use and enjoyment of his property, substantially, materially and unreasonably interfering with the latter’s comfort, and proper use and enjoyment of his property * * The objection to this definition was that th~ case had been tried on the theory it was a suit solely for personal injuries, whereas the quoted language pertained to real property damage and diminution in value. Appellant also complains of refusal of its requested alternative issue asking whether the nuisance, if any, from odor was permanent or temporary.

Plaintiffs pleaded, and the charge submitted damages to plaintiffs for both personal injuries and property damage. They were authorized to recover both in a single action. Vestal v. Gulf Oil Corp., 149 Tex. 487, 235 S.W.2d 440, 441.

Appellant submits that there was no evidence to authorize submission of a property damage issue or support a jury finding of such damage. Appellees concede this. They agree that “no evidence was introduced or tendered bearing upon or relating to the value of appellees’ land or the value of its use and enjoyment”. They insist, however, that they pleaded only damages for personal injuries, and the charge submitted no element of property damage.

In Vestal v. Gulf Oil Corp., above, the Supreme Court held that a pleading and charge incorporating the element of damage to plaintiffs “of the use and enjoyment of their home” did not relate to a claim for personal injuries, “but for injury to real estate,” and “loss of use and enjoyment of real property”.

The definition of “nuisance”, to which the damage issue was directly tied, was subject to appellant’s objection that it submitted the element of property damage, whereas the case had been tried solely as one for personal injuries.

Error is assigned to overruling of appellant’s motion for new trial asserting jury misconduct, and to refusal of the court to hear evidence of alleged misconduct. The motion for new trial was not verified, and there were no affidavits of jurors attached. There were allegations that “some of the jurors” related their personal experiences in smelling odors from appellant’s lot; that there was “a great amount of discussion” concerning attorney’s fees; that three named jurors argued that plaintiffs’ property had been destroyed, and property damage should be the basis for the verdict. The court declined to hear testimony from the jurors.

In the absence of affidavits of.jurors or a showing of reasonable excuse for their absence, where misconduct is asserted, a refusal to hear testimony “is a matter within the sound discretion of the trial judge.” Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644, 646.

Appellant’s motion alleged that one of the jurors (not one of those named as having committed acts of misconduct) had promised to make an affidavit, but later declined because he believed it was improper. There is no showing of any effort to obtain affidavits from any of the other eleven jurors. In our opinion there was not a showing of reasonable excuse for failure to obtain and exhibit affidavits, and there was no abuse of trial court’s discretion. Moran Utilities Co. v. McHaney, Tex.Civ.App., 325 S.W.2d 712, 714, writ ref. n. r. e.; J. Weingarten, Inc. v. Azios, Tex.Civ.App., 384 S.W.2d 160, 162, writ ref. n. r. e. These and all other points are overruled.

Reversed and remanded.


text:
    Overton B. BANKS et al., Appellants, v. John W. MECOM, Trustee et al., Appellees.
    No. 4141.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 16, 1966.
    Rehearing Denied Jan. 13, 1967.

      Overton Banks, Houston, for appellants.
    Fouts, Moore, Caldwell & Coleman, Houston, Orgain, Bell & Tucker, Beaumont, J. L. LyBrand, Beaumont, for appel-lees.
   COLLINGS, Justice.

This appeal originally involved appeals of Ellen D. Bay, Overton B. Banks and W. F. Hooks in which appellees were John W. Mecom, trustee, hereafter referred to as Mecom, Carnes W. Weaver, Freeport Sulphur Company, Sinclair Oil and Gas Company and Sun Oil Company. These appeals were dismissed with opinion reported in Bay v. Mecom, Tex.Civ.App., 387 S.W.2d 482. Our Supreme Court in an opinion reported in 393 S.W.2d page 819 affirmed the dismissal of the appeals of Ellen D. Bay and the dismissal of the appeal of Banks and Hooks against Sun Oil Company, but found that Banks and Hooks had the right to appeal from the summary judgment rendered against them when the court sustained the motions of Mecom, Weaver and Freeport Sulphur Company. That appeal is now before this court for determination.

