author: BATEMAN, Justice,

text:
    DALLAS TRANSIT COMPANY, Appellant, v. W. J. HAMMER, Jr., Appellee.
    No. 16489.
    Court of Civil Appeals of Texas. Dallas.
    May 13, 1966.
    Rehearing Denied June 17, 1966.

      Turner, Atwood, Meer & Francis, Dean Carlton, Dallas, for appellant.
    Helm, Jones & Pletcher, Houston, for appellee.
   BATEMAN, Justice,

The facts of this case will be found in Dallas Transit Co. v. Hammer, Tex.Civ.App., 390 S.W.2d 823, and in Hammer v. Dallas Transit Co., Tex.Sup.1966, 400 S.W.2d 885. The Supreme Court has reversed our judgment and remanded the cause to this court to enable us to exercise our exclusive jurisdiction to reconsider and finally rule upon certain of appellant’s points of error attacking the sufficiency of the evidence to support certain issues and findings in the light of the Supreme Court’s opinion. We must also now rule on the point asserting that the award of damages was excessive.

In appellant’s sixteenth and eighteenth points of error on appeal it was asserted that there was insufficient evidence to support Special Issues Nos. 1 and 2; and by its nineteenth point of error appellant complained of the judgment rendered against it because Special Issues Nos. 1 and 2 were so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust. These points were sustained by us without discussion, along with several other points of error asserting no evidence to support Special Issues Nos. 1 and 2, on the theory that if there was no evidence to support these issues, a fortiori the evidence was insufficient to do so. However, the Supreme Court having held that we had decided the “no evidence points” on an erroneous rule of law, and that there was some evidence to support those issues, we now hold that the evidence was sufficient and that those issues were not so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust. Accordingly, we now overrule appellant’s points of error, Nos. 16, 18 and 19.

There were other points falling within the same category, except that they related to Special Issues Nos. 3 and 4. As shown by the Supreme Court’s opinion, Hammer abandoned any claim to a judgment based upon the findings in response to those special issues, in view of the Supreme Court’s recent opinion in Barclay v. C. C. Pitts Sand & Gravel Co., Tex.Sup.1965, 387 S.W.2d 644. Those points were thereby made immaterial, and we shall not further notice them.

This brings us to appellant’s thirty-second point of error in which it was asserted that the finding of $25,000 damages was so grossly excessive as to show bias and prejudice on the part of the jury. Evidence was introduced to show that Hammer, a 38-year-old city fireman, sustained an injury to his left arm, elbow and shoulder causing him severe pain which persisted continuously from the time of the accident to the time of trial, a period of twenty-three months, with the exception of two days when he was injected with cortizone or Novocain. He had also done market research survey work in his spare time. His earnings in 1961 totaled $9,712.80. The accident was on April 30, 1962, and his earnings that year were only $5,766. His doctor said he had sustained an incomplete rupture of the supraspinatus tendon of his shoulder and a traumatic tenosynovitis of the long head of the bicep, and that surgery might be required to re-attach the extension apparatus on the elbow; and that, with or without surgery, there would be a permanent disability of about ten per cent, based on the limited motion with some pain on strenuous activity; that any work or other activity which caused or required elevation of the shoulder or arm would cause pain.

The reported decisions in other cases on this point are of little help to us because no two cases involve the same injuries, pain or disability. The decision in each case must necessarily • be based on the facts of that case. What the future holds for anyone, in the way of earning capacity or freedom from pain can never be determined with mathematical certainty. Our Supreme Court has said several times that the amount of damages to be awarded must be left to the sound judgment and discretion of the jury; provided, however, that the award must be based on evidence and not mere conjecture, and must be “an intelligent judgment, based upon such facts as are available.” McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710; Dallas Consolidated Electric St. Ry. Co. v. Motwiller, 101 Tex. 515, 109 S.W. 918.

The amount awarded in this case does not offend the conscience of this court, and we therefore have no right to substitute our judgment for that of the jury. The thirty-second point of error is overruled.

The judgment of the trial court is now

Affirmed.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Justice.

license: Public Domain

text:
    J. B. FARRIS et al., Appellants, v. NORTEX OIL & GAS CORPORATION, Appellee.
    No. 16668.
    Court of Civil Appeals of Texas. Dallas.
    May 20, 1966.
    Rehearing Denied June 17, 1966.

      Rain, Harrell & Emery, Dallas, for appellants.
    Lyne, Klein & French, Dallas, for ap-pellee.
   CLAUDE WILLIAMS, Justice.

Nortex Oil & Gas Corporation recovered a judgment in the district court against J. B. Farris, Guy Sterling, Paul Belding and Amelia Belding. Appellants bring this appeal. A brief statement of antecedent facts is essential to a proper understanding and disposition of the controlling point presented.

On February 10, 1961 Nortex Oil & Gas Corporation (hereinafter referred to as Nortex) purchased from Ebro Oil Company, Inc. (hereinafter referred to as Ebro), all of the assets of Ebro for a total consideration of $2,920,205.25. The assets of Ebro consisted primarily of oil, gas and mineral leasehold estates located in Gregg and Rusk Counties, Texas. As a part of the agreement between Ebro and Nortex ⅛ was agreed that within one year after the consummation of the purchase agreement Ebro would be dissolved and all of its assets would be distributed to its shareholders. In September of 1961, pursuant to the agreement, Ebro was dissolved and all of its assets distributed to its shareholders. Ebro has had no tangible assets since its dissolution.

On September 20, 1962 Nortex filed suit, against Ebro in the 134th Judicial District Court of Dallas County, Texas styled, Nor-tex Oil & Gas Corporation v. Ebro Oil Company, Inc., in which Nortex alleged that it. had learned that a number of the oil and gas wells located on the oil and gas leases which it had purchased from Ebro were illegally deviated from vertical to the extent that some of them were bottomed outside the respective leases on which they were drilled and that other wells located on such leases were merely “dummy wells wholly incapable of producing oil and/or gas.” It sought a judgment for money damages .for alleged misrepresentation. The case was tried before a jury which found special issues in favor of Ebro and against Nortex. However, the trial court granted a motion for new trial and thereafter, on February 28, 1964, based upon a stipulation, entered a judgment for Nortex against Ebro in the sum of $3,903,000.

On April 24, 1964 Nortex instituted the present case, originally styled, Nortex Oil & Gas Corporation v. W. E. Mitchell, Jr., et al., and being Cause No. 86,785 in the 68th District Court of Dallas County, Texas. This suit was against a number of former stockholders of Ebro, including appellants herein, and recovery was sought against them individually based upon the judgment of February 28, 1964 in favor of Nortex against Ebro in the 134th District Court. The trial court granted an interlocutory summary judgment in favor of Nortex against appellants as to liability and thereafter the issue of damages was determined and a final judgment rendered.

On August 24, 1964, and prior to the granting of the interlocutory summary judgment against appellants, they filed their hill of review in the 134th Judicial District Court of Dallas County, Texas against Nor-tex seeking to vacate and set aside the said judgment of the 134th District Court of February 28, 1964 in favor of Nortex and against Ebro, and seeking to have Nortex’ claim against Ebro set down for retrial on the merits.

On September 1, 1964, and prior to the rendition of the interlocutory summary judgment against appellants in the trial court, they filed a plea in abatement in which the trial court’s attention was directed to the fact that a bill of review had been filed in the 134th District Court of Dallas County, Texas attacking the validity of the judgment which that court had entered in favor of Nortex against Ebro on February 28, 1964 and being the same judgment upon which Nortex relies in the instant case. Appellants sought to have the trial court abate further proceedings in the instant case pending final determination upon appellants’ bill of review. The court overruled the plea in abatement.

