text:
    Owen J. DUKE, Ann Duke Underwood and husband, Billy Eugene Underwood, Appellants, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, a Corporation, Appellee.
    No. 7791.
    Court of Civil Appeals of Texas. Texarkana.
    March 7, 1967.
    Rehearing Denied March 28, 1967.

      Franklin Jones, Sr., Jones, Jones & Baldwin, Marshall, J. Alex Blakeley, Dallas, for appellants.
    Jack W. Flock, Michael A. Hatched, Ramey Brelsford, Flock & Devereux, Clyde W. Fiddes, Tyler, Albert B. Tarbutton, Jr., Daingerfield, for appellee.
   DAVIS, Justice.

On July 14, 1962, Eddie Bolin Duke was driving a car within the City Limits of Omaha, Morris County, Texas, and while crossing a railroad the car was struck by a train belonging to St. Louis Southwestern Railway Company, which resulted in the death of Eddie Bolin Duke. Plaintiffs-appellants, Owen J. Duke, Ann Duke Underwood (daughter of Owen J. and Eddie Bolin Duke) and husband, Billy Eugene Underwood, sued plaintiff-appellee, St. Louis Southwestern Railway Company, for damages. Trial was to a jury. The jury answered the special issues as follows:

(Omitting the instructions, definitions, and issues not answered.)
“SPECIAL ISSUE NO. 1
“Do you find, from a preponderance of the evidence, if any, that the conditions surrounding the crossing in question immediately prior to the collision in question were such as to render such crossing more than ordinarily dangerous as the term is hereinafter defined?
ANSWER: ‘WE DO’ OR ‘WE DO NOT.’
ANSWER: WE DO
“SPECIAL ISSUE NO. 2
“Do you find, from a preponderance of the evidence, that the Defendant, St. Louis Southwestern Railway Company, knew, or by the exercise of ordinary care should have known prior to the collision in question, that the crossing in question was more than ordinarily dangerous, if you have so found?
ANSWER: ‘YES’ OR‘NO.’
ANSWER: Yes
******
“SPECIAL ISSUE NO. 3
“Do you find from a preponderance of the evidence, that the failure of the Defendant, St. Louis Southwestern Railway Company, to install an automatic electric signal or warning device at the crossing in question, prior to the time of the said collision, was negligence on the part of said Defendant?
ANSWER: ‘YES’OR‘NO.’
ANSWER: No
******
“SPECIAL ISSUE NO. 5
“Do you find, from a preponderance of the evidence, that the Defendant failed to keep its right-of-way free of obstruction to the view of travelers approaching the crossing in question from the South going North?
ANSWER ‘YES’ OR ‘NO.’
ANSWER: Yes
******
“SPECIAL ISSUE NO. 6
“Do you find, from a preponderance of the evidence, that such failure to keep its right-of-way clear of obstructions, if any you have so found, was negligence ?
ANSWER: ‘YES’ OR ‘NO.’
ANSWER: Yes
******
“SPECIAL ISSUE NO. 7
“Do you find from a preponderance of the evidence, that such failure of the Defendant to keep its right-of-way free of obstructions, if any you have so found, was a proximate cause of the death of Mrs. Duke?
ANSWER: ‘YES’OR‘NO.’
ANSWER: No
“SPECIAL ISSUE NO. 8
“Do you find from a perponderance of the evidence that at the time and on the occasion in question the Defendant’s train was being operated at an excessive rate of speed under the circumstances ?
ANSWER ‘YES’ OR ‘NO’
ANSWER No
‡ ⅛ ⅜ ⅜ sjc ‡
“SPECIAL ISSUE NO. 10
“What amount of money, if any, do you find, from a preponderance of the evidence, would, if paid now in cash, reasonably compensate the Plaintiff, Mr. Owen J. Duke, the husband of Mrs. Duke, for the losses sustained by him, if any, as a result of the death of his wife?
ANSWER BY STATING THE AMOUNTS, IF ANY, IN DOLLARS AND CENTS, OR NONE.
ANSWER: $30,000.00
⅜ ‡ ⅜ ⅜ ⅜ ⅛
“SPECIAL ISSUE NO. 11
“Do you find from a preponderance of the evidence that as defendant’s engine was approaching the said crossing on the occasion in question within approximately 1500 feet, if it was, that such engine omitted a signal audible from such a distance ?

Answer: ‘We do.’ or ‘We do not.’

ANSWER We do

******
“SPECIAL ISSUE NO. 12
“Do you find from a preponderance of the evidence that at such time and place, the Defendant’s engine, by reason of its speed or nearness to such crossing was an immediate hazard?
Answer ‘We do.’ or ‘We do not.’
ANSWER We do not
******
“SPECIAL ISSUE NO. 13
“Do you find from a preponderance of the evidence that the Defendant’s train was plainly visible before Eddie Bolán Duke’s vehicle reached a point fifteen (15) feet from the nearest rail of the railroad track upon which the train was approaching?
Answer ‘We do’ or ‘We do not.’
ANSWER We do
******
“SPECIAL ISSUE NO. 14
“Do you find from a preponderance of the evidence that the Defendant’s train was in hazardous proximity to the crossing in question before Eddie Bolán Duke’s vehicle reached a point fifteen (15) feet from the nearest rail of the railroad track upon which the train was approaching ?
Answer ‘We do’ or ‘We do not.’
ANSWER We do not
******
“SPECIAL ISSUE NO. 15
“Do you find from a preponderance of the evidence that after Eddie Bolin Duke stopped her vehicle within fifty (SO) feet but not less than fifteen (15) feet from the nearest rail of the railroad track upon which the train was approaching, she then proceeded when she could not do so safely?
Answer ‘We do’ or ‘We do not.’
ANSWER We do not
* * * * * *
“SPECIAL ISSUE NO. 17
“Do you find from a preponderance of the evidence that at the time place and on the occasion in question Eddie Bolin Duke failed to keep a proper lookout ?
Answer ‘We do.’ or ‘We do not.’
ANSWER We do not
* * * * * *
“SPECIAL ISSUE NO. 19
“Do you find from a preponderance of the evidence that the failure of Eddie Bolin Duke to remove herself from the vehicle was negligence, as that term has herein defined ?
Answer ‘Yes’ or ‘no’
ANSWER Yes
* * * * * *
“SPECIAL ISSUE NO. 20
“Do you find from a preponderance of the evidence that such negligence, if any you have found in answer to the preceding issue, was a proximate cause of the collision?
Answer ‘Yes’ or ‘no.’
ANSWER No
“SPECIAL ISSUE NO. 21
“Do you find from a preponderance of the evidence that immediately before the collision in question Eddie Bolin Duke stopped her vehicle upon the main line of the Defendant’s tracks?
Answer ‘We do or We do not.’
ANSWER We do not
******
“SPECIAL ISSUE NO. 24
“Do you find from a preponderance of the evidence that at the time and on the occasion in question Eddie Bolin Duke failed to apply the brakes on her vehicle in sufficient time to avoid the collision?
Answer ‘We do’ or ‘We do not.’
ANSWER We do
* * * * * *
“SPECIAL ISSUE NO. 25
“Do you find from a preponderance of the evidence that such failure, if any you have found in answer to the preceding issue, was negligence?
Answer ‘We do.’ or ‘We do not.’
ANSWER We do not
******
“SPECIAL ISSUE NO. 27
“Do you find from a preponderance of the evidence, if any, that under all the facts and circumstances before you, the Defendant’s crew was, at the time of the collision, acting under an emergency?
Answer ‘It was an emergency’ or ‘It was not an emergency’.
ANSWER It was an emergency
******
“SPECIAL ISSUE NO. 28
“Do you find from a preponderance of the evidence, if any, that after the emergency, if any, arose Defendant’s train crew did what ordinary prudent persons would have done under the same or similar circumstances ?
Answer ‘We do’ or ‘We do not’.
ANSWER We do
******
“SPECIAL ISSUE NO. 29
“Do you find from a preponderance of the evidence that the emergency, if any, as inquired about was the sole proximate cause of the collision in question ?
Answer ‘We do’ or ‘We do not’.
ANSWER We do not
“SPECIAL ISSUE NO. 30
“Do you find from a preponderance of the evidence that the death of Eddie Bolin Duke was not the result of an unavoidable accident?
‘Unavoidable accident’ as that term is used in this issue, means an event which occurs without having been proximately caused by the negligence, if any, of any party to it.
“If you so find, let the form of your answer be ‘It was not an unavoidable accident’ or ‘It was an unavoidable accident.’ Answer It was not an unavoidable accident.”

Before the court accepted the answers of the jury, plaintiffs-appellees moved the court to refuse to accept the jury verdict and to retire the jury in order to resolve irreconcilable conflict in the findings of the jury in answer to the special issues submitted. This motion was overruled by the trial court.

Plaintiffs-appellees also filed their motion for a mistrial before the judgment was signed and entered. This motion was overruled in the final judgment of the court. The judgment of the court, after reciting that the case had been submitted to the jury and the jury’s answers to the special issues, went on to say:

“Before receiving the verdict of the Jury as so returned, the Court examined the same and requested Counsel for the Plaintiffs and Defendant, respectively, to indicate wheather they thought the verdict was one that could be received, whereupon Council for Plaintiffs advised the Court that there was a conflict in the verdict and findings of the Jury in that the findings that the death of the deceased was proximately caused by the negligence of the deceased or the Defendant, or both, was in conflict with the findings of the Jury that there was not any negligence on the part of the deceased or the Defendant which proximately caused the death of the deceased, and further Plaintiff’s Counsel advised the Court that the jury findings of no negligence which was a proximate cause of the collision on the part of the deceased or the Defendant conflicted with the Jury findings on unavoidable accident, and said counsel for the Plaintiffs’ moved the Court to retire the jury so that they could consider further their verdict and reconcile their conflict.
“The Court denied the request of counsel for the Plaintiffs for the jury to be retired for further deliberation, and brought the jury in and Plaintiff’s counsel thereupon requested that the jury be polled; whereupon, the Clerk of the Court read the Special Issues and answers thereto, in consecutive order, and once to the jury collectively, then called the name of each juror separately and asked each juror if the verdict read was his verdict, and each and all of the jurors replied in the affirmative, whereupon the findings and answers to all of the Issues were received by the Court and were filed and entered of record.
“The Court beong of the opinion that the motion for Judgment on the verdict being on file by the Defendant should be granted and concluded that Plaintiffs’ motion for a Mistrial on file should be overrulled and Judgment entered on the verdict in favor of the Defendant St. Louis Southwestern Railway Company.
“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Motion of the Plaintiffs for a mistrial be, and the same is, hereby overruled, and that the motion of the Defendant for Judgment on the verdict of the Jury be granted, and that Plaintiffs, Owen J. Duke and Ann Duke Underwood and husband, Billy Eugene Underwood, and each of them, take nothing of and from the Defendant, St. Louis Southwestern Railway Company, and that all costs of Court be taked against the Plaintiffs, jointly and severally, for which execution may issue.”

