author: BATEMAN, Justice.

text:
    M. S. LEVERIDGE, Sr., et al., Appellants, v. Alberto QUINTANA et ux., Appellees.
    No. 16920.
    Court of Civil Appeals of Texas. Dallas.
    May 26, 1967.

      Robert Stahala, of Garrett & Stahala, Fort Worth, for appellants.
    D. Sam Coats, of Clark, West, Keller, Clark & Ginsberg, Dallas, for appellees.
   BATEMAN, Justice.

This appeal involves only the venue of a third-party action. The appellees Alberto Quintana and wife, having been sued by the assignee of a promissory note signed by them, filed a third-party complaint against appellants, trading as Blue Ribbon Food Service, payee in the note, seeking indemnity and judgment over for the amount of any judgment rendered against them. Appellants’ plea of privilege to be sued in Tar-rant County was overruled on the ground that the note had been obtained by fraud committed in Dallas County, within the meaning of Vernon’s Ann.Civ.St. Art. 1995, subd. 7.

The essential elements of fraud which the plaintiff in such a case must show are: (1) a false representation made by the defendant; (2) reliance thereon by plaintiff; (3) action by the plaintiff in reliance thereon; and (4) damage to the plaintiff resulting from such fraud or misrepresentation. Trinity Universal Ins. Co. v. Soliz, 241 S.W.2d 625 (Tex.Civ.App., El Paso 1951, no writ) ; Wilson v. Jones, 45 S. W.2d 572 (Tex.Comm’n App.1932, jdmt adopted). Appellants contend in three points of error that appellees failed to prove essential elements (1) and (4). These points are overruled.

The only testimony offered by appellees was their own, and it was undisputed. The appellees were nationals of Cuba and experienced some difficulty in understanding and speaking English. However, their testimony is clearly to the effect that when appellants’ agent was endeavoring to persuade them to enter into a written contract for the purchase of frozen meats over a period of thirty months at a total cost of approximately $175, appellees raised the ■question that they had no freezer in which to store the meat, and were told by the agent that they did not need to have a freezer, that his principal would give them a freezer if they would buy the meat for thirty months; that he did not tell them he would sell or lease or rent a freezer to them; that when they told him they might return to Cuba before completing the food purchase program, the agent told them his principals would in that event pick up the freezer and appellees would be under no further obligation; that it was their understanding from what the agent said that if they purchased the meat the freezer would be furnished to them; that if the agent had told them he was selling them a freezer they would not have bought it because they could not afford it; and that they at no time had any intention of buying a freezer; that they then signed a food purchase contract whereby they agreed to pay $175 for seventeen weeks of food service; that after Quintana signed the multiple copies of the food purchase contract, the agent told him that he had inadvertently left out a sheet of carbon paper for one of the copies and requested appellees to sign that copy also; that this copy was not “filled out” when they signed it. The food purchase contract and the contract for the purchase of the freezer were both introduced in evidence, being on identical printed forms, and both containing the form of a promissory note, the one covering the food being for $175 plus a $7 carrying charge, or a total of $182, and the other, being for the purchase of the freezer, showing a purchase price of $599.-95, with taxes, insurance and carrying charges increasing this to a total of $778.69. Appellees admitted the genuineness of their signatures on both contracts.

Appellants argue that an action for fraud cannot be based on the breach of a promise to do something in the future unless it is also shown that the promisor did not intend to perform when he made the promise, and that no such showing was made in this case. That is a correct statement of law, but it is inapplicable here for in this case appellees proved that they were induced to sign the contract for the purchase of the food freezer, not by the promise of appellants to relieve them of their liability thereunder if in the future they decided to return to Cuba, or became dissatisfied with the meat, but by the representation that the blank form they signed was to have been another copy of the food contract and that the carbon paper for it had been inadvertently left out, this copy later appearing to have been filled out with the terms of a contract for the purchase of a freezer they did not intend to purchase and which they were told they would not have to purchase. North America Life Ins. Co. v. Wilburn, 392 S.W.2d 364 (Tex.Civ. App., Dallas 1965, no writ) and cases cited therein.

The testimony of appellees was sufficient to raise fact issues as to whether appellees were induced to sign the contract for the freezer by fraudulent misrepresentations of appellants’ agent, and whether appellees relied upon such representations and acted thereon.

On the question of whether damage was shown to have resulted from such misrepresentations, appellants cite Sanders v. Select Ins. Co., 406 S.W.2d 937 (Tex.Civ.App., Dallas 1966, no writ), wherein we held that the requirement of a showing of damages resulting from fraudulent misrepresentations was not complied with in such a case merely by showing potential damages, or damages which might possibly be awarded in the future.

In such a case it is not necessary to prove the exact amount of the damages, hut only that fraud was perpetrated in the county of suit and that some actual damage resulted therefrom. Cockburn v. Less, 257 S.W.2d 470 (Tex.Civ.App., Dallas 1953, mandamus den. and opinion approved in Cockburn v. Dixon, 152 Tex. 572, 261 S.W. 2d 689). In Sanders it was conceded that no actual damage was shown, but here it appeared without dispute that while Mr. Quintana was working in Louisiana his wife made certain payments which both of them understood were on the food purchase contract, but which they later learned were one or more of the installments of the note for the freezer. In fact, it was stipulated that appellees made four payments on the freezer. This in itself was sufficient to prove some actual damage, at least prima facie.

By overruling the appellants’ plea of privilege, the trial court impliedly found that the essential elements of a case based upon fraud existed. There was evidence to support such implied findings, and the judgment must therefore be affirmed.

Affirmed.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    S. E. GLOVER, Sr., et al., Appellants, v. S. E. GLOVER, Jr., Appellee.
    No. 4158.
    Court of Civil Appeals of Texas. Eastland.
    April 28, 1967.
    Rehearing Denied May 26, 1967.

      Callaway, Callaway & Harmon, Gib Cal-laway, Brownwood, for appellants.
    Ben D. Sudderth, Comanche, C. O. McMillan, Stephenville, for appellee.
   GRISSOM, Chief Justice.

S. E. Glover, Sr. and his son, Bob H. Glover, and his wife and another son, Sam O. Glover, sued S. E. Glover, Jr. They alleged that they and the defendant jointly owned 729 acres of land; that Bob H. Glover and wife owned 200 acres thereof as their homestead and that the other 529 acres was jointly owned as follows:

Glover, Sr. 106 acres
Glover, Jr. 47 acres
Sam 0. 188 acres, and
Bob H. 188 acres.

Plaintiffs sought a judgment declaring ownership and a partition in accord therewith. Junior, who is the son of Senior and the brother of Sam and Bob, answered that the 200 acres claimed to be the homestead of Bob and wife under a conveyance from his father was made without consideration and was an attempt by Senior to transfer title to said 200 acre tract to Bob without authority in the will of his mother, Ada Glover, deceased. Junior alleged that he, Bob and Sam were the children of Ada; that their mother’s will provided that their father should have all her property as long as he remained unmarried and that he should have the right to use, control and convey it but that, in the event of his remarriage, all of her property remaining on hand should then pass to and vest in her children “in equal shares, share and share alike;” that she did not intend for Senior to have authority to make a gift of her interest in land to one child and thereby prefer him over another; that this was made clear by the provision that on the death or remarriage of Senior, the property remaining should pass to testatrix’' children, “in equal shares, share and share alike”. Junior alleged that Senior remarried in February 1963 and thereupon the title to all of testatrix’ estate which had not been lawfully disposed of passed to and vested in her children; that the title of testatrix in the 200 acres purported to be conveyed to Bob by his father and claimed by Bob and his wife as their homestead passed to and vested in testatrix’ children, with Junior owning a i/jrd interest therein. Junior alleged that Bob was not an innocent purchaser of said 200 acres but that he received it without consideration knowing the terms of his mother’s will. Junior then alleged he had filed another suit, Number 10,582 on the docket of the same court, wherein he sued Senior and his brothers; that an agreed judgment was rendered in that cause in 1963, by the terms of which it was decreed that an undivided i/$rd interest in all his mother’s estate which remained in the hands of Senior vested in Junior, including an undivided ½rd interest in 425/529ths of the 529 acres involved in this suit, which effectively fixed the interest of Junior in said 529 acres but left undisposed of his interest in the 200 acres claimed by Bob and wife as their homestead. Junior alleged that said land was susceptible of partition in kind, including the 200 acres claimed by Bob; that said 200 acres was owned as follows: Bob owned all of Senior’s interest and an undivided l/^rd of his mother’s interest and Sam and Junior each owned an undivided I/3rd of the interest owned by their mother at the time of her death. Junior prayed that plaintiffs take nothing against him so far as their suit sought to recover and quiet the title of Bob in the 200 acre tract; that the interest of all parties in all of said land be determined and that it be partitioned in accord with his allegations.

It is undisputed that Senior and his first wife acquired 729 acres of land; that an undivided ⅛⅛ interest therein was inherited by Senior’s first wife and the remaining %ths was purchased by Senior and his first wife during their marriage; that their children and heirs at law were the three sons named; that the first wife, Ada, died in December 1959, leaving a written will which was probated and that it contained the provisions mentioned; that in October 1962, Senior executed a deed to Bob purporting to convey “all my right, title and interest” in and to said 200 acres out of the 729 acres acquired by Senior and his first wife as aforesaid; that on December 20, 1962, Senior executed a deed conveying to said three sons, share and share alike, an undivided 425/529ths interest in 529 acres of the 729 acre tract. It was also undisputed that in February 1963, Senior married again and litigation followed; that, in cause 10,582, it was adjudicated that upon Senior’s remarriage Junior’s undivided J^rd interest in all the estate of his mother which remained in Senior’s hands vested in Junior, including an undivided i/jrd interest in 425/529ths of the 529 acres, subject, however, to a lease to Hanson and Stephens. In said judgment it was decreed that Senior’s deed to Bob was not effective against Junior; that, thereafter, the present suit was filed by Senior, Bob and Sam against Junior seeking partition of said 529 acres; that after it was filed all the parties made an agreement in writing settling their controversies and agreeing to dismiss their suits. The court found that said contract was made in compromise and settlement of the disputes between the parties. Junior filed a cross action against said plaintiffs, seeking specific performance of the agreement therein to convey the land in dispute to Junior. In a trial to the court, it was adjudged that Junior was entitled to have said contract specifically enforced. The plaintiffs have appealed.

