author: CADENA, Justice.

text:
    H. E. BUTT GROCERY COMPANY, Appellant, v. William D. VAUGHT, Appellee.
    No. 14559.
    Court of Civil Appeals of Texas. San Antonio.
    March 1, 1967.
    Rehearing Denied April 19, 1967.

      Groce, Hebdon, Fahey & Smith, Damon Ball, San Antonio, for appellant.
    Oliver & Oliver, San Antonio, for ap-pellee.
   CADENA, Justice.

Defendant, H. E. Butt Grocery Company, a corporation domiciled in Nueces County, appeals from the order of a district court of Bexar County overruling its plea of privilege.

Plaintiff, William D. Vaught, filed this suit in Bexar County to recover for personal injuries allegedly sustained by him when he slipped and fell as a result of stepping on some slippery substance which had been spilled on the floor of defendant’s grocery store in Bexar County. The petition alleged that defendant was negligent in failing to make a proper inspection of the floor, in failing to discover and remove the substance, and in failing to maintain the floor in a reasonably safe condition for use by its customers and invitees.

In his controverting affidavit plaintiff sought to maintain venue in Bexar County under subdivision 9a and 23 of Article 1995, Vernon’s Ann.Civ.St. This plea, after first reciting that defendant operated grocery stores in Bexar County, where a representative of defendant resided, stated that the cause of action alleged by plaintiff in his petition arose in Bexar County, “as is shown by said petition, which said petition is here referred to and made a part hereof as though fully set forth herein.” The plea further set out that the suit was one for damages proximately caused by the negligence of defendant’s employees acting within the scope of their employment, and that such negligence occurred in Bexar County, “as is fully shown by plaintiff’s original petition made a part hereof as aforesaid.” The jurat attached to the controverting plea reflects that plaintiff swore that the facts set forth in such plea were true and correct.

Defendant first urges that the trial court erred in overruling its motion to strike plaintiff’s controverting affidavit on the ground that plaintiff did not swear that the allegations in his petition were true.

It is, of course, true that where defendant has filed a plea of privilege, plaintiff’s controverting affidavit must specifically set forth the grounds on which he seeks to maintain venue in the county where he has filed suit. Rule 86, Texas Rules of Civil Procedure. However, it is well settled that a plaintiff may incorporate his petition in his controverting plea by express reference to and adoption of its allegations. Cogdell v. Martin, 176 S.W.2d 982 (Tex.Civ.App., 1943, no writ) ; Rule 58, T.R.C.P.

While recognizing the propriety of incorporation by reference, defendant insists that, under the rule announced by the Supreme Court in A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939), the controverting plea in this case is insufficient because plaintiff did not definitely swear to the truth of the allegations contained in the petition. In Belo, the controverting affidavit referred to the petition solely “for the purpose of showing that this is a civil libel suit.” It seems clear that plaintiff in Belo mistakenly believed that the nature of the suit, rather than the actual existence of the libel, was the determinative fact. Therefore, the Supreme Court correctly held that plaintiff did not unreservedly swear that the facts alleged in the petition were true. The Supreme Court went on to recognize that where the controverting plea unmistakably alleges that the petition is made a part of the controverting plea, the party who swears to the controverting plea thereby swears to the essential facts embodied in the petition. 129 S.W.2d at p. 623.

The procedure followed by plaintiff in this case was held sufficient in Cox v. Cox, 304 S.W.2d 175 (Tex.Civ.App.,1957, no writ). See also 1 McDonald, Texas Civil Practice, § 4.49, p. 597 (1965 rev.). The question raised by defendant is discussed at length in Diamond Oil Well Drilling Co. v. Purser, 256 S.W.2d 421 (Tex.Civ.App., 1953, no writ.)

Defendant’s reliance on Eastland v. Whitman, 318 S.W.2d 447 (Tex.Civ.App., 1958, no writ), and C. F. Lytle Co. v. Preston, 175 S.W.2d 440 (Tex.Civ.App.,1943, no writ), is misplaced. In Eastland, although the controverting plea adopted the petition by reference, the Houston Court held that the plea was defective because plaintiff did not purport to swear that the allegations in the petition were true. This holding is obviously correct, since the jurat was not signed, there was no certificate of a person authorized to administer oaths, and the unsigned and uncertified jurat recited that it was made “on information and belief.” The simple truth is that in Eastland plaintiff did not purport to swear to the truth of anything.

Nor have we any quarrel with the holding in Preston, where the controverting plea did not adopt the allegations of the petition. But, while we agree with that holding, we find it unpersuasive where, as here, the petition is made a part of the controverting plea.

In overruling defendant’s first point, we are not unmindful of the opinion by the Supreme Court in Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688 (1943). There, during the course of the hearing on the plea of privilege, plaintiff was allowed to interline in his controverting affidavit the following: “That plaintiff makes full reference to his petition on file herein and makes same a part hereof as though fully copied herein with all its allegations in toto.” Plaintiff did not then verify the controverting plea again. It appears from the opinion of the Court of Civil Appeals in that case, 174 S.W.2d 98, 100, that when defendant’s bill of exception was presented to the trial court for approval, plaintiff was permitted to make oath as to the truth of the controverting plea as amended. Neither the opinion of the Supreme Court nor that of the Court of Civil Appeals establishes whether the second verification took place before or after the defendant’s plea of privilege had been overruled. However, the third question certified to the Supreme Court by the Court of Civil Appeals indicates that the second verification took place after the plea of privilege had been overruled. 174 S.W.2d at p. 102.

The opinion of the Supreme Court in Buchanan is not too informative. It first points out the practice of permitting amendment of pleadings by interlineation is, at least, “irregular,” and that, ordinarily, the amendment should be made either by filing a new pleading or by filing a trial amendment. Then the opinion continues: “But if * * * it was permissible to interline the amendment in the previously filed pleadings, it will be noted that the reference to the original petition does not evidence a clear intention to swear to the truth of all of the facts set out therein.” 172 S.W.2d at p. 689. The Supreme Court then concludes that, “after very careful consideration of the case,” it must be concluded “that the record as a whole presents error and that the ends of justice will be better sub-served if the judgment is reversed and the cause remanded and the parties are given an opportunity to try the issues on their merits under properly drawn pleadings.” Ibid.