From this judgment, appellants have perfected their appeal and bring forward only one point of error, which reads as follows:

"Point One
THE COURT ERRED IN FAILING TO GRANT THE APPELLANTS’ MOTION FOR MISTRIAL AND NEW TRIAL BECAUSE OF THE IRRECONCILABLE CONFLICT IN THE FINDINGS OF THE JURY ON THE ONE HAND THAT THE NEGLIGENCE OF NEITHER THE DECEASED NOR THE APPELLEE PROXIMATELY CAUSED THE DEATH OF THE DECEASED, AND THE FINDING ON THE OTHER HAND THAT THE NEGLIGENCE OF EITHER OR BOTH THE DECEASED AND APPELLEE DID PROXIMATELY CAUSE THE DEATH.”

Appellant did not file a motion for new trial. Appellee has filed a motion to dismiss the appeal because the appellant did not file a motion for new trial and raise the point of error and permit the trial court to again pass upon the same. Appellant did file a motion for mistrial. Ap-pellee relies upon Rule 324, Texas Rules of Civil Procedure. The pertinent parts of Rule 324 reads as follows:

“In all cases tried in the county or district court, where parties desire to appeal from a judgment of the trial court, a motion for new trial shall be filed as a prerequisite to appeal; provided that neither a motion for new trial nor an assignment therein shall be a prerequisite to the right to complain on appeal of the action of the court in giving a peremptory instruction, or in withdrawing the case from the jury and rendering judgment, or in rendering or refusing to render judgment non obstante veredicto or notwithstanding the finding of the jury on one or more special issues, or in overruling a motion for judgment on the verdict made by the party who becomes appellant; nor shall a motion for new trial be required in a nonjury case or in a case where the appeal is based upon some error of the trial court arising after its action upon the motion for new trial.” * * * (Emphasis added.)

In their first motion, appellants pointed out that the answers of the jury were in irreconcilable conflict and moved the court to send the jury back to reconsider the same. They also filed a motion for mistrial based upon the ground that the answers of the jury were in irreconcilable conflict. This was all done after the jury had answered the special issues and before a judgment had been signed and rendered. It appears that the motion for mistrial takes the same place as a motion for judgment non obstante veredicto which is definitely permitted by Rule 324. Miller v. Miller (TCA 1954) 274 S.W.2d 762, W.R.; Fenley v. Ogletree (TCA 1955) 277 S.W.2d 135, W.R., N.R.E.; City of San Antonio v. Gonzales (TCA 1957) 304 S.W.2d 429, W.R., N.R.E.; Tindall v. Tacconelly (TCA 1959) 328 S.W.2d 909, W.R., N.R.E.; Wagner v. Foster (TSC 1960) 161 Tex. 333, 341 S.W. 2d 887.

In the event we are wrong in holding that a motion for new trial was not a prerequisite to the appeal, since the same point of error was raised in a motion for mistrial, the motion could be construed as a motion for new trial under the last paragraph of Rule 306c T.R.C.P., as amended April 12, 1962, effective September 1, 1962, which reads as follows:

“No motion for new trial or appeal bond or affidavit in lieu thereof or notice of appeal shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment the motion assails, and every such appeal bond or affidavit or notice of appeal shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment appealed from or from the date of the overruling of motion for new trial, if such a motion is filed.”

The appeal bond and transcript were timely filed. If the filing of a motion for new trial is a necessary prerequisite to raising the point of error, it is no grounds to dismiss the appeal. If appellants waived the point of error by the failing to file a motion for new trial, we are in error in considering the same.

As a result of the motion for mistrial, we have carefully studied Wagner v. Foster, supra. We do not find anything in that opinion which requires a motion for new trial when the complaining party has raised the point of error in their motion for mistrial before the judgment is signed and entered. We think that part of Rule 324, which says, “notwithstanding the finding of the jury on one or more special issues”, is controlling in the case at bar. In 41 Tex. Jur.2d 27, Sec. 1, in the definition of a motion for new trial, we find the following: “The purpose of a motion for new trial is to give the trial court an opportunity to pass on questions that he has not theretofore had an opportunity to pass on.” Emphasis added. The trial court had already had the opportunity to pass upon the motion for a mistrial and he did so in the judgment.

The motion to dismiss the appeal is overruled.

As we consider the point of error, we are confronted with two irreconcilable conflicts in the jury’s findings. This seems to be exactly the position that was taken by the appellant in Bradford, et al v. Arhelger (TSC 1960) 161 Tex. 427, 340 S.W.2d 772. In that case, the trial court overruled the motion for mistrial and entered a judgment for the appellee. We, like the Supreme Court, are confronted with two irreconcilable conflicts. In this case, the conflicts are a little different than those in the Bradford case. In the Bradford case, the Supreme Court was confronted with the conflict between the finding of unavoidable accident and the finding that the defendant’s negligence was a proximate cause of the injuries and a conflict between the finding of unavoidable accident and the finding that the plaintiff’s negligence was a proximate cause of the injuries.

In this case, the conflicts are as follows: The findings of the jury that appellee was guilty of certain negligence as revealed by the foregoing special issues, and that the negligence was not the proximate cause of the injuries. Then, the finding of the jury that the accident was not unavoidable. This presents an irreconcilable conflict of the jury’s findings. Likewise, the jury found that Mrs. Duke was guilty of negligence, but her negligence was not a proximate cause of the injuries. Then, the jury found that the accident was not unavoidable. This presents an irreconcilable conflict of the jury’s findings.

In the Bradford case, supra, the Supreme Court said:

“Applying the test to the second conflict: If we disregard the finding of unavoidable accident and consider all of the rest of the verdict, a judgment for the defendant would be required because of the finding that the plaintiff’s negligence was a proximate cause of the collision. If we disregard the finding that the plaintiff’s negligence was a proximate cause of the collision and consider all of the rest of the verdict, we are left with findings that the defendant’s negligence was a proximate cause of the collision and that the collision was an unavoidable accident. Quite obviously, in that situation a judgment could not be rendered for the defendant. The situation which then confronts us is just as though the jury had found that the plaintiff was not negligent, that the defendant’s negligence was a proximate cause of the collision and that the collision was an unavoidable accident. Such findings are themselves in fatal conflict and will not support a judgment. Bransford v. Pageway Coaches, 129 Tex. 327, 104 S.W.2d 471; Texas Interurban Railway Co. v. Hughes, Tex.Com.App., 53 S.W.2d 448.”

The Supreme Court went on to say:

“The instant case presents jury findings which clearly indicate that this particular concept was unsound.”

They went on to hold that they could not permit a verdict to stand where the findings were in such conflict. As indicated above, the jury findings in this case are in irreconcilable conflict.

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


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    Mrs. Viola Walker MARSHALL, Appellant, v. Mrs. Erie Darnall LAND et al., Appellees.
    No. 16857.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 24, 1967.
    Rehearing Denied March 31, 1967.

      Elvin E. Tackett, Ft. Worth, for appellant.
    Douglas Riley, Jr., of Hassell & Riley, Dallas, for appellees.
   DIXON, Chief Justice.

Appellant Mrs. Viola Walker Marshall, widow of W. E. Marshall, brought suit against her daughter, Mrs. Erie Darnall Land, her daughter’s husband, Henry L. Land, and her granddaughter, Linda Dar-nall, appellees herein, seeking judgment for title to her one-half community property interest in shares of stock in Franklin Insurance Company.

Appellant alleges that without her knowledge her husband, W. E. Marshall, several years before his death had executed an alleged trust instrument naming their daughter Mrs. Land as Trustee and had transferred legal title to all the shares of stock to the named Trustee. She further alleges that said alleged trust instrument cannot have the effect of depriving her of her community interest in the property because it was not a gift inter vivos and because it was an illegal attempt by her husband to make a testamentary disposition of her Community interest.

Both appellant and appellees filed motions for summary judgment. The motion of appellant was overruled. The motion of appellees was sustained.

The material facts are undisputed. Appellant and W. E. Marshall were married in the year 1905 and remained husband and wife until his death on August 4, 1965. During their marriage they acquired 760 shares of stock in Franklin Insurance Company. Over the years the number of shares had increased by reason of stock dividends and the splitting of stocks. They had acquired a value at the time of W. E. Marshall’s death in 1965 of approximately $99,-957. It is undisputed that all these shares of stock are community property.

On August 23, 1960 W. E. Marshall alone executed the instrument in question. By this instrument it was provided that all the shares of stock should be transferred to the daughter, Erie Darnall Land, as Trustee. However, the instrument by its express terms required the Trustee to obey instructions and directions of W. E. Marshall in regard to management and control of the stocks both as to corpus and income, and that it could be revoked at any time by W. E. Marshall. The instrument further provided that upon the death of W. E. Marshall and the termination of the trust, the property should go to the granddaughter, Linda Darnall. On August 7, 1961 the instrument was amended to provide that upon the death of W. E. Marshall the stocks should go to the daughter, Erie Darnall Land, or if she be not living then to the granddaughter, Linda Darnall, or if she be not living then to the descendants of Linda Darnall, or if there be no such descendants, then to the heirs at law of appellant Viola Walker Marshall and W. E. Marshall.

Pursuant to the terms of the instrument W. E. Marshall endorsed the stock certificates to Mrs. Erie Darnall Land and on September 29, 1960 the books of Franklin Insurance Company were made to show that the stocks had been so transferred.

Thereafter until his death all dividends on the stocks were turned over by Mrs. Land, as Trustee, to W. E. Marshall pursuant to the terms of the trust instrument. Also on two occasions Mrs. Land upon direction of W. E. Marshall sold several shares of the stock and turned the proceeds over to him.

In an affidavit appellant says that she was not aware that her husband had transferred the stocks to their daughter until shortly before his death in 1965. Becoming suspicious she wrote to Franklin Insurance Company inquiring as to the status of the stocks. In reply she received from the transfer agent of Franklin Insurance Company a letter dated July 16, 1965 informing her that on September 29, 1960 the stock which was held by William E. Marshall had been transferred to Erie Darnall Land as Trustee, closing the account of William E. Marshall. A copy of the letter is included in the record of this case as an exhibit. This letter was dated only three weeks prior to the death of W. E. Marshall.

In her affidavit appellant also states that W. E. Marshall never told her anything about their business affairs, or volunteered any information on that subject. She did not see the instrument of August 23, 1960 or the amendment of August 7, 1961 until after the death of W. E. Marshall, when the attorney for Mrs. Erie Darnall Land sent copies of the instruments to appellant’s attorney.