The suit was originally filed by Ellen D. Bay, lessor of a mineral lease covering a fraction of an acre in the town of Hull. The lease dated October 28, 1949 was to Overton B. Banks and authorized the lessee to pool and combine it with other leases. The pooling provision of the lease was as follows:

“Lessee, at its option, is hereby given the right and power to pool or combine the acreage covered by this lease, or any portion thereof as to oil and gas, or either of them, with other land, lease or leases in the immediate vicinity thereof to the extent, hereinafter stipulated, when in Lessee’s judgment it is necessary or advisable to do so in order properly to develop and operate said leased premises in compliance with the spacing rules of the Railroad Commission of Texas, or other lawful authority, or when to do so would, in the judgment of Lessee, promote the conservation of oil and gas from said premises. Units pooled for oil hereunder shall not substantially exceed 40 acres each in area, and units pooled for gas hereunder shall not substantially exceed in area 640 acres each plus a tolerance of 10% thereof, provided that should governmental authority having jurisdiction prescribe or permit the creation of units larger than those specified, units thereafter created may conform substantially in size with those prescribed by governmental regulations.”

The record shows that Banks, on October 29, 1954, assigned the lease to John W. Mecom, predecessor in title to John W. Mecom, trustee. The assignment to Mecom reserved to Banks and Hooks a ⅛⅛ overriding royalty. It contained a provision recognizing the right to pool in accordance with the terms of the lease. On December 29, 1954 said lease covering the fractional acre was pooled with other small leases in the immediate vicinity into a pooled unit of less than 20 acres, with the stated right to thereafter, within 5 years include other adjacent tracts until the total acreage included in the unit amounted to 20 acres. Thereafter a well was drilled and completed on the unit, said well being located on the property covered by the Bay lease. The first production from the well was in March 1955. After completion of the well suit was filed by Ellen Bay against appellees seeking to cancel the unit. Hooks and Banks were also named defendants. Hooks and Banks filed a cross action against appellees seeking cancellation of the unit, and filed a motion for summary judgment. Appellees also filed a motion for summary judgment. The motion of ap-pellees was granted and judgment was rendered • sustaining the validity of the unit. It is that judgment of which appellants Banks and Hooks here complain.

Appellees’ motion for summary judgment asserted that no genuine issues of fact existed in the case arising under appellants’ pleadings or otherwise; that appellants’ pleadings admitted that pooling was authorized under the pooling provision in the lease, as hereinabove quoted; that appellants’ only alleged ground of invalidity of the pooled unit was in substance that the unit was not authorized by the pooling provision because it was not authorized by the Railroad Commission of Texas, in that, the Hull field in Liberty County in which the lease and unit were located had been classified by the Railroad Commission as, and at all times material hereto has been classified as, a “piercement type” salt dome field, and that in such type of field the commission makes no limitations on the distances wells may be drilled from lease lines or from each other; that the Hull field was thus a non prorated field, exempt from spacing rules and, therefore, pooling and unitization were prohibited and restricted.

From an examination of the pleadings, the motions for summary judgment and the affidavits filed by the parties in support of and in opposition thereto, we are of the opinion that there is no genuine issue as to any material fact in the case. The mineral interest Pooling Act, Article 6008c, Vernon’s Ann.Tex.Civ.St, enacted in 1965 was not in effect at any time material to a determination of this cause. The general rule prior to such Act was that pooling was governed by the law of contract. Humble Oil & Refining Co. et al. v. Carr, 243 S.W.2d 709, (C.C.A.1951, ref. n. r. e.); Dailey v. Railroad Commission, 133 S.W.2d 219, (C.C.A.1939, writ ref.).

