author: DENTON, Chief Justice.

text:
    J. E. GRISSOM et al., Appellants, v. Chris D. GUETERSLOH et al., Appellees.
    No. 7463.
    Court of Civil Appeals of Texas. Amarillo.
    May 10, 1965.
    Rehearing Denied June 7, 1965.
    Wagstaff, Alvis, Pope, Doscher & Charl-ton, Abilene, for appellants.
    Kiser & Hook, Phelan & Phelan, Level-land, Hugh Anderson and Robert Howard, Lubbock, Shank, Irwin & Chester, Dallas, for appellees.
   DENTON, Chief Justice.

This suit was brought by Chris D. Gue-tersloh and others against J. E. Grissom and others to settle a dispute between the parties as to the interpretation to be given a warranty deed from Hardy and J. E. Grissom conveying 614.4 acres of land to Chris D., W. C. and M. F. Guetersloh.

The deed executed in January of 1934 contained the following clause which constitutes the basis for this controversy:

“and also reserving and excepting from this conveyance an undivided one-sixteenth l-16th of all the oil, gas and other minerals in and under the tract of land hereby conveyed; But the grantors waive all interest in and to all rentals or other consideration which may be paid to grantees for any oil and gas lease on the land or any part thereof hereby conveyed.”

The original grantors and grantees or their heirs and the Placid Oil Company, the owner of an oil and gas lease- on 147.2 acres of the tract executed by the Gueterslohs, are parties to this suit. The Atlantic Refining Company is holding royalties of approximately $2,000.00 from a lease executed subsequent to the date of the above deed and prior to the Placid Oil lease but which has expired. This company is not a party to this suit but has expressed a desire to pay the proceeds to the proper parties upon the termination of this suit.

The primary question in issue is the meaning and interpretation of the reservation quoted above. The grantees, plaintiffs below, contend the clause in question was a reservation of an undivided l/16th of the mineral interest and that the grantors are entitled to receive l/16th of the l/8th royalty payable under the terms of any oil and gas leases executed by the grantees. The appellants contend it was a reservation of l/16th of all oil, gas and other minerals produced as a royalty interest and are entitled to receive 1/2 of the l/8th royalty payable under the terms of any oil and gas lease subsequently executed. The trial court, without a jury, rendered judgment in favor of the appellees and found appellants had retained an undivided l/16th of all the oil, gas and other minerals in and under the described land; that the Placid Oil lease dated April 14, 1960, was a valid and subsisting lease; that the Gueterslohs, grantees herein, have the executive right to execute oil and gas leases; that the Grissoms, grantors, were entitled to receive only l/16th of the royalties provided for in the Placid Oil lease or in any future leases; and awarded the Grissoms l/16th of the royalties being held by the Atlantic Refining Company.

Neither party contends the reservation clause is ambiguous, nor is there an allegation there was fraud or mutual mistake in connection with the execution of the deed in question. An instrument not alleged to be ambiguous must be construed so as to carry out the intentions of the parties. Brown v. Brown (Tex.Civ.App.), 245 S.W.2d 995 (Writ Refused); Ervay, Inc. v. Wood (Tex.Civ.App.), 373 S.W.2d 380 (Refused, NRE); 13 Tex.Jur.2d, Section 122, pages 287-288.

Appellants rely primarily on Watkins v. Slaughter, 144 Tex. 179, 189 S.W.2d 699; Klein v. Humble Oil & Refining Co., 126 Tex. 450, 86 S.W.2d 1077; and Miller v. Speed (Tex.Civ.App.), 259 S.W.2d 235; for their contention the deed reserved to the grantors l/16th of total production as a royalty. In the Watkins case the reservation clause read as follows:

“‘Together with a 15/16 interest in and to all the oil, gas and other minerals in and under and that may be produced from said land and the grantor retains title to a 1/16 interest in and to all of the oil, gas and other minerals in and under and that may be produced from said land; but it is distinctly agreed and understood that the grantor, his heirs and assigns shall not receive any part of the money rental paid on any future lease; and the grantee, his heirs or assigns, shall have authority to lease said land and receive the cash bonus and rental; and the grantor, his heirs or assigns, shall receive the royalty retained herein only from actual production of oil, gas or other minerals on said land.’

The holding that the deed reserved a royalty interest was based primarily on the words, “that may be produced” and the grantor “shall receive the royalty retained herein only from actual production of. oil, gas, or other minerals on said land.” The court took particular note of the words, “actual production”, and “royalty” to determine the clear intent of the parties and construed the reservation to be one of royalty interest rather than a.mineral interest. No such language is found in the reservation clause in the case at bar.

The material part of the reservation in Miller v. Speed read:

“ ‘Gut of the above described tract of land there is hereby expressly reserved to the vendor herein, its successors and assigns an undivided 1/24A of all the oil, gas and other minerals produced, saved and made available for market therefrom for a period of 15 years from the date hereof; ’ ”
“ ‘and in the execution of any mineral leases it shall not be necessary for the grantor herein to be joined therein, nor shall the grantor herein be entitled to participate in or receive any of the bonuses or delay rentals provided for in such leases.’ ”

The finding that the reservation was a royalty interest rather than a mineral interest was based on the phrase “minerals produced, saved and made available for market.” The court quoted with approval from the Watkins case when it held: “The owner of the 1/16 is to be paid only from production.” In the instant case the interest reserved was an “undivided l/16th of all the oil, gas and other minerals in and under the tract of land hereby conveyed.” (Emphasis added.) No reference is made to oil or gas “produced, saved and made available for market.” The language here refers to the minerals in place. We consider this a very material distinction.

Appellants also strongly rely on Klein v. Humble Oil & Refining Co., supra. The reservation of the deed in that case was as follows:

“ ‘Grantors, herein, however, reserve for themselves, their heirs and assigns, one-eighth (1/8) of all mineral rights in and under Ten (10) acres of land, running north and south, on the east end of the 60 acres herein conveyed, and it is understood and agreed that if no production of oil is had on said Ten (10) acres within a period of Twenty (20) years, this reservation shall terminate and become null and void, and it is further understood that grantors herein are not to participate in any oil lease or rental bonuses that may be paid on any lease on said above described land, and hereby waive any rights they may have or be entitled to in any future oil or gas lease.’ ”

The reservation clause in the Klein case is quite similar to the one in the instant case. However, there was another instrument involved which the court considered in interpreting the intention of the parties. Although the court held the deed reserved a royalty interest in the 10 acres, it did so only after the intention of the parties was so expressed by a subsequent instrument duly acknowledged and filed of record by the grantor. In that instrument the grantor expressly stated: “[M]y interest is entirely a royalty interest and it is plainly recited in the deed from myself t F. F. Klein * * * I waive all of my rights in any oil or gas lease and shall only retain a royalty.” In giving credence to this instrument the court said: “This instrument expresses the interpretation which Stein and Baker placed upon the language of the Stein reservation, and, to our minds, makes clear the real intent of the parties.” This record contains no other instruments to express the intent of the parties. We have only the deed itself to look to. We therefore conclude the Klein case does not support appellants’ position.

We must therefore analyze the reservation clause in light of other authorities. The reservation here is made up of two parts. The first part is “and also reserving and excepting from this conveyance an undivided one-sixteenth 1-16A of all the oil, gas and other minerals in and under the tract of land hereby conveyedThis portion of the reservation, taken alone, unquestionably reserves to the grantors an undivided l/16th interest in the minerals in and under the described land. Had the above-quoted portion of the reservation constituted the whole reservation, the interest reserved would have clearly been a mineral fee interest. Murphy v. Dilworth, 137 Tex. 32, 151 S.W.2d 1004. In that case the reservation read as follows:

“ ‘Grantors expressly reserve unto themselves for a period of fifteen years from the date hereof an undivided one-sixteenth interest and estate in and to all of the minerals of every character, including oil and gas, in and under and appurtenant to all of the above described property, and said undivided interest in said minerals is not intended in any wise to be conveyed hereby, but the same is hereby excepted from this conveyance; provided, however, that in the event both cf the grantors herein should depart this life prior to the expiration of said fifteen years from date hereof, then this reservation shall be null and void and of no further force and effect, and the full title to said undivided interest shall then vest in said John E. Murphy, his heirs and assigns.’ ”

This reservation is almost identl il in a legal sense to the first part of the reservation made by appellants. The court, speaking through Chief Justice Alexander, held:

“The reservation contained in the deed appears on its face to be plain and unambiguous. In dear language it reserves an undivided 1/16 interest in the minerals in and under said land, and makes no reference whatever to any royalty to be paid under any existing or subsequent lease.”

The second part of the reservation clause under consideration reads:

“But the grantors waive all interest in and to all rentals or other consideration which may be paid to grantees for any oil and gas lease on the land or any part thereof hereby conveyed.”