In another affidavit appellant swore that after the death of W. E. Marshall there was found in a lock box in the Mansfield State Bank of Mansfield, Texas (to which box only W. E. Marshall and Erie Darnall Land had the right to enter), a letter addressed to her by W. E. Marshall dated August 24, 1964. In this letter W. E. Marshall stated that he was writing the letter to inform her of “the actions I have taken in regard to the property we jointly own, and to assure you that every action was with your welfare in view.” He then explained that he had put the property in a trust fund primarily to save inheritance taxes.

The record indicates that Mrs. Erie Dar-nall Land has faithfully attempted to administer her duties as Trustee. The stocks and money which were not paid over to her father pursuant to the terms of the trust instrument are intact and still on hand. Since the death of W. E. Marshall one check has been received as dividends on the shares of stock. Mrs. Land sent the check in the amount of $896.07 to Mrs. Marshall, who declined to accept it and returned the check to Mrs. Land.

In the petition filed in this case appellees Erie Darnall Land and Linda Darnall were charged with intentional fraud and undue influence in inducing W. E. Marshall to execute the instrument in controversy, but such allegations were withdrawn during the hearing.

In an affidavit Erie Darnall Land, Trustee, stated that in the summer of 1960 her father W. E. Marshall, had come to her home and after discussing her mother’s health and actions, asked her to place him in touch with an attorney who might be able to advise with respect to means to be adopted for looking after himself and her mother. Mrs. Land’s husband suggested an attorney with whom her father thereafter conferred, after which her father executed the instrument dated August 23, 1960. At the time her mother was somewhat unstable and given to temperamental outbursts and acts and conduct. Her condition seemed to be growing worse, as it did in subsequent years. Her mother had exceedingly poor business judgment and was easily swayed in business transactions.

OPINION

In her first point on appeal appellant asserts that the instrument of August 23, 1960 and the amendment of August 7, 1961 by their terms constitute as a matter of law an attempted testamentary disposition by W. E. Marshall of the community property interest of appellant in the shares of stock; therefore the court erred in sustaining appellees’ motion for summary judgment and in overruling appellant’s motion. We agree with appellant.

The instruments plainly undertake to dispose of the shares of stock, including appellant’s one-half community interest therein, by providing that after the deaths of both W. E. Marshall and appellant their daughter Erie Darnall Land shall take the corpus of the alleged trust estate absolutely, or if she be not living the granddaughter shall take absolutely, with further alternative provisions for the testamentary disposition of the property.

It has long been the settled law of this state that neither spouse has the right to make a testamentary disposition of the other’s interest in their community property. Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402; Smith v. Butler, 85 Tex. 126, 19 S.W. 1083; Rogers v. Trevathan, 67 Tex. 406, 3 S.W. 569; Moss v. Helsley, 60 Tex. 426; Brown v. Pridgen, 56 Tex. 124; Conn v. Davis, 33 Tex. 203; Mealy v. Lipp, 16 Tex.Civ.App. 163, 40 S.W. 824, error ref.; C.I.R. v. Chase Manhattan Bank, 5 Cir., 259 F.2d 231. When such a disposition is attempted even in a will which complies with the statutory requirements in regard to wills (we do not hold that the instruments here in question meet those requirements) the surviving spouse may elect whether to take the benefits provided for him or her under the will, or to renounce those benefits and preserve his or her rights to the community property. See 61 Tex.Jur.2d 426-432 and cases there cited. Certainly appellant Mrs. Viola Walker Marshall has made it very plain that she desires to preserve her title and rights to her community interest in the shares of stock in controversy. Appellant’s first point is sustained.

In her second point on appeal appellant says that by retaining his rights and preserving his control of the stocks during his lifetime W. E. Marshall prevented the transfer of the stock from being a gift inter vivos.

Appellees contend that the instrument in controversy provides for a gift inter vivos which the husband, as manager of the community property, had a right to make under authority of Art. 4619, Vernon’s Ann.Civ.St.

Again we agree with appellant. To constitute a gift the donor must part with the title to the thing given immediately and unconditionally. It is not a gift if the donor retains the right to use, control and enjoy the property during his lifetime. Fleck v. Baldwin, 141 Tex. 340, 172 S.W.2d 975; Chaison, et al. v. Chaison, et al., 154 S.W.2d 961, Tex.Civ.App., error ref. w. m.; Olive v. Olive, Tex.Civ.App., 231 S.W.2d 480, writ ref. n. r. e.; 27 Tex.Jur.2d 156. In this case W. E. Marshall in express terms retained the right to control and enjoy both the income and the corpus of the estate during his lifetime. Appellant’s second point is sustained.

In her third point appellant says that the attempt of W. E. Marshall to convey away virtually all of their community property, including her part, was an excessive and capricious gift by the husband. In sustaining appellant’s second point we held that the conveyance did not constitute a gift. Appellant’s third point is overruled.

The substance of appellant’s fourth point is that the disposition made by her husband of her community property interest together with his attempt to dispose of it upon his death was fraud as a matter of law.

As before stated in this opinion appellant has withdrawn her charges of intentional fraud. Nevertheless the husband’s attempt to make a testamentary disposition of her community estate was wrongful and may under present circumstances be termed a legal, or constructive, though not an intentional fraud. In Speer’s Marital Rights in Texas, 4th Ed., Sec. 186, p. 303 it is aptly said, “A husband’s conveyance or disposition of the community may be a legal fraud upon the wife’s rights though not intended to wrong her. There may be an utter absence of intended fraud, yet the transaction may be voidable.” See also Archer v. Griffith, 390 S.W.2d 735, 740, Tex.Sup., 1964; 25 Tex.Jur.2d 618, 619. Appellant’s fourth point is sustained.

In her fifth point appellant attacks the instrument of August 23,1960 on the ground that it creates an “illusory” trust.

In Bogert on Trusts and Trustees, Sec. 211, there is this statement:

“ * * * a spouse creates a trust during his life, generally for his own benefit for life, remainder to others, and often reserving large powers, such as the power of revocation, the power to change the beneficiary of the remainder trust, or the power to appoint the interest which is to mature following his death. The question has arisen whether these trusts are ‘illusory’ as living trusts because of the great amount of control which the settlor has over the subject-matter and therefore are disguised wills, and hence the surviving spouse is entitled to take the statutory share. In many cases the ‘illusory’ position ' has been sustained.”

See also Newman v. Dore, et al., 275 N.Y 371, 9 N.E.2d 966, 112 A.L.R. 643; In re Pengelly’s Estate, 374 Pa. 358, 97 A.2d 844; and Bolles v. Toledo Trust Co., 144 Ohio St. 195, 58 N.E.2d 381, 157 A.L.R. 1164.

Appellant says frankly that there are no Texas cases in regard to illusory trusts and that she has found none in any other jurisdictions where the community property law prevails. We have already held that by the instrument in question appellant’s husband attempted to make testamentary disposition of appellant’s community interest in their property, which he had no right to do; and that the instrument did not convey a gift inter vivos. In view of such holdings we deem it unnecessary to pass on other aspects of the trust agreement, and we shall not do so.

Appellant and appellees are in agreement that there are no fact issues to be resolved in this case. Both sides filed motions for summary judgment. We have concluded that the motion of appellant should have been sustained and that of appellees should have been overruled, and that this court should render judgment accordingly. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400; Lilac Variety, Inc. v. Dallas Texas Co., 383 S.W.2d 193, 196, Tex.Civ.App., 1964, writ ref. n. r. e.

The judgment of the trial court is reversed and judgment is here rendered in favor of appellant Mrs. Viola Walker Marshall that she be awarded title to an undivided one-half interest in and to the 2,562 shares in the corpus of the alleged trust, as of the date of the death of W. E. Marshall together with one-half of the cash received as dividends on such stock since the •date of the death of W. E. Marshall.

In reversing the judgment of the trial •court and rendering judgment here we make no determination and no comment as to the proper disposition of the other one-half of the corpus and income of the trust estate — that is, the community interest of W. E. Marshall as distinguished from the community interest of the appellant Mrs. Viola Walker Marshall.

Reversed and rendered.

       The provisions of the written instrument of August 23, 1960 so far as material to this inquiry may be summarized as follows:
      W. E. Marshall, acting for himself and as manager of the community estate of himself and wife, transferred to his daughter, Erie Darnall Land, as Trustee the following stocks: (Listing them.)
      His purpose was that the stocks should be owned and held by the Trustee for the benefit of himself and wife, and administered as herein provided:
      1.The Trustee should own and manage the property, subject to the limitation hereinafter set forth, and should have the right to dispose of or encumber the property in such manner as would be in the best interest of the beneficiariep and most effective in carrying out the purpose of the trust.
      2. Similar to the above paragraph 1.
      3. The Trustee, at not less than quarterly intervals, must pay over to W. E. Marshall during his lifetime all dividends, interest and profits arising from the securities, deducting only actual expenses for handling the trust property.
      4. After the death of W. E. Marshall the Trustee must pay over to Viola Walker Marshall during her lifetime said dividends, interest and profits.
      5. It was the intention of W. E. Marshall and a condition of the trust that the Trustee must abide by and follow the instructions of W. E. Marshall with reference to the holding, sale, disposition or encumbrance of the securities; also with reference to voting the shares of stock and making her election upon optional proposals.
      6. W. E. Marshall further reserved the right to require the Trustee to sell, dispose of or encumber the securities and to pay over to him all sums so realized; and that she deliver to him a pari or all of the securities upon request, even though by such action the trust estate he extinguished and the trust effectively terminated.

      7. If the income of W. E. Marshall from the trust estate and other sources should be insufficient in his sole judgment for the maintenance of himself and wife, he, W. E. Marshall reserved the right to require of the Trustee payment out of the principal of such sums as he might direct, either from time to time or at regular intervals.
      8. Should W. E. Marshall become incompetent by illness or adversity the principal of the trust property should be invaded to provide for him and his wife.
      9. About same as paragraph 8, but for his wife after his death.
      10. Trust to terminate upon death of W. M. Marshall and Ms wife, and Trustee shall then deliver over the remaining corpus to Ms granddaughter, Linda Damall, who shall take the same absolutely; provided, if she be not living then Trustee to turn over the remainder of the trust to the living children of Linda Darnall, and if there be no such children, Trustee shall take property as her own.