Appellants’ points are in substance that the court erred (1) in its conclusions of law 1 and 4, that the compromise contract to sell to Junior was supported by a valid consideration and that Junior was entitled to specific performance thereof, because when appellants made the contract the parties were acting under a mutual mistake of fact, in that, they assumed Junior owned 141 acrés in the 529 acre tract when he only owned 47 acres therein; (2) that the court erred in conclusion of law numance and (3) that the court erred in its findings and conclusions to the effect that Junior was entitled to specific performance, because Junior had not performed conditions precedent required by the contract, to-wit, to (a) deliver certain land to lessees Stephens and Hanson; (b) to pay Senior $930.00 in 90 days and (c) to surrender 80 acres of peanut land to Senior and Bob. Appellants’ 4th point is that the court erred in holding Bob was not entitled to the 200 acres as his homestead because it was conclusively established that it was the homestead of Bob and wife and Bob’s wife was not a party to the contract and, therefore, the contract to convey the 200 acres to Junior was void.

We think it is evident that appellants did not establish that they were acting under the alleged mutual mistake when they executed the contract to sell the land to Junior. As appellee says, it seems to be appellants claim that despite the judgment in case number 10,582, wherein Junior sued appellants, that appellants in fact owned more than 588 acres in the 729 acre tract and, therefore, it was thus established that there was a mutual mistake. We think mutual mistake was not established; that the language used in the judgment in cause 10,582, wherein the court found that Junior’s undivided i/jrd interest in all the property and estate of his mother which remained in Senior’s hands vested in Junior, “including an undivided i/$rd interest in and to a 425/529ths undivided interest in the 529 acres of land — ” is susceptible to the construction made by the court, to-wit, that Junior was entitled to yird of 425 acres, or 141 acres.

We agree with appellee that the agreement to sell to him was entered into as a compromise settlement of their controversies. It stated that it was in full settlement of disputes between them as to the ownership and right of possession of said property. There was no assertion of fraud or misrepresentation by Junior that induced appellants to make that agreement. Ordinarily, in the absence of fraud, courts will not disturb such a settlement. The compromise of a doubtful right is sufficient consideration for such an agreement and, in the absence of proof of fraud, it should be enforced. Camoron et al. v. Thurmond, 56 Tex. 22; Gilliam v. Alford, 69 Tex. 267, 6 S.W. 757, 759.

We agree with the Court’s finding that Junior timely tendered performance. The contract provided that the sellers, appellants, should furnish abstracts of title and, if the title were found marketable, then Junior should, within sixty days after receipt of the abstracts, pay the agreed consideration and that contemporaneously therewith the sellers should deliver to Junior their special warranty deed conveying the land to him. It provided that the purchaser should have ninety days to perform the contract and that if he did not the sellers were entitled to specifically enforce its performance. The contract contained several minor provisions, one called for payment of $930.00 in settlement of certain rents on or before ninety days from the date of the contract and that Junior would relinquish possession of a certain 80 acre tract, not here involved; that Junior would have two implement dealers appraise equipment owned by Senior and Junior and that Junior might purchase the interest of Senior within ninety days at the appraised price. It is unnecessary to state all the evidence which, we think, is sufficient to support the finding that Junior timely tendered performance of his part of the contract. We agree with appellee that, if the contract is susceptible to the construction that failure of Junior to perform within the ninety day period caused him to forfeit his right to purchase, nevertheless, said last day being a legal holiday and performance being tendered on the following day, it was tendered within time. Furthermore, it was established that appellants were obligated to tender to Junior abstracts and a special warranty deed conveying said land to him and that such tenders were never made. The record shows that appellants did not attempt to comply with the agreement and we think that they cannot thus avoid specific performance of the contract.

We also approve the holding that the homestead claim of Bob and wife was not established. The court found that they did not reside and had not resided on the property; that they had not performed any act evidencing an intention to occupy said 200 acres as a homestead and that there was no disclosure of such a claim when Bob contracted to sell to Junior. The court properly concluded that Bob’s homestead claim rested upon proof of an undisclosed intention to, at some indefinite time in the future, make said 200 acres the home of his family.

We approve the controlling findings and think the court correctly held that Junior was entitled to specific performance. Appellants’ points are overruled. The judgment is affirmed.


text:
    Wayne A. JOHNSON, Appellant, v. CITY OF CORPUS CHRISTI, Appellee.
    No. 4176.
    Court of Civil Appeals of Texas. Eastland.
    May 26, 1967.
    Rehearing Denied June 14, 1967.
    Fischer, Wood, Burney & Nesbitt, James P. Ryan, Corpus Christi, for appellant.
    I. M. Singer, City Atty., Robert E. Young, Asst. City Atty., Corpus Christi, for ap-pellee.
   GRISSOM, Chief Justice.

The City of Corpus Christi, in March 1966, passed an ordinance authorizing the condemnation of appellant’s property for a public use. After the city had, in compliance with all statutory requirements therefor, condemned Mr. Johnson’s property, it deposited the amount of the Commissioners’ award in the registry of the court and demanded possession of the condemned land. Mr. Johnson sought a temporary injunction to keep the City from taking possession of his condemned property pending an appeal. Upon a trial, the injunction was refused. Johnson has appealed from the refusal of the trial court to grant him a temporary injunction preventing the City from taking possession of the condemned land while his appeal is pending.

The substance of appellant’s contention is that the City is taking his property for a private instead of public use. A large record was made upon the trial. We are convinced that the record does not compel the conclusion, asserted by appellant, that his property is being taken for a private use. On the contrary, it supports the conclusion that appellant’s property was condemned for use by the public as a park. Article 3268 provides that if the plaintiff in the condemnation proceedings desires to take possession of the property •sought to be condemned, pending litigation, ⅛ may do so at any time after the award of the Commissioners by depositing the amount of the Commissioners’ award in court, subject to the order of condemnee and paying the costs awarded against it. The City has •complied with that statute. When the City •complied with the statute it became entitled to possession, as a matter of law, unless appellant established, which he did not, that the condemnation proceeding was a taking for private use. Thomas v. Housing Authority of City of Dallas, 153 Tex. 137, 264 S.W.2d 93, certiorari denied 348 U.S. 818, .75 S.Ct. 29, 99 L.Ed. 645; Culligan Soft Water Service v. State of Texas, Tex.Civ.App., 385 S.W.2d 613, 615, Ref. N.R.E.; Brazos River Gas Co. v. Brazos River Conservation & Reclamation Dist., Tex.Civ. App., 150 S.W.2d 350, 356 (W.R.); Hardy v. City of Throckmorton, Tex.Civ.App., 62 S.W.2d 1104; Brunson v. State, Tex.Civ.App., 410 S.W.2d 9.

As stated, the record sustains the •conclusion that appellant’s property is being condemned by the City for a public use; that it is being taken for use as a public park. The term “public park,” admittedly, has some elasticity. However, it is established law in Texas that a City taking land by condemnation for use as a public park is taking it for a public use. Lewis v. City of Fort Worth, 126 Tex. 458, 89 S.W.2d 975, 978; Schooler v. State, Tex.Civ.App., 175 S.W. 2d 664, Ref. W.O.M. See also State of Texas v. Jackson (Sup.Ct.), 388 S.W.2d 924, 925.

It is evident that appellant has not established that the City Counsel of the City of Corpus Christi has been guilty of arbitrary, capricious or unreasonable action in including appellant’s land as a site for a city park and adopting an ordinance authorizing its ■condemnation. Appellant has not shown that the tria) court abused its discretion in denying appellant’s petition for a temporary injunction to prevent the City from taking possession of his property.

Mr. Johnson asks this court to issue a Writ of injunction preventing the City from taking possession of said property pending a trial on the merits. We are informed that the case is set for trial on its merits on June 6, 1967. Under the situation disclosed, the case can be' speedily determined in a trial on the merits. We think that, as a matter of law, the City was entitled to possession when it complied with Article 3268, as it did. We refuse to issue a temporary injunction.

The judgment is affirmed.


author: PARKER, Associate Justice.

text:
    D. B. SCHULL, Appellant, v. LOWER NECHES VALLEY AUTHORITY, Appellee.
    No. 6908.
    Court of Civil Appeals of Texas. Beaumont.
    June 1, 1967.
    Rehearing Denied June 28, 1967.

      Adams & Browne, Beaumont, for appellant.
    Weller, Wheelus & Green, Beaumont, for appellee.
   PARKER, Associate Justice.

Summary judgment was entered that plaintiff Schull take nothing against defendant Lower Neches Valley Authority. Schull sued Lower Neches Valley Authority for |20,250.00 damages for the destruction of barges and logs owned by plaintiff destroyed as a direct result of the Authority’s having constructed a salt water barrier dam across Pine Island Bayou, a navigable stream, causing waters to flood and destroy said personal property belonging to Schull. Schull has appealed. The parties will be designated as in the trial court.

Plaintiff contends it was error to grant defendant’s motion for summary judgment because his damage was the direct result of the intentional act of a governmental body engaged in the performance of a public work and, thus, comes directly under Art. 1, Sec. 17 of the Texas Constitution, Vernon’s Ann.St. Plaintiff next contends it was error to grant defendant’s motion for summary judgment because plaintiff’s loss was not the result of an unprecedented rainfall as that term has been defined by the courts of this state.