We do not construe the opinion in Buchanan as an unequivocal holding that a controverting plea is insufficient even though it adopts the allegations of the plaintiff’s petition and the jurat states that the allegations in the controverting plea are true. We reach this conclusion for three reasons. In the first place, it is not clear that the questions certified to the Supreme Court by the Court of Civil Appeals raised this particular issue. See 174 S.W.2d at p. 102. Secondly, neither the opinion of the Supreme Court nor that of the Court of Civil Appeals sets out the language of the jurat to the controverting plea. Finally, this construction of the Buchanan case was adopted in Deal v. Grand Finance Co., 228 S.W.2d 984 (Tex.Civ.App.,1950, mandamus overruled), and in Diamond Oil Well Drilling Co. v. Purser, supra.

Defendant next contends that the trial court erred in overruling the plea of privilege because the evidence established that the danger resulting from the presence of the substance on the floor was so open and obvious as to relieve defendant of any duty to protect plaintiff or to warn him of the danger.

Plaintiff testified that on the date in question he went to defendant’s grocery store to purchase some plumbing supplies. He was unable to find what he wanted and proceeded to leave the store by walking in the direction of an “express” checkout counter. After taking some six or eight steps in the area between the “gondolas” (counters where merchandise is displayed for sale) and the checkout counters, he slipped and fell on some syrup that had been spilled on the floor. He said that he did not see the substance on the floor. The store manager came to assist him, explaining that a boy had been told to clean up the syrup. As a result of the fall, plaintiff suffered a broken hip.

Julian Alonzo, a former employee of defendant, testified by deposition. On the date in question, he was employed by defendant as a package boy at the store involved in this suit. Upon hearing a noise, he turned and saw that a little girl had dropped what appeared to be a quart bottle of Log Cabin syrup on the floor. One of the checkers told him to clean up the syrup from the floor, and he did so by using a cardboard box and a piece of cardboard, using the piece of cardboard to push the broken glass and as much of the syrup as possible into the box. After he had finished doing this, there remained a film of syrup which covered an area of about a foot. He then proceeded to a storeroom where he discarded the box and obtained a wet mop for the purpose of cleaning up the rest of the syrup. When he returned to the spot where the syrup had been spilled he saw plaintiff lying or sitting on the floor a few feet from the syrup.

Defendant’s witness, Rose Davenport, who was waiting to be checked out at the time of the accident, testified that after the boy had finished picking up some of the syrup and the glass in a box, the floor was “almost clean” but sticky. The boy had placed a grocery cart over the spot while he went to get the mop, but the cart did not completely cover the area. She saw plaintiff walking toward the checkout counter and told him to “watch out, look out and be careful,” but he evidently did not hear her.

We believe that plaintiff’s testimony that he did not see the syrup on the floor, together with the testimony of Julian Alonzo that after he had partially cleaned up the glass and syrup there remained only a film of syrup on the floor, and the testimony of Mrs. Davenport to the effect that the floor was almost clean and the spot in question had been partially covered by a grocery cart, is sufficient to support the implied finding by the trial court that the dangerous condition was not open and obvious.

Defendant next asserts that there was no evidence that defendant was guilty of negligence. The act of partially concealing the dangerous spot on an “almost clean” floor by placing a grocery cart over it is sufficient to support a finding of negligence and establishing that defendant, as alleged in plaintiff’s petition, failed to maintain the floor in a reasonably safe condition.

In view of our holdings above, we deem it unnecessary to discuss the other points raised by defendant, since, in any event, plaintiff established, by a preponderance of the evidence, a cause of action against defendant arising in Bexar County, and the action of the trial court in overruling defendant’s plea of privilege must be affirmed.

      . Under this subdivision, a suit based on negligence may be brought in the county where the act of negligence occurred.

      . Subdivision 23 allows suits against private corporations to be brought in the county in which the cause of action arose, or in the county in which plaintiff resided when the cause of action arose, provided that the corporation has an agent or representative in such county.

      . The controverting plea also asserted that venue was maintainable in Bexar County under Subd. 9, but since that subdivision does not apply to suits based on negligence, it has no relevance to this case.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    Katie MEIER et al., Appellants, v. SUNTEX OIL & GAS COMPANY et al., Appellees.
    No. 7704.
    Court of Civil Appeals of Texas. Amarillo.
    April 3, 1967.

      Sansing & Sansing, Higgins, Roy San-sing, Higgins, of counsel, Ronald Kaarbo, Liberal, Kan., for appellants.
    Lemon, Close & Atkinson, Perryton, Edward L. Atkinson, Perryton, Gordon Llewellyn, Dallas, of counsel, for appellees.
   NORTHCUTT, Justice.

This is a summary judgment case. Katie Meier, Irene Meier, W. W. Brown and wife, Connie E. Brown, as plaintiffs, brought this action against Suntex Oil & Gas Company, Paul M. Haywood, Lorene Haywood, John B. Stigall, Jr., as Trustee for Texas Bank & Trust Company of Dallas and Texas Bank & Trust Company of Dallas as defendants, seeking a judgment declaring a certain oil and gas lease terminated and expired under the terms of the lease. Suntex Oil & Gas Company, Paul M. Haywood and Lorene Haywood filed their answer to the plaintiffs’ suit and then filed their application for summary judgment relying upon the affidavit of Paul M. Haywood, affidavit of Basil Duke, Jr., pleadings of all parties and depositions of Paul M. Haywood and W. W. Brown to sustain their motion. Plaintiffs filed their opposition of the motion for summary judgment contending defendants hád not complied with the terms of the oil and gas lease. The motion for summary judgment was sustained and ordered that the plaintiffs recover nothing of and from the defendants. From that judgment the plaintiffs perfected this appeal. The parties hereafter will be referred to herein as they were in the trial court.