In the bill of review the Judge of the 134th District Court of Dallas County, Texas granted Nortex a summary judgment from which judgment appellants perfected an appeal to the Court of Civil Appeals. The Court of Civil Appeals at Texarkana, on August 24, 1965, reversed and remanded the judgment of the 134th District Court, holding that pertinent issues of fact were presented in such action and that the same should be tried upon its merits. Farris v. Nortex Oil & Gas Corp., Tex.Civ.App., 393 S.W.2d 684. Thereafter the Supreme Court of Texas refused an application for writ of error in the case with the notation, “No reversible error”.

Appellants’ first point of error, complaining of the refusal of the trial court to stay further proceedings in this case pending the final determination of their' bill of review, must be sustained. It is obvious from the record that the validity of the judgment against Ebro is the sine qua non of appellee’s cause of action against appellants in this action. In its brief appellee states that appellants are liable to appellee “as a judgment creditor” of Ebro. If the primary judgment fails appellants could not be liable because of such judgment. It must be observed that the bill of review is not an effort by appellants to set aside a judgment which had been rendered against them. Appellants were not parties to the suit of Nor-tex v. Ebro in which the basic judgment was obtained. Until Nortex brought suit against appellants seeking personal judgment against them, there was no cause for appellants to take any action in the prior suit. Appellants, not having been parties to the original suit, had no appeal from the judgment against Ebro, could not file a writ of error or seek any relief from the effect of the judgment in that case. Their sole remedy was the bill of review which they filed after being sued in this action. It has now been adjudicated finally that the bill of review should be tried and until a final judgment has been rendered in that case the present proceeding should be abated.

A similar situation was presented in Hopwood v. Phillips, Tex.Civ.App., 329 S.W.2d 459, where the Houston Court of Civil Appeals elected to hold the appeal in that court pending final determination of the bill of review. We believe the best interests of justice would be served by returning this case to the trial court to await such action that may be made necessary by the outcome of the bill of review in the 134th District Court.

In oral argument before this court the attorney for appellee attempts to evade the effect of the pending bill of review by contending that Nortex’ cause of action against appellants was founded not only on the judgment but upon allegations of fraud. However, an examination of the record reveals that the allegations with reference to fraud and misrepresentation are identical with those which led to the rendition of the judgment now under attack by the bill of review. Such being true, appellee’s argument is without merit.

Since we have concluded that this cause he reversed and remanded to the trial court to await further proceedings in the light of the final disposition of the bill of review, it becomes unnecessary that we discuss or pass upon the remaining points advanced by appellants.

The judgment of the trial court is reversed and remanded.

Reversed and remanded.


author: NORTHCUTT, Justice.

text:
    George R. CAIN, Appellant, v. Herb J. HAWTHORNE, Appellee.
    No. 7622.
    Court of Civil Appeals of Texas. Amarillo.
    May 16, 1966.
    Rehearing Denied June 20, 1966.

      Stovall & Stovall, Plainview, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   NORTHCUTT, Justice.

This is a common-law damage suit brought by George R. Cain against Herb J. Hawthorne for damages resulting when the car driven by defendant struck the plaintiff’s car. Plaintiff just prior to the accident was going in an easterly direction down 7th Street in Plainview, Texas, and as he approached Ash Street the traffic light turned red and plaintiff stopped. After the plaintiff had stopped for the red light the defendant ran into the rear of plaintiff’s car. Plaintiff pleaded that the defendant was negligent in failure to keep a proper lookout; in failing to apply his brakes in time to avoid striking plaintiff’s car; in following plaintiff’s car more closely than was reasonable and prudent; in not having his car under control; and in driving too fast.

The case was submitted to the jury upon special issues. In answer to the special issues the jury found the defendant did not fail to keep a proper lookout; that defendant failed to make timely application of his brakes but that such failure was not negligence; that defendant was not driving too fast; and that the collision in question was an unavoidable accident. Judgment was entered that the plaintiff recover nothing by his suit and that defendant recover all costs in his behalf expended. From that judgment plaintiff perfected this appeal. The parties will be referred to herein as they were in the trial court.

Plaintiff presents his first three points of error together. By Point 1 it is contended the court erred in refusing to grant plaintiff a new trial because the jury findings taken singularly and collectively in answer to the question as to proper lookout, failure to make timely application of his brakes and unavoidable accident were so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. Points 2 and 3 contend the court erred in submitting the issue as to unavoidable accident. Just prior to the accident in question the plaintiff had stopped his car as above set out in obedience to a red light signal. As defendant approached the red light he was unable to stop and slid into the rear of plaintiff’s car. The undisputed record shows at the time of the accident that the weather was clear and that there was no ice on the streets at any place except at the place of the accident. The ice upon which defendant’s car slid was located in the shade of a two-story building which extended the entire length of the block. Defendant testified that as he was approaching the plaintiff’s car, he would estimate he was driving 10 or 12 m.p.h. and he applied his brakes when about twenty feet distance from the plaintiff’s car. Because of the ice, he could not stop. The undisputed record shows that immediately after the accident here in question another car skidded on the ice and slid into the rear of defendant’s car. Defendant testified he could not see there was any ice at the place of the accident, as it looked like the rest of the street. Plaintiff testified he remembered giving his deposition in the case. Plaintiff was asked: “Whenever you drove up there and was fixing to stop, you could tell, I guess, that there was ice on the street?” He answered: “No, I could not tell that.” Plaintiff never denied the question was asked and that was his answer but stated he did not remember saying that. As to the findings being so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust, we must consider and weigh all of the evidence in the case. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

The occurrence of an accident or a collision is not of itself evidence of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195; Davis v. Castile, Tex.Com.App., 257 S.W. 870; Phillips v. Citizens’ Nat. Bank, Tex.Com.App., 15 S.W.2d 550.

The jury found the defendant failed to make timely application of his brakes under the circumstances and conditions then and there existing but that such failure was not negligence. Naturally, the defendant did not apply his brakes in time to avert the accident under the circumstances and conditions then existing but if he could not tell those conditions existed, he would not be expected to act differently than he should under normal circumstances. Under the undisputed record in this case, we do not believe the jury could have correctly found other than it did. We overrule plaintiff’s first three points of error.

By plaintiff’s fourth point of error he contends the court erred in admitting into evidence testimony of the investigating officer as to other related accidents. Then by his fifth point of error contends the court erred in permitting Mrs. Hawthorne, defendant’s wife, to testify the investigating officer told her there had been several other accidents at the same place. The plaintiff called as his witness the investigating officer and asked him what he observed as he approached the street prior to the time he got to the accident. The officer answered he observed a big patch of ice. On cross-examination the officer testified he knew there had been one other accident at that very place that same day and that he had said there had been a rash of them in that very same spot and he had called the city and asked them to put salt on that ice. We believe this evidence admissible in showing why the officer observed the iced condition because he already knew the ice was there. If it should be considered error in admitting this evidence, we believe it will be harmless error, Rule 434, Texas Rules of Civil Procedure, and overrule plaintiff’s fourth and fifth points of error. We have carefully considered plaintiff’s assignments of error and overrule each and all of them.

Judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    S. W. ROYE, Sr., Appellant, v. Exa Ione ROYE, Appellee.
    No. 210.
    Court of Civil Appeals of Texas. Tyler.
    June 2, 1966.