Lower Neches Valley Authority is a governmental agency as set out in Art. 8280, Sec. 103, Subdivision 13(c). Lower Neches Valley Authority was organized for the purposes of constructing, maintaining and operating in the valleys of the Neches River and its tributaries any and all works deemed essential to the operation of the district in the control, storing, preservation and distribution to all useful purposes of the waters of the Neches River and its tributary streams. It preserves fresh water and sells it to surrounding municipalities, industries and local farmers.

The undisputed facts of the case relating to these two arguments are stated below.

Pine Island Bayou is a tributary of the Neches River. The Bayou is 600 feet wide where it flows into the Neches. Since the deepening of the ship channel to 36 feet from Beaumont to the Gulf of Mexico over 30 years ago, salt water from the Gulf goes up the Neches and up Pine Island Bayou as far as Voth. The Bayou is subject to tide. On Pine Island Bayou some two or three miles due west of the Neches but five or six miles from the Neches following the Bayou meanders Lower Neches Valley Authority has a pumping plant. The bank there is 3½ feet above mean low tide. Downstream from, but near this pumping plant, Lower Neches Valley Authority in the early summer of 1963 constructed a salt water barrier of steel piling before Hurricane Cindy occurred. The top of this barrier was 3½ feet above mean low tide. The Bayou at that point is 160-180 feet wide. Above and below such point the Bayou is crooked and winding. Its width as places below the barrier is as little as 60 feet. Lower Neches Valley Authority constructed the salt water barrier dam of steel piling to an elevation of 31/2 feet above mean low tide of the Gulf of Mexico to prevent salt water from the Gulf flowing upstream from the dam. In August of 1963 salt water was at this point. Ordinarily, a like barrier was installed in the Bayou each year in May or June. The general area to the north and east of such barrier and plant was very low. The area to the north to Village Creek was known as the “Big Swamp”.

About five miles westward from the barrier, Highway 69 crosses Pine Island Bayou. Downstream from Highway 69 about Yz mile the Santa Fe has a bridge across the Bayou. Plaintiff’s home was located upstream from the dam about five miles, near Voth, on a knoll ISO to 175 feet from the Bayou. Near his house plaintiff had some homemade float barges built of timber and gasoline drums. The barges in the vicinity of his house were tied with ⅝" rope around a tree, with a five foot leaway on the rope. Also upstream from the dam were other barges tied with %" rope to a tree or trees, the ropes being four to five feet in length. On the bank upstream plaintiff had logs he had unloaded, pulled up against his land and secured to a tree by a chain. For several years prior to 1963 plaintiff had been engaged in the business of salvaging sunken logs out of Pine Island Bayou.

Pine Island Bayou drains an area north of Liberty back towards Hull and Daisetta and over into the Sour Lake area. Its tributaries drain north and east of Sour Lake, taking in a large part of Hardin and Liberty counties. The Bayou also drains a large area of Jefferson County and the Willow Creek area out of Liberty County.

On September 17, 1963, Hurricane Cindy hit this Pine Island Bayou area. Heavy flooding ensued from torrential rains which averaged IS to 20" throughout the Sabine-Neches area with locally higher amounts in northern Orange and extreme southern Newton counties. Area streams were unable to accommodate the excessive rainfall. The area flood damages were estimated very nearly 12 million dollars. The above data in this paragraph is from the U.S. Department of Weather Bureau “Local Climatogical Data”.

Plaintiff had been in this area over 20 years. From the very beginning of this hurricane, water rose 2/ and 3" an hour. At Voth the water rose to 14.6' above mean low tide and was almost to the top of Highway 69 bridge. He testified:

“Q. And you didn’t know Cindy was going to produce that much water, did you?
A. Well, I don’t think you people did either, I will just answer that.”
“A. Well we have had several rises on the bayou since the time I have been out there and I have never seen one come and go like that storm Cindy did in there, and I have seen them come and rise and get awful high, but I have never seen them come up that quick and take everything with it.”

During the storm there was not any difference in the level of the water below the barricade as compared to above the barricade. The water at an elevation of over 3½ feet went over and around the barricade, flooding the surrounding low area.

During the storm the water was spread in all directions over the countryside.

As to the flooding, plaintiff did not know the exact hour it started but when the storm and rain hit there was a tremendous head of water coming from upstream from his home. The water rose fast all day and by late evening it reached its peak around 14 feet. Plaintiff made no attempt to retie or loosen the lines on his barges. It was too dangerous. When the water reached its height during the storm the ropes securing the barges either had to break or the barges had to sink. Plaintiff testified that the ropes were either broken or gone after the storm. He didn’t know whether they broke loose after the water reached an elevation of 12 or 14 feet or before. The logs chained to a tree were gone after the storm. Plaintiff didn’t know whether the chain broke or what happened, as he never did find the chain. He testified:

“You can put it the chain come loose if you want to. The chain might have come loose, I don’t know, but the wall of water coming down the bayou at the rate it come will move anything.”
“Q. Do you know when this timber broke loose?
A. No, sir, I don’t. It broke loose during the storm. After the water receded it wasn’t there.
Q. All right, but you don’t know what time of day or night that these barges broke loose or that the timber broke loose?
A. No, sir, I don’t, because I wouldn’t get out and see, I am not taking my life in my hands to go down a wall of water.”
“Q. You sure didn’t, all of this could have broken loose in the height of the storm after it raised up to 12 or 14 feet in height?
A. I am not saying it could or it couldn’t, I don’t know, I wasn’t there.”

Schull also testified in his deposition the water was over 14 feet or more up in his yard during the storm; that the 4th or 5th day after the storm and the water had receded he went up the highway bridge where one man’s boat was completely horseshoed around one of the columns of the bridge, bent tightly around it, “we had a tremendous stress of water coming down at the time”, referring to September 17th and the storm.

Under Rule 166-A summary judgment is authorized only when it is shown there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. The test is whether or not a fact issue to be decided by the court or jury is raised, and if so, no summary judgment should be entered and trial on the merits should be had. Subdivision (e) of Rule 166-A provides:

“(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.”

In Gulf, Colorado & Santa Fe Railway Co. v. McBride, 322 S.W.2d 492 (1958), the Supreme Court stated:

“When motion for summary judgment is supported by affidavits, depositions, stipulations or other extrinsic evidence sufficient on its face to establish facts, which, if proven at trial, would entitle movant to an instructed verdict, opponent must show opposing evidentiary data which will raise an issue as to a material fact or must justify his inability to do so and seek appropriate relief under Rule subdivision. Rules of Civil Procedure, rule 166-A(f).
“Where plaintiff moves for summary judgment in an action in which defendant has pleaded an affirmative defense, he is entitled to have his summary judgment, if he demonstrates by evidence that there is no material factual issues upon elements of his claim, unless his opponent comes forward with a showing that there is such a disputed fact issue upon affirmative defense.”

In the affidavit of D. B. Schull attached to and made a part of plaintiff’s reply to defendant’s motion for summary judgment he states that he makes the affidavit of his own personal knowledge. In one paragraph, he states:

“I actually went to the scene of the barrier erected by LNVA and saw the water backed up Pine Island Bayou and it was running over said barrier for a height of approximately seven (7) feet. The water level in the Neches River at that time was approximately ten (10) feet lower than the water in Pine Island Bayou. At the point of confluence of Pine Island and the Neches River the river is approximately six hundred (600') feet wide and thirty (30') feet deep and the water level was approximately ten (10') feet lower than the water running over the barrier erected by Lower Neches Valley Authority. The Neches River could have easily absorbed the full head of water coming down Pine Island Bayou and it would hardly have been noticed in the Neches River.”

This affidavit does not state when Schull went to the barrier or when he inspected the Neches River. By deposition Schull stated time and again that he did not get out during the storm. He did not see the water above and below the salt water barrier during the hurricane. It was not until the 4th day after the storm that Schull and his son got in a boat at his home place and went down to the dam where the water was still running S or 6 feet over this barrier, boiling over the swamp. The swamp extended from Village Creek to the north to the pumping plant where the barrier was erected. Nor did Schull see the Neches River during the storm. It is undisputed that Pine Island Bayou enters the Neches River some 2 or 3 miles east of the barrier and five or six miles above the river by the meanders of the bayou. Some 3 days after the storm and not before, Schull went by automobile to the Beaumont Country Club on the Neches River, below the mouth of Pine Island Bayou where the water, according to him, was normal. The Beaumont Country Club is not on Pine Island Bayou or near the salt water barrier. The supporting and opposing affidavit of Schull was not made on personal knowledge of the conditions above and immediately below the barrier at a time material to the issues involved and would not have been admissible in evidence upon a trial. The statements in the opposing affidavit and deposition of Schull fail to raise a genuine fact issue as to a material fact, to-wit: that the destruction and damage to Schull’s property was a direct result of the barrier being constructed by Lower Neches Valley Authority. The conclusions contained in Schull’s affidavit and deposition would not have been admissible in a trial on the merits. Legal conclusions in affidavit opposing summary judgment will not be considered by the reviewing court. Rosas v. Doreen (Tex.Civ.App.1966) 402 S.W.2d 813, n. w. h.; Toban v. Garcia, 159 Tex. 58, 316 S.W. 2d 396 (S.Ct.1958) ; Harang v. Aetna Life Ins. Co., 400 S.W.2d 810 (err. ref., n. r. e.); Keahey v. Dallas Teachers Credit Union, 374 S.W.2d 450, n. w. h., and opinions cited at p. 452. Legal conclusions are insufficient to create a fact issue, there being evidence on the material facts in affidavits and depositions. Dillon v. Greenville Hospital Authority, 404 S.W.2d 956 (Tex.Civ. App.1966).

Plaintiff did not know when or how the barges and timber broke loose and were destroyed or damaged during Hurricane Cindy. Unless material to an issue in the case, an issue of fact would not preclude rendering of summary judgment. Shaw v. Frank, 334 S.W.2d 476 (Tex.Civ.App. 1959); Baxter v. Beaupre, 295 S.W.2d 718 (Tex.Civ.App. 1956).