By brief appellants seem to concede the first part of the reservation reserved a mineral interest, but contend that the second clause stripped the mineral interest of all incidents of such an interest, thereby converting the reservation into a royalty interest. In other words, appellants contend a reservation of a fraction of the minerals without the exclusive right to lease nor to receive bonuses or delay rentals constitutes a perpetual nonparticipating royalty. We are unable to agree with this contention. An owner of a mineral interest may waive his right to execute oil and gas leases. In discussing the reservation clause in Klein v. Humble, supra, Judge Hickman said:

“In the reservation contained in the deed from Stein and wife to Klein, above copied, appears this provision: ‘ * * * And it is further understood that grantors herein are not to participate in any oil lease or rental bonuses that may be paid on any lease on said above described land and hereby waive any rights they may have or be entitled to in any future oil or gas lease.’ We must ascribe some meaning to this language. At least, it discloses that the parties contemplated that a mineral lease would be executed. The only persons with authority to execute the lease would be the owners of the minerals, and the Steins waived their right to participate in it. Impliedly, if not expressly, that waiver was in favor of the vendee, Klein, and his assigns. Without resort to other instruments interpreting this language, we incline to the view that it should be construed as empowering Klein and his assigns to subject Stein’s interest to a mineral lease * *

The question is whether the second part of the reservation clause has the effect of reserving to the grantor a royalty interest. In our opinion it does not. It makes no reference whatever to a royalty to be paid under a subsequent lease (It was stipulated that no oil and gas lease was in force and effect at the time of the execution of the deed). Neither does the reservation make reference to an interest in the minerals “from actual production”; or to an interest in minerals “produced, saved and made available for market”; or other similar phrases which have been held to show an intention of the parties to reserve a royalty interest as opposed to a mineral interest. The second clause of the reservation simply waived the grantor’s interest in “rentals or other consideration which may be paid to grantees for any oil and gas lease on the land or any part thereof hereby conveyed.” In our opinion the waiving of these bonuses and delay rentals by a grant- or in a mineral reservation does not constitute a reservation of a royalty interest. This reservation does indicate the parties contemplated that a mineral lease would be executed. Only owners of mineral interests have authority to execute such leases. Under the holding of Klein v. Humble Oil & Refining Co., supra, we are of the opinion appellants waived that right in favor of the grantees, the Gueterslohs. Subsequent leases executed by the Gueterslohs or their assigns would subject the appellants’ mineral interests to the mineral lease. By brief, appellants concede the reservation gave the grantees the exclusive right to execute oil and gas leases. Under the language of the reservation, we agree that was the intention of the parties. We therefore conclude the trial court was correct in holding appellants had retained an undivided l/16th mineral fee interest in the oil, gas and other minerals in place; in awarding appellants l/16th of l/8th royalty held in suspense by Atlantic Refining Company under the expired lease; and that the grantees have the executive right to execute oil and gas leases on the premises.

Appellants’ last point of error contends the oil and gas lease from appellees and subsequently assigned to Placid Oil Company dated April 14, 1960, was invalid in so far as it granted lessees the right to pool or unitize the lease with other mineral estates. This Placid lease expired by its own terms April 14, 1965, which was subsequent to the trial of the case and the submission of the case in this Court. We therefore consider the question raised in appellants’ last point to be moot, and we do not deem it necessary to discuss or pass upon it.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Tom WILLIAMSON, Appellant, v. P. V. HICKMAN, Appellee.
    No. 11295.
    Court of Civil Appeals of Texas. Austin.
    May 12, 1965.

      J. J. Byrne, Lampasas, for appellant.
    Richard L. Johnson, Lampasas, for ap-pellee.
   HUGHES, Justice.

This is a will contest in which Tom Williamson, appellant, contested the will of his mother, Mrs. Edith Williamson, who died March 4, 1964, at the age of 83 years.

Appellee, P. V. Hickman, brother of decedent and named Independent Executor in the instrument offered by him for probate as the last will and testament of decedent was one of its principal beneficiaries. Appellant contested the probate of such instrument in the Probate Court on the grounds of undue influence exercised by appellee and lack of testamentary capacity of decedent. This contest was sustained and the instrument was denied probate. On appeal to the District Court, after trial to a jury and upon its verdict, the instrument was probated as the will of Mrs. Edith Williamson.

Appellant has four points or assignments of error in his brief three of which are based on the failure of the trial court to grant him a new trial because two of the jurors who sat in the case were employees of the First National Bank of Lampasas, the president of such bank being a material witness for appellee, and that the decedent was a customer of such bank and had transacted bank business with Mr. Mickey Bozarth, the bank’s employee and one of the jurors, and that had appellant known these facts he would not have accepted these two bank employees on the jury.

A hearing was held on the motion for a new trial and we will quote or state the substance of all testimony pertinent to the points under discussion.

Mr. Eddie Patrick, one of the jurors who was employed by the First National Bank, testified that when he was questioned on voir dire examination as a prospective juror he did not then know that the president of the bank, Mr. C. A. Northington, was to be a witness; that he answered all questions to the best of his knowledge.

Mr. Mickey Bozarth testified that he was an employee of the bank and that he knew when examined on voir dire that Mr. North-ington was to be a witness; that he then also knew that decedent had been a customer of the bank. As to his personal relations with her, we quote his testimony:

“Q. I will ask you whether or not you had personal contact with Mrs. Williamson on or about September 7, 1962?
A. I don’t think I did.
Q. To refresh your memory, that is the date that they broke into the bank deposit box?
A. I don’t remember how it was broken, but I don’t think that I broke it. The only thing that I can remember about it is the charge we made on it, but don’t remember about the breaking.
Q. It came to light that you made the charge ?
A. That is right.
‡ * * S|C ⅜ ⅜
Q. Mrs. Williamson did most of her business at the First National Bank?
A. Yes.
Q. And you had contact with her from time to time ?
A. Not very much. I really did not know Mrs. Williamson very well.
Q. Well, who has charge of the safety deposit boxes?
A. Mr. R. A. Wright.
Q. But when the charge went through you signed your name?
A. I believe my name is stamped on there with a rubber pad, but I don’t really remember having done it. I probably did, though.
Q. This is the charge slip that came through. Is this your signature?
A. That is my signature, — no, that is a rubber stamp.
Q. Did anyone else have any authority to use that stamp ?
A. I don’t think that anyone used it but me but it was there available.”
Mr. Bozarth also testified:
“Q. Now, on your examination on voir dire did you acquaint either of the attorneys as to such information ?
A. You asked specific questions and so did Mr. Johnson, and I answered two or three of them but don’t remember exactly what they were.
Q. Do you remember that I asked the specific question if you had any knowledge or information of any kind that might influence in your verdict?
A. Yes, but I did not feel that this would in any way influence me and as I did not know anything about it.”

Mr. Bozarth also testified that he remembered a list of witnesses being read at the time of his examination.

The attorney for appellant, the Hon. J. J. Byrne, testified, and we quote from his testimony:

“ * * * I examined the jurors in said proceeding touching their service and qualification as jurors. I had no knowledge whatsoever that C. A. Northing-ton was a witness in behalf of the proponent. I had no knowledge whatsoever that Mickey Bozart had had business dealings with Mrs. Edith Williamson. If I had known that Mrs. Edith Williamson had had personal contact and business dealings with Mickey Bozart I would have exercised my prerogative to have challenged the serving of Mickey Bosart as well as Eddie Patrick. The attorney for the proponent did not use C. A. Northington in the trial of the case in the county court. Some of the witnesses that he used in this case appeared without summons. It is true that C. A. Northing-ton was under subpoena but this attorney had no knowledge or information from any source that C. A. Northington was going to be a witness in behalf of the proponent in the probate of this will. If this attorney, the contestant’s attorney, had had any knowledge or information that Mickey Bozart had had dealings with Mrs. Edith Williamson, or that C. A. Northington was going to be a witness in behalf of the proponent, C. A. Northington being the employer of Bozart and Patrick, both names would have been challenged.
* ⅜ ⅜ ⅜ ⅜ *
Q. Mr. Byrne, when did this matter first come to your attention, this short slip? September 2, 1962? The charge to Mrs. Williamson for drilling the deposit, safety deposit box, on which the signature of Mickey Bozart appears. When did that first occur?
A. In the trial of the case you will remember I jumped up and called to the attention of the court and we both came to his desk, and called the matter to his attention, and it was a shock to me.”

The Hon. R. L. Johnson, attorney for ap-pellee, also testified. He stated that he only called the names of the witnesses who were in the courtroom in order that they might be sworn. He did not call the name of Mr. Northington because he was not then present.

Mr. C. A. Northington testified that Mr. Byrne knew he was president of the First National Bank, and this is to be inferred from the testimony of Mr. Byrne.

The appellee introduced on the hearing a subpoena for Mr. Northington as a witness showing service on him on July 20, 1964. The trial was held on the 27th and 28th of July, 1964.

He also introduced a charge slip showing that the First National Bank had charged decedent's account with $10.00 for drilling and replacing a lock on a safety deposit box, which charge slip was signed by Mr. M. F. Bozarth.

Mr. Northington testified for appellee. He had known the decedent and her son, appellant, all of his life. All were close friends. The decedent was a customer of the bank of which Mr. Northington was president. In the opinion of Mr. Northing-ton decedent was capable of attending to her affairs and had sufficient mental capacity to make a will. Twelve other witnesses testified that, in their opinion, decedent was of a sound mind.

The record does not disclose that appellant moved for a mistrial upon learning that Mr. Northington was a witness and that the juror Bozarth may have had some business transactions with the decedent.

In El Paso Electric Co. v. Whitenack, 1 S.W.2d 594, the Commission of Appeals quoted, with approval, the following from Rice v. Dewberry, 93 S.W. 715, 721; 95 S.W. 1090, Galvaston C.C.A.:

“ ‘It seems to be settled that an objection that a juror who sat in the trial of a cause was not a qualified juror comes too late when not made until after the verdict has been returned. The rule is not made dependent upon the question of negligence on the part of the complaining party in not sooner discovering the fact of disqualification, but seems to be absolute, and doubtless rests upon reasons of public policy which require that objections going to the qualification of jurors shall be made before the return of the verdict in order to prevent the possibility of a party to a suit, after he has discovered that a juror is disqualified, taking chances on a verdict in his favor and in such case concealing the fact of the disqualification of the juror, and, if the verdict is otherwise, taking advantage of such irregularity for the purpose of obtaining a new trial.’ ”

This rule, applied here, is disposi-tive of the points under consideration and requires that they be overruled. We desire to add these observations. Jurors Bozarth and Patrick did not falsely answer any questions asked them on their voir dire. Neither did they conceal any facts on such examination. Nor is it shown that they were biased or prejudiced jurors, or that they were in any sense disqualified to sit as jurors in this case. If appellant desired to know more about these jurors, it was incumbent upon him to propound specific inquiries. Coulson v. Clark, Tex.Civ.App., 319 S.W.2d 183, Austin C.C.A., writ ref. n. r. e., opinion by Chief Justice Archer. This he failed to do.

Appellant’s remaining Point is the verdict of the jury “is against the weight of the credible evidence given in this cause and is contrary to all the medical evidence in this cause.”

We construe this assignment as applying only to the jury finding that decedent possessed testamentary capacity when she executed the instrument offered as her will.