Plaintiffs present this appeal upon three points of error. By the first point it is urged that the court erred in sustaining the motion for summary judgment because all necessary and indispensable parties were not before the court. The plaintiffs brought this action against defendants seeking to terminate the oil and gas lease. The trial court refused the plaintiffs’ contention and left the lease in force. Consequently, matters were left as they were before the suit was filed. No one other than the plaintiffs were contending the lease should be terminated and if there were other parties that would have been affected by the suit it was plaintiffs’ duty to make them parties. Plaintiffs did not raise the issue of necessary parties in the trial court and for the first time after judgment was rendered against them present that contention in this appeal. No one’s rights except the parties in this suit were affected by the judgment entered. The only thing the plaintiffs sought to do in this case was to cancel the oil and gas lease of the defendants. It was plaintiffs’ duty to bring the proper parties into court and where they failed to do so they cannot complain of their own negligence. Hurt v. Marshall, 75 Tex. 452, 13 S.W. 33 (1889); Morris v. Drescher, 123 S.W.2d 958 (Tex.Civ.App. — Waco. 1938, writ ref’d) but should we be wrong in so holding and that there were other parties interested in the lease such would be harmless error because the lease is still in force and effect and their rights are in no way affected by the summary judgment. We overrule plaintiffs’ first point of error.

By plaintiffs’ second point of error it is contended the court erred in sustaining defendants’ motion for summary judgment and entering judgment for defendants because there was a genuine issue of fact raised by the record, deposition and the affidavits offered in support of plaintiffs’ opposition to defendants’ motion for summary judgment. By plaintiffs’ third point of error it is contended there was a genuine issue of fact raised as to whether or not defendants were in good faith in their reworking operations after December 5, 1965. We will consider both of these points together.

On October 17, 1955, Alex Meier, administrator of the estate of Ted Meier, deceased, Katie Meier, a widow, and Irene Mae Meier, a feme sole, as lessors made, executed and conveyed an oil and gas lease in favor of Paul M. Haywood as lessee for a primary period of ten years covering the northwest quarter of Section No. 1127 in Block No. 43, H. & T. C. R.R. Co. Survey containing 160 acres; the east one-half of Section No. 1162, Block No. 43, H. & T. C. R.R. Co. Survey containing 322.70 acres; and the tract of 63.51 acres out of Survey No. 159, Block 10, B. B. B. & C. Co. Survey, all in Lipscomb County, Texas, making the total of 546.21 acres in all. Haywood later farmed out the oil rights in this acreage to Suntex.

The lease, Subdivision 4, provides as follows :

“4. If operations for drilling are not commenced on said land on or before the 17th day of October, 1956, the lease shall then terminate as to both parties unless on or before such date Lessee shall pay or tender to Lessor or to the credit of Lessor in the First National Bank at Darrouzett, Texas (which bank and its successors shall continue as the depository for all rentals payable hereunder regardless of changes in ownership of said land or of the rentals) the sum of Five hundred forty-six and 21/100 Dollars ($546.21) (herein called rentals), which shall cover the privilege of deferring commencement of operations for drilling for a period of twelve (12) months. In like manner and upon like payments or tenders annually the commencement of operations for drilling may be further deferred for successive periods of twelve (12) months each during the primary term. The payment or tender of rentals may be made by the check or draft of Lessee mailed or delivered to lessor or to said bank or its successor on or before such date.”

The lease, Subdivision 5, further provides as follows:

“5. If prior to discovery of oil, gas or other mineral on said land lease should drill a dry hole or holes thereon, or if after discovery of oil, gas or other mineral all wells thereon should become incapable of producing for any cause, this lease shall not terminate if Lessee commences operations for additional drilling or for reworking within sixty (60) days thereafter or (If it be within the primary term) commences or resumes the payment or tender of rentals on or before the rental paying date next ensuing after the expiration of sixty (60) days from date of completion of dry hole or cessation of production. If at the expiration of the primary term there is no well upon said land capable of producing oil, gas or other mineral, but lessee has commenced operations for drilling or reworking thereon, the lease shall remain in force so long as operations are prosecuted with no cessation of more than thirty (30) days. * * ‡ »

The lease, Subdivision 12, further provides :

“12. The rights of either party hereunder may be assigned in whole or in part,' and the provisions hereof shall extend to the heirs, executors, administrators, successors and assigns of the parties hereto. Notwithstanding any actual or constructive knowledge of or notice to Lessee, no change or division in the ownership of the lands, royalties, or rentals, however accomplished, shall be binding upon the Lessee (except at Lessee’s Option in any particular case), until thirty (30) days after Lessee shall have been furnished with the original, a copy certified by the official recorder of the county where the land or some part thereof is located, or a photostat of the recorded instrument or instruments evidencing the change or transfer, including any intermediate transfer from the Lessor or his assigns not theretofore furnished to Lessee, and such change or transfer shall not affect any payments made prior to said date whether or not due. In case of death of any person entitled to receive royalties or rentals, the evidence of change in ownership shall consist of letters of administration or final decree of distribution of the estate of the decedent issued by a court of competent jurisdiction of the decedent’s estate including his interest in the lands above described. Lessee may until such date continue to pay such royalties and rentals as if such change or transfer had not been made, or may pay the same according to the interests of record as disclosed by the last certification of an abstract in Lessee’s possession subsequent to the date of the lease, or at Lessee’s option, may suspend the payment thereof until thirty (30) days after such evidence is received. No change or division of the ownership of the land, royalties or rentals shall operate to enlarge the obligations or diminish the rights of the lessee. No division of royalties shall be made effective except at the end of a calendar month.”

All deferred rentals were paid as provided for in the lease.

The lease was continued in full force and effect between October 17, 1955, and October 17, 1962, by properly and timely payments of delay rentals. In August of 1962 Haywood commenced drilling the first well on the east half of Section 1162 and it was completed as a commercial gas well on September 5, 1962. Shut-in gas royalties or rentals were timely and properly paid for the period of October 17, 1962, to October 17, 1964. Production from this well was commenced on June 23, 1964, and continued to produce in paying quantities until about October 1, 1965. At this time salt water became so strong in the well it became necessary to rework the well in order to keep the well producing gas. We will not give the dates and exact work done thereafter but they are given in defendants’ affidavit in support of their motion for summary judgment. The defendants began reworking operations on the well on October 17, 1965, and the operations were prosecuted with no cessation of more than thirty days until January 27, 1966. On January 17, 1966, Suntex Oil & Gas Company started two wells on the lease here involved, one well to be on Section 1162 and the other on the 63.51 acreage and obtained Railroad Commission approval to drill such additional wells. On February 14, 1966, Suntex commenced drilling operations on another well on Section No. 1162 and dug the rat hole and mouse hole for drilling. Immediately the plaintiffs padlocked the gate in the entrance to the location and thereby excluded Suntex from the lease premises. Plaintiffs’ attorney advised defendants’ attorney that suit would be filed immediately and that Suntex should not enter the premises. The defendants did not proceed further. This suit was filed on February 25, 1966.