      J. Byron Saunders, Saunders & Caldwell, Tyler, for appellant.
    Joe Tunnell, Boulter, Fowler & Tunnell, Tyler, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a judgment of the Court of Domestic Relations of Smith County, Texas. The appellant (plaintiff below) on April 7, 1965, instituted suit for divorce from appellee (defendant and cross-plaintiff below) and for a division of their community property. Thereafter, in addition to an answer to appellant’s petition, appellee filed her cross-action seeking divorce from the appellant and also a division of the property of the parties, asking the court in so doing to give consideration to the fact that the plaintiff (72 years of age) is a healthy, able-bodied man, able to earn money, and that the defendant is not able to earn money; after a full hearing of all the facts, the trial court denied appellant a divorce on his petition, but granted appellee a divorce and a division of the community property on her cross-action. It is from this judgment that appellant takes this appeal.

Although in taking this appeal the entire judgment is before the court for review, the appellant does not complain of that portion of the judgment granting appellee a divorce on her cross-action. Appellant by his one Point of Error only complains that the trial court failed to take into consideration and include in said judgment the community debts of the parties.

Under the holding in Posey v. Posey, 386 S.W.2d 884, (Tex.Civ.App.) 1965, n. w. h., it is subject to some doubt whether the Point of Error is sufficient to be of any avail to him on his appeal in that he failed to include in his Point of Error any claim that division of the community property made in connection with the divorce decree amounted to abuse of discretion. However, we think that from the statement and argument thereunder, the point is sufficient to direct the court’s attention to the matter complained of. Wagley v. Fambrough, 163 S.W.2d 1072, (Tex.Civ.App.) 1942, affirmed, 140 Tex. 577, 169 S.W.2d 478.

The facts show that the appellant was engaged in the dairy business from 1943 until 1958; that he and his wife, the ap-pellee, conducted the dairy business without any help except from their son on a part-time basis. That in 1954 he hired Mrs. Bernice Phelps to assist them in the operation of the dairy. Mrs. Phelps was a married woman at the time, but her husband was never an employee of Mr. Roye, the appellant. Mr. and Mrs. Phelps lived one year in a house rented for them by the appellant and thereafter for two years in a house the appellant obtained for them near the home of the appellant and appellee. The Phelps continued to live there until the appellant built a house for them on a 212 acre tract of land, which was the homestead of, the parties to this lawsuit. This house was built in 1958. Mrs. Phelps obtained a divorce from her husband in February of 1965, but she continued to live in the house that the appellant had built for them on the 212 acre tract of land. In 1958 the appellant sold his cattle and dairy equipment to Mrs. Bernice Phelps. The cattle consisted of 27 head. The equipment consisted of a tractor, pick-up truck, milking equipment and a batch of hay. The sales price was $10,000.00 for which Mrs. Phelps executed in favor of the appellant a note and chattel mortgage. The terms of the instruments provided for the payment of $1,000.00 a year by Mrs. Phelps to the appellant. At the time of the trial of this case, she had only made three payments, leaving a balance on the principal of $7,000.00 due and unpaid. In addition to the debt of $7,000.00, Mrs. Phelps owed the appellant $765.00.

At the time of the hearing before the trial court concerning the extent and value of the community estate, the appellant testified that he had cancelled the indebtedness of $7,765.00 of Mrs. Phelps, and considered that she did not owe anything. He said he had cancelled the indebtedness by oral agreement with Mrs. Phelps since the original -hearing in this case. By way of explanation at this point, after the original hearing, the court recessed the hearing until a later date for the parties to offer additional testimony concerning the value of the community estate. It was between these two hearings that the appellant said he cancelled the unpaid portion of the $10,000.00 note referred to above.

On March 22, 1965, the appellant accompanied Mrs. Phelps to the Lindale State Bank and joined her in signing a note payable to said bank in the sum of $10,-600.00 which was for the sole benefit of Mrs. Phelps. Further, at the same time, the appellant executed a mortgage to the Lindale State Bank covering 65 head of cattle and certain dairy equipment securing said note. This transaction took place only a few days before appellant filed his suit for divorce. The action of the appellant in executing the $10,600.00 note payable to the Lindale State Bank secured by the chattel mortgage covering the 65 head of cattle and other dairy equipment, was in effect a release of his own security for the payment of the $7,765.00 debt due from Mrs. Phelps and to give such security to the Lindale State Bank. All of this was done without the knowledge or consent of appellee. At the time of the last hearing, there was an unpaid balance of $9,-800.00 on the principal sum of the note with the Lindale State Bank.

Mrs. S. W. Roye, Jr., the daughter-in-law of the appellant, testified that the appellant told her that he loved Mrs. Phelps better than any woman on this earth, and he intended to marry her as soon as he could get a divorce. These statements were made shortly after the 15th of March, around the 22nd day of March, 1965. The appellant testified that prior to the suit for divorce, some six weeks or more, he told his sister that Mrs. Phelps was very dear to him and that he had told his daughter-in-law that he loved Mrs. Phelps.

The trial court in its judgment found the community property of the parties to be capable of being divided in kind and that the division of same therein adjudicated is an equitable and just division between the parties. The judgment proceeds to divide the community property, awarding a portion thereof to the appellant and a portion thereof to the appellee. The dollar value awarded to the appellant is $30,580.81 and the dollar value awarded to the appellee is $34,800.00. Included in the portion of the property awarded to the appellant is the $7,765.00 Phelps’ debt.

The question before this court is whether or not the trial judge, in dividing the community property, abused his discretion, and if so, to such an extent as to require reversal of the trial court’s judgment.

In deciding this question, it is the duty of this court to indulge every reasonable presumption in favor of a proper exercise of discretion of the trial court in dividing the property of the parties. Mozisek v. Mozisek, 365 S.W.2d 669, (Tex.Civ.App.) 1963, writ dism.; Thompson v. Thompson, 380 S.W.2d 632, (Tex.Civ.App.) 1964, n. w. h.

By the provisions of Article 4638, Vernon’s Annotated Civil Statutes, the court pronouncing a decree of divorce has jurisdiction, in the divorce action, to decree a division of the estate of the parties in any such way as the court may deem just and right, having due regard for the rights of each party.

It has been uniformly held that this statute describes the discretion which the court may exercise in dividing the estate of the parties when he pronounces a decree of divorce and that such discretion may be corrected on appeal only where an abuse of it is shown, in that the disposition made of some of the property is manifestly unjust and unfair. Ames v. Ames, 188 S.W.2d 689, (Tex.Civ.App.) 1945, n. w. h.; Williams v. Williams, 171 S.W.2d 530, (Tex.Civ.App.) 1943, n. w. h.; Hursey v. Hursey, 165 S.W.2d 761, (Tex.Civ.App.) 1942, writ dism.; Allen v. Allen, 284 S.W.2d 774, (Tex.Civ.App.) 1955, writ dism. Also, under this statute, the division of the property does not have to be equal. The court can be controlled by what the facts may lead him to believe is just and right. Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 313; and Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299; Thompson v. Thompson, supra; Hayes v. Hayes, 378 S.W.2d 375, (Tex.Civ.App.) 1964, writ dism.

It has been held in this state that our courts are vested with wide discretionary powers in the division of property in suits for divorce. In the absence of abuse of such discretionary powers, the trial court may divide the property, separate or community, in such a way as will seem right, just and proper to the court. Ingham v. Ingham, 240 S.W.2d 409, (Tex.Civ.App.) 1951, n. w. h.; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Clark v. Clark, 35 S.W.2d 189, (Tex.Civ.App.) 1931, writ dism.; Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305. The appellant contends (1) that the trial court erred in considering the “Phelps’ debt” of $7,765.00 as an item of community assets because the evidence shows that such debt was cancelled by the appellant prior to the rendition of the judgment for divorce and partition of the community property; (2) that the judgment as entered by the trial court did not take into consideration the debt of the community in the amount of $9,800.00 which was incurred by the execution of the note by appellant to the Lindale State Bank.