      11. If Trustee should die prior to termination of the trust Henry L. Land to be Trustee, if he be then living, otherwise First National Bank in Dallas to be Trustee.
      12. No bond required of Trustee.
      13. Provisions of Texas Trust Act to govern construction of trust instrument.
      14. Intention of W. E. Márshall, and he so instructs Trustee, that when income, and, contingently the principal, of the trust will become payable to his wife following his death, she shall have no right to assign or anticipate any portion of the income or principal, and any attempts by her to do so shall be absolutely void; nor shall the estate be subject to claims of creditors, or judgments against her, or claims of creditors of community estate.
      The instrument was acknowledged before a notary public in the form provided for deeds.
      Mrs. Erie Darnall Land acknowledged delivery to her of the securities described in the instrument, accepted the trust and agreed to administer the same as Trustee.
      The original instrument of August 23, 1960 was amended on August 7, 1961 so that upon the deaths of both W. E. Marshall and wife the Trustee, Erie Darnall Land, instead of the granddaughter, Linda Darnall, should take the remaining corpus absolutely. If Trustee not then living, corpus to Linda Darnall absolutely, etc.


author: BARROW, Chief Justice. KLINGEMAN, Justice. CADENA, Justice.

text:
    Santiago M. LEAL et ux., Appellants, v. C. C. PITTS SAND AND GRAVEL, INC., et al., Appellees.
    No. 14558.
    Court of Civil Appeals of Texas. San Antonio.
    March 22, 1967.
    Rehearing Denied April 12, 1967.

      Lieck & Lieck, Raul Villarreal, San Antonio, for appellants.
    Beckmann, Stanard, Wood & Vance, John H. Wood, Jr., Hugh P. Shovlin, San Antonio, for appellees.
   BARROW, Chief Justice.

This is an action by parents for wrongful death of their infant daughter as a result of injuries sustained in an automobile collision when the mother was about six or seven months pregnant. Appellants alleged that shortly after the accident the mother commenced having labor pains and after hard labor the infant was born prematurely and died two days later. The question presented is whether Texas Courts recognize a cause of action under the Wrongful Death Statute (Arts. 4671-4678, Vernon’s Ann.Civ.St.), based on a prenatal injury to a viable child born alive, but dying as a result of the prenatal injury. The trial court sustained an exception to this severed cause of action and dismissed same.

This question has not been before the Texas Supreme Court since 1943. As late as 1949, the rule, as supported by the numerical weight of authorities throughout the United States, was that a child or its personal representative, in the absence of statute, had no right of action for prenatal injuries. See 10 A.L.R.2d 1059. In 1949 the Ohio Supreme Court in Williams v. Marion Rapid Transit, Inc., 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R.2d 1051, held there was a cause of action for injuries to a viable child en ventre se mere which resulted in its being born with crippling injuries, and the Minnesota Supreme Court in Verkennes v. Corniea, 229 Minn. 365, 38 N.W. 2d 838, 10 A.L.R.2d 634, held there was a cause of action for wrongful death where an unborn viable child died undelivered because of defendant’s negligence. These holdings have been followed by numerous cases from twenty-four different jurisdictions, many of them expressly overruling prior holdings, which have brought about an abrupt reversal of the earlier rule denying recovery. 38 Wash.L.Rev. 390.

These cases uniformly recognize a cause of action for prenatal injuries, although some authorities have said the rule should be limited to a fetus which was viable at the time of the injury, and some authorities require that the child he born alive. Pros-ser, Law of Torts, 3rd Ed., pp. 356-357. It is recognized that an action for wrongful death will, in a large measure, turn upon the construction of the death statute of the particular State, i. e., under the Texas statute evidence of pecuniary loss is necessary to support a judgment for parents for death of a child. Banker v. McLaughlin, Tex.Civ. App., 200 S.W.2d 699, aff., 146 Tex. 434, 208 S.W.2d 843, 8 A.L.R.2d 1231; Jasper County Lumber Co. v. McMillan, Tex.Civ. App., 188 S.W.2d 731, writ ref’d.

Appellants frankly concede that the case law of this State is now against such a cause of action. In Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513 (1935), the Court considered the identical question presented here of whether damages could be recovered under the Texas wrongful death statute for the death of a child resulting from prenatal injuries. The Court, after a review of authorities from other jurisdictions which had uniformly denied recovery for prenatal injuries, together with a construction of the Texas wrongful death and “homicide” statutes, determined that the trial court had correctly held that the parents could not recover damages for the death of the child which had lived nineteen days after its birth. See also, Lewis v. Steves Sash & Door Co., Tex.Civ.App., 177 S.W.2d 350 (1943, writ ref’d); Turnknett v. Keaton and Acuff, Ct. of App., 5th Cir., 266 F.2d 572.

Appellants urge, however, that this rule should now be reviewed in view of the overwhelming trend of the cases allowing liability for prenatal injury to a viable child. We agree with this proposition, however, this question is properly one for the Supreme Court or the Legislature. It is our duty as an intermediate court, in our judicial system, to follow the' decisions of our Supreme Court. Swilley v. McCain, 374 S.W.2d 871 (Tex.Sup.1964); Slocum v. Galveston County, Tex.Civ.App., 410 S.W. 2d 487, no writ; Stewart v. Janes, Tex.Civ.App., 393 S.W.2d 428, writ ref’d; Tunnell v. Otis Elevator Co., Tex.Civ.App., 400 S. W.2d 781, 783, writ ref’d, n. r. e., Tex., 404 S.W.2d 307; Campbell v. Campbell, Tex. Civ.App., 362 S.W.2d 904, 908, writ dism’d; McClelland v. Briscoe, Tex.Civ.App., 359 S.W.2d 635, 638; 15 Tex.Jur.2d, Courts, § 137.

The trial court correctly held, under the authority of Magnolia Coca Cola Bottling Co. v. Jordan, supra, that damages may not be recovered by parents under the Texas Wrongful Death Statute for the death of an infant from prenatal injuries.

The judgment is affirmed.

KLINGEMAN, Justice.

I concur in the foregoing opinion for the reason that I accept and believe that lower courts are bound by the decisions of the Supreme Court, and it is our duty as an intermediate court to follow the decisions of our Supreme Court. 15 Tex.Jur.2d Courts § 137 (1960), and cases thereunder cited. However, in view of the overwhelming trend in other jurisdictions away from the holding in Magnolia Coca Cola Bottling Co. v. Jordan, since that decision by our Supreme Court in 1935, I feel confident that the Supreme Court will thoroughly review the matter of liability for prenatal injuries.

CADENA, Justice.

I would hold that plaintiffs’ petition, the contents of which are summarized in the opinion of the Chief Justice, states a cause of action and that the trial court erred in sustaining defendants’ special exceptions.

The rule denying recovery for prenatal injuries to a child subsequently born alive emerged from the judicial womb in 1884 in Dietrich v. Inhabitants of Northhampton, although there is some dispute as to whether the child in that case was actually born alive. It is apparent that the principal underpinning for the decision in Dietrich was the notion that a child in its mother’s womb is merely a part of the mother and has no separate existence. This rationale is somewhat surprising, since at the time Dietrich was decided, both medical science and religion considered that life begins at conception, and, even in law, the jurisprudential concept that life begins only at birth was not consistently followed in the area of property law, nor, according to some authorities, in the administration of the criminal law.

The Dietrich doctrine was followed with such singular unanimity that when the Texas Supreme Court considered the problem in 1935 in Magnolia Coca Cola Bottling Co. v. Jordan it could say, “We have found no decision (and the parties have cited none) by an appellate court of final jurisdiction holding that damages for prenatal injury may be recovered either by the injured child, if it is bom and lives or by its beneficiaries in the event of its death from such injury.”

In following what was then the unanimous American rule denying recovery in cases of this nature, the Court in Magnolia pointed out that the decisions were based on three reasons: (1) lack of authority; (2) practical inconvenience and possible injustice ; and (3) lack of a human being in esse to whom defendant owed a duty.

As is pointed out in the opinion of the Chief Justice herein, every court which has considered the problem in the last two decades has allowed recovery. Prior decisions denying recovery have been overruled by every court which has reconsidered the problem, so that today the no-recovery rule represents the last expression of judicial attitude only in Texas, Rhode Island and Alabama.

Considerations of difficulty of proof and fear of creating opportunities for the fabrication of false claims seemingly played an important part in the Magnolia decision. Again, every decision within the past two decades has rejected the difficulty of proof and the possibility of fraudulent claims as adequate reasons for the denial of a remedy. Questions of causation and reasonable certainty which may arise in prenatal injury cases are not significantly different from the ones present in thousands of negligence cases which the courts resolve daily.

In adopting the biologically erroneous legal theory which denies separate existence to the fetus, the Court in Magnolia, while expressing doubt as to the propriety of supporting a rule of civil law by analogy to the criminal law, called attention to the fact that in Texas, by statute, in homicide cases “the person upon whom the homicide is alleged to have been committed must be in existence by actual birth.” If we are to resort to the criminal law for guidelines in cases involving civil liability for prenatal injuries, it would seem more appropriate to direct our attention to those statutes which deal specifically with injuries to an unborn child. Our statute defines abortion in terms of the destruction of the “life” of the fetus. Another statute makes it unlawful to destroy, before actual birth, “the life in a child in a state of being born.” These statutes clearly announce that the protection of the fetus and of its right to life is a part of the public policy of our state.

Our Supreme Court in its Magnolia opinion advanced a further reason for denying recovery for prenatal injuries. It invoked that fictitious character of the common law, the ordinary prudent man, asserting that such a man reckons life from the time of birth, that his “conscious care and solicitude are for the expectant mother and not for the unborn child apart from her,” and that his “obligations and his liability in damages for his acts should be measured and determined from his viewpoint.”

The Court’s basic assumption concerning the solicitude showered upon a woman quick with child is not factually accurate. In view of society’s strong interest in the propagation of the human race, the conscious care and solicitude which the ordinary prudent man extends to the expectant mother cannot be said to reflect solely a concern for her welfare apart from that of the unborn child. From the moment that it is known that she is with child, her concern, as well as that of her husband and the attending physician, is to insure that the period of gestation will culminate in the normal birth of a healthy child.

The Magnolia opinion declares that decisions which “protect unborn children in property and property rights but undertake by the indulgence of a fiction of existence to save to the child property which in fairness belongs to it.” In view of the fact that the separate existence of the unborn child was, in 1935, accepted by all except jurists, it is somewhat surprising that the Court should brush this aside by applying to this medical fact that Benthamite epithet, “fiction.” It is the purely legalistic concept that the unborn child is but a part of its mother, which is contrary to scientific fact and common sense.

In any event there would seem to be no obstacle to resort to the same “fiction” in the prenatal injury cases, unless we are prepared to argue that the right to life and the right to begin life with a sound body do not “in fairness” belong to the unborn child, or else that those rights are not as worthy of protection as the right to inherit a mule.

It is true that the existence of a duty, and the breach of such duty, constitute the foundation of liability in negligence law. But this does not compel the conclusion that the person to whom the duty is owed must be known or even knowable. It is doubtful that anyone would seriously argue that the pharmacist who negligently prepares a drug today should be allowed to escape liability for the death of a child, born next month, to whom the medicine was administered, on the ground that he owed no duty to the child who was unborn at the time the negligent act was committed.

