author: ARCHER, Chief Justice.

text:
    M. F. MITCHELL, Appellant, v. William BROCKENBUSH et al., Appellees.
    No. 11006.
    Court of Civil Appeals of Texas. Austin.
    Nov. 28, 1962.
    Rehearing Denied Dec. 19, 1962.
    McKay & Avery, Austin, for appellant.
    Camp & Camp, Robert L. Ellett, Cameron, for appellees.
   ARCHER, Chief Justice.

This is an appeal from a judgment rendered by the District Court of Milam County on March 5, 1962, against the defendant M. F. Mitchell, as lessee, and in favor of the plaintiffs, Wm. Brockenbush and members of his family, as lessors, declaring a certain oil and gas lease between the parties to be cancelled, lapsed and terminated in accordance with its own provisions and removed as a cloud on plaintiffs’ (appel-lees) title to approximately 553 acres of land, more or less, in Milam County.

The appeal is founded on seven points assigned as error by the Trial Court in declaring appellant’s lease terminated on grounds of failure to pay delay rentals on March 12, 1960, and on March 12, 1961, when as a matter of law there was no obligation to pay said delay rentals; in declaring appellant’s lease terminated on the ground that there was a failure to obtain production in paying quantities, because there was no evidence to support such finding; that there is no evidence to sustain the judgment; because the great weight and preponderance of the evidence is to the effect that delay rentals had been paid and appellant was engaged in operations for drilling wells; in rendering the judgment because appellees failed in discharging their burden of proof; because the evidence is insufficient to sustain the judgment; and finally the court erred in failing to render judgment for appellant on his cross-action for slander of title.

The first six points are presented and briefed together.

The Minerva oil field was discovered in 1921, and the production is small. The spacing is 300' and ■150', one well to 2.1/6 acres. These being marginal wells there is no fixed allowables.

On March 12, 1955, the lease at issue was made, and covers 6 tracts and provided that for the purpose of determining the amount of any money payment, the land shall be considered to comprise 553 acres. The lease was for a 10 year primary term. Sections 5 and 6 of the lease are as follows:

“5. If operations for drilling a well or excavating a mine be not commenced on said land on or before the 12th day of March, 1956, this lease shall terminate as to both parties, unless lessee on or before that date shall pay or tender by the check or draft of lessee, to lessor, or to lessor’s credit in the Rockdale State Bank at Rockdale, Texas, or its successors, which shall continue as the depository, regardless of changes in ownership of said land, the sum of Five Hundred Fifty Three Dollars, which shall operate as rental and cover the privilege of deferring commencement of operations for the drilling of a well or excavating a mine for twelve (12) months, from said date. In like manner and upon like payments or tenders the commencement of such operations may be further deferred for like periods of the same number of months successively. And it is understood and agreed that the consideration first recited herein covers not only the privileges granted to the date when said first rental is payable as.aforesaid, but also lessee’s option of extending that period as aforesaid, and any and all other rights conferred.
“6. If on any rental date there be neither operations in progress for the drilling of a well or excavating of a mine on said land, nor production therefrom because of voluntary shutdown or for any other reason, this lease shall terminate, unless lessee on or before said date shall make or resume the payment of rentals as herein .set forth; provided if such operations be abandoned within a period of ninety (90) days prior to any rental date or if production ceases within such ninety (90) days’ period, lessee shall have a period of ninety (90) days after such abandonment of-operations or cessation of production within which to commence reworking operations or operation's for the drilling of another well or excavating a mine, or within which to make said rental payment, and the commencement of such operations or the payment of such rental within said ninety (90) days period shall have the same force and effect as though commenced or paid on or before said rental date.”

The bonus in the sum of $2,755.00 was paid. The delay rentals were paid based on a mistaken calculation of 551 acres and such were accepted by the lessors and we' do not consider this minor difference in payments to be of material consequence.

The last deposit of delay rentals was made on March 10, 1959, deferring drilling opera- . tions for a 12 month period. . .

The prime issue in question'is: Were drilling operations and production in paying quantities had during the 12 month period subsequent to March 10, 1960, and thereby keeping the lease in full force and effect?

There appears to be no dispute but that appellant Mitchell did drill wells on the tract, some of which were.dry, the fourth drilled in 1959 was claimed to be a producer, _■ and when tested had a flow of about 4 barrels per- day. An earthen tank was filled; there was a delay of three weeks awaiting the arrival, of a 100 barrel tank, but because of muddy conditions at the well site, delivery could not be made available until the last of February 1960. There was evidence that Mitchell was working on the well during February and March 1960.

Ernest Snyder testified that he worked on the well, pulled the pump once, and the pipe once and burned the paraffin out and put the pipe back and made the well produce oil and that this work was done about the middle of 1960.

The appellant testified as to the drilling and of the trouble he had with the well during the first five or six months because of the high paraffin content. A pumping was started around March 1960 and a 100 barrel tank was filled about half full. That because of the high paraffin content the tubing in the well, after pumping for a week, would have to be pulled and cleaned out, and that this was done four to six times.

The appellant further testified that in July or August 1960, he put the well on a jetting process and has used that method since, and that paraffin does not bother production because the air pressure blows the pipe and production string clean; that the production operation was not expensive; that the electric bills run about $6.00 per month and the well was on automatic production. 113 barrels were sold in March 1961 for $236.95, such sum being now in escrow, because of the refusal of some of the lessors to sign a division order.

Appellees take the position that the lease lapsed and terminated because on March 12, 1960, drilling operations by appellants were not in progress; production in paying quantities was not being obtained from the lease and such was not being done or had on March 12, 1961.

As we have hereinabove stated the question to be determined in this appeal is, was there sufficient evidence submitted to the court that on March 12, 1960, or on March 12, 1961, drilling operations by appellant were not in progress, production in paying quantities was not being obtained from the lease on either of the above dates.

We believe that the trial court erred in rendering judgment declaring the lease contract had lapsed by reason of the failure of the defendant to pay the delay rentals on the 12th of March 1960, or on the 12th of March 1961, and by reason of the failure on the part of the defendant to obtain production in paying quantities up to the present time.

There is no question raised by appellant that the cash delay rentals were paid on either March 12, 1960 or March 12, 1961. The sole issue is, was there drilling operations on the land within the terms of the lease before the expiration thereof, and that there was no commercial production had from the land.

The evidence relied on by the trial judge in entering the judgment was that of the defendant Mitchell, called as an adverse witness, whose testimony we have herein-above referred to and after this evidence the plaintiffs rested.

The defendant called as witnesses a number of persons, one of whom was H. O. Witt who testified as to the drilling of 4 wells for appellant beginning in September 1959 and none were producers except one drilled close to Christmas Day 1959, and drilled the fourth well early in 1960 and tried to make a producer by putting on a pump and air compressor and finally moved his rig off of the lease about May 1, 1960; that he saw Mr. Mitchell a number of times on the lease trying to get production one way or the other.

N. G. Hawkins testified that he was acquainted with the Brockenbush lease and knew Mitchell, and had a lease north of the Brockenbush lease and saw Mitchell working on the lease from December 1st, 1960 to June 1st, 1961. There were other witnesses who testified in a similar manner and related facts similar to the above named witnesses and there is no need to set such out.

On June 1, 1961, appellees wrote the appellant advising him that the lease had lapsed due to the fact that there has been a failure to pay rentals and that the lease had not been produced and demanded a release from appellant.

On June 15, 1961, attorneys for appel-lees wrote a purchaser of the oil and advised it not to pay any proceeds of the oil run on the lease until it, the purchasing company, had a division order executed by each of the interested parties. The net receipt of the purchase in the sum of $236.95 was placed in escrow.

As said in Wisdom v. Minchen et al., Tex.Civ.App., 154 S.W.2d 330, error ref.

“In Morgan v. Houston Oil Company, Tex.Civ.App., 84 S.W.2d 312, 314, it was held: ‘It is well settled that when a lessor determines to forfeit or cancel an oil and gas lease, and puts the lessee on notice thereof, he cannot complain if the latter suspends operations under the contract, pending the determination of the asserted right of the lessor to forfeit or cancel, (cases cited)’. The owners of the working interest were not bound therefore to continue after such notice of forfeiture to develop the lease, and the lease will not be held to have expired because they did not continue such development.”

We do not believe that appellees discharged the burden of proof to establish the lack of production and also the lack of drilling operations in good faith. 31A Tex. Jur., para. 209, p. 378. Morrison et ux. v. Swaim et al., Tex.Civ.App., 220 S.W.2d, 493, er. ref.; Clark v. Holchak, 152 Tex. 26, 254 S.W.2d 101.

In the recent case of Skelly Oil Company v. Archer, Tex., 356 S.W.2d 774, our Supreme Court has said:

“On retrial the burden will be on the Archers to prove that Skelly was not making a profit from operation of the well. If they fail to produce evidence which establishes that fact as a matter of law or fail to obtain a fact finding, supported by evidence, to that effect, the lease should not be terminated. If, on the other hand, the evidence establishes as a matter of law that Skelly was not making a profit from the well or if there is a fact finding, supported by evidence, to that effect, the lease should yet not be terminated unless the evidence establishes as a matter of law or the Archers obtain a fact finding, supported by evidence, that a reasonably prudent operator would not have continued to operate the well under the circumstances."

