author: TIREY, Justice.

text:
    SUGARLAND INDUSTRIES, INC., Appellant, v. A. J. FALCO et al., Appellees.
    No. 3982.
    Court of Civil Appeals of Texas. Waco.
    Sept. 20, 1962.
    Rehearing Denied Oct. 11, 1962.
    See also 348 S.W.2d 102.
    Baker, Botts, Andrews & Shepherd, Alvin M. Owsley, Jr., Houston, and John C. Held, Waco, Charles E. Reagan, Marlin, for appellant.
    Dunnam, Dunnam & Dunnam, Waco, for appellees.
   TIREY, Justice.

Plaintiffs grounded their action upon a knowingly fraudulent misrepresentation of the germination rate of certain cotton seed which was sold by defendant to them. The jury, in its verdict, found substantially that defendant represented to the plaintiffs that the seed had a germination rate of 80%, and that the plaintiffs relied on such representation; that such representation induced the plaintiffs to purchase the seed, and that defendant intended for such representation to induce them to purchase the seed; that Rufus Phillips was the Manager of a department of the business of defendant, and that Phillips intended that such representation would induce the plaintiffs to purchase the seed; that Phillips knew that the seed did not have a germination rate of 80% at the time of the delivery of the seed to plaintiffs; that Phillips willfully permitted the seed to he represented to the plaintiffs as having a germination rate of 80% ; that the plaintiffs lost profits in the amounts of $52,-241.08 during the year of 1959 as a proximate result of the cotton seed’s not having had a germination rate of 80%; and that defendant should have exacted from it as exemplary damages $25,000.00.

At the close of the evidence the Court overruled defendant’s motion for instructed verdict, and after the verdict overruled defendant’s motion for judgment notwithstanding the verdict and motion to disregard answers to certain issues and to enter judgment for defendant, and entered judgment for plaintiffs on the verdict, and thereafter overruled defendant’s motion for new trial, to which it excepted and perfected its appeal to this court.

Points 1 and 2 are to the effect that there is no evidence, or insufficient evidence, to support the jury’s answer to Issue No. 9, which inquired whether Phillips knew the cotton seed did not have a germination rate of 80% at the time of the delivery of the seed to plaintiff’s farm.

Points 9 and 10 are to the effect that the court erred in submitting Issue 12, inquiring about actual damages, because there is no evidence, or insufficient evidence, to support a cause of action on which to base any actual damages.

A statement is necessary. The sale of the seed to the plaintiffs was made by a Mr. Hop Marshall who was an independent cotton merchant, but was also the agent for the appellant in the sale of this seed, and his authority and agency is not here questioned. Marshall made the sale to plaintiffs in February 1959. He testified specifically :

“Q. Did you make any statement to them regarding the germination rate of that seed?
“A. I told them the bags would be tagged 80 plus. 80 or better, in fact.
“Q. Rufus Phillips told you they would be 80 or better ?
“A. Yes.
“Q. Was it so tagged on the sacks of seed?
“A. I did not examine every sack, but those sacks I did examine were so tagged.”

He further testified to the effect that the plaintiffs paid either $8.50 or $9.00 per sack and that the seed were delivered in accordance with the order to the Falco seed house in Falls County at Highbank, and that he hired Vince Corpora, who used his truck, to deliver the seed. There were no further negotiations between Marshall and the plaintiffs with reference to the sale and delivery of the seed. Rufus Phillips had no personal contact with plaintiffs with reference to these seed.

Jack Falco, one of the plaintiffs, testified to the effect that Marshall talked to Louis Corpora and him one time, and that he told them the seed would be 80% germination; that he believed him; that he was not present when the seed were delivered but the seed were placed in his seed house; that they began planting in the latter part of April and planting continued up to May 7th; that he did not see the tags on the seed until he looked at the seed in the seed house, and that was sometime after the seed were delivered, but he did not give the date; that he saw the tags on the seed before they planted. He testified specifically: “I helped tear the sacks open when we started planting”, and that he read the tags before he planted the seed.

Plaintiff Corpora testified to the effect that he was present when the cotton seed was delivered to the Falco seed house at Highbank:

“Q. Did you observe the tags on that seed?
“A. Yes Sir.
“Q. Did you rely on them.
“A. I sure did.”

One of the tags on the seed was marked “Vendor’s statement of analysis” and on this card it said “Germination 80%.” Another tag had printed thereon:

“WE GUARANTEE the germination, weight and purity of this seed as tagged.
“The buyer may examine and run germination tests within IS days after purchase. Due to soil and climatic conditions and cultivation practices, over which we have no control, we give NO WARRANTY, express or implied, as to stand obtained or quality of crop produced.
SUGARLAND
INDUSTRIES, INC.
Sugar Land, Texas.”

Plaintiffs base their cause of action for exemplary damages on their allegation that Phillips, an official of appellant in charge of operation at the gin plant, knew that the cotton seed sold did not have a germination rate of 80% at the time it was delivered to the plaintiffs. We quote the pertinent direct testimony in Q and A form. The witness Reagan, for the plaintiffs, testified in part as follows:

“Q. Did you have occasion to be at Sugarland Industries’ cotton seed processing facilities prior to 1959?
“A. I sure did. I used to work for the company. In fact, at the time I worked for the company on strictly a comission and freight basis.
“Q. At that time did you observe anything unusual?
“A. One day I walked in the gin and was talking to a gin repair man— ⅜ J¡« ⅜
“Q. It was at their gin facilties?
“A. Yes sir.
“Q. Will you describe what you saw at that time * * * What year was it in?
“A. 1957.
“Q. Mr. Reagan, what did you observe there that day at their gotton ginning facilities?
“A. When I walked in the gin, I met a gin repairman that was there, and I looked over, and they are set up with a two gin system. One to gin their registered seed which is to be certified, and the other is for cotton ginned of all different varieties from the farmers. And they were ginning cotton, ginning and blowing the seed into the bulk house seed that was going to be certified blue tag. I went to the ginner, Mr. Rufus Phillips—
“Q. Mr. Rufus Phillips here?
“A. Yes, and complained about it. I said, ‘Mr. Phillips, I respect my name and Sugarland Industries’ also, and also the farmers I am selling seed.’ And I said, ‘This is going to lower the germination of this seed.’ That went on for two or three weeks. When it was time for me to get seed, I didn’t get any seed only what they sold themselves and asked me to deliver. I work strictly on a commission, plus freight. And they put me out of business.
“Q. When you said that Mr. Phillips, did you ask them about being hungry ?
“A. I kind of joshed them a little bit, ‘What is the idea. Are you peo-pie hungry? What is the idea of doing this?’
“Q. What was Mr. Phillips’ reply to you?
“A. He asked me was I trying to interfere with his bread and butter. * * * That is all that was said.
“Q. That was Rufus Phillips, this man sitting right here, that you are talking about?
“A. That is right.”

Rufus Phillips testified in part:

“Q. During the five year period up to 1959 did you handle it in the same way you were handling it in 1959?
“A. Yes, sir.
“Q. You mean completely through the process up through the selling was handled in the same way?
“A. I would say practically the same way.
“Q. Was it ginned and sacked in the same manner?
“A. Yes, sir.
* * * * * *
“Q. Were you in the courtroom when Mr. Reagan testified this morning?
“A. Yes.
“Q. Did you hear him say what he said about you?
“A. Yes, sir.
“Q. Was it true?
“A. No, sir, there wasn’t a word of truth in it.
“Q. Would you please tell the jury now what kind of gin system you had down there at that time? And you remember that part where he said — I have forgot — about you running some seed from one part to another. Tell us how you did operate down there at that time.
“A. I think I explained that to the jury yesterday. We have two separate gins. One is a certified gin, and one is a cotton gin. There is no physical way to take the seed from the cotton gin into the certified house. The seed from the cotton gin goes through a pipe straight to the oil mill. The seed coming from the certified gin goes through a pipe to a cyclone separator, a blower separator, and it is conveyed to individual bins in the certified seed house. There is no way you can get seed into the certified bin, because there is no open pipe from the cotton gin. It must go directly to the oil mill.
“Q. Did Mr. Reagan say anything like he said he said to you this morning in that gin house in 1957?
“A. No, sir.
“Q. When I say ‘anything like’, I mean anything at all of that nature.
“A. I don’t ever remember the man being in the gin plant, because we don’t operate the gin plant and the seed delinting plant at the same time.
“Q. Did you ever make any remarks to him like he said you did, like ‘this was your bread and butter,’ and so forth?
“A. No, sir.
“Q. Would you knowingly sell a bad seed?
“A. No, sir.”

Assuming that the testimony of the witness Reagan was true, which we must do under the verdict of the jury, we are of the view that it does not tender an issue that defendant knew that the seed did not have the germination rate of 80% at the time of the sale and delivery, or at any other time pertinent to this issue. Further, assuming that defendant did mix oil mill seed or seed received from the ginning of a variety of cotton with certified seed in 1957, and that said practice continued up until 1959, we are of the further view that there is no evidence that such mixing did lower the germination rate of the certified seed. The reasons for the separation of oil mill seed from certified seed which may or may not go to the oil mill are technical and complex and do not necessarily have anything to do with the germination rate. If we he mistaken in the view that there is no evidence, then and in such event we are of the further view that the evidence is wholly insufficient to support the jury’s finding that Phillips knew that the cotton seed did not have the germination rate of 80% at the time it was sold and delivered. In Dallas Railway and Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377, point 4, we find this statement of the rule by our Supreme Court: “It is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection”. Citing many cases. See also Henry v. Phillips, 105 Tex. 459, 151 S.W. 533, pt. 4, p. 538; Aetna Ins. Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376, pt. 9, p. 381. But appellees say that there are circumstances in the record to support Reagan’s testimony to the effect that defendant knew that the seed did not have a germination rate of 80% at the time they were sold and delivered and cites the testimony of the witness Corpora. We quote the pertinent part of this testimony.