The trial court in dividing property between the parties in a divorce suit may take into consideration any disparity between the earning powers, the business opportunities, capacity and ability of the parties and the benefits which the party not at fault would have derived from the estate of the other party through a continuance of their marriage. Ingham v. Ingham, supra; Liddell v. Liddell, 29 S.W.2d 868, (Tex.Civ.App.) 1930, n. w. h.; Farris v. Farris, 15 S.W.2d 1083, (Tex.Civ.App.) 1929, n. w. h.; Bagby v. Bagby, 186 S.W.2d 702, (Tex.Civ.App.) 1945, n. w. h.; Mozisek v. Mozisek, supra; Bush v. Bush, 237 S.W.2d 708, (Tex.Civ.App.) 1950, n. w. h.

The record before us does not contain any findings of fact and conclusions of law or any request therefor. Consequently, in deciding whether the trial court abused its discretion to the prejudice of appellant in dividing the community estate as it was divided, we must consider the evidence as a whole and all reasonable inferences and deductions that may properly be drawn therefrom in the light most favorable to appellee, bearing in mind that it was within the province of the court below to pass upon the credibility of the witnesses and the weight to be given to their testimony. Hill v. Hill, 249 S.W.2d 654, (Tex.Civ.App.) 1952, n. w. h.

The evidence adduced upon the trial of this case was sufficient to fully support a finding and conclusion by the trial court that appellant in releasing the security for payment of the $7,765.00 debt due from Mrs. Bernice Phelps, in failing to demand payment of said debt and also his execution of the $10,600.00 note to the Lindale State Bank, all of which was without the knowledge or consent of appellee, were in fraud of appellee’s rights as she so alleged.

The evidence reflects that the appellee is 73 years of age; that she has no skills that would enable her to work at gainful employment and in view of her age, no one would hire her; appellee’s only income is her Social Security in the amount of $56.00 per month as compared to appellant’s Social Security in the amount of $116.00 per month.

The appellant testified that the value of the cattle mortgaged to the Lindale State. Bank was $22,500.00 and that he considered that there was sufficient collateral to secure him and the Lindale State Bank for the $17,000.00 which Mrs. Phelps owed to both him and the bank.

In view of all the facts and circumstances reflected by the record concerning the community property, i. e. the business transactions of appellant with Mrs. Phelps, whom he had fallen in love with and intended to marry if he obtained a divorce, which transactions were so generous to Mrs. Phelps and so disadvantageous to the ap-pellee, the age of the appellee, her small income and limited ability to earn, we see no abuse of discretion on the part of the trial court in the disposition of the property-

judgment affirmed.


author: MURRAY, Chief Justice.

text:
    Jesus M. CASTILLO et al., Appellants, v. The STATE of Texas ex rel. Antonia V. SAENZ and Socorro R. Vera, Appellees.
    No. 14480.
    Court of Civil Appeals of Texas. San Antonio.
    May 25, 1966.
    Hill, King & McKeithan, Mission, for appellants.
    Glenn H. Ramey, F. B. Lloyd, Jr., F. R. Nye, Jr., Rio Grande City, for appellees.
   MURRAY, Chief Justice.

This is a quo warranto proceeding instituted by the District Attorney of the 79th Judicial District of Texas and the County Attorney of Starr County, on the relation of Antonia V. Saenz and Socorro R. Vera, against Jesus M. Castillo and Severo Solis, and Pedro Cortez, for the purpose of ousting Jesus M. Castillo and Pedro Cortez as incumbent commissioners of the newly-formed City of La Grulla and placing in their stead as such City Commissioners the above relators, Antonia V. Saenz and Socorro R. Vera. The trial court rendered judgment granting their prayer.

The controversy arose in this way. An election was held on March 20, 1965, in what is now the City of La Grulla, for the purpose of determining whether or not the City of La Grulla was to be incorporated as a general law city with the commission form of government. On March 30, 1965, the County Judge of Starr County entered an order canvassing the incorporation election of March 20, and declaring the incorporation of the City of La Grulla and the election of its first officials, Hector Lo-zano, Mayor, and Jesus M. Castillo, Jr., and Severo Solis, Commissioners. The new officials held the first city commission meeting on that same day and set the next meeting for April 5, 1965. Severo Solis subsequently resigned and Pedro Cortez was appointed in his place.

Article 1158, Vernon’s Ann.Civ.St., provides that the officials elected at an incorporation election shall serve until the first Tuesday in April following such incorporation. This would indicate that an election should be called at that time to elect a mayor and two commissioners. However, when the City of La Grulla came into existence on March 30, 1965, an election could not have been legally called for April 6, 1965, and the general election law complied with. The city commission at the April 5th meeting set the election for June 5, 1965, so as to allow time for public notice, filing for office by candidates, selection of election judges, and for absentee voting, as is required by law. The election order was signed by the Mayor on April 15, 1965. These actions were widely known.

There are two well-recognized political ■ factions or parties in Starr County, namely, the “old” party and the “new” party. The new party members decided that the election should be held on the date named in the statute, to-wit, April 6, 1965. So without any previous notice, order calling the election, or appointment of election judges, filing of candidates, or any absentee voting, the new party met on the morning of April 6, 1965, elected a judge of the election and proceeded to conduct what they called a citizens election. That election was held in the La Grulla Elementary School Building, which was the usual place of holding elections in the City of La Grulla, and the County Road Foreman and several members of the new party stood near the corner of Benny’s Hamburger Stand all day long, as was their custom when an election was being held. They were seen there by members of the old party, but no members of the old party participated in this citizens election. There were 94 votes cast in this election, all for relators. The votes were duly counted and relators were declared elected commissioners, and returns duly made to the Mayor.

On June 5, 1965, the election ordered by the City Commission was held, and some 259 voters participated in this election. Appellants were declared elected City Commissioners by a vote of 259 to 0. It is apparent that only members of the old party participated in this election.

The Texas Election Code provides as follows:

Article 4.05 provides for twenty days notice of an election. Art. 7.13 provides in City elections, the Mayor performs the acts required to be done in other elections by the County Judge. Art. 4.06, the Mayor orders city elections. Art. 13.53, candidates apply for place on ticket at least 30 days before election. Art. 4.10, same for special City elections. Art. 5.05 provides for absentee voting to begin on the 20th day before election day.

It is apparent that a legal election could not have been held on April 6, 1965, and the City Commission of La Grulla did the only sensible and sound thing they could have done, and set the election at a time when the provisions of the election law could be fully complied with.

In Yett v. Cook, 115 Tex. 205, 281 S.W. 837, Cureton, C. J., speaking for the Supreme Court, said: “However, the date named in the section quoted — the first Monday in February, 1925 — was February 2d, a date at which it was impossible to hold an election in compliance with the general laws of the state. * * *

“The view here expressed, to the effect that an election of officers may be held in the city of Austin, although the charter day, February 2, 1925, has passed, is supported by the leading authorities. 38 Corpus Juris, pp. 721, 722; Dillon on Municipal Corporations, vol. 4, §§ 1495, 1496; * *

While the time and the place are generally held to be of the essence of an election, nevertheless, where, as here, it was impossible to hold the election at the time prescribed by the provisions of the laws regulating elections in this State, it should be held within a reasonable time thereafter. We cannot infer that the Legislature intended, if it was impossible to hold a legal election on April 6, 1965, then, and in that event, the election should never be held. State ex rel. Sisson v. Felker, 336 S.W.2d 419 (Mo.).