In the plaintiffs’ opposition to defendants’ motion for summary judgment it is contended as one of the reasons why a summary judgment should not be granted that W. W. Brown had purchased the surface and one-half of the minerals in the 63.51 tract and had never been paid delay rentals nor any gas and oil royalties, then further alleged that the work done by defendants was not done in good faith and was only nominal or fictitious operations in an attempt to maintain the lease in force. Plaintiffs contend there are three genuine issues of fact before the court; namely, (1) Did the defendants waive their right under the oil and gas lease to have W. W. Brown present them with a certified copy of the deed by which Brown acquired title to an undivided one-half of the minerals in the 63.51 acre tract? (2) Did Paul Haywood receive a copy of the deed from Basil Duke, Jr. ? and (3) Did the defendants rework the Meier No. 1 in good faith? The affidavit of Alex Meier in support of plaintiffs’ opposition to the motion for summary judgment does not state anything as to W. W. Brown. The other two matters set out in the affidavit are what someone told him and his conclusions of law. The affidavit does not state any facts that would be admissible in evidence. It is stated in Chumchal v. Natural Gas Pipeline Co. of America, 381 S.W.2d 690 (Tex.Civ.App.—Corpus Christi, 1964, no writ) citing several Supreme Court opinions as follows:

“Rule 166-A provides that the supporting and opposing affidavits shall be made on personal knowledge, and shall set forth facts which would be admissible in evidence, and show affirmatively that affi-ant is competent to testify to the matters testified therein. Appellant’s deposition shows affirmatively that any statement of hers in her affidavit or in her pleadings concerning the date or dates of appellees’ alleged trespass on her property is based on hearsay, and cannot be useful to her in raising a fact issue to answer Pivonka’s evidence. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317; Heien v. Crabtree, Tex. Civ.App., 364 S.W.2d 271, aff’d Supreme Court, 369 S.W.2d 28; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, writ ref. The sworn evidence of Pivonka that the excavations on appellant’s land had been completed more than two years prior to the filing of appellant’s suit stands uncontradicted by any competent evidence.”

See also Sparkman v. McWhirter, 263 S. W.2d 832 (Tex.Civ.App.—Dallas, 1953, writ ref’d). Consequently, we overrule plaintiffs’ contention that there was an issue that the defendants did not rework the Meier No. 1 in good faith.

The affidavits of Haywood, Duke and Brown all show that the defendants were never delivered any deed or any other instrument showing Brown owned the 63.51 acre tract as provided for in the lease. Brown swore that Haywood saw the deed from the Meiers to him that was in escrow in the bank. Brown no way contended he had complied with Section. 12 of the oil and gas lease, supra, that would entitle him to any rentals or royalties provided for in the lease. Before Brown would have any action as against the defendants he would have had to comply with the provisions of the lease. The defendants were required to pay lessors their proportionate share of delay rentals, which they did and is in no way denied. However, defendants were not bound by any transfer or assignment of interest until they had been furnished with the instruments as set out in Subdivision 12 of the lease as shown above. Benson v. Lacy, 202 S.W.2d 689 (Tex.Civ.App.—Texarkana, no writ); Gulf Refining Co. v. Shatford, 159 F.2d 231 (5th Cir., 1947).

Under this record it is shown that the defendants had complied with the terms of the lease and were continuing to proceed under the terms of the lease until locked out from the land covered in the lease and the filing of this suit. Brown’s rights were limited to the 63.51 acre tract. He had no interest in the royalties from the gas well on Section 1162. Japhet v. McRae, 276 S.W. 669 (Tex.Comm’n App., judg. adopted, 1925); Hinds v. McCord, 45 S.W.2d 442 (Tex.Civ.App.—Austin, 1931, no writ).

It is stated in Atwood v. Humble Oil & Refining Company, 338 F.2d 502 at 507 (5th Cir., 1964) (certiorari denied, 381 U.S. 926, 85 S.Ct. 1562, 14 L.Ed.2d 684, rehearing denied 381 U.S. 956, 85 S.Ct. 1804, 14 L. Ed.2d 729) as follows:

“Where land leased for oil and gas is subdivided in Texas, absent agreement to the contrary, the owner of the subdivided tract is entitled to all of the royalties resulting from the production of oil and gas upon his parcel of land. He does not share in the royalties of the whole undivided tract in the proportion that the area of his land bears to the entire tract. The leading Texas case is Japhet v. McRae, 276 S.W. 669 (Tex.Comm.App.1925, judg. adopted by Tex.Sup.Ct.).”

After careful consideration we overrule all three of plaintiffs’ points of error. Judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

text:
    Eveline GREENER et al., Appellants, v. Herbert GREENER et ux., Appellees.
    No. 7692.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 27, 1967.
    Rehearing Denied April 3, 1967.

      McCown & Sheehan and Louis T. Du-buque, Dumas, Warren Conner, Sealy, for appellants.
    LaFont, Tudor, Tunnell, Formby & Reep, Plainview, H. M. LaFont, Plainview, of counsel, for appellees.
   CHAPMAN, Justice.

In 1959 Sylvester Greener and Herbert Greener, brothers, were farming rather extensively under a partnership arrangement. On March 2, 1959, they each made application with United Fidelity Life Insurance Company for a $40,000 policy of life insurance on the other. Each policy was duly issued by the company during the same month and premiums paid by each on the policy of the other’s life until the death of Sylvester Greener in 1961.