“Q. If this cotton seed at the time it was tested, the seed that was delivered to you, if that cotton seed had tested out eighty per cent in November, 1958, would it still have been eighty per cent germination at the time it was checked by the Department of Agriculture ?
“A. It always has. I have never seen it change that much.
“Q. In your opinion, could it have changed, and been the same cotton seed?
“A. No, sir.
“Q. In your opinion, was the seed they delivered to your place in February, 1959, sacked up under their labels, was that the same seed from which they took samples and got their blue tags to sell from ?
“A. It couldn’t possibly have been.”

We think the foregoing testimony is without probative force under the Rule of our Supreme Court above stated. It follows that we are of the view that the jury’s award for exemplary damages' cannot be sustained.

Points 4 and 5 are substantially to the effect that there is no evidence to support the jury’s finding to Issue No. 12 relating to actual damages because as a part of the damage issue as submitted; there was no instruction to the jury to deduct expenses of operation in the raising and selling of cotton and there was no evidence of transportation costs from the place of raising cotton to the proper marketing area. We overrule these contentions.

We have carefully examined the evidence tendered in this cause and we are of the view that it is ample to sustain the finding of actual damages made by the jury of $52,241.08. But, appellant says that plaintiffs can, in no event, recover actual damages against it by reason of the contents of the tag placed upon each sack of cotton seed sold and delivered by it to plaintiffs, because one or more of the plaintiffs testified that they saw the tag on the seed and because the jury, in response to Issue 24, found that one or more of the plaintiffs knew of the wording on the guaranty tag. Defendant relies on the following authorities: Dutch Mill Gardens v. J. J. Grullemans & Sons, 238 S.W.2d 232, (Galv.Civ.App., 1951, error refused); Grindstaff v. Mather, 186 S.W.2d 364 (Amarillo Civ.App., 1945, error ref’d., w. m.); Hall v. Mosteller, 245 S.W.2d 338 (Austin Civ.App., 1952, error ref’d., n. r. e.); Magnolia Provision Co. v. Coleman, 3 S.W.2d 412 (Tex.Com.App., 1928); Martin v. Southern Engine and Pump Co., 130 S.W.2d 1065 (Galv.Civ.App., 1939, no writ history); Pyle v. Eastern Seed Co., 145 Tex. 385, 198 S.W.2d 562 (1946); Southwestern Industrial Products Co. v. Chippewa Molding, Inc., 263 F.2d 402 (5th Cir.1959). We have carefully read each of the foregoing authorities and do not believe they are controlling or applicable in the factual situation here existing. It is also the appellant’s contention that the second paragraph on the tag is a limitation of all liability for consequential damages. We are not in accord with appellant’s view.

In Pyle v. Eastern Seed Co., supra, relied on by appellant, the buyer agreed to the contract that provided “that the seller gave no warranty, express or implied, as to description, purity or productivity, and would not be in any manner responsible for the crop.” That situation does not exist here. The record is without dispute that this sale was made by Marshall, acting in his capacity as agent, and the consideration passed from plaintiffs to appellant on the oral contract that Marshall made with the plaintiffs, which was to the effect that the seed had a germination rate of 80%. There was no other negotiation or oral agreement between the parties to this sale, and the seed were sold and delivered on that basis. The contract was made when the parties made their oral agreement. There is no evidence that Marshall at any time advised the plaintiffs that the tags on the seed would contain the no warranty clause printed thereon. Under the foregoing undisputed factual situation, we are of the view that the no warranty clause printed on the tag is no part of the contract between the parties for the sale and delivery of the cotton seed. We are of the view that the foregoing undisputed factual situation brings the cause within the rule announced in Davis v. Ferguson Seed Farms, Tex.Civ.App., 255 S.W. 655, n. w. h., wherein the Beaumont court made the following statement of the rule:

“The general rule is that when the purchaser discloses to the seller that the article is intended for a special use, and the seller sells it to the purchaser for that purpose and for a sound price, [the exact situation here] there is an implied warranty that the article is suitable for the purposes for which it is sold, and free from hidden defects that would impair its use for such purpose, and especially is this true where the seller is the producer or manufacturer of the article sold. * * that if a warranty was actually made during the negotiations for the purchase of the seed, and not withdrawn or modified, it should be given effect, irrespective of the printed disclaimers.”

Citing Moorhead v. Minneapolis Seed Co., 139 Minn. 11, 165 N.W. 484; L.R.A.1918C, 391 Ann.Cas.1918E, 481; Edgar v. Joseph Breck & Sons Corp., 172 Mass. 581, 52 N.E. 1083; Landreth v. Wyckoff, 67 App.Div. 145, 73 N.Y.S. 388; Bell v. Mills, 78 App.Div. 42, 80 N.Y.S. 34; Smith Brothers Grain Co. v. Windsor & Stanley (Tex.Civ.App.) 242 S.W. 350. See also: Hoffman v. Dixon, 105 Wis. 315, 81 N.W. 491.

In Edgar v. Joseph Breck & Sons Corp. supra, Mr. Justice Holmes made this statement in a situation that is similar to the one before us:

“The contract was made when the parties made their oral agreement. * * * It was satisfied by delivery of the bulbs. The general printed warning on the billhead that the defendant did not warrant seeds could have no effect unless it led to the inference that the old contract had been rescinded, and a new one substituted, by mutual agreement. Even if the bill had been receipted, it would not have excluded proof of warranty, and, whether it was evidence of a rescission or not, it did not establish one as-a matter of law.”

It follows that we are of the view that the judgment awarding plaintiffs actual damages in the sum of $52,241.08 for loss of profits is sustained, and the apportionment of ⅛⅛ to J. T. Falco, and ⅝⅛ to A. J. Falco and Louis Corpora, jointly, is in all things affirmed, with interest thereon from ■date of judgment, 9th day of October, 1961, at the rate of 6% per annum. The judgment awarding the sum of $25,000.00 exemplary damages is reversed and rendered. It follows that the points of appellant relating to exemplary damages are in each instance sustained. Each of the other points has been considered and each is overruled. The judgment is affirmed in part and in part reversed and rendered. All costs of appeal are taxed against ap-pellees.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    Merced CANTU et ux., Appellants, v. SOUTHERN LIFE & HEALTH INSURANCE COMPANY, Appellee.
    No. 13982.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 19, 1962.
    J. Earl Barnhouse, Alice, for appellants.
    Perkins, Floyd, Davis & Oden, Alice, for appellee.
   BARROW, Justice.

Appellants, Merced Cantu and Josefina Cantu, filed suit on a life insurance policy in the amount of $500.00, providing for double indemnity for accidental death. Ap-pellee insurance company contended that the policy in question had lapsed for nonpayment of premium prior to the death of appellants’ son, the insured. At the conclusion of appellants’ case, the trial court granted appellee’s motion for instructed verdict and rendered judgment for ap-pellee.

Appellee, in its brief, seeks to dismiss the appeal for want of jurisdiction on two grounds: appellants executed an acknowledgment in lieu of an affidavit on their application to appeal without paying costs, under Rule 355, Texas Rules of Civil Procedure; and, the form of the application recites that appellee recovered a judgment against appellants “in the amount of zero dollars,” whereas, actually a take-nothing judgment was entered in appellee’s favor. We overrule said motion to dismiss. These objections were not presented within thirty days after the filing of the transcript in this Court and are therefore waived. Rule 404, T.R.C.P.; Conlee v. Burton, Tex.Civ.App., 188 S.W.2d 713.

Appellants urge that the instructed verdict was improperly granted, as a fact issue was raised on whether the premiums had been fully paid; and that the policy was not legally cancelled even if the premiums were not paid, as no cancellation notice was given by appellee.

Appellants alleged that on October 21, 1960, the policy was in full force and effect and the premiums all paid. On this date the named insured, Elizardo Cantu, who was their son, was killed when struck by an automobile. No allegation of waiver, fraud or estoppel was presented by appellants ; therefore, it was necessary that' they prove the payment of all premiums due, or death during the grace period of said policy.

The policy was issued on July 4, 1960, and provided for a weekly premium of $1.67. It further provided for a grace period of four weeks, and that if any premium was not paid within the grace period, the policy should lapse and cease to be in force. It is settled that, when a policy provides the premium shall be paid before a stipulated date or the policy shall become forfeited and void, time becomes the essence of the contract, and a failure to pay the premium determines it, unless there be a waiver or estoppel. Equitable Life Assurance Society v. Ellis, 105 Tex. 526, 147 S.W. 1152.

The undisputed evidence is that Mrs. Cantu made all payments that were made on this policy. She was issued a receipt book in which were entered the payments due and date of payment of each. The payments, as reflected by the receipt book, were made irregularly. The last payment entered was made on September 9, 1960, for the week of August 8, 1960, which paid the premium up to August 15, 1960. Subsequently she made two payments of $3.34 each, one on September 21, 1960, and the other on October 3, 1960. She was given a receipt for each of these payments, which stated in effect that if the policy had lapsed, it could be revived by the home office after payment of all arrears and that the receipted payment would be applied towards said arrears. In the event of failure to revive said policy, the payments towards same would be refunded on demand.