We have adverted to the number of witnesses who testified that, in their opinion, decedent was of sound mind. Most of these witnesses were long acquaintances of decedent and to set out their testimony would be repetitious and of little value. We will review the testimony of Judge J. C. Abney, an attorney who drew the proffered will. He had known decedent for 70 years. She came to his office in July 1962 and gave him instructions for drawing her will. No one else was in the office at the time. In September 1962 she came back to the office and executed the will. Judge Abney, when asked if, in his opinion, Mrs. Williamson was of sound mind at the time, replied: “Yes, or I would not have permitted her to sign it.”

Mrs. Williamson had told Judge Abney in July when she talked to him about her will that she suspected a relative of taking things from her bank box. Judge Abney, doubting the validity of this accusation, conferred with her banker and doctor in order to satisfy himself that she was capable of making a will.

Appellant offered Troy Poll as a witness who, on cross examination only testified regarding the mental condition of Mrs. Williamson, “I think she was all right; like older people.”

Appellant also offered Fred Peeler as a witness who testified that in the summer of 1962 Mrs. Williamson was of sound mind.

Mrs. Parc Williamson, testifying for appellant, stated she visited Mrs. Williamson in the rest home in Lampasas and that “her general condition” was “poor.” This was in the early part of 1963. Mrs. Williamson suffered a stroke in May 1963.

Mrs. Will James, testifying for appellant, stated that in August and September of 1962 the physical condition of Mrs. Williamson was “poor.” As to her mental condition she answered, “Well, we had noticed that Mrs. Edith’s mind seemed to be leaving her in a way because she did not remember anything and she would just sit and look at you.” This condition worsened after Mrs. Williamson fiad a stroke in May 1963, according to Mrs. James, and at this time she could not speak.

Mrs. Soules, a witness for appellant, testified that in December I960 and January 1961 the physical and mental condition of Mrs. Williamson was “fair.”

Mr. Charles W. Lynch, County Attorney of Lampasas County, testified for appellant and stated that in July 1962 decedent came to his office for the purpose of filing a theft complaint against appellant and that he refused to file it. Regarding her mental condition he testified, “I hesitate to go so far as to say that she was of unsound mind. I say that she did not in my opinion have control of her own mind at that time.”

Dr. W. M. Brook testified for appellant and gave a medical history of her covering a period of years. He stated that during such time she had undergone “some more or less general mental and personality changes.” In July 1962, Dr. Brook noted on her record that her “Senile symptoms” were “mild,” and that she was “disorientated” on “occasion.”

Dr. Brook testified to small incidents which demonstrated a change in the personality of Mrs. Williamson and stated, “There were some professional things she would call me and ask me about and then not take my advice, which might not have been proper or good, but these various little things we see in so many people as senility begins to become more pronounced,.she had, I think, a little more than ordinarily, personality change, because of her arterioschlerosis.”

Dr. Brook did not give an outright opinion that Mrs. Williamson was of unsound mind.

Considering all of the evidence, it is our opinion that the verdict of the jury finding Mrs. Williamson to have had mental capacity to execute a will is not so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong or unjust.

The judgment of the trial court is affirmed.

Affirmed.

      . The death of appellant pending this appeal has been suggested. The appeal is not abated and there is no need to substitute parties for appellant. Rule 369-a, Texas Rules of Civil Procedure.


author: STEPHENSON, Justice.

text:
    Emily WHITE et al., Appellants, v. Price DANIEL, Appellee.
    No. 6748.
    Court of Civil Appeals of Texas. Beaumont.
    May 6, 1965.

      Aloysius Wickliff, Houston, W. J. Durham, Dallas, Thos. H. Dent, Galveston, for appellants.
    Thos. A. Wheat, Price Daniel, Liberty, for appellee.
   STEPHENSON, Justice.

This is a trespass to try title suit to recover title to 100 acres of land in Liberty County. Trial was by jury which failed to reach a verdict. The trial court discharged the jury and granted plaintiff’s motion for instructed verdict.

Price Daniel, the plaintiff, claimed record title to the property. Plaintiff acquired title to the north 40 acres by deed dated April 15, 1935, and acquired title to the south 60 acres by deed dated May 15, 1935. From 1901 until 1935 record title to these two tracts had not been vested in the same person. Defendants, the heirs and legatees of Joe Cormier, deceased, claimed title under the ten year statute of limitation. The parties will be referred to here as they were in the trial court.

If there was evidence of probative force raising the necessary issues of fact under the ten year statute of limitation, the trial court erred in instructing a verdict for plaintiff. Such evidence must include peaceable and adverse possession, cultivating, using or enjoying the same for any period of ten continuous years, under a claim of ownership.

Joseph Cormier, defendants’ ancestor, obtained record title to a 50 acre tract in 1891 and to a 139 acre tract in 1896. These two tracts lie immediately east of the 100 acres in controversy and there is no conflict between the field notes calling for the joint boundary line.

Arthur Brazier, a witness called by defendants, testified as follows:

He ran stock on the 100 acres involved in this suit with permission from Joseph Cormier; Cotton and corn were raised on a part of the land; He kept cows, horses and stock on the land for 15 or 20 years after Joseph Cormier died; Wood was cut from the land for posts and for the schools in town; The Cormiers were claiming the land as far back as 1905; The land was under fence beginning in 1917 for 16 to 20 years, went down for a couple of years and had to be repaired; A truck potato was cultivated by the Walters on the north side of the tract involved.

Emily White, a defendant, testified Joseph Cormier and his heirs were claiming this land back in 1896.

Sim Paul Cormier, a defendant, testified that wood was provided for the Catholic school for 30 years; that there were wood cutting parties and that many times post splitting was done by members of the family.

Willie Arceneaux testified: That he was 62 years old and that all his days he knew the land as belonging to the Cormier family; that timber was cut from this land from 1910 to 1928; that he cut timber with permission from the Cormier family.

The Cormier family executed an oil and gas lease in 1926 covering a portion of the land in controversy.

Hazel Walters Bernard testified: That her family cultivated a garden on the northern part of this land from 1929 to 1942, about half an acre in size; that a picket fence was put around the garden; that Cyrus Cormier gave her mother permission to use this garden; that Cyrus Cormier farmed about 200 to 300 yards from the Walters garden; that Joseph Cormier and his family cut timber on the property as long as she could remember.

Melton Cormier testified: that 30 or 35 acres of land were cultivated; that he helped build a rail fence, which was hog-proof, around this land; that crops were grown on this land; that several persons ran cattle on the land in controversy with permission from the Cormier family.

Alvin Chargois testified: that his father leased this property for pasture under an oral lease from the Mitchell and Cormier families after 1946; that this lease provided that the Cormiers put up a fence to keep the cattle off the road; that he continued leasing after his father’s death; that the Cormiers cut timber off of the property to burn for fuel.

Amos Arceneaux testified he was 75 years old and never knew of anyone claiming the land but Joseph Cormier and his heirs, who cut timber year after year.

June 30, 1917, a judgment was filed, confirming a partition of a tract of land, including the land in controversy, among the Cormier heirs. The property had been partitioned by commissioners.

Gregory White paid school taxes on 98¾ acres in the survey in which this land is located in the year 1925. Taxes were paid by Emily White on 20%o acres in 1917, and 21 acres in 1919. Willie Mitchell paid state and county taxes on 100 acres in 1920, 1924 and 1927.

Inasmuch as Joseph Cormier and his heirs, held possession of their own premises under deed east of the land in controversy, it is presumed that their possession only extended to the boundaries of their deed. In order, therefore, to establish adverse possession of the adjoining tract it was necessary for them to have actual possession of such additional land of such a character as of itself will give notice of an exclusive adverse possession and mature it into title after the statutory period. Harmon v. Overton Refining Co., 130 Tex. 365, 109 S.W.2d 457.

It is undisputed that none of the defendants nor their ancestor, Joe Cormier, ever lived on the property in controversy and no buildings were ever placed on the property. The only evidence of use was through cultivation, timber cutting and grazing.

The only evidence as to cultivation came from the witnesses, Arthur Brazier, Emily White and Melton Cormier. Arthur Brazier testified that Joe Cormier farmed the land in controversy, raising cotton and corn, before his death in 1918. However, this testimony does not show how many years this farming operation was carried on, which years the farming was carried on, and whether the farming was for a period of ten consecutive years. Emily White testified that they cultivated 30 or 40 acres of the land in controversy and Melton Cormier said it was 30 to 35 acres. However, neither of them testified' as to how many years this was done, which years it was done, whether on the 40 or 60 acre tracts involved, nor whether it was for a period of ten consecutive years. The only other testimony about cultivation was in reference to the garden plot of Cedonia Walters on the north end of the tract in controversy and once again no one testified that this was maintained for any ten consecutive years. Defendants failed to describe the garden spot in their pleadings, and the evidence does not show specifically where the garden spot was located. A judgment could not be rendered by the court for the defendants under these circumstances. Coleman v. Waddell, 151 Tex. 337, 249 S.W.2d 912. There was no evidence that the land was cultivated for a period of time sufficient to mature title under the ten year statute of limitation.

The use of land for timber purposes may under certain circumstances amount to nothing more than evidence as to claim of ownership, and under other circumstances amount to actual possession. The courts of this state have given particular emphasis to the frequency of the cutting of the timber, the amount of the timber cut and whether there is some other form of possession of the land at the same time. The evidence in this case shows that the defendants, and others with their permission cut timber, for fence posts, that there were wood cutting parties to provide wood for the schools in Liberty, and that wood was cut from the property to burn for fuel. The evidence showed this timber was cut year after year, one witness testifying that wood was cut for thirty years. There was no evidence of a general cutting of the timber at any time. There was no evidence as to the quantity of timber cut at any one time, nor as to where on the land the timber was cut, that is, whether it was cut from both the 40 acre tract and the 60 acre tract each year. The evidence did not show actual possession of the land throughout the required statutory period through continuous cutting of the timber. Sneed v. Hamilton, Tex.Civ.App., 299 S.W.2d 769.