This suit was filed by the surviving widow of Sylvester Greener, Mrs. Eveline Greener, individually, as next friend of her minor children, and as co-trustee with Joe Beseda, the other co-trustee under the testamentary trust of Sylvester Greener, .deceased, against Herbert Greener and wife, Linda Greener, seeking to establish a constructive trust upon the proceeds of the above-mentioned $40,000 insurance policy upon the life of Sylvester Greener, deceased, and a section of land to the extent such proceeds were used in its purchase. The case was tried to a jury, which answered eight of the ten issues submitted and then announced in open court they had been unable to answer two issues. The court sent them back to the jury room with instructions to the foreman to sign the verdict. No objections were made by plaintiffs to dismissal of the jury and receipt of the verdict with the two issues unanswered nor does the record show a motion for mistrial. Motion for judgment was filed by defendants on March 23, 1966, after receipt of the verdict and dismissal of the jury on March 19, 1966. Answer to the motion was filed on March 30, 1966, and judgment granted for defendants on April 1, 1966. The first objection of plaintiffs to receipt of the ver-diet was made in reply to defendants’ motion for judgment.

The parties will be hereinafter referred to as appellants and appellees or by their names.

All emphases hereinafter shown are ours.

Appellants contend by brief that after the jury had deliberated “some twelve hours,” having “returned once before and been sent back,” it would have been useless to return them for further deliberation, therefore, it was not incumbent upon them to object to receipt of the verdict and dismissal of the jury with the verdict incomplete. We are unable to find support in the record for such assertions. Upon the hearing of appellants’ motion for new trial the foreman of the jury testified they deliberated “part of one afternoon and then one morning until noon.” So, it would appear the period of deliberation by the jury would have been more nearly six hours. Additionally, there is not anything in the record to show a previous report of failure to answer any issues.

The case had taken March 16th, 17th and until it was submitted to the jury during the afternoon of the 18th for the testimony, requiring 354 pages in the statement of facts. It was hotly contested and submitted upon ten special issues making inquiry as to that many separate findings. When the jury reported at noon, March 19th, the court in the presence of counsel read the answers in open court that had been made to the issues. Therefore, appellants at that time knew of the two unanswered issues.

Appellants’ first point asserts error of the trial court in granting a motion for judgment for the reason that the two unanswered issues are controlling and must be answered before judgment could be rendered. They seek to distinguish the Lewis rule and the cases which follow it. They rely on Goyne v. McDaniel, 383 S.W.2d 934 (Tex.Civ.App.-Waco, 1964, writ ref’d n. r. e.).

The latter case cited involved an effort to mandamus a trial court to render judgment in a personal injury suit in which the plaintiff had been absolved of negligence by the material contributory negligence issues answered and defendant’s driver had been found to have acted as an ordinary prudent person concerning a “sudden emergency” issue. However, unanswered issues related to defendant’s negligence in several respects and the corollary proximate cause issues. The trial court recited in its order declaring a mistrial in that case that the verdict was incomplete and insufficient to support a judgment.

Here, as in the Lewis case, no objection was made that the verdict was incomplete. Neither was there an objection made to the trial judge’s instruction to the foreman to sign the verdict, that the verdict not be accepted, nor that the jury not be discharged. Only appellants could possibly have benefitted from a reconsideration by the jury of the verdict returned. It was incumbent upon them to preserve any error of the trial court in accepting the verdict as returned, with two issues unanswered. Continental Casualty Company v. Street, supra; Lewis v. Texas Employers’ Ins. Ass’n, supra.

The Supreme Court, after stating in effect in the Lewis case that the trial court may have committed reversible error had he refused upon request to require the jury to reconsider the verdict and, if possible, answer the unanswered issues, then held: “The question at bar is not whether the trial court committed error ' but whether that error must be preserved by timely objection in order to be reviewed on appeal.” “What was there waived [as in the instant case] was the right to attack a judgment for .a procedural error by failure to preserve the error.” Goyne v. McDaniel, supra.

Justice Wilson, writing for the Waco court in the Goyne case concerning the Lewis rule, said: “The rule urged applies to judgments rendered; not to the right to require a judgment to be rendered. Panhandle & S. F. Ry. Co. v. Sutton, 125 Tex. 401, 81 S.W.2d 1005.” In both the Goyne case and Sutton case the relief sought was mandamus to require a judgment to be rendered; whereas, in the Lewis case and our case the attacks were upon judgments rendered upon incomplete verdicts without objections by the appellants to receipt of such verdicts and dismissal of the juries with the issues unanswered.

Although the unanswered special issue No. 2 inquiring of the jury if Herbert Greener and Sylvester Greener orally agreed that if either of them died the beneficiary of the life insurance policy of the person that died would take the proceeds of such insurance policy and use it to pay the debts, estate and inheritance taxes against the estate of the deceased brother, it would not have been error for the trial judge to have left such issue or the other unanswered issue out of his charge had neither party requested its submission. Upon the jury’s returning the incomplete verdict, just as in the Lewis case, either party could have expressly waived a further consideration of the verdict by the jury. Lewis v. Texas Employers’ Ins. Ass’n, supra.

The questions answered in Special Issues 5 and 6 refuted appellants’ contentions that Herbert Greener did not act in good faith in retaining the proceeds of the policy of insurance on Sylvester Greener’s life, with no intent to defraud appellants, and that such retention constituted unconscionable acquisition of appellants’ property. The issues were obviously based upon appellants’ pleadings “ * * * that such withholding of the funds by defendant Herbert Greener is an unconscionable acquisition of appellants’ property and is in fraud of the rights of plaintiffs herein and the beneficiaries under the trusts herein described.”' Here, just as in the Lewis case, “There are not inconsistent findings one of which the trial judge had to ignore in order to render judgment.” Lewis v. Texas Employers’ Ins. Ass’n, supra.

The pleadings by appellants of lack of good faith, with intent to defraud and the unconscionable acquisition of appellants’ property by Herbert Greener as being in fraud of the rights of appellants and the beneficiaries under Sylvester Greener’s trust provided in his will furnished a principal part of the basis for the suit to establish a constructive trust.

An authoritative text writer has suggested that constructive trusts may be used in a variety of situations to provide a remedy better suited to the circumstances of the particular case, “ * * * sometimes to develop a new field of equitable interposition, as in what we have come to think the typical case of constructive trust, namely, specific restitution of a received benefit in order to prevent unjust enrichment.” Roscoe Pound, 33 Harvard Law Review, 1919-20, p. 421.