Appellants contend that the payment on October 3, 1960, raised a fact question that the policy was paid up at that time, and thus in force on October 21, 1960. To support this contention, they cite Excelsior Mutual Life Ins. Co. v. Hunter, Tex.Civ.App., 120 S.W.2d 905. That case is distinguishable in that admittedly all payments had been made by Mrs. Hunter prior to September, 1935, and there was a disputed fact issue as to whether payments had been made subsequently. Mrs. Cantu does not contend that any payments were made other than those set out above, and it is a question of law as to their effect.

A mathematical computation of said payments reflects that the policy lapsed under its own terms, four weeks subsequent to August 15, 1960. The later payments were not enough to revive the policy under its terms. There being no issue of waiver or estoppel asserted, the appellants failed to prove their case. Equitable Life Assurance Society v. Ellis, supra; Fernandez v. Sovereign Camp, W.O.W., Tex.Civ.App., 142 S.W.2d 314.

It was not necessary for the Company to advise appellants that their policy had lapsed. Equitable Life Assurance Society v. Ellis, supra. The other point raised by appellants concerns admission of asserted prejudicial evidence, and in view of the above conclusion it was harmless, if prejudicial, and therefore will not be discussed.

We affirm the judgment of the trial court.


author: WILSON, Justice.

text:
    ALAMO TITLE COMPANY, Appellant, v. SAN ANTONIO BAR ASSOCIATION et al., Appellees.
    No. 4067.
    Court of Civil Appeals of Texas. Waco.
    Sept. 27, 1962.
    Rehearing Denied Oct. 18, 1962.
    Moursumd, Ball & Bergstrom, Morriss, Morriss, Boatwright & Lewis, San Antonio, for appellant.
    Davis Grant, Austin, Frank M. Rosson, Philip E. Hamner, San Antonio, for appel-lees.
   WILSON, Justice.

The San Antonio Bar Association and the Unauthorized Practice Committee of the State Bar of Texas obtained a permanent injunction restraining appellant, a title insurance corporation, from preparing certain legal instruments in real estate transactions. Jury findings were to the effect that an attorney, Brown, had prepared such instruments as appellant’s agent and employee between 1954 and January 1, 1961; and the business of appellant and Brown’s law firm “were operated as a unit” during this period. Although the form of the issues is attacked, it is not contended the findings are not supported by the evidence.

Appellant urges the court erred in not dismissing the case as moot, and in granting the injunction, because there was no evidence or finding of reasonable probability or threat that the acts enjoined would be done in the future; and because the undisputed evidence establishes the contrary.

While the facts here vary in detail, the basic nature of this case is similar to that of San Antonio Bar Association v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697. From 1944 to December 2, 1954, Brown, a stockholder in the corporation, was a salaried employee of appellant, examining titles, advising and preparing legal instruments for customers in connection with appellant’s issuance of title insurance policies. The evidence was conflicting as to whether fees charged and collected during this period for preparation of instruments were paid to appellant or Brown.

On December 2, 1954, as a result of complaints by the grievance and the unauthorized practice committees, appellant “made an attempt then to segregate Mr. Brown’s legal operations from our own, and made an agreement with him” by which appellant furnished “as in the past” office space, supplies and equipment, and Brown made title examinations. By this written agreement appellant was to pay Brown $200 a month and $2 each for titles examined in excess of 200 per month. Appellant orally “changed the rules a number of times thereafter,” as the “Bar Association objected to certain practices.” Brown moved his office to adjoining and connected premises, where he set up his “own little force of stenographers” and attorneys who had been employed by appellant. There was evidence Brown never received the $200 payment, and he was paid no money for title examinations. Appellant’s bookkeeper testified that during this period no changes were made in the records kept for the title company pertaining to Brown. He was paid sums in excess of $28,000 per year as fees for preparation of instruments which were charged and collected by appellant, out of which Brown paid salaries of attorneys and stenographers who did the work in his office. Appellant’s president testified these attorney-employees devoted substantially all their time to title examinations for appellant.

Brown did not employ the stenographers who prepared the legal instruments, he testified, but after appellant employed them they were trained by him, and he importuned appellant’s president to raise the salaries of these, and the title examiners in his office. He furnished to appellant’s closing agents a fee schedule of charges for preparation of deeds, releases, notes, deeds of trust, extensions and other instruments prepared in his office. The system in use was that the closing agent delivered a title policy file to Brown’s stenographers, who prepared required instruments from the title report. Brown “scarcely ever looked the papers over”, as this was usually done by a supervising stenographer. He never had “personal contact with the parties” when transactions were closed at appellant’s branch offices, he said, and “very seldom” at hi-s office. Appellant’s president testified he repeatedly instructed all his “closers” to inform parties to real estate transactions that legal documents had to be prepared by an attorney; to inquire what attorney the parties desired; that if the customer requested appellant to prepare the papers, to state it could not do so; but if requested, to suggest an attorney, to state “if you want, you may employ David C. Brown, who is an attorney who offices next door, and who is associated with the title company.” A “closer” testified she never received such instructions.

After further discussions with the Bar Association in 1959 and 1960, appellant entered into a formal written contract with Brown January 2, 1960 under which Brown was to examine titles for $7.30 each, furnishing associate attorneys and employees at his cost. He was to be charged by appellant $940 per month for itemized services, including office and equipment rental, library maintenance, postage, stationery, supplies and bookkeeping service. “Because of necessary proximity of Brown’s offices” he and his employees were authorized to participate in appellant’s profit-sharing, insurance and retirement plans.

Thereafter, Brown said, if attorneys complained that he was “apparently handling papers” for their clients, he would reply, “Very well, if we have done it you will get the money.” He testified that after January 2, 1960 he couldn’t recall “any substantial change in the system of operations”; that seven months later he began a nine-week hospital confinement for injury, after which he was disabled. He testified he received about $30,000 per year from charges for preparing papers, out of which he paid salaries; and that he received a salary of $500 per month. During a six-month period in 1960 there were 1193 title policy applications, some of which were cancelled. In 125 of these no attorney’s fee was charged; in 606 the fees for preparing instruments were charged by appellant for Brown’s account. There is evidence to show the sums remitted to him by appellant as charges for instruments was insufficient to pay the salaries of the attorneys and stenographers in his office, and that appellant paid Brown the deficiency. Brown testified he and the attorneys in his office spent all their time on appellant’s title examinations except when interrupted by stenographers with inquiries concerning preparation of instruments. One of appellant’s “closers” testified that to December, 1960 there was no change in the “routine of Mr. Brown’s working with the title company and the preparation of the papers.” Although there appears to be a conflict in the evidence, Brown testified at one time that his fees for preparation of instruments collected by appellant were not remitted to him, but were disbursed in the form of payroll checks payable to the employees in his office, along with his own check.

This action was instituted June 30, 1960. On December 1, 1960 appellant sent a form letter addressed to all real estate agents advising that the Bar Association was “in the process of suing” local title companies “to restrain them from ‘the practice of law’ ”; that Brown was retiring from active practice; and requesting that parties to realty transactions be asked to designate attorneys to prepare and examine instruments. Appellant also prepared a list of attorneys to be submitted to its customers when such services were needed. Brown retired December 31, 1960, and his connection with appellant was terminated. Appellant’s president testified he had previously given Brown six months’ notice of termination, and had previously advised appellees’ counsel of this intention; that employees had been instructed not to prepare title papers connected with appellant’s business under any circumstances; that appellant has no intention of, and never will, go “back to any system of referring its customers to attorneys who are connected in any way with the title company.”

We do not consider the question of likelihood of appellant’s resumption or continuation of the acts enjoined as being an ultimate issue of fact for the jury. Extensive search has failed to produce a decision suggesting a contrary conclusion. Although in this State the right of trial by jury is preserved in an equitable action, San Jacinto Oil Co. v. Culberson, 100 Tex. 462, 101 S.W. 197, only ultimate issues of fact are to be .so determined; and this historically, for the purpose of informing the conscience of the chancellor. Although in Texas the findings on issues of fact are binding, equitable principles and the relief afforded by equity continue to be applied by the court itself, 1 Pomeroy, Equity, 5th ed., 808; Rule 693, Texas Rules of Civil Procedure; and see Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, syl. 22. A jury in equity, even under a blended system, does not decide the issue of expediency, necessity or propriety of equitable relief. If submitted, the issue would evoke only a conjectural and speculative surmise which, in our opinion, would not control the processes of equity. It was an element deducible from the circumstances for the court to consider in determining whether wrong or injury might be anticipated and whether chancery powers should be exercised. It constituted here, in effect, a mixed question of law and fact at most. Such questions are not for the jury in injunction cases. City of Austin v. Austin City Cemetery Ass’n, 87 Tex. 330, 28 S.W. 528, 530; Davis v. Upshur County, Tex.Civ.App., 191 S.W.2d 524, no rehearing, relied on by appellant, is inapplicable. There, a temporary injunction was denied and it was stipulated, in effect, that the acts sought to be enjoined would not continue. The holding was that “it was within the legal province of the trial court to deny the relief.”

Neither do we accept appellant’s position that the case was moot, or that the undisputed evidence established as a matter of law there was no reasonable probability the acts enjoined would recur in the future, if it be assumed such probability was a prerequisite or criterion

In view of appellant’s course of operation as shown by the evidence, notwithstanding appellees’ efforts to terminate it amicably, injunction was not precluded by the fact that Brown had become incapacitated and had retired from law practice; that under prospect of impending litigation there was a declared resolve to abandon former practices; or that during trial there was announced renunciation of conduct, assurance of non-resumption, intention to refrain, or alteration of plans. Texas State Board of Medical Examiners v. Watt, Tex.Civ.App., 287 S.W.2d 559, 560; Garrett v. Rose, Tex.Civ.App., 161 S.W.2d 893, 894; Hawks v. Yancey, Tex.Civ.App., 265 S.W. 233, 237, no writs; United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303; United States v. Oregon State Medical Society, 343 U.S. 326, 72 S.Ct. 690, 96 L.Ed. 978; 28 Am.Jur. 495; 43 C.J.S. Injunctions § 22, p. 439.