We now consider the evidence in reference to use of the land by defendants for grazing the only other use covered by the testimony. Arthur Brazier testified he ran stock on this land with permission from Joseph Cormier and that he kept cows, horses and stock on the land for 15 or 20 years after Joseph Cormier died. Melton Cormier testified that several persons ran cattle on this land with permission from the Cormier family. Alvin Chargois testified that his father leased this land' under an oral lease from the Cormiers after 1946 for pasture, and that he continued leasing after his father’s death.

According to the witness, Arthur Brazier, the land in controversy was enclosed by a fence beginning in 1917, and remained under fence for 16 to 20 years until it went down for a couple of years and had' to be repaired. However, there is no evidence that Joseph Cormier or any of the defendants built a fence that touched the land in controversy at any point. Of the total amount of about 439 acres under fence, the Cormiers had record title to 189 acres of land. Further, the evidence showed that about 75% of the fence enclosing the larger tract of land, which includes the 100 acres in controversy, is made up of fences owned by other persons not connected with this suit, and used by them for the purpose of fencing their own land. The fencing and grazing, as a matter of law, was not sufficient to support title by limitation. This case is controlled by the law as set forth in Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, as follows:

“When the use relied upon to support the statute is grazing, there must be also at the same time sufficient enclosure, such as to give evidence that the land was designedly enclosed and to show the assertion of claim hostile to the true owner. Vineyard v. Brundrett [17 Tex.Civ.App. 147], 42 S.W. 232, 235. The ordinary case for the acquisition of title by adverse possession, when the use is grazing, is one in which the person claiming title under the statute has built a fence or fences enclosing the land and has maintained the enclosure and continuously used the land for grazing during the statutory period. Such construction of fences and use of the land for grazing afford evidence of hostile claim. Petitioner would bring this case within that general rule. We agree, however, with the decision of the Court of Civil Appeals that the facts of this case take it out of that general rule and bring it under the principle announced and applied in the following cases, that when the disputed tract of land has been casually or incidentally enclosed with other land, especially when, as here, such other land is held by the possessor under deed, the incidental enclosure and the occasional grazing of the disputed tract by cattle straying from the title land will not amount to such adverse and hostile possession and use as will support the statute of limitations, (cases cited)”

It also must be noted in this case that a public road lay within the enclosure, as well as a large tract of land owned by a third person to which defendants made no claim.

When the claimed uses are considered together, they fail to complement one another so as to constitute continuous and exclusive possession of the land. W. T. Carter & Brother v. Ruth, Tex.Civ.App., 275 S.W.2d 126.

Defendants contend the trial court erred in defining a word in the court’s charge. In view of the disposition of this case on appeal, this point becomes immaterial. If the court properly instructed a verdict for plaintiff, anything contained in the court’s charge could not constitute reversible error.

Defendants further contend the trial court erred in not permitting them to reopen the case and introduce additional testimony. This motion was made at the time defendants filed their answer to plaintiff’s motion for an instructed verdict, and at a time the jury had already been discharged. Rule 270, Texas Rules of Civil Procedure, provides that the court may permit additional evidence to be offered. This matter was within the sound discretion of the trial judge. We find no abuse of his discretion.

Affirmed.

PARKER, J., not sitting.


author: MASSEY, Chief Justice.

text:
    EAGLE LINCOLN-MERCURY, INC., Appellant, v. J. M. HAZLEWOOD, Appellee.
    No. 16637.
    Court of Civil Appeals of Texas. Fort Worth.
    May 14, 1965.
    Rehearing Denied June 11, 1965.

      Leachman, Gardere, Akin, Porter & De-Hay, and Gordon H. Rowe, Jr., Dallas, for appellant.
    Carter, Gallagher, Jones & Magee and Joe Hill Jones and Ben Warder, Jr., Dallas, for appellee.
   MASSEY, Chief Justice.

This is an “assumption of risk” case.

Plaintiff J. M. Hazlewood was invited by a salesman of the defendant Eagle Lincoln-Mercury, Inc., to accompany him to a place on the latter’s premises for the purpose of showing an automobile which he desired to sell to plaintiff. The rear of the automobile was against a wall, and immediately to the left of the automobile was a grease-pit. The grease-pit was some eighteen inches from the left side of the automobile. It was not protected by guard-rails or otherwise, and for our purposes may be treated as a pit opened in the surface of the premises. The presence of and hazard in the pit and its location, considered in connection with the location of the automobile which plaintiff was inspecting, was open and obvious and was actually observed by the plaintiff. Furthermore, the danger and threat of danger to plaintiff of falling into the pit was understood and appreciated by him.

Plaintiff approached the pit and walked alongside the edge of it in order to get to the doors of the automobile; to open and close the doors; to get in and out of the automobile; and ultimately to alight therefrom and come to a standing position on the floor immediately between the vehicle and the edge of the pit, — with full knowledge of a dangerous static condition constituting a hazard to him. In other words, when the plaintiff originally came into proximity with the pit the facts were such that the defendant owed him “no duty” in respect to warning him about or protecting him from the possibility of falling in the pit.

At some time during the course of plaintiff’s presence at or in the automobile, or perhaps immediately after he alighted therefrom, such attention as he had theretofore directed to the presence of the pit departed from his consciousness. Such precautionary measures as were theretofore taken by him in order to avoid the hazard of falling into it ceased. He forgot that of which he had theretofore been conscious and aware, to-wit: that he was in hazardous proximity to the pit. Indeed, the evidence is competent to show that the salesman who was trying to interest the plaintiff in purchasing the automobile, and who remained standing near its left front fender during the course of plaintiff’s inspection, had delivered a “sales pitch” of such efficiency that a desire to purchase the automobile displaced all other thoughts from plaintiff’s mind. In this “sales pitch” lay the distraction of plaintiff’s thoughts and attention so that he forgot the hazards against which he had theretofore taken precautionary measures. He stepped back, or to the side, as he started to return to the area at the front of the automobile, and stepped into the open pit. He did not slip. He stepped into an open hole. He fell into the pit. He sustained serious and perhaps permanent injuries.

On trial plaintiff was acquitted of charges of contributory negligence lodged against him in connection with any failure to keep a proper lookout. Defendant was convicted of negligence in failing to warn plaintiff of the location of the grease-pit, in failing to have a barricade around it, and in showing the automobile to a prospective purchaser when it was located in such close proximity to the pit. The court held against the defendant on the contention advanced by its pleading, viz.: “ * * * that the condition complained of by plaintiff was open and obvious; that said condition was as readily apparent to plaintiff as to defendant; and that the danger, if any, of using the premises in the area adjacent to the condition in question was such that the plaintiff, in the exercise of ordinary care for his own safety, was aware of and appreciated it.” Judgment for substantial damages was rendered for plaintiff and against the defendant, from which this appeal was taken.

For our purposes we may safely treat the presence of the grease-pit, in relation to the location and position of the automobile being inspected by the plaintiff, as a dangerous condition. Obviously it was a static condition. The risk of harm to an invitee upon the premises was the hazard of a fall into the open pit.

We believe the defendant invoked in its defense the “no duty” doctrine. The plaintiff contends that the pleading was inadequate for such purpose in that it contained language which destroyed its efficacy. Such language lies in the defendant’s use of the phrase “in the exercise of ordinary care for his own safety” in connection with plaintiff’s awareness and appreciation of the danger in the physical condition of the premises. The “no duty” doctrine is not to be invoked when an invitee should have known of and appreciated dangers but does not actually know and appreciate such and is not to be charged therewith as a matter of law. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup., 1963). There was no defect in the defendant’s pleading because of the phraseology adopted.

The evidence established applicability of the “no duty” doctrine as a defense unless the evidence of the plaintiff concerning his momentary forgetfulness, coupled with additional proof which established that a cause of the forgetfulness was the persuasiveness and effect upon the plaintiff’s mind by the “sales pitch” of its agent, created a fact question upon which the court’s presumed finding enabled avoidance of the defense.

Our conclusion and holding is that plaintiff’s evidence could have done no more than establish that his momentary forgetfulness was non-negligent. It could not have had the effect of imposing upon the defendant a duty, under any theory of tort, which had not theretofore existed and which condition would have continued had the plaintiff not experienced his forgetfulness. Defendant was entitled to prevail against plaintiff in so far as the “no duty” doctrine has application.

The “no duty” doctrine, as applied to open and obvious dangers inherent in static conditions upon an occupier’s premises, of which an invitee is aware, and the dangers of which he appreciates, operates so as to relieve the occupier of any duty to give warning. He is not obliged to protect the invitee from such dangers. In a suit for damages brought by an invitee against the occupier, the latter — as the defendant,— if he pleads the defense of “no duty” in avoidance or as an affirmative defense under the provisions of Texas Rules of Civil Procedure, Rule 94, “Affirmative Defenses”, — is entitled to cast a burden upon the invitee to prove not only that he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm, but also (upon the introduction of defendant’s evidence which raises an issue under the defense so plead) to prove as a part of his plaintiff’s case that the occupier owed him a duty to take reasonable precautions to warn him or protect him from such danger, i. e., to negative the “no duty” doctrine thereby invoked. If plaintiff cannot make this proof the defendant will have successfully defeated his claim as founded on negligence in such connection. If plaintiff, as an invitee, knows and appreciates the danger, and nevertheless proceeds, he cannot recover. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup., 1963).

In this case we are not presented with that character of distraction which a plaintiff might contend amounted to negligence in and of itself. We are not presented with a situation wherein the defendant discovered the fact that the plaintiff was momentarily forgetful of the danger in time to remind him thereof or take steps to protect him. The salesman never did anything to frighten or startle the plaintiff, and he was as surprised as the plaintiff when the latter overstepped and fell into the pit. However, plaintiff seeks support for the judgment in his forgetfulness and in the fact that it was caused (at least in part) by the “sales pitch” of the salesman. Evidence to such effect would only have a bearing upon plaintiff’s contributory negligence, if any, and would not operate to create any duty (owed to him) by defendant where “no duty” was theretofore existent.