Bogert, a text writer on trusts, has said “It is sometimes loosely stated that ‘fraud’ is at the bottom of every constructive trust. * * * it is not true that all constructive trusts are based on ‘fraud,’ unless that word is used in its broadest sense, as including all conduct which equity treats as unfair, unconscionable, and unjust.” Bogert, Trusts & Trustees, 2d Edition, sec. 471, p. 10.

The Supreme Court of Texas in discussing trusts, where one joint adventurer had taken an oil and gas lease in his own name in violation of the original agreement that it was to be taken in the name of all three joint adventurers, stated:

“This trust arose not because there was any agreement for the title to be taken in the name of petitioner, and the property to be held by him in trust for the respondents — as would be necessary to constitute an express trust — but, because under the facts, equity would raise the trust to protect the rights of the respondents, and to prevent the unjust enrichment of petitioner by his violation of his promise and duty to the respondents to take title in the name of the three of them, and for their mutual profit and advantage.” Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951).

The case from which we have just quoted also quoted with approval from another authority as follows:

“ ‘An unfair transaction between a confider and a confidant or fiduciary, at least where the confidence is induced by a fiduciary relationship between the parties, gives rise to a constructive trust in respect of any unjust enrichment of the confidant or fiduciary.’ ”

The text writer on trusts in Texas Jurisprudence 2d states: “It is said that fraud, actual or constructive, is an essential element in the creation or existence of a constructive trust. Some species of the constructive trusts arise from actual fraud, and •others spring from the violation of some positive fiduciary obligation; in all the remaining instances there is, though often latent, an element of unconscientious conduct known to equity as constructive fraud.” 57 Tex.Jur.2d sec. 68, p. 460.

In 4 Scott on Trusts, p. 3101, sec. 462 (2d ed., 1956), it is stated:

“Many attempts to define or describe a constructive trust would seem to be inadequate because the definition or description is too narrow in its scope and fails to include important types of constructive trusts. Thus it is frequently said that a constructive trust is imposed as a remedy for fraud.”

The same text writer at Page 3103, 4 Scott on Trusts, states:

“A constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.”

Regardless of the many and varied types of constructive trusts, the type pleaded here upon which Special Issues 5 and 6 were based was an alleged fraud practiced by Herbert Greener resulting in appellees being unjustly enriched at the expense of appellants and the beneficiaries of the Sylvester Greener trust.

“In this situation, where the verdict is not conflicting and finds facts which support all the elements necessary for a judgment, the error is not preserved unless brought to the trial judge’s attention in time to have the jury reconsider and complete their verdict.” Lewis v. Texas Employers’ Ins. Ass’n, supra. See also Continental Casualty Company v. Street, supra.

Appellants tried their case at least in part upon the theories represented in Special Issues 5 and 6. Undoubtedly, they would have insisted upon a judgment in their favor had such issues been answered favorably to them. We do not believe they can now complain that the issues were immaterial and not controlling.

Accordingly, the judgment of the trial court is affirmed.

      . Lewis v. Texas Employers’ Ins. Ass’n, 151 Tex. 95, 246 S.W.2d 599 (1952).

      . Continental Casualty Company v. Street, 379 S.W.2d 648 (Tex.1964) ; Thompson v. Graham, 333 S.W.2d 663 (Tex.Civ.App.-Eastland, 1960, writ ref’d n. r. e.) ; Commercial Standard Insurance Company v. Villa, 313 S.W.2d 627 (Tex.Civ.App.-Eastland, 1958, writ ref’d n. r. e.); Boyer v. Gulf, Colorado & Santa Fe Railway Company, 306 S.W.2d 215, 223, 80 A.L.R. 2d 287 (Tex.Civ.App.-Houston, 1957, writ ref’d n. r. e.).


author: HUGHES, Justice.

text:
    Lon EVANS, Sheriff of Tarrant County, et al., Appellants, v. HENRY S. MILLER COMPANY, Appellee.
    No. 11492.
    Court of Civil Appeals of Texas. Austin.
    April 5, 1967.
    Rehearing Denied April 26, 1967.
    Brown, Herman, Scott, Young & Dean, Beale Dean, J. Shelby Sharpe, Fort Worth, for appellants.
    Whitener, Price, Lewis & Steinberg, Lawrence E. Steinberg, Dallas, for appellee.
   HUGHES, Justice.

This appeal is by Lon Evans, Sheriff of Tarrant County, and Fireman’s Insurance Company of Newark, New Jersey, from an order of the trial court striking their pleas of privilege to be sued in Tarrant County. The Henry S. Miller Company is appellee. The question presented is one of law, arising from the following facts and proceedings:

The Henry S. Miller Company obtained a money judgment November 16, 1965, in cause styled Henry S. Miller Company v. Joseph Shoaf, No. 65-2334-C, in the 68th Judicial District Court of Dallas County. Execution was issued on this judgment on December 9, 1965, and placed in the hands of appellant, Lon S. Evans, Sheriff of Tarrant County, for execution as therein directed. This execution was returned un-executed.

On January 5, 1966, execution was again issued on this judgment and placed in the hands of Sheriff Evans for execution. He returned this execution unexecuted.

On May 17, 1966, appellee filed a motion in the case of Miller v. Shoaf, supra, against Sheriff Evans and Fireman’s Insurance Company of Newark, New Jersey, in which it was alleged that Lon Evans was Sheriff of Tarrant County and Fireman’s was surety on his official bond as Sheriff filed with the County Clerk of Tarrant County and approved by the County Judge of Tar-rant County.

It was further alleged in this motion that when the execution of December 15, 1966, was placed in the hands of Sheriff Evans that attorneys for Miller Company advised Sheriff Evans in writing that the defendant in such judgment, Shoaf, owned certain described realty in Tarrant County.

When the execution issued January 5, 1966, was placed in the hands of Sheriff Evans it was alleged he was again requested in writing to levy on certain described real estate in Tarrant County. Again on February 15, 1966, so it was alleged, the Sheriff was requested in writing to levy on such real estate. It was also alleged in such motion that the property on which levy was sought and which was subject to execution had been transferred by the owner to the damage of the plaintiff in execution.