In San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697, 703, where it appeared the associated attorneys were “on the verge of retirement,” it was said: “A whole system of operation built up over the years is hardly to be varied in its true consequences by some overnight change of this or that single feature or formality of it.” Probability of continuation of appellant’s practices is not such a matter as is ordinarily susceptible of direct proof.

It is insisted the trial judge was disqualified because of membership in the State Bar of Texas, a party to the suit. The contention is overruled. Art. 5, Sec. 7, Texas Constitution, Vernon’s Ann.St.; Art. 320a-1, Sec. 3, Vernon’s Ann.Tex.St.; Hidalgo County Water Improvement Dist. No. 2 v. Blalock, 157 Tex. 206, 301 S.W.2d 593, 597. To sustain it would be to hold no State tribunal could exist in this case. Equity will not suffer a wrong to be without a remedy.

Appellant presents 24 points. We have considered each. In our opinion they do not reflect reversible error.

Affirmed.


author: WALTER, Justice.

text:
    VALLEY STOCKYARDS COMPANY, Appellant, v. Dan W. KINSEL, Jr., Appellee.
    No. 3707.
    Court of Civil Appeals of Texas. Eastland.
    May 18, 1962.
    Rehearing Denied Sept. 14, 1962.

      Greenwood & Russell, Ferrero & Hemp-hill, Harlingen, for appellant.
    Ewers, Toothaker, Ewers, Elick, Jones & Abbott, McAllen, for appellee.
   WALTER, Justice.

Dan W. Kinsel, Jr., filed suit against Valley Stockyards Company for conversion of 88 head of cattle. Mr. Kinsel sold Will Ed Wiley 158 head of cattle for $17,451.02. Wiley paid by check. The check was returned unpaid. Kinsel delivered to Wiley no bill of sale or other muniment of title to the cattle. Kinsel contends he had no intent of passing title until funds were actually received on the check. Wiley thereafter sold some of the cattle to Valley Stockyards Company.

The court granted the plaintiff’s motion for a summary judgment. The defendant has appealed, contending the court erred in granting said motion and in holding as a matter of law (1) that the acceptance of the check by plaintiff as payment for the cattle was conditioned upon its being honored by the drawee bank (2) that when the plaintiff delivered possession of the cattle to Wiley he did not intend to pass title to said cattle (3) that under the agreement between plaintiff and Wiley, receipt by plaintiff of the funds on Wiley’s check was a condition precedent to the passage of title (4) that plaintiff had not waived the condition that title to said cattle would not pass to Wiley until the funds were received on the check (5) that plaintiff was not estopped to seek damages from the defendant (6) that plaintiff was not limited in his recovery to the value of his cattle in excess of the amount for which they were mortgaged to the Wintergarden Production Credit Association (7) that the value of the cattle on the date of the conversion was $10,905.52. Appellant also contends the court erred in overruling its exceptions to plaintiff’s pleadings and in entering certain pre-trial orders with reference to request for admissions.

The parties will be designated as they were in the trial court. Plaintiff specifically pleaded that he did not agree to sell the cattle on credit and that Will Ed Wiley agreed to pay cash for them. He further pleaded that he did not give Wiley any muniment of title or bill of sale to said cattle and would not have given him a bill of sale even if requested to do so until the funds were actually received on Wiley’s check; that said check was deposited with the Wintergarden Production Credit Association on November 8, 1960, and was returned unpaid on November 16, 1960; that on or about November 7, 1960, Wiley delivered 88 of the 1S8 head of cattle to the defendant for sale; that the defendant without the knowledge or consent of the plaintiff on or about such date took possession of said cattle and converted them to its own use and profit and that he had made demand upon the defendant.

The defendant pleaded that the plaintiff accepted Wiley’s check for the cattle unconditionally and delivered them to Wiley with the intention that title should immediately vest in Wiley, or, in the alternative, that plaintiff had by his actions waived the alleged condition of payment. The defendant further pleaded that it was the custom and usage in the vicinity to sell cattle without a bill of sale. The defendant further pleaded that plaintiff was estopped to recover damages from innocent third parties because plaintiff permitted Wiley to cause such injuries. The defendant also pleaded there was a mortgage on said cattle in favor of Wintergarden Production Credit Association and asked that any recovery by plaintiff be limited to the value of the cattle in excess of the mortgage.

The plaintiff filed a motion for summary judgment and in support thereof submitted his affidavit, the affidavit of Moody Rankin, an officer for the Wintergarden Production Credit Association, and an affidavit of Warren Wheeler who was a market brand inspector for the Texas and Southwestern Cattle Raisers Association. Depositions of Phil Hoge and Kinsel and admissions were also considered by the court.

The defendant filed no evidence in opposition to the plaintiff’s motion for summary judgment.

Where property is paid for by a worthless check which is never paid, title to such property never passes to the vendee. In John Clay & Company Livestock Commission v. Clements, 214 F.2d 803, the court said:

“It would seem that, under Texas law, the sales were conditioned on payment of the drafts and did not pass title until the drafts were paid, unless there were waivers of that condition. Lang v. Rickmers, 70 Tex. 108, 7 S.W. 527, 529; Berlowitz v. Standley, 117 Tex. 362, 5 S.W.2d 963, 964; Johnson v. Robinson, 5 Cir., 203 F.2d 135, 136.”

Also, in Denny v. White House Lumber Company, Tex.Com.App., 54 S.W.2d 86, 87, 88, the Commission of Appeals said:

“Defendants complain of the holding of the Court of Civil Appeals to the effect that McCorkle never became the owner of the 2,060 feet of 10-inch casing and therefore no lien ever attached in their favor thereon. We sustain the holding of the Court of Civil Appeals as to such property. As already shown, the Gibson Supply Company sold this casing to McCorkle as a cash transaction. McCorkle gave his check therefor at the time it was purchased by and delivered to him. The check was worthless and never paid. Under such a record the title to this casing remained in the vendor, Gibson Supply Company, and never passed to McCorkle. Lang et al. v. Rickmers, 70 Tex. 108, 7 S.W. 527. This being the case, no lien could attach thereto in favor of defendants on a claim against McCorkle. This is in harmony with the holding of the Court of Civil Appeals, and disposes of the 2,060 feet of casing in question.”

The plaintiff established, by his evidence presented in support of his motion for summary judgment, all of the necessary elements to establish his cause of action. Under Rule 166-A, Texas Rules of Civil Procedure, the court will accept as true all evidence of the party opposing the motion which supports his defenses and will give him the benefit of every reasonable inference which may properly be drawn in favor of his position. But the defendants filed no opposing affidavits. One of the basic duties of the court hearing a motion for summary judgment is to determine if there is any issue of fact to be tried and not weigh the evidence or try the issues. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. In Aydelotte v. Anderson, Tex.Civ.App., 280 S.W.2d 945, the court said:

“In considering a motion for a summary judgment the court must determine from what it has before it whether or not any genuine issue of fact as to any material matter is presented and whether or not as a matter of law the moving party is entitled to judgment. Reese v. Davitte, Tex.Civ.App., 255 S.W.2d 1015; Salmon v. Fidelity Bank & Trust Co., Tex.Civ.App., 258 S.W.2d 837. It has been held that where the moving party’s adversary filed no counter affidavit, made no showing other than as stated in his unsworn pleadings, made no showing to the effect that affidavits on his behalf were unavailable, such adversary has in effect admitted the sworn facts alleged by the movant’s attached affidavits to be true, for which reason a summary judgment should be granted and under such circumstances the trial court is left without any alternative in the matter. Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236.”

In the case of Broussard v. Austin Road Company, 276 S.W.2d 912, (no writ history), the court said:

“In discussing the applicability of Rule 166-A, T.R.C.P., to a fact situation similar to this, the San Antonio Court of Civil Appeals states as follows : ‘Appellees’ showing was supported by sworn factual statements sufficient upon their face to establish a complete defense to everything appellants alleged. The verity of those sworn statements was in no way challenged by counter-affidavits or other sworn statements. In the hearing to locate the dispute about genuine and material facts, all facts stood undisputed, unchallenged, uncontroverted. When such a condition exists, there are no facts to try, Fowler v. Texas Employers’ Ins. Ass’n., [Tex.Civ.App.] 237 S.W.2d 373.’ ”

The brand inspector’s affidavit revealed that Kinsel’s 88 head of cattle were sold through the Valley Stockyard Company’s place of business on November 7, 1960; that he was acquainted with the market value of cattle in the valley and that they sold at the prevailing market price.

The effect of the affidavit of the officer of the Wintergarden Production Credit Association was that the association was not claiming under Kinsel’s mortgage; that Wintergarden Production Credit Association had waived their mortgage on the Kin-sel cattle and had agreed to look solely to Kinsel for their money.

Kinsel’s affidavit, in effect, established that he sold his cattle to Wiley and did not give him any muniment of title to said cattle and did not intend to do so until funds were actually received on Wiley’s check.

We hold the court was warranted in granting Kinsel’s motion for summary judgment because there was no genuine issue of a material fact.

We have examined all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.

On Motion for Rehearing.