It cannot be denied that, generally, it is the duty of a Court of Civil Appeals to follow the decisions of our Supreme Court, and that mere dissatisfaction with a rule announced by the Supreme Court can in no way dilute the authoritative nature of the pronouncements of that supreme tribunal. But where the rule is based on erroneous assumptions of fact, where every court which has considered the problem in the last score of years has rejected the assumptions which form the basis for the rule, and where there is every reason to believe that our Supreme Court, on reconsideration of the problem in the light of medical knowledge and the present state of judicial authority, will overturn its prior decision, it cannot be persuasively argued that it is the duty of a Court of Civil Appeals to blindly write an opinion which it feels certain will be reversed.

      . Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1959); Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727 (1956); Rodriguez v. Patti, 415 Ill. 496, 114 N.E.2d 721 (Ill.1953); Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (1954); State of Maryland, Use of Odham v. Sherman, 234 Md. 179, 198 A.2d 71 (1964); Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (Pa.1960); Puhl v. Milwaukee Auto Ins. Co., 8 Wis.2d 343, 99 N.E.2d 163 (1960); Seattle-First Nat. Bank v. Rankin, 59 Wash.2d 288, 367 P.2d 835 (1962); Hatala v. Markiewicz, 26 Conn. Supp. 358, 224 A.2d 406 (1966).

      . Prates v. Sears, Roebuck & Co., 19 Conn.Sup. 487. 118 A.2d 633 (1955); Gorke v. Le Clerc, 23 Conn.Sup. 256, 181 A.2d 448 (1962); Worgan v. Greggo & Ferrara, Inc., 11 Terry 258, 128 A.2d 557 (Del.1956); Wendt v. Lillo, 182 F.Supp. 56 (D.C.Iowa 1956); Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962); Mitchell v. Couch, 285 S.W.2d 901 (Ky.1955); Valence v. Louisiana Power & Light Co., 50 So.2d 847 (La.App.1951); Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951); Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 10 A.L.R.2d 634 (1949); Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691 (1951); Jasinsky v. Potts, 153 Ohio St. 529, 92 N.E.2d 809 (Ohio 1950); Mallison v. Pomeroy, 205 Or. 690, 291 P.2d 225 (1955); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960); Shousha v. Matthews Drivurself Service, Inc., 210 Tenn. 384, 358 S.W.2d 471 (1962).

      . Amann v. Faidy, 415 Ill. 422, 114 N.E. 2d 412 (1953); Keyes v. Construction Service, Inc., 340 Mass. 633, 165 N.E.2d 912 (1959); Howell v. Rushing, 261 P.2d 217 (Okl.1953); In re Logan’s Estate, 3 N.Y.2d 800, 166 N.Y.S.2d 3, 144 N.E.2d 644 (1957); Norman v. Murphy, 124 Cal.App.2d 95, 268 P.2d 178 (Calif.1954); West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958); Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221 (1958); Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108 (N.H.1958).

      . 138 Mass. 14, 52 Am.Rep. 242 (1884).

      . Stewart, the Case of the Prenatal Injury, 15 U.Fla.L.Rev. 527, 530 (1963).

      . At least since 1860 medical men had considered the fetus as a separate entity. 1 Beck, Elements of Medical Jurisprudence 276 (11th ed., 1860). For a discussion of the religious concept concerning the inception of life, see Foote and Saunders, Cases on Family Law SB-21 (1962).

      . See the famous “Let us see what this nonentity can do” portion of the opinion of Butler, J., in Thellusson v. Woodford, 4 Ves. 227, 31 Eng.Rep. 117, 163 (1798).

      . Rex. V. Senior, 1 Mood.Cr.C. 346, 168 Eng.Rep. 1298 (1832).

      . 124 Tex. 347, 78 S.W.2d 944, 945 (1935). Apparently, the Court’s attention was not called to the opinion of the Canadian Court in Montreal Tramways v. Levellie (1933), Can.S.C. 456 (1933), D.L.R. 337.

      . 78 S.W.2d at 947.

      . Prosser, Torts 355-356 (3rd ed., 1964). Because of broad language found in opinions denying recovery to parents for an infant that died in its mother’s womb, the question may be considered as still doubtful in three other States. Mace v. Jung, 210 F.Supp. 706 (D.Alaska, 1962); Drabbels v. Skelly Oil Co., 155 Neb. 17, 50 N. W.2d 229 (1951); Howell v. Rushing, 261 P.2d 217 (Okl.1953).

      . This is apparent from the fact that the Court quoted the following statement by O’Brien, J. in Walker v. Great Northern Ry. Co. of Ireland, 28 L.R.Ir. 69, 81 (1890): “A rule of right may well be founded upon the inherent and inevitable difficulty or impossibility of proof.”

      . 2 Harper and James, Torts 1028-1029 (1956). The problems of causation and reasonable certainty which may arise in prenatal injury cases would appear to be no more formidable than those which the courts confidently face in cases involving miscarriages, St. Louis S.W. Ry. Co. of Texas v. Mitchell, 25 Tex.Civ.App. 197, 60 S.W. 891 (1901, writ ref’d), and cases involving traumatic neuroses. Sutton Motor Co. v. Crysel, 289 S.W.2d 631 (Tex.Civ.App., 1956, no writ).

      . See, generally, Gordon, The Unborn Plaintiff, 63 Mich.L.Rev. 579 (1965).

      . 78 S.W.2d at 948. The statute in question is Tex.Pen.Code Ann. (1961) Art. 1205.

      . Tex.Pen.Code Ann. (1961) Art. 1191.

      . Id. Art. 1195.

      . 78 S.W.2d at 949.

      . Id. at 948.

      . The absurdity of the doctrine that the unborn child is but a part of its mother is obvious. It is not uncommon today for a living infant to be born after the death of the mother. This would not be possible if, as the courts were once wont to insist, the child was only a part of the mother and had no separate existence.

      . Seavey, Book Review, 45 Harv.L.Rev. 209, 210 (1931).

      . The statement that there was “no duty” begs the essential question — whether the interests of the plaintiff are entitled to legal protection against defendant’s conduct. See Green, Judge and Jury 59 (1930). The “foreseeability” question, whether posed in connection with the duty problem or the question of proximate cause, presents no great obstacle. It is not demanding too much to insist that the driver of a motor vehicle should know that a percentage of females on the highway will be pregnant. It should make no difference that the mother is carrying the child in her womb, rather than in her arms.

      . The common law, if it is to have vitality, must be “elastic enough to adapt itself to current medical and scientific truths so as to function as an efficient rule of conduct in our modern complex society.” Puhl v. Milwaukee Automobile Ins. Co., 8 Wis.2d 343, 349, 99 N.W.2d 163, 171 (1959).

      .In this case there is no need for concern with the frequently expressed fear that a change in the law will result in frustration of past transactions consummated in reliance on existing rules. There is little reason to assume that defendant in this case acted negligently in reliance on the Magnolia decision. “The picture of a bewildered litigant, lured into a course of action by the false light of a decision, only to meet ruin when the light is extinguished and the decision overturned, is for the most part a figment of excited brains.” Cardozo, The Growth of the Law 122 (1933).


author: PRESLAR, Justice.

text:
    WESTERN AUTO SUPPLY COMPANY, a corporation, Appellant, v. CHARLES BASSETT CENTER, INC., a corporation, Appellee.
    No. 5806.
    Court of Civil Appeals of Texas. El Paso.
    March 17, 1967.

      Scott, Hulse, Marshall & Feuille, James L. Gallagher, Charles R. Jones, El Paso, for appellant.
    Kemp, Smith, Brown, Goggin & White, Raymond H. Marshall, El Paso, for ap-pellee.
   OPINION

PRESLAR, Justice.

This suit involves the interpretation of a written lease contract entered into by Western Auto Supply Company, appellant, as Lessee, and appellee Charles Bassett Center, Inc., as Lessor. The lease provides for Lessor to maintain the common areas of a shopping center, complex of stores, and for Lessee to pay its pro rata share of the cost of such maintenance. Lessee refused to pay for that portion of the expense which was for guard service, on the basis that it was not an item of maintenance provided for by the lease contract. Lessor then brought this suit. The amount due was stipulated, both parties moved for summary judgment, and judgment was awarded to Lessor. The court thus construed the contract provision as to maintenance to include guard service. We reach a different conclusion.

The contractual provision in question will be referred to as “paragraph 31,” and it provides:

“The Lessor agrees to maintain at all times during the term of this lease and any extension thereof the common areas located in said shopping center, including parking areas, driveways, sidewalks, landscaped areas and all other ornamental or service areas not under exclusive control of any tenant, in good repair, serviceable, clean, neat and sanitary by the maintenance of a reasonably smooth all-weather surface on all paved areas, the removal of snow, ice, dirt and trash from parking areas, driveways and sidewalks, the painting and maintenance of signs, lines, traffic buttons and other similar items to designate the parking stalls, traffic lanes and the directional flow of traffic, the cutting, pruning and cultivation of grass, trees and shrubbery, the removal and replacement of dead landscape planting, the removal of paper, trash and other litter from all of said common areas and the performance of all other repair and maintenance work required to keep said common areas in good condition as described hereinabove. The Lessor agrees to provide adequate lighting for said parking area and to keep said lights burning at all times after dark when the Lessee’s store located in said shopping center is open for business and to maintain in good repair said lights and lighting equipment.”

Another paragraph provides the Lessee will pay each year its pro rata share of the Lessor’s actual cost, during the year, “of lighting and maintaining the parking and other common areas in the shopping center”, not to exceed a stated maximum.

At the end of the first year of operation under the lease contract, Lessor furnished Lessee a breakdown and accounting of the maintenance charges incurred during the year, which charges included guard services rendered by the Burns Detective Agency. This was the item which Lessee refused to pay. It is the position of Lessee that the definition of what is to be maintained, the specific enumeration thereof, shows the class or nature of the things to be maintained, and guard service is not of that class or nature. It is the Lessor’s position that paragraph 31 sets out a general duty to maintain, including the specified functions; that under the general duty to maintain, guard service should not be excluded just because it is not a named item or function. We could agree with the Lessor’s position had the parties simply said “maintain” and no more. It could then be argued that maintaining included protection of the premises —preventive measures. But the specifying of the functions sets up a class of things, as to which guard service is foreign. The primary rule in the construction of contracts is to ascertain the intent of the parties. The intent of the parties cannot be said to include guard service when the ordinary words of paragraph 31 are given their ordinary meaning.

If any further rule of construction is needed, then certainly the conclusion reached is sustained by the doctrine of ejusdem generis.

“ * * * The rule of ejusdem generis ‘is a rule of almost universal application.’ Farmers’ and Mechanics’ National Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120, 1123, 1124. Under that rule, where specific and particular enumerations of things are followed by general words, the general words are not to be construed in their widest extent but are to be treated as limited and applied only to things of the same kind and class as those mentioned.” (Citing numerous cases).