The judgment of the Trial Court is reversed and judgment is here rendered for appellant declaring; the lease to be in full force and effect. . .

Reversed and rendered.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    INSURANCE COMPANY OF ST. LOUIS, Appellant, v. Bryan C. MILLER, Appellee.
    No. 16084.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 23, 1962.
    Rehearing Denied Dec. 14, 1962.

      McCulloch, Ray, Rembert, Luna & Trot-ti, and Ross H. Hemphill, Dallas, for appellant.
    Thompson,, Knight, Wright & Simmons, and Dan Rogers, Dallas, for appellee.
   DIXON, Chief Justice.

This appeal 'presents only one question: did the trial court commit reversible error in overruling appellant’s first motion for continuance?

On August 18, 1961 appellee Bryan C. Miller filed suit on an insurance policy to recover for loss sustained when hail damaged the roof and fence of his home. Miller’s home is in Dallas, but his working hours are spent in the nearby City of McKinney, Collin County, Texas. Appellant had written the policy through its agent in McKinney, so the action was brought in Collin County.

On- ■ September 29th appellee filed his amended petition. On September 30, at a pre-trial conference the court called for announcements. Both appellant and appel-lee announced ready. On October 9th at the call of the court’s trial docket appellee announced ready, but appellant announced that it would file a motion for continuance. This cause was seventh on the docket. The cause was reached for trial. Appellant’s motion was overruled. After a jury trial judgment was rendered for appellee for $1,638.04.

Appellant’s sworn motion for continuance is in proper form as prescribed by Rule 252, Texas Rules of Civil Procedure.

Appellant alleged in substance that it could not safely go to trial because of the absence of two material witnesses, Ben Blount, Sr., and Charles W. Parish. Depositions had not been taken “because defendant thought that both witnesses would be available when the trial was had”. Their having to be absent could not be foreseen, according to affiant, because of the unexpected Hurricane Carla disaster. Blount was in the Gulf area in connection with the processing of about 4,000 claims. Parish was also in the Galveston-Houston area in charge of an overall survey of damage done by the hurricane. • Both witnesses had earlier made extensive investigation of the alleged damage done to appellee’s roof and fence, and appellant expected to prove by them that the damages claimed by appellee are not so great as that alleged. The testimony they would give could not be obtained from any other source. Appellant expected to procure the attendance and testimony of said witnesses at the next term of court.

During the trial of the case Blount put in his appearance and testified, so we are concerned only with the absence of Parish.

The record contains a bill of exceptions prepared by appellant to which was attached a written report from Parish detailing the results of his investigation of ap-pellee’s claim. Parish stated that the shingles on the south side of appellee’s roof, were No. 2 shingles instead of No. 1 shingles, and that many of them, being of inferior quality, had curled and split. According to the report only a small amount of damage was done by the hail. Parish would have so testified had he been present.

At the trial Miller testified that he had obtained several estimates of the cost of restoring his roof and fence to former condition which estimates varied in amounts from about $700 to about $1900. Being dissatisfied with these estimates he requested appellant’s McKinney agent, A. M. Scott, Jr., who had written the policy, to choose a competent man to investigate and make an estimate. Scott sent Cecil M. Hight, a carpenter and general contractor, to investigate appellee’s loss.

A. M. Scott, Jr., corroborated appellee’s testimony.

Hight, the man sent by Scott, did not know Miller and had never met him. He testified that he spent about an hour on ap-pellee’s roof inspecting and measuring. He testified that all the shingles were No. 1 grade. He saw only a few that were curling or split. He saw extensive hail damage. His estimate for the roof and fence was $1,688.04.

Appellant produced three witnesses, Bill Hosea, J. E. Cotten and Ben Blount, Jr. Hosea is manager of the general agency office in the Dallas area representing appellant. He testified that he had on many occasions investigated hail damage claims. He personally examined appellee’s roof. His testimony was substantially the same as the statements in the report of Parish.

J. E. Cotten was sent by Blount to examine appellee’s roof and submit an estimate. He is a roofing contractor with years of experience. He spent about an hour examining appellee’s roof and fence. His testimony was about the same as Parish’s report. It was his opinion that the roof could be repaired and that the cost would be $267. .

Blount’s testimony was also along the same line as Parish’s report.

It will be noticed that every witness except appellee Miller himself was either connected in some way with appellant or was selected by appellant or its agents to investigate the damage and prepare an estimate. Hight, who made an estimate of $1,688.04 was selected by Scott, appellant’s McKinney agent. Hosea was the manager of the general agent representing appellant. Cotten, who made an estimate of $267, was selected by Blount,, an experienced adjuster in appellant’s employ.

Rule 252 T.R.C.P. provides that a party seeking a continuance must make affidavit that “he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known;” (emphasis ours). In the case now before us affiant in behalf of appellant says he “thought that both witnesses would be available;” but affiant does not state what basis he had for so thinking. The record does not show that Parish ever promised to be present for. the trial. No subpoena was issued for him. There is no showing that he was notified of the date set for the trial.- Affiant does not explain why he could not foresee the absence of a witness who had been away from the Dallas-McKinney area “ever since early September”.

Appellant in support of its appeal cites us to the cases of Robertson v. Robertson, Tex.Civ.App., 291 S.W.2d 452, and Dallas Railway & Terminal Co. v. Durkee, Tex.Civ.App., 193 S.W.2d 222. The facts in those cases were quite different from the facts in this case. The two cited cases are not in point. . .

In point is Fritsch v. J. M. English Truck-Line, 151 Tex. 168, 246 S.W.2d 856, a case in which there was a showing of more diligence than appellant has shown here. Nevertheless our Supreme Court held that there was not due diligence as contemplated by Rule 252 T.R.C.P.

Appellant’s point on appeal is overruled.

The judgment of the trial court is affirmed.


author: DAVIS, Justice.

text:
    Ben D. WILLIS et al., Appellants, v. SABINE RIVER AUTHORITY, Appellee.
    No. 7416.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 27, 1962.
    Rehearing Denied Dec. 18, 1962.
    Olin P. McWhirter, Greenville, Fulton & McClain, Gilmer, for appellants,
    Allen Clark, Greenville, Fred V. Meri-dith, Terrell, Mary K. Wall, Asst. Atty. Gen., Austin, H. P. Kucerá, Dallas, for appellee.
   DAVIS, Justice.

A declaratory judgment suit. The ap-pellee, Sabine River Authority of Texas, a-corporation, filed suit for declaratory judg^ ment against Boles Home, Inc., and.-the appellants as the heirs and legal representatives of W. F. Boles, deceased, and Mary Barnhart Boles, deceased. The appellee is interested in acquiring about 330 acres of land by condemnation proceedings from the Boles Home, Inc. This is part of a tract of land that was conveyed to the Boles Home, Inc., by W. F. Boles and Mary Barnhart Boles by a contract dated November 10, 1923, and a deed dated December 7, 1923. The contract and deed created a “voluntary trust” for the “exclusive” purpose of operating and maintaining an orphan’s home for children, a home for aged people, and others. The appellee alleged in its petition for declaratory judgment certain contents that were in the contract and the deed. The appellee alleged the contract contained the following provisions :

“As hereinbefore stated, the entire absorbing intention of the donors in granting the land hereinbefore mentioned is for the establishment of a Home for Orphans and for their proper care, maintenance, education and spiritual development. Said Home to be maintained for such purpose for all time. Therefore, it is hereby expressly provided, as a condition subsequent, that if said lands and premises should not be used for the purpose of establishing and maintaining for all time such a home to care for, maintain, educate and spiritually develop Orphan Children, and if said property should be diverted from such use and used for other different purposes, then and in either event the title to said property and premises shall revert to us, or either of us, if alive, and if dead, then to our legal heirs or estates.”

The appellee alleged the deed contained the following special provision:

“As hereinbefore stated, the entire and absorbing intention of the donors in granting the land hereinbefore mentioned is for the establishment of a home for Orphans and for their proper care, maintenance, education and spiritual development. Said Home to be maintained for such purpose for all time. Therefore, it is hereby expressly provided as a condition subsequent, that if said lands and premises should not be used for the purpose of establishing and maintaining for all time such a Home by said Church to care for, maintain, educate and spiritually develop Orphan Children, and if said property should be diverted from use and used for other and different purposes, then and in either event the title to said property and premises shall revert to us, or either of us, if alive, and if dead, then to our legal representatives.”

The contract and the deed contained other limitations, but they will not be discussed because of the law of the case.

Appellee made all the surviving heirs and legal representatives and the unknown heirs of W. F. Boles and Mary Barnhart Boles defendants’in the suit. Boles Home, Inc., filed special exceptions to the petition, and denied the appellee had any right of recovery. In the alternative, Boles Home Inc., took the position that the heirs and legal representatives of W. F. Boles and Mary Barnhart Boles should be allowed a minimum of One Dollar under the limitations as set out in the contract and. the deed. It also took the position that the “diversion” that was about to take place was involuntary. The Attorney General of Texas intervened in the lawsuit.

The petition did not state a cause of action against the heirs upon which relief could be granted. The heirs denied all.the allegations in the appellee’s petition.

The trial court entered a judgment that the heirs and legal representatives of W. F. Boles and Mary Barnhart Boles, both deceased, did not have any com-pensable interest in any amount of money that may be awarded to the Boles Home, Inc., in the condemnation proceedings that “may be instituted by the appellee” to condemn the land described in their petition. The condemnation proceeding had already been filed by the appellee, and it offered the petition in condemnation in evidence, without any .reservation whatever, and they are bound thereby. Lock v. Morris, Tex.Civ.App., 287 S.W.2d 500, W.R., N.R.E.