The authority to pool as shown in the pooling provision of the lease as herein set out is undisputed. It was provided therein that units pooled for oil should not substantially exceed 40 acres. It is undisputed that appellee Mecom executed an instrument forming a unit of less than 20 acres prior to the commencement and drilling of the oil well on the Bay fractional acre lease. It is undisputed that at that time there was production in the Hull field south of the unit here involved and that such production was from units of approximately 20 acres, and that there was also such a 20 acre unit to the east. The controversy between the parties arises from appellants’ contention that the pooling unit in question was unauthorized by and exceeded the authority to pool provided for in the Ellen D. Bay lease to Overton B. Banks. Appellants’ contention in this respect as set out in their first point is as follows :

“The per well or 100% well factor, no acreage factor, proration of wells and the absence of any spacing or unit rules for the Hull piercement type salt dome field precludes as a matter of law the creation of a pooled unit in said field; wherefore the unit designation of December 29, 1954 is a nullity without vitality or legal effect, and never became lawful nor effective as a pooled unit for the conservation of oil and/or gas; and had no effect whatsoever on Appellants overriding royalty of ⅛⅛ of the oil produced from the Bay well effective as of date of first production and continuously thereafter.”

As authority for their contention appellants rely upon the recent Texas Supreme Court case of Jones v. Killingsworth, 403 S.W.2d 325. In our opinion that case does not support appellants’ contention. In that case it was held that an oil, gas and mineral lease pooling clause limiting units pooled for oil to an area not substantially exceeding 40 acres but permitting units to conform in size with those prescribed by government regulations, if such regulations prescribed or permit larger units, did not authorize a 170.86 acre unit, where the rule governing the field provided that no proration unit should consist of more than 80 acres but permitted the operators to elect to assign an additional 80 acres and receive allowable credit of not more than 160 acres. In the instant case the Railroad Commission did not by rule or regulation prescribe or permit larger units in the Hull field than the 40 acre limit provided for in the pooling clause of the lease. The pooling instrument executed by Mecom on December 29, 1954, pooled a unit of less than 20 acres, an area well within the 40 acre limit. There was no need or occasion for appellee Mecom to rely upon a regulation or rule of the Railroad Commission enlarging such 40 acre provision, if such a rule had existed. Appellants’ contention that the pooled unit was invalid because the Hull field was at all times material hereto classified as a “piercement type” salt dome field, and that in the Hull field there was a complete absence of any spacing or unit rules for oil wells drilled therein, is not well taken and is overruled. The pooling unit complained of was for less than 20 acres and well within the 40 acre limit provided by the pooling provision of the lease.

Mecom as lessee had the right and power to pool the acreage covered by the lease with other leases in the immediate vicinity when m his judgment such pooling “would promote the conservation of oil and gas from said premises.” The lessee in such cases is of course required to exercise good faith in making a determination to pool. Tiller v. Fields, 301 S.W.2d 185, (Ct.Civ.Apps.1957). The affidavits of ap-pellees in support of their motion for summary judgment clearly show good faith. Appellants have not denied but on the contrary have admitted that the unit designation in question was made in good faith. The court did not err in granting appellees’ motion for summary judgment. Appellants’ points are all overruled.

The judgment is affirmed.


author: RENFRO, Justice.

text:
    Mrs. Leon McBROOM, d/b/a McBroom Trucking Company et al., Appellants, v. Mrs. Fay SOUTHER, next friend for Richard D. Souther, Appellee.
    No. 16778.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 16, 1966.
    Rehearing Denied Jan. 13, 1967.

      Nelson & Sherrod and David A. Smith, Wichita Falls, for appellants.
    Peery, Wilson & Jameson and Don B. Morgan, Wichita Falls, for appellee.
   OPINION

RENFRO, Justice.

Suit was brought by Mrs. Fay Souther as next friend for her minor son, Richard D. Souther, against McBroom Trucking Company, Vallee Graves and Norris E. Crumpton for damages for personal injuries sustained by Richard when his leg was broken when run over by a truck.

The evidence was such that the jury •could reasonably have found plaintiff guilty of contributory negligence. The jury, however, acquitted him of any acts of negligence. The evidence was such that the jury could have reasonably found a substantially smaller sum than the $6,500.00 allowed by the jury for loss of earning capacity.

The jury found $2,500.00 for future medical expenses although plaintiff’s own doctor had placed future medical expenses at less than $400.00. There was no other evidence on future medical expenses.