The appellant contends we erred in holding that Rule 166-A of the Texas Rules of Civil Procedure requires a party against whom a motion for summary judgment is sought to file opposing evidence supporting their defenses. Appellant pleaded that plaintiff accepted Wiley’s check for the cattle unconditionally. They also pleaded waiver. After plaintiff made out his case, it was incumbent upon defendant to come forward with evidence if they expected to defeat the motion. Our Supreme Court in the case of Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 said: “If the defendants expected to defeat the motion for summary judgment by showing an issue of fact as to whether the note was conditionally delivered, it was incumbent upon them to come forward with ‘evidence’ sufficient to raise that question.”

Appellant’s motion for rehearing is overruled.


author: WILLIAMS, Justice.

text:
    TEXAS LIQUOR CONTROL BOARD, Appellant, v. Merrill Ann WARREN, Appellee.
    No. 16037.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 28, 1962.

      Will Wilson, Atty. Gen., and John E. Leonarz, Asst. Atty. Gen., Austin, for appellant.
    Bernard A. Golding, Houston, for ap-pellee.
   WILLIAMS, Justice.

Pursuant to the provisions of the Texas Liquor Control Act, Merrill Ann Warren made application for Wine and Beer Retailer’s Permit for premises at 5516 Harry Hines, City of Dallas, Texas. The application was heard by the County Judge of Dallas County and by him denied by order dated June 27, 1961. From this order Merrill Ann Warren perfected her appeal to the District Court of Dallas County, Texas. At the conclusion of the testimony in the District Court, the District Judge, without the intervention of a jury, reversed the order of the County Judge and decreed that the application be granted. From this judgment the Texas Liquor Control Board perfects this appeal contending primarily that the trial Judge was in error in holding that the action of the County Judge was not reasonably supported by substantial evidence.

Upon the trial in the District Court ap-pellee testified that she was a married woman, with her disabilities removed, and that she had made arrangement to purchase the premises at 5516 Harry Hines, known as the Southerner, on June 19, 1961, but that she did not actually take over the place until the 23 day of June at which time she operated it for approximately one week prior to the hearing on her application in the County Court. Two police officers testified that between June 19 and June 27, 1961 they had observed appellee and her husband make sales of beer on the premises. Both police officers testified that they were familiar with appellee’s general reputation in the community and that it was bad. Appellee testified 'that she attempted to operate under the previous operator’s license.

OPINION

Art. 667-3, Penal Code, provides that it shall be unlawful for any person to sell beer without first obtaining appropriate license as provided by the Act. Art. 667-7 (d), (f) and (i), Penal Code, render it a violation of the law for one to attempt to operate premises under permit or license of another.

Art. 667-5, Penal Code, provides that the County Judge shall refuse to approve the application for a license if he has reasonable grounds to believe and finds (2) (g) that the applicant is not of good moral character, that his reputation for being a peaceable, law-abiding citizen in the community where he resides is bad. Art. 667-5, subd. 3(d) Penal Code, provides that the County Judge may refuse to issue a license if he has reasonable grounds to believe and finds that the applicant has violated any provisions of the Act.

The action of the County Judge was an administrative act rather than a judicial act. Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198. An appeal from an order of the County Judge issued in the performance of his administrative duties is treated not as a judicial appeal but as an appeal from an administrative board, and this being true, the burden of proof is upon appellee to show that the order of the County Judge was not reasonably supported by substantial evidence. Ramos v. Austin, Tex.Civ.App., 220 S.W.2d 528; Texas Liquor Control Board v. Armstrong, Tex.Civ.App., 300 S.W.2d 146, writ ref.; State v. Peeler, Tex.Civ.App., 200 S.W.2d 874; Texas Liquor Control Board v. Marine Exchange Social Club, Tex.Civ.App., 127 S.W.2d 967; Texas Liquor Control Board v. McGee, Tex.Civ.App., 314 S.W.2d 678; Texas Liquor Control Board v. Scott, Tex.Civ.App., 347 S.W.2d 841; Texas Liquor Control Board v. Spivey, Tex.Civ.App., 354 S.W.2d 424.

The basic concepts involved in construing the substantial evidence rule are:

(A) In such cases the question of law- involves determination of reasonableness. Being one of law and not of fact negatives the idea that the court is to try the case anew since it is not a typical de novo trial;

(B) The decision cannot be made on facts found on the trial as in other civil cases, since a law question is involved; and therefore, the preponderance of the evidence is not the test. Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619;

(C) The court is not authorized to substitute its discretion for that committed to the agency by the Legislature. Hawkins v. Texas Co., 146 Tex. 511, 209 S.W.2d 338; Board of Firemen’s Relief, etc. v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965;

(D) The test is whether the evidence is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its actions. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424.

The mere fact that appellee here presented testimony which raises a conflict with the testimony presented by the Board is not sufficient in itself to defeat the test of the substantial evidence rule. Texas Liquor Board v. Redd, Tex.Civ.App., 285 S.W.2d 400; Texas Liquor Control Board v. Tschoerner, Tex.Civ.App., 117 S.W.2d 121. In State v. Farris, Tex.Civ.App., 239 S.W.2d 419, the Waco Court of Civil Appeals said that a conflict in the evidence must be resolved in favor of the evidence which upholds the order of the administrative agency. See also Texas Liquor Control Board v. Jones, Tex.Civ.App., 112 S.W.2d 227; Texas Liquor Control Board v. Floyd, Tex.Civ.App., 117 S.W.2d 530; and Texas Liquor Control Board v. Smalley, Tex.Civ.App., 129 S.W.2d 466.

Applying these landmark rules to the facts in the instant appeal we agree with appellant that appellee wholly failed in her effort to establish that there was no substantial evidence before the County Judge at the time he denied her application for permit. There is substantial evidence introduced in the District Court to justify the action of the County Judge in denying the permit. The evidence is undisputed that appellee did sell beer on the premises in question at a time when she did not possess a license to sell same. This was a violation of the statute. Moreover, the evidence in the District Court is of substantial nature that appellee’s reputation in the community was bad, same alone being sufficient to justify the denial of the permit.

The judgment of the trial court is reversed and here rendered that the order of the County Judge dated June 27, 1961 be reinstated and confirmed.

Reversed and rendered.


text:
    E. B. STROM, Appellant, v. Fred DICKSON, Appellee.
    No. 4025.
    Court of Civil Appeals of Texas. Waco.
    July 26, 1962.

      Horace G. Goodrich, Dallas, for appellant.
    R. A. Kilpatrick, Cleburne, for appel-lee.
   WILSON, Justice.

Plaintiff, an individual, sued on a promissory note payable to a partnership, alleging he was the legal and equitable owner and holder.

Defendant challenges the instrument sued on because it lacks elements of negotiability. This fact, of course, does not affect its validity. By the written instrument defendant promised to pay a sum certain in money in fixed installments. The further fact that the note was followed by a chattel mortgage form did not convert it into a contingent obligation, as defendant urges. If it be assumed it was conditional, under the Negotiable Instruments Act, this fact would not affect plaintiff’s right of recovery under the record. His cause of action does not hinge on negotiability.

Complaint is made of overruling a special exception attacking the petition because it constituted a conclusion and failed to allege when or how plaintiff became the owner of the note. The general averment of ownership was sufficient. Rule 45, Texas Rules of Civil Procedure; 9 Tex.Jur.2d, Sec. 246, p. 269. There is no record to preserve a further point complaining of inadequate time being given for amendment of pleadings.

It is said the court erred in finding as a fact that plaintiff was owner of the note. It was not payable to order or bearer, and was therefore not a negotiable instrument under Art. 5932, Sec. 1, Vernon’s Ann.Civ.Stat. Clay-Butler Lbr. Co. v. W. H. Pickering Lbr. Co., Tex.Com.App., 276 S.W. 664. Consequently, ownership could be transferred or established just as could ownership of other choses in action, without formal endorsement or assignment. The evidence supports the finding. Other points have been considered, and are overruled.

Affirmed.


author: McNEILL, Justice.

text:
    E. A. JARRELL, Appellant, v. C. J. SMITH, Sr., Appellee.
    No. 6595.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 27, 1962.
    Rehearing Denied Oct. 10, 1962.
    Glenn Faver, Jasper, for appellant.
    Glenn Barber, Jasper, for appellee.
   McNEILL, Justice.

This is an election contest stemming from the runoff Democratic primary held in Commissioners’ precinct 2 of N ewton County, June 2, 1962, to select a nominee for County Commissioner. In this election C. J. Smith, Sr., received 362 votes and E. A. Jarrell received 352 votes and the former was declared the nominee. Contest of the election result was then promptly begun by Jarrell.

His petition alleged that 21 votes were illegally cast at the election for his opponent Smith and consequently he, Jarrell, should be declared the elected nominee. Of the 21 voters claimed to have illegally cast votes, the contest claimed five were not residents of the county, eight were not residents of the voting precinct in which they voted, four were persons of unsound mind, two failed to sign their ballot stubs and two had not lived in the county for six months prior to the election. As an additional ground of contest, it was alleged that since the Wiergate election place, voting precinct 14, was held in a private residence when a public school house, lodge or church was available, the votes in this box should be thrown out and as Smith received 174 votes there to 27 for Jarrell, this would leave a net vote in the latter’s favor.