Under the material undisputed facts plaintiff has failed to show that the construction of the salt water dam was the proximate cause of the damages to his personal property. Plaintiff has failed to show that his damage was the direct result of the building of the salt water dam.

Taking into consideration the area drained by Pine Island Bayou, the fact that the level of the water above and below the salt water dam during the storm was the same, the known fact that water seeks its level, the fact that such salt water dam at this location had never caused flooding of such a nature as occurred during Cindy, and the fact that the velocity of the wall of water coming down the bayou from above plaintiff’s house carrying everything before it, supports the conclusion that there was an unprecedented rainfall in the entire area drained by Pine Island Bayou. The further fact that this was a hurricane supports the proposition that this was an “act of God”. For these reasons, the defendant was not liable for plaintiff’s damages to his barges and logs. Walker v. Texas Mexican Railway Co., 27 S.W.2d 574, 578; Hunt Bros. v. Missouri, K & T Railway Co., 74 S.W. 69; Benavides v. Gonzalez, 396 S.W. 2d 512 (Tex.Civ.App.1965).

Such points of error asserted by plaintiff are each overruled. Such being true, the other points of error are immaterial and are not passed upon.

Judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    ROTEX MANUFACTURING COMPANY et al., Appellants, v. LITTLE DUDE TRAILER COMPANY, Inc., et al., Appellees.
    No. 16840.
    Court of Civil Appeals of Texas. Fort Worth.
    June 9, 1967.
    Charles E. Tobin, Dallas, for appellants.
    Day & Gandy, and Joe Day, Jr., Fort Worth, for appellees.
   OPINION

RENFRO, Justice.

Suit for damages for breach of contract to purchase shares of stock was brought by Little Dude Trailer Company, Inc., and its stockholders against Rotex Manufacturing Company, Fred Woodell, its President, and C. F. Small, Executive Vice-President of defendant Rotex.

All three defendants filed pleas of privilege to have the case transferred to Dallas County.

The pleas were overruled and the defendants appealed.

Following a period of negotiations, defendants wrote the following letter to plaintiffs:

“8305 Sovereign Row
“Rotex Mfg. Co.
“P. O. Box 5355
Dallas, Texas
“July 15, 1966 “Stockholders
“Little Dude Trailer Co., Inc.
“Fort Worth, Texas
“Rotex Manufacturing Co. extends a. firm offer of $0,235 per share for the-outstanding common stock of Little Dude-Trailer Co., Inc.
“This offer is conditioned upon being able to acquire at least 80% of the outstanding stock by no later than August 1, 1966.
“Rotex Manufacturing Co, (Signed) “C. F. Small
“Executive Vice President”-

The plaintiffs introduced testimony to the effect that the parties agreed, on the day the letter was written, that if plaintiffs agreed to accept the offer they would endorse their stock in blank, have their signatures guaranteed by an officer of some bank who could guarantee their signatures, then turn the stock "into the trust department of the Fort Worth National Bank, plaintiffs’ transfer agent, to be held by said Bank until Rotex came over and paid for the stock; that after persuading more than eighty per cent of the stockholders to accept the Rotex offer and securing the Bank’s signature that the Bank held that amount of stock, the following letter was written to Rotex:

“Little Dude Trailer Co., Inc.
“802 NE 29th Street “Fort Worth, Texas “July 29, 1966
“Rotex Manufacturing Company, Inc. “8305 Sovereign Row “Dallas, Texas
“Attention: Mr. C. F. Small, Executive Vice President
“Gentlemen:
“This letter is to give you notice that the Forth Worth National Bank of Fort Worth, Texas, is now holding 1,153,899 shares of the outstanding common stock of Little Dude Trailer Co., Inc., properly endorsed for transfer to you by the various owners of these certificates.
“This represents more than 80% of the outstanding common stock of Little Dude Trailer Co., Inc. in compliance with the condition of your written offer to the stockholders of Little Dude as contained in your letter of July 15, 1966.
“All of the stockholders whose stock has been delivered to the Fort Worth National Bank have heretofore and do hereby accept your offer to purchase said stock at 23j4f* per share.
“We suggest that this transaction be closed at your very earliest convenience.
“Very truly yours,
(Signed) “W. R. Cowan,
“President and Stockholder “Little Dude Trailer Co., Inc.”

Mr. Cowan testified that Mr. Small called him by phone on August 15 and told him defendants were not going through with the deal.

Plaintiffs contend the court properly held venue in Tarrant County as to defendants Rotex and Small under the provisions of exception 23 of Article 1995, Vernon’s Ann. Tex. Civ. St., which provides in part that suits may be brought against private corporations in the county in which the cause of action or a part thereof arose, and had venue as to Woodell under exception 29a.

The record contains considerable evidence as to the reasons defendants did not complete the transaction. The trial court was of course the judge of the credibility of the witnesses and the weight to be given their testimony. Also, we have studied all the evidence and have concluded that most of such evidence goes to the merits of the defense in the case rather than to the matter of venue. Texas Plains Lodge No. 105 of Broth, of Locomotive Firemen, & Enginemen v. Cleghorn, 207 S.W.2d 109 (Tex.Civ.App., 1947).

The hearing on pleas of privilege is to determine whether the complaining defendant is suable on the transaction involved, where the plaintiffs filed the suit; the trial on the merits is to determine defendant’s liability on the transaction. William R. Carmichael, Inc., v. Winkley, 234 S.W.2d 937 (Tex.Civ.App., 1950).

There is sufficient evidence in the record to support the implied findings of the court that defendants breached a contract to plaintiffs’ damage and that part of the transaction occurred in Tarrant County.

In Lone Star Gas Co. v. Coastal States Gas Producing Company, 388 S.W.2d 251 (Tex.Civ.App., 1965), the court quoted Texas Employers’ Ins. Ass’n v. Moore, Tex.Civ.App., 56 S.W.2d 652; Burtis v. Butler Bros., Tex.Civ.App., 228 S.W.2d 938; and Woodman v. Bishop, Tex.Civ. App., 203 S.W.2d 977, as authority for the statement that, “It has generally been held in this state that a contract is made at the place where the offer of the contracting party is accepted by the other party * *. This acceptance is accomplished at the place where the last act necessary to give it validity is done.”

The above case and authorities cited support the trial court’s judgment.

Affirmed.


text:
    J. C. COLVIN, d/b/a Colvin Car Co., Appellant, v. The STATE of Texas, Appellee.
    No. 16921.
    Court of Civil Appeals of Texas. Dallas.
    June 9, 1967.

      Buck C. Miller, Houston, for appellant.
    John J. Orvis, Asst. Dist. Atty., Dallas, for appellee.
   BATEMAN, Justice.

This is a proceeding to forfeit an automobile pursuant to Vernon’s Ann.Tex. Penal Code, Art. 725d. In the State’s pleading, designated Notice of Seizure and Intended Forfeiture, it was alleged that the automobile was owned by James Duncan, was being used by Rex Eugene Parson to facilitate the receipt, possession, concealment and transportation of contraband narcotics, and that Colvin Car Company, of Houston, Texas, was “a purported lien holder of said vehicle.” The appellant J. C. Colvin, doing business as Colvin Car Company, filed a plea of privilege to be sued in Harris County and, subject thereto, a verified answer setting forth in detail that he held a bona fide lien on the vehicle and had no knowledge that it was to be used in violation of Art. 725d of the Penal Code, and in fact denied that it was being so used. The State filed a motion for summary judgment, which was sustained, and judgment was rendered forfeiting the automobile to The State of Texas “free and clear of any lien,” and ordering it sold and the proceeds of sale, after payment of costs, to be “disposed of in accordance with the provisions of Art. 725-d V.A.T.P.C.” Colvin appeals on six points of error.

By his first, fifth and sixth points of error on appeal, the appellant contends that the appellee did not discharge the burden resting upon it to show the absence of a genuine issue as to any material fact pertaining to appellant’s asserted lien and that appellee was entitled to judgment as a matter of law. Appellee made no showing whatever in connection with its motion for summary judgment concerning ■ appellant’s alleged lien. It therefore failed to demonstrate that it was entitled as a matter of law to the judgment forfeiting the automobile free and clear of such lien. This was part of the burden it assumed by filing the motion for summary judgment. Gulben-kian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952) ; Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965). Therefore, the summary judgment was unauthorized and appellant’s first, fifth and sixth points of error are sustained.

By his second point of error the appellant complains of the summary judgment because there was a genuine issue as to a material fact; i. e., whether or not the vehicle was illegally used to transport, conceal and possess certain narcotic drugs immediately before and at the time of its seizure. The record contains no reference to any depositions, request for admissions or other discovery process, and no affidavits are attached to the motion for summary judgment.

Section 6, of Article 725d, Penal Code, provides that if it shall appear that the owner of the vehicle has filed a verified answer denying its use in violation of the Act, the burden shall rest upon the State to prove the violation of the Act “as in other penal cases”; provided, however, that in the event no answer has been filed by the owner, the notice of seizure may be introduced into evidence and shall be prima facie evidence of said violation. The owner, James Duncan, was cited by publication, and an unverified general denial was filed for him by the attorney appointed by the court to represent him. The. record does not reflect whether the trial court considered the Notice of Seizure and Intended Forfeiture as evidence of the violation, but for the purpose of passing on this point we shall assume it did so. We find no cases directly on the point and are cited to none, but are of the opinion that the answer filed on behalf of the owner and the answer of appellant,'duly'verified in the form required by subdivision (e) of Rule 166-A, Texas Rules of Civil Procedure, were sufficient to put appellee on proof of such alleged illegal use of the vehicle. Accordingly, appellant’s second point of error is sustained.