The prayer of this motion was that the Sheriff and his surety be cited to appear and show cause why they should not be required to pay the unpaid portion of the judgment held by the Miller Company against Shoaf, plus interest and costs.

This motion was filed under the provisions of Art. 3825, Vernon’s Ann.Tex.Civ. St., which reads:

“Art. 3825. [3776] [2386] [2326] Failure to levy or sell
Should an officer fail or refuse to levy upon or sell any property subject to execution, when the same might have been done, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from which said execution issued, five days previous notice thereof being given to said officer and his sureties.”

Appellants contend that Sub. 30, Art. 1995, and Art. 7.01 of the Texas Insurance Code, V.T.C.S., are controlling on the venue of this proceeding.

We quote Sub. 30 and the relevant portion of Art. 7.01, supra:

“Art. 1995. [1830] [1194] [1198] Venue, general rule
30. Special venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”
“Art. 7.01. Venue of Suit on Bond; Service
If any suit shall be instituted upon any bond or obligation of any insurance company licensed in this State and having authority to act as surety and guarantor of the fidelity of employees, trustees, executors, administrators, guardians or others appointed to, or assuming the performance of any trust, public or private, * * * upon any bond or bonds that may be required of any state official, district official, county official or official or any school district or of any municipality, the proper court of the county wherein said bond is filed shall have jurisdiction of said cause. * * * ”

It is our opinion that the motion filed by appellee under the provisions and by the authority of Art. 3825 are not subject to the pleas of privilege filed by appellants and that Sub. 30 and Art. 7.01, supra, are inapplicable.

The liability of a sheriff and constable for failure to execute a Writ of Execution is discussed in 11 Texas Law Review 251 as follows:

“The primary object of the above statute [Article 3825] is to compensate the Plaintiff in execution for the default of the officer; such default makes the officer prima facie liable, and the burden is upon the sheriff to show that nothing could have been realized if the sheriff had used proper official diligence, * *
The motion against the sheriff provided in the statute is not a new suit but is only a continuation of the suit by which the judgment was gained. Hicks v. Gray, 25 Tex. 83 (1860); Banner v. Henry, 31 S.W. 1098 (Tex.Civ. App. 1895). The motion must be brought in the county in which the judgment was granted. DeWitt v. Dunn, 15 Tex. 106
(1855); De La Garza v. Booth, 28 Tex. 478, 91 Am.Dec. 328 (1866); Robinson v. Schmidt & Zeigler, 48 Tex. 13 (1877) * * * The remedy by motion is held to be only cumulative, De La Garza v. Booth, supra; Banner v. Henry, supra; but damages provided by statute are recoverable only by motion, Scogins v. Perry, 46 Tex. 11 (1876).”

52 Tex.Jur.2d, Sheriffs, Constables, etc., Sec. 61, p. 343 is to the same effect. We quote therefrom:

“In contravention of the rules governing venue of suits, a motion in summary proceedings against a levying officer, being not a new suit, but the continuation of proceedings in a suit, is necessarily filed in the court in which the suit was instituted.”

Appellant cites Murray v. Evans, 25 Tex.Civ.App. 331, 60 S.W. 786, (1901) n. w. h. and Nowotny v. Grona, 44 Tex.Civ.App. 325, 98 S.W. 416, (1906) writ ref. as holding that a proceeding such as we have here is a suit.

The Court in Murray v. Evans states that when the statute (Art. 2386 R.C.S. 1895) is analyzed “it will be seen that it merely authorizes a suit to be brought against the officer in a different form and earlier than perhaps it otherwise could be brought, and, in some instances, fixes the venue different from what it otherwise would be.”

In Nowotny v. Grona, the Court held that a proceeding under Art. 2386, supra, was an ordinary civil suit.

We do not disagree with these decisions. We believe the proceedings below constitute a suit. Whether it is a new suit, an ordinary suit or a continuation of the old suit is, in our opinion, of no consequence. It is a proceeding or suit which is not subject to a plea of privilege. See Cowan v. State, 356 S.W.2d 170, Tex.Civ. App., Austin, writ dismissed.

It would be a very strange construction of Art. 3825 to hold that it required the filing of the motion in a court which lacked venue if the parties against whom it was filed were nonresidents of the county.

It is quite true that Art. 7.01 of the Insurance Code provides for special venue in suits of the nature described and but for the provisions of Art. 3825 would fix venue of a suit seeking the relief here sought. Art. 3825, however, is more limited in scope than Art. 7.01 of the Insurance Code. The category of suits for which it fixes venue is less general and more restrictive than those described in Art. 7.01. Being more specific, Art. 3825 must prevail as to venue when its provisions are properly invoked over the more general provisions of Art. 7.01 of the Insurance Code. This is a general rule for statutory construction.

The action of the trial court in striking appellants’ pleas of privilege is the equivalent of overruling them. See Cowan v. State, 356 S.W.2d 170, supra. As thus construed, we affirm the judgment of the trial court.

Affirmed.


author: MOORE, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. J. D. AMASON, Appellee.
    No. 274.
    Court of Civil Appeals of Texas. Tyler.
    April 6, 1967.

      Ramey, Brelsford, Flock & Devereux, Tracy Crawford, Tyler, for appellant.
    Smith, Johnson & McDowell, Howard S. Smith, Sulphur Springs, Woodrow H. Edwards, Mount Vernon, for appellee.
   MOORE, Justice.

This is a workmen’s compensation case. Appellee, J. D. Amason, sued appellant, The Travelers Insurance Company, for workmen’s compensation insurance alleging that he sustained an injury while in the course' and scope of his employment for Bryan Hanks, and as a result of his injury, he sustained total and permanent disability and by reason thereof, he was entitled to judgment for compensation insurance for 401 weeks at the rate of $35.00 per week.

The cause was submitted to a jury and in response to the special issues, the jury found as follows: (1, 2, 3) that appellant suffered an accidental injury in the course and scope of his employment; (4, 5) that he suffered total disability which commenced on May 14, 1965; (6, 7) that his total disability was temporary and would continue for 260 weeks; (8, 9) that appellant suffered partial disability commencing on May 14, 1965; (10) that such partial disability was permanent; and (12) that the average weekly wage earning capacity of the appellee during the existence of his partial incapacity was “none.”