The cause was tried before the court. A substantial amount of testimony was heard on the issues presented. In addition to this, contestant offered upon these issues a number of affidavits. Some of the affidavits had statements pertaining to the residence of certain voters; other affidavits were of persons who professed to know for whom certain of the contested votes were cast. One or more recited that the voter had “stated” to affiant he voted for candidate Smith. Each affidavit was offered as the case developed and the contents of the affidavit became relevant. Counsel for contestant advised the court the affidavits were being offered under the authority of the provisions of subdn. 10 of Art. 13.30 of our V.A.T.S. Election Code which, in pertinent part, reads:

“(10) In addition to the powers and authority heretofore granted to the district courts, where fraud or illegality is charged, if such charges of fraud or illegality be supported by some evidence, or by affidavit of reputable persons, and the ends of justice seem to require it, the court shall have authority to unseal and reopen the ballot boxes to determine controverted issues, and the court may recount, or under its direction cause to be recounted, the ballots cast in any or all precincts of the county to determine the true result of such election. * * * ”

Upon objection by contestee that the contents of the affidavits were hearsay, the court refused to admit them in evidence. In this the court did not err for reasons now to be given.

Contestant’s attorney, with commendable candor, stated to the trial court at the conclusion of the evidence, that without the statements contained in the various exparte affidavits offered, he had failed to meet the burden of proof in this case. His view simply was that the affidavits were admissible because the statute so provided. The right of the legislature to provide for evidence by exparte affidavits upon a final or plenary trial of a case is not raised here and we do not pass upon it. Assuming for the purposes of this case that proper affidavits may be so used, we hold that the trial court properly excluded those tendered at the trial. The statute, Art. 13.30, subdn. 10, provides that the affidavits shall be made by “reputable persons”. A “reputable person” is one worthy of good repute or entitled to the esteem and respect of good citizens generally. Foster v. Crisman, 165 Iowa 189, 144 N.W. 1021; 77 C.J.S. p. 264. No proof was offered to show that any of affiants were reputable persons. The right in the trial of a lawsuit to cross-examination of the adversary’s witnesses is highly valuable. It is a time-tested instrument exceedingly helpful in arriving at the truth. The use of affidavits obtained and offered as evidence without the opportunity of the opposing party to examine and develop facts that may be favorable to him is a far reaching departure in court procedure, and one which we fear is fraught with much danger.

In Hawkins v. Sanguinetti, 98 Cal.App.2d 278, 220 P.2d 58, at p. 63, it was said:

“In Lauer v. Estes, 120 Cal. 652, 53 P. 262, 263, the trial court, over objection, allowed the introduction into evidence of a declaration of a witness [an illegal voter] as to how he had cast his vote. In reversing the judgment the Supreme Court held that a declaration of a disqualified voter, as to how he voted, made sometime after the election, in the form of an affidavit before a notary public, ‘is clearly incompetent, and hearsay of the most dangerous kind’, * *

A number of the affidavits in the present case constituted hearsay upon hearsay. For example, in several, affiants stated they were “informed” or advised by another, or the other person “stated” that certain facts existed or happened. Will this sort of double hearsay be used to unseal the ballot box?

In view of what has been said, we think that part of the statute providing for use of affidavits as a means of unsealing and reopening ballot boxes to determine controverted issues should be strictly construed. The statute provides that the affidavit shall be made by “reputable persons”. We make no intimation that those who have executed the affidavits in the present case are not reputable persons. Some or all of them may be the highest type citizens. The fact simply is: No evidence was offered by contestant that the affiants were of good repute or worthy of good repute or entitled to esteem and respect of their fellow-citizens. The record wholly fails in this regard. We hold it was a prerequisite to the introduction of any such affidavit that independent proof should have first been submitted to the court showing that the affiant is a reputable person. This not having been done, the judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    Patricia Matula BECK et al., Appellants, v. Carlos CRAVEN, Appellee.
    No. 13976.
    Court of Civil Appeals of Texas. Houston.
    Sept. 27, 1962.
    Markwell, Stubbs, Decker & Dalehite, Thomas W. Youngblood, Jr., Galveston, for appellants.
    McLeod, Mills, Shirley & Alexander, Robert W. Alexander, Galveston, for appellee.
   COLEMAN, Justice.

This is a suit for damages in which a judgment was entered that the plaintiff take nothing. Plaintiff has appealed, contending that the jury’s answers to the damage issues were against the great weight and preponderance of the evidence and that the court’s charge was erroneous.

All issues on primary and contributory negligence, sole proximate cause and unavoidable accident were answered favorably to plaintiff. Issues 8, 9, 10, 11 and 12 were answered “none”. These Issues read:

8. “What sum of money, if any, if paid now in cash do you find from a preponderance of the evidence will reasonably and fairly compensate the Plaintiff Patricia Matula Beck for such physical pain, if any, and mental anguish, if any, as you find from a preponderance of the evidence the said Patricia Matula Beck suffered from the time of the collision to the time of this trial, resulting from her injuries, if any, in the collision in question?
“Let your answer, if any, be in dollars and cents.”
9. “What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will reasonably and fairly compensate the Plaintiff Patricia Matula Beck for such physical pain, if any, and mental anguish, if any, as you find from a preponderance of the evidence the Plaintiff Patricia Matula Beck will, with reasonable probability, suffer in the future, resulting from her injuries, if any, in the collision in question?
“Let your answer, if any, be in dollars and cents.”
10. “What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will reasonably and fairly compensate the Plaintiff Patricia Matula Beck for such diminished capacity, if any, to labor and earn money in the future as you find and believe from a preponderance of the evidence the Plaintiff Patricia Matula Beck will, with reasonable probability, sustain in the future, resulting from her injuries, if any, in the collision in question.
“Let your answer, if any, be in dollars and cents.”
11. “What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will reasonably and fairly compensate the Plaintiff Patricia Matula Beck for such reasonable and necessary medical expenses as she will in reasonable probability incur in the future, if any, resulting from her injuries, if any, in the collision in question ?
“Let your answer, if any, be in dollars and cents.”
12. “What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will reasonably and fairly compensate the Plaintiff Alvin Matula for the reasonable and necessary medical expenses, if any, incurred by him to the date of this trial resulting from the injuries, if any, sustained by his daughter, Patricia Matula Beck in the collision in question.
“Let your answer, if any, be in dollars and cents.”

The trial court submitted the following special instruction:

“You are further instructed that in answering Special Issue Nos. 8, 9, 10, 11 and 12, you shall not take into consideration any physical pain, past or future, mental anguish, past or future, or diminished capacity to labor or earn money, past or future, caused by any disease, sickness, injury, injuries, bodily infirmities, bodily conditions and/or the natural progression thereof of Plaintiff Patricia Matula Beck which pre-existed or occurred prior to April S, 1959, or which existed or occurred after April 5, 1959, and in answering these issues you must restrict your consideration to those damages, if any, which are solely the direct and proximate result of the accident of April 5, 1959, made the basis of this suit.”

The Plaintiff objected to this instruction on, among others, the following grounds:

“a) First, that this is a comment on the weight of the evidence, in that it tells the jury that the plaintiff did have a disease, sickness, injury, injuries, bodily infirmity, bodily conditions and/ or the natural progression thereof either before April 5, 1959 or after April 5, 1959.
“b) Second, that this is an incorrect instruction in that it tells the jury not to consider any physical pain, past or future, mental anguish past or future, or diminished capacity to labor or earn money, past or future, caused by bodily infirmities or bodily conditions which existed after April 5, 1959, and the injuries on which this suit is based are bodily conditions or infirmities which existed after April 5, 1959, and in effect the Court is instructing the jury not to consider the Plaintiff’s injuries which existed after April 5, 1959.
“e) Fifth, the instruction is misleading in that it tells the jury not to consider any physical pain, past or future, mental anguish, past or future, or diminished capacity to labor or earn money, past or future, caused by any bodily infirmity or bodily condition which existed after April 5, 1959, and the Plaintiffs say that the injuries which are the basis of this suit, for which they are suing for damages, are injuries which existed after April 5, 1959, and that they are bodily infirmities and bodily conditions which existed after April 5, 1959, and therefore, in effect, the Court is instructing the jury not to consider the Plaintiff’s injuries which existed after April 5, 1959.”

These objections were refused and the claimed error was properly preserved in the motion for new trial.

We are unable to say that either of the jury’s answers to the issues on damages were so contrary to the great weight and preponderance of the evidence as to be clearly wrong. While plaintiff testified that she was injured in the collision made the basis of this suit, and there was no direct testimony that she was not injured, there were circumstances in evidence impeaching her testimony. The automobile in which the plaintiff was riding at the time of the collision was occupied by seven people. None of them, including the plaintiff, complained of injury at the scene. The plaintiff explained this by testifying that she did not realize she was hurt until her neck began to stiffen and she developed a headache about one hour after the collision. Plaintiff testified that she consulted her family physician within a few days about her condition and he prescribed heat packs, but it was later stipulated that the family physician was not consulted, and did not treat her for this condition. Plaintiff testified that she was taking medication prior to the collision which caused her to have severe headaches and that her doctor gave her other medicine for relief of the headache. She said that she continued to use this medicine for relief after the collision. The jury could believe from the evidence that she failed to seek medical attention until she was directed to an orthopedic surgeon by an attorney, and that she was given no treatment other than advice to use heat packs, until after she had been a passenger in two other automobiles which were involved in collisions. She testified that she had been involved in a collision about five years prior to the date of the accident made the basis of this suit, and that since this accident she had been in four more collisions. She said that all of these collisions were minor and that she received no injury in any of them. She testified that after the accident in 1944, her neck did become sore, but that she was in good health on April 5, 1959, the date of the collision forming the basis of this suit. She further testified that she consulted the doctor only six or seven times from the date of the accident to the date of trial, two years later.