In his third and fourth points of error the appellant complains of the summary judgment against him in the light of his plea of privilege timely filed and which was never controverted by appellee. Appellant relies on such cases as Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 1S4 (1936); Bell v. Jasper Lumber Corp., 287 S.W.2d 746 (Tex.Civ.App., Beaumont 1956, writ dism’d) ; Security State Bank of McCamey v. General Lloyd’s Fire & Cas. Ins. Co., 256 S.W.2d 185 (Tex.Civ.App., El Paso 1953, no writ); Papas v. Harmon, 263 S.W.2d 269 (Tex.Civ.App., Fort Worth 1953, no writ); and Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (1941), holding generally that when a defendant files a plea of privilege in proper form and no controverting affidavit is timely filed, the court is without jurisdiction to enter any order or take any action except to transfer the case to the proper court of the county of the defendant’s residence, and that venue cannot be retained in the county of suit under a statutory exception not invoked by the controverting affidavit or upon a venue fact not alleged as such therein. However, none of those cases was filed pursuant to a special statute, such as we have here, specifying the court in which the suit “shall” be filed.

Section 4 of Art. 725d, Penal Code, provides in part: “The seizing officer shall immediately file in the name of the State of Texas with the Clerk of the District Court of the county in which the seizure is made a notice of said seizure and intended forfeiture.” (Italics ours.) It is noted that jurisdiction is not made to depend upon the value of the matter in controversy ; also that the statute requires that “any lien holder of record” be made a party, and gives him the right to prove his lien, regardless of the amount thereof, and also provides, in Sections 7 and 8, for the enforcement of same.

In our opinion this statute gives exclusive jurisdiction to the district court of the county in which seizure is made, and a plea of privilege does not lie. Since the cause of action and remedy for its enforcement did not originate in the common law, but are creatures of the statute, it was within the power of the Legislature to designate a particular court as the exclusive tribunal to hear and determine such a suit. The district court of the county in which the seizure was made has been so designated and is, therefore, the only tribunal where the matter may be litigated. Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S. W.2d 364, 372 (1933); Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926) ; Fielder v. Parker, 119 S.W.2d 1089 (Tex.Civ.App., Eastland 1938, no writ); Cowan v. State, 356 S.W.2d 170, 177 (Tex.Civ.App., Austin 1962, writ dism’d); Calverley v. Shank, 28 Tex.Civ.App. 473, 67 S.W. 434 (Fort Worth 1902, no writ); Adamson v.. Connally, 112 S.W.2d 287 (Tex.Civ.App.^ Eastland 1937, no writ); Bachus v. Foster, 132 Tex. 183, 122 S.W.2d 1058 (1939); Gulf, C. & S. F. Ry. Co. v. Lemons, 109' Tex. 244, 206 S.W. 75, 5 A.L.R. 943 (1918) ;■ Cunningham v. Robison, Commissioner, 104-Tex. 227, 136 S.W. 441 (1911); Wilbarger County v. Hall, 55 S.W.2d 797 (Tex.. Comm’n App.1932, jdgmt adopted); Byer v. Dallas Power & Light Co., 290 S.W.2d 948 (Tex.Civ.App., Dallas 1956, no writ); Sands v. City of Dallas, 398 S.W.2d 428 (Tex.Civ.App., Tyler 1965, writ dism’d); State v. Fairbanks-Morse & Co., 223 S.W. 2d 339 (Tex.Civ.App., El Paso 1949, no writ); Schwantz v. Texas Department of Public Safety, 415 S.W.2d 12, Tex.Civ.App., Waco, April 27, 1967. Accordingly, appellant’s third and fourth points of error are overruled.

The judgment appealed from is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: BARROW, Chief Justice.

text:
    OSCAR ABBOTT CONTRACTORS, INC., Appellant, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, Appellee.
    No. 14571.
    Court of Civil Appeals of Texas. San Antonio.
    May 17, 1967.
    Rehearing Denied June 14, 1967.
    House, Mercer, House & Brock, San. Antonio, for appellant.
    F. N. Welmaker, Clemens, Knight, Weiss; & Spencer, San Antonio, for appellee-
   BARROW, Chief Justice.

This suit was brought by a subcontractor to recover from the surety on a payment bond issued pursuant to Art. 5160, Vernon’s Ann. Civ. St.

Appellant, hereinafter referred to as Abbott, Inc., entered into a written contract with the general contractor, Martin Brothers General Contractors, Inc., hereinafter referred to as Martin Bros., to furnish the labor, material and equipment to erect and remove all metal pan forms and shoring required under Martin Bros.’ contract to construct a Technical Arts Center at San Antonio College. Appellee, hereinafter referred to as F. & D., executed performance and payment bonds on behalf of Martin Bros, on the prime contract in the amount of $1,376,070. Shortly after the work on this project was begun, Martin Bros, went broke and was unable to complete its contract.

F. & D., as surety on these bonds, was required to see that the project was completed. It asked for new bids to complete the project and Harwell & Harwell, hereinafter referred to as Harwell, was the low bidder. Martin Bros, had eighteen or twenty subcontractors on this project and F. & D. verified the amount owed each at the time Martin Bros, went broke. F. & D. offered to pay all subcontractors, including Abbott, Inc., the amount owed them by Martin Bros., provided each subcontractor would enter into a new subcontract with Harwell to complete said subcontract for the balance remaining due under his original subcontract with Martin Bros.

Abbott, Inc. and Harwell had gotten into a dispute on a prior job they had worked on together and Mr. Abbott, president of Abbott, Inc., claimed that Harwell owed Abbott, Inc. $1,900. As a result thereof, Abbott, Inc. refused to enter into a subcontract with Harwell and brought this suit to recover $2,267.44 for the value of the work it had performed on its contract when Martin Bros, went broke, together with reasonable attorney’s fees. A take- . nothing judgment was rendered non ob-stante veredicto.

Abbott, Inc.’s subcontract was for installation of pan forms in which concrete was to be poured by the prime contractor; however, the forms were removed before being used and other forms erected by Harwell. F. & D. asserted a cross-action for $3,000 additional expense thereby incurred in completing the contract, but no complaint is asserted on this appeal to the denial of same. F. & D. admitted that Abbott, Inc. performed work of the value sued for, but denied any liability to Abbott, Inc., since the pans and forms were not used in completion of the contract and therefore were of no value to the contractor. F. & D. asserts that Harwell was prevented from using same by the act of Abbott, Inc. in removing the pans in place before their use.

Two issues were submitted to the jury and answered favorably to Abbott, Inc.: (1) Abbott, Inc. was justified in removing the pans in place from the construction in question; and (2) Abbott, Inc. is entitled to receive payment for the work performed by it up to the time Martin Bros, defaulted.

Abbott, Inc. urges that the trial court erred in granting F. & D.’s motion for judgment non obstante veredicto. Rule 301, Texas Rules of Civil Procedure, authorizes a trial court to render judgment non ob-stante if a directed verdict would have been proper, and, further, it may disregard any special issue finding that has no support in the evidence.

The record must be examined under the “no evidence” test to determine the propriety of this judgment non obstante veredicto. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950). In considering whether there was any evidence to raise a fact issue and to support the jury’s answers, we must consider only the evidence and the reasonable inferences to be drawn therefrom, that are favorable to the answers of the jury. Biggers v. Continental Bus System, Inc., 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957); Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955).

The pans were installed on the project by Abbott, Inc. in accordance with its subcontract and the project plans, for the purpose of providing forms in which to pour concrete. Abbott, Inc. was a claimant as defined in Sec. C, Art. 5160, supra. F. & D. does not now contend that Abbott, Inc. was required to execute a new contract with Harwell as a predicate for payment of the amount owed when Martin Bros, went broke. It urges, however, that Harwell was entitled to use the pans in place, and the controversy in this case is whether Abbott, Inc. refused to permit the pans in place to be used.

Mr. Abbott testified that the only proposition made by F. & D., after Martin Bros, went broke, was that Abbott, Inc. would be paid for this work previously performed only if Abbott, Inc. signed a new subcontract with Harwell. Such a written proposal was submitted to Abbott, Inc. and no other written proposal was made. Mr. Abbott denied that he ever told F. & D.’s representative or Mr. Harwell that they would have to “buy his pans” if Harwell poured concrete in the pans in place. Mrs. Abbott testified that Harwell’s estimator advised her that the pans in place were being removed by Harwell and that Abbott, Inc. should pick them up at the project site. This testimony, although contradicted by F. & D.’s witnesses, raised a fact issue as to whether Abbott, Inc. refused to permit the use of its pans in place. The trial court erred in granting F. & D.’s motion for judgment non obstante veredicto.

This disputed fact issue was not fairly submitted to the jury. Issue No. 1 inquired about the “removal” of the pans. The record is undisputed that a substantial part of the pans in place were taken down by Harwell and that Abbott, Inc. was requested by Harwell to remove its forms and other material from the site. This issue does not relate to the controversy of whether Abbott, Inc. refused to permit the use of its pans in place. It is our opinion that this disputed fact issue is fairly presented in F. & D.’s requested issue No. 1, which inquires if Abbott, Inc. refused to allow Harwell to use the pans in place. We therefore sustain F. & D.’s cross-point that the trial court erred in refusing to submit this duly requested issue.

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


author: LANGDON, Justice.

text:
    FORT WORTH CONCRETE COMPANY, Appellant, v. The STATE of Texas et al., Appellees.
    No. 16834.
    Court of Civil Appeals of Texas. Fort Worth.
    June 2, 1967.
    Rehearing Denied June 30, 1967.

      Simon & Simon, and Henry W. Simon, Fort Worth, for appellant.
    Brown, Herman, Scott, Young & Dean, and Richard E. Miles, Fort Worth, for ap-pellees.
   OPINION

LANGDON, Justice.