In support of his contention plaintiff cites Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625 (1941), reversing the Court of Civil Appeals opinion at 131 S.W.2d 650. An invitee’s forgetfulness was involved. Although the “no duty” doctrine was asserted (see the Court of Civil Appeals opinion) the evidence fell short of establishing that plaintiff-invitee ever actually “knew and appreciated the risk” or that under the circumstances she would be legally charged with such “knowledge” and/or “appreciation”. Discussion to be observed on page 630 (Volume 154 of the Southwestern Reporter, Second Series) merely had application to the contributory negligence charged against the plaintiff. The ultimate holding, made at the conclusion of the discussion concerning such, was: “ ‘To forget is not negligence unless it amounts to a failure to exercise ordinary care for one’s own safety.’ 45 C.J. p. 950 § 509.” We are not persuaded by the authority to alter our holding that the defendant has successfully invoked the “no duty” doctrine in the instant case.

Plaintiff seeks to support his judgment on the theory that the defendant injured him as the result of the latter’s active negligence in showing the automobile when it was in such close proximity to the open grease-pit. Though showing the automobile might be deemed negligence which would be separable from the consideration we have given it hereinabove, we do not believe that it could amount to a separable proximate cause.

Judgment is reversed. Judgment is rendered that J. M. Hazlewood take nothing by his suit against Eagle Lincoln-Mercury, Inc.


author: MURRAY, Chief Justice.

text:
    AETNA INSURANCE COMPANY, Appellant, v. Manuel B. SANCHEZ, Appellee.
    No. 14383.
    Court of Civil Appeals of Texas. San Antonio.
    May 12, 1965.
    Rehearing Denied June 9, 1965.

      Clemens, Knight, Weiss & Spencer, San Antonio, for appellant.
    Montague & Thurmond, Del Rio, for ap-pellee.
   MURRAY, Chief Justice.

Appellee, Manuel B. Sanchez, a resident of Coahuila, United Mexican States, brought this suit against appellant, Aetna Insurance Company, a corporation chartered in the State of Connecticut and doing business in the State of Texas, seeking to recover damages for breach of an alleged contract agreement to pay appellee the sum of $5,000.00 for personal injuries sustained by him in an automobile collision with one Donald E. Stewart, an insured of appellant’s, and the further sum of $250.00 for property damage. The automobile collision was alleged to have occurred on October 6, 1961, on U. S. Highway 377. Appellant acted in this matter through the adjustment firm of General Adjustment Bureau of Del Rio, Val Verde County, Texas, with James F. Dinsmoor as its manager. Appellee was represented by Hon. Ignacio Otero, the Acting Mexican Consul in Del Rio. Manuel B. Sanchez was severely injured in the collision and accumulated large hospital and doctor bills as a result of such injuries. Sanchez, at the time of his injury, was a bracero working under a labor contract.

Aetna Insurance Company filed a plea of privilege to be sued in Dallas County, alleged to be its legal Texas residence. The plea of privilege was controverted by ap-pellee and, after hearing evidence, the trial court overruled the plea of privilege, and Aetna Insurance Company has prosecuted this appeal.

Appellee’s controverting plea alleged two grounds of venue in Val Verde County under Subd. 27, Article 1995, Vernon’s Ann. Civ.Stats. First, that suit was based on a breach of a contract of settlement made in Val Verde County between authorized agents of the parties, and, second, that at the time of commencement of suit on October 12, 1964, General Adjustment Bureau and/or James F. Dinsmoor were agent and/or agents of Aetna in Val Verde County.

It is the contention of Aetna that there had been no meeting of the minds as to all phases of the contract of settlement, and therefore there was no completed contract which could have been breached, and, second, that neither the General Adjustment Bureau, Inc., nor Dinsmoor was its agent at the time suit was filed.

Otero testified that Dinsmoor, as adjuster for Aetna, agreed to settle Sanchez’s claim for $5,000.00 for personal injuries and for $250.00 for property damages. Dinsmoor does not deny the settlement agreement, but contends that it was further understood that all of Sanchez’s hospital and medical bills were to be paid out of this sum of $5,-250.00. Otero did not deny this contention.

Otero received a letter from Dinsmoor listing the hospital and medical expenses of $4,737.40, stating “these bills have not been paid to date,” enclosing a photocopy of an insurance policy, and stating:

“We believe that you understand that this policy provides a total .payment to Mr. Sanchez in the amount of $5,000.00. This money will be used to pay the aforementioned medical expenses and any moneys which are left will be directed to Mr. Sanchez.
“We are enclosing a release of all claims in the amount of $5,000.00. It would be greatly appreciated if you would have this document executed by Mr. Manuel B. Sanchez and forward same to our attention when completed.”

Dinsmoor attached to this letter two releases, one for $5,000.00 and one for $250.-00, to be signed by Sanchez, and stated that the checks would be made payable to the hospital, the doctors and Sanchez, jointly. This proposal was not agreeable to Otero, who asked Dinsmoor to “do me the favor of making the check payable to Manuel B. Sanchez and the Mexican Consulate.” Dinsmoor replied that he would take the matter up with Aetna. The negotiations seemed to stop there; Aetna later refused the claim, as it was barred by the two-year statute of limitations, and thereafter this suit was filed. The question to be decided is whether or not a complete contract was entered into by the parties and thereafter breached.

The trial court having overruled the plea of privilege, the evidence must be viewed in a light most favorable to the judgment of the court. When this is done we come to the conclusion that the evidence establishes the fact that a complete contract was entered into between the parties. It was understood between Dinsmoor, as agent for Aetna, and Otero, as agent for Sanchez, that Sanchez would be paid the sum of $5,-000.00 for his personal injuries, and the further sum of $250.00 for property damages. It was also understood that all hospital, medical and doctor bills incurred by Sanchez would be paid out of these funds. An itemized list of these bills, amounting to $4,737.40 was furnished to Otero.

There was no misunderstanding as to the terms of the agreement. Apparently, they were fully understood, but the conflict arose as to how the terms of the agreement were to be carried out. Unless there was a specific agreement as to how the agreement was to be put into effect, it should have been done in the usual and customary manner. The statement of Otero that it was not agreeable to him to have the checks made payable to the hospital, the doctors and Sanchez, and his request that Dinsmoor do him the favor of making the checks payable to Manuel B. Sanchez and the Mexican Consulate was not a repudiation of the agreement made by the parties or a counter offer, it was nothing more than a request that the checks be made payable in a certain manner. This did not have the effect of destroying the agreement of settlement the parties had entered into. Turner v. McCormick, 56 W.Va. 161, 49 S.E. 28, 67 L.R.A. 853; 17 Am.Jur.2d, Contracts, § 65; 17 C.J.S. Contracts §43.

The cases cited by appellant: Smulcer v. Rogers, Tex.Civ.App., 256 S.W.2d 120, wr. ref., n. r. e.; H. B. Zachry Co. v. Maerz, Tex.Civ.App., 223 S.W.2d 552, no wr. hist., and Allen v. Strode, Tex.Civ.App., 62 S.W.2d 289, can easily be distinguished from the case at bar and do not support appellant’s contention here.

The judgment of the trial court is affirmed.

CADENA, J., not sitting.


author: BARROW, Justice.

text:
    Arnold ALBERT, Appellant, v. Monroe ALBERT, Appellee.
    No. 14382.
    Court of Civil Appeals of Texas. San Antonio.
    May 12, 1965.
    Rehearing Denied June 9, 1965.

      Levey & Goldstein, San Antonio, for appellant.
    Morriss, Boatwright, Lewis & Davis, San Antonio, for appellee.
   BARROW, Justice.

This suit was filed by appellee, Monroe Albert, against his brother, Arnold Albert, for an accounting after dissolution of a medical clinic operated by them as partners, and to recover for a shortage in receipts allegedly caused by appellant’s negligence. The jury found that appellant as managing partner of the clinic was negligent in the fiscal controls of the partnership and that appellee sustained a loss of $4,212.50 as a proximate result of these acts of negligence. Judgment was entered on these findings and Arnold Albert has perfected this appeal.

This partnership was entered into by written agreement executed in September, 1954, and was dissolved by written agreement effective November 12, 1960. By this latter agreement both parties expressly accepted and agreed to abide by the award of arbitrators who had been appointed by them, under the terms of the partnership agreement, to resolve the disputes, differences and questions which had arisen between the parties touching upon the partnership and the accounts and transactions thereof, and the dissolution and winding up of the partnership. Despite the acceptance of the award made by the arbitrators, this is the second bitterly contested suit between these parties to reach this Court, relating to this partnership and the dissolution thereof. See Albert v. Albert, Tex.Civ.App., 377 S.W.2d 772, wr. ref., n. r. e.

Appellant pleaded that the award of the arbitrators was a bar to this cause of action and by this appeal urges that a take-nothing judgment should have been rendered on the jury’s finding that the parties submitted to arbitration the matter of an accounting of the partnership receipts in connection with the alleged shortage. Appellee says that this suit is one for damages based on a negligence claim, and that, in any event, since the arbitrators made no award on the accounting claim, same is not barred.

One of the issues submitted to the arbitrators by written instruction of appellee’s attorney was: “To determine an accounting between the partners as to cash collected and not accounted for, if any.” It is undisputed that the arbitrators heard testimony relating to the manner of keeping the partnership books and receipts from both partners, their bookkeeper, a certified public accountant, who had audited the books for the period in controversy, and one or more employees of the clinic. Rabbi Grossman, the arbitrator selected by appellee, testified that the question of a cash shortage and accountability therefor was presented to the arbitrators, and they spent considerable time, heard considerable evidence, and made an extensive investigation of their own in order to determine the responsibility for the shortage in the accounts of the clinic. Apparently they were unable to do so, as the award of the arbitrators made no mention of this claim.

It is well settled law that the award of an arbitrator in a matter properly submitted to arbitration is final and conclusive, unless it be shown that the arbitrator was guilty of fraud, misconduct, or such gross mistake as would imply bad faith or failure to exercise an honest judgment. City of San Antonio v. McKenzie Const. Co., 136 Tex. 315, 150 S.W.2d 989 (1941); Smith v. Barnett, Tex.Civ.App., 373 S.W.2d 762; Johnson v. American Can Co., Tex.Civ.App., 361 S.W.2d 451; Johnson v. Korn, Tex.Civ.App., 117 S.W.2d 514, wr. ref. Generally speaking, a valid award of the arbitrator in the matter submitted to him is given the same effect as a valid judgment. Alderman v. Alderman, Tex.Civ.App., 296 S.W.2d 312, wr. ref.; Ferguson v. Ferguson, Tex.Civ.App., 127 S.W.2d 1018, wr. dism.; 6 Tex.Jur.2d, Arbitration and Award, § 51.