Rogers v. Hickie, Tex.Civ.App., 376 S.W. 2d 413 at page 418; affirmed Tex.Civ.App., 383 S.W.2d 383. The parties lend support to the application of that rule to the contract before us by the language of paragraph 31 — “as described hereinabove”.

Being of the opinion that the trial court erred in granting summary judgment for appellee, we reverse the judgment of the trial court; and being of the opinion that the motion for summary judgment of appellant, Western Auto Supply Company, should have been granted, we enter the judgment that the trial court should have entered by granting said motion for summary judgment. Judgment is here rendered that plaintiff, Charles Bassett Center, Inc., take nothing against defendant, Western Auto Supply Company; and it further appearing that defendant has heretofore paid to plaintiff the sum of said judgment, to-wit, $306.56, it is therefore ordered, adjudged and decreed that said defendant do have and recover judgment from and against the plaintiff in the amount of $306.56; together with all costs of court in this behalf incurred.


author: FANNING, Justice.

text:
    Curtis W. RICE et ux., Appellants, v. TUCSON CREDIT UNION, Appellee.
    No. 7809.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 21, 1967.
    Rehearing Denied March 21, 1967.
    John H. Regner, Houston, for appellants.
    Joe F. Cannon and Charles M. Caussons, Jr., Houston, for appellee.
   FANNING, Justice.

A summary judgment case. Plaintiff-appellee sued defendant-appellants upon two promissory notes executed by defendants to plaintiff, with plaintiff alleging to the effect that it was the owner and holder of said notes and indebtedness, that a balance of $861.17 was due and owing on said notes, and sought judgment for the balance due and for an attorney’s fee. Photostatic copies of the notes were attached to plaintiff’s original petition as exhibits.

Plaintiff filed a motion for summary judgment with affidavit made by plaintiff’s attorney. The motion for summary judgment was set for hearing on March 21, 1966. Defendants-appellants filed no exception to the motion or affidavit, issued no interrogatories, took no depositions and filed no opposing affidavit. On the date of the hearing defendants filed a sworn general denial but filed no special exceptions to plaintiff’s pleading, and made no offer to produce a controverting affidavit and sought no permission for additional time to produce any sort of controverting affidavits or other proper controverting matters.

The trial court granted plaintiff’s motion for summary judgment and rendered judgment for plaintiff in the amount of $861.17, plus attorney fees as provided by said notes in the amount of $172.22 (20%) for a total of $1,033.39, with interest at the legal rate from the date of the judgment. The original notes were attached to the judgment when entered, and photostatic copies of said notes appear in the transcript as attached to said judgment. Defendants have appealed.

Appellants present two points on appeal. By their first point appellants contend to the effect that plaintiff’s petition was insufficient to support the judgment. We think this point is without merit. In the first place, appellants did not file any exceptions of any character to the petition. In the second place, we think the petition, hereinbefore described, which had photostatic copies of the notes sued upon attached to the petition, had all the necessary aver-ments to support the judgment rendered by the trial court. See 9 Tex.Jur.2d 266, Bills and Notes — Pleadings, § 243. Appellants’ first point is overruled.

Appellants by their second point'contend to the effect that the affidavit made by appellee’s counsel in connection with the motion for summary judgment was fatally defective in form.

Plaintiff’s motion for summary judgment was to the effect that: “This is a suit upon written promissory note herein verified by affidavit”; that defendants’ answer was insufficient as a matter of law; that there was no genuine issue as to any material fact, and that plaintiff was entitled to judgment as a matter of law; that the motion was “based upon the pleadings and exhibits on file and the affidavits attached hereto”, and that under same plaintiff was entitled to summary judgment as prayed for in its original petition, etc.

The motion was sworn to by plaintiff’s attorney as follows:

“The State of Texas
County of Harris
“BEFORE ME, the undersigned authority, on this day personally appeared CHARLES M. COUSSONS, JR. known to me, who being duly sworn upon oath deposes and says that he is the Attorney for Tucson Credit Union and as such Attorney and Agent of the Plaintiff is authorized to make this affidavit; and that he is familiar with and cognizant of the facts stated in Plaintiff’s Original Petition and Plaintiff’s Motion for Summary Judgment in the above cause number 616,128, and the facts stated therein and all allegations therein are true and correct within his knowledge.
/s/ Charles M. Coussons, Jr. CHARLES M. COUSSONS, JR.
“SWORN TO AND SUBSCRIBED before me this 3rd day of March, A. D. 1966, to certify which witness my hand and seal of office at Houston, Harris County, Texas.
Noel T. Kiost, Notary Public in and for Harris County, Texas”

Rule 14, Tex.R.Civ.P., provides as follows:

“Whenever it may be necessary or Ju;oper for any party to a civil suit or proceeding to make an affidavit, it may be made by either the party or his agent or his attorney.”

Appellants equate the verification of the affidavit as one not made on knowledge but as one made on information and belief. If the affidavit was made on information and belief appellant would be correct, but we do not so construe the affidavit. The determination of upon what the affidavit was made is largely a question of diction and we think the words “within his knowledge” are clear and unambiguous and their meaning is well understood. For a case closely in point where the words “within my knowledge” were construed with reference to an affidavit, see Coker v. Audas, Inc., Tex.Civ.App., 385 S.W.2d 862, no writ (1964) wherein Chief Justice Chad-ick writing for this court stated in part as follows:

“Disposition of appellant L. L. Coker’s first point of error calls for an examination of the sufficiency of the verification of a plea of privilege filed by the appellant, Audas, Inc. The vice in the affidavit to the plea is said to be in this sentence: T am the President and the duly authorized agent of Audas, Inc., a corporation, the defendant named in the within and foregoing plea of privilege, and all the allegations and statements of fact in such plea contained are, within my knowledge, true and correct’. The appellant insists that the prepositional phrase ‘within my knowledge’ qualifies the meaning of the last clause of the sentence, with the result that the affiant merely swears the allegations and statements of fact of which the affiant has knowledge, and none are particularized, are true and correct. The overall proposition is that the facts sworn to are indefinite.
“Under common rules applicable to sentence structure, the position in the sentence of the phrase ‘within my knowledge’ indicates the phrase is intended to be explanatory of the words ‘true’ and ‘correct’. ‘Within’ is a preposition having various shades of meaning, depending upon the context in which it is used. See 45 Words and Phrases, p. 378 et seq. Generally it conveys a thought similar in meaning to that conveyed by the word ‘inside’. As ‘within’ is used in it, the phrase conveys the idea that knowledge is possessed by the affiant of the truth and accuracy of the allegations and statements of fact contained in the plea of privilege. The affidavit is an effective verification of the plea.”

Appellants’ second point is overruled.

Where a party’s motion for summary judgment has support in extrinsic evidence which will sustain his contention that there is no genuine issue of fact, the opponent should be required to come forward with more than a mere denial pleading, even a sworn one, in order to overcome the force of the motion. McDonald, Texas Civil Practice, Vol, 4, 1962 Cumulative Supplement § 17.26.3a p. 47; Savoy v. Graham Memorial Auditorium, Association, Inc., Tex.Civ.App., 329 S.W.2d 352, no writ (1959); Gray v. Storey, Tex.Civ.App., 383 S.W.2d 487, no writ (1964).

The judgment of the trial court is affirmed.


author: BATEMAN, Justice.

text:
    Nell STANFORD, Appellant, v. Elizabeth STANFORD, Appellee.
    No. 16889.
    Court of Civil Appeals of Texas. Dallas.
    March 3, 1967.
    Rehearing Denied March 31, 1967.

      Cecil D. Elfenbein, of Rosenfield, Ber-wald & Mittenthal, Dallas, for appellant.
    Louis J. Weber, Jr., of Bailey, Williams, Weber & Allums, Dallas, for appellee.
   BATEMAN, Justice.

This is a suit for damages because of personal injuries sustained by the appellant Nell Stanford while riding as a guest in an automobile owned and operated by the appellee Mrs. Elizabeth Stanford. The sole question presented here is the applicability vel non of Vernon’s Ann.Civ.St., Art. 6701b, commonly known as the Texas Guest Statute, in a case arising from an accident occurring entirely on private property.

Facts

The parties had been good friends for many years, their deceased husbands having been brothers. They had had lunch together at a cafeteria, and shopped at various stores in neighborhood shopping centers. In order to shop at the Sanger-Harris department store in Preston Center, Dallas, Texas, they drove in appellee’s car up a spiral ramp to the third or fourth floor of the Sanger-Harris Parking Garage, which adjoins the store. After shopping for some time in the Sanger-Harris store they returned to the automobile and endeavored to leave the building by driving down the spiral ramp. The brakes on appellee’s automobile suddenly failed, and when appellee realized she had no brakes she deliberately drove the automobile into the wall to stop its downward progress, and as a result of this collision appellant sustained serious bodily injuries.

~The jury found that appellee was negligent in failing to have her brakes in proper operating condition, which was a proximate cause of the collision, but that this was not gross negligence. Appellant’s damages were found to have been $12,000. The trial court sustained appellee’s motion to disregard the jury findings of negligence and proximate cause and to render judgment for her under Art. 6701b, V.A.C.S. Four points of error on appeal are asserted by appellant, but the collective force thereof is that she was entitled to judgment for the $12,000 damages found by the jury, the Guest Statute being wholly inapplicable because the accident did not occur on a public highway of the State of Texas,, but on private property.

Section 1, of Art. 6701b, V.A.C.S., is. as follows:

“No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.” (Italics ours.)

Opinion

Prior to the enactment of this statute, the owner or operator owed to his nonpaying passenger or guest the same common law duty to exercise ordinary care not to injure him as he did to all other persons. Morris v. Sanders, Tex.Civ.App., 55 S.W.2d 594, no wr. hist.; Cannan v. Dupree, Tex.Civ.App., 294 S.W. 298, wr. ref.

It is said that our statute was modeled upon the Connecticut guest statute and they do seem identical except that the Connecticut statute makes no reference to transportation on or over public highways. The Texas legislature must have had a purpose in inserting the phrase, “over the public highways of this State,” in our statute, and we agree with appellant that that purpose undoubtedly was to limit the protection to be afforded the owners and operators of automobiles to those cases arising out of accidents occurring, or at least originating, on the public highways of the State.

In determining the legislative intent in employing the term “public highways” in this statute, “we are of the opinion that the legislature meant only such a highway as was dedicated to the use of the public and not a private way used by the public merely by invitation of the owner.” Pettine v. Tuplin, 71 R.I. 374, 46 A.2d 42, 44. This is not inconsistent with the statutory definitions found in Articles 6701d, § 13, 6674a and 6674q-2, V.A.C.S. The ramp in the parking garage on which appellant was injured was not a “public highway.” It was not dedicated to public use, but was a facility on private property intended only for the convenience and use of those members of the public patronizing the Sanger-Harris store. It could be closed and all members excluded therefrom at any time at the will of the owner.