One of the jurors, Mrs. Ellison, testifed at the hearing on the defendants’ motion for new trial. Her testimony, material herein, was that she was the only woman on the jury. While the case was on trial Mrs. Souther said to her twice outside the jury room that she needed money for the child, that she needed money for the child’s leg. Witness knew Mrs. Souther was talking about Richard.

In the order overruling the motion for new trial the court found that “one of the Plaintiffs (Mrs. Souther) herein had talked to the juror, Mrs. Maybelle Ellison during the course of the trial, as testified to by Mrs. Ellison * * (Emphasis added.) The court held, however, that defendants failed to establish that they were harmed by the said communication.

Plaintiffs contend the defendants learned of Mrs. Souther’s conversation with Mrs. Ellison during the trial and waived any objection defendants might have had by failing at that time to obtain testimony on the misconduct of Mrs. Souther, and by failure to move for a mistrial.

That a conversation was held between Mrs. Souther and the juror was made known to defendants’ attorney. He mentioned the matter to plaintiffs’ attorney and the trial judge. The fact of the conversation, but not the subject matter of the conversation, was reported to the judge. On the hearing of the motion for new trial the judge stated: “I asked her (Mrs. Souther) at that time whether or not there had been any such conversation, and she denied it, or at least gave me to understand that it was nothing more than a passing comment in the hall * *

Remarkedly similar to the instant case was the misconduct in Texas Employers’ Insurance Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958). In that case the Supreme Court, in discussing the applicable rules (Rules 1, 327, 434 and 563) held: “There is no requirement that the party asserting error must show injury beyond a reasonable probability in order to secure a reversal of a judgment. And in estimating the probability of injury, the act of overt misconduct in itself may be the most compelling factor in establishing prejudice. It is so in this case.” The court held further: “When a juror has been subjected to an improper influence, such as that disclosed by the present record, it is difficult and often impossible for that juror to maintain an impartial attitude as between the litigating parties. And this is true whether the juror is prejudiced in favor of or against the party guilty of the improper act. In any event the trial cannot thereafter proceed to a fair and impartial jury as contemplated by Article 1, § 15 of our Constitution.”

The Supreme Court, citing Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115; Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856, stated that Rule 327 does not preclude the drawing of logical inferences of prejudice and unfairness from the overt act itself for an action or occurrence may be so highly prejudicial and inimical to fairness of trial that the burden of going forward with proof of harm is met, prima facie at least, by simply showing the improper act and nothing more.

It was further held that, in the fact situation before the Court, “The inference of unfairness and prejudice attending it is so strong that it could hardly be rebutted except by a showing that plaintiff was entitled to judgment as a matter of law.”

Certainly it cannot be said in the instant case plaintiff was entitled to judgment as a matter of law.

In discussing waiver in the McCaslin case the Court said: “There is no issue of waiver in this cause. Before the cause was submitted to the jury, the trial judge received an incomplete and inaccurate report of the meeting and conversation between Mrs. McCaslin and Miss Morrison. He had been told that the case was not discussed and so informed the attorneys for the litigants. The true facts were different from what the judge supposed them to be. We have no doubt that at this juncture, had the judge or the attorneys for the litigants known that the plaintiff had improperly importuned the juror to aid her in securing a favorable verdict, the jury would have been discharged and a new trial ordered.”

So in the instant case the trial continued with attorneys and judge believing that only passing remarks, not connected with the case, had been made by Mrs. Souther. In all probability if the attorneys and the judge had known that a juror had been improperly importuned the jury would have been discharged and a new trial ordered. Of course prompt action should be taken when such an irregularity is observed, but the proper action consisted in drawing the attention of the court thereto with inquiry made such as was done in this case when Mrs. Souther failed to disclose complete information aboüt what she had said to the juror. In <dew thereof the defendants should not lie held to have waived the error when it was not until afterward that the fact of false answer or concealed information was disclosed. See Personal Injury Litigation in Texas, Chapter 15, “Jury Misconduct,” § 15.12, “Waiver of Misconduct,” and § 15.3, “Prompt Action Upon Discovery of Misconduct.”

We hold that probable prejudice to defendants was shown under Rules 327 and 434, and defendants’ motion for new trial should have been granted.