The appellants excepted and have perfected their appeal, bringing forward one point of error.

The suit was brought under Art. 2524 — 1, Vernon’s Ann.Tex.Civ.St., known as the Uniform Declaratory Judgment Act, as taken from the Federal Declaratory Judgment Act. The interest that the ap-pellee expects to acquire is anticipatory. The appellee, a corporation, has already passed a resolution to acquire the property by condemnation, and any future interest that they 'may acquire can not be declared upon by a declaratory judgment. They do not own or hold any interest in the property at this time whatever. In a suit for declaratory judgment there must be an actual justiciable controversy between the parties. Any actual justiciable controversy that may exist in the case as a result of the contract and the deed is between Boles Home, Inc., and the heirs and legal representatives of W. F. Boles and Mary Barnhart Boles.

Chief Justice Hughes in writing on the Declaratory Judgment Act as to its limitations to "cases of actual controversy”, pointed out that the constitutional provisions are operated only in respect to controversies “between parties” in a constitutional sense. He pointed out that the word “actual” is one of “emphasis” rather than of “definition”, and the operation of the Declaratory Judgment Act is procedural only in providing remedies and defining procedure in relation to cases and “controversies”. Aetna Life Insurance Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000. See, also, Rozelle v. Quinn, D.C., 47 F.Supp. 740; Re Estate of S. Anice Cryan, Deceased, 71 A.L.R. 1417.

The appellee can acquire title to the land in question by condemnation proceedings and be fully protected.

A proceeding for declaratory judgment must be based upon an actual, real, bona fide, and justiciable controversy. 19 T.J.2d 147, Sec. 9; 19 T.J.2d 162, Sec. 23. The appellee is not interested under the contract and the deed except for the interest that it anticipates to acquire. 19 T.J.2d 156, Sec. 19. A person must have a right and must be a necessary party to the suit. 19 T.J.2d 166, Sec. 26; 19 T.J.2d 167, Sec. 27. As further evidence of the fact that a person must have an actual justicia-ble interest in the property involved in the litigation see the following authorities: Tippet’s and Newbould’s, Contracts, 37 Ch. D. 444 (1887); Nichols’ and Von Joel’s, Contracts, 1 Ch. 43, (1910); Strong v. Hancock, 201 Cal. 530, 258 P. 60; Whitney v. Randall, 58 Idaho 49, 70 P.2d 384; Bringardner Lumber Co. v. Knuckles, 253 Ky. 292, 69 S.W.2d 345; Merkley v. Merkley, 12 Cal.2d 543, 86 P.2d 89; “Anderson, Declaratory Judgments”, Secs. 8, 42, 43, 49, 65, 66, 67, 100, and 313; Brooks, et al., v. Erbar, Tex.Civ.App., 186 S.W.2d 372, W.R., W.O.M.

A suit under the Uniform Declaratory Judgment Act will not lie for a judgment declaring an order calling an election invalid and of no effect. Killam et al. v. Webb County et al., Tex.Civ.App., 270 S.W.2d 628, W/R, N.R.E.

The appellee can not amend its petition to show an actual interest or a jus-ticiable controversy existing under the contract and the deed between it and the Boles Home, Inc., and the heirs and legal representatives of W. F. Boles and Mary Barnhart Boles. Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466. The pleadings govern the jurisdiction of the courts. A lack of jurisdiction of a court can not be waived. Jones et al. v. Maples et al., Tex.Civ.App., 184 S.W.2d 844.

There is no other alternative than to sustain the point of error and dismiss the cause of action. 19 T.J.2d 171, Sec. 30; 26 C.J.S. Declaratory Judgments §§ 151, 359.

The Commission of Appeals of Texas in an opinion approved by the Supreme Court, Justice Smedley wrote on the law relative to condemnation proceedings in cases such as this. Houston North Shore Railway Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 108 A.L.R. 1508. There were approximately 170 condemnees in the case. Many of the condemnees filed suits against each other in the District Court prior to the trial of the condemnation proceeding.

It is true the County Court has no jurisdiction to decide questions of title to real property. It can only condemn the property and hold the money in abeyance until a court of competent jurisdiction has decided the issues. 22 T.J.2d 333, Sec. 24; City of Houston v. Culmore, 154 Tex. 376, 278 S.W.2d 825.

There being no actual justiciable controversy between the appellee and the Boles Home, Inc., and/or the heirs and legal representatives of W. F. Boles and Mary Barnhart Boles, both deceased, the point of error is sustained, the judgment of the trial court is reversed, and the case is dismissed as to appellants.


author: COLEMAN, Justice.

text:
    W. L. NORMAN, Appellant, v. B. V. CHRISTIE & CO. et al., Appellees.
    No. 13997.
    Court of Civil Appeals of Texas. Houston.
    Nov. 29, 1962.
    Rehearing Denied Dec. 20, 1962.

      John H. Jenkins and Herbert Finkelstein, Houston, for .appellant..
    Milas C. Bradford, Jr., Houston, attorney, and Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellees.
   COLEMAN, Justice.

This is a suit for contribution between joint venturers ¿rising by reason of a judgment against appellee, B. V. Christie & Co., in favor of the City of Houston.

The case was tried to the court without a jury and no findings of fact or conclusions of law were requested or filed. The parties stipulated that B. V. Christie & Co. paid to W. L. Norman $4,000.00 in cash, which amount represented one-half of the fee received by B. V. Christie & Co., after deducting expenses, for services rendered as fiscal agent to Harris County Fresh Water Supply District No. 23.

Appellant has conceded that the facts set out in appellees’ pleadings, and quoted, or summarized below, are true:

“W. L. Norman was associated with B. V. Christie & Co. under a contract by virtue of which he was entitled to a percentage of the net profit on any transactions or business which he originated and were accepted by B. V. Christie & Co.” It was through the efforts of W. L. Norman that B. V. Christie & Co. secured a contract with Harris County Fresh Water Supply District No. 23 to act as its fiscal agent and financial adviser. B. V. Christie & Co. was paid $9,750.00 by the District and “delivered to W. L. Norman fifty per cent of that amount (less certain expenses) which represented Norman’s share of the Fiscal Agent’s fee in accordance with the. contract between Norman and Christie.” Thereafter the District sued Christie and in Cause No. 426,876-C, which, on appeal, is reported in Tex.Civ.App., 317 S.W.2d 219, recovered $9,750.00 plus interest from June 28, 1957.

In Cause No. 426,876-C in the District Court of Harris County, Texas, the trial court found as a fact that the contract between Christie and the District resulted in granting to Christie a discount on the bonds issued by the District which Christie purchased. The District bonds were sold to-Ketcham & Nongard. Christie participated in the purchase and thereafter received and sold some of the bonds at a profit. The trial court concluded as a matter of law that the payment by the District to Christie of the $9,750.00 fiscal agent’s fee violated Article 7939, Texas Revised Civil Statutes, requiring such bonds to be sold at not less than their face value and accrued interest. These findings and conclusions were introduced into evidence apparently by agreement. Norman was not joined as a defendant in the suit for recovery of this fee and judgment was rendered against Christie only. The Court of Civil Appeals affirmed the judgment of the trial court. Christie has paid the judgment.

It is not questioned that the agreement between Norman and Christie constituted them partners or joint venturers. Ordinarily a partnership or a joint venture implies a community of interest both as to profits and losses, if any. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 59 A.L.R.2d 1011. The judgment paid by Christie was a result of liability incurred in the prosecution of the joint venture, and the rule is well established that one partner paying a firm debt has a right to contribution from the other members of the partnership. 32 Tex.Jur., Partnership, § 57, pp. 308-310.

Appellant contends that since appellees by this suit seek to recover profits arising from the sale of water district bonds in violation of Art. 7939, T.R.C.S., and the public policy of the State of Texas, the court erred in failing to leave the parties where it found them and in entertaining this suit.

The Supreme Court of Texas considered ,the rules of law applicable to such cases -in Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146, where the Court said:

“The general rule that denies relief to a party to an illegal contract is ex-, pressed in the maxim, In pari delicto potior est conditio defendantis. 17 C.J.S. Contracts Sec. 272, p. 656. The rule is adopted, not for the benefit of either party and not to punish either of themj but for the benefit of the public. 12 Am.Jur. p. 729, Sec. 214. In many cases relief is granted to the party who is not in pari delicto. American National Ins. Co. v. Tabor, 111 Tex. 155, 230 S.W. 397; Pioneer Mutual Compensation Corp. v. Diaz, 142 Tex. 184, 177 S.W.2d 202; Graham v. Dean, 144 Tex. 61, 188 S.W.2d 372; 12 Am.Jur. pp. 734, 735, Sec. 217. It has been said that even where the parties are in pari delicto relief will sometimes be granted if public policy demands it. 12 Am.Jur. pp. 729, 730, Sec. 214. There is often involved, in reaching a decision as to granting or withholding relief, the question whether the policy against assisting a wrongdoer outweighs the policy against permitting unjust enrichment of one party at the expense of the other. The solution of the question depends upon the peculiar facts and the equities of the case, and the answer usually given is that which it is thought will better serve public policy. Graham v. Dean, 144 Tex. 61, 188 S.W.2d 372; Scott’s The Law of Trusts, Vol. 3, pp. 2196-2197, Sec. 422; Benefits under Illegal Transactions, by John W. Wade, 25 Tex.Law Review, pp. 31-62.”