This is the second appeal of this case. It originated in the County Court at Law, Tarrant County, Texas. The opinion of this Court on the first appeal is reported in 391 S.W.2d 818. By writ of error the first appeal reached the Supreme Court. It reversed the judgments of the trial court and of this Court and remanded the case to the trial court “with instructions to set aside the order dismissing petitioner and to proceed to a new trial.” 400 S.W.2d 314. Reference is made to the opinions of this court and of the Supreme Court for a more detailed statement of the nature and result of the case. For the purpose of this opinion the statement is summarized as follows:

This is a condemnation proceeding. Appellant, a party to the condemnation, was in possession of all of the real property condemned, under a valid lease, on the date the condemnation proceeding was initiated and on June 19, 1964, the day of taking and owned all of the permanent improvements affixed to the real estate at such times. On the motion of appellees, contending that appellant “has at no time during the pend-ency of this suit owned any interest in the real estate sought to be condemned” the appellant was dismissed from the case by order of the court. The case was tried to the jury on the merits. Appellant was not permitted to participate in the trial. The jury found that $35,000.00 was the reasonable market value of the land on the day of taking, “exclusive of all improvements, and subject to the month to month lease with Fort Worth Concrete Company.” Based upon this finding, a final judgment was entered directing the County Clerk of Tarrant County (in partial payment of the $35,000.00 judgment) “to deliver and pay to said defendants (the other condemnees) * * * the sum of $15,000.00 deposited herein on June 19, 1964.” Appellant appealed both from the judgment dismissing it from the case and refusing to allow it to present evidence of damages due to condemnation and from the judgment directing that the $15,000.00 in the registry of the court be paid to the other condemnees.

The Supreme Court held that the trial court had no authority to award the deposit or any portion thereof to the other con-demnees to the exclusion of appellant, until there had been a final determination of appellant’s compensable interest, if any, and directed the court to proceed to a new trial to determine this interest.

When the mandate was returned to the trial court the $35,000.00 judgment had been paid and all the issues between the appel-lees, as condemnors, and all of the other condemnees had been settled. Appellant was the sole condemnee remaining. Thus, only its damages, if any, were secured by the $15,000.00 deposit in the registry of the court. Appellant made an application to withdraw these funds and the case was set for trial. The appellees filed a motion and an amended motion for summary judgment, contending that the pleadings and the summary judgment evidence clearly showed that appellant “has no compensable interest in this cause” and therefore “there is no genuine issue as to any material fact in connection with the compensable interest of Fort Worth Concrete Company or said Company’s right to receive compensation in this condemnation suit.” Appellant answered the motions for summary judgment. The trial court, after a hearing, entered a judgment on January 3, 1967, that “defendant, Fort Worth Concrete Company (appellant), has no compensable interest in this cause.” It ordered and decreed that appellant “take nothing herein,” and that its motion to withdraw funds “be and the same is hereby overruled and denied,” and “that the funds in the amount of $15,000.00 heretofore paid into the registry of the Court in this cause be refunded and paid over to Tarrant County, Texas, by the clerk of this Court.”

The appellant contends the trial court erred (1) in granting appellees’ (con-demnors’) motion for summary judgment because on the day of taking (June 19, 1964) appellant was in possession of the condemned premises by virtue of a valid and subsisting lease, the term of which had not expired, and owned all of the improvements which were permanently affixed to the real estate. That because its leasehold estate was taken and its improvements destroyed by the proceedings in condemnation it was entitled to a jury trial to determine what damages, if any, it had sustained; (2) in denying appellant’s application to withdraw the funds deposited in court because appellant was the sole party whose damages were secured by the deposit, and as the money was subject solely to the order of appellant, it had the statutory right by the provisions of Article 3268, Vernon’s Ann.Rev.Civ.St., Section 1, to withdraw same; (3) in entering judgment ordering that the funds deposited in court be refunded and paid over to appellees, because of the same reasons.

Appellant held possession of the condemned property under a lease dated February 1, 1961, for a two-year term. The lease, on a printed form, contained the following typewritten provisions:

“The lessee shall, in addition, have the option to renew this lease for an additional two-year period upon the same terms, upon giving lessor notice in writing of the exercise of said option thirty days prior to the expiration of the primary term. It is expressly understood that the lessor does not own the buildings upon said premises, and all of the printed terms of this lease having application only to the buildings and improvements on said lease are not applicable.”

It is undisputed that the option to renew the lease was not exercised.

Before the expiration of this original two-year term, both the lessor and lessee knew that condemnation proceedings for the new highway were imminent. Roy Stanley, manager of appellant’s land department, called Mr. Abbott, one of the lessors, and reminded him that the lease was going to be up on the 2nd (February 2, 1963) and asked him, “ ‘what do we want to do about it’?” The lessor and lessee agreed that the latter would stay on the premises and keep paying rent until the Highway Department “ran them off.” Under this agreement, appellant was in possession on June 19, 1964, the day of taking, and the rent for the full month of June, 1964, had been paid. No notice to vacate had been given. It is undisputed that appellant was legally in possession of the premises under either a month-to-month lease or a tenancy at will and owned all of the improvements. The improvements consisted of a brick office building on a concrete slab, a cement or “batch” plant, a radio antenna consisting of a steel pipe embedded in concrete, a railroad track, and a steel warehouse building. All were permanently affixed to the real estate and were a part thereof.

The only question presented on the previous appeal (391 S.W.2d 818, 819, supra) was the propriety of the court’s order of dismissal.

The Supreme Court of Texas, 400 S.W. 2d 314, supra, based upon the record before it stated that, “Apparently, condemnor destroyed the office building during construction of the highway.” There is no evidence in the record in support of such an inference or to the effect that the appellees had gained or taken possession of any of the property of appellant. It is undisputed that the office building could not be moved without destruction. None of the parties were able to explain what or who destroyed the building. The condemnee was not deprived of its right to possession of any of its property at any time by the appellees.

When this matter was again submitted to the trial court on the motion for summary judgment the record included, in addition to the previous pleadings, motions, orders, statement of facts, the motion for summary judgment, the answer thereto, the joint motion for dismissal of Abbott and Newman, owners of the fee, the order dismissing them, and four affidavits with attached exhibits.

Following its review of this record the trial court held as a matter of law that appellant has no compensable interest in this cause. The sole question presented by this, appeal is whether or not the trial court erred in so holding.

The undisputed record before the court clearly shows that appellant was in possession of the 9.889 acre tract under a tenancy at will which would terminate when the State Highway Department requested appellant to move; and that, during this tenancy at will the rent would be paid on a monthly basis. On June 19, 1964, the State of Texas demanded possession of the premises and requested that all improvements be removed by appellant within thirty days thereafter.

A tenant whose lease provides for its termination upon the taking of the leased premises for a public use, is entitled to no-compensation when it is condemned. United States of America v. Petty Motor Company, 327 U.S. 372, 66 S.Ct. 596, 90 L. Ed. 729; or as stated in Vol. 29A C.J.S. Eminent Domain § 198: “ * * * a tenant by sufferance or from month to month has no such interest as entitles him to compensation ; and this is true as to a tenant at will ^

The well established rules in Texas for determining the value of a leasehold have been recently restated in the case of Luby v. City of Dallas, 396 S.W.2d 192, (Tex.Civ.App., 1965, writ refused n. r. e.). In that case the Court stated: “It is well settled in Texas that when the entire leasehold is taken the measure of damages is the value of the use and occupancy of the leasehold for the remainder of the tenant’s term, plus the value of the right to renew if such right exists, less the agreed rent which the tenant would pay for the use and occupancy, such values to be determined by the usual ‘willing seller-buyer rule.’ State v. Parkey, Tex.Civ.App., 295 S.W.2d 457, 460, wr. ref. n. r. e.; Art. 3265, V.A.C.S.”

In the case of Luby v. City of Dallas, supra, it was also stated: “It is also well settled that in determining such value no consideration should be given to the value of the business of the tenant, or the trade-name thereof, or the profits or losses thereof, or the tenant’s personal property on the premises, or the expense of moving such personal property. These things are held to be immaterial and inadmissible as shedding no light on the value of the real property being condemned. As we said in Herndon v. Housing Authority of City of Dallas, Tex.Civ.App., 261 S.W.2d 221, 223, wr. ref.: ‘ * * * it is only the real estate which is being taken, not the business. The owner may keep his business and continue to operate it at a different location.’ ”

Appellant was given notice to remove the improvements within thirty days after June 19, 1964. However, appellant did not begin removing these improvements until October 12, 1964. Appellant retained possession of the entire 9.889 acre tract until October 5, 1964. It retained possession of the immediate area of the improvements until November 6, 1964. Appellant admits that it removed the batch plant, spur track and tin warehouse building. The evidence is undisputed that the brick office building was on the premises occupied by appellant on October 12, 1964. When appellees first gained possession of the area of the office building on November 6, 1964, there was nothing left but the standing bare walls and the slab of the office building.

Under these facts, the trial court was correct in holding as a matter of law that appellant had no compensable interest. Davis v. City of San Angelo, 376 S.W.2d 949, (Tex.Civ.App., 1964, no writ history).

In the Davis case, the tenant rented property on a verbal month-to-month basis in the City of San Angelo. He built two masonry buildings on the property which could not be moved without being destroyed. The landlord and tenant agreed that the buildings belonged to the tenant and he could move them off if the tenancy were terminated. The City of San Angelo purchased the interest of the fee owner for street purposes, and gave the tenant notice to move the buildings. Some months thereafter, the tenant and the City entered into an agreement whereby the City would remove the buildings, and that the tenant’s vacating the buildings was not a waiver or abandonment of any claim by the tenant against the City. After this agreement, the City removed the buildings. The tenant then brought suit in the District Court against the City because it had " ‘removed and destroyed the value of the buildings.’ ” The District Court rendered a take nothing judgment against the plaintiff. The Court of Civil Appeals affirmed and held:

“Appellant has shown no cause of action against the City. He suffered no com-pensable injury. If appellant’s lessor (the City’s vendor) had elected not to continue appellant’s tenancy by the month and had notified the tenant to remove the improvements, appellant would have had no cause of action against his lessor for the value of the buildings, which appellant would have had a reasonable time to remove. Wright v. Macdonell, 88 Tex. 140, 30 S.W. 907. If, instead of removing the buildings himself, the tenant had thereupon contracted for the landlord to do so without cost to the tenant, no cause of action for removal would exist. The tenant would have suffered no compensable damage.