Defendants also contend the finding of $6,500.00 for loss of earning power was excessive. While the amount found by the jury was quite liberal, under the record, we are unwilling to say it was excessive. In view of another trial, we overrule the point on excessiveness, and forego discussion of the evidence bearing on plaintiff’s loss of earning power.

Reversed and remanded.


author: CHAPMAN, Justice.

text:
    Johnny R. DOVER, Appellant, v. CASUALTY RECIPROCAL EXCHANGE, Appellee.
    No. 7671.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 19, 1966.

      Clayton, Kolander, Moser & Templeton, Amarillo, Clyde L. Hays, Amarillo, of counsel, for appellant.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellee.
   CHAPMAN, Justice.

We believe this suit, when the chaff is weeded out, actually seriously involves only a question concerning the form of judgment that should have been rendered by the trial court in which there is no further pending controversy. The parties will be referred to as in the court below.

Plaintiff filed suit for damages for injuries sustained while an employee of Soft Water Service Company of Amarillo and sought to recover from the defendant, Casualty Reciprocal Exchange, plaintiff’s employer’s carrier of a policy of workmen’s compensation insurance, $35.00 per week for 401 weeks with accelerated payments under Section 15a, Article 8306, Vernon’s Ann. Texas Revised Civil Statutes, or alternatively that defendant be given its discount, the court allowing it credit for any installments of compensation that had been paid, and that plaintiff recover $12,250.00 in a lump sum.

The parties subsequently filed a written stipulation in order that plaintiff might prosecute a suit against the third party tort feasor before the termination of the court action. The suit was then settled with a division made as to plaintiff’s recovery, the subrogation recovery and the amount plaintiff’s attorneys were entitled to recover therefrom.

A motion was then filed by defendant for summary judgment, stating the amount recovered by plaintiff and- his attorneys exceeded any amount which could be recovered in the present suit. The computation therein is not challenged, but by unsworn answer to defendant’s motion for summary judgment plaintiff asserted additional medical expense, the effect of which would be that his potential recovery would exceed by $120.16 the credit claimed by defendant. Only unsworn pleading asserted the same, which is insufficient in view of the summary judgment components constituting a part of defendant’s motion for summary judgment. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958).

Point 5 contends the attorneys’ fees of $4,461.62 and expenses recovered in the claim against the third party should not be included in arriving at the amount to which the compensation carrier is subro-gated. The point is not well taken.

Plaintiff was privileged to contract with attorneys for their fee but there still remains one indivisible cause of action prosecuted in the name of the plaintiff, from which the attorneys’ fees are derivative. Dow Chemical Company v. Benton, 163 Tex. 477, 357 S.W.2d 565 (1962). Section 6a of Article 8307, Texas Revised Civil Statutes, makes no provision which could be construed as burdening the insurance carrier with any part of the claimant’s attorneys’ fees. To the contrary, the insurance company may recover its expenses incident to recoupment, “ * * * together with a reasonable cost of enforcing such liability.” This provision has been held to entitle the carrier to also recover its reasonable attorneys’ fees. Traders & General Ins. Co. v. West Texas Utilities Co., 140 Tex. 57, 165 S.W.2d 713 (1942); Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Fort Worth Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865 (1952); Pan American Insurance Co. v. Hi-Plains Haulers, Inc., 163 Tex. 1, 350 S.W.2d 644 (1961).

If we understand appellant’s contention here it is that its attorneys’ fees should not be included in the amount of recovery awarded, since the insurance company is entitled to recover their reasonable attorneys’ fees in recoupment. If this appears unfair to appellant, the place to change it is not by legislative action through judicial decree, but through the legislature which meets every two years.

This brings us to the contention that the judgment should not preclude the right of plaintiff to recover future medical expenses.