The contract tainted with illegality is the contract between Christie, acting for the joint venture, and the Water District. The agreement between Christie and Norman establishing the basis for joint participation in the venture was not illegal. This agreement, however, did not form a general partnership. The parties were to be associated only in items of business originated by Norman and accepted by Christie. Proof of this agreement, the judgment against Christie, and of the release showing payment could not establish that Norman was liable for contribution. Introduction into evidence of the contract between Christie and Norman would not establish that Norman participated in the particular transaction out of which liability to the District arose. It was necessary that evidence be produced showing that the employment of Christie & Co. by the District resulted from negotiations begun by Norman, and that the judgment against Christie was an obligation of the joint venture.

In Stone v. Robinson, Tex.Com.App., 234 S.W. 1094, the court said :

“ * * * To determine if a demand connected with an illegal act can be enforced, the test is whether the plaintiff requires any aid from the illegal transaction to establish his case. If he does, then he cannot maintain his action. If he does not, the illegal transaction is not permitted to be a defense to his cause of action. Read v. Smith, 60 Tex. 379; Wiggins v. Bisso, 92 Tex. [219] 222, 47 S.W. 637, 71 Am.St.Rep. 837; Oliphant v. Markham, 79 Tex. [543] 547, 15 S.W. 569, 23 Am.St.Rep. 363.”

In Pioneer Mutual Compensation Co. v. Diaz, 142 Tex. 184, 177 S.W.2d 202, the court said: “ * * * The test of whether a demand connected with an illegal transaction may be enforced at law is whether or not a case may be established without reliance on the illegal transaction.”

In Morrison v. City of Fort Worth, 138 Tex. 10, 155 S.W.2d 908, the Supreme Court of Texas said:

“In the case at bar the plaintiff sues for that which a valid law of the State compelled the City to pay her deceased husband. She seeks recovery, not under the contract, but under a mandatory State statute. In order to establish her cause of action the plaintiff requires no aid from the illegal contract. Under such a record, the illegal contract constitutes no bar to the plaintiff’s cause of action. This is because of the settled rule in this State that, even though a demand is in some way connected with an illegal transaction, still recovery may be had if the plaintiff requires no aid from the illegal transaction to establish his case. Oliphant v. Markham, 79 Tex. 543, 15 S.W. 569, 23 Am.St.Rep. 363; Beer v. Landman, 88 Tex. 450, 31 S.W. 805; Hall v. Edwards, Tex.Com.App., 222 S.W. 167.”

While we have found no case in which a partner sought contribution by reason of the payment of an obligation arising out of an illegal contract, a proper disposition of such a case depends on whether or not the plaintiff requires aid from the illegal transaction to establish his case. In making such a determination it is necessary to bear in mind the rule that if a party can show a complete cause of action without being obliged to prove his own illegal act, although said illegal act may appear incidentally and may be important in explanation of other facts in the case, he may recover. City of Galveston v. O’Mara, Tex.Civ.App., 146 S.W.2d 416, aff’d 138 Tex. 16, 155 S.W.2d 912.

In order to prove that the judgment was a liability of the joint venture, it might have become necessary to prove the contract between Christie and the District, not for the purpose of enforcing the contract, but to show that the judgment was an obligation of the joint venture. It was not necessary to introduce the contract into evidence in this case for the reason that appellant, in his pleadings, admitted participation in the joint venture from which the judgment resulted. However, it appears from appel-lees’ pleadings that the judgment secured against Christie & Co. was based on findings of fact that the payment made to Christie '& Co. by the District was in violation of the laws of the State of Texas.

In any event, proof of the illegal contract merely appears incidentally in explanation of the judgment rendered against Christie & Co. Proof of the terms of the contract between Christie & Co. and the District was not required in order for Christie & Co. to establish a complete cause of action against Norman. Neither was it necessary to show the facts developed in the trial at which the City of Houston recovered the judgment against Christie & Co. The rule of City of Galveston v. O’Mara, supra is applicable.

Appellees contend that in this case the public policy against permitting unjust enrichment outweighs the policy against assisting a wrongdoer. They contend that the public policy would be better served by requiring appellant to give up his profit than by denying appellees assistance in recouping their loss. The parties are in pari delicto. There is no suggestion in the record that either of the parties had any specific intent to commit an illegal act. Since it is not the purpose of this rule of law to benefit or punish either of the parties, we consider that the policy against permitting unjust enrichment outweighs the policy against assisting a wrongdoer. Lewis v. Davis, supra.

Appellees’ cause of action is not based on appellant’s duty to return to appellees money paid to him under a mistake of fact as to the profit realized by the venture. The relief sought is enforcement of the obligation assumed by appellant as a participant in the joint venture to share the losses, if any, as well as the profits.

Appellees have assigned error to the action of the trial court in failing to render judgment in their favor for the additional sum of $875.00, which was one-half of the expense incurred in rendering the services required by the contract with the District, and was deducted from the supposed profit before appellant received his share. Appel-lees have paid the judgment in full. The judgment in amount of $9,750.00 plus interest was an obligation of the joint venture. Appellees’ cross-point is sustained.

The judgment of the trial court is reformed to award appellees a recovery of $4,-875.00 plus interest at 6% from June 28, 1957, together with costs, and, as reformed, is affirmed.


author: WILLIAMS, Justice.

text:
    Buster LYON, Appellant, v. George Allen WOOD et al., Appellees.
    No. 16088.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 30, 1962.

      Coon, Dedman, May & Hoffman, and Marvin David Shwiff, Dallas, for appellant, on appeal only.
    Allen Melton and Brown & Elliott, Dallas, for appellees.
   WILLIAMS, Justice.

Suit by George Allen Wood and his former wife, Ruth Wood Flannagan,' against Buster Lyon, d/b/a Buster Lyon Auto Company, to recover actual and exemplary damages for wrongful conversion, of plaintiffs’ automobile. Plaintiffs alleged fraud and deceit which resulted in the wrongful conversion. Following a jury trial judgment was rendered for plaintiffs in the sum of $75 actual and $2,000 exemplary damages.

Appellant Lyon assails the judgment of th.e trial court in twelve points of error. The essence of appellant’s points one through ten, which have been grouped together, is that the facts .revealed by the record demonstrate that appellees have no cause of action against appellant, as a matter of law, and therefore the trial court fell into error in failing to sustain appellant’s motion for instructed verdict and motion for judgment non obstante veredicto. These points necessitate a careful review of the evidence.

On March 9, 1959, appellees purchased a 1952 Buick automobile from appellant Lyon, a used car dealer. The consideration for the sale was $195, payable $90 cash and the balance in weekly installments of $12.50 each. Appellees made the down payment as well as the first installment payment but then defaulted. On April 6th, 1959 appellant took possession of the automobile by authority of the terms of a chattel mortgage executed by appellees. The automobile was returned to the used car lot of appellant but not sold at that time. On April 20th, 1959 and again on April 21st, 1959 appellees went to the used car lot where they observed the automobile with a “for sale” sign placed on the windshield announcing the price of $195. On each occasion appellees advised appellant that they wanted to redeem the car by making payments of the amount due. Appellant told appellees that he had already sold the automobile and that they could not have it back. While on the used car lot appellees observed two prospective customers inspecting the automobile. On both the 20th and 21st of April appellees offered to pay the balance due on the automobile and any reasonable cost incident to repossession. This tender was refused. Appellees consulted an attorney on April 21st and such attorney called appellant and demanded the return of the automobile, advising appellant that appellees would .pay all charges together with the balance due on the mortgage. Appellant refused the tender stating that the automobile had been sold. On the same day appellees sent a friend to the used car lot of appellant and had him offer to purchase the automobile for $195. On the trial of the case appellant admitted that the automobile had not be.en sold when appellees made their offer and demanded the return thereof.' Appellees never regained possession of the automobile and it was later sold by appellant. 1.

The jury found that the market value of the automobile in April 1959 was $195. The undisputed outstanding indebtedness was $120 leaving a balance of $75 which the jury found to be actual damages. The jury further found that appellant had represented to appellees that the car had been sold; that such fact was not true; that appellant represented to appellees that the automobile had been sold by him and that plaintiffs could not get the automobile back; that such fact.was not true; that appellees offered to pay the appellant in full the obligation due on the automobile on April 21st, 1959; that the fraudulent representations made by appellant were intentionally made by him for the purpose of inducing appel-lees to abandon their claim to the automobile; that appellees believed and relied up■on such representations made by appellant; that failure of appellant to accept appellees’ ■offer constituted malice and that appellees should be awarded exemplary damages in the sum of $2,000.