The only other Texas case deciding this precise question, which has come to our attention, is the very recent opinion of the Austin Court of Civil Appeals in Skrabanek v. Ritter, 412 S.W.2d 337. In that case the accident occurred wholly on the parking lot of a motel. The court held that the statute in question was intended by the legislature to apply only to “accidents connected with transportation of persons over the public highways of [Texas], and not to accidents occurring wholly within the limits of private property.” The opinion in that case contains an excellent history of our statute and review of the authorities in other states. We agree with the conclusion reached by the Austin court.

It is argued that appellant’s position is contrary to the holding of the Court of Criminal Appeals of Texas in Moore v. State of Texas, 403 S.W.2d 426, affirming a conviction for drunk driving on a “public road or highway,” where the only evidence was that the defendant was driving on a parking lot on property of and under the control of the owner. However, it was stipulated that that parking lot was open to the public generally at all times of the day and night, no one being excluded from using it, and that it was sometimes used for traveling from one of the adjacent roadways to the other. The decision was by a divided court. We do not consider that case to be controlling here. A different statute was involved.

The error of the trial court in disregarding the findings of appellee’s negligence' and proximate cause requires that the judgment be reversed. As appellee has presented no cross-points or cross-assignments of error complaining of prejudicial error committed against her over her objection upon the trial, it becomes our duty under Rule 434, Texas Rules of Civil Procedure, to render the judgment the trial court should have rendered. Crow v. City of San Antonio, 157 Tex. 250, 301 S.W.2d 628, 631; Rule 324, T.R.C.P.; De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95. Therefore, the judgment appealed from is reversed and judgment is here rendered that the appellant, Nell Stanford, recover of and from the appellee, Elizabeth Stanford, the sum of $12,000.00 with interest thereon at the rate of six per cent per annum from June 14, 1966, and all costs in the trial court and in this court.

Reversed and rendered.

       Connecticut Gen.St.1930, § 1628 (repealed). 270, wr. ref.
      Henry v. Henson, Tex.Civ.App., 174 S.W.2d


author: WERLEIN, Justice.

text:
    Manuel KING, d/b/a King’s Snake Farm, Appellant, v. AIR EXPRESS INTERNATIONAL AGENCY, INC., Appellee.
    No. 14998.
    Court of Civil Appeals of Texas. Houston.
    March 16, 1967.
    Rehearing Denied April 13, 1967.

      Heath & Robinson, Bob Heath, Houston, for appellant.
    Don W. Graul, Houston, for appellee.
   WERLEIN, Justice.

Appellee, Air Express International Agency, Inc., filed this suit on March 20, 1964, against All Pet Center, Inc., a corporation doing business as King’s Snake & Wild Animal Farm, on a verified account for services rendered and for interest and attorney’s fees. All Pet’s Center, Inc., filed an answer on April 27, 1964, denying that appellee ever sold or delivered any goods or services to it, and further denying that it was doing or ever did business as King’s Snake & Wild Animal Farm. On May 18, 1965, appellee filed its first amended original petition in which for the first time it complained of Manuel King, Individually and Doing Business as King’s Snake Farm, and sued on the same verified account which in the affidavit to the pleading was stated to be against King’s Snake & Wild Animal Farm. Citation was duly served on Manuel King on May 27, 1965. He did not file an answer until May 24, 1966, nearly a year after being served with citation.

In appellee’s first amended original petition, which superseded its original petition, no mention whatever is made of All Pet Center, Inc., a corporation, and it was completely left out and omitted in the amended pleading. Under Rule 65, Texas Rules of Civil Procedure, appellee’s original petition could no longer be regarded as any part of the pleading in the record of this cause. The law is well settled that an amended pleading completely supersedes and supplants the pleading which is amended. Henderson v. Jimmerson, 234 S.W.2d 710, Tex. Civ.App. 1951, ref., n. r. e.; Hunt v. Employers Reinsurance Corp., 219 S.W. 2d 483, Tex.Civ.App.1949, ref., n. r. e.; Dyche v. Simmons, 264 S.W.2d 208, Tex.Civ.App.1954, ref. n. r. e.; Kelso v. Wheeler, 310 S.W.2d 148, Tex.Civ.App.1958, n. w. h. In Brennan v. Greene, 154 S.W.2d 523, Tex.Civ.App.1941, writ, ref., the court held that parties to a suit are just as effectively dismissed from the suit by omitting their names from amended pleadings subsequently filed, as if a formal order of dismissal as to them had been entered. Hence appellee’s amended petition which made Manuel King a party to the suit effectively dismissed All Pet’s Center, Inc. from the suit.

On September 23, 1965, appellant not having filed an answer, although duly served with process, the court entered a default judgment against said appellant, Manuel King, doing business as King’s Snake Farm, in the sum of $976.58 together with interest from date of the judgment. The amount of the judgment includes interest to date thereof in the sum of $175.50 and reasonable attorney’s fees in the sum of $150.00 as found by the court. This judgment became final thirty days after it was entered. No appeal was taken therefrom nor did appellant apply for a writ of error in connection therewith. Such judgment is, therefore, in full force and effect. Even though it may have been an erroneous judgment, it was not a void judgment. Furthermore, it has not been attacked in any manner. Appellant and the court mistakenly considered it as an interlocutory default judgment, whereas it was a final judgment which disposed of all the parties and issues in the case.

On May 24, 1966, appellant filed a motion to vacate said default judgment entered on September 23, 1965. The court then entered an order on August 2, 1966 ordering that said default judgment should not be set aside and vacated. This order was of no force or effect since the trial court had no jurisdiction to enter such order months after the default judgment became final. On the same day, August 2, 1966, the court entered a judgment in which it dismissed All Pet Center, Inc., doing business as King’s Snake & Wild Animal Farm, from this cause of action although appellee’s amended petition had already effectively dismissed such defendant from the suit. The court further, in such judgment, recited that the default judgment entered on September 23, 1965 against appellant was an interlocutory default judgment, and further recited that appellee was entitled to judgment against appellant in the amount sued for and entered a decree in favor of appellee and against appellant in the amount that had been awarded appellee in said default judgment. This judgment also was, and is, a nullity and of no force or effect since the trial court had no jurisdiction to enter the same. This appeal is from such judgment, which is reversed and rendered leaving undisturbed the default judgment from which no appeal was taken. Under Rule 448, T.R.C.P., costs of appeal are taxed against appellant for good cause in that appellant has appealed from a judgment that was and is a nullity.

Reversed and rendered.

COLEMAN, J., not sitting.


text:
    H. T. D. INVESTMENT CORPORATION, Appellant, v. Lester REEVES, Appellee.
    No. 16901.
    Court of Civil Appeals of Texas. Dallas.
    March 31, 1967.
    Allen Melton, Dallas; for appellant.
    Robt. A. Baker, of Geary, Brice & Lewis, Dallas, for appellee.
   DIXON, Chief Justice.

H. T. D. Investment Corporation has appealed from a judgment in a nonjury trial in favor of appellee Lester Reeves for $600 held to be due as a brokerage fee.

In written findings the court found that officers of appellant corporation employed appellee to obtain a first lien loan of $60,000 at six per cent interest on real estate owned by the corporation and agreed orally to pay appellee one per cent of the loan as a brokerage fee; that appellee obtained a loan for appellant from Western National Life Insurance Company, the loan being fully satisfactory to appellant; and that thereafter appellant refused to pay appellee his fee.

The court concluded that the contract was valid and enforceable and had been fully performed by appellee, therefore appellant was liable.

In five points on appeal appellant asserts in substance that the court erred in finding that the performance of appellee was fully satisfactory to appellant, and erred in concluding that appellant was liable under the terms of the contract.

The testimony in some particulars is conflicting. Two of appellant’s officers testified that they agreed to pay appellee a brokerage fee of one per cent, but that they agreed to pay only one fee of one per cent; that in order to close the loan they were required to pay a closing fee of one per cent to the insurance company, of which fact ap-pellee was well aware; and that to pay ap-pellee also a brokerage fee of one per cent would be in violation of their agreement that they would pay only one fee of one per cent.

Appellee’s testimony supports the findings and conclusions of the court. Appel-lee’s position is that the payment by appellant to the insurance company, the lender, of a closing fee of one per cent in no way affects appellant’s agreement to pay him a one per cent brokerage fee for obtaining the loan. Appellant’s check was by its terms made payable to the insurance company, not to appellee.

It is undisputed that appellee did obtain the loan for appellant.

Since there was evidence to support the court’s findings they are binding on this court. Willson v. Johnston, 404 SW.2d 870 (Tex.Civ.App., Amarillo, 1966); Northwestern Distributors, Inc. v. City of Fort Worth, 377 S.W.2d 783 (Tex.Civ.App., Fort Worth, 1964, no writ. hist.).

The judgment of the trial court is

Affirmed.


text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Loyal FERGUSON, d/b/a Ferguson’s Parking Lot Maintenance, Appellee.
    No. 15005.
    Court of Civil Appeals of Texas. Houston.
    March 30, 1967.

      Urban, Coolidge, Pennington & Heard, Robert J. Newton, Houston, for appellant.
    No appearance or brief for appellee.
   WERLEIN, Justice.

This suit was brought by appellant, Southwestern Bell Telephone Company, against appellee to recover the unpaid balance due appellant on a written contract for advertisements published in 1963 in the Greater Houston Yellow Pages Directory. Appellee in his answer alleged in substance that the advertising contracted for was not placed directly under the appropriate headings of the Directory and therefore that he was not liable for the advertising. The court entered judgment in favor of appellant against appellee on the jury verdict in the sum of $372.00 plus attorney’s fees in the sum of $150.00, or a total of $522.00, from which judgment appellant has appealed. Appellee has filed no brief and has no cross-assignments.

Appellant asserts that the trial court erred in failing to sustain its motion for instructed verdict for the full amount sued for in the sum of $744.00 plus attorney’s fees, and also erred in overruling its motion for judgment after verdict, and in overruling appellant’s objections to evidence admitted concerning oral negotiations and discussions between the parties prior to the execution of the written contract in question, and in overruling appellant’s exceptions to the court’s charge to the jury.

Appellee admitted, in answer to appellant’s request for admissions, that he signed and executed the contract dated February 13, 1963, for display advertising to appear in appellant’s June, 1963, Yellow Pages Directory, and that the displays which appellant asserts were placed in the June, 1963, Directory appeared therein on pages 664 and 980 of such Directory. He further admitted that if such displays had been placed directly under the appropriate headings where he thought they should have been placed, he would be liable to appellant in the sum of $744.00. Appellant’s witness, Mr. Simon, testified that there was a balance of $744.00 owing by appellee on the contract.