The only claim that appellees make to the office of City Commissioners of the City of La Grulla is that they were elected at the “Citizens Election” held on April 6, 1965. This election was void because it was not called and proper notice given by the proper authority, Art. 4.06, supra; no candidates were given an opportunity to apply to have their names placed on the ticket, Art. 4.10, supra; there was no opportunity for absentee voting, Art. 5.05, supra. The election of April 6, 1965, being void, re-lators have no claim to the offices they seek.

There is no evidence of fraud or bad faith on the part of the City Commission in calling the election for June 5, 1965. As far as this record shows, all provisions of the law relating to the holding of city elections were complied with, except that it was not called for April 6, 1965. It has been held, that when absentee voting starts the election has begun. If April 6th was a mandatory date, it would have been necessary for the election to have begun before the City came into existence.

The judgment of the trial court is reversed and judgment here rendered that appellants, Jesus M. Castillo and Pedro Cortez, continue to hold their offices of City Commissioners of the City of La Grulla of Starr County, Texas, and that relators, Antonia V. Saenz and Socorro R. Vera, take nothing by reason of this quo warranto proceeding, and pay all costs of court.

Reversed and rendered.


author: NYE, Justice.

text:
    Edgar H. EGGERT, Appellant, v. AMERICAN STANDARD LIFE INSURANCE COMPANY, Appellee.
    No. 177.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 26, 1966.
    Rehearing Denied June 16, 1966.

      McDonald & Spann by Bob ~J. Spann, Corpus Christi, for appellant.
    Fischer, Wood, Burney & Nesbitt by James P. Ryan, Corpus Christi, for appel-lee.
   OPINION

NYE, Justice.

This is a suit for recovery on a dreaded disease protection type insurance policy, brought by Edgar H. Eggert, appellant, against American Standard Life Insurance Company, appellee. The parties will be referred to as they were in the trial court. The defendant insurance company filed a motion for summary judgment contending that the plaintiff’s child was not listed on the policy as a named insured and therefore he was not covered as a matter of law. The plaintiff-father also filed a motion for summary judgment .contending that as a matter of law his child was included, and if not then there were issues of fact that would make his child a named insured, which should be tried before a jury. The trial court granted the defendant insurance company its motion for summary judgment and denied plaintiff’s motion. The plaintiff has perfected his appeal to this court.

The plaintiff, while attending law school, sold insurance for the defendant insurance company on a part-time basis. The policy of insurance named ten dreaded type diseases that certain benefits could be secured. This particular type of policy had two set fixed premiums, one of $5.00 annually for an individual, and the other of $10.00 annually for the family. The policy provided that it was non-cancellable and guaranteed renewable for life.

The plaintiff made application for this policy in January of 1951, listing his wife, one child and himself as “persons to be insured”. Thereafter, the plaintiff renewed this policy of insurance annually for several years in its same form. During the intervening years, the plaintiff had born to him and his wife two additional children. These children’s names were never added to the policy of insurance nor was any request made by plaintiff to the defendant insurance company for the addition of these two additional children, until one of them contracted one of the dreaded diseases named in the policy of insurance.

In May, 1956, the plaintiff’s son, Mark Wayne Eggert, age seven months, was diagnosed as having poliomyelitis. The next day the plaintiff notified the defendant insurance company to the effect that he had three children (naming them) and requested blanks to establish a claim on his youngest child. The company acknowledged that plaintiff’s policy of insurance was in force. However, the company denied liability because Mark Wayne, plaintiff’s youngest child, was not named in the policy as an insured. The defendant company did, however, add as a named insured plaintiff’s other after-born child upon surrender of the policy, without any additional premium.

The plaintiff pleaded that the subject policy was a “family policy” and that the plaintiff was led to believe and did believe that the policy covered his entire family and any additions thereto including after-born children. Appellant’s points on appeal, were as follows:

(1) that the trial court erred in granting a summary judgment against the plaintiff because there were material issues of fact raised by the pleadings and affidavits; (2) that the trial court erred in not reforming the policy to cover Mark Wayne Eggert from birth; and (3) the trial court erred in not holding that plaintiff could recover for the expense of Mark Wayne Eggert as alleged because it was undisputed that after-born children were to be covered and that the defendant company would suffer no loss by adding the name of Mark Wayne Eggert after he was afflicted. We will consider all these points together.

The application for insurance dated January 10, 1951, stated that:

“I hereby apply to the American Standard Life Insurance Company, Fort Worth, Texas, for its Dreaded Disease Policy and for that purpose make the following statements:
Name of Premium Payor EDGAR H. EGGERT, JR.
***********
Beneficiary for Premium Payor MRS. EVELYN S. EGGERT
PRINT NAMES OF ALL PERSONS TO BE INSURED IN THE SPACE BELOW
{Must not be under 3 months of age)
NAME (please print) RELATIONSHIP to premium payor AGE
EDGAR H. EGGERT, JR. xxxxx 27
EVELYN S. EGGERT Wife 28
CAROL KAY EGGERT Daughter 5
Annual Premiums: Individual, $5.00 1st & renewal years; Family, $10.00 1st & renewal years.
Installment Premiums: Individual $2.00 in advance each 30 days until $6.00 is paid in each year; Family, $2.00 in advance each 30 days until $12.00 is paid in each year.
Do you or any of the foregoing have, have you had or been told by a doctor that you had Poliomyelitis, Small Pox, Diphtheria, Epidemic Cerebro-Spinal Meningitis, Scarlet Fever, Tetanus, Rabies, Encephalitis, Leukemia, Tularemia? No. . If so, give full details_.
***********
Signature of Applicant (premium payor) /s/ Edgar H. Eggert, Jr._
Mail policy to agent (x) Applicant (x) /s/ Edgar H. Eggert, Jr., Agent.”
(emphasis supplied)

It is to be noted that the application does not state that it is a “Family Policy”, nor did the applicant (plaintiff) as agent or insured include a request for after-born children to be included as “insureds”.

The policy was issued on January IS, 1951. All pertinent portions are as follows: (emphasis supplied)

“PART A
IN CONSIDERATION of the payment in advance of the premiums required herein when due, hereby insures
EDGAR H. EGGERT, JR.
EVELYN S. EGGERT
CAROL KAY EGGERT
each person name above against specified accidents and disability as set out * * *
PART B
If any Insured shall become afflicted with any disease mentioned in the Insuring Clause, * * *
PART C
If any Insured shall sustain bodily injuries solely as a result of accidental means, * * *
PART D
If poliomyelitis only as herein defined, contracted while this policy is in force * * *, then upon the filing of due proofs of such loss under this section within six months from the onset of poliomyelitis by
(a) the Insured, if then living, or,
(b) if the Insured be deceased, his or her Beneficiary, the Company will pay, at the option of the claimant * * * (lump sum amount).
STANDARD PROVISIONS
1. * * *
2. No statement made by the applicant for insurance not included herein shall avoid the policy or be used in any legal proceeding hereunder. No agent has authority to change this Contract or to waive any of its provisions. No change in this Contract shall be valid unless approved by an executive officer of the Company, and such approval be endorsed hereon.”

There is nothing in the policy itself to indicate that it was a “Family policy”.

The plaintiff-appellant admits that the application forms a part of the contract and that neither the application nor the policy has any statement concerning after-born children. Actually, plaintiff-appellant contends that although Mark Wayne Eggert’s name has never appeared upon the policy in question he is still entitled to recover: (1) because the contract of insurance shows it to be a family type policy covering the named insureds plus all additions to the family or (2) in the alternative that such policy is misleading and therefore the defendant company is estopped to deny that Mark Wayne is entitled to the protection on such policy. These two counts are premised upon plaintiff’s theory that the contract in question is ambiguous with regard to the persons intended to be covered. Appellant argues that because he, the plaintiff, surrendered his policy to the defendant company, and they voluntarily added as a named insured one of his after-born children without any additional costs, and since the policy does not say how after-born children shall be treated, therefore the court is required to construe the entire insurance contract in such a manner as to effectuate, if possible, the obvious intention of the parties to the contract to include after-born children. He cited Massachusetts Bonding & Ins. Co. v. Wooley, Tex.Civ.App., 179 S.W.2d 329, and other cases in support of his contention that lack of clarity in the meaning of an insurance policy requires the courts to interpret the policy against the insurer and liberally in favor of the insured, and further that insurance policies will be construed more strongly against the company writing it.