The mortgage in question contained the following essential provisions:

“In case default be made the payment of said debt, or interest, or any installment of said note * * * the whole amount herein secured, remaining un■paid shall at once become due and payable, or mortgagee or assigns may, without notice or demand, foreclose the mortgage by sequestration, receiver•ship or otherwise, and mortgagee or as■signs-is also hereby authorized to enter upon the premises where said goods and chattels may be, arffi remove and sell the same, and all equity or redemption.of the mortgagor therein, either at public auction at' the Courthouse door or any county in the' State of Texas, or elsewhere, or by private sale, without potice, for cash or on credit at Dallas, Texas '* '* '* mortgagee'or his assigns shall first pay the cost of foreclosure of this mortgage and the expense of purchasing, taking, keeping, advertising and selling said goods and chattels * * * or other expenses incurred thereunder * * * and apply the residue towards the payment of said indebtedness or any part thereof in such manner as mortgagee or assigns may elect, rendering the surplus, if any, unto the said mortgagor, his executors, administrators and assigns upon demand.”

Appellant contends that his actions in this case were justified by the rights granted him by the mortgage and. therefore, as a matter of law, there could be no conversion. With this contention we are unable to agree. By taking such position appellant postulates the performance of all conditions precedent contained in the mortgage contract so as to effectively accomplish a non-judicial foreclosure of the mortgage lien. However, while it is true appellant took possession of the mortgaged property peacefully, it is equally true that he did not do that which was also required of him in the mortgage contract, namely, sell the property and account for the proceeds. The taking alone is not sufficient to amount to a non-judicial foreclosure. The taking must be followed by the sale in accordance with the terms of the mortgage. The repossession of the property covered by the mortgage does not change the status of the parties as mortgagor and mortgagee. By taking possession of the property the seller protects his security. The seller is still the holder of the mortgage and his interest in the automobile is not increased. His repossession of the property gives him a right to go further and sell the same, applying the proceeds to the principal due, plus any charges or expenses incurred in repossession. The status of the parties does not change until the purchaser satisfies the debt at a public or private sale of the property involved.

After repossession and prior to sale appellant assumed the added responsibility of a trustee of the property for the appellees’ interest therein. Until the sale was consummated _ appellees had a right to reacquire the automobile upon paying the obligation due plus expenses.

It is our opinion that the actions and conduct of appellant following peaceable repossession, including his refusal to accept the tender of appellees, together with false representations found by the jury, constitutes an illegal conversion of the automobile. In 12 Tex.Jur.2d “Chattel Mortgages” § 80, p. 107, the rule is announced :

“In General, Foreclosure may be accomplished by a sale of the mortgaged property under a power conferred in the instrument or by an order of the proper court decreeing foreclosure. Whatever the respective rights prior to foreclosure, it is only through a foreclosure that the lien for security is merged into a title to the property or its proceeds. Hence any unauthorized appropriation of the property by the mortgagee before there has been a foreclosure renders him liable as for a conversion or trespass.”

Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 7-A, Ch. 111, § 4727, pp. 72-73 announces the rule: .

“This right of the mortgagee is subject, however, to the equity of redemption in the automobile, and if. the mortgagee takes possession of the automobile under the chattel mortgage after default, he must either sell it according to the terms of the chattel mortgage or become liable to the chattel mortgagor for the value of the car to be applied on the indebtedness secured by the chattel mortgage. Exercise of dominion over a repossessed vehicle prior to purchase thereof in foreclosure proceedings is a conversion, * * *.”•

In the case of John E. Morriss v. O’Neal, Tex.Civ.App., 109 S.W.2d 1156 the court - said:

“It is well settled that a mortgagee may avail himself of the terms and provisions of a mortgage instrument, without being liable for a conversion. (Citing cases). In seizing and selling chattels under a power of sale, however, the mortgagee must not extend the authority given. In a sense he is the trustee for the mortgagor, and his duties are those of a trustee. As well stated in Block Motor Co. v. Melia, et al., [Tex.Civ.App.] 247 S.W. 666, ‘He cannot claim the property as his . own and sell it for his own benefit, and then defend under the power of sale given in the mortgage. If he deals with the property as his own and sells it as his own, he is guilty of a conversion.’ ” ■

That a conversion may consist of the wrongful detention of chattels under an assertion of right inconsistent with the owner’s general dominion is supported in Alexander Trust Estate, et al., v. Lindsey Drug Co., Tex.Civ.App., 214 S.W.2d 475; Neyland v. Brammer, Tex.Civ.App., 73 S.W.2d 884; Crawford v. Thomason, 53 Tex.Civ.App. 561, 117 S.W. 181 and Parchman v. Parchman, Tex.Civ.App., 239 S.W.2d 902.

It being established in this record that the automobile had not been actually sold at the time appellees made a tender of the amount due, plus expenses, we hold that there had not been a non-judicial foreclosure of the chattel and that act on the part of the appellant in retaining dominion over the property in the circumstances amounted. to an illegal conversion of the property.

While it is true that appellees did not actually produce and exhibit the money on the occasion of the offer to pay the balance due plus expenses, on April 21st, we are of the opinion that the tender made by ap-pellees as well as their attorney was valid. Texas Auto Co. v. Clark, Tex.Civ.App., 12 S.W.2d 655.

The issue of liability vel non being clearly shown by the pleadings and evidence in this case, and having carefully reviewed the entire testimony which supports the jury’s finding on the issues of conversion, fraud and deceit, we are of the opinion that this record clearly demonstrates liability on the part of appellant therefore his first ten points on appeal are overruled.

By his eleventh and twelfth points appellant contends that the trial court erred in awarding exemplary damages because such finding was (1) against the overwhelming weight and preponderance of the evidence or (2) if not, then the award of $2,000 as exemplary damages is so excessive as to demonstrate prejudice and malice on the •part of the jury.

That there may be exemplary damages awarded where conversion is accompanied by fraud, malice or gross negligence, is well settled. 14 Tex.Jur.2d (Conversion) § 25; 26 Tex.Jur.2d § 136, p. 121.

We have carefully reviewed the entire record, as we are required to do, and we find oursleves unable to agree with appellant that the finding of the jury relating to •exemplary damages is contrary to the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We come now to a consideration of .appellant’s- contention that the award of $2,000 exemplary damages is grossly excessive. Appellant lays great stress on the fact that the ratio between the actual damages of $75 to the exemplary damages of •$2,000'is approximately 27 to 1. While our •courts have held that exemplary damages should bear a reasonable proportion to actual damages sustained, the ratio will necessarily depend upon the circumstances of each individual case. Our Supreme Court has never fixed any exact ratio between actual and exemplary damages. Such question of excessiveness must be determined from the facts of each particular case in order to determine whether or not the award was made as a result of passion and bias. Houston-American Life Ins. Co. v. Tate, Tex.Civ.App., 358 S.W.2d 645; 17 Tex.Jur.2d § 187, p. 256; Schulz v. Morris, Tex.Civ.App., 201 S.W.2d 144; Flanary v. Wood, 32 Tex.Civ.App. 250, 73 S.W. 1072.

With this rule in mind we have carefully reviewed the evidence relating to the actions and conduct on the part of appellant towards appellees which might afford the basis of an award of punitive damages. The evidence is undisputed that appellant repossessed the automobile peaceably. There is no evidence that appellant threatened appellees either prior to or after the repossession. There is no evidence of harassment or intimidation. There is no evidence of use of abusive language. There is no evidence that appellant informed appellees’ neighbors, friends or creditors of the non-performance of the mortgage contract. There is no evidence of threatening or insulting letters or telephone calls or efforts to blacklist the appel-lees. On the other hand there is positive evidence, as found by the jury, that appellant made repeated misstatements of fact to appellees concerning the sale of the automobile and that appellant, with malice aforethought, led appellees to believe that they could not recover the automobile. There is abundant evidence that appellees were prevented from recovering the automobile after they made a tender of the money due thereon.

With these facts in mind we. are of the opinion that the award of $2 000 exemplary damages is excessive by the amount of $1500. Accordingly, appellees are given ten days from this date in which to file a remittitur of $1500 of the exemplary damages awarded. If they shall do so within said period of time the judgment will be affirmed, as modified, otherwise the judgment will be reversed and the cause remanded. Rule 440, Texas Rules Civil Procedure.

Affirmed on condition of remittitur.

YOUNG, J., not sitting.

ON REMITTITUR

The appellees having filed a remittitur in the amount of $1500, as suggested in the foregoing opinion, the judgment of the trial court is reformed and affirmed in the principal amount of $575, with cost of this appeal being assessed equally against appellant and appellees.


text:
    T. K. HARRIS d/b/a Harris Construction Company, Appellant, v. Mrs. Erel J. LEBOW, Appellee.
    No. 16086.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 23, 1962.
    Rehearing Denied Dec. 14, 1962.
    McNees & McNees, James L. McNees. Jr., Dallas, for appellant.
    Burford, Ryburn -& Ford, and Robert E. Burns, Dallas, for appellee.
   WILLIAMS, Justice.

Appeal from a default judgment. Mrs. Erel J. Lebow, a feme sole, sued T. K. Harris, as an individual doing business. under the name of Harris Construction Company, seeking damages both to her person and property following an alleged trespass. Defendant did not answer and the court rendered judgment by default in the sum of $4,500 representing both actual and exemplary damages. Within ten days the defendant filed a motion for new trial. In this motion defendant admitted that he had 'been served with process bnt excuses himself from filing an answer by stating that he turned the citation and petition over to his insurance company to be answered and relied upon such company to file an answer for him. In his motion for new trial defendant also attempted to evade liability by contending that the trespass, if ■any, was not performed by him individually, but by agents, servants and employees •of a corporation. The trial court overruled the motion for new trial and defendant brings this appeal, seeking to reverse the judgment of the trial court upon fourteen points of error.