Both parties submitted judgments, with plaintiff’s suggested judgment so providing. The trial court refused to enter such judgment but entered a take-nothing judgment for defendant. This contention, as stated by counsel for defendant in oral argument, appears to be “much ado about nothing” for the reason that defendant admitted through counsel in oral argument before this court that it has no objection to a finding that the judgment of the trial court is not res judicata as to the right of plaintiff to bring a suit for future medical compensation after the termination of the present suit, should there be any. We so hold. Article 8307, Sec. 5, Texas Revised Civil Statutes, as amended Acts 1957, 55th Leg., p. 1186, ch. 397, sec. 2; Western Alliance Insurance Company v. Tubbs, 400 S.W.2d 850 (Tex.Civ.App.-Waco, 1965, writ ref’d n. r. e.). The court in the case just cited, held the 1957 amendment to Article 8307 “* * * excludes from the court’s jurisdiction expenses for items not furnished before the date of judgment” and “ * * * makes the first final award 'or’ judgment res judicata as to expenses only up to the date of award.” In so holding the court simply followed the plain wording of the 1957 amendment to the effect that the first final “ * * * judgment * * * shall not be res judicata of the obligation * .* * to furnish or pay for any such items [medical, etc.] after the date of said * * * judgment.”

The other points concern the granting of summary judgment for defendant. The transcript shows the judgment submitted by plaintiff himself provided for a summary judgment for defendant but that nothing therein should prejudice any right which might exist thereafter for prosecution for future claims for medical aid, hospital services, nursing, etc. We believe the authorities cited in the preceding paragraph are decisive of the question that the judgment of the trial court is not res judicata as to the right of plaintiff to bring a suit for future medical compensation after the termination of the present suit. That there may be no question about it, and in view of appellant’s admission in oral argument, the summary judgment rendered is accordingly reformed to provide that such judgment shall not be res judicata of the right of plaintiff to prosecute his claim for the medical services provided for in such statute. As so reformed, the judgment is affirmed.


author: WALTER, Justice.

text:
    Jess W. MORRIS et ux., Appellants, v. Elward LONG et al., Appellees.
    No. 4142.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 9, 1966.
    Rehearing Denied Jan. 13, 1967.

      Richard W. Fairchild, Nacogdoches, for appellants.
    Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellees.
   WALTER, Justice.

Jess W. Morris and wife filed suit against Elward Long and J. D. Harkrider for personal injury damages. Long was driving a wrecker belonging to Harkrider and ran into the rear of an automobile driven by Mrs. Morris. Based on a verdict, the court rendered judgment that plaintiffs take nothing.

The plaintiffs have appealed. They contend the court erred in failing to grant them a new trial because a juror gave an erroneous answer on voir dire examination. We find no merit in this point.

On voir dire examination the juror, Eugene Chapman, was asked, “Have you ever had any claims or suits asserted against you or your family?” and he answered “No, sir.” On motion for a new trial Chapman was asked “At the time you gave Mr. Badders that answer was it true to your best knowledge, when you gave him the answer of ‘No,’ was it then true as far as you knew?” He answered “Yes, sir.”

Chapman testified substantially as follows: that during the time he was in the service, stationed in Greenland, his wife was involved in a collision in Nacogdoches; that he came home after his wife’s accident and she told him about her accident; that his wife did not tell him that any person was claiming that she owed them for the damages to the other vehicle; and that his wife had advised him that she had notified their insurance company about the accident. I assumed any claim would be against my insurance company and not against me. To my knowledge there had been no claim against me when I answered the question. There was a discussion about whether Mr. Harkrider had insurance in the jury room. I informed the jury about my wife’s accident and made the statement that if Harkrider had insurance his company would be defending him.

It does not reasonably appear from the record that injury probably resulted to the appellants because of Chapman’s incorrect answer on voir dire examination. Rule 327 Texas Rules of Civil Procedure; Childers v. Texas Employers’ Insurance Association (1954), 154 Tex. 88, 273 S.W.2d 587.

The jury found Long guilty of failing to keep a proper lookout, failing to properly apply his brakes and driving too fast and that each of such acts was a proximate cause of the collision.

The jury found Mrs. Morris guilty of failing to keep a proper lookout for vehicles behind her car, failing to give an arm signal of her intention to slow or stop, failing to give an arm signal of her intention to turn left and that each of such acts was a proximate cause of the collision. They found that she did not bring her car to a stop immediately before the collision and that she did not abruptly decrease her speed. Appellants contend that each of the findings of proximate cause against Mrs. Morris are so contrary to the great weight of the evidence as to be clearly wrong and manifestly unjust.