The rule that insurance contracts are to be interpreted in favor ~f the insured and against the insurer rests upon the premise that the policy or contract of insurance is ambiguous or of doubtful and uncertain meaning. Insurance policies being contracts, they are governed by rules of interpretation that are applicable to contracts generally. 32 Tex.Jur.2d, § 54, p. 102. It is the function of the court to construe and enforce the contract as it is written where the terms of the contract are plain and unambiguous. Republic National Life Insurance Co. v. Spillars, 368 S.W.2d 92, 5 A.L.R.3d 957 (Supreme Court 1963). The court cannot under the guise of judicial construction or interpretation make a new contract for the parties or one different from that which they intended to make. 44 C.J.S. Insurance § 290, p. 1143. See 13 Tex.Jur.2d § 109, p. 261 and cases cited therein. Where no ambiguity exists, parol evidence is not admissible in an attempt to create an ambiguity in the contract. See Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951). Ambiguity of a contract does not appear until the application of pertinent rules of interpretation to the fact of the instrument leaves it genuinely uncertain which of two or more meanings is the proper meaning. Universal C.I.T. Credit Corp. v. Daniel, supra; 44 C.J.S. Insurance § 297c (2), pp. 1190-1196.

The policy says: “This contract includes the endorsement and attached papers, if any, and contains the entire contract of insurance.” Mark Wayne’s name was not listed as a named insured nor did the policy contain any provision to include after-born children. The plaintiff-appellant being both the insured and agent for the company did not include “all after-born children” as insureds in his application for insurance. The only time that the word “family” is used at all, is in the application, and it is used in the context of determining the cost of the premium. There was no language in the contract which can be construed to extend the benefit to any other person as insured other than those named as insureds in the policy.

After plaintiff’s son had contracted the disease, and upon notification of such, the defendant company added by endorsement as a named insured, the other after-born child of the plaintiff. This the company had the right to do. The company received a sufficient consideration for agreeing to extend the coverage to this additional child by virtue of the fact that the plaintiff continued to pay his premiums. Had the defendant company refused to extend such coverage when requested to do so, it might merit a cancellation of the policy by the appellant. Although the defendant did not have the right to cancel the policy as to insureds listed on the face of the policy (non-cancellable and guaranteed renewable for life) it did have a right to refuse to accept additional parties. Appellant has not referred us to any place in the contract of insurance where the defendant-ap-pellee agreed to assume the obligation concerning after-born children.

Plaintiff-appellant’s contention that Mark Wayne’s name should be added to the policy from the date of his birth is contradictory to the terms of the contract itself. The application which appellant signed both as applicant for insurance and as agent for the company, reads that persons could not be covered unless they were more than three months of age. Furthermore, the application made certain inquiries concerning the health of an applicant to be a named insured which had to be answered favorably before the policy could be issued. We fail to find anything in the policy or the affidavits that would entitle plaintiff’s after-born child to be covered as an insured without additional increase in premium, without examination, and/or that coverage would commence at the date of his birth.

Appellant further contends that the defendant company would have added Mark Wayne’s name to the policy when it added his other after-born child’s (Richard Lane) name without any increase in premium except for the fact that Mark Wayne had polio. Appellant argues that it is therefore conclusive, that appellant had the option to add his after-born children to the policy and although the exception is not expressed in the contract, it is obviously there. In this connection the appellant’s third alternative contention, set forth in his pleadings, was that the policy of insurance is in error by reason of mutual mistake of the parties and should be reformed by the court so as to list the name of Mark Wayne as a named insured thereon. In this connection, appellant asks the court to rewrite the contract of insurance to the extent of placing the name of Mark Wayne on the face thereof and to treat such contract as if his name had appeared thereon prior to the time that the child was stricken with poliomyelitis. This contention is without merit because the failure to endorse on the policy of insurance the name of Mark Wayne at the time it was issued could not have been a mutual mistake when the child was not born until several years after plaintiff made application for the policy. The only part of either of appellant’s affidavits that we can find that could possibly be construed as raising a fact issue of mutual mistake is in the affidavit plaintiff filed in support of his motion for summary judgment where he says: “I was also instructed and informed that this included all the members of the immediate family and that children born subsequently to the issuance of the policy were covered as members of the family without additional increase in premium and without examination, and that coverage commenced at the date of birth.”

Appellant’s global statement that he has personal knowledge of every statement in his affidavit, fails to show what specifically was told him, or by whom, or when. See Harang v. Aetna Life Insurance Company, 400 S.W.2d 810, 814 (Tex.Civ.App.1966). The plaintiff-appellant does not contend nor does he say under oath that this statement induced him not to read his policy of insurance. Fireman’s Fund Indemnity Co. v. Boyle Gen. Tire Co., Tex.Civ.App., 381 S.W.2d 937, affirmed 392 S.W.2d 352 (Supreme Court 1965). He does not contend nor state that he did not read the policy of insurance. He does not say in his affidavit that he believed or relied upon such statement; and finally, in neither affidavit does the plaintiff state that he would not have purchased this policy had he known that it was not a correct statement. Mutual mistake has been defined as “one common to both parties to a contract, each laboring under the same misconception; more precisely, it is one common to both or all parties, wherein each labors under the same misconception respecting a material fact, the terms of the agreement, or the provisions of a written instrument designed to embody such agreement.” 17 C.J.S. Contracts § 144, p. 894. The test is to determine if a mutual mistake existed as to what the parties intended the instrument should contain prior to and at the time of its execution. Thomas v. Baptist Foundation of Texas, Tex.Civ.App., 123 S.W.2d 440, 448, (1939, wr. dism., judg. corn). We cannot find in his petition or affidavits where the mistake he contends is mutual.

The policy in question is very clear concerning persons named as insureds. It was said by our Supreme Court in Fireman’s Fund Indemnity Co. v. Boyle Gen. Tire Co., 392 S.W.2d 352, that:

“ * * * The rule followed in Texas is that an insured who accepts a policy without dissent, is presumed to know its contents, but the presumption may be overcome by proof that ‘he did not know its contents when it was accepted, as by showing that when he received it he put it away without examination, or that he relied upon the knowledge of the insurer and supposed he had correctly drawn it.’ ”

No such contention that would overcome the rule of presumed knowledge on the part of the insured has been alleged or stated as a part of his affidavits. Here the plaintiff insured states that he was an attorney and that the facts are undisputed that he was the agent for the company. In view of this it would seem that he would be bound by the unambiguous policy as written: Republic National Life Insurance Company v. Spillars, supra.

The rule concerning summary judgments is that if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law, then the motion for summary judgment should be granted. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. There is no allegation of fraud and no genuine issue of any material fact that would entitle the plaintiff-appellant to a reformation because of mutual mistake. Appellant’s affidavits concerning expenses incurred presented mere conclusions and therefore even if material, do not raise an issue of fact. Rule 166-A, Texas Rules of Civil Procedure. We hold that the trial court acted properly in granting appellee’s motion for summary judgment.