By his first point of error appellant contends that since the testimony was not recorded he has been deprived of a statement of facts without fault or negligence. The record contains a statement from the official court reporter to the effect that he did not report the testimony. It is generally true that an appealing.party is entitled to a statement of facts in •question and answer form and if, through no fault of his own, after the exercise of due diligence, he is unable to procure such a statement of facts, his right to have the cause reviewed on appeal can be preserved to him in no other way than by a retrial of the case. Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697; Pacific Greyhound Lines v. Burgess, Tex.Civ.App., 118 S.W.2d 1100. However, appellant has failed to bring himself within this general rule of law and his first point must be overruled for several reasons.

In the first place the failure to obtain a •statement of facts was not assigned as error in appellant’s motion for new trial. The first complaint of appellant for failure to have a statement of facts is contained in an alleged “exception” filed long after the order of the court overruling appellant’s motion for new trial. It has been held that the failure to obtain a statement of facts must be assigned as error and will not be considered when presented only for the first time in the appellate court. 3 Tex.Jur.2d § 487, p. 732; Reagan v. Copeland, 78 Tex. 551, 14 S.W. 1031; Ennis Mercantile Co. v. Wathen, 93 Tex. 622, 57 S.W. 946.

Secondly, appellant made no effort to obtain a statement of the evidence as provided by Rule 377, Texas Rules of Civil Procedure. This rule authorizes the filing of a statement of facts made up by the party, or by the trial court if the parties fail to agree, independently of a court reporter’s notes, of the testimony. Crawford v. Crawford, Tex.Civ.App., 181 S.W.2d 992; 3 Tex.Jur.2d § 474, p. 721. The identical question now presented by appellant was raised in the case of Johnson v. Brown, Tex.Civ.App., 218 S.W.2d 317 and there decided adversely to appellant’s contention here. The record here is silent as to any effort on the part of appellant to pursue his rights as afforded by Rule 377 T.R.C.P. and not having done so he cannot now be said to be without fault or neglect.

Thirdly, appellant requested the trial court to file findings of fact and conclusions of law and such request was complied with. As stated by the court in Crawford v. Crawford, Tex.Civ.App., 181 S.W.2d 992, the appellant emphasized his waiver of any right to complain of the absence of a statement of facts by requesting findings of fact and conclusions of law by the trial court. Appellant’s first point is overruled.

By his second, third, fourth, fifth, sixth, seventh, ninth, tenth, twelfth and thirteenth points appellant contends that there was “no evidence” or “insufficient evidence” to support appellee’s recovery and that the amount of damages awarded appel-lee are manifestly too large. These points must he overruled. As revealed above the record does not contain a statement of facts but there are elaborate findings of fact and conclusions of law by the court. It is a familiar rule of law that in the absence of a statement of facts a reviewing court will presume that the evidence was sufficient to support the verdict and judgment. In such a case we are required to indulge every reasonable presumption consistent with the record in favor of correctness of the judgment of the trial court. Currie v. Hergotz, Tex.Civ.App., 250 S.W.2d 247; Smith v. Ansley, Tex.Civ.App., 257 S.W.2d 156; Consolidated Underwriters v. McCauley, Tex.Civ.App., 320 S.W.2d 60; Stovall v. Scofield, Tex.Civ.App., 325 S.W.2d 221; Sekaly v. Hilton Center, Inc., Tex.Civ.App., 340 S.W.2d 827.

Appellant’s points eight and eleven complaining of insufficiency of appellee’s pleadings to support the judgment relating to damages must also be overruled. We have carefully examined appellee’s petition and find that it is entirely sufficient to support the judgment rendered.

By his fourteenth, and last, point appellant contends that the trial court abused its discretion by overruling appellant’s motion for new trial because the failure on the part of appellant to file an answer was not intentional or the result of conscious indifference on his part. Appellant, in his motion for new trial, stated that he did not file an answer to the petition served upon him because he notified the agent of his insurance company and such agent told him “not to worry about it”, “that it would be taken care of” by the insurance company. He further stated that the failure on his part to file an answer was not intentional nor the result of conscious indifference on his part but was due to the mistaken thought that the insurance company would take care of the case as the agent had advised him.

A party who has been duly served with citation to appear and defend a cause asserted against him may not relieve himself of the burden of the judgment rendered unless he thoroughly demonstrates that he and his agent were free of negligence or conscious indifference. The record in this case clearly demonstrates that the insurance agent who received the citation from appellant became appellant’s agent. There is no showing in this record why appellant’s agent -or the insurance company did not prepare and file an answer within due time. Illustrative of this rulé-is Brothers Department Store, Inc. v. Berenzweig, Tex.Civ.App., 333 S.W.2d 445 wherein it was held that a party who delivered the citation to his attorney who-fails to file an answer such party cannot plead the negligence of his lawyer as justification for such failure. In the case of Grammar v. Hobby, Tex.Civ.App., 276 S.W.2d 311 the defendant delivered the citation to his own agent for delivery to an attorney. The agent negligently failed to-deliver the citation to the attorney on time and default judgment was entered. It was-there held that the defendant had failed to-show that he and his agent were free from-negligence and the court was justified in overruling his motion for new trial. In the case of Farber v. Bolotnikoff (1907) 131 Ill.App. 345; 126 A.L.R. 373 the court held that the defendant in relying upon his insurance company did so at his own peril and risk. See also Leslie v. Spencer, 170 Okl. 642, 42 P.2d 119; Horwitz v. Franklin, 35 Ohio App. 32, 171 N.E. 415; and Bissonette v. Joseph, 170 S.C. 407, 170 S.E. 467.

Appellant relies upon Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 and Hey v. Reynolds, Tex.Civ.App., 319 S.W.2d 194. In the Craddock case de- ' fendant delivered his citation to his insurance company for answer. No answer being filed default judgment was rendered/ On motion for new trial in that case voluminous testimony was presented to explain why the defendant’s insurance company did not file an answer. The Supreme Court held that upon the presentation of such undisputed facts the trial court abused his discretion in not granting a new trial. Likewise in Iley v. Reynolds, Tex.Civ.App., 319 S.W.2d 194 testimony was adduced by defendant which fully explained all of the facts and circumstances surrounding the lack of a timely answer, including illness on the part of the defendant, and a question concerning insurance coverage. More- , over, in that case the evidence clearly demonstrated that defendant never turned the citation over to the insurance company nor its agent until after judgment was entered.

The facts in-this case clearly distinguish it from Craddock and Hey, supra, in that this record is entirely silent as to why the insurance company failed to file an answer as it allegedly agreed to do. Considering this record in its entirety we are of the opinion that appellant has not demonstrated that he is entitled to be relieved of responsibility, and therefore the trial court in this case did not abuse its discretion in ■overruling appellant’s motion for new trial. Appellant’s fourteenth point is overruled.

Judgment of the trial court is affirmed.


text:
    Mary Jane HAMILTON, Appellant, v. M. W. HAMILTON et al., Appellees.
    No. 11018.
    Court of Civil Appeals of Texas. Austin.
    Jan. 9, 1963.
    Rehearing Denied Jan. 30, 1963.
    Cofer & Cofer, Austin, for appellant.
    F. L. Kuykendall, Austin, for appellees.
   ARCHER, Chief Justice.

This is an appeal from a judgment denying appellant any recovery against J. H. Stelfox.

The appellant as plaintiff alleged that she loaned $24,000.00 in August and September, 1958 to M. W. Hamilton and J. H. Stelfox, who were alleged to he engaged in a partnership and joint venture in the Republic of Mexico, and that the money had not been repaid.

Plaintiff sought recovery for a further sum of $7000.00 for money loaned to defendants, who were engaged in a partnership and joint venture under the name Stelham Production, Inc.

Recovery was sought for other money loaned by appellant, but such is not involved in this appeal.

Judgment was awarded-plaintiff against Hamilton-for $74,963.98 and.no appeal has been perfected and the judgment is final.

Trial was. had with the aid of a jury and in reply to issues submitted the jury found that Hamilton and Stelfox were engaged in a joint venture. ' In answer to Special Issue No. 2 the jury found that Hamilton was not' authorized by express agreement between Stelfox- and "Hamilton to borrow money from plaintiff for their joint venture in Mexico.

-The jury found-that.plaintiff .loaned to defendants the sum of $21,000.00. .

Based on the answer of-the jury to Issue 'No. 2 that Hamilton was not authorized by prior express agreement'to borrow money, the Court denied any recovery against Stelfox.

The appeal is based on three points and are:

“I.
“The District Court erred in holding that unless there ivas a prior, express agreement between defendants to borrow money from plaintiff,- ■ defendant Stelfox was not liable for the repayment of money loaned to defendants Stelfox and M. W. Hamilton for their joint venture in Mexico.
“II:
“The District Court erred in refusing to submit to the jury plaintiff’s Requested Special Issues No. 1, 2 and 3 with reference to plaintiff’s cause of action for money loaned to a joint venture of the defendants conducted under -the name of Stelham Production Inc.
“HI.
“The District Court erred in refusing to submit to the jury plaintiff’s Requested Special Issues No. 4, 5 and 6 with reference to plaintiff’s cause of action for money loaned to defendants for the purchase of a Cessna airplane.”

All transactions and events involved in-this case occurred in 1958 and prior to October 18, 1958.on which date plaintiff, Mary Jane Brickman was married to M. W. Hamilton.