Over appellant’s objection, the trial court refused to submit the question of appellee’s wage rate following total disability as provided by Article 8309, Sec. 1, Vernon’s Ann. Tex.St., on the theory that the issue was without dispute, which accounts for the fact that there was no finding by the jury on wage rates.

Prior to entry of the judgment, appellant moved for a mistrial on the ground that the jury’s answers to the special issues were in fatal and irreconcilable conflict. The trial court overruled the motion and rendered judgment on the verdict for appellee for 260 weeks of temporary total disability benefits at the rate of $35.00 per week.

Appellant duly perfected this appeal and has assigned six points of error. By the first three points, appellant contends that the judgment must be reversed because the trial court erred in refusing appellant’s motion for a mistrial and in rendering judgment based upon a verdict which was in fatal and irreconcilable conflict. By point 4, it is contended that the court erred in refusing' to submit an issue on appellee’s wage rate and by points 5 and 6, it is contended that the court erred in disregarding the findings of the jury on the defensive issues of partial disability.

In response, appellee contends that there was no conflict in the verdict as relied upon by the court in rendering judgment. His argument is that the court was authorized to disregard all issues relating to partial disability. Based upon this premise, he reasons that since the court based his judgment upon the finding of temporary total disability, in which there is no conflict, the judgment is not based upon a conflicting verdict. Appellee further asserts that even though a conflict does exist, appellant is in no position to complain inasmuch as the judgment was for only 260 weeks of total disability and was therefore for a lesser amount than it would have been had the judgment been based on the issues finding 100% permanent partial disability.

The testimony is sharply controverted as to whether the appellee was totally incapacitated or partially incapacitated. In this connection, the court submitted the following definitions and instructions:

“You are instructed that in connection with the term ‘total incapacity,’ wherever it may appear in this charge, shall have the following meaning:
“It shall not mean an absolute incapacity to perform any kind of labor, but a person incapacitated to such an extent or degree that he cannot perform the usual tasks of a workman in such manner as to be able to procure and to retain employment, is to be regarded as being totally incapacitated.
« ⅜ ⅜ ⅜
“You are instructed in connection with the term ‘partial incapacity,’ wherever it may appear in this charge, that the same shall have the following meaning:
“It shall mean where an employee, by reason of an injury sustained in the course of his employment, is only able to perform part of the usual tasks of a workman, but nevertheless, is able to procure and retain employment reasonably suitable to his physical condition and ability to work, or is able to perform labor of a less remunerative class than he performed prior to his injury, whereby he suffers a depreciation or reduction-in his earning capacity. A person cannot be totally incapacitated and partially incapacitated at the same time.”

Under the Workmen’s Compensation Act, and under the definitions and instructions above quoted, a person who has no wage earning capacity is totally and not partially incapacitated. Insurance Company of North America v. Brown, 394 S.W.2d 787, (Sup.Ct., 1965).

The answer in response to special issue No. 4 that the appellee suffered total disability for only 260 weeks and the answer to special issue No. 12 that he had no wage earning capacity during a subsequent period of disability are in conflict because in the first issue, the jury found his total disability was limited to 260 weeks, while in the latter, they found that he would have no earning capacity whatsoever for a longer period of time. The answers to special issue No. 7 showing that appellee was only partially disabled and special issue No. 12 finding that he had no wage earning capacity are also conflicting.

Appellee argues that such a conflict is not fatal because there is no combination of answers which would entitle the appellant to a more favorable judgment than that rendered by the trial court and therefore appellant insurance company is estopped to complain of the judgment.

This same argument, as we understand it, was also advanced in the case of Insurance Company of North America v. Brown, supra, and was overruled. In that case the court had before it a question of conflict which was very similar to the conflict involved here. The court there said that a judgment based on conflicting issues must be set aside if, when one of the conflicting answers is disregarded, no judgment could be rendered for either party on the remainder of the verdict. This rule, when applied to the findings in the present case, we think, compels the conclusion that the jury’s findings are in fatal conflict as we shall attempt to demonstrate.

We approach the problem by first disregarding the finding of total incapacity for 260 weeks, and then turning to an examination of the remaining findings in order to determine whether or not judgment can be rendered for either party. An examination of the remaining issues shows that a judgment thereon cannot be rendered for either party because when these issues are considered alone, they make no determination of the duration of total disability and the findings of partial disability and no wage earning capacity during the existence of such partial disability are in conflict. If we disregard the findings of partial disability, judgment could not be rendered for either party because the finding of 260 weeks total disability is in conflict with the finding of no earning capacity during a period of permanent disability. If we disregard the finding of no earning capacity, judgment could be rendered for only 260 weeks of total disability (assuming appellee properly established his wage rate) because there would be no way of computing the compensation to which appellee would be entitled during the period of his partial disability.

It thus appears that under the test applied in Insurance Company of North America v. Brown, supra, the verdict is in fatal and irreconcilable conflict and consequently the judgment based thereon must be set aside. See also Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772; Traders & General Ins. Co. v. Milliken, (Tex.Civ. App.) 110 S.W.2d 108; Traders & General Ins. Co. v. Woods, (Tex.Civ.App.) 103 S.W.2d 1058; Texas Employers Ins. Ass’n. v. Phelan, (Tex.Civ.App.) 103 S.W.2d 863.

The case of Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955, cited by appellee in support of the judgment, does not appear to be in point. In that case the court held that findings of total and partial disability during the same period of time were not in conflict as to the partial disability. That is not the situation presented here. Our concern here is with the conflict between findings that appellee suffered total disability for only 260 weeks, but would thereafter have no earning capacity whatsoever, and also the conflict between the findings that appellee was only partially disabled, yet his earning capacity was none. These conflicts are such that they destroy each other and therefore amount to no findings.

In view of the foregoing conclusion, it will not be necessary to discuss appellant’s remaining points as the matters presented therein will not likely occur on another trial.

For the reasons stated, the judgment of the trial court is reversed and the cause is remanded for a new trial.