Appellant’s points are overruled. Judgment of the trial court is affirmed.


author: BATEMAN, Justice.

text:
    BROWNWOOD MANUFACTURING COMPANY et al., Appellants, v. TANENBAUM TEXTILE COMPANY, Inc. Appellee.
    No. 16729.
    Court of Civil Appeals of Texas. Dallas.
    May 20, 1966.
    Rehearing Denied June 17, 1966.

      Emil Corenbleth, Dallas, for appellants.
    G. H. Kelsoe, Jr., and Robert M. Kennedy, Dallas, for appellee.
   BATEMAN, Justice.

Summary judgment was rendered in favor of appellee Tanenbaum Textile Company, Inc., against the appellants Brown-wood Manufacturing Company and Gill-sam Manufacturing Company, Inc. for $39,-897.49 and $40,562.12, respectively. Ap-pellee’s suit against appellants was based on a judgment of the Supreme Court of the State of New York in and for New York County. The New York judgment was rendered in confirmation of certain awards made by a board of arbitration. Appellants say by their two points of error that the New York judgment is void and not binding on them, and not entitled to full faith and credit in this Texas suit, because they were not served with process in the New York proceeding.

PACTS

Appellants manufactured clothing out of textiles supplied by appellee under written contracts, paragraph 16 of which provided:

“ARBITRATION: Any controversy relating to this contract shall be settled by arbitration. Arbitration shall be held in the City of New York in accordance with the rules then obtaining of the General Arbitration Council of the Textile Industry. Buyer and Seller consent to the jurisdiction of the Supreme Court of the State of New York and further consent that any process or notice of motion or any application to the Court, including application for judgment upon an award, may be served outside the State of New York by registered mail or by personal service provided a reasonable time for appearance is allowed.”

Disputes arose between the parties — ap-pellee claiming the purchase price of certain materials, and appellants claiming damages on account of defective materials and tardy deliveries. Pursuant to the contracts, these claims were submitted to arbitration in New York City. The appellants were represented by a lawyer named Lazarus and appellee by a lawyer named Whyman, both of New York City.

As attorney for the appellants here, Lazarus first requested the Arbitration Council of the Textile Industry to consolidate and hear together the several claims, and on being informed that the Council was without power to do so except by agreement, and Whyman having refused to agree to it, Lazarus then filed in the Supreme Court in and for New York County a motion to consolidate the claims. The expressed purpose of this motion was to save appellants the unnecessary expenditure of time and money in making numerous trips to New York with their witnesses for hearings on the separate claims. Appellants knew of this motion and approved of its filing. Appellee’s attorney, Whyman, vigorously resisted the motion, but it was granted. Arbitrators heard the claims and made awards to appellee against the appellants for substantial amounts. In due time Whyman filed a motion in the same numbered proceeding in which Lazarus had previously filed his motion to consolidate, asking that the awards be confirmed and judgment rendered thereon. Notice of this motion was served on Lazarus as attorney of record for the appellants. Lazarus sent copies of the motion and of the awards to appellants. He then filed two affidavits in opposition to the motion to confirm and for judgment, and sent copies thereof to appellants. In those affidavits he described himself as attorney for appellants. Appellants gave him no specific instructions in the matter after the awards in arbitration were made; neither did they protest his having accepted service of the motion to confirm and for judgment or question his authority to enter their appearances thereto. The awards were confirmed and judgment rendered thereon by the Supreme Court; this being the judgment sued on in this case.

Pursuant to requests therefor made under Rule 184a, Vernon’s Texas Rules of Civil Procedure, the trial court took judicial notice of certain New York laws, the pertinent portions of which are as follows:

Article 75 of the Civil Practice Law and Rules (C.P.L.IJ.), relates to arbitrations. Section 7501 thereof reads:

“A written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the justi-ciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award. * * * ”

The last sentence of Section 7506(d) is:

“If a party is represented by an attorney, papers to be served on the party shall be served upon his attorney.”

Section 7510 reads:

“The court shall confirm an award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified upon a ground specified in section 7511.”

Section 7514 provides in part:

"Sec. 7514. Judgment on an award.
“(a) Entry. A judgment shall be entered upon the confirmation of an award.”

Rule 320, C.P.L.R., provides that the “defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer.”

Rule 2103(b) provides that, except where otherwise prescribed by law or order of court, “papers to be served upon a party in a pending action shall be served upon his attorney.”

Appellants, on advice of their Texas attorney, took no active part in the New York proceedings after the awards were made and take the position here that Lazarus had no authority to enter an appearance for them in the New York court; that he was employed to represent them in the arbitration proceedings up to the making of the awards, and that thereafter he had no authority to act for them. Lazarus testified by deposition that in filing his affidavits in opposition to the motion to confirm and for judgment he thought in good faith that he was authorized to do so; that he was employed by appellants to represent them genera'.' / in the arbitration proceedings for an agreed flat fee; that he charged no additional fee for resisting the motion to confirm and for judgment because he considered it all a part of the work he was employed and paid to do.

OPINION

When appellants entered into these written contracts providing- for arbitration in New York, they were charged with notice of the New York laws pertaining to arbitration and consented to be bound thereby. Appellants now say, however, that their consent was limited strictly to the matter of arbitration, and that when ap-pellee’s counsel filed the motion for confirmation of the awards and for judgment thereon this was the filing of a new suit, of which they were entitled to be notified by summons or citation served on them personally within the limits of the State of New York, citing Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, and that when the awards were made by the arbitration board the attorney-client relationship theretofore existing between them and Mr. Lazarus came to an end.

The above mentioned New York statutes, as well as the above quoted paragraph 16 of the contracts between the parties, specifically recognize that the application for judgment upon an award is a part of the arbitration proceeding. This is in harmony with the New York decisions. See Mossman v. Motor Vehicle Acc. Indemnification Corp., 19 A.D.2d 842, 244 N.Y.S.2d 565, holding that the motion to confirm “finalizes the arbitration award and is therefore an integral part of the arbitration procedure necessary to protect the interests of the parties.”

The New York cases seem to be uniform in holding that an agreement to arbitrate within a given jurisdiction is a submission to the law and courts of that jurisdiction and to any procedures in that jurisdiction necessary to bring the arbitration to an effective conclusion. Application of Liberty Country Wear, Inc., 197 Misc. 581, 96 N.Y.S.2d 134.

See also Staklinski, Petitioner-Respondent v. Pyramid Electric Co., Respondent-Appellant, 6 A.D.2d 565, 180 N.Y.S.2d 20, affirmed 6 N.Y.2d 159, 188 N.Y.S.2d 541, 160 N.E.2d 78, wherein it was said:

“There was an agreement to arbitrate in accordance with rules of the American Arbitration Association and, pursuant to such rules, New York was selected as the locale for the hearing. It constituted, in effect, a consent of the parties to the jurisdiction of the Supreme Court of this state to enforce such contract.”

As held in Aarons v. Local 32-E, Building Service Employees International Union, Sup., 82 N.Y.S.2d 262, in submitting to arbitration a party must be deemed to have put in a general appearance in a special proceeding and to have waived any question of jurisdiction.

Moreover, in our opinion appellants are also bound by the fact that their own attorney, while admittedly authorized to represent them, and with their knowledge and consent, invoked the jurisdiction of the New York court to compel appellee, over its vigorous protest, to consolidate its claims and try them in one proceeding. They are in no position now to deny the authority of that court to render an in personam judgment against them.