Elward Long testified substantially as follows: I have been working for Mr. J. D. Harkrider since 1946. From the city limits to the place where the wreck occurred I was traveling approximately twenty five to thirty miles per hour. The first time I saw Mrs. Morris’ car it was near the top of Orten Hill. It was close to a store near Woodam’s car lot. At that time I was near Woodam’s car lot. I would guess that I was about one hundred feet from Mrs. Morris’ car when I first saw it. I was traveling from twenty to thirty miles per hour but I don’t know how fast she was traveling but I would estimate that she was traveling about the same speed. I continued to watch her car all the way down the hill to the scene of the wreck. It was raining and I had my windshield wipers on. I maintained my same speed until I got about half way down the hill. I don’t know whether she maintained her same speed or not. I gained a little on her. I don’t know how far she was from the intersection when the wreck occurred. I saw her brake lights come on twice. He was asked the following questions and he gave the following answers :

“Q. Did you ever see her stop lights come on at anytime from the time you first saw her car from thereafter?
A. I seen her brake lights come on twice.
Q. Where was she the first time?
A. She was up along about that brick house when she first hit her brakes and the next time I seen them come on she had stopped all at once down there at Shawnee Street, that’s what we call it, it might not be that and I hit my brakes and I just slid on into her.
Q. How far were you behind her when these lights came on the second time?
A. About a car and a half I imagine behind.—
Q. Yes. And you say that her lights came on just once at the rock house and went right back off and the next time that they came on you were a car and a half behind her ?
A. Yes, sir.
Q. And where was her car at in relation to the intersection?
A. I will say she was about, a little past half way of it.
Q. Already passed the intersection?
A. Yes, sir.—
Q. You are saying now that at the time she put on her brake she was already out in the intersection?
A. You mean turning, sir?
Q. I am talking about at the time she put on her brakes the second time was she already out into Shawnee Street?
A. She wasn’t turning on Shawnee Street.
Q. I didn’t ask you about turning. I said was she already out into Shawnee Street, where Shawnee crosses Main?
A. Yes, sir, I would say so, yes, sir.—
Q. Was she going at that time faster or slower or at the same rate of speed as you were at the time she put on her brake the second time?
A. I really don’t know, sir.
Q. Well, when she put on her brake she slid out into the intersection, didn’t she?
A. No, sir, she stopped still and I knocked her out in, I hit her and her car moved some, I don’t know how far because I didn’t even measure it.”

I applied my brakes when I was about “a car and half distance.” I wasn’t going over thirty miles per hour when I applied my brakes. I don’t know whether my truck slowed down any after I applied my brakes but I know I slid. I slid into her and hit the back of her car. I knocked her into a car coming in the opposite direction. I testified on deposition that when I hit her car I was going about twenty miles per hour or at least twenty.

I didn’t see Mrs. Morris give an arm signal or a blinking light signal any time before the accident. I went to her car after the collision and I could see that the left window was up and she rolled it down. If Mrs. Morris had given an arm or a blinker signal as much as one hundred feet before she arrived at the intersection I could have stopped in time to have avoided hitting her. I had been following Mrs. Morris’ car “I believe up there about, I believe Mr. Jacobs lives there, up there by that house up there, that wooden house.” I don’t know how far that is from the intersection.

Mrs. Morris testified substantially as follows: I was involved in an accident on June 24th, 1960. I applied my brakes all the way down the hill to reduce my speed. I intended to turn left on Shawnee street. I gave a blinker signal and an arm signal that I was going to make a left turn. I checked my rear view mirror about where the brick house is and didn’t see anything behind me. That was just before I made my signal. At the time I arrived at the intersection, I couldn’t make a turn because there was a car coming from the opposite direction. I got my first view of the wrecker in a brief split second before the collision by looking in my rear view mirror. At that time it was “right on me.”

We have considered the entire record and find that each of the findings of proximate cause against Mrs. Morris are so contrary to the great weight of the evidence as to be clearly wrong. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The judgment is reversed and the cause is remanded.