The City, as the landlord’s vendee under its deed, obviously assumed the same relationship to appellant previously borne by its vendor. The fact that the City proposes to use for street purposes the land it acquired under a voluntary sale does not alter that status. There is no compensable taking, damaging, destruction or application of appellant’s property to public use.”

Appellant was given a reasonable time in which to remove the improvements and no question is raised as to such time being unreasonable. All items which were removable were removed. Under the facts of this case the appellant has failed to show any compensable interest.

All points of error are overruled and the judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

text:
    LUBBOCK BAIL BOND et al., Appellants, v. Bertha JOSHUA et vir, Appellees.
    No. 7699.
    Court of Civil Appeals of Texas. Amarillo.
    May 1, 1967.

      Crenshaw, Dupree & Milam, James H. Milam and Cecil Kuhne, Lubbock, for appellants.
    Hurley & Sowder, Lubbock, for appellees.
   CHAPMAN, Justice.

This opinion is in lieu of our opinion announced on March 20, 1967.

This is an appeal by Houston Trammel, Jack Trammel, H. C. Trammel and Ethyl Herrige d/b/a Lubbock Bail. Bond and Don Hightower, an employee of Lubbock Bail Bond, from a judgment based upon a jury verdict for Bertha Joshua, et vir., for actual and exemplary damages based on a suit for wrongful assault, false imprisonment and malicious prosecution.

In response to special issues submitted the jury found that Don Hightower made an assault upon Mrs. Bertha Joshua on or about February 17, 1965; that he caused her to be falsely imprisoned; and that $50 would fairly and justly compensate her each for the assault and false imprisonment, a total sum of $100 actual damages. The jury found Hightower did not act with malice nor without probable cause in filing a complaint of assault against Mrs. Joshua, and found $5,000 exemplary or punitive damages against appellants. A judgment upon such verdict was rendered for appellee for the sum of $5,100, from which appeal is perfected upon twenty-six points of alleged error. The first two points assert error in rendering judgment for punitive damages because of lack of any proof of malice on part of appellants; that the undisputed evidence established that Hightower in good faith believed he had the right to take Bertha Joshua into custody by the use of such force as was reasonably necessary, thus punitive damages were not recoverable; that $5,000 is not reasonably proportioned to the actual damages found; and that there is no pleading, proof, or jury finding that Hightower’s employers directed or ratified any tortious act by him. Points 3 and 4 raise “no evidence” and great weight and preponderance of the evidence questions to support punitive damages, so we shall attempt to discuss the four points together, though the first two are highly multifarious.

In order to get the contention asserted of lack of pleadings to show malice out of the way, to begin with we have carefully read the pleadings upon which appellees went to trial. We hold they allege malice against all parties both as to the assault and false imprisonment.

It appears to be settled law in Texas that: ‘“The fact that an act is unlawful is not of itself ground for award of exemplary or punitive damages. The act complained of not only must be unlawful but also must partake of a wanton and malicious nature, or, as sometimes stated, somewhat of a criminal or wanton nature, and an act will not be deemed malicious, and so warranting punitive damages, merely because it is unlawful or wrongful.’ ” Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022 (1943); Sears, Roebuck And Company v. Jones, 303 S.W.2d 432 (Tex.Civ.App.-Waco, 1957, writ ref’d n. r. e.); Ware v. Paxton, 359 S.W.2d 897 (Tex.1962).

The definition given in connection with the issue on exemplary or punitive damages does not use the word “malice” but instructs the jury that such damages are in the nature of a penalty “ * * * assessed against the defendants by reason of the willful, wanton, or wrongful commissions of an act or acts, which caused the actual damages, * * Though the guideline in the cases cited in the preceding paragraph for considering punitive damages and from which we quoted therein use of the word “malicious” it does so in connection with wanton — “ * * * must partake of a wanton and malicious nature, * * The word “wanton” is defined in Webster’s New Collegiate Dictionary. A Merriam-Webster, as “undisciplinedunruly. * * * Marked by arrogant recklessness of justice, of the feelings of others, or the like; * * * willfully malicious.” In Ware v. Paxton, supra, the Supreme Court of Texas said: “Definitions of malice and the grounds for exemplary damages are necessarily general and do not provide precise limits for the decision of cases. Where the collection methods of a lender cease merely being unreasonable and take on the character of malicious and wanton conduct is a matter of degree. To determine whether Ware’s actions are of such a nature that it can properly be said that they evidence maliciousness and wantonness, we must compare the facts of this case with others where the conduct of the lender was extreme enough to be considered malicious, wanton, and indicating reckless disregard for the injurious consequences of his acts to others.” (All emphases herein are ours).

Also, in discussing the rules required for recovery of exemplary damages, the same court quoted from a textual statement to the effect that the mental factor involved in showing the conduct of the defendant for which punitive damages are recoverable “ * * * is also described in the reports by the terms ‘malice,’ ‘fraud,’ ‘oppression/ ‘recklessness,’ and the like.” Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709 (1943). We have found no Texas Supreme Court case holding a judgment is reversible unless it uses the words “malice” or “malicious” in connection with charges on punitive damages. The Court in each instance uses the terms in connection with other terms of similar import such as “wanton.”

Mrs. Joshua had previously been filed on in Lubbock for speeding. Because she did not have the money to pay a fine she failed to appear when the case was set, so she was filed on for failure to appear. Lubbock Bail Bond then made her bonds and she was paying for them at the rate of $10 per week. She had made three payments when her .husband became ill. She called them and told them she could not make the payment that week but would be in when her husband went back to work. The next time she heard from them was when Don Hightower appeared at her home.

The record here most favorable to the judgment rendered by the trial court shows Hightower came to the home of Mrs. Joshua, knocked on the door, and after asking her to identify herself, said, “Let’s go.” She told him she was going to bring the money in for the bonds Friday when her husband was paid and Hightower said, “Well, I can’t wait.” She then told him if he would wait until 4:00 o’clock her oldest daughter would be home so she could stay with the children. Hightower then said, “I will have to take you in, * * * come on and let’s go.” About that time her stepson and one of his friends came up and Mr. Hightower told them in the presence of an insurance salesman and Mrs. Joshua’s children that, “If they didn’t live there, they had better get the hell out from there.”

When he kept talking rough to her she said, “Anyway, you don’t have to talk to me like that.” He replied, “I will talk to you any damn way I please.” When her stepson spoke up in her behalf, Hightower pulled his handcuffs out of his pocket and told them he was a deputy.

After he went a couple of times out to his car containing a two-way radio and talked to the Lubbock Bail Bond office, he came back and insisted again that she go with him. She told him she would not go with him but would go over where her husband works and get his money, to which he replied, “Do you think I am going to give you a chance to get away?” Even at that time eight of their eleven children were there in the house, the youngest of which was less than two years of age. We believe it quite unlikely that she would have absconded under such conditions when her husband was out of town at the time himself.

When Mrs. Joshua finally got to her car to go to her husband’s place of work to ask for the money from his employer to pay Hightower, he used his automobile to block her from leaving in three efforts she made. When she succeeded in getting away he chased her with his lights on and horn blowing and forced her car off the road, blocking her forward movement with his car. She then backed up and he started after her again, chasing her all the way to her husband’s place of work. When she parked he pulled his car so close to hers she could not get out on the driver’s side. When she got out on the other side she started running and he caught her coat and “snatched me back.” At that time he had handcuffs in his hands and tried to put them on her. In the process of tussling with her he fell down and she broke loose and ran into the office of the Hide Company where her husband works. She was crying and hysterical according to the manager of the Hide Company and Hightower followed her in, said he had a warrant for her arrest and was going to take her back to town. Mr. Goldston, the manager, testified they did not think he had a warrant or the authority to use one, ■“so we asked him to leave.” It developed that he did not have a warrant at that time. This same witness also testified that shortly thereafter three more of the Trammel cars came, one parking on the north side, one on the south side and two in the street.

Hightower denied most of the testimony above related but Mrs. Joshua’s testimony of his conduct at her home was corroborated by Ed Joshua, Jr. and his assault upon her near the Hide plant was corroborated by Madison White and Eugene Lindsey, employees of the Hide Company. They testified Hightower caught her, tussled with her and tried to put her in his car.

Complaint was then filed by Hightower against Bertha Joshua for assaulting him by backing her car against him. She was tried by a jury in justice court and found not guilty of the offense.

We hold the testimony of the conduct of Hightower when applied to the above quoted rules laid down by the Supreme Court constitute sufficient evidence to show both actual and exemplary damages for the assault and that the jury’s answers to Special Issues One, Two and Seven are not contrary to the great weight and preponderance of the evidence. In so holding, we have examined and considered all the evidence under the rules of In Re King’s Estate, ISO Tex. 662, 244 S.W.2d 660 (1952). Thus, we have necessarily had to hold that the failure to use the words “malice” or “malicious” in the instructions concerning exemplary or punitive damages is not reversible error in view of the instructions by the court that in the discretion of the jury such damages could be awarded against defendants in the nature of a penalty by reason of the willful, wanton, or wrongful commissions of acts which caused the actual damages, if they found such, and found that actual damages were sustained.

In view of the many cases which use the words “malice” or “malicious” in connection with instructions on exemplary damages, it is difficult to understand why a trial court would resort to such brinkmanship in leaving the word out of the instructions on punitive damages and take that chance. However, in view of the use of the term as synonymous with wanton, willful, wrongful, etc. (particularly with the word “wanton”), in view of the Supreme Court’s suggestion in Ware v. Paxton, supra, that definitions of malice and the grounds for exemplary damages are necessarily general and do not provide precise limits, and in view of the above dictionary definition of “wanton,” we hold the failure to include the words “malice” or “malicious” in the instructions is not fatal.