Appellee alleged in this suit, substantially, that an audit of the partnership books showed a deficit for the period of January 1, 1959, to March 31, 1960, and that appellant, as senior partner, had exclusive supervision and control of the employees and was negligent in not taking proper action to prevent the shortage. Appellee prayed that he have judgment for an accounting and for the amounts shown to be due him with interest, for his damages, for costs, and for general relief. Appellant asserted that the brothers were equal partners and both were responsible for any shortcomings in their bookkeeping and internal control, and that all issues relating to dissolution of the partnership had been settled by the arbitration award.

We believe the proper rule to be applied in this case, as stated in American Jurisprudence, is as follows: “Once a valid award is made, it and the submission upon which it is founded are the sole basis for any further determination of the rights of the parties with respect to any demands embraced in the submission, for the latter are merged and extinguished in the award.” 5 Am.Jur.2d, Arbitration and Award, § 146. See Springs Cotton Mills v. Buster Boy Suit Co., 88 N.Y.S.2d 295, 275 App.Div. 196, aff., 89 N.E.2d 877, 300 N.Y. 586, reh. den. 91 N.E.2d 330, 300 N.Y. 680; Sapp v. Barenfeld, Sup.Ct. California, 34 Cal.2d 515, 212 P.2d 233; Louison v. Fischmann, 341 Mass. 309, 168 N.E.2d 340.

The arbitration agreement entered into by the parties evidenced the stated intention of resolving all disputes, differences and questions which had arisen between the partners touching the partnership and the dissolution and winding up thereof. This was clearly a general and unlimited submission. Cf. DeVries v. Persons & Whitmore, Sup., 75 N.Y.S.2d 597; Rosa v. Transport Operators Co., 45 N.J.Super. 548, 133 A.2d 24. The parties knew when the award was accepted by them that, although the matter of the accounting and responsibility for the shortage had been submitted to the arbitrators and considered by them, no award was made and this claim was not reserved for future determination. To permit the disappointed party to thereafter reassert this claim, although the award was accepted in other respects, would defeat the purpose of arbitration, which is to avoid litigation. Alderman v. Alderman, supra. Furthermore, it is seen that the omission of this submitted and considered claim amounted to an implied denial of same under the general rule relating to the construction of a judgment. Vance v. Wilson, 382 S.W.2d 107 (Tex.1964); 4 McDonald, Texas Civil Practice, § 17.10.

It is our opinion that the award of the arbitrators which was accepted by appel-lee operates as a bar to his reassertion of this claim. The trial court erred in not entering a take-nothing judgment upon the jury’s finding that same had been submitted to the arbitrators. Appellant’s other points, complaining of the judgment, are therefore immaterial.

The judgment of the trial court is reversed and judgment here rendered that ap-pellee, Monroe Albert, take nothing by his suit against appellant, Arnold Albert.

CADENA, J., not sitting.

      . (1) Dr. Arnold Albert was the managing partner in substantial control over and in supervision of the cash receipts and deposits of the Albert Clinic, during the period from January 1, 1959, through March 31, 1960.
      (4) Dr. Arnold Albert failed to institute a system of procedures and controls over the receipts and deposits of the Albert Clinic to secure a proper accounting of all receipts of the Albert Clinic partnership during the period from January 1, 1959 through March 31, 1960.
      (7) Dr. Arnold Albert knew, or by the exercise of reasonable diligence, should have known, of the shortages occurring in deposits to the partnership bank accounts during the period from Jan. 1, 1959 through March 31, 1960.
      (8) Dr. Arnold Albert failed to take such steps to prevent such shortages, as a person of ordinary prudence, in the exercise of ordinary care, would have taken under the same or similar circumstances.
      (10) Dr. Arnold Albert failed to exercise such supervisory control of the personnel with access to the receipts of the Albert Clinic partnership during the period in question, as a person of ordinary prudence, in the exercise of ordinary care, would have exercised under the same or similar circumstances.

      . (13) On or about March 21, 1960, Dr. Monroe Albert and Dr. Arnold Albert submitted to arbitration the matter of an accounting of the partnership receipts in connection with an alleged shortage thereof.


author: CHAPMAN, Justice.

text:
    Joseph J. BUKOVICH, Appellant, v. Sally A. BUKOVICH, Appellee.
    No. 7457.
    Court of Civil Appeals of Texas. Amarillo.
    April 26, 1965.
    Rehearing Denied May 24, 1965.

      Neal, Hazlewood & Wolfram, Amarillo, for appellant.
    Clayton, Kolander, Moser & Templeton, Amarillo, for appellee.
   CHAPMAN, Justice.

The subject matter of this suit involves an appeal by Joseph J. Bukovich from a judgment based upon a jury verdict in a case which originated by the issuance of a writ of habeas corpus against Sally Buko-vich in the 108th District Court resulting in an instanter hearing in which said court issued temporary orders preserving the status quo until Sally Bukovich could secure counsel. The case was then transferred to the Court of Domestic Relations for trial.

The case involves the custody of Mark Bukovich, a four-year old child of a former ■marriage of the named parties.

The record shows the minor child was two years of age at the time the divorce was granted in the State of Indiana in June of 1962, and that his mother was awarded custody of him with provision that she could not leave the state.

Appellee testified in effect that her husband had employed detectives to follow her ever since she received custody of the child, that she had been brought into court on four different occasions on charges that were not true and that each time she received custody of the child. She did not appear in court at the time the custody was changed.

Appellee testified that she left the little town in Indiana where she lived and went over to Oak Lawn, Illinois, on December 3, 1963, after she heard the Indiana court had changed the custody of the child from her to its father, which would appear to be the fifth time he had sought to change custody. She acknowledged that she was scared. “I did not want them to pick up Mark.”

The case was tried in the court below on the pleadings of appellee, Sally Bukovich, to the effect that circumstances, conditions, and the financial position of Sally Bukovich since the second day of December 1963 have so substantially changed as to render her the fit, proper and suitable person with whom the custody of such child should be lodged for the welfare and benefit of such child.

Appellant’s appeal is based upon points of no evidence and insufficient evidence to support the judgment based upon the jury’s verdict that since the last Indiana decree there has occurred such a material change of conditions that the best interests of the minor child require a change of custody to its mother and that the court abused its discretion in refusing to grant application for writ of habeas corpus for the return of the child to its father.

We hold there is an abundance of evidence to support the jury verdict.

There is not any probative evidence that even tends to show a lack of good morals on the part of appellee, and her friends who testified in her behalf show from the record to be people with substantially responsible positions and wives of such type people.

At the time the custody judgment was awarded in favor of appellant the record shows appellee was only temporarily employed and was having difficulty finding enough work in the little village where she lived to sustain herself and the child and the court judgment awarding her custody had prohibited her from leaving the state to go where she testified she could have found positions that would have supported them.

For seven years before her marriage and up to the very day before her marriage she had worked as a bankteller in Oak Lawn, Illinois, just a few miles from the village where she lived in Indiana. She has learned since December 3, 1963, that such a position is available for her. She was corroborated in this testimony by Stanley C. Dawson, an owner of two appliance stores with his brother in Oak Lawn, Illinois, who is a former engineer in Detroit and presently a director of a bank in Oak Lawn, Illinois. He testified he checked with the bank before he left Illinois to come to Texas to testify and that he learned appellee had been a very dependable employee and that a position was available for her that would pay from $280 to $310 per month. His father, Stanley H. Dawson, who is executive vice-president of a forging fabricating plant in Chicago, who has 220 people under his supervision, who is trained in mechanical and metallurgical engineering, who was former vice-president and general manager of the forging plant of the American Brake Shoe Company, former general manager of the Ford Motor Company Forging Plant, and former plant manager of Chrysler Forging Manufacturing Plant, testified he and his wife have a home in Oak Lawn, Illinois, and they would like for appellee to stay with them until she is financially able to rent an apartment for herself and Mark. He testified he had known her about twelve years and that she was an excellent mother. He is the father of Marilyn Carver, whose husband owns and operates Carver Pharmacy of Dimmitt, Texas. She and appellee were close friends for many years. Ap-pellee stayed with her for a month after leaving Indiana. Mrs. Carver testified that Sally is as perfect a mother is she has ever been around.

Ruth E. Dawson, who has been married to Stanley H. Dawson for 38 years, testified that she loves Sally as her own daughter; that they have a three bedroom home in Oak Lawn, Illinois, with only one room being occupied and that she wants appellee to live with them until she gets settled; that they would be glad to have her indefinitely but that Sally would probably went to get an apartment after she gets settled in her position at the bank where her son is a director. She also testified that Mark “has been hounded and spied on. When they would hear a car come Mark was afraid he was going to be taken away from his mother. He would scream and cry sometimes, he was so frightened, a little four-year old boy.” This record is completely void of any testimony of moral misbehavior on the part of appellee. To the contrary, the testimony preponderates in her favor both as to morals and her ability as a mother. In her flight to avoid detection and the resulting loss of her child, which had been awarded to her in four custody hearings but was taken away from her on the fifth hearing, she assumed a fictitious name. Under the record of harassment to which her former husband had subj ected her we believe she is not entitled to great criticism for such action. In any event, the jury heard all witnesses, including the father of the child, and found that since the former judgment entered on December 3, 1963, granting custody of the child to its father there has occurred such a material change of conditions that the best interests of said minor child require a change of custody to its mother. We do not believe one can study this record objectively and come to any other conclusion. The jury was instructed:

“ * * * that not every change in conditions justifies the modification of a former decree awarding the custody of the minor child. Such changed conditions must be such as effect the welfare and best interest of the child and be of such nature that to leave the custody of the child as previously adjudicated would be injurious to the welfare of the child and requires that such custody be changed.”

The father admitted in effect that he and the child were not acquainted and that if he should be awarded its custody he would go back to the motel and if necessary spend a week getting acquainted with him.