The surgeon who treated plaintiff testified by deposition that she was injured and had permanent disability. It was his opinion, based on plaintiff’s statement that she had been involved in a collision on April S, 1959, that her injuries were probably caused by that collision. When he first saw the plaintiff she had been involved in no other collision except one five years previously. This medical testimony was sharply disputed by competent medical testimony produced by the defendant. This doctor diagnosed a minor strain producing no permanent disability caused by the 1960 accidents, and that if she was injured in 1959 she had recovered because she told him she had no pain for several months prior to the 1960 collisions. In making his diagnosis of strain, he testified, he had to rely on what plaintiff told him since he found no objective symptoms. Considering all of the evidence, we think the jury reasonably could have concluded that the plaintiff received no injury causing pain or disability or requiring medical attention as a result of the collision of April 5,1959. Arrington v. Paschall, Tex.Civ.App., 352 S.W.2d 866, writ ref., n. r. e.

The points complaining of the court’s charge present more difficulty. The charge was erroneous in that the court, in instructing the jury not to consider any physical pain, mental anguish or diminished capacity to labor or earn money caused by any sickness, injury, bodily infirmities or conditions which existed or occurred after April 5, 1959, failed to eliminate a causal connection between such sicknesses, injuries, or bodily conditions and the collision of April 5, 1959. The charge reasonably could have been interpreted to mean that an injury which existed after April 5, 1959, or a bodily infirmity which occurred after that date, could not be considered by the jury in answering the issues even though they believed from the testimony that such injury or bodily condition was caused by the collision of April 5, 1959. Since the damage issues specifically inquired about physical pain, mental anguish and diminished capacity to labor and earn money, the jury may have wondered why the judge submitted these issues in view of this instruction. They might have reasoned that the court was instructing them to consider only the damage sustained on April 5, 1959, or the jury might have concluded, considering the wording of the special issues in light of the special instruction, that the court was instructing them to answer the issues “none”.

The instruction which in effect told that jury not to allow compensation for any damage caused by an injury which occurred after April 5, 1959, constitutes a comment on the weight of the evidence. Plaintiff denied that she had received any injury after April 5, 1959. There was no direct evidence that she had received such injury, but there was testimony that she was involved in several collisions and that sometime after these collisions she was advised by her doctor to wear a collar to support her neck and head when she had not been so advised during the previous year.

It will be noticed that the trial court in submitting the damage issues asked, in effect, how much money would compensate the plaintiff for the damage “resulting from her injuries, if any, in the collision in question ?” While in the special instruction the jury was told, in effect, you shall not take into consideration any damage to the plaintiff caused by any bodily condition, sickness, injury or injuries which occurred after April 5, 1959.

The word “any” is defined in Black’s Law Dictionary (4th Edition) as meaning: “Some; one out of many; an indefinite number * * * It is often synonymous with ‘either,’ * * * and is given the full force of ‘every,’ * * * ” Webster’s Collegiate Dictionary (5th Ed.) defines “any” as: “1. Being one (or, pi., some) indiscriminately of whatever kind; no matter what one; * * * 2. Being one (or, pi., some) indiscriminately of whatever quality; not none; no matter how great or small; * * * 3. That is unmeasured or unlimited; * * *” Thus the jury might well have reasoned that the court entertained some doubt as to whether an injury was sustained in the 1959 accident, but had no such doubt but that either injury or sickness of some kind resulted from the accidents in which she was involved in 1960 and 1961.

Both the erroneous instruction and the comment on the weight of the evidence contained in the special instruction quoted were reasonably calculated to cause and probably did cause the rendition of an improper judgment within the meaning of Rule 434, Texas Rules of Civil Procedure.

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


author: STEPHENSON, Justice. HIGHTOWER, Chief Justice

text:
    George McCARDELL, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellee.
    No. 6519.
    Court of Civil Appeals of Texas. Beaumont.
    April 25, 1962.
    Rehearing Denied May 16, 1962.

      Jim S. Phelps, Houston, for appellant.
    Thomas A. Wheat, Liberty, Chas. M. Ha-den, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
   STEPHENSON, Justice.

On motion for rehearing, our former opinion filed February IS, 1962 is withdrawn and the following substituted therefor.

Appellant brought this suit under the Workmen’s Compensation Act seeking an award for total and permanent disability by reason of an injury caused by being kicked by a mule. The jury found appellant totally incapacitated for a period of five weeks, and inasmuch as appellee had paid that amount, judgment was entered by the trial court that appellant take nothing. The jury also found the plaintiff’s incapacity was due solely to some other injury or disease or condition of his body, or a combination of these.

Appellant first complains of the trial court’s refusal to grant his motion for new trial based upon newly discovered evidence. The testimony as to whether appellant had a ruptured disc and as to- whether a myelo-gram demonstrated a ruptured disc, was sharply conflicting. Four doctors called by appellant testified in their opinion appellant had a ruptured disc, and four doctors called by appellee testified in their opinion he did not. On the hearing of the motion for new trial, one of the same doctors called by appellant testified he performed surgery on appellant’s back immediately after the conclusion of the trial and found a ruptured disc.

The rule in reference to this matter is: “Granting or refusing new trial for newly discovered evidence is vested by our law in the sound discretion of the trial court and unless such discretion is abused the appellate court will not revise such act [citation]. The court’s discretion in such matters extends to the diligence used to get the testimony before the court at the trial.” Hayman v. Dowda, Tex.Civ.App., 233 S.W.2d 466. We hold the trial court did not abuse his discretion in this case. The reason offered by appellant for not having the operation performed before the trial of this cause, was the suggestion by the attorney for appellant that the charity hospital would not accept appellant as a patient while his suit was pending. The plaintiff was injured July 18, 1957, some three years and nine months before the trial of this cause. These facts do not demonstrate diligence. For us to hold otherwise, would open the door in all similar causes, for a compensation claimant to wait to see if the findings of a jury are adverse and then submitting to an operation in order to procure new evidence for a motion for new trial. If such a procedure receives the approval of the court, a defendant not being satisfied with the findings of a jury, should be permitted to furnish a claimant an operation in order to secure new evidence for a motion for new trial. This would result in an intolerable situation.

Paragraph IV of appellee’s Second Amended Original Answer was as follows :

“Answering further, if necessary, Defendant says that Plaintiff’s disability or incapacity, if any, was caused by some disease, condition of health, some physical defect and/or some injury other than that made the basis of this suit, or some other cause or combination of causes unrelated in whole or in part to the alleged injury or disease alleged herein and made the basis of this suit.”

Appellant specially excepted to this pleading because it was too general, and asked that appellee be required to plead specifically. The trial court overruled this special exception. We think this exception should have been sustained. We are well aware of the rule that errors of a trial court in ruling on exceptions to the pleadings may be prejudicial and grounds for reversal where they cause the rendition of an improper judgment and materially affect the rights of the complaining party. A ruling on pleadings is not prejudicial or reversible if the result would have been the same, had the error not been committed. We feel the series of errors made by the trial court began with the overruling of this special exception. If the defendant had been required to properly plead its case, the lines of controversy between the parties would have been clearly drawn, and the trial of the case greatly simplified. The evidence which would have been admissible and the special issues to be submitted to the jury would have been made clear to all concerned. A defendant in a compensation case may file a general denial only, and the plaintiff has the burden of proving the accident in question is the producing cause of the plaintiff’s incapacity. In such instance the defendant could offer evidence to prove that the plaintiff’s incapacity was solely caused by other injuries dr other diseases, or a combination of the two, even though no defensive issue could be submitted to the jury. The defendant could choose to plead his affirmative defenses. In such case, a defendant is required to plead its defenses, in the face of a special exception, with the same degree of particularity and certainty as a plaintiff pleading his cause of action. We suggest that if the defendant is seeking to secure the benefit of Vernon’s Ann.Civ.St, sec. 12c of Art. 8306 in reference to a prior injury, it should plead specifically the date and the nature of the prior injury, and whether such prior injury or its affect contributed to the present incapacity, or was the sole cause of such present incapacity. If the defendant is seeking to plead as a defense, that plaintiff’s incapacity is solely caused by a different injury, or by a disease, or a combination of the two, then in face of a special exception, the defendant must plead the date and the nature of the injury, or the nature of such disease. Such pleading would serve the purpose of putting the plaintiff on notice as to the particular injury or disease that the defendant intended to rely upon as a defense, and plaintiff would have opportunity to meet these issues during the course of the trial. To argue that a defendant should not be required to plead specifically as to another injury or a disease, because the plaintiff could not be “surprised” as he would already know of the other injury or disease, is no more logical than permitting a defendant in an automobile collision case to argue he should not be required to plead more than general contributory negligence because the plaintiff would already be aware of his failure to stop, or sound his horn or any other specific act or omission on his part.

After his exception was overruled, the plaintiff in the case before us then urged a motion-in-limine, to suppress any evidence as to two prior injuries and one subsequent injury, or to any claims, settlement or payment made to plaintiff on account of such injuries for the following reasons: that the previous and subsequent injuries and claims had no bearing upon the case at bar and were completely irrelevant and immaterial; that such other injuries were to other parts of plaintiff’s body; that the evidence as to other injuries and claims would be offered in an attempt to prejudice the jury against the plaintiff and induce the jury to believe plaintiff would exaggerate his disability and feign symptoms of injuries; and would violate the rule of law res inter alias acta. The trial court entered an order overruling plaintiff’s motion in all things, and granted the defendant the right to introduce evidence as to the three injuries and claims. We think the trial court should have sustained this motion insofar as it related to prior or subsequent claims, settlement or payments, and overruled the motion insofar as it related to other injuries and the effect they might have upon the plaintiff’s present incapacity. Brinkley v. Liberty Mutual Ins. Co., Tex.Civ.App., 331 S.W.2d 423; City of Wichita Falls v. Chandler, Tex.Civ.App., 348 S.W.2d 48.