Large sums of money were transferred by plaintiff from accounts in New York to Austin, Texas, but since we are concerned only in this appeal with items aggregating $28,000.00, we see ‘ rió occasion to discuss such' transfers. It is made to-appear .that on August. 20, 1958 - plaintiff deposited $18,905.97 in an Austin bank and on September 5, 1958 she deposited’ an additional ' $8000.00; both of such amounts- were deposited in the Austin National Bank in the M. W. Hamilton Operating Account.

There can be no question, but that $2,1,-O.OO.-OO.was delivered to-Stelfox by Hamil- . ton and a- large part, if not all, was for the Mexico project.

There was-testimony that Hamilton was-to-be a silent partner with Stelfox in the Mexico project. Stelfox testified that" all of the money h.e received was for the purchase of a half interest in seventeen shares -that Stelfox ' owned 'in a partnership'-of Riddle and Hill and' eight and' One-half -shares were issued to ■ Hamilton. " ■

The prime question to be determined is the correctness of the holding by the Trial Court in the submission of Special Issue No. 2, and the answer thereto, as follows:

“Do you find from a preponderance of the evidence that Merton W. Hamilton was authorized by prior express agreement between defendants Stelfox and Hamilton to borrow money from plaintiff for their joint venture in Mexico, if you have found such a joint venture ?
“Answer ‘Yes’ or ‘No.’
“Answer: No.”

Based on this answer of the jury the Court decreed that the plaintiff take nothing against Stelfox. We believe the Court was justified by law and the facts, ánd affirm the judgment.

The appellant knew that Hamilton was buying one-half of Stelfox’s interest in the Mexico project, her testimony in part, is as follows:

“Q Well, Dude’: Stelfox never said anything to you about making a loan to him, did he?
“A No.'
“Q And you weren’t relying on anything that ‘Dude’ Stelfox might have represented to you about the loan?
“A No.
“Q Now, I will ask you if it isn’t a fact that you loaned the money to Merton W. Hamilton so that he could make a financial settlement with his former wife?
“A Yes.
“Q He represented to you, and you made loans to him on his faith and his credit alone?
“A (Nods.)
“Q And did he tell you that he wanted to get some money from you so that he could complete the drilling of some wells down in Liberty County?
“A No; no, I don’t think so. He told me he was completing them, but he didn’t tell me he wanted money from me for that.
“Q He didn’t tell you he wanted money from you to complete those wells ?
“A No.
“Q You never at any time, did you, Mrs. Hamilton, make any loans or advance any monies to M. W. Hamilton at the request or suggestion of ‘Dude’ Stelfox, did you?
“A No.
“Q Now, you knew that Mert was buying a half — half of Stelfox’s interest in this Mexican enterprise, didn’t you?
Yes. >
Mert told you that, didn’t he? ©
Yes. >
And he told you it would take $30,000 to buy the one-half interest ? ©
There was a discussion about $30,000, I know. >
⅜ ⅜ ⅜ ⅜ ⅜
Well, you never — you were around Mr. Stelfox from time to time after the money was advanced, were you-not? a
Yes. <
And you never did discuss with Mr. Stelfox anything about the details of his agreement with Mert, did you? a
A No, I don t believe so.
“Q Now, if this ventare in Mexico had been • a profitable venture, you and Mert expected to get ' one-half the profits, didn’t you?
"A Well, Mert would have gotten them, and I would have gotten them, being his wife, yes.
“Q Well, at that time you were not married, were you? At the time you were—
"A No.
“Q You didn’t marry him until October 18, 1958, so that if it had been a profitable venture, then you and Mert would have gotten half of what Mr. Stelfox got out of it, under his agreement?
“A Well—
Q That is correct?
"A —as far as I know.”
Stelfox testified, in part:
“Q What was the agreement you had with Mert regarding the Mexico proj ect ?
■“A I told Mert if — I asked him if he would like to go in on the Mexico project. He said, Well, let me think about it.’ So he thought about it, and the next day he said that he thought maybe he could if he could get the money, and he asked how much would it cost. I told him I would let him have half of my stock for $30,-000.
*‘Q All right.
■“A So he agreed to take it, and I said, Well, you don’t have to pay it all at one time. You have to pay it as they outlined it to me that I had to pay it, and make it easy.’ He said, Well, in that case I will go.’
“Q All right. Was any discussion had between you as to whether or not it was going to be a partnership, or just what was he to have ?
“A Well, would be a partnership— half of the stock would not be a partnership; I mean I had 17 shares — 17 per cent of the total hundred per cent of the stock, which he would get 8½ per cent of the stock.”

We do not believe that the pipe line clearing project in Mexico was a .joint venture, or a trading venture or business. The interest of Hamilton and Stelfox was that of stockholders in the Mexico corporation.

Hamilton had nothing to do with the operation of the enterprise, and Stelfox was on the job a few times.

. There was no active management in either Hamilton or Stelfox, and there was no continuous purchasing and selling. Randall et al. v. Meredith et al., 76 Tex. 669, 13 S.W. 576; Miller v. White et al., Tex.Civ.App., 112 S.W.2d 487, er. dism.; Rucks et al. v. Burch, 138 Tex. 79, 156 S.W.2d 975; First State Bank of Riesel v. Dyer et al., 151 Tex. 650, 254 S.W.2d 92. The Mexico project ceased to be active in November, 1958 and no dividends have been paid.

Since we are affirming the judgment of the Trial Court it is unnecessary to pass on or consider the counterpoints of ap-pellees.

We do not believe that the Court erred in refusing to submit plaintiff’s Special Issues concerning money loaned to Stelham Production, Inc., since even so the officers and stockholders would not be personally liable.

The Court did not err in refusing to submit plaintiff’s requested Special Issues 4, S and 6 with reference to an asserted cause of action for money loaned to the defendants for the purchase of an airplane.

There was no evidence that Hamilton and Stelfox became joint owners of the airplane.

Hamilton told Stelfox that they owned an airplane. The airplane was registered in Hamilton’s name only. The money paid on the airplane purchase came from the M. W. Hamilton Operating Account, and he, alone had the right to check on such account.

The judgment of the Trial Court is affirmed.

Affirmed.

PHILLIPS, J., not sitting.


author: BARROW, Justice.

text:
    Thomas Lex CROOKS, Appellant, v. AERO MAYFLOWER TRANSIT COMPANY, Inc., et al., Appellees.
    No. 14010.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 21, 1962.
    Rehearing Denied Dec. 19, 1962.
    Fischer, Wood, Burney & Nesbitt, James R. Harris, Corpus Christi, for appellant.
    Lyman & Sudduth, Corpus Christi, for appellees.
   BARROW, Justice.

This is an appeal from a summary judgment granted defendants in a suit by Thomas Lex Crooks, for damages growing out of tKe alleged conversion of household furniture by two moving and storage corporations and their authorized agent. Both sides moved for summary judgment and the trial court granted defendants’ motion and entered a take-nothing judgment.

It is conceded, for the purpose of this appeal, that the furniture involved is community property. On May 18, 1961, plaintiff’s wife contracted with defendants to move the furniture from Corpus Christi, Texas, to San Diego, California, and place it in storage. This contract was made without the joinder of plaintiff and the question involved, as narrowed by the parties, is whether this contract was, as a matter of law, for necessaries for his wife and three minor children. Arts. 4619, 4621, 4623, Vernon’s Tex.Civ.Stats. The motions for summary judgment were based upon depositions of plaintiff, his wife, and Phillips Dudley, who was sued individually, and was the authorized agent of the two defendant moving corporations. The trial court also considered affidavits from the attorneys for both parties, as well as the attorney who had represented Mrs. Crooks in her marital difficulties.

.Plaintiff, a Lieutenant Commander in the Navy, and his wife owned their home in Corpus Christi and had lived there since the latter part of 1958. They were married in 1946, but had separated for a short time in 1952. In 1960 they again started having marital difficulties and she employed the Hon. Jack Blackmon and consulted with him several times. On May 18, 1961, she determined to permanently separate from Commander Crooks. She decided to go with the children and live with her mother in San Clemente, California, until her marital situation was settled. Mrs. Crooks contacted Dudley on this date and executed the contract with defendants. Plaintiff was not aware of his wife’s plans until late in the afternoon of May 18th, when he went by the house and discovered the moving operation well underway. The packers complied with his order to stop further loading, but refused to replace the furniture already in the moving van. A few days thereafter this furniture in the van was transported to San Diego and stored. About three weeks later the plaintiff and his wife were reconciled. Upon the refusal of defendants to return the furniture without payment of charges, this suit was filed.

The general rule is that whether or not a contract executed by the wife is for necessaries is a question of fact to be determined from the facts and circumstances of each particular case. Walling v. Hanning, 73 Tex. 580, 11 S.W. 547; Allied Finance Co. v. Butaud, Tex.Civ.App., 347 S.W.2d 366, no writ history; 30 Tex.Jur., 2d, § 13. We cannot say that the facts and circumstances in this case as shown by the depositions and affidavits resolve this issue for either party as a matter of law. A fact issue is raised as to whether under all the facts and circumstances in this case the contract executed by Mrs. Crooks to transport and store the furniture in California was for necessaries for herself or the minor children. It is fundamental that a summary judgment is not proper for either party if the evidence raises an issue of fact to be determined by the court or jury.- Arlington Ind. School District v. James T. Taylor & Son, Inc., Tex.Civ.App., 322 S.W.2d 548, 160 Tex. 617, 335 S.W.2d 371; Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93.