As far back as 1878 the Supreme Court of Texas has appeared to use “malice” and “wanton” with respect to punitive damages as meaning essentially the same. In Bradshaw v. Buchanan, 50 Tex. 492, the court reversed the case because: “There is no evidence tending to show that appellants were actuated by malice in taking and holding the house and land. * * * or that they did so wantonly, or with the intent to vex, harass, injure, or oppress him.” Here the court used “wantonly” and the verbs “vex,” “harass,” “injure,” and “oppress” as alternatives to malice when it used the conjunction “or” following malice and preceding those words.

Even if malice or malicious should have been included in the definition, in view of the other terms used, we hold it is not reversible error under Rule 434, Vernon’s Annotated Texas Rules.

We are not unmindful of the statement of the Supreme Court of Texas in Bennett v. Howard, supra, to the effect that, “ * * * exemplary damages are recoverable for, and only for, such injuries as result from wrongs accompanied by some aggravating circumstances of malice, fraud, gross negligence, etc.” Such language would appear to us to account for the suggestion in Ware v. Paxton, supra, to the effect that definitions of malice and the grounds for exemplary damages are general and do not provide precise limits for the decision of cases. There were certainly aggravating circumstances present in this case from the time Hightower started cursing at Mrs. Joshua’s home until he was asked to leave the Hide plant and in our opinion much of his conduct was of a malicious, willful, reckless, harassing, oppressive and wanton nature. In fact, by the assault •on Mrs. Joshua, a female, when he tussled with her he was guilty of aggravated assault under Article 1147(5), Vernon’s Annotated Texas Penal Code.

The contention that the parties constituting Lubbock Bail Bond could not be held liable for punitive damages is without merit. Hightower was their employee. He was acting under orders from the office to "bring Mrs. Joshua in to them. He reported over the two-way radio that she was refusing to come with him and his orders were to bring her in. On 15th Street when he was following her and harassing her with his automobile, he was ordered again to stop her and bring her in. After pursuing her to the Hide plant he radioed the office again and was told to stay there and watch the building until more help arrived from the office, which shortly did arrive and practically surround the Hide Company office with Lubbock Bail Bond automobiles. Additionally, Tiis office had told him he had the right to bring people in whether they wanted to come •or not. Under these circumstances we hold the conduct of Hightower was imputed to the parties doing business as Lubbock Bail Bond under one or more of the four conditions set out by the Supreme Court of Texas in King v. McGuff, 149 Tex. 432, 234 S.W. 2d 403 (1950) for awarding punitive damages against a master or other principal because of an act by an agent.

We do not consider Gulf, C. & S. F. R. Co. v. Moore, 69 Tex. 157,6 S.W. 631 (1887) cited by appellants on lack of ratification in point here for the reason that Hightower was in touch with Lubbock Bail Bond all the time and they were instructing him “to bring her in.” Their rush to the Hide Company with more help and practically surrounding the building indicated further acts of ratification.

We are also unable to agree with appellant’s contention to the effect that the evidence shows Hightower was acting in good faith in the “ * * * belief that he had the right to do what he was doing” and, therefore, his acts could not be made the basis of punitive damages. He did testify, “That’s correct,” in answer to a question if he thought he had “ * * * a right to go out and bring them into the office whether they wanted to come or not.” But we find insufficient probative evidence to the effect that he thought in “bringing them in” he had the right to curse and abuse a female, handcuff her, chase her off the road and assault her, as the evidence favorable to the judgment showed he did and attempted to do, as if she were a dangerous criminal.

We pass now to appellants’ points to the effect that there is no evidence and insufficient evidence to support Special Issue No. 3 inquiring of the jury if “Don Hightower caused the plaintiff, Bertha Joshua, to be falsely imprisoned.”

Appellants’ points, if we understand them, are based upon the theory that the issue was inquiring of the jury with reference to imprisonment in jail upon a warrant duly issued. Their Point 23 is so worded. Considered from that standpoint, we found the points well taken and held with appellants thereon in our first opinion.

In their motion for rehearing appel-lees now say they never at any time contended the imprisonment in jail was “false imprisonment.” The question as asked would indicate the contrary but the definition in connection therewith would indicate an inquiry as to false imprisonment by High-tower in his acts of attempting to detain Mrs. Joshua’s movements on the way to her husband’s employer’s place of business. By imprisoning her in that respect, and the evidence is amply sufficient for the jury to so find, he did so himself rather than causing her to be falsely imprisoned, as the issue is worded. However, in view of the liberal construction suggested to be given to rules of civil procedure under Rule 1, Vernon’s Texas Rules Annotated, we shall consider the issue as inquiring of the jury if Don Hightower falsely imprisoned Bertha Joshua by restraining her from moving from one place to another. Under the testimony above related, we hold he did so and the answer of the jury to the issue is not against the great weight and preponderance of the evidence. In Re King’s Estate, ISO Tex. 662, 244 S.W.2d 660 (1951).

We hold the jury’s answer of $50 actual damages, each for assault and false imprisonment, is supported by the evidence. The record shows Hightower’s conduct toward Mrs. Joshua was fraught with such aggravation or oppression and with such willful, wanton, and reckless disregard and invasion of her rights that she was crying even before she left her home. By the time she reached her husband’s employer’s place of business she was hysterical and it took considerable time to quiet her down. The evidence also shows she is a victim of high blood pressure, so we believe there is evidence sufficient for the jury to have found both physical suffering and mental anguish. Both are elements constituting the right to exemplary or punitive damages. Bisso v. Southworth, 71 Tex. 765, 10 S.W. 523 (1888); Dallas Joint Stock Land Bank of Dallas v. Britton, 114 S.W.2d 907 (Tex.Civ. App.-Waco, 1938, rev’d on other grounds, 134 Tex. 529, 135 S.W.2d 981); Wright v. E-Z Finance Co., 267 S.W.2d 602 (Tex.Civ. App.-Dallas, 1954, writ ref’d n. r. e.).

Appellants throughout their brief have contended in a myriad number of points and through devious ways that Don Hightower had the right and authority to use whatever force was necessary to take Mrs. Joshua into the office of Lubbock Bail Bond without a warrant of arrest, urging the authority of Taylor v. Taintor, 16 Wall. 366, 83 U.S. 366, 367, 21 L.Ed. 287, 290, an old 1872 case. As many federal statutes as have been passed and as many opinions as the Supreme Court of the United States has written concerning civil rights since 1872, we would entertain grave doubt that the Court would consider Taylor v. Taintor, supra, as the law today. The Supreme Court of Texas in a very able and sound opinion has spelled out in detail the authority one has in this state to apprehend and arrest another and has placed many limitations even upon peace officers in connection therewith. Heath v. Boyd, 141 Tex. 569, 175 S.W.2d 214 (1943). The Court there spelled out in detail how and when an arrest may be made as follows:

“The only circumstances under which one may lawfully be arrested without warrant are: (1) when he commits a felony or a breach of the peace (a) within the presence or view of the officer or other person, Art. 212, C.C.P.1925, or (b) in the presence or view of a magistrate who verbally orders his arrest, Art. 213, ibid.; (2) when his arrest may prevent the consequences of theft, Art. 325, ibid.; (3) when a peace officer is informed by a credible person that a felony offender is about to escape and there is no time to secure a warrant, Art. 215, ibid.; (4) when the accused threatens to take the life of another, within the hearing of a magistrate, the magistrate may arrest him, if the case is one of emergency, Art. 73, ibid.; (5) when he is an escaped prisoner, Art. 244, ibid., which is really a retaking and not an arrest, Ex parte Sherwood, 29 Tex.App. 234, 15 S.W. 812, supra; (6) when the ordinances of a city or town may authorize such action as to persons found in suspicious places or under circumstances reasonably showing that they have been guilty of some felony or breach of the peace or threaten or are about to commit some offense, Art. 214, ibid.; and (7) generally, for any offense when the statute defining the same expressly confers the authority, e. g., highway violations, under Art. 803, P.C.1925; liquor violations, under Art. 666-30, Vernon’s Ann. P.C.; unlawfully carrying arms, under Art. 487, ibid.; rioting, under Art. 98, C.C.P.1925; unlawful assembly, under Art. 101, ibid.; disloyalty, under Art. 156, P.C.1925.”

Some of the statutes cited in the quote just made are no longer in existence but the Court in spelling out the conditions then existing under which an arrest might be made certainly did not hold that a bonding company through its officers or employees may make an arrest in the manner urged by appellants herein.

We must now consider the question of disproportion of punitive damages to actual damages for assault and for false imprisonment. Our Supreme Court has held that exemplary damages are in the nature of a punishment, are not to be awarded to enrich the injured party, but are intended rather for the public good; that they are intended “as a warning and an example to prevent the defendant and others from the commission of like offenses and wrongs. Punitive in character and awarded for the public good, their proportion or ratio to the amount of actual damages recovered must depend on the state of facts in any given case.” Cotton v. Cooper, 209 S.W. 135 (Tex.Comm.App., opinion adopted, 1919).

Because the Supreme Court of Texas in the case just cited held excessiveness of a verdict is ordinarily a question of fact, and that the determinations made by Courts of Civil Appeals are final, we have given very careful consideration to a proper proportion of exemplary damages to the actual damages awarded. In the case just cited the jury awarded $700 actual damages and $5,000 exemplary damages, a proportion of 14 to 1. We believe the aggravations and oppressions in the present case were as great or greater than they were in Cotton v. Cooper, supra, so we shall follow the specific proportion adopted in that case. Applying this ratio of 14 to 1, appellee would be entitled to $1,400 exemplary damages, making a total of $1,500.

The court below having rendered a judgment for $5,000 exemplary damages, we are of the opinion that the award is excessive by the sum of $3,500. Therefore, under Rule 440, V.A.T.R., this court must reverse and remand this case unless appellees file a remittitur of $3,500 within ten days from the date of this opinion. In the event such re-mittitur is filed within that time, the judgment of the trial court will be affirmed, as reformed.