The trial court admitted in evidence, over the objections made by plaintiff’s attorney, petitions filed by this plaintiff in three separate and different cases, affidavits, notices of injury and claims for compensation filed in different cases with the Industrial Accident Board. The overruling of each of these objections constituted error. There is a rule in this state that pleadings in other actions which contain statements inconsistent with a party’s present position are receivable as admissions. This rule is stated in Vol. 2 of McCormick and Ray on Evidence at page 35 and cases are cited. However, none of these cited are compensation cases, and in each instance there was a direct change of position. In the instant case there is nothing inconsistent with a previous claim for total and permanent incapacity, and with a present different claim for total and permanent incapacity. The courts of this state have held that the fact a claimant has recovered an award for total and permanent incapacity does not preclude a recovery for total and permanent incapacity in a subsequent claim and suit. See Traders & General Ins. Co. v. Blancett, Tex.Civ.App., 86 S.W.2d 420. Writ dismissed. The defendant was permitted under the rules of evidence to prove this plaintiff had received prior injuries and whether such pri- or injuries were the sole cause of plaintiff’s incapacity, or contributed to his present incapacity under Art. 8306, sec. 12c, but the admissibility of this evidence does not include proof of a prior claim through the pleading, notice of injury or claim for compensation. We believe the danger of admission in evidence of prior claims, settlement and payments prejudicing the claim of a litigant outweighs the probative value of such evidence. From a study of the entire statement of facts, we conclude that the defendant did not introduce its evidence as to prior claims and injuries for the purpose of taking advantage of the benefits of Art. 8306, sec. 12c. The defendant offered no medical testimony attempting to show any connection between the prior injuries and the plaintiff’s present condition. In fact, one of the medical witnesses called by defendant testified the two prior injuries did not contribute to the plaintiff’s present condition. From a careful reading of the medical testimony in this case, it is obvious that the defendant’s theory is that the plaintiff is suffering no disability, rather than that plaintiff’s present incapacity was solely caused by, or contributed to by prior or subsequent injuries. No issues were submitted to the jury under Art. 8306, sec. 12c inquiring whether a prior injury contributed to the plaintiff’s present incapacity and the extent of such contribution. We conclude that this evidence was offered solely for the purpose of showing that this plaintiff had made other claims for compensation, and filed other compensation suits.

We hold the error of the trial court in admitting evidence as to the prior and subsequent claims and suits was not invited, and not waived by the attorney for plaintiff asking the plaintiff about a prior back injury and settlement of the claim, because the trial court had already denied the plaintiff’s motion-in-limine to suppress any testimony in reference to this prior claim and settlement, and had indicated by his action that this evidence would be admissible. It is a matter of common knowledge that if evidence of a prior claim and settlement is to be injected into a trial, it is better from a party’s standpoint that the information came out on direct examination rather than cross-examination.

In view of the jury’s answer to the issues, that is, the finding that the total incapacity for a period of five weeks, and the finding of the incapacity being solely caused by prior injury, disease, or a combination, demonstrates to this court that the jury was impressed by the testimony; thus causing the errors of the trial court to be harmful.

As this case is being reversed and remanded for another trial, we do not find it necessary to pass upon the other questions raised by the appellant.

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

HIGHTOWER, Chief Justice

(dissenting).

I cannot agree with the result of the conclusions reached by the majority.

Appellant’s motion to suppress was a blanket motion. In a general fashion it commingled matters admissible in a case of this nature, such as prior injuries, with objectionable matters such as prior claims and settlements, and requested the court to exclude them en bloc’. I am of the opinion that the same rule governs in this situation as that applied where a general objection is made to evidence, part of which is admissible and part of which is not. In such instance the objection is properly overruled. 41-B Tex.Jur. (Rev.), p. 172, sec. 146. Moreover, I do not believe that the appellant was justified in the circumstances in assuming that the court, after overruling such motion, would of a certainty permit the introduction of those matters which might be improper. As in the ruling on special exceptions, a trial judge may and often does change his ruling in the progress of the trial. Notwithstanding these elementary rules, the appellant in the earlier stages of the trial was the first to inject evidence of prior claims and settlements, to which he was a party. He did this deliberately on direct examination, over appellee’s objections, by stating that he had settled a prior suit for injuries to his back for $750, thus waiving objection to, and inviting proof of other claims and settlements he had made. City of Gladewater v. Dillard, Tex.Civ.App., 312 S.W.2d 530, and authorities cited. The facts in the Brinkley case, cited in the majority opinion, are so unrelated to those in the present case as to merit no discussion.

I feel that if, indeed, there were other errors committed by the trial court they were not such as were calculated to cause the rendition of an improper judgment. Being of the further opinion that there exists no irreconcilable conflict in the jury’s answers to the issues submitted, I would affirm the judgment of the trial court.


text:
    W. W. BANKS et ux., Appellants, v. J. C. GUMM, d/b/a J. C. Gumm Tile Company, Appellee.
    No. 4013.
    Court of Civil Appeals of Texas. Waco.
    Sept. 27, 1962.
    Rehearing Denied Oct. 18, 1962.
    Jay S. Fichtner, Dallas, for appellants.
    Leonard E. Hoffman, Jr., Dallas, for ap-pellee.
   WILSON, Justice.

Appellee Gumm, a tile contractor, recovered judgment against Mr. and Mrs. Banks for the value of material and labor furnished for improvements to their dwelling. Findings and conclusions were filed.

Appellants urge no recovery could be had because the improvements were to their homestead. There is no pleading raising this question. The only evidence is that they occupied the property. If it was a homestead, the judgment, under remit-titur, did not impress a lien. Decisions relied on by appellant deal with lien foreclosure.

Gumm originally brought the action against appellants and a general contractor, (who was subsequently dismissed) alleging an express contract between these defendants for furnishing the labor and material, and alleging that the general contractor thereafter entered into an oral contract with Gumm by which the latter would furnish them. He alleged also that Mrs. Banks, individually and as agent for her husband, promised to pay the contract price therefor if the general contractor failed to do so. He further alleged the materials and labor constituted reasonable necessaries to appellants, who accepted the benefits thereof; and alternatively prayed for judgment in quantum meruit for their value.

It is contended that because Gumm pleaded and testified Mrs. Banks only agreed to pay if the general contractor failed to do so; and because Gumm filed an affidavit for record (in unsuccessfully attempting to perfect a mechanic’s lien) reciting that he made a verbal agreement with this contractor to do the work, he is bound by his admissions; and no recovery could be had against the owners. He further insists that the agreement alleged to have been made by Mrs. Banks contravened the statute of frauds.

The court found that no express agreement was ever made by Gumm with either appellants or the general contractor as to what Gumm was to do, or what price he would be paid; that the general contractor requested Gumm to act as a subcontractor, but he refused to do so, having learned from Mrs. Banks that the former had defaulted in performance of the general contract; that Mrs. Banks, individually, and as agent for her husband, asked Gumm not to leave the job, told him she and her husband “had to have the bathroom completed” and agreed to pay him a specified sum; that Mr. Banks requested Gumm to do extra work, reasonably worth an amount found; that the materials and labor furnished were necessaries. He found Mr. and Mrs. Banks supervised Gumm’s work, suggesting changes as it progressed, and accepting the benefits thereof.

Under these, and other findings supporting the judgment, contentions as to admissions and the statute of frauds become immaterial. The coverture of Mrs. Banks also, is not material under the determinations summarized. The judgment is sustained on theories as to which appellants’ contentions are inapplicable.

The judgment is modified to delete recovery of interest other than from date of judgment. Other points are overruled, and as modified the judgment is affirmed.


text:
    Jack DUNN, Appellant, v. Harper F. PATTON et ux., Appellees.
    No. 4034.
    Court of Civil Appeals of Texas. Waco.
    July 26, 1962.

      W. L. Tandy, Waco, for appellant.
    James T. Mixon, Waco, for appellees.
   WILSON, Justice.

The temporary injunction decree appealed from restrains appellant from completing, maintaining and using a building which the court determined violated restrictive covenants governing construction on the land on which it was erected.

Appellees move to dismiss the appeal for failure of appellant to file a brief. The motion is overruled. No brief is required under Rule 385(d), Texas Rules of Civil Procedure. Since the time for filing brief has expired, our duty is to determine whether from “the bill and answer and such affidavits and evidence as may have been admitted” the decree was proper or shows abuse of discretion. Hotel, etc. League v. Longley, Tex.Civ.App., 160 S.W.2d 124, 126; Austin v. Consolidated Casting Co., Tex.Civ.App., 246 S.W.2d 273.

We are of the opinion no abuse of discretion is reflected by the granting of that portion of the relief above recited. However, the decree further granted a “temporary mandatory injunction” requiring removal of the improvements “within 25 days after judgment in this cause becomes final.” This portion of the order does more than preserve or restore the status quo, the purpose of a temporary injunction. Camp v. Shannon, Tex.Sup., 348 S.W.2d 517, 519; it changes it, and improperly determines the entire controversy, which is not the office of a temporary injunction. Story v. Story, 142 Tex. 212, 176 S.W.2d 925, 928; Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, syl. 10; 31 Tex.Jur.2d p. 96. See City of Lubbock v. Stubbs, 160 Tex. 111, 327 S.W.2d 411, 415. In the latter case it was said the status quo to be preserved by a temporary injunction, the last peaceable status quo, “was the status which existed at the time of the filing of the present suit.” To require removal of the building is more than is necessary to preserve the status quo pending final determination.

The judgment is reformed by deleting this provision, and as reformed is affirmed. Costs are taxed equally between the parties.