Where parents have already made a failure of their marriage the courts of this state in awarding custody must look to the best interests and welfare of the victims of such failure, the children. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787.

The jury has spoken in this case and appellant points to the effect that there is no evidence and insufficient evidence to support the court’s judgment based upon such verdict and that the court abused its discretion in not granting appellant’s application for writ of habeas corpus are without merit.

Appellant also urges error of the court in failing to grant full faith and credit to a valid decree in a sister state. Our Supreme Court settled that point to the contrary many years ago in Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293, when it held:

“It is no longer an open question in American jurisprudence that a child custody judgment is res judicata only of what was then before the court, and that far only is protected by the ‘full faith and credit’ clause of the Federal Constitution, article 4, § 1. A subsequent material change of conditions brings into being a new and independent cause of action. The original custody judgment may be absolute and final in form. In reality, it is temporary and conditional. Whether expressed or not, the law writes into each of such judgments, in substance, that its finality ends when and if conditions affecting the welfare of the child have materially changed. So that it may be said that a petition alleging such facts is in no sense an attack upon such former judgment, but is an independent suit, having to do with a present status * *

Our Supreme Court has more recently said, “petitioner invoked the jurisdiction of the Texas court by bringing the habeas corpus proceeding * * *. He cannot now be heard to complain of the taking of such jurisdiction.” Short v. Short, 163 Tex. 287, 354 S.W.2d 933.

Accordingly, the judgment of the trial court is in all things affirmed.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Alonzo Virgil SELMAN, Appellant.
    No. 51096.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.
    Norman H. Anderson, Atty. Gen., Clyde Burch, Asst. Atty. Gen., Jefferson City, for respondent.
    Patrick M. Keating, Kansas City, for appellant.
   BARRETT, Commissioner.

In an information appropriately charging the offense, it was alleged that on April 4, 1964, the appellant Alonzo V. Selman with malice aforethought and intent to kill, shot at Clifford O. Dempsey, a policeman. Section 559.180. RSMo 1959, V.A.M.S.; State v. Broyles, 317 Mo. 284, 295 S.W. 550. A jury found Alonzo guilty as charged and fixed his punishment at ten years’ imprisonment.

In brief the circumstances adduced by the state were that on April 4, 1964, at 3:30 a. m. uniformed officers Dempsey and Foote and their dog Silver War of the K-9 Corps were parked in the middle of the block of Campbell Street at Campbell and Harrison in Kansas City when they heard several shots in succession. They did not know it at the time but these shots, according to the appellant and his brother-in-law Lewis, were fired by Lewis at Joe Canady who when apprehended had two bullet wounds in the small of his back. In any event, immediately after hearing these shots nearby, the officers looking across a vacant lot saw a man running north on Campbell (this man turned out to be Canady) and Dempsey or Foote commanded him to halt after announcing that they were “police officers.” Dempsey with his dog ran ahead of Foote in pursuit of the fleeing man and left Foote walking behind and across 17th Street. And Foote says, “At this point I observed — I looked to my left, which would have been up on Campbell, and I observed a man (the appellant Selman) step out into the light, it appeared that he stepped off the curb, and had a revolver in his hand and was following Corporal Dempsey.” Then he said, “As I watched this man aiming his revolver at Corporal Dempsey, I yelled for him to drop it, police officers. * * * I yelled it just once and at the end of this he fired one shot. * * * I heard it and saw the muzzle blast. * * * As soon as the shot went off he turned and brought the pistol back toward me. * * * As he turned onto me with the revolver I drew my service revolver and fired. * * * It was pointed at me, and after the — after I fired the first two shots, he turned (indicating) and brought the pistol around like this (indicating) onto his— twisted his left shoulder, and then brought it back around at about waist high (indicating) and continued toward me. * * * as he got closer to me, I was attempting to reload my revolver and I could hear a clicking.” When Alonzo was but eight to ten feet away Sergeant Barnes arrived on the scene and fired one shot over the hood of his automobile but Alonzo continued on towards Foote with his gun in his hand and finally Foote “knocked him down with my service revolver.” Dempsey returned with Canady and Canady and the appellant were taken to the city hospital. The appellant’s gun was “a .22 caliber foreign made blank revolver, that has been altered * * * for firing live ammunition” and in the gun there was one spent shell and four .22 caliber cartridges with “firing pin” impressions on the cases. Selman in testifying said that it was dark and he did not know there were police officers around. He claimed that he was shooting at Canady but obviously the jury did not believe him and the briefly noted evidence supports the charge. State v. Taylor, Mo., 182 S.W. 159; State v. Golden, Mo., 40 S.W.2d 1044.

In the appellant’s motion for a new trial there are but two assignments of error and since they both relate to remarks by the trial judge may be considered together. The first complaint is that after three prospective jurors had been excused assertedly because of their admitted prejudice the court “admonished the remainder of the jury panel that their prejudices should have been left at home when they reported for jury duty.” It is said that this remark deprived the appellant of a fair trial and infringed his state and federally guaranteed constitutional rights. The second assignment is that in the course of the trial “the Court engaged in a conversation with one of the jurors, commenting on the evidence, in violation of Rule 26.09.”

The first of these assignments is based on an incident occurring on page 32 of an 87 page examination on voir dire. After two prospective jurors had said “Oh, I am afraid I would be inclined to lean to the Police Department on that. In other words I don’t think I could render a fair decision (on) it,” the court excused them and then made this statement: “Members of the Jury, a defendant, and the State, each, in a criminal case are entitled to a fair and impartial jury. The members of the jury will take an oath to decide the case fairly and impartially and on the evidence they hear from this court room, and leave their prejudices at home. Now if there is anybody that cannot do that, raise your hands. Proceed, Counsel.” Defense counsel objected “to the remarks of the Court as tending to influence the answers of the prospective jurors in this case.” Aside from the lack of detailed specificity in his motion for a new trial and aside from the fact that the motion is not based upon the objection made and is not particularly enlightening as to the meaning of either, it just simply does not appear how the court’s remarks could by any stretch of the imagination be construed as prejudicial to the appellant’s right to a fair trial. The court’s admonition is not too different from the general and cautionary instruction that may be given in any case (MAI 2.01, 53 Am.Jur. (Trial) Sec. 77, p. 76,) in any event the remark could not be construed as a comment on the evidence or as expressive of an opinion on the merits of the case and in its context was not prejudicial to the appellant. State v. Schubkegel, Mo., 261 S.W.2d 933, 935.

The second matter arose when the state was offering in evidence exhibits, particularly “the shell casing and the bullet,” to which the court had said, “I don’t like the idea of passing live ammunition to this jury.” At this juncture a juror inquired, “Are we allowed to ask questions ? ” The court said, “That depends. What question do you have? ” The juror replied, “I would like to know how he (the police department’s ballistics technician) knows the shells in that box came out of that gun if he didn’t fire the gun. How did he get — did he take a photograph of the hammer, or whatever you call it? * * * Well, I might not have been listening, or I might be so dumb I don’t know.” The officer was answering “The reason I say I did not fire the gun is because I did not consider it safe, but the officer who unloaded it stated to me that — ” and there was an objection “as being an invasion of the Court’s province — .” The court interrupted, “Yes, that is not proper. It has already been established that the live cartridges found in the State’s Exhibit — 1, and that the four — that the four live cartridges were found in State’s Exhibit 1, and the one expended— * * * fired cartridge was taken from State’s Exhibit 1. Hasn’t that been the evidence ? ”

The court’s statement was unnecessary and probably should not have been made but in this particular instance and in the context of the trial could not possibly constitute an infringement of the defendant’s right to a fair trial. As indicated by the court the fact of the shells had been established by all of the state’s witnesses and in addition in testifying on direct examination the appellant said “Yes, that is my gun. Absolutely. * * * I turned around and fired. Q. How many times ? A. One. I had five alive in there. That hadn’t been fired.” In part, the court’s statement was explanatory of its ruling in response to an objection and certainly in view of the tacitly conceded fact could not be construed as an improper comment on the evidence or as manifestly prejudicial to the appellant. State v. Sanders, 76 Mo. 35, 37; State v. Raffie, Mo.App., 60 S.W.2d 668, 671.

The appellant was heard upon his motion for a new trial (Section 546.580 RSMo 1959, V.A.M.S.) and there are no errors upon the record before the court (Criminal Rule 28.02) and since there is no merit in the assignments of error in the motion for a new trial the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


author: HYDE, Judge.

text:
    Katherine OWINGS, Pro Ami, Appellant, v. Robert WHITE, Respondent.
    No. 51370.
    Supreme Court of Missouri, En Banc.
    June 14, 1965.

      Galen Knowlton, Michael J. Drape, Knowlton & Drape, Kansas City, for appellant.
    Harry Weed, Kansas City, for respondent.
   HYDE, Judge.

Action for damages for personal injuries resulting from collision of two automobiles. The jury found for plaintiff but the trial court sustained defendant’s motion to set aside the verdict and enter judgment in his favor. Plaintiff appealed from the judgment entered for defendant. We transferred the case here on defendant’s application after an opinion of the Kansas City Court of Appeals reversing and remanding for another trial.

The only testimony was that of plaintiff and a police officer. Plaintiff testified that on September 24, 1960, she was riding as a passenger in the second or middle seat of a station wagon behind the driver, Robert White, who was taking plaintiff and his own daughter to go horseback riding. The Rambler station wagon, in which plaintiff was a passenger, was going south on Elmwood and was involved in a collision with another automobile at the intersection of Elmwood and Blue Parkway. There was a stop sign for traffic on Elmwood and the defendant White stopped at the stop sign. When White started to make a left turn to go east on Blue Parkway, his automobile was struck by a westbound car on Blue Parkway. The front end of White’s station wagon was almost to the middle of Blue Parkway when the accident occurred. The plaintiff saw the other vehicle just before it hit and it was going west at that time. Plaintiff remembered nothing further after hitting her head on the back of the seat until she woke up on the ground. At the time of the accident, the plaintiff was 13 years old.