We do not think due process has been denied appellants in this case. After voluntarily submitting themselves to the New York laws and the jurisdiction of its courts, not only by their written contracts but by invoking the jurisdiction of the very court whose judgment they now say is void, and after notice of the motion to confirm and for judgment was served upon their attorney and they were informed of this fact and of their attorney’s opposition thereto, they remained silent and let the hearing of the motion be held without further protest or objection, apparently willing to accept the benefits if the efforts of Mr. Lazarus were successful, but now say they are not bound by the unfavorable result. This the law does not permit them to do. Baughan v. Goodwin, Tex.Civ.App., 162 S.W.2d 732, wr. ref. w. o. m.

Being of the opinion that the summary judgment was correct, we affirm it.

Affirmed.


author: SHARPE, Justice.

text:
    Evelyn LANE, Appellant, v. Vera FRITZ, Appellee.
    No. 226.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 26, 1966.
    Luther E. Jones, Jr., Corpus Christi, for appellant.
    Mahoney, Shaffer & Hatch, by Lee Mahoney, Corpus Christ, for appellee.
   OPINION

SHARPE, Justice.

Appellant here seeks reversal of a summary judgment which declared void certain lis pendens notices of a prior suit for damages filed by her against appellee for alienation of the affections of appellant’s former husband. The judgment also removed the cloud cast by such notices on title to land owned by appellee in the State of Texas. The decision below was reached on the basis of the pleadings in the two suits and copy of a lis pendens notice filed by appellant in Nueces County, Texas.

By two points, appellant asserts that there is no sufficient basis for the adjudications made by the trial court. She argues that her prior suit and the lis pendens notice filed in connection therewith are within Art. 6640, Vernon’s Ann.Civ.St. because she sought adjudication establishing in her favor a lien on all realty owned by appellee in Nueces and Hayes Counties and elsewhere in Texas to secure payment of the amount of a judgment which she, as plaintiff in that suit, njay recover therein. Appellant further contends that the provisions of Art. 6643a, V.A.C.S., must be complied with before nullificáSon of a lis pendens notice will be authorized; and, in this case, appellee did not aver or show that the conditions of the last-mentioned statute were met.

In 54 C.J.S. Lis Pendens § 9, p. 577, the following statement appears:

“At common law and under statutory provisions as to lis pendens not altering the common law in this respect, lis pendens may not be predicated on an action or suit seeking merely to recover a personal or money judgment unless and until a valid judgment has been secured and made a lien against the property. It does not apply to an action of trespass, or a suit for an accounting, or to any other action or suit which does not directly affect property. The doctrine of lis pendens applies to all suits or actions which directly affect real property * * ”

Under Note 20, page 577, the cases of Neyland v. Brammer, 146 S.W.2d 261 (Tex.Civ.App., 1940. wr. dism. judgment correct) and Bowen v. Kirkland, 17 Tex.Civ.App. 346, 44 S.W. 189 (1897, wr. den.) are cited for the proposition that “[wjhere a collateral question only is involved which might ultimately affect the title of the parties to the property, lis pendens does not apply.” These cases are closely in point here.

In Neyland v. Brammer, supra, it appeared that Neyland had filed a prior suit against Mrs. Mary Louise Brammer, individually, as independent executrix of the Estate of J. L. Brammer, deceased, and as sole devisee under his will, in which he sought to recover the value of certain stock allegedly belonging to him and converted by Mrs. Brammer after her husband’s death. Neyland filed lis pendens notice of his suit specifically describing certain real property then belonging to the estate. Thereafter, Mrs. Mary Louise Brammer deeded that property to F. L. Brammer, Jr., who brought suit against Neyland in trespass to try title and for removal of the cloud cast on his title by the lis pendens notice. The trial court granted F. L. Brammer, Jr., the relief prayed for and the Court of Civil Appeals affirmed the judgment. The Court of Civil Appeals pointed out that Neyland had not reduced his unliquidated claim in the prior suit to final judgment, and until he did so he had no lien against the property of the estate. The Court specifically considered Art. 6640, V.A. C.S., and agreed with the contention of F. L. Brammer, Jr., that since the prior suit filed by Neyland was for damages due to alleged conversion, and did not in any way involve the title to or interest in the property in controversy, that the lis pendens notice of the prior suit was not effective as notice of a pending suit involving that property. The Court cited Brown v. Kirkland, supra, for the holding that lis pendens did not apply where only a collateral question was involved in a suit which might ultimately affect the title of the parties to-the property involved, and held in the case then before it that even if Neyland had obtained a final judgment in the prior suit against Mrs. Brammer, it would have had only a collateral effect of establishing a lien on the property of the estate which was merely incidental to the issue (of damages) there involved.

In our case, appellant’s prior suit for damages against appellee is clearly not an eminent domain proceeding and does not involve title to real estate nor seek to establish any interest or right therein. Her only claim is that her case falls within Art. 6640, V.A.C.S., because she seeks to establish a lien in her favor on the realty of ap-pellee to secure the amount of the judgment which she may recover against appellee based upon an unliquidated claim for damages. We believe that the holdings in Neyland v. Brammer, supra, are applicable here and that appellant’s contentions are not well taken. We further believe that the term “to enforce any lien, charge or encumbrance” as used in Art. 6640, Is not applicable where such lien does not exist prior to rendition of judgment under some provision of a contract, statute or the constitution.

We hold that appellant’s prior suit for damages against appellee and the lis pendens notices filed in connection with it do not come within the provisions of Art. 6640, V.A.C.S., and that appellee was not required to comply with Art. 6643a, V.A.C.S., in order to nullify, remove or cancel such notice.

The judgment of the trial court is affirmed.

      . Art. 6640, V.A.C.S. Suit for land; notice to be filed
      Upon the filing of the plaintiff’s statement or petition in any eminent domain proceeding, or during the pendency of any suit on action, involving the title to real estate, or seeking to establish any interest or right therein, or to enforce any lien, charge or encumbrance against the same, any party seeking affirmative relief therein, may file a notice of the pendency of such proceeding or suit with the county clerk of each county where such real estate, or any part thereof, is situated. Such notice shall be signed by the party filing the same, his agent or attorney, setting forth the number, if any, and style of the cause, the court in which pending, the names of the party thereto, the kind of proceeding or suit and description of the land affected. Acts 1905, p. 316; Acts 1959, 56 Leg., p. 689, ch. 315, § 1.

      , Art. 6643a, V.A.C.S. In lieu of lis pendens
      In any suit or action of which a notice of pendency thereof has been filed, and in which it shall appear to the court, upon motion made by any party to the suit or other person having an interest in the property affected by the action or in the result of such suit or action, that adequate relief can be secured to the party plaintiff or defendant seeking such affirmative relief therein, by the deposit of money, or in the discretion of the court, by the giving of an undertaking, the court may, at any stage of the proceeding, upon notice to all of the parties to the suit or action to be affected thereby, direct, by order made either in term time or in vacation, that the notice of the pendency thereof be can-celled upon the payment into court of the amount of the judgment sought to be recovered in such action, and such sum in addition thereto as the court may deem sufficient to cover interest likely to accrue during the pendency of the action, and costs.
      In lieu thereof, the court may, in its discretion, order that an undertaking be given in a sum double the amount of the judgments sought to be recovered, with two sufficient sureties to be approved by the court, conditioned that the party or person applying therefor will pay the judgment or judgments sought to be enforced against said property, with interest and costs, in the event that a final judgment shall be entered in favor of the party to such suit filing such notice to the effect that such real estate was, at the time of the filing of such notice of pendency of action, legally and equitably therewith charged. A copy of such undertaking with notice of the filing of same shall be served upon the attorney for the party filing such notice of pendency of suit not less than two days prior to the submission of the same to the court for its approval. Upon the approval of such undertaking by the court, the court may direct that the notice of pendency of action or suit be cancelled of record in the manner above provided. Acts 1925, 39th Leg., p. 353, ch. 145, § 1.