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


author: CROSS, Judge.

text:
    Edward A. KNUPP, Respondent, v. Jeannettie ESSLINGER, Appellant.
    No. 23522.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.
    John H. Foard, Tom J. Helms, Kansas City, for appellant.
    Albert J. Yonke, Kansas City, for respondent.
   CROSS, Judge.

Plaintiff sues for damages resulting from an alleged false arrest and imprisonment instigated by defendant. The amount prayed for is $15,000.00. The case was tried to a jury upon the pleaded averment that “defendant * * * unlawfully caused plaintiff to be arrested and taken into custody and thereafter to be imprisoned and placed in the City Jail * * * ”. The jury réturned a verdict in defendant’s favor. Thereafter the trial court sustained plaintiff’s motion for a new trial on the ground that the verdict was against the greater weight of the credible evidence,- and, in the alternative, on grounds that the verdict was-, against the law and the evidence and resulted from improper deliberations by the jury. Defendant has appealed' from the trial court’s order and judgment setting aside the, jury’s verdict and grant-, ing plaintiff a new trial.

It is conceded by both parties that the only question on this appeal is whether the trial court erred in granting a new trial on the ground that the verdict was against the greater weight of the credible evidence. In resolving this question, we use the 's.ame test that would be applied in determining whether there was substantial evidence to submit plaintiff’s case to the jury as against the defendant’s motion for a directed verdict, Hoefel v. Hammel, Mo.App., 228 S.W.2d 402. Our function is limited, tó, a review of the record to ascertain “only if there was substantial evidence to warrant a verdict for the party in whose behalf the motion.was sustained”. Andres v. Brown, Mo., 300 S.W.2d 800. “It cannot be said that there is an abuse of the vested discretionary power if there is any evidence on which a jury might, upon retrial, bring in a valid verdict contrary to the one returned”. Westinghouse Electric Supply Co. v. Binger, Mo.App., 212 S.W.2d 445.

In'Hetermining whether there was sufficient evidence to take plaintiff’s case to the jury; we must assume the truth of every fact and circumstance in plaintiff’s favor that has been shown in evidence, whether by plaintiff of defendant, and accord plaintiff'the beri'efit of all reasonable inferences which may fairly be drawn therefrom. All evidence , and- ¡inferences unfavorable , to plaiqtiff- will- ¡be disregarded'. Under the. limitations thus prescribed, we set out applicable portions of the. evidence.

Plaintiff is a professional musician. Some time in March, 1958,' he was employed by a bandleader to play the trumpet in a band playing an engagement at a drinking establishment ’ in Kánsas' City known as “Smith’s Bar”. Defendant formerly operated the business,' but had leased it under a purchase agreement to another woman prior to the time in -question. Defendant’s real name is Jéannettie Esslinger, but she is known generally as Betty Smith.

On-the night of March 15, 1958,. plaintiff arrived at Smith’s Bar some time before 9 o’clock. When he walked in he spoke' to defendant, who was there present,' passed the time of day, and proceeded to the area where the band would play. He recognized defendant because he formerly played in a band -which had a short engagement in the bar when she was operating it in 1946 or 1947. However, plaintiff had not seen her since that time until the occasion in question. Defendant spoke in return but áp-pa'rently didn’t recognize plaintiff’s identity, inasmuch as she came over to the bandstand and asked him whát his náme was. Plaintiff. stated that “She asked me if I had given her á bad check a couple of years before and I told her. I didn’t give her any "check, that I didn’t write any checks”. Plaintiff further testified'that he never had written a bad check to defendant or to any one else. Tliere is. no evidence in the case to' that effect.

After the above narrated conversation, and before police officers arrived - at the bar later in'the evening, as will hereinafter appear, defendant made a telephone call to the Sheffield Police Station. The; only testimony bearing on the purpose of the call and the subject matter of the conversation with the answering police officer comes from- defendant 'herself. • That 'testimony is not clear or unequivocal. On direcf examination she stated, “I called the. Pqlice Department and asked the Police- D.ep.arfment to come out and check the man, that I had seen either his picture some place— I just asked them to come out and check the man, that I had had trouble with him before, or I had seen his picture at Police Headquarters, and I was afraid of the man, whoever he was”. She agreed that he was “just an image in — (her)—mind”. On cross examination she said that when she called the police they said, “What is the trouble, Betty?”, and that she replied, “I don’t know; I have seen this gentleman’s face somewhere. I have been told for him not to be in my bar. I don’t know whether it is in regards to a check, or what he did, but that is something I have tied in with him, but please just come out and talk to the gentleman”. In connection with the foregoing testimony of defendant, it is of significance that some time prior to her telephone call to the police station a man named Kidoo had given her a bad check. She admitted there was some question in her mind about whether plaintiff was that man.

Two police officers, George Carey and Francis Clemons, were dispatched to and arrived at Smith’s Bar between eleven and eleven-thirty P.M. Clemons went inside the premises “maybe a minute” before Carey entered, and talked to defendant. This conversation was not heard by Carey who, as the driver of the patrol car, had remained behind long enough to park the car, pull the keys out, and lock up the “guns”. The only witness who testified about the conversation between Clemons and defendant was the defendant herself. She denied that she requested or directed the officers to arrest plaintiff and testified that the only statement she made to Clemons was “Check that man”, after pointing out plaintiff. She denied that she told him anything about having a bad check issued by plaintiff. There is no testimony from Clemons to show what defendant said to him because he died before the case came to trial.

After the conversation between Clemons and defendant, Carey rejoined Clemons and, together, the two officers went to the bandstand, where plaintiff was playing. They called him aside and placed him under arrest without any written complaint, warrant or pick-up order. Carey testified (for defendant), “We had an order to make an investigation and to pick up this party, and for what reason I wouldn’t know. * * * Actually we just had an order to check him, I suppose”. He also stated that he didn’t know “who” he was looking for until after he got there, but that Clemons did,- “probably’. The officers took plaintiff out the front door, put him in the patrol car and took him to Sheffield Station. Defendant was still present in the bar and witnessed the arrest without comment.

Carey identified the original police report of the arrest. It was in the handwriting of Clemons, who had prepared it “immediately at the time of the arrest”. It appears that the report was made at Sheffield Station upon the arrival of the officers there with plaintiff in their custody. The only statement contained in the report relative to the reason for plaintiff’s arrest is “Subject issued worthless check to Betty Smith, former owner of the Smith’s Bar”. Officer Carey stated that Officer Clemons already had “knowledge about this subject issuing a worthless check” when they arrived at the Sheffield Station. As we have noted above, defendant denied that she told Clemons plaintiff had given her a bad check. She further testified that when Clemons wrote “Subject issued a worthless check to Betty Smith” she didn’t know where that information came from.

After the report was made “they” took his personal effects from him and denied him the privilege of calling his wife or an attorney. He was taken into a room and questioned as to whether he had passed “a check or a bunch of checks.” He denied accusations to that effect. After that interview, he was placed and kept in a cell for some time.

He was later removed and taken downtown to the main police station at 12th and Locust. Some time after 2:00 A.M., he was fingerprinted, photographed, hooked and put in the bull pen, where he remained the rest of the night. The next morning they “pulled me out and run me through the line-up”. After that experience, plaintiff was taken into another room and questioned specifically about writing a bad check to Betty Smith or Betty Esslinger. Plaintiff again protested that he had never done so. The police released plaintiff about noon on the day following his arrest (Sunday). He had been held in jail about 12 or 13 hours.

At an undisclosed time on Sunday, defendant called the police department and inquired what they had found out about plaintiff. Defendant testified that she asked of the officer, “Have you found out about this bad check?” and that he said “Yes, we have the man in jail that gave you one check”. That man was Mr. Kidoo. It is not shown whether plaintiff was then still in jail or had been released.

It is thoroughly settled law that a person is liable for a false arrest made by another if he “directed, advised, countenanced, encouraged, or instigated” such arrest. Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239. In order to establish a case of false arrest it is not necessary that plaintiff prove that defendant actually ordered or directed his arrest, but he may make his case by showing that defendant merely instigated it. “Furthermore, such fact may be shown either by direct or by circumstantial evidence”. Thompson v. Fehlig Bros. Box & Lumber Co. et al., Mo.App., 155 S.W.2d 279, and cases cited.

In view of the foregoing legal principles, we believe that from the above noted facts and circumstances found in the record the jury could reasonably infer, not only that defendant countenanced, encouraged, advised and instigated plaintiff’s arrest, but that she actually directed such action on the part of .the police officers. Consequently, we rule that plaintiff made a submissible case, and that, therefore, the trial court committed no error in granting plaintiff a new trial on the ground that the verdict was against the greater weight of the credible evidence. This determination has been made after due consideration of the authorities cited by defendant. Those cases have slight .relevance to the issue involved here because they necessarily involve facts different from those found in this case. No fixed set of rules can be laid down with which to measure acts constituting instigation of an arrest, for the reason that each case must be decided on the particular facts thereof and the inferences to be drawn therefrom. 35 C.J.S. False Imprisonment § 38, p. 687.

The judgment is affirmed and the cause is remanded for a new trial in accordance therewith.

All concur.