Blue Parkway is an east and west street and Elmwood runs north and south. At the time there was a stop sign for southbound traffic on Elmwood. There were no stop signs or traffic controls for traffic on Blue Parkway. Elmwood does not continue south at that intersection and a person going south on Elmwood has to turn either east or west. To the east on Blue Parkway from Elmwood, there is a slight incline up to a bridge which is four or five hundred feet from the scene. At the northeast corner of this intersection, there is a one-story brick building which sits back from the curb line about 25 or 30 feet.

Fred Guenther, a member of the Kansas City Police Department, did not witness the accident, but investigated it before the cars were removed. In his investigation he found a 1957 Pontiac, which had been operated by Mr. Moody Haynes westbound on Blue Parkway, had been involved in an accident with a 1958 Rambler station wagon being operated by Mr. Robert White proceeding south to east from Elmwood to Blue Parkway. Officer Guenther found extensive damage to the front end of the 1957 Pontiac operated by Haynes and extensive damage to the left side of the 1958 Rambler station wagon operated by White. He stated he located debris and also a break in the skidmarks from the Haynes vehicle which he found to be 20 feet west of the east curb line of Elmwood and 15 feet south of the north curb line of Blue Parkway. He was unable to observe any skidmarks on the 1958 Rambler station wagon operated by White. He measured the streets and found Blue Parkway to be 45 feet wide and Elm-wood 40 feet. He talked to Haynes but did not talk to White who was being removed in an ambulance when he arrived.

Service on Haynes was never obtained and plaintiff dismissed as to him without prejudice. The case was submitted on failure to keep a careful and vigilant lookout. The Court of Appeals ruled: “We have reached the conclusion, as did the trial court, that plaintiff did not make a submissible case. There is no evidence that defendant either did or did not look in the direction of the Haynes vehicle before the collision. The only evidence on defendant’s acts is that he was driving the station wagon; that he stopped for the stop sign, and that he started forward, turning to go east on Blue Parkway,” citing Miller v. Wilson, Mo.App., 288 S.W. 997, 999; Levin v. Caldwell, Mo.Sup., 285 S.W.2d 655, 659; see also O’Neill v. Claypool, Mo.Sup., 341 S.W.2d 129, 135. However, the Court of Appeals reversed and remanded the case for a new trial on the theory that plaintiff could have evidence to support her claim of failure to keep a lookout at another trial.

The Court cited as authority for its action Buchanan v. Cabiness, 240 Mo.App. 829, 221 S.W.2d 849, 856, and Turner v. Anderson, 236 Mo. 523, 543, 139 S.W. 180, 185; also saying: “Both the statute, Sec. 512.160 V.A.M.S. and Supreme Court Rule 83.13 give us this power.” However, the second subdivision of both this statute and this rule provides: “No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, and materially affecting the merits of the action.” Furthermore, the authority to award a new trial given by the third subdivision of both the rule and the statute is specifically made subject to the above provision. Buchanan v. Cabiness, supra, was not a case in which the trial court had properly rendered judgment for the defendant, without any error committed against the plaintiff, as here. Instead it was a case where a judgment was rendered erroneously for the plaintiff therein and had to be reversed. In that situation, the judgment of the trial court could not be affirmed and when a judgment must be reversed, because of the error, the appellate court has discretion to remand where the record indicates that by doing so the ends of justice will be subserved. See the many cases cited in West’s Missouri Digest, Appeal and Error, The rule applicable to the situation herein presented (judgment for defendant without error) was thus stated by the Kansas City Court of Appeals in Power v. Benson Banking Co., 99 S.W.2d 109, 110: “The plaintiff suggests that the judgment should be reversed and the cause remanded so that upon ‘a retrial of the case’ proof may be made showing that the claim was duly presented to the commissioner. In the absence of error inhering in the record, this court does not have power to reverse the judgment. Error does not appear in the record. The judgment is affirmed.” Likewise, if a plaintiff obtained a judgment without error, the defendant could not have it reversed and remanded on the theory that he might make a better defense on retrial.

The other case cited by the Court of Appeals, Turner v. Anderson, supra, was a will contest in which the trial court committed error by instructing the jury that there was no evidence of mental incapacity of the testator but submitted the case on undue influence; and contestants had a verdict and judgment setting the will aside on that ground. This court held the evidence insufficient to entitle contestant to go to the jury-on undue influence but that the trial court erred in its ruling that contestant failed to make a case for the jury on testamentary incapacity. Therefore, the judgment had to be reversed and the court properly remanded for a new trial on the issue the evidence did support. This is not authority for remand of a case in which no error was committed against the losing party.

The judgment of the trial court herein is affirmed.

All concur.

WOLFE Special Judge, concurs.


author: HIGGINS, Commissioner.

text:
    William S. MORRIS, Robert L. Mehornay, Jr., Carl E. Enggas, and Clyde L. Linde, as the Board of Election Commissioners of Jackson County, Missouri, and Jackson County, Missouri, Respondents, v. KANSAS CITY, Missouri, Appellant.
    No. 51136.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    R. Robert Cohn, John C. Thurlo, Kansas City, for respondent Board of Election Com’rs of Kansas City.
    Harold L. Fridkin, County Counselor, Kansas City, for respondent Jackson County.
    Herbert C. Hoffman, City Counselor, John J. Cosgrove, Assoc. City Counselor, Kansas City, for defendant-appellant.
   HIGGINS, Commissioner.

Declaratory judgment action in which it was adjudged that defendant was liable for one half of the $44,091.66 annual rental or the $151,483.50 purchase price of voting machine adapters, and denied defendant recovery of $22,045.83 paid to Jackson County. Defendant has appealed.

In 1953 the people of Kansas City and Jackson County, Missouri, voted bonds for the purchase of voting machines and, in 1954, the Kansas City Election Board purchased 687 Shoup voting machines out of bond proceeds. These machines could list candidates for each office in a primary election in a single vertical column in the order of their filing if there were less than 50 candidates. The 1960 Democratic Primary Election was the first election following acquisition of the machines in which there were more than 50 candidates. In 1962, in order to comply fully with the law, the board secured adapters which had been invented in 1961, by which candidates for each office could be listed in a single vertical column even though there were more than 50 candidates. The adapters were leased at an annual rental of $44,091.66 with right to purchase for $151,483.50. Kansas City paid $22,045.83 rental in 1962, but has since refused to pay on the theory that the rental was not an operating cost within the meaning of Section 121.050, RSMo. 1959, V.A.M. S.

Appellant, in stating its sole point on this appeal, asserts: “Since taking our appeal from the judgment in this case we have concluded that there was no error in said judgment.”

The precise question occasioned by this concession has not been presented previously in Missouri. It has, however, been ruled in at least four cases from other states. In Horne v. Burnett’s Lumber & Supply Co., 208 Miss. 448, 44 So.2d 536, the appellant’s brief stated: “Appellant * * * respectfully shows that upon careful examination of this record, there is no error which he can with confidence assert * * The court commended the course adopted by the appellant, “ * * * viewed with delight and admiration the appellant’s spirit of fairness and frankness * * * ” in confessing his lack of defense, and affirmed the judgment below. In reliance on that case the same result was reached in Ed Tutor v. State, Miss., 54 So.2d 171; and to the same effect are Page v. Southern Bell Telephone & Telegraph, 40 Fla. 425, 25 So. 62, and Nicholson v. E. P. McGovern Undertaking Co., 41 Colo. 1, 92 P. 225.

A situation closely akin was presented in Feste v. Newman, Mo., 368 S.W.2d 713, 714 [1,2], where it was stated that “In her point plaintiff sets forth no action or ruling of the trial court which is contended to be erroneous. In fact, in the argument she states that she ‘is frankly and openly arguing that she should lose her appeal.’ She only contends * * * that if Jean Denton prevails on her appeal, there should be a new trial of the issues not only between her and Jean Denton but also between her and Billy Newman. However, she is entitled to such new trial only for error prejudicial to her, and after she has properly preserved and presented her contention of error for appellate review. * * * Billy Newman has filed a motion to dismiss the appeal of plaintiff for the reason that her brief fails to comply with Civil Rule 83.05, V.A.M.R. * * * we agree and conclude that the appeal should be dismissed.”

Civil Rule 83.05(e), V.A.M.R., provides: “The points relied on shall * * state what actions or rulings of the Court are claimed to be erroneous and * * * state why it is contended the Court was wrong * * Under this rule we have refused to consider specific points on appeal because of abandonment or waiver due to failure to comply with the rule. See for recent examples, Ayres v. Keith, Mo., 355 S.W.2d 914, 919 [6,7] (failure to brief points); State v. Brookshire, Mo., 325 S.W.2d 497, 500 [7] (failure to state why previous ruling is incorrect); Holt v. Queen City Loan & Investment, Inc., Mo., 377 S.W.2d 393, 400 [13] (failure to cite authority). Appellant has, in effect, abandoned any assignment of error, and thus has failed to comply with Rule 83.05, which failure is ground for and results in a dismissal of the appeal.

Appellant, however, and without citation of authority, urges us to consider certain facts admittedly dehors the record; and, upon such facts, to render a modification of the judgment or to reverse and remand the case for a consideration of such facts by the court below. We have already demonstrated that no point of error has been presented upon which to consider the merits of the case for affirmance or reversal; and, under Section 512.160, RSMo. 1959, V.A.M.S., and Civil Rule 83.13, “No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, and materially affecting the merits of the action.” We have held: “In the absence of error inhering in the record, this court does not have power to reverse the judgment.” Power v. Benson Banking Co., Mo.App., 99 S.W.2d 109, 110; Owings v. White, Mo., 51,370, 391 S.W.2d 195. And, to consider the suggested facts and result alleged to flow therefrom would be to allow presentation of a theory for the first time in this court, a practice which is not permitted. Stevens v. Missouri Pac. R. Co., Mo., 355 S.W.2d 122, 127 [1,2]; Grimes v. Armstrong, Mo., 304 S.W.2d 793, 799 [9]; M. F. A. Mutual Ins. Co. v. Southwest Baptist College, Inc., Mo., 381 S.W.2d 797, 803 [6].

Accordingly, the appeal is dismissed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.