The contract in question is unambiguous. It provides, among other things: “The Telephone Company does not guarantee the position of display advertisements.” There is nothing in the contract which recites that the display advertisements in question would appear at any specific place on the appropriate pages of the Directory. Appellee admitted that any negotiations that he had with appellant’s solicitor of the advertisements occurred prior to the execution of the written contract. He has not pleaded failure of consideration, fraud, mistake, accident, misrepresentations which induced the execution of the contract, or any equitable grounds for setting aside and not enforcing such contract. He merely alleged that under the contract dated February 13, 1963, appellant was to include in its Classified Section of its Telephone Directory an advertising display at the end of the “Parking Lot Maintenance” section of said Classified Telephone Directory. Several similar allegations are made, all referable to the written contract dated February 13, 1963. Clearly this was an attempt by appellee to vary the written contract by parol. Appellant objected and excepted to the evidence in support of such allegations, but its objections were overruled by the court. After both parties had rested, appellant moved the court for an instructed verdict, which the court refused to grant. Appellant also objected to the submission of special issues other than the first issue which inquired as to whether appellant and appellee entered into a written contract for the advertisements in question, which issue was answered by the jury in the affirmative.

The court erred in admitting in evidence the testimony of appellee with'respect to any prior negotiations or agreements which he had with appellant, since such negotiations and agreements, if any, were prior to the execution of the written contract and were merged therein, and the effect of such evidence was to vary a written instrument by parol. The court should have granted appellant’s motion for an instructed verdict. The law is so well settled that the contraction of unambiguous written contracts is for the court, and not the jury, that no citation of authorities is necessary.

In the instant case appellee admitted the execution of the contract, and he neither alleged nor proved fraud, accident, or mistake in the execution thereof. Under such circumstances the construction of such written contract was for the court. There were no fact issues to submit to the jury. Republic Nat. Life Ins. Co. v. Spillars, Tex.Sup.1963, 368 S.W.2d 92, 5 A.L.R.3d 957; City of San Antonio v. Lewis, 9 Tex. 69; Pan American Petroleum Corp. v. Texas Pac. Coal & Oil Co., 340 S.W.2d 548, Tex.Civ.App.1960, ref., n. r. e.; Aldridge v. Northeast Independent School Dist., 404 S.W.2d 655, Tex.Civ.App.1966, ref., n. r. e. It was error for the court to permit the introduction of parol evidence which varied and contradicted the terms of the written contract. In the absence of such parol evidence, the written contract presented no fact issues, and there was nothing for the court to do but enforce the contract according to its terms. Heffron v. Pollard, 73 Tex. 96, 11 S.W. 165; George v. El Paso County Water Con. & Imp. Dist. No. 1, 332 S.W.2d 144, Tex.Civ.App.1960, ref., n. r. e.; Davis v. Andrews, 361 S.W.2d 419, Tex.Civ.App.1962, ref., n. r. e.

The judgment of the Trial Court is reversed and judgment is here rendered in favor of appellant against appellee in the sum of $744.00, plus attorney’s fees as found by the jury, in the sum of $150.00, with interest thereon from June 29, 1966, at the rate of 6% per annum until paid.

Reversed and rendered in part, and in part affirmed.

COLEMAN, J., not sitting.


author: BELL, Chief Justice.

text:
    W. Gordon WING, Appellant, v. HOUSTON NATIONAL BANK, Guardian of the Estate of George B. Meyer, N/C/M, Appellee.
    No. 15001.
    Court of Civil Appeals of Texas. Houston.
    March 23, 1967.
    Rehearing Denied April 13, 1967.

      Charles Kipple, Houston, for appellant, Saccomanno, Clegg, Martin & Pinedo, Houston, of counsel.
    Hall E. Timanus, Houston, for appellee, Andrews, Kurth, Campbell & Jones, Houston, of counsel.
   BELL, Chief Justice.

This is an appeal from a summary judgment rendered in favor of appellee as Guardian of the Estate of George B. Meyer on a note executed by appellant on July 10, 1963, to River Oaks Bank & Trust Company. This note was in renewal of two notes aggregating in amount $189,000.00, one dated November 23, 1962 and one dated November 26, 1962. None of the notes was signed by Mrs. Loraine Meyer. These original two notes had previously been renewed and culminated in the execution of the note sued on. The note was assigned to the Guardian on January 24, 1964 after maturity, it paying the full amount of the principal and accrued interest. The principal of the note was $189,000.00. Judgment was for $256,264.02, which included principal, interest and attorney’s fee.

To the appellee’s petition appellant answered by general denial. Appellee then filed its unsworn motion for summary judgment. The motion was supported by a legally sufficient affidavit supporting the note, a Xerox copy of which was attached to the affidavit, and establishing all other facts necessary to support recovery as alleged in the petition.

Thereafter, and before hearing on the motion for summary judgment appellant filed an amended answer and attempted to support the allegations by his affidavit. The theory advanced was that Mrs. Loraine Meyer, the wife of appellee’s ward, entered into a joint venture with appellant and her son, George B. Meyer II. George B. Meyer was later declared N. C. M.

The amended answer asserted that the indebtedness sued on originated when money was borrowed from the River Oaks Bank & Trust Co. Copies of the notes representing the loans are attached. One is in the amount of $88,000.00 and is dated November 26, 1962 and the other is in the amount of $101,000.00 and is dated November 23, 1962. Both notes are signed by appellant and George B. Meyer II. The note here recovered on was signed only by appellant though he asserts it was to have also been signed by George B. Meyer II and he did not know until after it matured that it had not been so signed. The legal conclusion is then asserted that the loan evidenced by these two notes was obtained pursuant to a “joint venture” between appellant, George B. Meyer II, and Mrs. Loraine Meyer. Appellant pleads that at least one-half of the proceeds of the loan were distributed either to Loraine Meyer, wife of George B. Meyer, or George B. Meyer II as agent for Loraine Meyer. Appellant concludes from this that the appellee’s ward therefore received the benefit of at least one-half of the proceeds and that he is, therefore, entitled to a “set-off” of one-half of the principal and interest. Appellant alleges the River Oaks Bank & Trust Company was charged with notice of the arrangement.

Appellant also filed an affidavit. In it he asserts that at the time he, George B. Meyer II and Mrs. Meyer entered into an agreement to borrow the money evidenced by the notes, Mrs. Meyer was the wife of George B. Meyer. He recites that they had “several discussions” concerning their intentions to enter into the aero-space business. George B. Meyer II was to, and did, act in these matters for his mother. Mrs. Meyer received “some of the proceeds of the loan to reimburse her for advances she had already made to the joint venture” as did appellant and George B. Meyer II. He then asserts that “several of the proposed companies were organized and the balance of the proceeds were used to purchase the capital stock and to provide additional working capital.” After a short time the companies became insolvent. George B. Meyer II acted as director and an officer in the companies. It was asserted that Mrs. Meyer and her son borrowed from George B. Meyer 5,033 shares of Houston National Bank stock to use as collateral for the loan. “The proceeds of the loan went into our checking account * * * upon which George B. Meyer II and I both signed.” Attached to appellant’s affidavit were certain cancelled checks. One check was dated November 27, 1962, and was payable to Loraine M. Meyer in the amount of $18,000.00. It was signed by appellant and George B. Meyer II. Noted on it is “Return of Funds”. There is another check of the same date to George B. Meyer II in the amount of $25,000.00,’ signed by appellant and the payee. What it is for is not shown. We may assume, in the light of other allegations, that appellant contends the son received this for his mother as further reimbursement for advances made by her. On the same date there is a check to appellant for $25,000.00 and on it is the notation “Repayment of loan — $19,000.00—Advance $6,-000.00.” There are two checks of the same date to George V. Lister, Jr., one for $15,-000.00 and one for $500.00. One is marked “Return of funds” and the other is marked “Additional return of funds — interest”. There are some other checks payable to other persons. We fail to see any significance in them.

Appellant first urges that his allegations in the answer concerning set-off are admitted because appellee filed no reply. A general denial, sufficient here to join issue on appellant’s allegations, is furnished by Rule 82, Texas Rules of Civil Procedure.

Appellant filed a motion for new trial setting up, among other things, newly discovered evidence. The newly discovered evidence consisted of a petition of Loraine M. Meyer, consented to, according to the allegations of the petition and recital in the judgment, by her husband, to have her disabilities of coverture removed for mercantile and trading purposes, and the judgment removing such disability. The petition was filed and the judgment rendered and signed November 27, 1962.

Appellant, for reversal, in addition to the failure of appellee to deny the facts asserted by appellant allegedly entitling him to a set-off, asserts that his answer and supporting affidavit raise a fact issue concerning the benefits received by George B. Meyer by reason of the payments to Mrs. Meyer, and also that a fact issue was raised as to the amount of such payments. His contention rests on the assertion that property received during the marriage is presumptively community and therefore the payments to Mrs. Meyer were presumptively to the community, and thus George B. Meyer would have received a benefit from the funds evidenced by the note sued on and this was a discount or set-off to which appellant would be entitled.

The basic fallacy in appellant’s contention is that the money paid to Mrs. Meyer was presumptively community property. We think under the facts alleged in appellant’s answer and his affidavit the presumption is that the funds advanced by Mrs. Meyer were her separate funds and that when they were repaid out of the funds borrowed the proceeds were her separate estate.

There is absolutely no evidence from which an inference can be drawn that the funds advanced by Mrs. Meyer were community property. The fact that the husband is manager of the community, but as the record shows Mrs. Meyer made the advances, which she could legally do on her own only if the money was a part of her separate estate, raises the presumption that the funds advanced were a part of her separate estate. Watson, Independent Executrix v. Beatty, Administrator, 370 S.W.2d 790 (CCA), ref., n. r. e. The appellant’s own pleading, affidavit and exhibits show that the payments out of the funds obtained by the loan were in repayment of advances made by her. These funds would also be a part of her separate estate.

We think, admitting the allegations of appellant’s petition and affidavit, that as a matter of law no benefit to the community is shown that would entitle appellant to any off-set or discount.

There was no error in overruling the motion for new trial. Insofar as newly discovered evidence is alleged, the contents of the petition of Mrs. Meyer to have her disability of coverture removed are such as ■to show that she had a vast separate estate. This would but strengthen the presumption that her advances were from her separate estate. Even if she were authorized to engage in a joint venture after November 27, 1962, this could give no comfort to appellant because the record conclusively shows repayment to Mrs. Meyer out of funds borrowed by appellant and George B. Meyer II and not any earnings of a joint venture even if there was one.

Affirmed.

COLEMAN, J., not sitting.